Module- III Personal Capacity
(Capacity to sue and be sued in torts )
i. Convict
ii. Alien Enemy
iii. Husband and Wife
iv. Corporations
v. Trade Unions
vi. Insolvent
vii. State and its Subordinates
viii. Minors
ix. Lunatics
x. Foreign Sovereign
• GENERAL RULE - “ALL PERSONS HAVE THE CAPACITY TO SUE AND BE SUED
IN TORTS”
PERSON
• “The concept is very wide one which it includes animate as well as inanimate things . It also
includes person in special relationship through marriage or other socio, economic status”
• Capacity
• The ability to do or to abstain from doing anything.
• Factors :
• Age
• Mental status
• Socio political status
• Marital relationship
• Other relationship
Capacity to sue and be sued in Torts
Inanimate
Animate Entities Entities Sate Entities
Convict Corporations State and its
Husband and Wife Subordinates
Trade Unions
Insolvent
Alien Enemy
Minors
Foreign
Lunatics Sovereign
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I. Animate Entities
1. CONVICTS
Mithu, Etc., Etc vs State Of Punjab Etc.
AIR 1983 473
• LAWS
• English law: - Under the Forfeiture Act, 1870
• Indian Law - There is no specific act or legislation like the English law, rather the prison
jurisprudence stems from Art 21 of the Constitution of India.
• Smt. Kewal Pati v. State of U.P
(1995) 3 SCC 600 : (1995) 2 SCALE 729 : 1995 ACJ 859
• R. v. Secretary of State for the Home Department (1999) 3 Aller 400(HL).
• American jurisprudence
• The Prison Litigation Reform Act
• The Federal Tort Claims Act
• INDIAN LAWS
• Article 20 - Protection in respect of conviction for offences
• Article 21 Protection of life and personal liberty
• No person shall be deprived of his life or personal liberty except according to procedure
established by law
• Article 22. Protection against arrest and detention in certain cases
• INDIAN CASE LAWS
• State of Andhra Pradesh v. Challa Ramkrishna Reddy
• Charles Sobaraj v. Supdt Central Jail Tihar,
• Francis Corahe Mullin v. The Administrator, UT Delhi
2. HUSBAND AND WIFE
“ The legal liabilities of the husband and wife does not get affected by the marital status .
The husband and wife can sue each other or a third person”.
• LAWS
• Married Women's Property Act, 1882 23
• The Law Reform (Married Women and Tortfeasors) Act, 1935,
• Married Women's Property Act, 1874,
2. CHILDREN
IPC S. 82
IPC S. 83
S. 11. Indian Contract Act
Contract entered into by a minor is void.
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Tort – A Minor is liable for all tort committed by him
3. Montreal Tramways Company
4. Paule Leveille (1993) 4 DLR 377( Supreme Court Of Canada)
5. Montreal Tramways Company v Paule Leveille (1993) 4 DLR 377 ( Supreme Court Of
Canada)
6. UCC v. Union of India 1988 MPLJ 540
7. Tillandel v Gossiline ( 1967) ACJ 273
8. Mullins v Richards ( 1998) 1 All ER 920
• CONTRACT AND TORTS
• R Leslie Ltd Vs Shiell (1941) 3 KB 607
• Bernard Vs Haggins ( 1863) 14 C.B.(N.S.) 45 at 53
• Garratt v. Dailey (Supreme Court of Washington, 1955.
46 Wash.2d 197, 279 P.2d 1091
• Issue of whether Brian Dailey knew with substantial certainty that the plaintiff would attempt to
sit down where the chair which he moved had been, and to change the judgment if the findings
warrant it. * * *
• [On remand, the trial judge concluded that it was necessary for him to consider carefully the
time sequence, as he had not done before; and this resulted in his finding ‘‘that the arthritic
woman had begun the slow process of being seated when the defendant quickly removed the chair
and seated himself upon it, and that he knew, with substantial certainty, at that time that she would
attempt to sit in the place where the chair had been.’’ He entered judgment for the plaintiff in the
amount of $11,000, which was affirmed on a second appeal in Garratt v. Dailey, 49 Wash.2d 499,
304 P.2d 681 (1956).]
• Issue of whether Brian Dailey knew with substantial certainty that the plaintiff would attempt to
sit down where the chair which he moved had been, and to change the judgment if the findings
warrant it. * * *
• LAW
In the comment on clause (a) of § 13, the Restatement says:
‘‘Character of Actor’s Intention. In order that an act may be done with
the intention of bringing about a harmful or offensive contact or an apprehension thereof to a
particular person, either the other or a third person, the act must be done for the purpose of causing
the contact or apprehension or with knowledge on the part of the actor that such contact or
apprehension is substantially certain to be produced.’’ [C]
• Liability of Parents
• Bee bee Vs Sales (1916) 32 TL4 413
• Donaldson Vs Mic Niven (1952) 96 SJ 747
4. PERSON OF UNSOUND MIND
S. 84 . Insanity as a defense
• Criminal Lability
• Section 84 in The Indian Penal Code
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• 84. Act of a person of unsound mind.—Nothing is an offence which is done by a person who, at
the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of
the act, or that he is doing what is either wrong or contrary to law.
Morris Vs Marsden (1952)
Winfield Reasons for liability
➢ Loss to be borne by person who committed the wrong.
➢ Relatives to put restrain on lunatics.
➢ The lunatic to bear the loss along with other misfortune.
i. Where specific intent or malice is needed . Eg. Malicious Prosecution.
Ii. Cases relating to ordinary prudence. Eg. Negligence.
iii. Insanity of a grave nature
Eg. Epileptic attack
5. INSOLVENT
An insolvent person is one who has lost his solvency. Meaning whose assets are less than his
liabilities
6. Liability An insolvent person is one who has lost his solvency.
Meaning whose assets are less than his liabilities
II. Inanimate Entities
7. CORPORATIONS
A Corporation is a legal entity bearing rights and duties like an individual. A Corporation
is created by an act or a board.
Rule - “Foreign corporation created by the law or any other foreign country may sue or
be sued for tort like any other corporation”.
Campbell Vs Paddington Corporation (1911) 1 KB 869
8. TRADE UNIONS
Trade Unions Act 1926.
“ A Trade union can’t be sued for an act done in furtherance of a trade union dispute against a
member on the ground of inducing to break a contract of employment, interference of business
right of others to dispose his capital or profit”
The Trade Unions Act, 1926 Section 18(1)
(1) No suit or other legal proceeding shall be maintainable in any Civil Court against any registered
Trade Union or any 1[office-bearer] or member thereof in respect of any act done in contemplation
or furtherance of a trade dispute to which a member of the Trade Union is a party on the ground only
that such act induces some other person to break a contract of employment, or that it is in interference
with the trade, business or employment of some other person or with the right of some other person
to dispose of his capital or of his labour as he wills.
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