Different kinds of persons who cannot be sued in tort

There are nine classes of persons who cannot be sued in tort. They are as follow: on

1. Sovereign or King (President or Governor)

The legal principle of sovereign immunity provides that a sovereign or king, such as a President or Governor, cannot be sued in court in the law of torts without their consent. This principle is rooted in the historical idea that the king or sovereign is above the law and therefore cannot be held liable for any actions or decisions made in their official capacity. While the idea of sovereign immunity has evolved over time, it remains an important principle in many legal systems around the world.

In the United States, the doctrine of sovereign immunity has been largely abolished through the enactment of legislation such as the Federal Tort Claims Act and state-level laws that waive sovereign immunity in certain circumstances. Under these laws, individuals can sue the government or its officials, including the President or Governor, for damages caused by their actions or decisions.

However, even in jurisdictions where sovereign immunity has been abolished or waived, there are certain limitations on the ability to sue government officials for tortious conduct. For example, government officials may be protected by qualified immunity, which shields them from liability for actions taken in good faith in the course of their official duties. Additionally, some types of government actions may be immune from liability altogether, such as those related to national security or foreign policy.

Overall, while the principle of sovereign immunity remains an important aspect of the law of torts in many jurisdictions, it has been modified and limited in various ways over time to ensure that individuals have access to legal remedies for damages caused by the actions of government officials.

Also Read Vicarious Liability: An Introduction

Also Read Vicarious Liability: Meaning and Modes

Also Read ‘Necessity’ as a general exception to liability in torts

2. Foreign Sovereigns: Position in English Law

English Courts have no jurisdiction over an independent foreign sovereign unless he submits to the jurisdiction of the Court. For this purpose all sovereigns are equal. The Independent sovereign of the smallest State stands on the same footing as the monarch of the greatest. No Court can entertain an action against a foreign sovereign for anything done or omitted to be done, by him in his public capacity as representative of the nation of which he is the head. Even if such a sovereign is a British subject and has exercised his rights as such subject, he cannot be made to account for acts of State done by him in his own territory, in virtue of his authority as a sovereign. No Ruler of a foreign State may be sued in any Court otherwise competent to try the suit except with the consent of the Central Government certified in writing by a Secretary to the Government.

Position in Indian Law: The above principle of English law are fully applicable to Indian Law also. Section 86 of the Code of Civil Procedure lays down that no Ruler of a sovereign State may be sued in any Court otherwise competent to try the suit except with the consent of the Central Government certified in writing by a Secretary to that Government.

3. Ambassadors

Ambassadors cannot be sued for torts either in the Courts of England or in the Courts of India on principles of international policy. The immunity extends also to the family of such minister or Ambassador. In India the provision of Section 86 of the Code of Civil Procedure apply in the case of Ambassador also. The remedy against an Ambassador is to move one’s own Government to induce the Government of that country to take an action against the ambassador and his staff, which they may think fit to satisfy the Government which complains.

4. Public Officials: Public officials cannot be sued in their representative capacity for torts committed by them or their subordinates. All the high officials have a delegated power from the Crown. Where an act is done by officer of Government in the exercise of powers which cannot be exercised by sovereign power, no action lies against the Government upon the principle of respondent superior. A suit may lie against the Government for torts committed by it in connection with a private undertaking or an undertaking not in exercise of sovereign power. The plea of the respondent superior does not extend to illegal act even if done in good faith.

A suit for damages lies against Union for torts committed by its servant in connection with a private undertaking or an undertaking not in exercise of sovereign powers.

5. Infants

An ‘infant’ means in law a person who is below eighteen years of age in India and twenty-one years in England. It means persons who from extreme youth or unsoundness of mind are mentally incapable of contriving fraud or malice. The first rule as to liability of minors for their torts is this that ordinary infancy per se is no defence to an action for tort. Infants are liable for wrongs or omission as well as for wrongs of commission. Thus, infants are held liable for assault, false imprisonment, libel, slander, seduction, trespass, wrongful detention of goods, fraud, embezzling money and for nuisances and injuries to their neighbours, arising from the negligent use and management of their property.

Exception to above rule: But where intention, knowledge, malice or some other condition of the mind of the wrongdoer forms an essential ingredient of liability (e.g., deceit) extreme youth is a good defence. If, however, there is a sufficient maturity of understanding in an infant, he
will be liable.

Rules where child’s act amounts to torts or breach of contract:
It is however, possible that the act of an infant may amount either to a tort or a breach of contract.

Parent’s Liability for Child’s Tort: As a general rule parents are not liable for the tort committed by their children. But the circumstances of case may be such as to constitute the child, the servant for the time being of the father in which case the father may be liable as a master for the acts for the neglect and default of his child, as when he sends out his son on some business with his cart and horse, and the son causes injury by negligence in driving.

6. Lunatics

Lunacy, like infancy is not a good defence in an action for a tort except in case where intention, knowledge, malice or any other mental condition is essential to create a tortious liability, and he lunatic may be found incapable of having such mental condition or intention or knowledge sufficient to impose liability upon him. A person sane enough to be accountable to the criminal law would probably be liable for any kind of tort. Winfield has quoted three reasons for fixing liability on the lunatics:

(i) where one or two innocent persons must bear loss, the loss must fall on him who did the act;

(ii) public policy which requires the rule in order to include his relative to keep the lunatic under restraint and also in order to prevent tort-feasors from feigning insanity; and

(iii) the lunatic must bear the loss occasioned by his torts, as he bears his other misfortunes.

7. Trade Union

A trade union may be registered under the Indian Trade Union Act, 1926, or it may not be so registered. If it is registered under the Act, it may be sued in its registered name and if it is not so registered, any one or more of its members may be sued on behalf of all members of the Union.

A registered trade union and ists officers and members are exempted from liability for certain torts. It has thus been provided by Section 18 of the Indian Trade Unions Act that no suit, shall lie against them or any of them in respect of any act done in contemplation or furtherance of a trade dispute to which a member of the trade union was a party on the ground only that such act induces some other person to break a contract of employment, or that it is an 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 labour as he wills.

8. Married Women: Position in English Law

At Common Law a married woman alone, could not be sued in tort but she could be sued along with her husband in an action for tort on the principle that a married woman could not acquire or own property after her marriage, and her property, if she had any, before marriage, vested in the husband after marriage and therefore, she having no property of her own, could not be liable in torts. But under the Married Women’s Property Act, 1882, she should be sued alone. Any damages recovered against her were payable out of her separate property. Further, by the Law Reforms (Married Women and Tort-Feasors) Act, 1935, a married woman may be sued in tort, except by her husband, and she could own and acquire property in her own name and she is subject to the law as if she were a “feme sole“. So now she alone is liable, her husband need not be made a party.

Position in Indian Law: In India the wife alone was liable, and her husband was not a necessary party, as he was not liable for wife’s torts. Under the Married Women’s Property Act of 1874, a married woman to whom the Act applies may sue or be sued in tort just as a ‘feme sole‘; and damages recovered by her become her separate property and any damages recovered against her are payable out of her separate property (Section 7). But even under their personal laws, which are applicable to them, a wife is considered as a separate person from the husband, and she can sue or be sued in respect of a tort committed against or by her. The husband is neither a proper nor a necessary party to the suit. Under the Indian Law the husband is not liable for tort of his wife.

Leave a Comment