Definition of Tort

INTRODUCTION

Law is any rule of human conduct accepted by the society and enforced by the state for the betterment of human life. In a wider sense it includes any rule of human action for example, religious, social, political and moral rules of conduct.

However only those rules of conduct of persons which are protected and enforced by the state do really constitute the law of the land in its strict sense. According to Salmond the law consists of rules recognized and acted on by courts of justice. The entire body of law in a state (corpus juris) may be divided into two, viz, civil and criminal.

Civil law: The term may be used in two senses. In one sense it indicates the law of a particular state as distinct from its external law such as international law. On the other side, in a restricted sense civil law indicates the proceedings before civil courts where civil liability of individuals for wrongs committed by them and other disputes of a civil nature among them are adjudicated upon and decided.

Civil wrong is the one which gives rise to civil proceedings, i.e., proceedings which have for their purpose the enforcement of some right claimed by the plaintiff as against the defendant.

For example, an action for the recovery of debt, restitution of property, specific performance of a contract etc. he who proceeds civilly is a claimant or plaintiff demanding the enforcement of some right vested in him and the remedy he seeks is compensatory or preventive in nature.

Criminal Law: Criminal laws indicate the proceedings before the criminal courts where the criminal liability of persons who have committed wrongs against the state and other prohibited acts are determined.

Criminal proceedings on the other hand are those which have for their object the punishment of the wrong doer for some act of which he is accused.

He who proceeds criminally is an accuser or prosecutor demanding nothing for him but merely the punishment of the accused for the offence committed by him.

DEFINITION OF TORT

The term tort is the French equivalent of the English word ‘wrong’ and of the Roman law term ‘delict’.

The word tort is derived from the Latin word tortum which means twisted or crooked or wrong and is in contrast to the word rectum which means straight. Everyone is expected to behave in a straightforward manner and when one deviates from this straight path into crooked ways he has committed a tort.

Hence tort is a conduct which is twisted or crooked and not straight. As a technical term of English law, tort has acquired a special meaning as a species of civil injury or wrong. It was introduced into the English law by the Norman jurists.

Tort now means a breach of some duty independent of contract giving rise to a civil cause of action and for which compensation is recoverable.

In spite of various attempts an entirely satisfactory definition of tort still awaits its master. In general terms, a tort may be defined as a civil wrong independent of contract for which the appropriate remedy is an action for unliquidated damages. Some other definitions for tort are given below:

Winfield and Jolowicz- Tortuous liability arises from the breach of a duty primarily fixed by law; this duty is towards persons generally and its breach is redressible by an action for unliquidated damages.

Salmond and Hueston- A tort is a civil wrong for which the remedy is a common action for unliquidated damages, and which is not exclusively the breach of a contract or the breach of a trust or other mere equitable obligation.

Sir Frederick Pollock- Every tort is an act or omission (not being merely the breach of a duty arising out of a personal relation, or undertaken by contract) which is related in one of the following ways to harm (including reference with an absolute right, whether there be measurable actual damage or not), suffered by a determinate person:-

  1. It may be an act which, without lawful justification or excuse, is intended by the agent to cause harm, and does cause the harm complained of.
  2. It may be an act in itself contrary to law, or an omission of specific legal duty, which causes harm not intended by the person so acting or omitting.
  3. It may be an act violation the absolute right (especially rights of possession or property), and treated as wrongful without regard to the actor’s intention or knowledge. This, as we have seen is an artificial extension of the general conceptions which are common to English and Roman law.
  4. It may be an act or omission causing harm which the person so acting or omitting to act did not intend to cause, but might and should with due diligence have foreseen and prevented.
  5. It may, in special cases, consist merely in not avoiding or preventing harm which the party was bound absolutely or within limits, to avoid or prevent.

General Principle of Liability

There are two theories with regard to the basic principle of liability in the law of torts or tort. They are:

# Wider and narrower theory- all injuries done by one person to another are torts, unless there is some justification recognized by law.

# Pigeon-hole theory- there is a definite number of torts outside which liability in tort does not exist.

The first theory was propounded by Professor Winfield. According to this, if I injure my neighbour, he can sue me in tort, whether the wrong happens to have a particular name like assault, battery, deceit or slander, and I will be liable if I cannot prove lawful justification. This leads to the wider principle that all unjustifiable harms are tortious.

This enables the courts to create new torts and make defendants liable irrespective of any defect in the pleading of the plaintiff. This theory resembles the saying, my duty is to hurt nobody by word or deed.

This theory is supported by Pollock and courts have repeatedly extended the domain of the law of torts. For example, negligence became a new specific tort only by the 19th century AD. Similarly the rule of strict liability for the escape of noxious things from one’s premises was laid down in 1868 in the leading case if Rylands v. Fletcher.

The second theory was proposed by Salmond. It resembles the Ten Commandments given to Moses in the bible. According to this theory, I can injure my neighbour as much as I like without fear of his suing me in tort provided my conduct does not fall under the rubric of assault, deceit, slander or any other nominate tort.

The law of tort consists of a neat set of pigeon holes, each containing a labeled tort. If the defendant’s wrong does not fit any of these pigeon holes he has not committed any tort.

The advocates of the first theory argue that decisions such as Donoghue v. Stevenson shows that the law of tort is steadily expanding and that the idea of its being cribbed, cabined and confined in a set of pigeon holes in untenable.

However salmond argues in favour of his theory that just as criminal law consists of a body of rules establishing specific offences, so the law of torts consists of a body of rules establishing specific injuries. Neither in the one case nor in the other is there any general principle of liability.

Whether I am prosecuted fro an alleged offence or sued fro an alleged tort it is for my adversary to prove that the case falls within some specific and established rule of liability and not fro for me to defend myself by proving that it is within some specific and established rule of justification or excuse. For salmond the law must be called The Law of Torts rather that The Law of Tort.

There is, however, no recognition of either theory. It would seem more realistic fro the student to approach the tortious liability from a middle ground. In an Indian decision, Lala Punnalal v. Kasthurichand Ramaji , it was pointed out that there is nothing like an exhaustive classification of torts beyond which courts should not proceed, that new invasion of rights devised by human ingenuity might give rise to new classes of torts.

On the whole if we are asked to express our preference between the two theories, in the light of recent decisions of competent courts we will have to choose the first theory of liability that the subsequent one.

Thus it is a matter of interpretation of courts so as to select between the two theories. The law of torts has in the main been developed by courts proceeding from the simple problems of primitive society to those of our present complex civilization.

The Law of Torts in India

Under the Hindu law and the Muslim law tort had a much narrower conception than the tort of the English law. The punishment of crimes in these systems occupied a more prominent place than compensation for wrongs. The law of torts in India is mainly the English law of torts which itself is based on the principles of the common law of England.

This was made suitable to the Indian conditions appeasing to the principles of justice, equity and good conscience and as amended by the Acts of the legislature. Its origin is linked with the establishment of British courts in India.

The expression justice, equity and good conscience was interpreted by the Privy Council to mean the rules of English Law if found applicable to Indian society and circumstances. The Indian courts before applying any rule of English law can see whether it is suited to the Indian society and circumstances. The application of the English law in India has therefore been a selective application.

On this the Privy Council has observed that the ability of the common law to adapt itself to the differing circumstances of the countries where it has taken roots is not a weakness but one of its strengths. Further, in applying the English law on a particular point, the Indian courts are not restricted to common law.

If the new rules of English statute law replacing or modifying the common law are more in consonance with justice, equity and good conscience, it is open o the courts in India to reject the outmoded rules of common law and to apply the new rules.

For example, the principles of English statute, the Law Reform (Contributory Negligence) Act, 1945, have been applied in India although there is still no corresponding Act enacted by Parliament in India.

The development in Indian law need not be on the same lines as in England. In M.C. Mehta v. Union of India , Justice Bhagwati said, we have to evolve new principles and lay down new norms which will adequately deal with new problems which arise in a highly industrialized economy.

We cannot allow our judicial thinking to be constructed by reference to the law as it prevails in England or for the matter of that in any foreign country. We are certainly prepared to receive light from whatever source it comes but we have to build our own jurisprudence.

It has also been held that section 9 of The Code of Civil Procedure, which enables the civil court to try all suits of a civil nature, impliedly confers jurisdiction to apply the Law of Torts as principles of justice, equity and good conscience. Thus the court can draw upon its inherent powers under section 9 for developing this field of liability.

In a more recent judgement of Jay Laxmi Salt Works (p) ltd. v. State of Gujarat , Sahai, J., observed: truly speaking the entire law of torts is founded and structured on morality. Therefore, it would be primitive to close strictly or close finally the ever expanding and growing horizon of tortuous liability.

Even for social development, orderly growth of the society and cultural refineness the liberal approach to tortious liability by court would be conducive.

Tort and Contract

The definition given by P.H. Winfield clearly brings about the distinction between tort and contract. It says, Tortuous liability arises from the breach of a duty primarily fixed by law; this duty is towards persons generally and its breach is redressible by an action for unliquidated damages.

A contract is that species of agreement whereby a legal obligation is constituted and defined between the parties to it. It is a legal relationship, the nature, content and consequence of which are determined and defined by the agreement between the parties.

According to Salmond, a contract arises out of the exercise of the autonomous legislative authority entrusted by the law to private persons to declare and define the nature of mutual rights and obligations.

At the present day, tort and contract are distinguished from one another in that, the duties in the former are primarily fixed by law while in the latter they are fixed by the parties themselves. Agreement is the basis for all contractual obligations. “People cannot create tortious liability by agreement.

Thus I am under a duty not to assault you, not to slander you, not to trespass upon your land because the law says that I am under such duty and not because I have agreed with you to undertake such duty.

Some of the distinctions between tort and contract are given below:

# A tort is inflicted against or without consent; a contract is founded upon consent.

# In tort no privity is needed, but it is necessarily implied in a contract.

# A tort is a violation in rem (right vested in some person and available against the world at large.); a breach of contract is an infringement of a right in personam( right available against some determinate person or body).

# Motive is often taken into consideration in tort, but it is immaterial in a breach of contract.

# In tort the measure of damages is not strictly limited nor is it capable of being indicated with precision; in a breach of contract the measure of damages is generally more or less nearly determined by the stipulations of the parties.

In certain cases the same incident may give rise to liability both in contract and in tort. For example, when a passenger whilst traveling with a ticket is injured owing to the negligence of the railway company, the company is liable for a wrong which is both a tort and a breach of a contract.

The contractual duty may be owed to one person and the duty independent of that contract to another. The surgeon who is called by a father to operate his daughter owes a contractual duty to the father to take care. If he fails in that duty he is also liable for a tort against the daughter.

In Austin v. G.W. Railway, a woman and her child were traveling in the defendant’s train and the child was injured by defendant’s negligence. The child was held entitled to recover damages, for it had been accepted as passenger.

There is a well established doctrine of Privity of Contract under which no one except the parties to it can sue for a breach of it.

Formerly it was thought that this principle of law of contract also prevented any action being brought under tortuous liability. But this fallacy was exploded by the House of Lords in the celebrated case of Donoghue v. Stevenson. In that case a manufacturer of ginger beer had sold to a retailer, ginger beer in a bottle of dark glass.

The bottle, unknown to anyone, contained the decomposed remains of a snail which had found its way to the bottle at the factory. X purchased the bottle from the retailer and treated the plaintiff, a lady friend (the ultimate consumer), to its contents. In consequence partly of what she saw and partly of what she had drunk, she became very ill.

She sued the manufacturer for negligence. This was, of course, no contractual duty on the part of the manufacturer towards her, but a majority of the House of Lords held that he owed a duty to take care that the bottle did not contain noxious matter and that he was liable if that duty was broken.

The judicial committee of the Privy Council affirmed the principle of Donoghue’s case in Grant v. Australian Knitting Mills Ltd. Thus contractual liability is completely irrelevant to the existence of liability in tort. The same facts may give rise to both.

Another discrepancy between contracts and torts is seen in the nature of damages under each. In contracts the plaintiff will be claiming liquidated damages whereas in torts he will be claiming unliquidated damages.

When a person has filed a suit or put a claim for the recovery of a predetermined and fixed sum of money he is said to have claimed liquidated damages. On the other hand when he has filed a suit for the realization of such amount as the court in its discretion may award, he is deemed to have claimed unliquidated damages.

Tort and Quasi Contract

Quasi contract 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.

According to the Orthodox view the judicial basis for the obligation under a quasi contract is the existence of a hypothetical contract which is implied by law. But the Radical view is that the obligation in a quasi contract is sui generis and its basis is prevention of unjust enrichment.

Quasi contract differs from tort in that:

  • #There is no duty owed to persons for the duty to repay money or benefit received unlike tort, where there is a duty imposed.
  • In quasi contract the damages recoverable are liquidated damages, and not unliquidated damages as in tort.

Quasi contracts resembles tort and differs from contracts in one aspect. The obligation in quasi contract and in tort is imposed by law and not under any agreement. In yet another dimension quasi contract differs from both tort and contract.

If, for example, A pays a sum of money by mistake to B. in Quasi contract, B is under no duty not to accept the money and there is only a secondary duty to return it. While in both tort and contract, there is a primary duty the breach of which gives rise to remedial duty to pay compensation.

Tort and Crime

Historically tort had its roots in criminal procedure. Even today there is a punitive element in some aspects of the rules on damages. However tort is a species if civil injury or wrong. The distinction between civil and criminal wrongs depends on the nature of the remedy provided by law.

A civil wrong is one which gives rise to civil proceedings.

A civil proceeding concerns with the enforcement of some right claimed by the plaintiff as against the defendant whereas criminal proceedings have for their object the punishment of the defendant for some act of which he is accused. Sometimes the same wrong is capable of being made the subject of proceedings of both kinds.

For example assault, libel, theft, malicious injury to property etc. in such cases the wrong doer may be punished criminally and also compelled in a civil action to make compensation or restitution.

Not every civil wrong is a tort. A civil wrong may be labeled as a tort only where the appropriate remedy for it is an action for unliquidated damages.

Thus for example, public nuisance is not a tort merely because the civil remedy of injunction may be available at the suit of the attorney general, but only in those exceptional cases in which a private person may recover damages for loss sustained by him in consequence thereof.

However it has to be born in mind that a person is liable in tort irrespective of whether or not an action for damages has been given against him. The party is liable from the moment he commits the tort. Although an action fro damages is an essential mark of tort and its characteristic remedy, there may be and often other remedies also.

Difference Between Crime and Tort

Being a civil injury, tort differs from crime in all respects in which a civil remedy differs from a criminal one. There are certain essential marks of difference between crime and tort they are:

  •  Tort is an infringement or privation of private or civil rights belongigng to individuals, whereas crime is a breach of public rights and duties which affect the whole community.
  • In tort the wrong doer has to compensate the injured party whereas in crime, he is punished by the state in the interest of the society.
  • In tort the action is brought about by the injured party whereas in crime the proceedings are conducted in the name of the state.
  • In tort damages are paid for compensating the injured and in crime it is paid out of the fine which is paid as a part of punishment. Thus the primary purpose of awrding compensation in a criminal prosecution is punitive rather than compensatory.
  • The damages in tort are unliquidated and in crime they are liquidated.

Resemblance Between Crime and Tort

There is however a similarity between tort and crime at a primary level. In criminal law the primary duty, not to commit an offence, for example murder, like any primary duty in tort is in rem and is imposed by law. The same set of circumstances will in fact, from one point of view, constitute a crime and, from another point of view, a tort.

For example every man has the right that his bodily safety shall be respected. Hence in an assault, the sufferer is entitled to get damages. Also, the act of assault is a menace to the society and hence will be punished by the state.

However where the same wrong is both a crime and a tort its two aspects are not identical. Firstly, its definition as a crime and a tort may differ and secondly, the defences available for both crime and tort may differ.

The wrong doer may be ordered in a civil action to pay compensation and be also punished criminally by imprisonment or fine. If a person publishes a defamatory article about another in a newspaper, both a criminal prosecution for libel as well as a civil action claiming damages for the defamatory publication may be taken against him.

In P.Rathinam. v. Union of India, the Supreme Court observed, In a way there is no distinction between crime and a tort, inasmuch as a tort harms an individual whereas a crime is supposed to harm a society. But then, a society is made of individuals. Harm to an individual is ultimately the harm to the society.

There was a common law rule that when the tort was also a felony, the offender would not be sued in tort unless he has been prosecuted in felony, or else a reasonable excuse had to be shown for his non prosecution. This rule has not been followed in India and has been abolished in England.

Constituents of Tort

The law of torts is fashioned as an instrument for making people adhere to the standards of reasonable behaviour and respect the rights and interests of one another. This it does by protecting interests and by providing for situations when a person whose protected interest is violated can recover compensation for the loss suffered by him from the person who has violated the same.

By interest here is meant a claim, want or desire of a human being or group of human beings seeks to satisfy, and of which, therefore the ordering of human relations in civilized society must take account.

It is however, obvious that every want or desire of a person cannot be protected nor can a person claim that whenever he suffers loss he should be compensated by the person who is the author of the loss.

The law, therefore, determines what interests need protection and it also holds the balance when there is a conflict of protected interests.

Every wrongful act is not a tort. To constitute a tort,

  • There must be a wrongful act committed by a person;
  • The wrongful act must be of such a nature as to give rise to a legal remedy and
  • Such legal remedy must be in the form of an action for unliquidated damages.

1. Wrongful act

An act which prima facie looks innocent may becomes tortious, if it invades the legal right of another person. In Rogers v. Ranjendro Dutt , the court held that, the act complained of should, under the circumstances, be legally wrongful, as regards the party complaining. That is, it must prejudicially affect him in some legal right; merely that it will however directly, do him harm in his interest is not enough.

A legal right, as defined by Austin, is a faculty which resides in a determinate party or parties by virtue of a given law, and which avails against a party (or parties or answers to a duty lying on a party or parties) other than the party or parties in whom it resides.

Rights available against the world at large are very numerous. They may be divided again into public rights and private rights. To every right, corresponds a legal duty or obligation. This obligation consists in performing some act or refraining from performing an act.

Liability for tort arises, therefore when the wrongful act complained of amounts either to an infringement of a legal private right or a breach or violation of a legal duty.

2. Damage

In general, a tort consists of some act done by a person who causes injury to another, for which damages are claimed by the latter against the former. In this connection we must have a clear notion with regard to the words damage and damages.

The word damage is used in the ordinary sense of injury or loss or deprivation of some kind, whereas damages mean the compensation claimed by the injured party and awarded by the court. Damages are claimed and awarded by the court to the parties. The word injury is strictly limited to an actionable wrong, while damage means loss or harm occurring in fact, whether actionable as an injury or not.

The real significance of a legal damage is illustrated by two maxims, namely, Damnum Sine Injuria and Injuria Sine Damno.

  • Damnum Sine Injuria (Damage Without Injury)

There are many acts which though harmful are not wrongful and give no right of action to him who suffers from their effects. Damage so done and suffered is called Damnum Sine Injuria or damage without injury. Damage without breach of a legal right will not constitute a tort.

They are instances of damage suffered from justifiable acts. An act or omission committed with lawful justification or excuse will not be a cause of action though it results in harm to another as a combination in furtherance of trade interest or lawful user of one’s own premises.

In Gloucester Grammar School Master Case , it had been held that the plaintiff school master had no right to complain of the opening of a new school. The damage suffered was mere damnum absque injuria or damage without injury. Acton v. Blundell , in which a mill owner drained off underground water running into the plaintiff’s well, fully illustrate that no action lies fro mere damage, however substantial, caused without the violation of some right.

There are moral wrongs for which the law gives no remedy, though they cause great loss or detriment. Los or detriment is not a good ground of action unless it is the result of a species of wrong of which the law takes no cognizance.

  • Injuria Sine Damno ( injury without damage)

This means an infringement of a legal private right without any actual loss or damage. In such a case the person whose right has been infringed has a good cause of action. It is not necessary for him to prove any special damage because every injury imports a damage when a man in hindered of his right.

Every person has an absolute right to property, to the immunity of his person, and to his liberty, and an infringement of this right is actionable per se. actual perceptible damage is not, therefore, essential as the foundation of an action. It is sufficient to show the violation of a right in which case the law will presume damage.

Thus in cases of assault, battery, false imprisonment, libel, trespass on land, etc., the mere wrongful act is actionable without proof of special damage. The court is bound to award to the plaintiff at least nominal damages if no actual damage is proved.

This principle was firmly established by the election case of Ashby v. White, in which the plaintiff was wrongfully prevented from exercising his vote by the defendants, returning officers in parliamentary election. The candidate from whom the plaintiff wanted to give his vote had come out successful in the election.

Still the plaintiff brought an action claiming damages against the defendants for maliciously preventing him from exercising his statutory right of voting in that election. The plaintiff was allowed damages by Lord Holt saying that there was the infringement of a legal right vested in the plaintiff.

 

3. Remedy

The law of torts is said to be a development of the maxim ‘ubi jus ibi remedium’ or ‘there is no wrong without a remedy’. If a man has a right, he must of necessity have a means to vindicate and maintain it and a remedy if he is injured in the exercise or enjoyment of it; and indeed it is a vain thing to imagine a right without remedy; want of right and want of remedy are reciprocal.

Where there is no legal remedy there is no wrong. But even so the absence of a remedy is evidence but is not conclusive that no right exists.

Some General Conditions in Torts Law of Torts

1. Act And Omission- To constitute a tort there must be a wrongful act, whether of omission or commission, but not such acts as are beyond human control and as are entertained only in thoughts. An omission is generally not actionable but it is so exceptionally.

Where there is a duty to act an omission may create liability. A failure to rescue a drowning child is not actionable, but it is so where the child is one’s own. A person who voluntarily commences rescue cannot leave it half the way. A person may be under duty to control natural happenings to his own land so as to prevent them from encroaching others’ land.

2. Voluntary and Involuntary Acts- a voluntary act has to be distinguished from an involuntary act because the former may involve liability and the latter may not. A self willed act like an encroachment fro business, is voluntary, but an encroachment for survival may be involuntary. The wrongfulness of the act and the liability for it depends upon legal appreciation of the surrounding circumstances.

3. Malice- malice is not essential to the maintenance of an action for tort. It is of two kinds, ‘express malice’ (or malice in fact or actual malice) and ‘malice in law’ (or implied malice). The first is what is called malice in common acceptance and means ill will against a person; the second means a wrongful act done intentionally without just cause or excuse.

Where a man has a right to do an act, it is not possible to make his exercise of such right actionable by alleging or proving that his motive in the exercise was spite or malice in the popular sense. An act, not otherwise unlawful, cannot generally be made actionable by an averment that it was done with evil motive. A malicious motive per se does not amount to injuria or legal wrong.

Wrongful acts of which malice is an essential element are:

  • Defamation,
  • Malicious prosecution,
  • Willful and malicious damage to property,
  • Maintenance, and 
  • Slander of title.

4. Intention, motive, negligence and recklessness– The obligation to make reparation for damage caused by a wrongful act arises from the fault and not from the intention. Any invasion of the civil rights of another person is in itself a legal wrong, carrying with it liability to repair it necessary or natural consequences, in so far as these are injurious to the person whose right is infringed, whether the motive which prompted it be good, bad or indifferent.

A thing which is not a legal injury or wrong is not made actionable by being done with a bad intent. It is no defence to an action in tort for the wrong doer to plead that he did not intend to cause damage, if damage has resulted owing to an act or omission on his part which is actively or passively the effect of his volition.

A want of knowledge of the illegality of his act or omission affords no excuse, except where fraud or malice is the essence of that act or omission.

For every man is presumed to intend and to know the natural and ordinary consequences of his acts. This presumption is not rebutted merely by proof that he did not think of the consequences or hoped or expected that they would not follow. The defendant will be liable for the natural and necessary consequences of his act, whether he in fact contemplated them or not.

5. Malfeasance, misfeasance and nonfeasance- the term ‘malfeasance’ applies to the commission of an unlawful act. It is generally applicable to those unlawful acts, such as trespass, which are actionable per se and do not require proof of negligence or malice. The term ‘misfeasance’ is applicable to improper performance of some lawful act. The term ‘non-feasance’ applies to the failure or omission to perform some act which there is an obligation to perform.

6. Fault- liability for tort generally depends upon something done by a man which can be regarded as a fault fro the reason that it violates another man’s right. But liability may also arise without fault. Such liability is known as absolute or strict liability. An important example is the rule in Rylands v. Fletcher thus the two extremes of the law of tort are of non liability even where there is fault or liability without fault.

Between these two extremes is the variety of intentional and negligent wrongs to the question whether there is any consistent theory of liability, all that can be said is that it wholly depends upon flexible public policy, which in turn is a reflection of the compelling social needs of the time.

Strict Liability

In law, strict liability is a standard for liability which may exist in either a criminal or civil context. A rule specifying strict liability makes a person legally responsible for the damage and loss caused by his or her acts and omissions regardless of culpability (including fault in criminal law terms, typically the presence of mens rea).

Strict liability is prominent in tort law (especially product liability), corporation’s law, and criminal law. For analysis of the pros and cons of strict liability as applied to product liability, the most important strict liability regime, see product liability.

In tort law, strict liability is the imposition of liability on a party without a finding of fault (such as negligence or tortious intent). The claimant need only prove that the tort occurred and that the defendant was responsible.

The law imputes strict liability to situations it considers to be inherently dangerous. It discourages reckless behavior and needless loss by forcing potential defendants to take every possible precaution. It also has the effect of simplifying and thereby expediting court decisions in these cases.

A classic example of strict liability is the owner of a tiger rehabilitation center. No matter how strong the tiger cages are, if an animal escapes and causes damage and injury, the owner is held liable. Another example is a contractor hiring a demolition subcontractor that lacks proper insurance. If the subcontractor makes a mistake, the contractor is strictly liable for any damage that occurs.

In strict liability situations, although the plaintiff does not have to prove fault, the defendant can raise a defense of absence of fault, especially in cases of product liability, where the defense may argue that the defect was the result of the plaintiff’s actions and not of the product, that is, no inference of defect should be drawn solely because an accident occurs.

If the plaintiff can prove that the defendant knew about the defect before the damages occurred, additional punitive damages can be awarded to the victim in some jurisdictions.

The doctrine’s most famous advocates were Learned Hand, Benjamin Cardozo, and Roger J. Traynor.

Under English and Welsh law, in cases where tortious liability is strict, the defendant will often be liable only for the reasonably foreseeable consequences of his or her act or omission (as in nuisance).

Strict liability is sometimes distinguished from absolute liability. In this context, an actus reus may be excused from strict liability if due diligence is proved. Absolute liability, however, requires only an actus reus.

Bicycle-motor vehicle accidents

A form of strict liability has been supported in law in the Netherlands since the early 1990s for bicycle-motor vehicle accidents. In a nutshell, this means that, in a collision between a car and a cyclist, the driver is deemed to be liable to pay damages and his insurer (n.b. motor vehicle insurance is mandatory in the Netherlands, while cyclist insurance is not) must pay the full damages, as long as 1) the collision was unintentional (i.e. neither party, motorist or cyclist, intentionally crashed into the other), and 2) the cyclist was not in error in some way.

Even if cyclist was in error, as long as the collision was still unintentional, the motorist’s insurance must still pay half of the damages, though this doesn’t apply if the cyclist is under 14 years of age, in which case the motorist must pay full damages for unintentional accidents with minors. If it can be proved that a cyclist intended to collide with the car, then the cyclist must pay the damages (or his/her parents in the case of a minor.)

Absolute Liability

Absolute liability is a standard of legal liability found in tort and criminal law of various legal jurisdictions.

To be convicted of an ordinary crime, in certain jurisdictions, a person must not only have committed a criminal action, but also have had a deliberate intention or guilty mind (mens rea). In a crime of strict liability (criminal) or absolute liability, a person could be guilty even if there was no intention to commit a crime.

The difference between strict and absolute liability is whether the defence of a mistake of fact is available: in a crime of absolute liability, a mistake of fact is not a defence.

In India, absolute liability is a standard of tort liability which stipulates that where an enterprise is engaged in a hazardous or inherently dangerous activity and harm results to anyone on account of an accident in the operation of such hazardous or inherently dangerous activity resulting,

For example, in escape of toxic gas the enterprise is strictly and absolutely liable to compensate all those who are affected by the accident and such liability is not subject to any of the exceptions which operate vis-à-vis the tortious principle of strict liability under the rule in Rylands v. Fletcher.

In other words absolute liability is strict liability without any exception. This liability standard has been laid down by the Indian Supreme Court in M.C. Mehta v. Union of India (Oleum Gas Leak Case). These exceptions include:-

  • Plaintiff’s own mistake
  • Plaintiff’s consent
  • Natural disasters
  • Third Party’s mistake
  • Part of a statutory duty

The Indian Judiciary tried to make a strong effort following the Bhopal Gas Tragedy, December, 1984 (Union Carbide Company vs. Union of India) to enforce greater amount of protection to the Public.

The Doctrine of Absolute Liability was therefore evolved in Oleum Gas Leak Case and can be said to be a strong legal tool against rogue corporations that were negligent towards health risks for the public.

This legal doctrine was much more powerful than the legal Doctrine of Strict Liability developed in the UK case Ryland’s Vs. Fletcher. This meant that the defaulter could be held liable for even third party errors when the public was at a realistic risk. This could ensure stricter compliance to standards that were meant to safeguard the public.

Rules of Strict and Absolute Liability are based on the concept of ‘No fault liability’.At times a person may be held responsible for some wrong though there was no negligence or intention on his part to do such wrong.

This rule was laid down by the House of Lords in Rylands v Fletcher and hence it is also commonly termed as the Rule in Rylands v Fletcher.

In the case of Rylands v Fletcher, the defendant appointed some independent contractors to construct a reservoir in order to provide water to his mill. There were some unused shafts under the site, which the contractors failed to locate. After water was filled in the reservoir, it burst through those shafts and flooded adjoining coalmines belonging to the plaintiff. Even though the defendant was not negligent and had no knowledge of the shafts, he was held liable.

In India, this rule was formulated in the case of M.C. Mehta v Union of India (1987), wherein the Supreme Court termed it as ‘Absolute Liability’ This rule was also followed in the case of Indian Council for  Enviro-Legal Action v  Union of  India   (1996) Section 92A of the Motor Vehicles Act, 1938 also recognises this concept of ‘liability without fault’. The ingredients of the Rule of Strict Liability are:

  • Some hazardous thing must be brought by the defendant on his land.
  • There must be an escape of such thing from that land.
  • There must be a non-natural use of the land.

Exceptions to the Rule of Strict Liability:

  • If the escape of the hazardous good was due to plaintiff’s own fault or negligence
  • Vis Major or Act of God is a good defence in an action under the Rule of Strict Liability.
  • In cases where the wrong done has been by someone who is a stranger and the defendant has no control over him
  • Cases where the plaintiff has given his consent to accumulate the hazardous thing in the defendant’s land for the purpose of common benefit Any act done under the authority of a statute

Vicarious Liability

Vicarious liability is legal responsibility imposed on an employer, who may himself be free from blame, for a tort committed by his employee in the course of his employment.  In this sense it is a species of strict liability.

The traditional test for the imposition of vicarious liability was as set out by Salmond in his Law of Torts as early as 1907: “a master is not responsible for a wrongful act done by his servant unless it is done in the course of his employment.  It is deemed to be so done if it is either (1) a wrongful act authorised by the master, or (2) a wrongful and unauthorised mode of doing some act authorised by the master.”

Whilst this formulation works well as a rule of thumb, the first limb is not really an example of vicarious liability at all (it is primary liability) and the second does not deal conveniently with intentional wrongdoing. 

As regards the second limb, the text continues: “but a master, as opposed to the employer of an independent contractor, is liable even for acts which he has not authorised, provided they are so connected with acts which he has authorised that they may rightly be regarded as modes—although improper modes—of doing them.”

The Salmond test, whilst still a useful starting point, needs now to be considered in the light of the decision of the House of Lords in Lister v Hesley Hall Ltd , which directs us to pay particular attention to the closeness of the connection between the employee’s duties and his wrongdoing.

In Lister the appellants had been pupils at a boarding school, which mainly catered for children with emotional and behavioural difficulties.  The school employed a warden who was responsible for the day to day running of the boarding house and for maintaining discipline. 

He lived there with his wife and on most days he and his wife were the only members of staff on the premises. 

He supervised the boys when they were not at school and the boarding house was intended to be a home for the boys, rather than simply an extension of the school environment. 

Unbeknown to the school, the warden systematically sexually abused the appellants at the boarding house.  The sexual abuse was preceded by grooming to establish control over the appellants.  It involved unwarranted gifts, undeserved leniency and so forth.  What may initially have been regarded as signs of a relaxed approach to discipline gradually developed into blatant sexual abuse.  Neither of the appellants made any complaint at the time. 

After the appellants and the warden had left the school, the warden was convicted of multiple offences involving sexual abuse. The appellants brought claims for personal injury against the employer, alleging negligence and that the employer was vicariously liable for the torts committed by the warden.

The claim in negligence failed and the trial judge was bound to dismiss the claim based on vicarious liability in accordance with the decision of the Court of Appeal in Trotman v North Yorkshire County Council , wherein Butler-Sloss LJ had said “in the field of serious sexual misconduct, I find it difficult to visualise circumstances in which an act of the teacher can be an unauthorised mode of carrying out an authorised act, although I would not wish to close the door on the possibility.”

The House of Lords overruled Trotman and held the school liable for the warden’s assaults.  It was said not to be necessary to ask the question whether the acts of sexual abuse were modes of doing authorised acts.  The correct approach is to concentrate on the relative closeness of the connection between the nature of the employment and the particular tort.

It is “no answer to say that the employee was guilty of intentional wrongdoing, or that his act was not merely tortious but criminal, or that he was acting exclusively for his own benefit, or that he was acting contrary to express instructions, or that his conduct was the very negation of his employer’s duty” .

The warden’s duties provided him with the opportunity to commit indecent assaults on the boys for his own sexual gratification, but that in itself was not enough to make the school liable.  The same would be true of the groundsman or the school porter. 

Likewise the fact that his employment gave him the opportunity to establish a friendship with the boys would not constitute a sufficient connection .   The important point was that the school was responsible for the care and welfare of the boys and had assumed a relationship to them which imposed specific duties in tort. 

It entrusted that responsibility and the performance of those duties to the warden.  He was employed to discharge the school’s responsibility to the boys.  He did not merely take advantage of the opportunity which employment at a residential school gave him.  He abused the special position in which the school had placed him to enable it to discharge its own responsibilities.  There was, accordingly, a very close connection between the torts of the warden and his employment.

The position was again considered by the House of Lords in Dubai Aluminium Co Ltd v Salaam .  The House again stressed the importance of considering the closeness of the connection between an employee’s duties and his wrongdoing.  The mere fact that he was acting dishonestly or for his own benefit is seldom likely to be sufficient to show that an employee was not acting in the course of his employment. 

Once a sufficient connection is established, it is immaterial whether the wrongdoing in question was unauthorised or expressly forbidden by the employer or civilly or criminally illegal.  It was emphasised that an employer ought to be liable for a tort which can fairly be regarded as a reasonably incidental risk to the type of business he carries on.

Whilst Lister was a case concerning sex abuse and Dubai Aluminium concerned dishonesty, it is probably in the field of claims arising out of unlawful violence that the greatest effect has been felt.  In Mattis v Pollock  the defendant owned a nightclub and employed Mr Cranston as a doorman.  Cranston, who was unlicensed, had a history of behaving aggressively and was employed to act on that basis towards customers.  Mr Mattis went to the club one evening with friends. 

Cranston tried to eject one of the group from the club and a fight ensued, during which Cranston hit at least two of the group with a knuckleduster or similar.  The defendant did nothing to discourage Cranston from acting in this way.  The incident provoked a reaction amongst others at the club and a group turned on Cranston who fled the club to his flat.  Mr Mattis, who had not been particularly involved in the incidents, was making his way home when Cranston reappeared, armed with a knife.

  Cranston stabbed Mr Mattis in the back, severing his spinal cord and rendering him paraplegic.  Mr Mattis brought proceedings against the defendant on the basis that he was vicariously liable for the injuries inflicted on him by Cranston as well as being in breach of his own duty of care.

The claims failed at first instance.  However, despite the lapse in time and the fact that Cranston’s behaviour was essentially an act of personal revenge, the Court of Appeal held that, approaching the matter broadly, the assault was so closely connected with what the defendant authorised or expected of Cranston in the performance of his employment as a doorman, that it would be fair and just to hold the defendant vicariously liable for the injuries. 

Cranston’s attack was referable to his earlier humiliation at the club.  It was observed that where an employee is expected to use violence while carrying out his duties, the likelihood of establishing that an act of violence fell within the broad scope of his employment is greater than it would be if he were not.

In Bernard v Attorney-General of Jamaica  Mr Bernard had queued for some time at the Central Sorting Office in Kingston, Jamaica to make an overseas telephone call.  Eventually his turn arrived, but an off duty police constable barged to the front of the queue, announced “police” and demanded the telephone.  There was evidence that, in an emergency, it would be normal for a police officer to go to the head of the line and demand to use the telephone. 

Mr Bernard did not give up the telephone and was slapped and pushed by the constable. 

Mr Bernard continued to resist.  The constable took two steps back, pulled out his service revolver (which he was allowed to carry when off duty) and shot Mr Bernard in the head. 

Mr Bernard came to in the hospital to find himself surrounded by police constables, including the one who had shot him, who arrested him for assaulting a police officer and handcuffed him to the bed.  The charges against Mr Bernard were later withdrawn.

Before Lister the claim brought by Mr Bernard alleging vicarious liability could only have failed.  It could not have been said that the constable’s acts were a mode of carrying out his official duties. 

However, applying Lister, vicarious liability was made out as the connection between the tort and the nature of the constable’s employment was sufficiently close.  It was of prime importance that the shooting followed upon the constable’s announcement that he was a policeman and Mr Bernard was shot because he did not yield to that authority. 

Further, Mr Bernard’s subsequent arrest was retrospectant evidence which suggested that the constable had been purporting to act as a policeman. 

The Board also attached weight to the risk created by the fact that constables were permitted to carry loaded service revolvers while off duty, although it was stressed that the mere use of a service revolver by a policeman would not, of itself, be sufficient to make the police authority vicariously liable.

A similar situation had arisen in Weir v Chief Constable of Merseyside .  An off duty policeman unlawfully borrowed a marked police van to help his girlfriend move house.  While the van was being unloaded, the policeman thought that Mr Weir had been going through some of his girlfriend’s belongings. 

The policeman identified himself as such and took Mr Weir into the van and assaulted him.  The Chief Constable was vicariously liable for the assault.  The policeman had been acting in his capacity as such at the time of the assault.

In Majrowski v Guy’s and St Thomas’s NHS Trust  Mr Majrowski brought a claim against his employer for breach of statutory duty.  He claimed that he had been unlawfully harassed by his departmental manager in breach of section 1 of the Protection from Harassment Act 1997 and that his employer was vicariously liable for this tort. 

The harassment alleged was that his manager was excessively critical of his work and time-keeping, treated him less favourably than other members of staff, was rude to him, set unrealistic targets for his performance and threatened him with disciplinary action when he failed to achieve them.  The judge struck out the claim as disclosing no reasonable cause of action.

The Court of Appeal held that, subject to the terms of the statutory duty in question, an employer can be held vicariously liable for a breach of statutory duty by his employee even when such a duty is not also cast on the employer if the broad test set out in Lister is met.  The House of Lords has given the employer permission to appeal and that hearing is awaited.

Accordingly, the courts no longer approach the question of vicarious liability shackled by the traditional Salmond test of “in the course of employment”, but rather now apply a broader test of fairness and justice, turning on the sufficiency of the connection between the breach of duty and employment and/or whether the risk of such breach was one reasonably incidental to it.  This shift undoubtedly assists claimants. 

Unfortunately, however, the “close connection” test is rather a broad one, the application of which may be difficult to predict with confidence in borderline cases.  But as Lord Nicholls observed in the Dubai Aluminium case “imprecision is inevitable given the infinite range of circumstances where the issue arises”.

The Doctrine of Sovereign Immunity

The doctrine of sovereign immunity is based on the Common Law principle borrowed from the British Jurisprudence that the King commits no wrong and that he cannot be guilty of personal negligence or misconduct, and as such cannot be responsible for the negligence or misconduct of his servants. Another aspect of this doctrine was that it was an attribute of sovereignty that a State cannot be sued in its own courts without its consent.

The point as to how far the State was liable in tort first directly arose in P. & O. Steam Navigation Co. Vs. Secretary of State. The facts of the case were that a servant of the plaintiff’s company was proceeding on a highway in Calcutta, driving a carriage which was drawn by a pair of horses belonging to the plaintiff. He met with an accident, caused by negligence of the servants of the Government.

For the loss cased by the accident, the plaintiff claimed damages against the Secretary of State for India. Sir Barnes Peacock C. J. (of the Supreme Court) observed that the doctrine that the “King can done wrong”, had not application to the East India Company. The company would have been liable in such cases and the Secretary of State was thereafter also liable.

The Court also drew the distinction between sovereign and non-sovereign functions, i.e. if a tort were committed by a public servant in the discharge of sovereign functions, no action would lie against the Government – e.g. if the tort was committed while carrying on hostilities or seizing enemy property as prize. The liability could arise only in case of “non-sovereign functions” i.e. acts done in the conduct of undertakings which might be carried on by private person-individuals without having such power.

The aforesaid judgment laid down that the East India Company had a two fold character:

  • As a sovereign power and
  • As a trading company.

The liability of the company could only extend to in respect of its commercial dealings and not to the acts done by it in exercise of delegated sovereign power. As the damage was done to the plaintiff in the exercise of non-sovereign function, i.e. the maintenance of Dockyard which could be done by any private party without any delegation of sovereign power and hence the government cannot escape liability and was held liable for the torts committed by its employees.

Distinction between Sovereign and Non-sovereign functions followed in subsequent cases:

The aforesaid case was of pre-constitution era, making the distinction between sovereign and nonsovereign function of state and holding the state liable in case of non-sovereign functions was followed by the Hon’ble Apex Court in its subsequent judgments. The point as to how far the state was liable in tort first directly arose after independence before the Hon’ble Supreme Court in State of Rajasthan v. Mst. Vidyawati, AIR 1962 SC 933.

In that case, the claim for damages was made by the dependants of a person who died in an accident caused by the negligence of the driver of a jeep maintained by the Government for official use of the Collector of Udaipur while it was being brought back from the workshop after repairs.

The Rajasthan High Court took the view-that the State was liable, for the State is in no better position in so far as it supplies cars and keeps drivers for its Civil Service. In the said case the Hon’ble Supreme Court has held as under:

Act done in the course of employment but not in connection with sovereign powers of the State, State like any other employer is vicariously liable.”

In the aforesaid case, the Hon’ble Apex Court while approving the distinction made in Steam Navigation Co.’s case between the sovereign and non-sovereign function observed that the immunity of crown in the United Kingdom was based on the old feudalistic notions of Justice, namely, that the King was incapable of doing a wrong. The said common law immunity never operated in India.

Another case in which the principle laid down in Steam Navigation case was followed was Kasturi Lal Ralia Ram Vs. State of UP AIR1965SC1039. In this case partner of Kasturilal Ralia Ram Jain, a firm of jewellers of Amritsar, had gone to Meerut for selling gold and silver, but was taken into custody by the police of the suspicion of possessing stolen property. He was released the next day, but the property which was recovered from his possession could not be returned to him in its entirety inasmuch as the silver was returned but the gold could not be returned as the Head Constable in charge of the Malkhana misappropriated it and fled to Pakistan. The firm filed a suit against the State of U. P. for the return of the ornaments and in the alternative for compensation. It was held by the Apex Court that the claim against the state could not be sustained despite the fact that the negligent act was committed by the employees during the course of their employment because the employment was of a category which could claim the special characteristic of a sovereign power. The court held that the tortious act of the police officers was committed by them in discharge of sovereign powers and the state was therefore not liable for the damages caused to the appellant.

Initially aforesaid principles laid down by Apex Court were followed in MV Act cases also:

How far sovereign immunity is available in motor accident cases has however, been the subjectmatter of consideration in a large number of cases of various High Courts as well as of the Supreme Court. It would be interesting to note that the aforesaid distinction of the sovereign & non-sovereign functions of state and denying the compensation in case of sovereign functions were extended to Motor Vehicle Accident cases also. The cases were mostly those involving government vehicles, mainly Military Vehicles or paramilitary force vehicles. The trend of the judgments revealed that the court basically examined the question whether the military vehicle was engaged in the act which can alternatively be exercised by the private parties or the act is of purely sovereign nature, like act of war, movement of troops and armaments which cannot be delegated to the private parties. Let us now notice the relevant case laws on the subject:

In Satyawati v. Union of India, (AIR1957Delhi98) an Air Force vehicle was carrying hockey team of Indian Air Force Station to play a match. After the match was over, the driver was going to park the vehicle when he caused the fatal accident by his negligence. It was argued that it was one of the functions of the Union of lndia to keep the army in proper shape and tune and that hockey team was carried by the vehicle for the physical exercise of the Air Force personnel and therefore the Government was not liable. The Court rejected this argument and held that the carrying of hockey team to play a match could by no process of extension be termed as exercise of sovereign power and the Union of lndia was therefore liable for damages caused to the plaintiff.

In Union of India v. Smt. Jasso, AIR 1962 Punj 315 (FB) a military driver while transporting coal to general head-quarters in Simla in discharge of his duties committed an accident. It was held that the mere fact that the truck happened to be an army truck and the driver was a military employee cannot make any difference to the liability of the Government for damages for the tortious acts of the driver as such things could be obviously done by a private person also.

In Union of India v. Sugrabai , (AIR 1969 Bom 13) The Bombay High Court overruled the plea of sovereign immunity when a military driver driving a motor truck carrying a Records Sound Ranging machine from military workshop to military school of artillery killed a cyclist on the road. It was held that the driver was not acting in exercise of sovereign powers. The Bombay High Court observed in following words:

Sovereign powers are vested in the State in order that it may discharge its sovereign functions. For the discharge of that function one of the sovereign powers vested in the State is to maintain an army. Training of army personnel can be regarded as a part of the exercise of that sovereign power. The State would clearly not be liable for a tort committed by an army officer in the exercise of that sovereign power. But it cannot be said that every act which is necessary for the discharge of a sovereign function and which is undertaken by the State involves an exercise of sovereign power. Many of these acts do not require to be carried out by the State through its servants. In deciding whether a particular act was done by a Government servant in discharge of a sovereign power delegated to him, the proper test is whether it was necessary for the State for the proper discharge of its sovereign function to have the act done through its own employee rather than through a private agency.”

In Baxi Amrik Singh v. Union of India, (1972 Punj LR 1) The truck was part of an Army Division which had moved to the Front during the 1971-Indo-Pak War. It was during the movement of this Division back to its permanent location after the war, that the accident took place. The truck was at that time carrying Jawans and rations. It was held by P&H High Court that the accident occurred during the exercise of sovereign functions of the State and consequently the Union of India could not be held liable for the tort committed by its servant-the driver of the military truck.

In Thangarajan v. Union of India, (AIR1975Mad. 32) an army driver was deputed for collecting CO2 gas from the factory and to deliver it to a naval ship. As a result of rash driving he knocked down the appellant, a minor boy aged about 10 years. It was held that the accident was caused to the plaintiff while the driver was driving the lorry for the purpose of supply of CO, to the ship, I.N.S. Jamuna, which was in exercise of sovereign function of the State for maintaining military purposes. However, in view of the peculiar circumstances of the case, the Court strongly recommended to the Central Government to make an ex-gratia payment of Rs. 10,000 to the appellant. The Court said, “It is cruel to tell the injured boy who has suffered grievous injuries and was in hospital for over 6 months incurring considerable expenditure and has been permanently incapacitated that he is not entitled to any relief as he had the privilege of being knocked down by a lorry which was driven in exercise of sovereign functions of the state”.

In Mrs. Pushpa v. State of Jammu & Kashmir, 1977 ACJ 375, a truck under the use of the army knocked down a cyclist causing his death. At that time the truck was loaded with crushed barley for being used as a feed for the mules. It was held that the truck could not be said to be engaged in the performance of the act of sovereign function.

In Fatima Begum v. State of Jammu & Kashmir, 1976ACJ 194, the same High Court rejected the defence plea of sovereign immunity when a truck belonging to the Government Transport Undertaking had knocked down a cyclist while it was engaged in transporting police personnel from the place of duty to their barracks.

In Union of India v. Miss Savita Sharma, 1979 ACJ 1 a military truck had dashed against a tempo from behind while it was carrying Jawans from the railway station to unit headquarters. The above High Court again rejected the defence on the ground that the act of carrying Jawans could not be said to be in exercise of any sovereign function as that act could be performed by any individual.

In Iqbal Kaur v. Chief of Army Staff, AIR 1978 Ail 417, an accident occurred due to the negligent driving by a Sepoy of a Government truck while he was going for imparting training in motor driving to new recruits. It was held that this would not constitute an act in exercise of sovereign power, and the driver and the Union of India both were liable for damages.

In Union of India v. Kumari Neelam, AIR 1980 NOC 60 (MP) A military vehicle while bringing vegetables from the Supply Department for prisoners of war knocked down a girl on the road. It was held that no immunity was available for the accident as the activity was not a sovereign act.

In Union of India v. Hardeo Dutta Tirtharam, AIR 1986 Bom 350, A driver of a military truck while collecting tents from outdoor training place and bringing them to the regiment knocked down a Subedar. The High Court took the view that since the particular duty the driver was carrying out in the military area could have very well been carried out by any other private truck, sovereign immunity could not be claimed.

The aforesaid judicial pronouncement clearly laid down the earlier approach of judiciary as revealed from various judicial pronouncements was to make distinction between sovereign and non-sovereign functions and exempting the government from tortuous liability in case the activity involved was a sovereign activity. Later on, there has been significant change in the judicial attitude with respect to “Sovereign and Non-Sovereign dichotomy” as revealed from various judicial pronouncements where the courts, although have maintained the distinction between sovereign and non-sovereign functions yet in practice have transformed their attitude holding most of the functions of the government as non-sovereign. Consequently, there has been an expansion in the area of governmental liability in torts. The same was true with respect to motor vehicle accident cases also.

The Doctrine of Sovereign Immunity is not applicable to MV Act-Apex Court

The Apex Court Judgment of Pushpa Thakur v. Union, 1984 ACJ 559 has settled the dichotomy between sovereign and non-sovereign functions and settled once for all in clear terms that the doctrine of sovereign immunity has no application so far as claims for compensation under the Motor Vehicles Act are concerned. In this case the Hon’ble Apex Court reversing a decision of the Punjab & Haryana High Court (1984 ACJ 401) which in its turn placed reliance on a Full Bench decision of that very Court in Baxi Amrik Singh v. Union of India (1973) PLR Vol. 75 p.1: 1974 ACJ 105 (already stated supra) held that where the accident was caused by negligence of the driver of military truck the principle of sovereign immunity was not available to the State.

The decision of Pushpa Thakur has been followed in subsequent cases:Â

  • Usha Aggarwal and Ors. Vs. Union of India & Ors. cited as AIR 1982 PH 279: In this case the appellant’s husband Sushil Kumar Aggarwal died as a result of the injuries he sustained when the motor-cycle, he was travelling on met with an accident with the ITBP truck which had been deputed to fetch arms from the Railway Station at Ambala and was returning with these arms when the accident occurred. The Tribunal vide its order declined compensation to the claimants on the ground that the offending Indo-Tibetan Border Police truck DHL-79 was engaged in the performance of the sovereign functions of the State when the accident occurred. The appellant appealed in the P&H High Court. The Hon’ble P& H High Court followed the decision of SC in Pushpa Thakur and rejected the contention of Mr. H. S. Brar, appearing for the Union of India in that case who attempted to press in the judgment of the Full Bench in Bakshi Amrit Singh v. Union of India 1974 Acc CJ 105 in the following words:

This is, however, of no avail here as the judgment of this Court in Pushpa Thakur’s case (supra), which the Supreme Court, upset, was based upon this very authority.”

The Hon’ble High Court further observed that: “….it does not behave the State to seek cover under the plea of sovereign immunity merely to avoid liability for the consequences of the negligence of its servants. Such a plea is wholly out of place in a welfare State, in a case like the present where instead of providing for the needy, left so by the acts of its servants in the course of their employment, the attempt is to look for immunity founded upon the dubious privilege of the injured or the deceased, as the case may be, being run over by a vehicle engaged in the discharge of the sovereign functions of the State.

In the said case, the Hon’ble High Court differed from Tribunal ruling in the following words:

The Tribunal was also in error in absolving the truck-driver from liability on the ground that he too was engaged in the performance of a sovereign function at the time of the accident. The plea of sovereign immunity, when available, cannot absolve the actual wrong-doer. It can ensure only for the benefit of the State where it is sought to be held vicariously liable for the acts of its servants, acting in the course of their employment. In other words, if an accident is caused by rash and negligent driving, the driver of the offending vehicle would undoubtedly be liable, whether or not the claim of the State, his employer, for immunity from liability on the ground that the accident had occurred in the discharge of the sovereign functions of the State, is sustained. This being the settled position in law, it was clearly incumbent upon the Tribunal to have dealt with and returned a finding on the issue of negligence.”

  • Gurbachan Kaur Vs. Union of India, (2002 ACJ 666): In this case, the Hon’ble Punjab & Haryana High Court held as under:

“The plea that the driver was on sovereign duty is not open to the Govt. vis-a-vis its citizens especially in a welfare State.”

  • Nagendra Rao & Co. v. State of A.P. reported as AIR 1994 SC-2663: The Hon’ble Supreme Court in this very judgment in para 13 in very positive words while noting that the field of operation of the principle of sovereign immunity has been substantially whittled down by the subsequent decisions of the apex court has taken note of the decision of Supreme Court in Pushpa Thakur case supra and observed as under:

“In Pushpa Thakur v. Union of India and Anr. (1984) ACJ SC 559, this Court while reversing a decision of the Punjab & Haryana High Court (1984 ACJ 401) which in its turn placed reliance on a Full Bench decision of that very Court in Baxi Amrik Singh v. Union of India (1973) PLR Vol. 75 p.1 : 1974 ACJ 105 held that where the accident was caused by negligence of the driver of military truck the principle of sovereign immunity was not available to the State.”

  • State of Rajasthan Vs. Smt. Shekhu and ors, 2006 ACJ 1644 has categorically ruled out the application of doctrine of sovereign immunity to the Motor Vehicle Act and held as under:

“…. after the amending Act 100 of 1956, by which section 110A of the Motor Vehicles Act, 1939, was inserted, the distinction of sovereign and non-sovereign acts of the State no longer existed as all owners of vehicles were brought within the scope of that section. Sec. 166 of the new Act of 1988 reproduces Sec. 110A of the old Act. Whether the State is bound by the provisions of the Motor Vehicles Act is no longer res integra.”

  • Union of India Vs. Rasmuni Devi and Ors. (2008 (2) JKJ 249: In this case decided by the Hon’ble Jammu and Kashmir High Court, the fact was that a military truck collided with BSF vehicles and caused injuries to the standing constables of the BSF who later on succumbed to the injury. The Hon’ble J&K High Court in this case did not consider the issue of sovereign immunity and awarded the compensation.

No application of Sovereign Immunity to negligence causing threat/deprivation to life under Article 21 of the Constitution:

Without prejudice to the aforesaid judicial pronouncements, even otherwise the concept of immunity in respect of sovereign functions has no application where the fundamental right to life as guaranteed by Article 21 of the Constitution of India has been transgressed as held in the judgment of the High Court of Andhra Pradesh in Challa Ramkonda Reddy Vs. State of AP, (AIR 1989 AP 235), which has been subsequently approved by the Supreme Court in. State of A.P. v. Chella Ramakrishna Reddy (AIR 2000 SC 2083). From the said judgments, the following points emerge:

  • The sovereign immunity is not applicable to the cases in public domain i.e. in cases of writ petitions under Article 32 & 226 of Constitution of India. The principle is equally applicable to private law domain, i.e. claim of damages under tort law, where the right to life as guaranteed by Article 21 Constitution of India is violated, as the said right is sacrosanct, inalienable, and indefeasible.
  • Though the principle of Kasturi Lal Case (AIR1965SC1039) is not applicable where the right to life as guaranteed by Article 21 is transgressed. In such cases, damages have to be awarded for the tortuous acts of government servant depriving the person of his life and liberty except in accordance with the procedure established by law.
  • The Negligent act causing the deprivation of life and property of a person is to be held as violative of Fundamental right to life as guaranteed under Article 21 of the Constitution of India.
  • Last but not the least, the Hon’ble Supreme Court has also concluded in the following words.

“….. the law has marched ahead like a Pegasus but the Government attitude continues to be conservative and it tries to defend its action or the tortious action of its officers by raising the plea of immunity for sovereign acts or acts of State, which must fail.”

Principle of Sovereign Immunity has been ignored in other cases:

There are catena of judicial pronouncements in which the judiciary has ignored the principle of sovereign immunity and also differed from the ruling laid down in Kasturi Ram Case (supra) and held the government liable for the tortuous acts committed by its servant. The various cases are as follows:-Â

  1. Saheli, a Women’s Resources Centre v. Commissioner of Police, Delhi, AIR 1990 (SC) 513: The state was held to be liable for the tortuous acts of its employees when a 9 year boy had died due to the beating by the police officer acting in excess of power vested in him. The court directed the Government to pay Rs. 75000/- as compensation to the mother of the child.
  2. Common Cause, A Registered Society v. Union of India and Ors. (AIR 1999 SC 2979): In this case the entire history relating to the institution of suits by or against the State or, to be precise, against Government of India, beginning from the time of East India Company right up to the stage of Constitution, was considered and the theory of immunity was rejected. In this process of judicial advancement, Kasturi Lal’s case (supra) has paled into insignificance and is no longer of any binding value.
  3. Shyam Sunder and Ors. v. State of Rajasthan (AIR 1974 SC 890): Where the question of sovereign immunity was raised and reliance was placed on the ratio laid down in Kasturi Lal’s case (supra), this Court after considering the principle of sovereign immunity as understood in English and even applied in America observed that there was no ‘logical or practical’ ground for exempting the sovereign from the suit for damages.

Last but not the least it would be interesting to note that in Australia also this doctrine of sovereign immunity has been ignored as can be seen from the decision in Parker v. The Commonwealth of Australia, 112 CLR 295 (Aus) where two ships of the Royal Australian Navy, viz. Melbourne and Voyager, came into collision on the highseas about 20 miles off the Australian cost. Melbourne struck the Voyager and she sank along with some men therein resulting in the death of one Parker. His widow brought an action against the Commonwealth for damages on the basis that her husband’s death was caused by the negligence of the officers and crew of the ships of the Commonwealth.

The deceased Parker was a civilian employed by the Navy Department in a technical capacity. In those facts and circumstances Windeyer, J., of the High Court of Australia held that the Commonwealth was liable in tort for damages and that the widow of Parker could bring in the suit for damages for the negligent acts or omission of the members of the Royal Australian Navy

The plea of defense based on the old and archaic concept of sovereignty immunity as borrowed from British jurisprudence prevalent during colonial rule is based on old feudalistic notions of justice namely the “King can do no wrong”.

This common law immunity do not exist in the realm of welfare state and is against the modern jurisprudence where the distinction between sovereign or nonsovereign power does not exist and the state like any ordinary citizen is liable for the acts done by its employees as has been ruled by the Hon’ble Apex Court and various High Courts in its various judicial pronouncements.

Moreover as, the said doctrine should not be applicable to the motor accidents claim under the Motor Vehicles Act, 1988 which is a beneficial legislation. Thus, from the above aforesaid judicial pronouncements of Hon’ble Apex Court followed by various High Court decisions as stated supra, it is established that the sovereign immunity to claims under the Motor Vehicle Act, is no longer res integra.

Conclusion

Thus to conclude, law of torts is a branch of law which resembles most of the other branches in certain aspects, but is essentially different from them in other respects. Although there are differences in opinion among the different jurists regarding the liability in torts, the law has been developed and has made firm roots in the legal showground. There are well defined elements and conditions of liability in tort law.

This bough of law enables the citizens of a state to claim redressal for the minor or major damage caused to them. Thus the law has gained much confidence among the laymen

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By Hassham

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