Notes by Akinchan Aggarwal, Advocate — B.A. (Hons.) Gold Medalist, LL.B. (University Rank 2), LL.M. (Dispute Resolution), UGC–NET, Ph.D. (Pursuing)
Chapter 1 asked what a tort is. Chapter 2 asked what defeats a tort once proved. This chapter asks a question that comes logically before both: who can sue, and who can be sued?
The general rule is short. Every person has the capacity to sue and the liability to be sued in tort. Everything in this chapter is a variation on that rule — a class of person for whom the ordinary position is modified, either because of who they are (a minor, a corporation, a judge) or because of how many of them there are (joint and independent tortfeasors).
How to read this chapter.
Six of the seven heads are short. The fourth — joint, independent and composite tortfeasors — is longer than the other six combined and carries almost all the examination weight. It contains four separate sub-topics that are each independently examinable: successive actions, release, contribution, and indemnity. Budget your revision accordingly.
The Seven Heads at a Glance
| # | Head | The position in one line |
|---|---|---|
| 1 | Act of State | Not justiciable in municipal courts — but only against aliens |
| 2 | Corporations | Liable vicariously, for malice torts, and for ultra vires torts too |
| 3 | Minor | Minority is no defence in tort — unlike contract and crime |
| 4 | Joint / independent / composite tortfeasors | Joint and several liability; rules on successive suits, release, contribution and indemnity |
| 5 | Husband and wife | Common law bar on inter-spousal actions, abolished in England in 1962 |
| 6 | Parental / quasi-parental authority | Reasonable and moderate correction — but see the Indian statutory position below |
| 7 | Judicial and executive authority | Judicial Officers' Protection Act, 1850 — but only for judicial acts |
1. Act of State
An act done in exercise of sovereign power in relation to another State or the subjects of another State is an Act of State and cannot be questioned in municipal courts.
The definition to memorise is that of Hidayatullah J. in State of Saurashtra v. Memon Haji Ismail, because it identifies precisely what kind of plea this is:
"An Act of State is an exercise of power against an alien and neither intended nor purporting to be legally founded. A defence of this kind does not seek to justify the action with reference to the law but questions the very jurisdiction of the courts to pronounce upon the legality or justice of the action."
This is a jurisdictional plea, not a defence on the merits.
Every other topic in Chapters 2 and 3 answers the question "is the defendant liable?" Act of State answers a prior question: "may the court even enquire?" That is why the Privy Council in Kamachee Boye Saheba said such courts have "neither the means of doing what is right nor the power of enforcing any decisions they make." State it this way and you will have shown you understand the doctrine rather than merely recalled it.
The three essentials
- (1) The act is done by the representative of a State.
- (2) The act is injurious to some other State or its subject.
- (3) The act is either previously sanctioned or subsequently ratified by the State.
Buron v. Denman, (1848) 2 Ex. 167 establishes the third essential. Captain Denman of the British Navy released slaves and burnt slave barracoons owned by the plaintiff on the West Coast of Africa, outside British dominion. He had no authority to do so — but his act was ratified by the British Government. Held: an Act of State; no action could lie. Ratification after the event is as good as sanction before it.
The limiting principle: no Act of State against one's own subjects
This is the single most important proposition under this head. As stated in Jahangir v. Secretary of State for India:
"In dealing with its own subjects, therefore, a Government must defend its action as justified by positive law, and cannot rely on a plea of political expediency which would only justify action in relation to foreign matters to which the law of the land does not extend."
Johnstone v. Pedlar, (1921) 2 A.C. 262 shows how far this protection extends. Pedlar, an Irishman, became a naturalised American citizen, returned to Ireland, was found guilty of illegal drilling, and had money confiscated by the police. The Chief Secretary for Ireland adopted the act. Held (House of Lords): judgment for Pedlar. The case establishes that a resident alien has the same rights as a British subject — the plea is not available against a person within the allegiance of the Crown, whatever his nationality.
The Indian cases — and the timing question
The Indian authorities all turn on a single question: at the moment of the impugned act, was the plaintiff a subject or an alien?
| Case | Facts | Result |
|---|---|---|
| Secretary of State v. Kamachee Boye Saheba 7 M.I.A. 476 (P.C.) |
The Rajah of Tanjore died without male issue; the East India Company declared the Raj lapsed. His widow sued | Act of State — no municipal remedy |
| Hardial Singh v. State of Pepsu A.I.R. 1960 Punjab 644 |
The ruler of Nabha granted 'Malwa House' to the appellant. Nabha merged into PEPSU on 20.08.1948. PEPSU repudiated the grant in 1952 | Plea rejected — on merger all citizens of the covenanting States became citizens of PEPSU. By 1952 he was a citizen, not an alien |
| State of Saurashtra v. Memon Haji Ismail A.I.R. 1959 S.C. 1383 |
The Nawab of Junagarh gifted property; the administrator appointed by India cancelled the grant on 18.10.1947. Junagarh merged into Saurashtra on 21.01.1949 | Act of State — at the relevant date there was no formal annexation; the residents were still aliens, and the administrator's act, "however arbitrary", was not justiciable |
| State of Saurashtra v. Mohammad Abdulla A.I.R. 1962 S.C. 445 |
Similar facts; grants by the Nawab cancelled by the administrator after India took over administration on 09.11.1947 | Act of State — and the Court supplied the governing distinction |
The distinction supplied in Mohammad Abdulla by Das J. is the one to carry away:
"In cases where the acquisition of new territory is a continuous process, distinction must be made between de facto exercise of control and de jure resumption of sovereignty... the Act of State did not terminate till January 20, 1949, when the Dominion of India assumed de jure sovereignty over Junagarh."
So India exercised de facto control from 9 November 1947, and the people voted overwhelmingly for accession in the February 1948 referendum — yet the Act of State continued until de jure sovereignty passed. Effective control is not sovereignty; the plea survives until the legal transfer. Read Hardial Singh against these two and the pattern is complete: the moment sovereignty passes, so does the immunity.
One further point, from Duff Development Co. Ltd. v. Kelantan Government and Vora Fidaali v. State of Bombay: a State does not cease to be sovereign merely because it has surrendered defence, external affairs or communications to a protecting power. Viscount Finlay put it that "for sovereignty, there must be certain amount of independence, but it is not the least necessary that for sovereignty, there should be complete independence."
2. Corporations
A corporation is an artificial person distinct from its members. Because it can act only through agents and servants, its liability in tort is always vicarious.
Torts requiring malice
It was once doubted whether a corporation could be sued for torts such as malicious prosecution or deceit, which require a wrongful intention — the argument being that an artificial person has no mind and so cannot be malicious.
That argument has been rejected. Even if the corporation itself has no mental element, its agents are capable of having it, and if the act is done in the course of their employment the corporation is liable like any ordinary employer — Citizens' Life Assurance Co. v. Brown, (1904) A.C. 423. A corporation may therefore be liable for trespass, libel, trover, conversion, negligence, malicious prosecution and fraudulent misrepresentation alike.
The ultra vires question
The more interesting question is whether a corporation can be liable for a tort committed in doing something outside its legal powers. Two cases are set against each other.
| Case | Facts | Held |
|---|---|---|
| Poulton v. L. & S.W. Ry. (1867) L.R. 2 Q.B. 534 |
The railway had power to arrest for non-payment of passenger fare. The station-master arrested the plaintiff for non-payment of freight for a horse | Company not liable |
| Campbell v. Paddington Corporation (1911) 1 K.B. 869 |
The borough council, by formal resolution, erected a stand on a highway so members and friends could watch the funeral procession of Edward VII. It was a public nuisance and blocked the plaintiff's view, costing her the profit of letting seats in her house | Corporation liable |
The reconciliation matters more than either case. Bangia's explanation is that Poulton is not really an ultra vires case at all: the true reason was that the station-master had no implied authority to make such an arrest on the company's behalf, so the company was never vicariously liable in the first place. It is a case about the scope of a servant's authority wearing the clothes of a case about corporate powers.
Campbell states the actual law, and Avory J.'s reasoning is unanswerable:
"To say that, because the borough council had no legal right to erect it, therefore, the corporation cannot be sued, is to say that no corporation can ever be sued for any tort or wrong. The only way in which this corporation can act is by its council, and the resolution of the council is the authentic act of the corporation... That would be absurd."
The rule: for the purpose of liability in tort, no distinction is drawn between intra vires and ultra vires torts. A corporation is as liable for the one as for the other. As Gower observed, companies are daily made liable in tort and convicted of crimes — whatever the logic of the older dicta, that is not the law.
3. Minor
Capacity to sue
A minor may sue exactly as an adult may. The only difference is procedural: he cannot sue in his own name but must bring the action through his next friend.
Pre-natal injuries
There is no English or Indian decision directly on the point. Two Commonwealth cases pull in opposite directions.
Walker v. G.N. Ry. Co. of Ireland, (1891) L.R. Ir. 69 — a child sued the railway alleging he was born crippled and deformed because of an accident, caused by the railway's negligence, while his pregnant mother was travelling. Held: not liable, for two reasons — the defendants owed him no duty because they did not know of his existence, and the medical evidence was too uncertain.
Montreal Tramways v. Leveille, (1933) 1 D.L.R. 337 — the Supreme Court of Canada allowed an action by a child born with club feet two months after an injury to its mother by the defendants' negligence.
The weight of academic opinion favours Leveille: once the defendant's act is tortious, an action for pre-natal injuries should be recognised.
The English statutory solution
On the recommendation of the Law Commission's 1974 report "Injuries to Unborn Children", England passed the Congenital Disabilities (Civil Liability) Act, 1976. Its salient features:
| Feature | Provision |
|---|---|
| The action lies only if the child is born alive but disabled | ss. 1(1), 4(2)(a) |
| Damages for loss of expectation of life require the child to live at least 48 hours | s. 4(4) |
| Contributory negligence of the parents may be pleaded as a defence | s. 1(7) |
| Liability to the child may be excluded or restricted by contract with the parent | s. 1(6) |
| Covers not only injury in the womb but acts before conception affecting either parent's ability to have a normal healthy child | s. 1(2)(a) |
| An action lies even against the child's mother, where the harm is caused by her negligent driving of a motor vehicle | s. 2 |
Bangia's two criticisms — worth reproducing in an answer.
On the 48-hour rule: there is no justification for it. The action should lie once the child is born alive, irrespective of how long it survives thereafter.
On parental contributory negligence: this is contrary to the settled rule that the doctrine of identification does not apply to children in the custody of adults — see Oliver v. Birmingham and Midland Omnibus Co., (1933) 1 K.B. 35, and Bernina. A child's own right of action should not be cut down by a parent's carelessness. This is a genuine internal inconsistency in the statute, and pointing it out shows reading beyond the summary.
The final observation is one for Indian readers: the interests of children in India could be similarly protected if comparable legislation were enacted here. The gap remains.
Capacity to be sued
Minority is no defence in the law of torts. A minor is liable in the same manner and to the same extent as an adult. Contrast this sharply with the two neighbouring branches:
| Branch | Position of a minor |
|---|---|
| Contract | Agreement is void ab initio — ss. 10 and 11, Indian Contract Act, 1872; Mohori Bibee v. Dharmodas Ghose, (1903) 30 Cal. 539 (P.C.) |
| Crime | Under 7 — complete exemption, doli incapax, a conclusive presumption. 7 to 12 — not liable unless he has attained sufficient maturity of understanding to judge the nature and consequences of his conduct |
| Tort | No distinction on the basis of age. A child of seven may be sued for trespass like a person of full age |
Statutory note: the criminal law provisions are ss. 82 and 83 of the Indian Penal Code, now ss. 20 and 21 of the Bharatiya Nyaya Sanhita, 2023. Under English law the corresponding ages are eight, with conditional exemption between eight and fourteen.
The one qualification. Where the tort requires a special mental element — deceit, malicious prosecution, conspiracy — a child cannot be liable unless sufficient maturity is proved in his case. In Walmsley v. Humenick, (1954) 3 D.L.R. 232, the Supreme Court of British Columbia held that a child of five could not be liable in negligence because he "had not reached that stage of mental development where it could be said that he should be found legally responsible for his negligent acts."
Tort and contract — the crossover problem
Here is the difficulty. A minor's agreement is void, so no action lies in contract. But a minor is fully liable in tort. What happens when the same act is both a breach of contract and a tort? If the court allows the tort action, is it not indirectly enforcing a void agreement?
The answer lies in a single test, and the cases divide neatly on either side of it.
| Case | Facts | Held |
|---|---|---|
| Johnson v. Pye (1665) 1 Sid. 258 |
A minor obtained a loan of £300 by falsely representing his age | Not liable in deceit — he could not be made to repay the loan |
| Jennings v. Rundall (1799) 8 Term R. 334 |
An infant hired a mare to ride and injured her by overriding | Not liable — the action was in substance for breach of contract and could not be recast as negligence |
| Burnard v. Haggis (1863) 14 C.B.N.S. 45 |
A minor hired a mare on the express condition that it was for riding only, "not for jumping or larking". He lent it to a friend who made it jump a high fence; it was impaled and killed | Liable — the negligence was independent of the contract |
| Ballet v. Mingay [1943] K.B. 281 |
A minor hired a microphone and amplifier and improperly passed them to a friend; they disappeared | Liable in detinue — the circumstances were "outside the purview of the contract of bailment altogether" |
The test: is the wrongful act inside or outside the purview of the contract?
Jennings and Burnard are the pair to compare, because both involve a hired horse injured by a minor. In Jennings the minor did the very thing the contract permitted — he rode the mare — only badly. That is a breach of contract, and, per Byles J., "one cannot make an infant liable for breach of a contract by changing the form of action to one ex delicto."
In Burnard the minor did something expressly forbidden. As Willes J. put it, riding the mare into that place was "as much a trespass, notwithstanding the hiring for another purpose, as if without any hiring at all... It was not even an excess. It was doing an act towards the mare which was altogether forbidden by the owner." Once conduct steps outside the contract, the contract stops shielding the minor.
Bangia's criticism is worth carrying: exempting a minor from tortious liability merely because it would indirectly enforce a contract is unjustified. The object of making a minor's agreement void is to protect him from improvident bargains, not to protect him from deliberate wrongful acts. The exemption should extend only so far as is necessary to protect his interests, and no further.
Liability of parents for children's torts
General rule: a parent or guardian is NOT liable for the torts of a child. There are two exceptions.
- (1) Where the child is the father's servant or agent, the father is vicariously liable. Note carefully: in such a case he is liable not as a father but in the capacity of employer or principal. The relationship doing the work is employment, not parenthood.
- (2) Where the father, by his own negligence, affords the child an opportunity to commit a tort. In Bebee v. Sales, (1916) 32 T.L.R. 413, a father supplied an airgun to his 15-year-old son and allowed him to keep it even after complaints of mischief. The boy accidentally wounded the plaintiff. The father was held liable — not vicariously, but for his own negligence.
4. Independent, Joint and Composite Tortfeasors
When two or more persons commit a tort against the same plaintiff, they are either independent tortfeasors or joint tortfeasors. Everything that follows — successive suits, release, contribution, indemnity — turns on which they are.
The basic distinction
| Basis | Independent tortfeasors | Joint tortfeasors |
|---|---|---|
| Concurrence | Only in the ultimate result — causation alone | In the result and in the mind — mental concurrence in a common design |
| Causes of action | As many as there are tortfeasors | One single, indivisible cause of action |
| Nature of liability | Several only | Joint and several |
| Illustration | Two motorists driving negligently from opposite directions collide, crushing a pedestrian between the cars | Two persons searching together for a gas leak, each applying a naked light in turn |
The Koursk, [1924] P. 140 is the authority on independent tortfeasors. Due to the independent negligence of two ships they collided, and as a consequence one of them ran into and sank a third vessel. Held: they were not joint tortfeasors but independent tortfeasors. Their liability was several only, there were as many causes of action as tortfeasors, and an action against one was no bar to an action against the other.
Brook v. Bool, [1928] 2 K.B. 578 is the authority on joint tortfeasors, and it is instructive because of how far it goes. A and B entered Z's premises to search for an escape of gas. Each in turn applied a naked light to the gas pipe. A's application caused the explosion. Held: both A and B were joint tortfeasors, although only A's act actually caused the damage. Common design supplies liability for the act of the other.
Relationships that create joint liability automatically: principal and agent (s. 238, Indian Contract Act; Lloyd v. Grace Smith & Co., [1912] A.C. 716); master and servant; and partners in a firm (ss. 25–27, Indian Partnership Act, 1932; Hamlyn v. Houston & Co., (1903) 1 K.B. 81).
Prof. Glanville Williams' formulation is the most precise statement of the distinction and is worth quoting:
"Concurrent tortfeasors are tortfeasors whose torts concur (run together) to produce the same damage. They are either joint concurrent tortfeasors... where there is not only a concurrence in the chain of causation leading to the single damage, but also... mental concurrence in some enterprise; or several concurrent tortfeasors (independent tortfeasors), where the concurrence is exclusively in the realm of causation."
Composite tortfeasors — the Indian position
The Indian courts have not necessarily followed the English distinction. Where two or more persons are responsible for a common damage — whether acting jointly or independently — they are termed composite tortfeasors. The single label is the Indian contribution, and the consequences of composite negligence are worked out in the chapter on Contributory and Composite Negligence.
The distinction still matters in India, however, as Sasidharan v. Sukumaran, 2006 A.C.J. 945 (Ker.) shows. A wrongly parked truck was hit by a rashly driven bus and a person sitting in the truck was injured. The Tribunal held both drivers equally negligent, but the damage was caused by separate acts independent of each other. Held: the injured was not entitled to claim the entire compensation from either vehicle's driver, owner or insurer, because they were not joint tortfeasors and their liability was not joint and several.
Joint and several liability
The liability of joint tortfeasors is joint and several. The plaintiff may sue any one of them, some of them, or all of them, and each may be made to pay the full amount.
So for a wrong done by an agent, the principal and the agent are jointly and severally liable, and the plaintiff may sue the principal for the whole. The principal cannot plead that the actual wrongdoer was the agent — though after making good the loss he may proceed against the agent to the extent of the agent's fault. Where the plaintiff sues all of them jointly, the judgment may be executed in full against any one of them, and it is no concern of the tribunal to apportion damages between them as against the plaintiff.
Successive actions — the English story in three stages
| Stage | The rule |
|---|---|
| At Common Law | One cause of action only. A judgment against any joint tortfeasor merged the cause of action, barring suits against the rest — even if the judgment remained wholly unsatisfied. Brinsmead v. Harrison, (1872) L.R. 7 C.P. 547 |
| Law Reform (Married Women and Tortfeasors) Act, 1935 | s. 6(1)(a) — successive actions permitted. But s. 6(1)(b) capped the aggregate damages at the amount awarded in the first judgment |
| Civil Liability (Contribution) Act, 1978 | s. 3 — judgment against one is no bar to an action against another jointly liable. s. 4 — the damages cap is gone; only costs in the later suits are disallowed, unless the court finds reasonable ground for bringing the action |
The rationale for the reform is practical: the Common Law rule caused hardship where the joint tortfeasor sued turned out to be insolvent. The 1935 cap on damages also worked injustice — for instance where the first defendant was not liable to punitive damages but the others were. Section 3 of the 1978 Act removes that limit; section 4 keeps only the costs restriction, to discourage vexatious litigation.
For independent tortfeasors, successive actions were always permitted at Common Law, with no cap. Curiously, the 1935 Act made their position worse by extending the s. 6 restrictions to them; the 1978 Act removed that too.
Position in India on successive actions
India has no equivalent of the 1935 or 1978 Acts. Courts therefore decide on principles of justice, equity and good conscience, and there is no reason to adopt the pre-1935 English rule.
In Nawal Kishore v. Rameshwar, A.I.R. 1955 All. 594, Agarwal J. put the position clearly:
"There is no statutory law of Tort in this country and the Act aforesaid is not applicable here... Any technical rule or statutory law of England is not as such, considered to be based on the principle of equity, justice and good conscience, unless it appears to be so to the judge deciding the case. It appears to us that the rule of law indicated in Cl. 6(1)(b) of the Act mentioned above is not necessarily based on any principle of equity, justice and good conscience."
So India permits successive actions and declines to import the English cap on aggregate damages. That is a doubly favourable position for the plaintiff, and a good illustration of Indian courts taking the principle from English law while rejecting its technical accretions.
Release of a joint tortfeasor — and the covenant not to sue
This is the most technical topic in the chapter and a reliable source of examination questions.
The rule in one sentence.
Release of one joint tortfeasor releases all the others, because the cause of action is one and indivisible and is thereby extinguished. A mere covenant not to sue one of them discharges only that one, leaving the action against the rest alive. The rule applies whether the release is under seal or by way of accord and satisfaction.
Cutler v. McPhail, (1962) 2 Q.B. 292 is the leading English authority, and it shows how harsh the rule can be. The defendant wrote two allegedly defamatory letters, one of which was published in "The Villager", the organ of the Pinner Association. The plaintiff sued the writer, the editor, the printers and the Association's officers. The Association then published apologies and paid compensation, and the plaintiff's solicitors wrote that he would "release from any further liability" all officers and members of the committee, including the editor.
Held: the release of the Pinner Association officers extinguished the cause of action against the writer of the letters as well — even though he had paid nothing and apologised for nothing. Salmon J. was frank about the position:
"The principle is quite plain, that if there is a release of one joint tortfeasor, the cause of action against all the other joint tortfeasors is extinguished; on the other hand, if there is merely an agreement not to sue one of the several tortfeasors, the cause of action does not die and other tortfeasors can properly be sued... the difference between a release and an agreement not to sue is highly technical, but whilst the law remains as it is, I feel bound to hold..."
The Indian refinement — two escape routes
Indian courts have generally followed the English rule but have developed two important qualifications, both of which soften it considerably.
Escape route 1: the intention of the parties. In Shiv Sagar Lal v. Mata Din, A.I.R. 1949 All. 105, the plaintiff sued several defendants for malicious prosecution and later settled with, and released, one of them, a minor, whom the court discharged. The others argued automatic release. Held: it must be gathered from the intention of the parties whether there was a release of the entire cause of action or a mere covenant not to sue a particular defendant. Here the suit proceeded against the others, which showed an intention to preserve the right against them. It was therefore a covenant not to sue, and the others were not released.
Escape route 2: full satisfaction is required. In Ram Kumar Singh v. Ali Hussain, I.L.R. (1909) 31 All. 173, the plaintiff sued 12 defendants for assault claiming Rs. 325, then compromised with one and accepted Rs. 25 as his proportionate share. Held: since there had been no full satisfaction for the tort, the other defendants were not released.
That decision was approved by the Supreme Court in Khusro S. Gandhi v. N.A. Guzder, A.I.R. 1970 S.C. 1468. There, in a defamation suit, one defendant tendered an unconditional apology before filing his written statement; the plaintiffs accepted it and a decree was passed in those terms. The remaining defendants pleaded automatic release. Held: the compromise could not be treated as full satisfaction for the tort alleged, and the other tortfeasors were not released.
| Release | Covenant not to sue |
|---|---|
| Cause of action is extinguished | Cause of action survives |
| All joint tortfeasors are discharged | Only the covenantee is discharged |
| In India, requires full satisfaction — Khusro v. Guzder | Inferred where the suit proceeds against the rest — Shiv Sagar Lal |
Contribution between joint tortfeasors
If A and B are equally responsible and A is made to pay the whole Rs. 1,000, can A recover Rs. 500 from B?
The old answer was no. In Merryweather v. Nixan, (1799) 8 T.R. 186, Starkey recovered the whole of £840 from the present plaintiff alone, who then sued his fellow tortfeasor for contribution. Held: there can be no contribution between joint tortfeasors. The reasoning was that a claim for contribution rested on an implied agreement between wrongdoers, and it would be unjust to let wrongdoers share the proceeds of, or the burden of, a wrong.
The rule stood for 136 years and was heavily criticised. It meant that the entire burden of a joint wrong fell on whichever tortfeasor the plaintiff happened to choose, while the others escaped altogether. In Palmer v. Wick & Pulteneytown Shipping Co., (1894) A.C. 318, Lord Herschell refused to extend it to Scotland:
"When I am asked to hold it to be part of the law of Scotland, I am bound to say that it does not appear to me to be founded on any principle of justice or equity or even of public policy, which justifies its extension to the jurisprudence of other countries."
The rule was abrogated by section 6(1) of the Law Reform (Married Women and Tortfeasors) Act, 1935. A tortfeasor made to pay more than his share may now recover contribution from any other tortfeasor "who is, or would if sued have been, liable in respect of the same damage."
The word "liable" does real work — Drinkwater v. Kimber.
Contribution can be demanded only from a tortfeasor who was himself liable to the plaintiff. In Drinkwater v. Kimber, (1952) 2 Q.B. 281, a lady was injured by the combined negligence of her husband and a third party, and recovered in full from the third party. The third party could recover no contribution from the husband, because at that time a husband could not be made liable to his wife for personal injuries. If the co-tortfeasor could not have been sued by the plaintiff, he cannot be made to contribute.
The amount is governed by s. 6(2): such as the court finds "just and equitable having regard to the extent of that person's responsibility for the damage." So if A and B are equally at fault and A pays the whole, A recovers 50%. If A's fault was 75% and B's 25%, A recovers only 25%.
Indemnity
Contribution is a partial recovery reflecting relative fault. Indemnity is complete recovery, available where the party who paid was not at fault at all.
Adamson v. Jarvis, (1827) 4 Bing. 66 — an auctioneer sold goods in good faith on the defendant's behalf. The defendant had no right to the goods, and the true owner recovered from the auctioneer. Held: the auctioneer was entitled to be indemnified by the defendant.
The principle extends across the vicarious liability relationships:
- A master who has paid for his servant's tort may claim indemnity from the servant.
- An agent must indemnify his principal where the principal has paid for the agent's wrong.
- Conversely, a servant or agent has a right of indemnity against the master or principal where the act authorised appeared lawful but turned out to be tortious.
- Under the Indian Partnership Act, 1932, s. 13(e) and (f), the firm must indemnify a partner for payments made and liabilities incurred, and a partner must indemnify the firm for loss caused by his wilful neglect.
The limit: indemnity is available only to an innocent party. It cannot be claimed by a person who knowingly does or authorises an unlawful act — W.H. Smith & Son v. Clinton and Harris, (1908) 99 L.T. 840. Section 6(2) of the 1935 Act also empowers the court to direct that the contribution recovered shall amount to complete indemnity.
| Basis | Contribution | Indemnity |
|---|---|---|
| Extent of recovery | Partial — proportionate to fault | Complete |
| Fault of the claimant | He is at fault, but has paid more than his share | He is innocent — another is solely to blame |
| Leading case | Merryweather v. Nixan (abrogated 1935); Drinkwater v. Kimber | Adamson v. Jarvis |
Position in India on contribution
Again there is no Indian statute corresponding to the 1935 Act, so the courts had to decide whether to follow Merryweather v. Nixan. Some early cases applied it; others doubted it. The High Courts of Nagpur, Calcutta and Allahabad have clearly held it inapplicable in India.
Khushalrao v. Bapurao Ganpat Rao, A.I.R. 1942 Nag. 52 — five persons held a timber-cutting licence, refused to execute a fresh agreement on altered terms, were asked to stop cutting, and continued for 16 months. The landlord obtained a decree for trespass against all, and executed it against the plaintiff alone. He then sued his co-defendants for contribution and was met with Merryweather. Held: the rule does not apply in India; the other partners had to contribute. The Court's observation is memorable:
"It may perhaps not be irrelevant to ask why by punishing one wicked man, in such a way, one should make a present to the other wicked man, his co-debtor, especially if it should appear that the second is really the responsible person, the ringleader and so forth."
Dharni Dhar v. Chandra Shekhar, A.I.R. 1951 All. 774 (F.B.) is the fullest statement. Wali Ullah J. gave two independent reasons:
- The rule cannot be invoked as English Common Law on grounds of justice, equity and good conscience, "for the simple reason that since 1935, it no longer remains part of the English Common Law." You cannot borrow from England a rule England has itself discarded.
- The rule "is devoid of the basic principle of equity that there should be an equality of burden and benefit." Where a decree imposes joint and several liability and one judgment-debtor pays the whole, "justice and fair play obviously require that he should be able to share the burden with his compeers."
5. Husband and Wife
Actions between spouses
At Common Law there could be no action between husband and wife in tort — in either direction.
The Married Women's Property Act, 1882 made a partial change. Section 24 permitted a married woman to sue her husband in tort for the protection and security of her property, her property including a chose in action. A claim for injury caused by him before the marriage, being a chose in action, could therefore be sued on after marriage — Curtis v. Wilcox, (1948) 2 K.B. 474.
But the limitation was severe and arbitrary: because she could sue only for her property, she could not sue for personal injuries. Bangia's illustration makes the absurdity plain — if her husband damaged her watch, she could sue; if he negligently fractured her leg, she could not. The husband, meanwhile, had no right of action at all for any harm caused to him by his wife.
The bar was abolished by the Law Reform (Husband and Wife) Act, 1962. Husband and wife may now sue each other as if unmarried. The Act does, however, allow the court to stay an action between spouses during marriage where no substantial benefit will accrue to either party, or where the matter can be more conveniently disposed of under s. 17 of the 1882 Act.
The workaround before 1962 — suing the third party
Even under the old law, the immunity of the husband did not protect his employer or principal.
Smith v. Moss, (1940) 1 K.B. 424 — a husband, driving a car as agent for his mother, injured his wife. The wife could sue her mother-in-law. The husband wore two hats, and at the time of the accident he was acting in the capacity of agent.
Broom v. Morgan, (1953) 1 Q.B. 597 — where a husband committed a tort against his wife in the course of his employment, the master was liable. Denning L.J. stated the principle in terms that reach well beyond the marital context:
"If the servant is immune from an action at the suit of the injured party owing to some positive rule of law, nevertheless the master is not thereby absolved. The master's liability is his own liability and remains on him, notwithstanding the immunity of the servant."
That sentence is worth memorising. It distinguishes between a servant who committed no tort (in which case there is nothing for the master to be liable for) and a servant who committed a tort but enjoys a personal immunity (in which case the master remains liable). It carries directly into Chapter 4.
Husband's liability for the wife's torts
| Period | Position |
|---|---|
| Common Law | The wife could not be sued alone, so the husband was liable for her post-nuptial torts — Edwards v. Porter, (1925) A.C. 1 |
| Married Women's Property Act, 1882 | He was also liable for her pre-nuptial torts, to the extent of property acquired through her |
| Law Reform (Married Women and Tortfeasors) Act, 1935 | No liability for any tort of his wife, before or after marriage, merely because he is her husband. If they are joint tortfeasors, they are of course liable jointly as such |
6. Persons Having Parental or Quasi-Parental Authority
Parents and persons in loco parentis have a right to administer punishment on a child to prevent him from doing mischief to himself or others. A parent, teacher, or other person having lawful control or charge of a child is permitted to administer punishment.
Two propositions define the scope of the authority:
- Delegation. Parents are presumed to delegate their authority to the teacher when a child is sent to school — Fitzgerald v. Northcote, (1865) 4 F. & F. 456; Mansell v. Griffin, (1908) 1 K.B. 160.
- Reasonableness. The authority warrants reasonable and moderate punishment only. On excessive force, the defendant may be liable for assault, battery or false imprisonment as the case may be — Ryan v. Fildes, (1938) 3 All E.R. 517.
The authority is not confined to the school premises. As Collins J. said in Cleary v. Booth, (1893) 1 Q.B. 465, "there is not much opportunity for a boy to exhibit his moral conduct while in school under the eye of the master; the opportunity is while he is at play or outside the school." So where school rules prohibited smoking both in school and in public, the schoolmaster was justified in caning a student found smoking in a public street — R. v. Newport (Salop) Justices, (1929) 2 K.B. 416.
Important caution for Indian students and practitioners.
The English cases above state the historical common law position on moderate chastisement, and they remain part of the syllabus. They should not be read as a statement of what is lawful in an Indian school today.
Section 17 of the Right of Children to Free and Compulsory Education Act, 2009 prohibits physical punishment and mental harassment of a child, and provides for disciplinary action against anyone contravening it. Provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015 relating to cruelty to children, and the general criminal law on hurt and assault, also apply. In an examination answer, state the common law rule as Bangia gives it and then note the Indian statutory position — that combination reads as current knowledge rather than as an outdated summary.
7. Persons Having Judicial and Executive Authority
The Judicial Officers' Protection Act, 1850
Section 1 of the Act is short enough to be worth knowing in substance:
"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..."
The section also protects the executing officer — a person bound to execute a lawful warrant or order is not liable for executing what he would have been bound to execute had it been within the issuing officer's jurisdiction.
The rationale
The protection exists for the litigant's benefit, not the judge's. Halsbury's Laws of England puts it exactly:
"The object of judicial privilege is not to protect malicious or corrupt judges, but to protect the public from the danger to which the administration of justice would be exposed if the persons concerned therein were subject to enquiry as to malice, or to litigation with those whom their decision might offend. It is necessary that such persons should be permitted to administer the law, not only independently and freely and without favour, but also without fear."
The scope of the protection
| Situation | Protected? |
|---|---|
| Judicial act within jurisdiction | Absolutely protected. No allegation of mala fides, malice, corruption or want of reasonable cause will found an action |
| Judicial act outside jurisdiction, but in good faith belief of jurisdiction | Protected — Anowar Hussain v. Ajoy Kumar Mukherjee, A.I.R. 1965 S.C. 1651 |
| Acting mala fide AND outside jurisdiction | Not protected |
| Administrative or ministerial act | Not protected — the privilege attaches to judicial proceedings only |
Sailajanand Pandey v. Suresh Chandra Gupta, A.I.R. 1969 Pat. 194 illustrates the third row. A magistrate, acting mala fide, illegally and outside his jurisdiction, ordered the plaintiff's arrest. The Patna High Court held he was not entitled to the protection of the 1850 Act and was liable for false imprisonment.
The judicial / ministerial distinction — State of U.P. v. Tulsi Ram
A.I.R. 1971 All. 162. This is the most instructive case under this head and repays close reading.
Five persons were prosecuted. One was acquitted by the Sessions Court and another by the High Court; the High Court upheld the conviction of only three and authorised warrants against those three. The judicial magistrate, acting negligently, signed an order for the arrest of all five. The plaintiffs, though acquitted, were arrested at 10 a.m., taken handcuffed six miles to the police station, lodged in the lock-up at 2 p.m. and released at 3 p.m. It was the day of the Holi festival, and they sued for Rs. 2,000 for the humiliation, disgrace, physical discomfort and mental suffering caused before their relations and friends.
The lower appellate court held the officer protected but the State vicariously liable, decreeing Rs. 500 against the State. The Allahabad High Court reversed both findings:
- The State was NOT liable, because the act was done by its servant in discharge of duties imposed by law.
- The judicial officer WAS liable, because in signing the warrants he was not exercising a judicial function at all but a purely executive one.
Beg J. was unsparing:
"The only function he had to perform was that of signing the warrants of arrest of those three convicted persons... He signed the warrants without looking into the orders of this Court or the directions of the Sessions Court or even his own orders... He failed to apply his mind to the facts of the case or to directions given to him. It cannot be said that he was protected at all by the Judicial Officers' Protection Act in signing warrants negligently."
The transferable rule: the Act protects the function, not the office. A judicial officer performing a ministerial act — signing a warrant that merely gives effect to a decision already made — is in the same position as any other public servant. Where a judge acts both judicially and ministerially, the protection covers only the former.
Executive officers
Public servants are not liable for acts done in the exercise of their duties. A police officer acting on a warrant which appears valid and is issued by a person having lawful power to issue it has absolute protection for acts done in executing it — Henderson v. Preston, (1888) 21 Q.B.D. 362. He is not required to scrutinise the warrant to ascertain whether it is regular.
The protection has three limits:
- An officer who arrests the wrong person, or takes the goods of a person other than the one named, is not excused.
- There is no exemption for executing the order of a court which had no jurisdiction — Clark v. Woods, (1848) 2 Ex. 395.
- Acting under apparently valid authority is a defence, but the exemption ceases if the officer was acting maliciously to harm the other person — Narasinha v. Imam, (1903) 5 Bom. L.R. 667.
A note on the easement passages
Readers following the 22nd edition closely will notice that the chapter closes with two short passages on easements — easement by grant and of necessity, and easementary rights by prescription. They sit oddly under the heading of Capacity, and are best treated as an appendix rather than as part of the chapter's scheme. In brief:
- Hero Vinoth (Minor) v. Seshammal, 2006 (3) S.C.C.D. 1514 — an easement by grant is a matter of contract, governed by the terms of the grant alone, and is not an easement of necessity under s. 13 of the Indian Easements Act, 1882, even if it happens also to be necessary. Consequently it is not extinguished under s. 41 when an alternative access becomes available; s. 41 applies only to easements of necessity, which last only as long as the absolute necessity exists.
- Justiniano Antao v. Bernadette B. Pareira, 2005 (1) S.C.C.D. 239 — to establish a prescriptive right, the claimant must show use as of right, peacefully and openly, without interruption, for 20 years, and must plead specific dates. Vague pleadings will not do.
Exam Corner
The traps:
- "An Act of State can be pleaded against anyone." No — never against one's own subjects, and not against a resident alien within the allegiance (Johnstone v. Pedlar).
- "De facto control ends the Act of State." No — only de jure resumption of sovereignty does. Mohammad Abdulla.
- "A corporation cannot be liable for ultra vires torts." It can — Campbell v. Paddington Corporation. Poulton is really about the servant's authority.
- "A minor is not liable in tort." He is, fully. Minority is a defence in contract and (partly) in crime, not in tort.
- "A minor is never liable where a contract is involved." He is, where the act falls outside the purview of the contract — Burnard v. Haggis, Ballet v. Mingay.
- "A father is liable for his child's torts." Only in two cases — child as servant or agent, or the father's own negligence (Bebee v. Sales).
- "Joint tortfeasors' liability can be apportioned against the plaintiff." No — it is joint and several; apportionment is a matter between the tortfeasors inter se.
- "Release and a covenant not to sue are the same thing." They are not, and the difference is decisive — Cutler v. McPhail.
- "Merryweather v. Nixan is good law in India." It is not — Khushalrao; Dharni Dhar (F.B.). Nor is it good law in England, since 1935.
- "A judge is always immune." Only for judicial acts — not for ministerial ones (Tulsi Ram), and not where mala fide and outside jurisdiction (Sailajanand Pandey).
Distinguish-type questions that recur:
- Joint tortfeasors and independent tortfeasors
- Release and covenant not to sue
- Contribution and indemnity
- Capacity of a minor in tort, contract and crime
- Judicial and ministerial acts of a judicial officer
Quick Revision
- General rule: every person may sue and be sued in tort. This chapter lists the seven variations.
- Act of State — a jurisdictional plea, available only against aliens. Three essentials: State representative, injury to another State or its subject, prior sanction or later ratification (Buron v. Denman). Ends on de jure, not de facto, transfer of sovereignty (Mohammad Abdulla).
- Corporations — liability always vicarious; liable for malice torts through their agents (Citizens' Life v. Brown) and for ultra vires torts (Campbell v. Paddington Corporation).
- Minor — sues through a next friend; minority is no defence in tort; special mental element torts require proved maturity (Walmsley v. Humenick). Pre-natal injuries: Walker (no) vs Montreal Tramways v. Leveille (yes); England has the Congenital Disabilities (Civil Liability) Act, 1976, India has no equivalent.
- Tort and contract — test is whether the act is inside or outside the purview of the contract. Jennings v. Rundall (inside — not liable) vs Burnard v. Haggis (forbidden act — liable).
- Parents — not liable, except (i) child as servant/agent, (ii) parent's own negligence (Bebee v. Sales).
- Joint vs independent — the difference is mental concurrence. Brook v. Bool (joint) vs The Koursk (independent). India uses the composite label; Sasidharan v. Sukumaran.
- Successive actions — barred at Common Law (Brinsmead); permitted by the 1935 Act with a damages cap; cap removed by the Civil Liability (Contribution) Act, 1978, s. 3, costs restricted by s. 4. India: permitted and no cap — Nawal Kishore v. Rameshwar.
- Release discharges all; a covenant not to sue discharges only one (Cutler v. McPhail). India requires full satisfaction (Khusro v. Guzder, S.C.) and looks to intention (Shiv Sagar Lal).
- Contribution — barred by Merryweather v. Nixan; abrogated by s. 6(1) of the 1935 Act; only from one who was himself liable (Drinkwater v. Kimber); amount is just and equitable per s. 6(2). Not applicable in India — Khushalrao; Dharni Dhar.
- Indemnity — complete recovery for the innocent party (Adamson v. Jarvis); not for one who knowingly does or authorises the wrong.
- Husband and wife — Common Law bar; partial relief under MWPA 1882 s. 24 (property only); abolished by the Law Reform (Husband and Wife) Act, 1962. The master remains liable despite the servant's personal immunity — Broom v. Morgan.
- Parental authority — reasonable and moderate correction at common law; but note s. 17, RTE Act, 2009 in India.
- Judicial officers — protected under the 1850 Act for judicial acts, even beyond jurisdiction if in good faith (Anowar Hussain); not for ministerial acts (Tulsi Ram) or mala fide acts outside jurisdiction (Sailajanand Pandey).
Coming Next
Chapter 4 is Vicarious Liability — principal and agent, partners, and above all master and servant: who is a servant, the servant/independent contractor distinction, the course of employment, fraud and theft by a servant, the effect of express prohibition, giving lifts to unauthorised third parties, and the doctrine of common employment. Denning L.J.'s line from Broom v. Morgan, met in this chapter, is the bridge into it.
Disclaimer: These notes are prepared from Chapter 3 (Capacity) of R.K. Bangia, Law of Torts (22nd edition), and are intended for general information and legal education only. They do not constitute legal advice. Case names, citations and statutory references follow the text and should be verified against the law reports and bare statutes before being relied upon or cited in court or in an examination answer, as reported citations occasionally vary between editions and series. English decisions are cited as illustrative of principles received in India and are not binding, and several English statutes referred to here have no Indian equivalent. The note on the Right of Children to Free and Compulsory Education Act, 2009 and related Indian legislation is provided as current context and should be checked against the bare Act. Readers requiring advice on a specific matter should consult a qualified advocate. Please read our Disclaimer for more details.
