The Common Law of England is responsible for developing the Law of Torts.
From the Latin word "Tortum," which meaning "twisted" or "crooked," comes the
French term "tort." The phrase means that there is a change from the usual,
straight, or decent conduct. It is equivalent to the word "wrong" in English.
Roman law refers to it as a "delict."
To put it another way, the term "Tort" refers to a wrongdoing that someone
commits or fails to commit those results in harm to another person. The victim
then files a lawsuit in civil court seeking compensation in the form of
unliquidated damages, an injunction, the return of lost property, or any other
available relief. Unliquidated damages refer to the sum of damages that must be
established or decided by the court.
According to case of [i]Gordon v. Lee and Joseph
, a person who has
committed or is accountable for a tort is called a "tortfeasor".
According to Prof. Winfield[ii], "Tortious Liability arises from breach of a
duty primarily fixed by law; this duty is towards persons generally and its
breach is redressable by an action for unliquidated damages." Sir John Salmond4
defined the term Tort as "a civil wrong for which the remedy is common law
action for unliquidated damages and which is not exclusively the breach of
contract or the breach of trust or other merely equitable obligation."
Sir John Salmond[iii] defined the term Tort as "a civil wrong for which the
remedy is common law action for unliquidated damages and which is not
exclusively the breach of contract or the breach of trust or other merely
In the USA, UK, and other developed nations, tort is well developed. However,
unlike the Indian Contract Act of 1872 and the Indian Penal Code of 1860, among
other laws, the law of torts is still not codified in India. The Consumer
Protection Act of 1986, the Motor Vehicle Act of 1988, and other laws are
attempts to codify some of its branches, although it is still in the developing
stage. The general rule of tort law is that anybody who violates a legal duty
has the right to sue the person who committed the harm.
This is a basic rule based on the locus standi tradition that only those who
have experienced a legal damage are eligible for judicial remedy. This rule was
based on premise that only a person whose own right is threatened, is entitled
to seek a remedy, this rule translate itself into the following proposition of
- Only he has legal redress in the area where his own legal rights as to
person or property are gravely and explicitly violated.
- A person who suffers along with other members of the public as a result
of an administrative action cannot contest the action in question unless he
can show some specific injury to himself that is above and beyond what other
people have experienced.
- The court will often not consider a petition filed by a complete
stranger who is contesting an administrative action.
Capacity To Sue And Be Sued In Torts
In the past, the only individual who could file a lawsuit seeking judicial
redress was someone who had specifically been harmed legally as a result of real
or threatened infringement of a right or interest that was protected by the law.
This norm, nevertheless, is very old and came into existence when private law
predominated the legal system and public law had not yet been created.
Everybody has a right to sue and is subject to being sued, according to the
basic rule of tort law. However, this rule is not ironclad. There are exceptions
to this basic norm due to individual disability depending on specific laws and
situations. There are some people who cannot bring or receive a tort claim.
Who Can Sue and Who Cannot Sue?
The below points provides us with a clear understanding of as to who can sue and
who cannot sue in tort:
- Convicts and persons in custody:
For several offences covered by sections 126, 127, and 169 of the Indian Penal
Code of 1860, confiscation of property was a sanction in India up until 1921.
However, this punishment has since been eliminated. In India, a convict may
therefore bring a tort claim for injuries to his person or property, as per
The right to life and liberty, as well as the freedoms of speech
and expression, are guaranteed under the Indian Constitution. In the case of Sunil Batra vs. Delhi Administration the court determined that a person's
conviction does not place an iron barrier between him and his rights, nor does
it make him a non-person.
In Smt. Kewal Pati v. State of UP, due to the jail
officials inability to protect him, one prisoner was attacked by another
prisoner within the facility and died. The Supreme Court granted Rs. 1,000,000
as compensation against the State for violating the basic right to life
guaranteed by Article 21 in a case filed under Article 32 of the constitution by
the deceased's relatives.
- Alien Enemy:
Any individual, regardless of nationality, who resides in enemy
territory or does business there is considered an alien enemy. An alien enemy
cannot bring a claim on his own behalf. An alien enemy cannot file a lawsuit in
an English court without the Crown's specific permission in England. In the case
of Johnstone v. Pedler, (1921) 2 AC 262 it was decided that an alien
adversary who entered the realm with the express or implicit permission of the
Crown was momentarily released from his enemy status and might exercise judicial
jurisdiction. In the words of Salmond, English courts are open to an alien enemy
but he remains at the mercy of the Crown.
In India as per Section 83, Civil Procedure Code, 1908, Aliens who are living
in India with the Central Government's permission may file a lawsuit in any
court that is otherwise qualified to hear the case, just like they would if they
were Indian citizens.
However, aliens who are living in India without the
Central Government's permission or who are living abroad may not file a lawsuit
in any such court. Additionally, every individual who resides in a foreign
nation whose government is at war with India and does business there without a licence issued in that capacity by the Central Government is considered an alien
enemy resident abroad.
- Married woman and husband
A married woman could not file a claim in England before to 1882 unless her
husband also joined the lawsuit as a plaintiff. Additionally, unless her husband
was included as a defendant, she could not be prosecuted for a tort that she had
committed. Due to the rule that husband and wife constitute one person in legal
terms, neither she nor her husband may file a lawsuit against the other for any
tort committed by one against the other.
The Married Women's Property Act of
1882 and the Law Reform (Married Women and Tortfeasors) Act of 1935 both
eliminated these anomalies. A married woman can sue as if she is femme sole
for any tort committed by a third person and can also be sued for any tort
committed by her without joining her husband who cannot be made liable or made
party to a suit simply because he is the husband.
Additionally, each spouse in a marriage has the same right to file a tort claim
against the other as if they were not married under the Law Reform (Husband and
Wife) Act of 1962. To prohibit the parties from utilising the court as a forum
for insignificant domestic issues that have no potential of materially
benefiting either of them, the court may choose to halt the proceedings.
Due to the Married Women's Property Act of 1874, such a woman can be sued and
sued as a femme sole in India and any damages that may be obtained against her
are payable out of her separate property. Hindus, Buddhists, Sikhs, Jains, and
Muslims in India, however, are subject to personal laws rather than common law,
which governs their marital status. Marriage does not offer any protection to
any of the spouses for any torts committed by one against the other under these
personal laws, nor does it change the ability of the parties to bring or receive
- Bankrupt or insolvent
If an insolvent commits a tort, his culpability is not a debt that can be proven
against him in bankruptcy and is not released in bankruptcy. An insolvent may be
sued for a crime he committed before or after declaring bankruptcy, and if found
guilty, the money awarded will be considered a debt that may be proved in
bankruptcy. However, a bankrupt or insolvent person cannot bring a claim for
damages relating to their property since, under English law, all of their assets
belong to the trustee in a bankruptcy, whereas in Indian law, they belong to the
official assignee or official receiver.
Due to the nature of corporations, it is obvious that they cannot suffer human
injuries. However, corporations may bring claims for torts that cause damage to
The prerequisite is:
In the case of Mayor of Manchester v. Williams, the plaintiff corporation's
lawsuit for damages regarding a statement alleging corrupt activities in the
management of municipal affairs was dismissed since it was determined that the
statement did not harm the corporation as a whole.
- The tort must not be impossible in some way.
- If the company can demonstrate that the defamation has the potential
to result in actual damages, it may file a lawsuit against the other
- A corporation may file a lawsuit for libel or any other tort that
negatively impacts its assets or operations.
- Foreign Sovereign
The jurisdiction of Indian courts does not extend to the heads of any nation.
Every sovereign is exempt from the jurisdiction of every Court according to the
fundamental element that to do so would violate his genuine dignity, which is
his total independence from all higher authority. According to Section 86 of the
Code of Civil Procedure from 1908, no ruler of a sovereign State may be sued in
any court that is otherwise authorised to hear the matter, unless that ruler's
government has provided its written agreement, which must be verified by a
secretary of that government. [i]The Supreme court of India in 1966 applied this
section to all foreign states whatever may be the form of government in the case
of Mirza Ali Akbar.
In India as per sections 10 and 11 of the Indian Contract Act, 1872 a minor is
incompetent to contract. In Mohori Bibee vs. Dhurmodas Ghose, it was held
that a minor's agreement being void ab initio; no action can be brought under
the law of contract against him.
Sections 82 and 83 of the Indian Penal Code of 1860 prohibit age-based
distinctions in tort cases. Therefore, a seven-year-old child might be sued for
trespass in the same way as an adult.
However, until sufficient maturity for committing that tort can be shown in this
specific case, a child cannot be held liable for a tort that requires a
distinguishing mental element, such as dishonesty or malicious prosecution.
Who Cannot be Sued?
- Sovereign or King: The maxim "The King can do no wrong" serves as the
foundation for the crown's exemption from legal accountability. Therefore, a
claim of personal injury will not be brought against the Crown. While
altering the previous legislation, "the Crown Proceedings Act, 1947" also
upheld the prohibition on tort claims being made against the government in
the course of private action.
Our nation does not have a king. The Indian Constitution states that neither the
President nor the Governors are subject to judicial review
- to execute and carry out the authority and responsibilities of their
- for any act they committed or pretended to commit while using and
carrying out their duty and authority. No ruler of a former Indian State may
be sued in a court without the government of India's consent, according to
Section 87-B of the Civil Procedure Code.
- State: Courts cannot challenge an act carried out in the exercise of
sovereign authority in reference to another State or its citizens. Acts of
State are those that authorities of one State perform in the name of the
citizens of another State. Among the key characteristics of a State act are:
An act of the State is as expressed by the court in S. Hardial Singh vs.
State of Pepsu the act of an executive as a matter of policy performed in the
course of its relations with another State including its relations with the
subjects of that State unless they are temporarily within the allegiance of the
- The state's representative does the action.
- Other States or its Subject are harmed by the act, and
- Such actions are either carried out with previous State approval or
approval that comes later. Such actions are not subject to liability.
However, if a foreign person is hurt while exercising sovereign power, he
can seek redress through diplomatic channels.
In India, the Ambassador is also covered under Section 86 of the Code of Civil
Procedure. An ambassador or diplomatic envoy has certain advantages because he
works as a cog in the system that keeps the two countries' ties in good
standing. As a result, diplomatic agents are completely exempt from the
receiving state's criminal law as well as its civil and administrative laws. If
they are not nationals of the host country, members of the diplomat's family who
live with them are also protected by this protection. This immunity applies not
only to the diplomats themselves but also to their suite and household.
One can remove an ambassador by petitioning their own government to persuade the
government of the host nation to punish the envoy and his staff in a way that
would appease the complaining government.
The capacity to sue and be sued is crucial in determining whether or not a case
is admissible in court. Several variables, such as fairness (lunatic),
efficiency in upholding law and order (municipalities and public businesses),
cordial connections with the state (foreign enemy), etc., determine whether or
not someone can file a lawsuit or be sued.
While the law governing married women has changed over time, removing the
prohibitions against spouses suing one another, other restrictions-ensuring that
people who are themselves incapable, do not sue anyone else in a court of law,
and to ensure that people who are exempt from being sued don't get sued by
anyone-remain in place.
As Quoted by [i]Benjamin Cardozo in "The Growth of Law":
"Existing rules and principles can give us our present location, our bearings,
our latitude and longitude. The inn that shelters for the night is not the
journey's end. The law, like the traveller, must be ready for the morrow. It
must have a principle of growth."
- Benjamin Cardozo: The Growth of Law (1924) Pages 19-20.
- S. Hardial Singh vs. State of Pepsu AIR 1960 Punj 644
- Sunil Batra vs. Delhi Administration AIR 1978 SC 1675.
- Smt. Kewal Pati v. State of UP (1995) 3 SCC 600.
- Johnstone v. Pedler (1921) 2 AC 262.
- Jowitt'S Dictionary of English Law, vol I(2nd edn.1977) p. 83.
- Explanation to Section 83, CPC. 1908
- Burke,John, (ed.) Jowitt's Dictionary of English Law, Vol 2 ( 2nd edn.
1977) p. 1153.
- Mayor of Manchester vs. Williams (1891) 1 QB 94.
- Mohori Bibee vs. Dhurmodas Ghose (1903) 30 Cal. 539.
- Mirza Ali Akbar vs. united Arab Republic AIR 1966 SC 230
- Gordon v. Lee and Joseph ,133 Me. (1935).
- Dr. Singh, Avtar, Introduction to Law of Torts, Lexis Nexis Butterworths
Wadhwa Nagpur,2009, p. 3.
- Gandhi, B.M., LAW OF TORTS, Eastern Book Co (P) Ltd, Lucknow,2011, p. 4.
- jayvant1. (2001, March 1). Capacity Or Standing. Capacity Or Standing.