Law of tort

According to Salmond “Tort is a civil wrong for which

the remedy is a common law action for unliquidated
damages, and which is not exclusively the breach of a
contract or the breach of a trust, or other merely equitable
obligation.
Winfield defines torts as “Tortious liability arises
from the 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”

Pollock’s contribution to the definition is “tort

is an act or omission (not merely the breach of a
duty arising out of personal relations, or
undertaken by a contract which is related to harm
suffered by a determinate person, giving rise to a
civil remedy which is not an action of contract”

Faeser defines tort as “Tort is an infringement of

a right in rem of a private individual giving of
compensation at the suit of the injured party”.

Peter Bricks contribution in defining torts is

“The breach of a legal duty which affects the
interests of an individual to a degree which the law
regards as sufficient to allow that individual to
complain on his or her own account rather than as
a representative of society as a whole”.
Burdick helps in defining the term as “an act
or omission which unlawfully violates a person’s
right created by law and for which the appropriate
remedy is a common law action for damages by
the injured person”

Keeton and Keeton in their book define torts

as “Tort law is a body of law concerned with
granting or denying claims of individuals or
impersonal legal entities against each other for the
award of damages or other forms of legal reliefs”.

American Jurist Edward Kionka writes “Tort is

an elusive concept (and) has defied attempts to
formulate a useful definition. The one common
element is that someone has sustained a loss or
harm as the result of some act or failure to act by
another. Tort is perhaps the least bastion of the
common law. Tort law remains uncodified and in
large part unaffected by the statute”

One among the Common Law countries, the

Supreme Court of Canada took a holistic approach
in the case of Hall v Herbert, “It is difficult to
define the nature of tort. Indeed, one of the
greatest writers in the field, W.L. Prosser has
expressed the opinion that it should not be
defined.
Perhaps it is the easiest to begin by saying what it
is not.

A tort is not a crime. Although criminal law and

tort law grew from the same roots, they are today
quite distinct and different. Criminal law is
designed to provide security for the citizen of the
state. It attempts to define that conduct which
society finds abhorrent and therefore necessary to
control. Those who commit crimes are prosecuted
by the state and are subject to the punishment
which reflects the state’s or society’s abhorrence
for the particular crime.

Nor is the law of torts contractual in its nature.

Contract Law seeks to enforce the rights which
arise out of an agreement whose parties have
voluntarily agreed to be bound by its terms. The
law of contract seeks to enforce the terms of the
agreement specifically or provide compensation for
its breach. Nor can torts fall under the title of
quasi-contractual relief. That remedy seeks to
prevent unjust enrichment that might, for
example, arise out of payment of money under a
mistake. The law of tort covers a much wider field
than does contract. It provides a means whereby a
compensation, usually in the form of damages,
may be paid for injuries suffered by a party as a
result of the wrongful conduct of others”.
One of the most important and right allocations of
words was done by the Lord Denning of The House
of Lords as “the province of tort is to allocate
responsibility for injurious conduct”.

Tort …. is from word torture. It is a French elusive

concept. The word tort means wrong. It is a Latin
word tortum/ tortus which means twisted.

The concept of tort is based on UBI JUS IBI

REMENDIUM. – meaning 'where there is a right, there
is a remedy', postulates that where law has estab- lished
a right there should be a corresponding remedy for its
breach. ... 'The principle that rights must have remedies is
ancient and venerable'.

In Sardar Amarjit Singh Kalra vs. Promod Gupta &

Ors., the Supreme Court held that the maxim 'Ubi jus ibi
remedium' is recognized as a basic principle of the theory
or philosophy of law and that courts have to protect and
maintain the right of parties and help them instead of
denying them relief.

Meaning of tort / law of tort or tortious liability

A tort is an act or omission that gives rise to injury

or harm to another and amounts to a civil wrong
for which courts impose liability. In the context of
torts, "injury" describes the invasion of any legal
right, whereas "harm" describes a loss
or detriment in fact that an individual suffers.

Overview
The primary aims of tort law are to provide relief
to injured parties for harms caused by others,
to impose liability on parties responsible for the
harm, and to deter others from
committing harmful acts. Torts can shift the
burden of loss from the injured party to the party
who is at fault or better suited to bear the burden
of the loss. Typically, a party seeking redress
through tort law will ask for damages in the form
of monetary compensation. Less common remedies
include injunction and restitution. 
The boundaries of tort law are defined by common
law and state statutory law. Judges, in interpreting
the language of statutes, have wide latitude in
determining which actions qualify as legally
cognizable wrongs, which defenses may override
any given claim, and the appropriate measure of
damages. Although tort law varies by state, many
courts utilize the Restatement of Torts (2nd) as an
influential guide. 
Torts fall into three general categories: intentional
torts (e.g., intentionally hitting a
person); negligent torts (e.g., causing an accident
by failing to obey traffic rules); and strict
liability torts (e.g., liability for making and selling
defective products - see Products
Liability). Intentional torts are wrongs that the
defendant knew or should have known would result
through his or her actions or omissions. Negligent
torts occur when the defendant's actions were
unreasonably unsafe. Unlike intentional and
negligent torts, strict liability torts do not depend
on the degree of care that the defendant used.
Rather, in strict liability cases, courts focus
on whether a particular result or harm manifested. 
There are numerous specific torts
including trespass, assault, battery, negligence, pr
oducts liability, and intentional infliction of
emotional distress. There are also separate areas
of tort law
including nuisance, defamation, invasion of
privacy, and a category of economic torts.

Remedies
The law recognizes torts as civil wrongs and allows
injured parties to recover for their losses. Injured
parties may bring suit to recover damages in the
form of monetary compensation or for
an injunction, which compels a party to cease an
activity. In certain cases, courts will award punitive
damages in addition to compensatory damages to
deter further misconduct. 
In the vast majority of tort cases, the court will
award compensatory damages to an injured
party that has successfully proven his or her
case.10 Compensatory damages are typically equal
to the monetary value of the injured party's loss of
earnings, loss of future earning capacity, pain and
suffering, and reasonable medical expenses. Thus,
courts may award damages for incurred as well as
expected losses. 
When the court has an interest in deterring future
misconduct, the court may award punitive
damages in addition to compensatory damages.
For example, in a case against a manufacturer for
a defectively manufactured product, a court
may award punitive damages to compel
the manufacturer to ensure more careful
production going forward. 
In some cases, injured parties may bring suit to
obtain an injunction rather than monetary relief.
The party seeking an injunction typically must
prove that it would suffer considerable or
irreparable harm without the court's intervention.

Distinguishing Torts from Other Bases of

Liability
Torts are distinguishable from crimes, which are
wrongs against the state or society at large. The
main purpose of criminal liability is to enforce
public justice. In contrast, tort law
addresses private wrongs and has a central
purpose of compensating the victim rather than
punishing the wrongdoer.2 Some acts may provide
a basis for both tort and criminal liability. For
example, gross negligence that endangers the lives
of others may simultaneously be a tort and a
crime.3 
Some actions are punishable under both criminal
law and tort law, such as battery. In that case,
ideally tort law would provide a monetary remedy
to the plaintiff, while criminal law would provide
rehabilitation for the defendant, while also
providing a benefit to society by reforming the
defendant who committed assault.
Tort law is also distinct from contract law. Although
a party may have a strong breach of contract
case under contract law, a breach of contract is not
typically considered a tortious act.

Incomplete List of Torts and their Prima

Facie Cases (D=defendant; P=plaintiff)
Trespass 
 D had the intent to invade the land
 D invaded land
 P possessed the land and did not give consent
to D
Battery
  D acts 
 D intends to cause a contact with P via D’s
touch
 D’s touch is harmful or offensive (objective
test)
 Causation b/w intentional touch & harm (2b &
2c)
 P does not consent to the touch
Assault
 D acts
 D intentionally acts so as to cause P to
apprehend (not fear) imminent harmful or
offensive contact with P
 D’s act causes P reasonably to apprehend (not
necessarily fear) such a contact 
False Imprisonment
 D willfully acts . .
  . . . intending to confine P w/o P’s consent &
w/o authority of law
 D’s act causes P’s confinement
 P is aware of P’s confinement
Intentional Infliction of Emotional Distress 
 D acts
 D’s conduct is outrageous
 D acts for the purpose of causing the victim
emotional distress so severe that it could be
expected to adversely affect mental health
 D’s conduct causes such distress
Negligence
 D owed P a duty of reasonable care
 D breached that duty
 P suffers an injury
 D’s breach caused P’s injury
Negligence Per Se
 Statute or administrative created a duty
 P is in class of people protected by the duty
statutorily imposed on D
 D violated that statute or administrative
regulation
 The Statute was intended to prevent the type
of injury suffered
Res ipsa loquitur negligence: P must prove 3
things:
 The incident was of a type that does not
generally happen w/o negligence
 It was caused by an instrumentality solely in
D’s control
 P did not contribute to the cause
Private Nuisance
 D's action is an intentional non-trespassory
activity
 D's action is a recurring activity
 D's action unreasonably interferes w/P’s right
to use & enjoy his land
Public Nuisance
  Injury resulting from intentional, unreasonable
interference w/right common to the public
 The injury singles out P from the rest of the
public
Products Liability
 D sells a product that P uses
 D is the commercial seller of such a product
 P suffers an injury
 When D sold the item, the item was defective
 The defect was an actual and proximate cause
of P’s injury
Inducement of contract 
 Valid contract b/w P & third party (a contract
that is not currently voided)
 D has knowledge of a valid contract
 D induces third party to disrupt the contract
with P.
 D’s inducement causes harm to P.
 P must show that the inducement was not
justified.
Generally important points about tort
 Common in all torts is a loss / harm suffered.
 Law of tort is uncodified so that judge exercise
full of its discretion.
 Tort is largely unaffected by statute.
 Tort is a civil wrong for which unliquidated
damages are given.
 Normally injured party receive monetary
compensation are injunction in tort.

 Example of ‘Tort as a Civil Wrong’ :

In 1984 Union Carbide Pesticide plant located in the
northern part of Bhopal, Madhya Pradesh, leaked 40
tons of a highly toxic gas known as Methyl Iso-
cyanate (MIC) from the tank E610 killing thousands of
people the very first day of the tragic event.
Approximately 3828 died on the day of the disaster
and over 30000 injured. This figure has increased
unbelievably ever since. It cost several thousands of
lives in the next few days and led to long term
medical effects such as eye problems, respiratory
difficulties, immune and neurological disorders,
cardiac failure's, and birth defects among children
born to affected women.
Now the people who suffered as a result of gas leak
had no contract with the Company Union Carbide, but
yet Union Carbide was held liable under tort.
 Example of ‘Civil Wrong which is not a Tort’ :
An employee and employer have contractual
obligation towards each other. An employee has to
discharge his functions and duties effectively and
employer has to pay the employee an agreed sum of
money for his role. In this case, it is evident that no
other party who is neither an employee nor a
 employer can bring a lawsuit in case of any dispute
between them. Hence, the right to move court is
exclusively within the parties to the contract. Thus, in
case of breach of contract by an employee or
employer would constitute a civil wrong which
is not a tort.
 It can be said that tort is the residual of wrongful acts
that are not crime and that do not fall under
contractual liabilities. Thus, if a wrongful act is neither
crime nor a violation of a contract, it may fall
under tort. In case of tort, the damages are
unliquidated and are decided only by the common
sense of the courts.
Difference between tort and criminal law chart

BASIS FOR
TORT CRIME
COMPARISON

Meaning Tort implies a wrongful act Crime refers to

causing injury or harm for an offence or
which recovery is sought by wrong or
the aggrieved party as per illegal act for
civil law, from the person which the
who is responsible for the person
act. conducting it,
will be
punished
under the court
 BASIS FOR
TORT CRIME
COMPARISON

of law.

Nature of law Uncodified Codified

Involves Infringement of individual Violation of

rights. public rights.

Court The defendant will be sued The defendant

in civil court. will be
prosecuted in
criminal court.

Objective To protects the rights of a To maintain

person. law and order
in society and
prevention
against crime
and punish the
wrongdoer.

Remedy On being liable the On being

defendant has to pay guilty of the
damages/compensation offence, the
decided by the court. defendant will
be sentenced.
 BASIS FOR
TORT CRIME
COMPARISON

Standard of Balance of Probabilities, Beyond

Proof also known as Reasonable
Preponderance of Evidence Doubt

Burden of Proof Rests with the claimant Rests with the

prosecution

Difference between contract law and tort law

N Tort
o
1) In tort, no privity exists
or is needed as harm is
always inflicted against
the will of the party
injured.
Contract
In contract, there must always
exist privity of contract
between parties i.e. the parties
must be legally bounded each
to other.  

2) In case of torts, minor In contract, minority is a good

can be sued and damages
are paid out of his
property.
defense as a minors contract is
void-ab-inition and no rule of
estoppel applies. (rule of
estoppel / another to believe a
certain state of things exists
which in fact is not true, then

3) A tort is inflicted without
or against the consent of
the party i.e. the
obligation arises without
any consent.
4) In torts, mistake is no no
defense, even if it is
innocent. If A enters B’s
House by mistake, action
lies in tort for trespass.
5) In torts, tort is a violation
of infringement of a right
in Rem . i.e. rights
available against the
world at large.
6) In case of a tort the duty
is fixed or imposed by
law and is owed to the
community at large.
in such a case he is not
afterwards allowed to deny it).
In a contract, obligation is
founded on the consent of the
parties i.e. consent is the
essence of a contract.
In contract, a contract entered
into by mistake is void. But
mistake of law one’s own
country is no defense as
everybody is supposed to
know the law of ones own
country .
In case of contract it is
violation of a right in
personam i.e. a right available
and enforceable against a
particular persons.
In case of contract the duty is
fixed by the will and consent
of the parties and it is owed to
a definite person or persons. 
 7 In torts, motive is often In contract, the ,motive for the
taken into consideration.   breach is immaterial

8) In torts, damages In contract real and liquidated

awarded may be real,
exemplary
unliquidated  or
contemptuous
9) The period of limitation
in case of torts usually
runs from the date when
the damage is suffered.
damages are awarded.
Exemplary damages are rarely
awarded.  
In contract , the period of
limitation rems from the date
of the breach.

Distinction Between Tort And Quasi-contract

In tort, an obligation is owed to all individuals from people in general
(however just one might be influenced). Quasi–contract is where, an
obligation is inferred as being owed to a particular individual i.e., the
legitimate beneficiary. 
Tort is an obligation, is available on all the occasions. Whereas, if there
should arise an occurrence of a quasi-contract obligation is shaped as a
result of a specific circumstance i.e., the illegitimate beneficiary of the
advantage and so on. 
· The damages in tort are unliquidated. Whereas in quasi-contract, the
damages might be liquidated.
Difference between tort and Quasi contractual relief
Tort and Quasi-Contract
• Quasi -contracts cover those situations where a person
is held liable to another without any agreement for money
or benefit received by him to which the other person is
better entitled.

• contract differs from tort in that there is no duty owed to

persons generally for the duty to repay money or benefit
received is owed to a definite person or persons; and the
damages recoverable are liquidated damages and not
unliquidated damages as in tort.
• On both these aspects quasi -contract has similarity with
contract.
Tort and Quasi-Contract
• Quasi -contract resembles tort and differs from contract
on one aspect that the obligation in it as in tort is imposed
by the law and not under an agreement as in contract.
• There is one aspect in which quasi -contract differs from
both tort and contract.
• E.g. when A pays money under a mistake to B, B is
under an obligation to refund it to A, even though the
payment is voluntary and is not induced by any fraud or
misrepresentation emanating from B.
• In this illustration it cannot be said that there was any
primary duty on B not to accept the money paid to him
under a mistake and the only duty on him is the remedial
or secondary duty to refund the money to A; but in tort as
also in contract there is always a primary duty the breach
 GENEKAL
CONDITIO
NS OP
of which gives rise to the remedial duty to pay LIABILITY
compensation. IN TORT
Tortious
liability
emerges
from a
breach of a
duty which is
specified by
the law, and
this duty
towards
persons
against
whom the
breach has
been
conducted
GENERAL CONDITIONS Of LIABILITY IN TORT leads to an
action for
Introduction damages. A
Tort generally connotes a breach of a particular tort in a
duty, independent of contract thereby creating a wider term
civil cause of action and for which compensation can can be
be recovered. In brief, tort law safeguards the interest elucidated as
of an individual by providing damages (sum of a civil
money), for violating a protected interest or by wrong, which
issuing an injunction, which would be a court order of is
not allowing the individual to do something. independent
of contract
for which a
suitable
remedy is an
Nature of tort law suggests that an act/omission by the
respective defendant that has led to any damage caused gives
rise to tort. Damage can originate by the fault of the defendant
and must cause harm which thereby gives rise to a legal
liability.
Constituents of Tort Liability
A person should have committed a wrongful act, through
which there should be an injury caused, both the tort and
the injury should be connected and arise from the same
cause of action, the guilt of the tortfeasor should be
established which results in resorting to a legal remedy
through unliquidated damages.
I. Wrongful Act
A wrongful act is considered as an action or inaction
which goes against the law, thereby causing a violation
of the substantive right of an individual or contrary to the
lawful interest. This wrongful act can be perceived as an
act committed or omitted, having caused a direct violation
of rights, is considered to be an unlawful or wrongful act,
which attracts the first condition of tortious liability.
The rights that are violated can be of two types- Private Rights
and Public Rights. Right to Reputation, right to bodily safety and
freedom and Right to property are Private Rights. Public Right
comprise of rights which belong in common to the members of
the society at large. Every right has a parallel legal duty or
obligation. This duty comprises of performance of some act or
abstaining to perform an act.
However, Act and Omission are distinct from each
other. An act attributes to tortious liability when where is a
violation of a right or wrongful act. Omission to act is
when there was a duty to act and liability arises due to
non-performance of the duty.
Example: If an infant is drowning in a pool, and if a
swimmer is present in the present scene and does not
help the child, the swimmer will not be held liable because
of the absence of duty of care towards the child.
However, in this case, if the parents are present and do
not try to save the child from drowning, they would be held
liable under the tort law due to the presence of duty of
care. In cases where there is absence of a duty to rescue
another individual, but the person starts the rescue work
can be held liable, due to the failure of not properly
performing the task.
Glasgow Corporation v. Taylor (1922) 1 AC 44
In this case, the father of a child sued the Glasgow
Corporation due to the death of his seven-year-old child
due to the consumption of the berries from a poisonous
plant in Botanic Gardens in Glasgow and claimed
damages for the same. The issue here was whether the
Glasgow Corporation would be held liable for
compensating the bereaved father.
The Courts held that the corporation would indeed be held
liable because the Corporation permitted children to enter
the gardens and it was understandable that children would
be attracted to these poisonous berries and the
corporation took no active steps to prevent or control it.
II. Guilt of the Tortfeasor/ Mens Rea
Mens- rea is a Latin term, which signifies ‘guilty mind’ or
‘culpable condition of the mind’. This mostly constitutes
the second condition necessary to constitute liability in tort
law. ‘Actus non facit reum nisi mens sit rea’ is derived
from mens-rea suggests that an act will not make anyone
guilty if there is no presence of a guilty mind.
Therefore, in order to make a person liable for a tort,
the person should have a guilty mind. Guilt can be of
two types: when the intention is direct, where the
tortfeasor can foresee the result of the act and commits
the act knowingly or indirect when the tortfeasor can
foresee the result of the act and accepts the possibility of
its occurrence, the act can be imprudence or negligent
behavior .
III. Legal Damage
In Law of torts, the remedy is provided in the form
of monetary compensation to the aggrieved
party. Damages, is a sum of money that is imposed by the
law, for the violation of some right or breach of
duty. Injury is constricted to an actionable wrong whereas
damage entails loss or harm occurred, which can be
actionable as an injury or otherwise. “Damages” means
the money that is claimed, or ordered to be paid by the
court as compensation, awarded for the losses suffered or
injury caused.
There are two maxims that focuses on the true
significance of legal damage, which are Damnum Sine
Injuria and Injuria Sine Damnum.
A. Damnum Sine Injuria
The maxim signifies “actual loss that arises in the
absence of a legal loss”, financial losses or economic losses
are actual losses which are not violative to legal rights and are
not actionable in tort. In cases, when damage is caused without
infringement or breach of legal right, there would not be a
cause of action in the court of law. This would imply that; no
remedy would be present in case there is no infringement of
legal rights. In such cases, the court may not grant any damages
even though the act done by the wrongdoer is intentional.
In the case of Gloucester Grammar School (1410), the
defendant was a school teacher in the plaintiff’s school. A
dispute arose between them due to which the defendant left
the school and set up another rival school next to the plaintiff’s
school. The defendant was well known by the students for his
teaching skills because of which most of the boys joined the
defendant’s school.

The plaintiff then sued the defendant for financial losses

suffered by this. The courts held that the defendant was not
liable. The courts mentioned that even though losses were
suffered by the plaintiff, the legal right has not been violated.
The school of the defendant had been set up lawfully and did
not infringe any of the legal rights of the plaintiff. The plaintiff
could not stop the defendant from running a business just
because it stood as a competition to his school.

B. Injuria Sine Damnum

Injuria Sine Damnum is a legal maxim which
suggest ‘violation of a legal right without any actual
loss or damage or harm caused to the plaintiff’. Every
individual is entitled to the right of his property, immunity,
liberty and infringing any of these rights would be
actionable per se, in this case, it is not necessary for the
individual to show any special damage caused, because
every injury would be considered as damage when there
is a hindrance in the implementation of his legal rights.
This can provide sufficient cause of action for availing
compensation. In cases of assault, false imprisonment,
battery, libel, trespass on land, etc. the sole wrongful
act is actionable, even when the proof of special damage
is absent. The court would be bound to provide
compensation to the plaintiff of at least a nominal nature,
even in cases where no actual damage has been proven.
Ashby v. White (1703) in this case the plaintiff was a
competent and qualified voter at the parliamentary
election, but the returning officer who was the defendant
wrongfully refused to consider the vote of the plaintiff. In
this case, no losses were suffered by the refusal to accept
the vote by the defendant as the candidate whom the
plaintiff wanted to vote for, won the election.
However, the question before the court was whether one
of the parties can recover damages when his civil rights is
curbed by the action of another individual or not. The
courts said that the plaintiff has a legal right to vote which
is also a common law right, hence a hindrance to this right
would give rise to a cause of action and ought to be
allowed for recovery through damages.
IV. Direct Consequences Tort liability is examined as
a civil law institution, and in order for an act to constitute
tort liability, all the elements should be considered and
examined whether the legal provisions are met. Along with
this, there needs to be a link between the wrongful act
and the injury.
This is significant for two reasons- firstly, if there is an
absence of a link between the wrongful act and the injury it
would be similar to the inexistence of tort liability and
secondly, the nature of casual link that is maintained,
determines the extent of compensation that the victim
would get for the injuries suffered. The defendant will not
be liable for the consequences of the damages unless the
wrongful action has a direct connection to the harm or the
injury suffered. Doughty v. Turner Manufacturing Co.
Ltd | [1964] 1 QB 518
Doughty was an employee for the Turner Manufacturing
Company (defendants). Doughty got injured due to
another employee knocking a container cover which
resulted in a few asbestos cements falling into a vat of
molten liquid and due to chemical processes, the molten
liquid resulted in an eruption of steam which injured
Doughty.
Here, the question before the court was whether the
employer would be held liable for the unforeseeable event.
The Court of Appeal here, held the defendants not liable
because the events failed the remoteness test, that a
reasonable prudent man would not be able to foresee the
event, the court took cognizance that the event was an
unforeseeable one.
V. Remedy
‘Ubi jus ibi remedium’ is the maxim in tort law which
means ‘there is no wrong without a remedy’ and is also the
essence behind tort. The right that an individual possesses, can
only be understood in the event of its violation, which gives rise
to a legal remedy. Any right would be considered meaningless
if there is no remedy to execute those rights when infringed.
The essentials of the implementation of this maxim are-
when the right has been recognized by the law
wrongful act has violated the legal right of a person
applicable when sufficient relief has not been given by the
court there has to be a legal injury. [8]
Sardar Amarjit Singh Kalra v. Pramod Gupta, (2003) 3
SCC 272. In this case, the court introduced the maxim Ubi
jus ibi remedium est, and stated that the court should
focus to safeguard and persevere the rights of the parties
and help for the enforcement of the same.
Conclusion
Tort law mostly works on common sense and enables the
understanding of relations between individuals in a
society, to coexist in harmony, and that each individual in
the society is required to fulfil certain duties towards the
other individual of the society. In India, there have been
various judgements by the Supreme Court which has
helped in structuring the law of torts in India.
The principles of torts have been applied in various
legislations such as the Consumer Protection Act 1986,
the Environment Protection Act 1986, The Motor
Vehicles Act 1988. However, tort law in India is still
developing as compared to the US and UK.

MENTAL ELEMENT
A Tortious liability may arise if a person causes any injury
related to the victim’s life, property, reputation, etc. This
liability is civil in nature. In law of tort, the liability can be
incurred regardless of whether the injury was inflicted
intentionally or by accident. Unlike tort, the presence of
mens rea is pertinent in criminal law. However, in law of
tort, its existence is dependent upon the circumstances
and facts of each case. It may or may not be essential to
prove a mala fide12 intent to fix liability upon the tort
feasor13. The important question which arises is that how
far mental element is an essential element in determining
the tortious liability. In this chapter, we shall deliberate
upon this question. The author has discussed concepts of
intention, motive, malice, negligence, recklessness and
fault to understand the essentiality of mental element in
the law of tort. Hence, on the basis of intention, tort can
be divided into two broad categories namely:
a) Intentional Tort b) Unintentional Tort
2.1 a) INTENTIONAL TORT
It is a type of tort that can result only from the intentional
act of the wrong-doer. Common intentional torts
are battery, assault, false imprisonment, trespass to
land, trespass to chattels, and intentional infliction of
emotional distress14. Knowledge along with reasonable
and substantial certainty, that an act of the defendant shall
produce a tortious result, is sufficient to hold him liable15.
2.1 b) UNINTENTIONAL TORT
In the case of an unintentional tort, the defendant causes
injury to the plaintiff, but without any mala fide intention.
It may be called an unintended accident. The person who
caused the injury did so inadvertently because he/she was
not being careful. Such a person may be termed as
negligent or reckless. In the event of an unintentional tort,
we may notice that the injury is caused due to the
omission of the “duty of care”16 which a reasonable and
prudent man ought to have considered.
2.2 RELEVANCE OF INTENTION
Prosser’s Handbook of the Law of Torts says that intention
in tort law is not necessarily a hostile intent, or a desire to
do any harm. Rather it is intent to bring about a result
which will invade the interests of another in a way that the
laws will not sanction17. Theories of intent in tort law can
be either subjectivist or objectivist. The former theory aims
to punish the tortfeasors for intentionally or at least
knowingly violating norms that are implicit in the law. The
principle underlying is that the mental state of the wrong
doer is important while determining the appropriateness
of the liability. On the other hand, under the objectivist
theory, fixation or determination of tortious liability is
exogenous with respect to the mental state of the wrong
doer. For example- It is clear in the case of trespass that
one can be found liable for it even though there was no
intent to trespass. If A points an unloaded gun at B, he
could be held liable for assault even though he sincerely,
though erroneously, believed that B knew that the gun was
unloaded. In such an event of assault, intent to harm or to
put someone in the fear of immediate harm is of grave
importance. Here, the tortfeasor cannot take any defence.
We must also understand that in certain circumstances,
the absence of intention or a bona fide mistake is a good
defence. For example: Vicarious liability of a master for the
tort of his servant may be neglected by a mistake of the
servant which is outside the course of his employment18
In popular sense, Intention implies that the defendant is
completely aware of his conduct and the natural
consequences which are bound to follow. Moreover, he
has a strong desire for the occurrence of those
consequences. In Wilkinson v. Downston19, the defendant
joked to the plaintiff that her husband had met with and
an accident and was admitted to a hospital. This news
shocked her and she fell seriously ill. Thereafter, she sued
the defendant for damages under tort. The defendant
contended that he never wanted to cause any harm to the
plaintiff but cut a joke only. The court rejected his
contention and held him liable. Here, the court observed
that mere intention is not an essential element in tort. The
defendant knew the natural and probable consequences of
his act which caused damage to the plaintiff. Therefore, he
was liable, whether he intended it or not.
2.2.1 INTENTIONAL OMISSION
In such circumstances also there is no need for intention
in tort. For example: if a nurse deliberately allows a child to
get into a position of danger and receive injuries, she will
be held liable. Here it is not the intentional omission which
is the basis of liability, but it is the breach of her duty to
look after and take care of the child. As already discussed,
we know that Intention by itself is not a good defence in
tort. It is clearly impossible to know what is going on in the
mind of the defendant. Chief Justice Brian has aptly
described the above argument in the following words: “It
is common knowledge that the thought of man shall not
be tried, for the devil himself known not the thought of
man”.
2.3 MOTIVE
Motive is the state of mind of a person which inspires him
to do an act. Generally, it means the purpose behind the
commission of an act. Motive, just like intention, is
generally irrelevant in the law of tort. According to
Salmond, “It is the act and not the motive for the act that
must be regarded. If the act, apart from the motive, gives
rise merely to damage with legal injury21, the motive,
however reprehensible it may be, will not supply that
element.” The decision of Lord Watson in Allen v. Flood22,
settled that Motive is irrelevant in the law of torts:
“Although the rule may otherwise with regard to crime, the
law of England does not take into account motive as a
constituting an element of civil wrong. Any invasion of the
civil right of another person is itself a legal wrong, carrying
it with the liability to repair its necessary or natural
consequences in so far as those are injurious to the person
whose right is infringed, whether the motive which
promoted it to be good, bad or indifferent.” The Indian
courts have also spoken about the irrelevancy of motive as
well as malice in a number of cases. In Vishnu Basudeo v.
T.L.H. Smith Pearse23, Mudholkar. J. observed, “The
leading case of Allen v. Flood, lay down that as a general
rule, a bad motive is an essential condition of liability for a
civil wrong except in cases like malicious prosecution,
defamation and conspiracy. What has ordinarily to be seen
is the unlawful act. If it is so, then motive with which it was
done is of little significance. In this case, however, it has
been held that the act must presume to have been
intended by the respondent to cause mental and bodily
distress to an appellant I agree with this view.” In
conclusion, we could say that a good motive is no
justification for acts otherwise illegal and a bad motive
does not make wrongful an act otherwise legal.

2.3.1 EXCEPTIONS TO RULE

There are certain categories of tort where motive may be
an essential element, and therefore relevant in
determining liability: · In the cases of deceit, malicious
prosecution, injurious falsehood and defamation, where
defence of privilege or fair comment is available. The
defence of qualified privilege is only available, if the
publication was made in good faith. · In cases of
conspiracy, interference with trade or contractual relations.
· In cases of nuisance, causing of personal discomfort by
an unlawful motive may turn an otherwise lawful act into
nuisance ( held in the case of Palmer v. Loder, (1962) CLY
2333)
2.3.2 DISTINCTION BETWEEN MOTIVE AND
INTENTION
Motive has been described as an “ulterior intent”24. These
two words are often used interchangeably in popular and
even legal usage. Motive is the ultimate object with which
an act is done, while intention is the immediate purpose.
Examples: A publishes a defamatory letter about B, his
servant, to C. A’s intent to defame B but his motive may be
to inform C an intending employer of B, about B’s
character and prevent C employing B. Here, in spite of a
libelous intent, a good motive will render A’s act lawful.
Sometimes the position may be reverse. A steals a loaf of
bread from B’s bakery. A is liable for theft as well as for the
civil wrong of trespass, though A’s motive was not to
cause loss to B but to feed A’s starving child.
2.4. FAULT: ESSENTIAL ELEMENT IN TORT?
According to Salmond, “fault is the basis of all tortious
liability”25.The principle underlying is that the victim shall
be entitled to pecuniary reparation, only and only if, his
injury is caused by the fault of the defendant. Despite the
emphasis on the requirement of fault as an essential
condition of liability, the law of tort contains principles of
“strict liability” i.e. liability imposed without proof of fault.
In the case of M.C.Mehta v. Union of India26, the Supreme
Court stated the rule of Rylands v. Fletcher, the rule of
strict liability. Similarly, in the case of hazardous and
inherently dangerous industry, the principle of absolute
liability has been recognized.
2.4.1 THE RECENT TREND
The relative recent trend is to shift the liability to those
shoulders who can bear it or who can pass on the loss to
the public. In the leading case of White v. White27, Lord
Denning observed, “recent legislative and judicial
developments show that the criterion of liability in tort is
not so much culpability, but on whom the risk fall?” In
Indian scenario acts like the Workmen Compensation Act,
1923 are acts which provide for compensation without
even pondering upon the question of liability. The Motor
Vehicles Act, 1988, provides for a fixed amount of
compensation in case of death or permanent disability of
the accident of the victim, even if the driver or owner of
the vehicle is not at fault. In such a case, even contributory
negligence of the accident is no defence.
2.5 MALICE
Malice means the presence of an improper motive, or
even gross or unreasonable prejudice28. An act or
statement becomes malicious if it is used for a purpose
other than sanctioned by the authority of law. The term
Malice can be discussed in legal as well as popular sense.
In the legal sense, it means “a wrongful act done
intentionally, without any just cause or excuse29 or for
want of reasonable or probable cause30. In the popular
sense, it signifies an “improper or evil motive”. The author
would again like to emphasize here that a wrongful act
does not become lawful merely because the motive is
good31. Similarly, a lawful act does not become wrongful
because of an improper, bad or evil motive or malice32. In
Town Area Committee v. Prabhu Dayal33, the court
observed that “a mere malice cannot disentitle a person
from taking recourse to law for getting the wrong undone.
It is, therefore, not necessary to investigate whether the
action is motivated by malice or not.”
2.5.1 EXCEPTIONS TO THE RULE
In the following cases malice becomes relevant in
determining tortious liability: · When the act is otherwise
unlawful and wrongful intention can be gathered from the
circumstances of the case34.
·  Malice on the part of the defendant to be proved in torts
of deceit, malicious prosecution. · The presence of malice
in cases of defamation negatives good faith and the
defendant cannot avoid liability by the defense of qualified
privilege in such a case.
· Causing of personal discomfort by public nuisance.
· Malice which results in aggravation of damages.
2.6 NEGLIGENCE AND RECKLESSNESS Black’s law
dictionary defines negligence as: “The omission to do
something which a reasonable man guided by those
ordinary considerations which ordinarily regulate human
affairs would do, or the doing of something which a
reasonable and prudent man would not do” In the law of
torts, negligence has two meanings:
1. An independent tort
2. A mode of committing certain other torts. For example:
trespass or nuisance. In Donoghue v. Stevenson36, it was
held that negligence exists where there is a “duty to take
care”, and there is breach of this duty. It was observed that
negligence is a conduct and not a state of mind and there
is no necessary element of fault involved. Recklessness
means a high degree of carelessness. It is the doing of
something which in fact involves a grave risk to others,
whether the doer realizes it or not37. Cases such as the
Balloon case, Scott v. Shepherd38 involves subject matter
dealing with lesser states of mind which may be regarded
as negligence or recklessness.
CONCLUSION
It has become well settled from the above discussion that
tort is a civil wrong where a legal injury is caused to the
victim by the tortfeasor and consequently, pecuniary
reparation is awarded to the injured party in the form of
unliquidated damages. The questions before the author
were to elucidate: · How far are “Mental elements”
essential in tort? · Whether or not “Mental elements” play
a significant role in determination of tortious liability? By
“Mental elements” we mean the “Intention” of a person to
cause legal injury to another person by infringement of his
legal right. Intention means a state of mind where the
wrong doer has complete knowledge of his act and its
consequences. Furthermore, he has a desire to achieve
those consequences. In Criminal law, the mental element
forms an essential ingredient of crime. Here the mere act
of a wrong doer is not sufficient to hold him liable for an
offence. The presence of a guilty mind is also required.
However, it can be adduced from the previous chapters
that intention or the mental element is “irrelevant” in the
law of tort. The term “irrelevant” denotes that presence or
absence of mental element shall not negative the liability
of the wrong doer. It has been already discussed in the
first chapter that torts can be intentional as well as
unintentional. In case of the former the presence of mental
element is required to determine tortious liability (for
example in assault, battery, false imprisonment), while in
latter, the mental element is insignificant in determination
of tortious liability (negligence). The underlying principle is
that a wrong doer cannot escape liability under the law of
tort, simply on the ground that he had no intention to
cause harm. However, a wrong doer may not be held liable
in certain exceptional cases (example: qualified privilege).
Thus, it can be concluded that “Mental element” is not
essential in tort. However, we may say that the presence of
it only aggravates the damages.
Chapter 3
 Personal capacity

Introduction
In the concept of a tort, usually a person who
suffers injury has a right to file a case against the
person who caused him harm, but there are
certain categories of people who cannot sue a
person for their loss and also there are some
people who cannot be sued by any person. So, the
question arises why these categories of people are
restricted from filing a case and also why do
certain people are protected from such suits.

Who can/cannot Sue?

Who can sue?

Any rational person including businessman,

organization, government and other individuals can
sue, provided that, they are of sound mind and are
not disqualified by law.

Who cannot sue?

There are seven categories of persons cannot sue,

only subject to certain limitations:
 1. An alien enemy
2. Convict
3. Bankrupt
4. Husband and wife
5. Corporation
6. An Infant/Minor
7. A foreign state

Alien Enemy
An Alien Enemy is a person belonging to a hostile country
or a person residing in or carrying on business in enemy
territory.[17] Under English law, an alien enemy cannot sue
in his own right. He cannot maintain any action unless duly
licensed by an Order-in-Council or unless such person
comes into British Dominion under a flag of truce, a cartel,
pass or some other act of public authority putting him in
peace. Similarly, in Pakistani law, alien enemies that are
residing in Pakistan with the permission of the Central
Government may sue in any Court. However, an alien
enemy residing in Pakistan without any such permission
cannot sue in any Court.
Illustration

If A is a resident/citizen of an enemy country and

wants to sue B, a resident of Pakistan, he cannot
do that unless he obtains the permission of the
central government.
Convict
A convict is a person against whom a judgement of
death or imprisonment has been pronounced by
the court of law.

According to English law, the person whose

sentence is unexpired does not have the right to
sue for any damages to his property or for
recovery. But this concept was removed by
criminal justice act, 1948.

In India, until 1921 in the offence of forfeiture of

the property, the offender is disabled from right to
sue for any injury. But today, a convict in Pakistan
may sue for torts, both to his property and his
body.

Illustration

Situation 1: Before 1921, if A is a convict and want

to sue B for injury regarding the property, in that
situation he cannot sue the person in the offence
of forfeiture of the property.

Situation 2: After the 1921 changes in IPC, if A is a

convict and want to sue B for injury regarding
property or body, he gets the right to sue for both
injury to property as well as to the body.  
Bankrupt
A bankrupt is also under the disability to sue for
the act against his property.

According to the Indian law, all his property is

vested in possession of bank or official assignee
and in English law all property is vested to the
trustee. All the offences against the property, the
right to action is vested with the trustee or the
assignee. But in the case of personal wrong, the
person has a right to sue.

In the situation, where a tort causes injury to both

the person and the property, so the right of action
will split between the two.

Illustration

Situation 1: If A is a bankrupt and his property is

vested in the possession of official assignee i.e., C
by the bank. If B trespasses his property, the right
of action is vested on official assignee i.e., C.

Situation 2: But if B trespasses A’s body, then in

that situation the right of action is vested on A.
Husband and wife
Back in times, in English law, the husband and wife
cannot sue. By the virtue of the married women’s
property act, 1882, a wife can sue her husband.
But the husband cannot sue his wife. A wife could
not sue her husband for the antenuptial tort or
personal wrong.

The law reform (husband and wife) act 1962 made

a drastic change and allowed both to sue.

In India, both the spouses have the right to sue in

any offences.

Corporation
A corporation does not have right to sue for the
personal injury as because of its nature it is clear,
that a corporation cannot be injured personally but
a corporation can sue for the tort affecting its
property.

The qualification is:

1. The tort must not be impossible in nature.

2. In the case of defamation, the corporation
can sue the other person if, it can prove that
the injury has the tendency to cause actual
damages.
 3. A corporation may sue for a libel or any
other wrong affecting its property or
business.

In Manchester v. Williams

In this case, it was held that a corporation has a

right to sue, not only for the property but also for
its personal reputation.

Minor

A minor is liable in the same manner as a major in case

he/she commits a tort. A minor can sue an adult but only
through an adult acting on behalf of the minor. However, a
violation of a contractual obligation cannot lead to an
action in tort. A parent is liable for a tort which he directs
his child to commit. He is also unanswerable for his child’s
tort when circumstances warrant the inference that he was
a party to it, either by precedent approval or by continuing
to enjoy its fruits with knowledge of the material facts.
However, beyond this, his liability does not exist. If
however, a parent puts a dangerous instrument in the
hands of his young child and ‘encourages and consents to
its negligent use’, he may be held liable for the injurious
consequences. In this case, the parent would be equally
liable had the youngster been the child of another person
because it is accepted that the liability in such cases is not
with respect to his relationship with the minor but upon his
own exercise of due care.
In Walker v. Great Northern Railways

In this case, a pregnant woman injured due to a

train accident, as a result of which her child was
born deformed. The Court held that the minor
cannot maintain a remedy for the injury sustained
when he was in his mother womb.

But in a case having similar facts, the supreme

court of Canada provided the remedy to the
infant. 

A foreign State
In England, a foreign state cannot be sued in any
court unless the action is recognised by her
majesty.

In India under section 84 of the civil procedure

code, a foreign state can have the right to sue
provided that such state has been recognised by
the central government.

Who can/cannot be sued?

Who can be sued?

Any rational person like a businessman, an
organisation can be sued for the act committed by
them or their servant in the course of employment.

Who cannot be sued?

1.    The Government
2.    Foreign sovereign’
3.    Ambassadors
4.    Public Official
5.    Infants/Minor
6.    Lunatic
7.    The Corporation
8.    Trade Union
9.    Married Woman

The Government
Under Constitution of Pakistan, the president,
Governor, of the state are not answerable to the
court:

1.    For exercise and performance of the

power and duties of their office.
2.    For any act done by them in the exercise
of their power and duties.
Five rules regarding the liability of the
government

1. The government is liable for the act done

by its servant in the course of transaction in
which a private person is engaged.
In Secretary of state of India v. Shivranji

2. The government is liable for the loss caused by

the improper interference of the forest officer in
the removal of the timber by the plaintiff who had
purchased a forest.   

3. The government cannot be sued in respect of

the act done by the servant in the exercise of its
sovereign powers. Like, act done at the time of
war, use of land to practice bombing, act done
during riots etc.

Illustration

If A, a policeman, during the riots gives the order

of lathi charge. In that process, Z got injured and
sued A. Here A is not liable as he is acting under
sovereign power.

3. Liable to restore the property or money

wrongfully obtained by its servant on its
behalf.
Illustration

If A, a government servant restores B’s property

wrongfully on behalf of the government. Here the
government is liable to restore the property.

5. The government is not liable if the act is done

by its servant in the course of his duty unless
expressly authorized to him.

In kastorilal v. state of U.P.

In this case, the policeman detains the gold of the

petitioner. The gold is misplaced from the custody
of the police. The plaintiff filed the case against the
government as the policemen are the servant of
government of India. Here the court stated that
the government is not liable for the act done by its
servant in the course of his duty unless expressly
authorized to him.

If a tortious act committed by the servant there

are two situations relating to the liability of the
government:

1. The action for the damages for the loss

cannot arise if the servant did the act under
the sovereign power of the state.
 2. But, if committed in discharge his duty
assigns to him, not by the virtue of the
delegation of sovereign power, there arises
the action for damages.
In U.O.I. v. Sugrabai

A military driver of the school of Artillery, once

assigned a task to transport the machine, hit B, as
a result, B died. Here the government is liable as
the work is assigned to him and the act committed
during the discharge of the duty.

Foreign sovereign
A foreign Sovereign cannot be sued unless they
themselves submit to the jurisdiction to the local
government.

By residing in a foreign country, one does not

waive his right to the jurisdiction from the local
government.

Under the civil procedure code, a foreign sovereign

can be sued in the Indian court only with the
consent of the central government.

The conditions under which the Central

Government gives permission: -
 1. If the foreign sovereign has instituted a
suit in the court against the applicant.
2. If the foreign sovereign, by himself or by
agent, trades within the local limits of the
Indian court.
3. If the foreign sovereign’s immovable
property, in respect of which the applicant
wants to sue, is situated in India.
As per provisions of Ss. 86 and 87 of CPC, a suit
against a foreign sovereign without the consent of
the Central Government is only permissible where
the plaintiff is a tenant under the foreign sovereign
and the suit relates to lands held by him.

Otherwise, the permission of the Central

Government is mandatory, and when permission
has been applied for and refused by the
Government, it is not open to the court to question
the propriety of the order refusing consent.

Illustration

A want to sue B, a foreign sovereign. He can sue

only by taking permission from the central
government.
Ambassadors
Foreign ambassadors, their family, servants also,
cannot be sued, unless they waived their privilege
by submitting to the jurisdiction of the court. An
ambassador cannot be sued during his term of
office.

Foreign ambassadors can be sued in the Indian

court only with the consent of the central
government.

In Harbhajan Singh Dhalla v Union of India

The petitioner, in this case, carried out building

maintenance, reconditioning and renovations at
the Algerian Embassy and the residence of the
Algerian Ambassador in New Delhi. He tried to
collect his dues but failed and then requested the
Ministry of External Affairs to grant the permission
to sue the Algerian Embassy. The Ministry refused
to grant the permission on “political grounds” and
also contended that under section 86 petitioner
failed to make the prima facie case. And if
permission has been applied for and refused by the
Government, it is not open to the court to question
the propriety of the order refusing consent.
Public Official
No action lies against the public official in their
official capacity with respect to torts committed by
them. But, they can be sued for the act committed
by them in their private capacity.

If the act by the servant of the government is done

under sovereign power no action lies against the
government.

In U.O.I. v. Bhagwati Prasad

In this case, the train collides with the taxi. For

these, Bhagwati prasad files a case against the
U.O.I, of negligence. It was held that a suit for the
damages can be filed against the act of the official
in their private capacity but not for the act done
under sovereign power.

Infants/Minor
The infant/ minor can be sued for the act
committed by them as an adult. Thus, a minor can
be sued for assault, false imprisonment, libel,
slander, fraud etc. but where intention, knowledge
or some other conditions of mind are essential
ingredients of liability then in that cases minor/
infant can be exempted due to their mental
incapacity.
In Walmsey v. Humonick (1954 2 D.L.R. 232)

Two little boys were playing cowboy related

games. One boy hit the arrow and it hit another
boy in his eye. The court gives the judgement in
defendant’s favour as a five-year child doesn’t
even think about it. Hence the defendant is not
liable.

Lunatic
There are two conditions related to lunatic:

1. If the act was done by a lunatic, when he

is not in the condition of a stable mind, in
that condition the lunatic cannot be sued.
Illustration

If A commits battery against B when he is not in a

condition of stable mind. He cannot be sued.

2. But, if the act was done by a lunatic when he is

in the condition of a stable mind, he can be sued.

Illustration

If A has a disease where he becomes lunatic for

some period but, becomes a normal person after
some time. If he commits battery against B when
he is normal. In that situation A can, be sued.
Corporation
A corporation cannot be sued, unless

1. The act done was within the scope of agent

employed by the corporation
2. The act done was within the purpose of the
incorporation.
In Poulton v. London and S.W. Rly.
Company  (1867 L.R.2 Q.B. 534)

The railway master was employed by the

defendant company, arrested a man for not paying
the freight charges of the horse he is carrying with
him. The petitioner filed a case against the
corporation. It was held that the railway master
was employed to arrest the person only if the
person does not pay the freight of himself. No
order was given to him to arrest a person if he is
not paying the freight charges for the goods
carried by him. Here, he is acting in his private
capacity so a corporation cannot be held liable,
only the station master can be held liable

Trade Union
In India, under the Indian Trade Union Act, 1926,
a registered trade union cannot be sued. But the
changes in the Act in 1939, now a trade union can
be sued in its registered name.
Illustration

If one of the members of a trade union named XYZ

commits a tort then:

Situation 1: As per the Trade union act, 1926, XYZ

cannot be sued

Situation 2: After changes in 1939, XYZ can be

sued.

Conclusion
A person who suffers injury has the right to file a
case against the person who caused him harm, but
there are certain categories of people who cannot
sue a person for their loss and also there are some
people who cannot be sued by any person, like
foreign ambassadors, public officials, infants,
sovereigns, alien enemy. But there are certain
limitations where these categories of people can
sue and can be sued, subject to the permission of
the central government and unless they
themselves waived their privilege by submitting to
the jurisdiction of the court.

Since anyone who is of sound mind and not disqualified by

law can sue, mentioned above are parties with respect to
whom, there exist some restrictions as to who they can
sue or whether can be sued. While the law with respect to
married women has changed over time, other restrictions
existing on various parties still remain.
Minors can be sued for their tortious actions unless it was
the adult who coerced the minor to commit the act. A
minor can sue someone in tort also, the only requirement
being that someone would have to sue on his behalf. A
Foreign Sovereign and ambassadors of foreign nations
cannot be sued unless consent from the Central
Government is obtained.
In such circumstances, if the consent is denied by the
Central Government, the denial of consent cannot be
adjudicated upon by the Court and such denial would be
final. An Alien Enemy cannot sue unless residing in the
country with permission from the Central Government.
A lunatic person can only sue and be sued for actions that
were committed when such a person was in a stable
mental space. Corporations, including private
corporations, can sue and be sued just like natural
persons can sue and be sued. A municipality, state
government or central government, cannot be sued in tort
for actions that were committed by its officers in the
exercise of sovereign functions.
The capacity to sue and be sued is very essential in
deciding whether a case stands before a court of law or
not. The restrictions with respect to the capacity to sue
and be sued exist in order to cater to factors like friendly
relations with various nations (foreign sovereign and
ambassadors), being in alignment with the foreign policy
of one’s own nation (alien enemy), facilitating efficiency in
maintaining law and order (municipality, state and central
government), and fairness (lunatic person).