Capacity to sue and Capacity to be sued in Torts

By Akash Srivastava 15 Minutes Read

Introduction

Generally, every person can sue and the liability to be sued in tort. There are some variations to this rule in the case of certain persons, and their position has been specifically discussed; the concept of capacity in tort law highlights who can initiate or defend against a civil suit. It emphasizes that while everyone generally has the right to sue or be sued, specific restrictions exist. The roles of plaintiffs and defendants are clearly defined, and the document also touches on the rights of joint tortfeasors. 

Capacity to sue and be sued under the law of tort

• “Tortious Liability arises from breach of a duty primarily fixed by law; this duty is towards persons generally, and its breach is redressable by an action for unliquidated damages.” ​​​​​​​-Prof. Winfield
• “A civil wrong for which the remedy is common law action for unliquidated damages and which is not exclusively the breach of contract or the breach of trust or other merely equitable obligation.” ​​​​​-John Salmond
• The capacity to sue and be sued under the law of tort refers to the legal ability of individuals or entities to initiate or defend against a civil lawsuit. This capacity is not absolute and is subject to various restrictions based on legal status, age, and other factors. There is discussion regarding the capacity to sue and be sued in tort law.

Government 

• Sovereign or King: The maxim “The King can do no wrong” serves as the foundation for the Crown’s exemption from legal accountability. Therefore, a personal injury claim will not be brought against the Crown. 
• While altering the previous legislation, “the Crown Proceedings Act, 1947” also upheld the prohibition on tort claims against the government in the course of private action. 
• Our nation does not have a king. The Indian Constitution states that neither the President nor the Governors are subject to judicial review to execute and carry out the authority and responsibilities of their office for any act they committed or pretended to commit while using and carrying out their duty and authority. 
• No ruler of a former Indian State may be sued in a court without the government of India’s consent, according to Section 87-B of the Civil Procedure Code. 
• Courts cannot challenge an act carried out in the exercise of sovereign authority in reference to another State or its citizens. 
• Acts of State are those that authorities of one State perform in the name of the citizens of another State. The State’s representative does the action. Other States or its Subject is harmed by the act, and such actions are either carried out with previous State approval or approval that comes later. Such actions are not subject to liability.
• However, if a foreign person is hurt while exercising sovereign power, he can seek redress through diplomatic channels. 
• In U.O.I v. Sugrabai[1] A, a military driver of the School of Artillery, once assigned a task to transport the machine, hit B, and as a result, B died. Here, the government is liable as the work is assigned to him, and the act is committed during the discharge of the duty.

Foreign Sovereign

•  
  According to Section 86 of the Code of Civil Procedure from 1908, no ruler of a sovereign State may be sued in any court that is otherwise authorised to hear the matter unless that ruler’s government has provided its written agreement, which must be verified by a secretary of that government. 
• The Supreme Court of India in 1966 applied this section to all foreign states, whatever the form of government may be, in the case of Mirza Ali Akbar[2].
• Civil procedure says a foreign sovereign can only be sued in India if the central government allows it and not otherwise. 
• Similarly, foreign ambassadors and their families cannot be sued in India unless they waive their privilege by submitting to the jurisdiction of the court. They can only be sued in Indian court with the consent of the Indian government.

Ambassador

• In India, the Ambassador is also covered under Section 86 of the Code of Civil Procedure. 
• An ambassador or diplomatic envoy has certain advantages because he works as a cog in the system that keeps the two countries’ ties in good standing. 
• As a result, diplomatic agents are completely exempt from the receiving State’s criminal law as well as its civil and administrative laws.
• If they are not nationals of the host country, members of the diplomat’s family who live with them are also protected by this protection. 
• This immunity applies not only to the diplomats themselves but also to their suite and household. 
• One can remove an ambassador by petitioning their own government to persuade the government of the host nation to punish the envoy and his staff in a way that would appease the complaining government.

Public official

• Executive officers also enjoy certain protections. Public servants are not liable to acts done by them in the exercise of their duties, e.g., a police officer acting on a warrant that appears to be valid and is issued by a person having a lawful power to issue it had absolute protection for an act done in the execution of that warrant.
• However, an officer arresting the wrong person and taking the goods of a different person than required is not excused. Similarly, there is no exception in executing the court’s order, which has no jurisdiction. 
• In Sailjanand Pandey v. Suresh Chandra Gupta[3], the magistrate acting mala fide, illegally and outside his jurisdiction, ordered the plaintiff’s arrest. The Patna High Court held that he was entitled to the protection given by the Judicial Officers Protection Act, 1850 and was, therefore, liable for the wrong or false imprisonment.

Minor

• In India, as per Sections 10 and 11 of the Indian Contract Act 1872, a minor is incompetent to contract. 
• In Mohori Bibee v. Dhurmodas Ghose[4], it was held that a minor’s agreement was void ab initio; no action could be brought under the law of contract against him. 
• Sections 82 and 83 of the Indian Penal Code of 1860 prohibit age-based distinctions in tort cases. Therefore, a seven-year-old child might be sued for trespass in the same way as an adult. However, until sufficient maturity for committing that tort can be shown in this specific case, a child cannot be held liable for a tort that requires a distinguishing mental element, such as dishonesty or malicious prosecution.
• In Walmsey v. Humonick[5], Two little boys were playing cowboy-related games. One boy hit the arrow, and it hit another boy in the eye. The court gives the judgment in the defendant’s favor as a five-year child doesn’t even think about it. Hence, the defendant is not liable.

Lunatic

• When any action is committed by a lunatic person who is not in his stable State of mind, such person cannot be sued. 
• However, if such a person commits a crime when he is in a stable state of mind and can interpret the meaning or consequences of his actions, then he can be sued.

Corporation

• Due to the nature of corporations, it is obvious that they cannot suffer human injuries. 
• However, corporations may bring claims for torts that cause damage to their property. The tort must not be impossible in some way. If the company can demonstrate that the defamation has the potential to result in actual damages, it may file a lawsuit against the other party. A corporation may file a lawsuit for liability or any other tort that negatively impacts the assets or operation.
• While corporations can sue, they cannot be sued for certain wrongs that do not affect their property. 
• In the case of Mayor of Manchester v. Williams[6], the plaintiff corporation’s lawsuit for damages regarding a statement alleging corrupt activities in the management of municipal affairs was dismissed since it was determined that the statement did not harm the corporation as a whole.
• In Poulton v. London and S.W. Rly. Company[7], The railway master was employed by the defendant company and arrested a man for not paying the freight charges of the horse he was carrying with him. The petitioner filed a case against the corporation. It was held that the railway master was employed to arrest the person only if the person did not pay the freight himself. No order was given to him to arrest a person if he is not paying the freight charges for the goods carried by him. Here, he is acting in his private capacity, so a corporation cannot be held liable; only the station master can be held liable.

Married Men and Women

• The common law does not permit a married woman to sue or to be sued all alone. 
• It is necessary to be in association with her husband. Only then will it be valid. 
• This was the rule because earlier, under the law in England, husbands and wives were considered as single entities in the eyes of the law. Thus, married women could not be sued alone. 
• This difficulty was later removed by the Married Women’s Property Act 1874, and later, a married woman could be sued independently without joining her husband as a party to the suit.
• In Broom v. Morgan[8], it was held that if a husband committed a tort against his wife in the course of employment of his master, the master was liable for the same. Denning L.J. observed: “If the servant is immune from an action at the suit of the injured partly 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.”[9]

Conclusion

The capacity to sue and be sued is a fundamental aspect of tort law, determining who can initiate or defend against a civil suit. While the general principle is that all persons have the right to engage in legal proceedings, there are specific restrictions that apply to certain categories of individuals. These restrictions are based on legal disabilities, such as being a convict, an alien enemy, a minor, or an insolvent person, among others. Additionally, entities like corporations and unincorporated associations face limitations regarding their ability to sue or be sued. The evolution of laws, particularly concerning married women, reflects a shift towards greater legal independence and equality.

Understanding these nuances is essential for navigating the legal landscape of torts, ensuring that cases are brought before the court with the appropriate parties involved. Ultimately, the capacity to sue and be sued is crucial for upholding justice and accountability in civil wrongs.

[1] AIR 1969 BOM 13.

[2] Mirza Ali Akbar Kashani v. United Arab Republic and Anr, 1966 AIR 230.

[3] AIR 1969 PAT 194.

[4] (1903) 30 Cal 539 (Pc).

[5] (1954). 2 D.L.R. 232.

[6] (1891) 1 QB 94.

[7] (1867) L.R. 2 Q.B. 534.

[8] [1953] 1 QB 597.

[9] R.K. Bangia’s The Law Of Torts (Revised by Dr. Narender Kumar).

Akash Srivastava