LAW OF TORTS-I
TRIMESTER-I
CAPACITY-
PARTIES TO TORT ACTION
Submitted to: Submitted by:
Kavita singh Kapil Karolia
ASSOCIATE PROFESSOR 2015 B.A. LL.B. 48
1|Page
ACKNOWLEDGEMENT
I take this opportunity to thanks everyone who helped out in completing my project
directly or indirectly. I show a special gratitude toward Kavita singh our subject
teacher, without whose guidance and support, I think I am unable to complete this
project. I would also like to thanks NLIU’s library, which helped a lot in learning
more about my project’s topic.
2|Page
OBJECTIVES
• To know about Parties to tort of action.
To know about capacity of parties to sue or to be sued
3|Page
INTRODUCTION
CAPACITY
The capacity of natural and juridical persons, and legal persons in general,
determines whether they may make binding amendments to
their rights, duties and obligations, such as getting married or merging, entering
into contracts, making gifts, or writing a valid will. Capacity is an aspect
of status and both are defined by a person’s personal law:
• for natural persons, the law of domicile or lex domicilii in common
law jurisdictions, and either the law of nationality or lex patriae, or of habitual
residence in civil law states;
• for juridical persons, the law of the place of incorporation, the lex
incorporationis for companies while other forms of business entity derive their
capacity either from the law of the place in which they were formed or the
laws of the states in which they establish a presence for trading purposes
depending on the nature of the entity and the transactions entered into.
When the law limits or bars a person from engaging in specified activities,
any agreements or contracts to do so are either voidable or void for incapacity.
Sometimes such legal incapacity is referred to as incompetence. For comparison,
see Competence (law).
Crown Proceedings Act 1947
The Crown Proceedings Act 1947 (c. 44) is an Act of the Parliament of the United
Kingdom that allowed, for the first time, civil actions against the Crown to be
brought in the same way as against any other party. The Act also reasserted the
common law doctrine of Crown privilege but by making it, for the first time,
justiciable paved the way for the development of the modern law ofPublic
Interest Immunity.
The Act received the Royal assent on 31 July 1947 but did not fully come into
[4]
force until 1 January 1948.
4|Page
There remain significant differences between Crown proceedings and claims
between private parties, especially as to enforcement of judgments.
The Act
• Actions allowed
Section 1 of the Act allows claims, for which a petition of right would previously
have been demanded, to be brought in the courts directly as against any other
defendant. However, a petition and fiat still appear to be necessary for personal
[5]
claims against the monarch.
Section 2 renders the Crown liable as though it were a natural person for:
• Torts committed by its servants and agents;
• Common law duties of an employer to its servants and agents; and
• Common law duties as an owner or occupier of property.
S.2(2) provides that the Crown is liable for breach of statutory duty so long as the
statute binds both the Crown and private persons.
S.3 provides for the protection of patents, registered trade marks,
design rights and copyrights from breach by Crown servants.
Limitations
S.10 exempted the Crown from actions for death or personal injury caused by
members of the British Armed Forces to other members of the British Armed
Forces. This section was suspended by the Crown Proceedings (Armed Forces) Act
1987, ss.1-2 with a power for the Secretary of State for Defence to revive it when
]
"necessary and expedient". There was some retrospective litigation after the
1987 Act in which a declaration was made under the Human Rights Act 1998, s.4
that such immunity was compatible with the European Convention on Human
Rights, art.6(1).
Crown privilege and Public Interest Immunity
Section 28 gave the courts, for the first time, the power to order disclosure of
documents by the Crown and require the Crown to answer requests for further
information. This new power is subject to important qualifications in s.28(2)
5|Page
including the proviso that the Crown can resist disclosure where this could be
“injurious to the public interest”. This reasserted the traditional doctrine of
Crown privilege but also made the issue justiciable, ultimately giving rise to the
doctrine of Public Interest Immunity.
Proceedings abolished
Apart from petitions of right, the Act abolished several ancient writs and
[19]
procedures:
• Latin informations and English informations;
• Writs of capias ad respondendum, subpoena ad respondendum and writs of
appraisement;
• Writs of scire facias;
• Proceedings for the determination of any issue upon a writ of extent or
of diem clausit extremum;
• Writs of summons under Part V of the Crown Suits Act 1865
• Proceedings against the Crown by way of monstrans de droit.
Amendments since royal assent
Ss.5-8 originally covered Admiralty claims but these sections were repealed and
replaced by provisions under the Merchant Shipping Act 1995.
S.9 originally excluded claims arising from the operations of the Post Office,
including telegraphic and telephone services, other than the loss or damage of a
registered letter. These provisions were repealed and replaced by the Post Office
Act 1969.
MINORS
In law, a minor is a person under a certain age—usually the age of majority—
which legally demarcates childhood from adulthood. The age of majority depends
upon jurisdiction and application, but is generally 18. Minor may also be used in
contexts unconnected to the overall age of majority. For example, the drinking
age or casino gambling age in the United States is 21, and people below this age
6|Page
are sometimes called minors even if they are older than 18. The
term underage often refers to those under the age of majority, but may also refer
to persons under a certain age limit, such as the drinking age, smoking age, age of
consent, marriageable age, driving age, voting age, etc. These age limits are often
different from the age of majority.
The concept of minor is not sharply defined in most jurisdictions. The ages of
criminal responsibility and consent, the age at which school attendance is no
longer obligatory, the age at which legally binding contracts can be entered into,
and so on, may be different.
In many countries, including Australia, India, Philippines, Brazil, Croatia,
and Colombia, a minor is defined as a person under the age of 18. In the United
States, where the age of majority is set by the individual states, minor usually
refers to someone under the age of 18, but can in some states be used in
certain areas (such as casino gambling, handgun ownership and the consuming
of alcohol) to define someone under the age of 21. In the criminal justice system
in some places, "minor" is not entirely consistent, as a minor may be tried and
punished for a crime either as a "juvenile" or, usually only for "extremely serious
[1]
crimes" such as murder, as an "adult".
In Japan, Taiwan, Thailand, and South Korea, a minor is a person under 20 years
of age. In New Zealand law, a minor is a person under 18 years of age as well, but
most of the rights of adulthood are assumed at lower ages: for example, entering
[2]
into contracts and having a will are legally possible at age 15.
Age Factor
There is no minimum age for the existence of tortuous liability . A minor, can be
very well sued like an adult, if the action committed by him is in contrast with the
reasonable action expected from the child of that age in a particular situation.
In Gorely v. Codd [1967] 1 W.L.R. 19 , Nield J. held a boy of age more than 16 years
for shooting the claimant with an air rifle in the course of “larking about”. In the
foregoing case of Tillander v. Gosselin (1966) 60 D.L.R. (2d) 18 the High Court
of Ontario, Canada, established that a minor can be sued “if he is old enough
to form an intention to do the necessary act” . Similarly in negligence, where
intention is not the pre-requisite, the court in Mullin v. Richards established that
a 15 year old school girl was not negligent when she injured a school friend while
7|Page
fencing with a plastic ruler. Therefore a minor is negligently liable if “he failed
to show the amount of care reasonably to be expected from a child of that age”
As per notion, a minor is not worth suing because of his incapability to
reimburse damages. But, if the affluent society is considered and when we see
that a “judgement debtor now without funds may acquire them (damages) later,
and that he may be sued on the judgment, or execution may be issued on it, up
to six years from its date, or even after that period with the leave of the court” ,
the notion appears untrue.
Tort and Contract
A minor is liable in tort as an adult but the tort must be independent of the
contract. A minor’s agreement is void even if he fraudulently represents himself
to be of full age as established in Sadik Ali Khan v. Jaikishore. Similarly, in R. Leslie
Ltd v. Shiell [1914] 3 K.B. 607 at 620 a minor was immune to any contractual
charges or reimbursement inspite of availing loan facilities by fraudulently
projecting himself of full age. In the same case it was established that it is
possible to compel a minor for specific restitution if he fraudulently acquired
some property and is still in control and possession of that property.
Though, now, the common law court has discretion to order the transfer back of
the property acquired even without fraud, if still in possession, under section
3(1) of the Minors’ Contracts Act 1987. In case of a bail, contract with minor is
not necessary for restoration of the goods on the determination of the bailment.
Capacity to sue
A minor must sue by his ‘litigation friend’ or the ‘next friend’ (usually father) for
any wrong done to him. Apart from this, a minor is in no way different from an
adult. An unemancipated minor may even sue his parent for negligence. In an
American case a father was held liable for running his business vehicle over his
son while the plaintiff was playing in the field.
8|Page
en ventre sa mere
It is interesting to notice that a child who is born ‘alive’ can bring an action for the
disability/injury suffered in his mother’s womb by some wrongful act of the
tortfeasor. The Roman maxim ‘Nasciturus pro iam nato habetur’ though was held
right by the English law earlier but the image remained blurred. Then, on the
recommendation of the Law Commission the British Parliament passed
‘Congenital Disability (Civil Liability) Act’ (CDA) in 1976, whereby, an action for
the injury to unborn child has been permitted in certain cases. This act was
referred to by the Supreme Court of India in Union Carbide Corporation v. Union
of India , in which it held that those children who congenitally suffered injury due
to toxic effects of Bhopal Gas Tragedy are entitled to be compensated. This
decision certainly surfaced the broader dimension of this English Act by treating
whole of the corporation as a unit.
The nature of duty in these cases is derivative i.e. court should come to a decision
after wary examination of the facts that whether a person is really liable.
Different cases have different background and they should be dealt as per their
facts. Few exceptions are answered by the Act but some are sill speculative. For
instance, a child may sue manufacturer for damages if he suffered injury due to
some drug intake by his mother even if it doesn’t affect the mother but
contravenes the law under Consumer Protection Act. On the flip side child’s
damages are reduced when the parents shared the responsibility for the child
being born disabled. Further, a child can even sue his mother if he suffered pre-
natal harm when his mother was pregnant and driving the motor vehicle
negligently. It is not clear whether she should have knowledge of pregnancy.
Otherwise general rule is that a mother is immune to such liabilities. But,
immunity is not extended to father. He can be very well held liable if he assaults
his pregnant wife and that act renders to unborn child, any harm.
Concept of ‘Wrongful life’ refers to a condition when a child’s disability is
negligently not diagnosed pre-conceptually and he is born disabled. It is debatable
whether defective or negligent selection of embryo or gamete in modern times
would lead to the liability. It is distinguished from ‘Wrongful birth’ because in this
9|Page
parents claim for damages to themselves resulting from the child’s birth.
Common Law does not permit any action for wrongful life as decided in McKay v.
Essex Area Health Authority [1982] Q.B. 1166, by the Court of Appeal.
10 | P a g e
Thus, in the light of above, doctrine of en ventre sa mere appears a justified
tool of dispensing justice to the victim i.e. the child unborn. It is fair enough to
compensate that child who was the most innocent party possible and suffered
abnormality due to the wrongful act of the offender
CAPACITY TO SUE A UNBORN CHILDREN
In general no distinction falls to be taken between a minor an adult so far as their
respective capacities to sue for tort are concerned, save that a minor must sue
by his “next friend”.
That a child born with a disability as a result of injuries suffered while en ventre
sa mere could sue even though before birth it was not legal person put beyond
doubt by the Congenital Disabilities(civil liability act )Act 1976, which applies to all
births on or after 22 in that year .
However ,the Limitation act allows claims by children to be brought many years
after injury is suffered and the common law position was not finally determined in
England until 1992 when the court of appeal in Burton v. Islington Health
authority held at action lay. It seems unlikely that an English court will have to
grapple with question such as how far an action lies against the mother, or
whether a claim might lie on behalf of a still-born child since these issues are
specifically dealt with by the act may be summarized as follow .In the first place,
an action only lies if the child , the plaintiff, is born alive and disabled.
LIABILITY TO BE SUED
In the law of torts there is no defence of infancy as such and a minor is much
as liable to be sued for his torts as is an adult. In Gorley v. CoddNield J. had no
11 | P a g e
hesitation in holding that a boyof 16.5 had been negligent when the accidentally
shot the plaintiff with an rifle in the course of larking about. And it is obvious that
a motorist of 17.5 is as responsible for negligent driving as one six months older
.However where a minor is sued for negligence, his age is relevant in relevant in
determining what he ought reasonably to have foreseen. In a action for
negligence against a young child, therefore , it is sufficient to show that he
behaved in a way which would amount to negligence on the part of an adult. It
must be shown that his behavior fell below the standard of an adult. It must be
shown that hi behavior fell below standard of an ordinarily resonable and
prudent child of his age.
Liability of Parent
Parental Liability Basics
Parental liability is the term used to refer to a parent's obligation to pay for
damage caused by negligent, intentional, or criminal acts committed by
the parent's child.
Today, most states have laws relating to parental liability in various applications.
Children's offenses can be civil or criminal in nature. Civil cases are lawsuits
brought by a person for money damages. Criminal cases, on the other hand,
are brought by the government for violations of criminal law. Many acts can
trigger both civil and criminal legal repercussions.
Minors
Parental liability only applies to your minor or underage children. The age of
majority is the age at which a minor, in the eyes of the state law, becomes an
adult. This age is 18 in most states. In a few other states, the age of majority is 19
or 21. You may want to check your state's legal age of majority laws.
A minor is considered a resident of the same state as the minor's custodial parent or
guardian. If your minor child spends time with two parents in two different states,
each parent is responsible for the child's actions while in their care.
12 | P a g e
Husband and Wife
In the case of husband and wife, the issue of personal liability can be dealt
with two scenarios. Firstly, husband’s liability for wife’s torts and secondly,
action between the husband and wife.
i. Husband’s Liability for Wife’s Torts
Under the common law, during the earlier phase of development of tort, a
married woman couldn’t sue any person for any tort unless and until her
husband joined her as a party to plaintiff. Also, it was not possible to sue a wife
without making her husband as a party to defendant.
These anomalies have been by and by removed by the legislative acts, i.e.
Married Women’s Property Act, 1882 and Law Reform (Married Women and
Tortfeasers) Act, 1935. After these acts, it has become possible for a wife to sue
or be sued without making her husband as a joint party to the suit.
However, if the husband and wife are joint tortfeasors, they can be made
jointly liable as such. (Midland Bank Trust Co. Ltd. v. Green, 1979)
ii. Action between the Husband and Wife
Earlier at common law, husband and wife could not sue each other for any
tort committed against each other.
However, this rule was abolished by the Law Reforms (Husband and Wife) Act,
1962. According to the act, each of the parties to a marriage has the same right
of action in tort against the other as if they were not married. But the court had
discretion to prevent them from using courts as a forum to settle trivial domestic
disputes.
Under the Indian law, personal capacity between husband and wife to sue and be
13 | P a g e
sued in torts is governed by their personal laws, be them Hindus, Sikhs, Jains
or Muslims. Regarding Christians, various anomalies were removed by Married
Women’s Property Act, 1874.
The Indian Constitution furthermore removes all anomalies present in common
law regarding the marital status and their personal capacity. Article 14 embodies
a guarantee against arbitrariness and unreasonableness, considering the case of
Ajay Hasia v. Khalid Murjib (1983).
Alien Enemy
An alien enemy is a person of hostile nation or a person residing in or carrying on
business in enemy territory, whatever his nationality, as defined in Scotland v.
South African Territory Ltd (1971).
Under English law, an alien enemy cannot sue in own right, as stated in De Wahl
v. Braune. He cannot maintain any action unless when duly licensed by an Order-
in Council, or unless he comes into British Dominion under a flag of Truce, a
pass, a cartel, or some other act of public authority, putting him in peace.
Under Indian law, similar principle is followed. It is held that alien enemies who
are residing in India with the permission of Central Government may sue in any
Court. But an enemy who is without any such permission or residing in a foreign
country cannot sue in any Court, as per Section 83 of Code of Civil Procedure
Person of unsond mind
Unsoundness of mind may arise from: (a) Idiocy - It is God given and permanent,
with no intervals of saneness. The mental powers of an idiot are completely
absent because of lack of development of the brain; (b) Lunacy or Insanity -
It is a disease of the brain. A lunatic loses the use of his reason due to some mental
strain or disease. Of course he may have lucid intervals of sanity, (c) Drunkenness -
14 | P a g e
It produces temporary incapacity, till the drunkard is under the effect of
intoxication, provided it is so excessive as to suspend the reason for a time and
create impotence of mind; (d) Hypnotism - it also produces temporary incapacity,
till the person is under the impact of artificially induced sleep; (e) Mental decay
on account of old age, etc.
In cases where the contract is sought to be avoided on any of the above grounds,
the burden of proof lies on the party who sets up such a disability, but if
unsoundness of mind is once established, the burden of providing a lucid interval
is on him, who sets it up (Mohanlal vs. Vinayak).
Effects of agreements made by persons of unsound mind :
An agreement entered into by a person of unsound mind is treated on the same
footing as that of minor's and therefore an agreement by a person of unsound
mind is absolutely void and inoperative as against him but he can derive benefit
under it (Jugal Kishore vs Cheddu). The property of a person of unsound mind is,
however, always liable for necessaries supplied to him or to any one whom he is
legally bound to support, under Section 68 of the Act.
15 | P a g e
ANDREW MANGAN (A PERSON OF UNSOUND MIND NOT SO FOUND)
SUING BY HIS MOTHER AND NEXT FRIEND, LORRAINE MANGAN V
JULIAN DOCKERY [2014] IEHC 477
Thursday, February 12, 2015
Date of Delivery: 23/10/14
Court: High Court
Judgment by: Costello J
This case concerned an application brought by the defendant, a consultant
obstetrician and gynaecologist, to set aside an order of the High Court renewing a
personal injury summons in a medical negligence claim. The plaintiff, a person of
unsound mind not so found suing by his mother, suffered severe respiratory
distress in the post natal period in 1995. As a result, the plaintiff is suffering from
severe quadriplegia, cortical blindness and cerebral palsy.
The summons had originally been issued in 2008 and was renewed in 2013. The
plaintiff had initially obtained a medical report dealing with the obstetric care
relevant to the case. However, Senior Counsel advised that they required an
appropriate expert paediatric neurological report before serving proceedings. A
significant delay subsequently resulted from the plaintiff’s difficulty in finding a
paediatric neurologist willing to provide an opinion. The plaintiff solicitor’s
affidavit set out full and detailed particulars of the “very considerable efforts
which she took to obtain the appropriate and necessary medical reports prior to
proceeding with this case.”
The Court accepted it would be neither possible nor proper for the plaintiff’s case
to proceed without the appropriate expert report. In weighing the question of
justice between the parties, Justice Costello considered that if the case proceeded
the defendant would have to face a claim in professional negligence, in relation to
events that occurred nearly twenty years ago. However, the Court noted that
there had been no reference to prejudice in the defendant’s affidavit.
On the other hand, the Court observed that a setting aside of the renewal of the
summons could result in “a very grave injustice to the plaintiff”, especially if there
was a difficulty in the future in issuing a fresh summons. The Court concluded that
the hardship the defendant would suffer was less than the hardship that could be
16 | P a g e
occasioned to the plaintiff, if he is later denied the opportunity to bring his case,
which alleges the most serious of injuries.
In the circumstances, the High Court refused the application to set aside on the
grounds that the plaintiff’s solicitor had made bona fide efforts to secure a
relevant medical expert opinion.
17 | P a g e
BIBLIOGRAPHY
[Link]
[Link]
[Link]
[Link]
[Link]
18 | P a g e
19 | P a g e