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Limitation of Personal Capacity in law of Torts in
21st Century



Winfield and Jolocwiz on Tort,19th Edition,Sweet& Maxwell
Ratanlal and Dhirajlal,The Law of Torts,26th Edition,Lexis Nexis
SCC Online
Smith and others v Ministry of Defense [2013] UKSC 41
Jones v. Saudi Arabia [2004]EWCA Civ [105],[2007] 1 All ER 113
Grovir v de Nederlandsche Bank Nv [2005]EWHC 2944
Quinland v Governer of Swalside Prison [2003] 1 All E.R.630
McFarlane v.Tayside Health board [2000] 2 AC 59
Rees v.Darlingtoin Memorial Hospital NHS Trust (2003)UKHL 52
Parkinson v.St.James Hospital Trust [2001] 3 WLR 376
Moore Stephens v Stonerolls Ltd. [2009] UKHL 39
Green Field v.Flather (2001) EWCA Civ 113
Concept oil Services v.EN-genn group LLP [2013] EWHC 1897
State of A.P.v Challa Ramakrishna Reddy (2000) 5 SCC 712
Chairman of Railway Board v.Mrs.Chandrima Das (2000) 2 SCC 465
Common Cause v.Union of India (1996) 6 SCC 530
The Crown Proceedings Act,1947
The European Convention on Human Rights,1947
The Constitution Of India,1949
The Human Rights Act,1998
The Courts Act 2003
The Defamation Act 2013vv

Every person living in a civilized state has been given certain rights by the law. Infringement of
these rights gives rise to another right that is right to sue the person who infringed these rights.
This right to sue is known as the capacity of an individual where capacity indicates the
competence of the parties to sue and liability to be sued.
As a general rule every person who suffers a tort can sue and a person committing a tort can be
sued. This general rule is based on equality before law guaranteed by Article 14 of Constitution
of India, 1949 and also on the right to equality before law (as a part of the right to fair trial) as
enshrined in Article 7 of the Universal Declaration of Human Rights. Also, this right is enshrined
in Article 14 of the International Covenant on Civil and Political Rights.
All persons have capacity to sue and be sued in tort. This, however, is a general rule and is
subject to modification in respect of certain categories of persons. Locus standi means legal
capacity to challenge an act or decision. This traditional rule of locus standi is that judicial
redress is available only to person who has suffered legal injury.
According to Black's Law Dictionary, locus standi means "a right of appearance in a court of
justice, or before a legislative body, on a given question".
This project mainly deals with changes in limitation of personal capacity post globalization.
Although there are no changes in respect to personal capacity certain categories.Secondary
research has been primarily adopted and extensive case study(U.K. and Indian) has been done
with leads from authoritative books.Changes in statute regarding capacityhas also been
studied.This project doesnt deal with 20th Century developments and solely focus on 21st century
developments regarding capacity in tort law.

The Crown and State Officials enjoyed immunity in Tort which was largely put to an end by the
Crown Proceedings Act 1947(hereinafter referred to asThe Act ).The Act equated the Crown
with a private person of full age and capacity for the purpose of tortious liability albeit saving the
Crown from proceedings against the Sovereign in person1 and proceedings in respect of the
Crowns prerogative and statutory power.2 s.2 of The Act lays down when can the Crown can
be held liable for tort.The Crown can be held liable as provided in the act only. In Chagos
Islanders v Attorney General it was held that the Crown can be held institutionally as well as
personally liable in respect of any breach of duty owed to its servants or agents and in respect
to the ownership, occupation, possession or control of property.The Act makes the Crown
liable for the acts of human agents who commits tort but the claimant must prove the mental
element for misfeasance of the public servant for whose action the Crown is answerable. An
action lies against the Crown on behalf of a deceased person by his dependents.3Earlier, it was
not possible for a member of armed forces to sue the Crown for injuries inflicted by a fellow
member in the execution of his duty or arising from the condition of the premises or the
equipment4,but the aforesaid restrictions were removed in Crown Proceedings(Armed Forces)
Act,1987 .In Smith and others v Ministry of Defence5 .The facts of the case are as follows:
FACTS:There were three claims in this case by different claimants who where the dependents of
British Soilders.There where three claims namely Challenger Claim,Snatch Land Rover
claim, and Ellis Negligence claim.The above three claims arise due to death of army personnel
while in an army vehicle or tank.The claimants in Challenger Claim(Challenger-an army
tank)sued the Crown for negligence for failing to ensure that the tanks were equipped with
1 Section 40(1) of The Act
2 Section 11(1) of The Act
3 Clark and Lindsell on Torts,20th Ed.(2013) Para 5-019
4 Section 10 of The Act
5 [2013] UKSC 41

available adequate technology and adequate training which led death of two army personnel in
an army exercise . In Land Rover claim and Ellis claim arose from death of two army
personnel in different incidents while patrolling in Land Rover vehicles.The claimants alleged
that Ministry of defense were in breach of the obligation under art.2 of European Convention on
Human Rights6 by failing to provide the soldiers with better armoured and equipped vehicles and
to take reasonable measures in light of the real and immediate risk of soldiers with patrolling
obligations and to provide suitably protected vehicles(which in this case was not).
1)Whether the killed army personnel,during military operations abroad were, at the time of their
deaths,within the jurisdiction of the UK for the purpouse of Art.1
2)Whether the UK govt.owed a positive duty to the deceased soilders at the time of their deaths
pursuant to art.2 of the European Convention for Human Rights,with a view to preventing the
death of its own soilders in active operations against enemy?
3)Whether the complaints of negligence fall within the scope of combat immunity and whether it
would otherwise not be fair,just and reasonable to impose a duty of care to protect against death
or injury on the Ministry of Defense in the circumstances of the case.
The court held that the jurisdiction of United Kingdom under art.1 of the ECHR extended to
securing the protection of art.2 to the members of the armed forces when they served outside its
territory and at the time of their deaths within the jurisdiction of the UK.The court also held that
Ministry owed a duty of care and the cases were sent to trial court for proceedings.
The Enforcement of the Human Rights Act,1998 from the year 2000,which give effect to the
European convention on Human Rights provides that it is unlawful for any public authority to act
in a way which is incompatible with a conventional right and a person who considers that his
rights have been violated can sue the public authority for damages.

6 Drafted in 1950, entered into force on 3/9/1953

Similarly,Art.300(1) of The Constitution of India allows the Government of India and State to
sue and to be sued but an extensive reference is required to The Government of India
Act,1858.President of India and The Governors of the state state have personal immunity and are
not answerable to any court as provided in Art.361 of The Constitution of India,for performance
of duties of their Offices.In State of A.P. v,Challa Ramakrishna Reddy7,when a prisoner under
trial died because of a bomb thrown into his cell by miscreants the state was held liable for the
negligence of the jail authorities in protecting the prisoner in spite of warnings.It was also held to
be a violation of fundamental right guaranteed under art.21 of The Constitution of India. It was
held that Fundamental Rights override the Sovereign immunity and no defence can be taken for
enforcement of a constitutional remedy.8In Chairman Railway Board v.Mrs.Chandrima Das9,a
women was gang raped by the employees of the railway was awarded compensation of Rs.10
lakh for the violation of her fundamental right under Art.21.In the very case it was observed that
cases under art.32 and 226 which have been awarded Compensation as cases in the realm of tort
law.Well before the European countries observed in 1998 Right to Life to be protected by
Law,the constitution of our country had observed it as a fundamental right.

In an action for damages against the Kingdom of Saudi Arabia10 and its servants(police officers)
or agents for torture allegedly committed against the Claimants in Saudi Arabia, the Court of
Appeal11 dismissed the claimants appeal against Saudi Arabia holding that Sovereign enjoyed
State immunity from civil jurisdiction in proceedings involving allegations of torture,.However,it
allowed both the first and the second claimants appeals against the refusal of permission to serve
the individual defendants out of the jurisdiction and the Kingdom was unable to successfully
7 (2000)5 SCC 712
8 Consumer Education and Research Centre v Union of India (1995) 3 SCC 42
9 (2000) 2 SCC 465
10 Jones v. Saudi Arabia
11 (2004) EWCA Civ [105]

plead immunity,raitone materiae on behalf of its named officials involved in the same
proceedings.But the House of Lords12 reversed the decision and held that neither the international
law prohibition of crimes against humanity, nor the prohibition of torture, prevailed over the
principle of state immunity. State Immunity applied even though it included a violation of jus
cogens or premptory rule of International law such as the prohibition of torture.The House also
allowed the appeals of servants and agents holding that the state canextend the clock of its own
immunity over those officials the court also observed that the UN Convention on Jurisdictional
Immunities of States and their Property 2004, although it was not yet ratified, was the most
authoritative statement available on the international understanding of the limits of state
immunity in civil cases, and it did not avail the claimants either. There was no evidence that
states had recognised or given effect to an international law obligation to exercise universal
jurisdiction over claims arising from alleged breaches of peremptory norms of international law.
In Grovir v de Nederlandsche Bank Nv13 and action for Defamation(libel) was dismissed
on the grounds that the defendants were the employees of the bank,which was a public bank and
the employees were exercising public law powers and were performing the role of an
administrative authority carrying out governmental supervisory functions which had been
delegated to the Bank by the Dutch Government to protect the integrity of the financial system in
the Netherlands.

The law casts a wide immunity around acts done in the administration of Justice. Judges
administer Justice and they are immune(High Court judges only) from liability for any act of
judicial character even though the act is in excess of or outside their jurisdiction and whether this
is a result of mistake of fact or mistake of law.If,however an act is in excess of jurisdiction and
his done in bad faith ,then the judge would be liable in damages.No action lies for any act in the

12 [2007] 1 All ER 113

13 [2005]EWHC 2944(QB)

execution of the justices and with respect to any matter within his jurisdiction14,hence giving
arbitrary power for deciding the cases in his jurisdiction. Mental intention doesnt have any role
to play in a judges decision until unless it falls within his power(jurisdiction) to hear. Judiciary
in India is protected by the Judicial Officers Protection Act,1850 and The Judges Protection
s.1 of the Judicial Officers Protection Act,1850 reads as follows
1. Non-liability to suit of officers acting judicially, for official acts done in good faith, and
of officers executing warrants and orders. No Judge, Magistrate, Justice of the Peace,
Collector or other person acting judicially shall be liable to be sued in any Civil Court for any act
done or ordered to be done by him in the discharge of his judicial duty, whether or not within the
limits of his jurisdiction: Provided that he at the time, in good faith, believed himself to have
jurisdiction to do or order the act complained of ; and no officer of any Court or other person,
bound to execute the lawful warrants or orders of any such Judge, Magistrate, Justice of the
Peace, Collector or other person acting judicially shall be liable to be sued in any Civil Court, for
the execution of any warrant or order, which he would be bound to execute, if within the
jurisdiction of the person issuing the same.
.In Quinland v Governer of Swalside Prison15 the court clerk mistakenly drew up the order for
2yrs.6 months instead of 2yrs.3 months. The claimant brought an cause of action against the
defendants for false imprisonment. It was held that the Crown was not liable in tort as per s.2(v)
of the Crown Proceedings Act 1947 which granted immunity in tort for anything done by any
person in discharging responsibilities of a judicial nature vested with him or any responsibilities
he has in connection with execution of the Judicial Process.


14 s.31 of Courts Act 2003.

15 [2003] 1 All E.R.630

No Major Developments have taken place in the 21st Century regarding Minors Personal
Capacity in Tort.But the House of Lords in McFarlane v.Tayside Health board16 put an end to
claim by parents for damages and cost of upbringing,who gave birth to children due to failed or
unsuccessful sterilization opearations.Earlier courts used to award substantial sums,which was
put to an end in the aforesaid case. The reasons put forth by the House was (1) damages awarded
was disproportionate to wrong committed.(2)failure to take into account of real countervailing
benefits by the birth of a healthy child, even if parents had no intention to have anymore
children(3)it would offend the idea of distributive justice,which in suitable cases had a role to
play in the mosaic of tort law alongside the more usual corrective justice17.However the mother
was allowed to recover damages for the pain, suffering, inconvenience of pregnancy and
Hospital charges18 the same was modified by the House in Rees v.Darlingtoin Memorial Hospital
NHS Trust19 held that it was necessary to do more to recognize that the mother in such situation
had suffered a legal wrong and an interference with her autonomy in being deprived of the
freedom to limit her family as she wished and conventional amount of damages should be
awarded.The claimant was a disabled women.In Parkinson v.St.James Hospital Trust20 the
mother had undergone sterilization in 1993 which was performed negligently and unsuccessfully
and gave birth to a disabled child she was only allowed to recover damages as additional
expenses incurred in bringing up a disabled change and the court held the view of McFarlane
case21 not awarding the basic,cost and expenses in upbringing the child,Hale LJ stressed the
importance of bodily integrity and held that it the first and most important of the interests
protected by the law of tort.
16 [2000] 2 AC 59
17 Frost v CC South Yorks (1999)2 A.C.455
18 Green Field v Flather (2001) EWCA Civ 113
19 (2003)UKHL 52
20 [2001] 3 WLR 376
21 Supra at 16

Liability Of Parents:
Parents are generally not liable for the torts their child, but the exceptions are if the child is
employed by the parent itself then the parent would be vicariously liable under the relationship
of Master-servent.Secondly,the parent will be liable if the childs tort is due to the parents
negligent control of the child in respect of the act that caused the injury


In Moore Stephens v Stonerolls Ltd22,the claimant company was in liquidation and the creditors
in-charge of the company sued auditors(Moore Stephens) for failing to detect the fraud which
was committed by the sole owner-director of the company,Mr Stojevic who siphoned off the
assets of the company.The House of Lords held that it was logically necessary that Stojevic
fraudulent intentions be attributed to the company and the auditors cant be held liable under
professional negligence relying on the maxim ex turpi causa non oritur action(from a
dishonorable cause an action does not arise) The Comapny (or the creditors standing in its
insolvent shoes) could not rely on its own illegal fraud when bringing a claim for negligence
against any auditors.

Liability of Directors of Comapanies

Directors of a company can be held as joint tortfeasors along with company on the ground that
they have procured the wrong to be done.It was held by Flaux J in Concept Oil Services Ltd v
En-Gen Group LLP & Ors23 thatthere is no impediment to the liability of a director unless he is
acting strictly and solely via the constitutional organs of the company concerned.
As per Defamation Act 201324,a company can sue for Defamation only if the statements has
caused or is likely to cause the body serious financial loss.

22 [2009] UKHL 39
23 [2013] EWHC 1897 (Comm)
24 UK Legislation

The major development in Tort law regarding capacity can be attributed to the enactment of The
Human Rights Act,1998 by UK Legislation which came into force in 2000 which gave effect to
the European Convention for Human rights.The law is likely to develop futher.A claim under the
act will directly arise when the right infringed is recognized by the Act as a convention right but
not as a common law right.In India the aggrieved party whose rights are Infringed can go to the
court under Art.32 and 226 respectively and file writ petitions for the enforcement of his
right.The law in India regarding rights are by the virtue of the Constitution which came into
force in the year 1950.Till date awards are being awarded in cases under Art.32 and 226 and the
supreme court has held that these awards are realm of Tort Law.