General Principles of Tortious Liability

The three general ingredients are (i) wrongful act or omission, (ii) legal damage, and (iii) a remedy. Within this, the courts also examine fault (intention, negligence), causation and remoteness, and defences. Liability may be:

• Fault-based (intention or negligence), the general rule.

• Strict liability (Rylands v Fletcher), where fault need not be proved but exceptions exist.

• Absolute liability (M.C. Mehta), no exceptions.

• Vicarious liability: one person liable for the tort of another.

An act is a positive wrong (battery, defamation). An omission is liable only when there is a legal duty to act (e.g., occupier's duty to make premises safe, parent's duty to child, a doctor's duty to a patient, a person who creates a danger). Mere moral duty (rescuing a stranger) generally gives no tort liability in English law, although rescuers who are injured can sue the wrongdoer (Haynes v Harwood).

• Actionable per se: trespass to person/land/goods, libel. Proof of loss is unnecessary.

• Actionable only on proof of special damage: negligence, public nuisance (special damage to plaintiff), slander (subject to exceptions), malicious prosecution.

• The State: liable under Article 300 of the Constitution, subject to the sovereign function distinction (Topic 7).

• Corporations: may sue and be sued; liable for torts committed by employees in the course of business (Lennard's Carrying Co v Asiatic Petroleum, alter-ego theory; Citizens Life Assurance Co v Brown where the company was held liable for libel).

• Minors: liable for torts, but the court considers age and capacity to form intent (e.g., Walmsley v Humenick, young child not liable for intentional tort).

• Persons of unsound mind: liable if mental state is not such as to exclude the mental element (Morriss v Marsden: an insane person who understood the nature of the act was liable).

• Husband and wife: in India married persons can sue each other as separate legal persons; interspousal immunity is not recognised in general.

• Trade unions: liable (Taff Vale Railway v ASRS), although later statute gave partial immunity in England.

• Foreign sovereigns and diplomats: immunity, subject to Section 86, CPC and the Diplomatic Relations (Vienna Convention) Act 1972.

• Joint tortfeasors: persons who act together in furtherance of a common design, or whose independent acts produce one damage, are jointly and severally liable. The plaintiff may sue any or all; release of one does not release others (in India, under Contribution rules, Merryweather v Nixan (no contribution) has been displaced in many jurisdictions; in exams, remember the classical rule and the modern right to contribution).

Meaning: liability of one person for the wrong of another due to their relationship. Latin maxims: qui facit per alium facit per se (he who acts through another acts himself) and respondeat superior (let the master answer).

Master and servant

• A master is liable for torts committed by the servant in the course of employment.

• Tests of a servant: control test, organisation/integration test, multiple/economic reality test. A servant is under control as to how work is done; an independent contractor only as to what is done.

• Course of employment: acts authorised, or unauthorised mode of doing an authorised act (Limpus v London General Omnibus Co, driver racing to obstruct a rival bus; master liable). A prohibited act (not merely prohibited mode) is outside employment (Conway v Wimpey, driver giving lift against orders; Twine v Beans Express). But Rose v Plenty (milk float boy; master liable because the act was for the master's business despite prohibition).

• Acts of fraud/crime: Lloyd v Grace, Smith & Co (solicitor's managing clerk defrauded client; firm liable); Century Insurance v Northern Ireland Road Transport Board (tanker driver's smoking during petrol delivery; liable); Poland v Parr (force in defence of master's property). In modern English law the test is a close connection with the employment (Lister v Hesley Hall, 2001; Various Claimants v Catholic Child Welfare Society; Mohamud v Morrisons).

• Loaned servants: Mersey Docks and Harbour Board v Coggins & Griffith — liability lies with the person having control at the time.

Other relationships

• Principal and agent: principal liable for agent's torts within authority.

• Partners: liable jointly and severally for torts committed in the course of firm's business (Section 26–27, Indian Partnership Act 1932).

• Independent contractor: employer generally not liable, with exceptions: negligence in selecting contractor; non-delegable duties (e.g., hazardous operations, duty to maintain highway, strict liability torts); employer authorising the wrongful act; ultra-hazardous work (Bower v Peate).

Indian illustrations: State of Rajasthan v Vidhyawati (vicarious liability of the State for the negligent driving of a government driver); Saheli v Commissioner of Police; Municipal Corporation of Delhi v Subhagwanti.

Rationale (memory): (i) deep pocket / better ability to pay, (ii) control over employee, (iii) the master benefits from the employee's work, (iv) deterrence and risk distribution through insurance.

Exceptional cases where liability arises regardless of fault: Rylands v Fletcher (1868), M.C. Mehta v UOI (1987) absolute liability for hazardous industries, Public Liability Insurance Act 1991, NGT Act 2010, Motor Vehicles Act (no-fault compensation), Employees' Compensation Act 1923, and CPA 2019 product liability.

Indian courts have recognised a public law remedy of monetary compensation for violations of fundamental rights, particularly Article 21 (life and personal liberty), enforceable by the Supreme Court (Art. 32) and High Courts (Art. 226). Key cases: Rudul Sah v State of Bihar (1983), Bhim Singh v State of J&K (1985), Sebastian Hongray v UOI (1984), Nilabati Behera v State of Orissa (1993), D.K. Basu v State of West Bengal (1997). The Supreme Court holds that sovereign immunity is not a defence in public law proceedings, and that the compensation is without prejudice to a private law suit in tort.

Expect: matching vicarious liability cases (Limpus, Lloyd v Grace Smith, Century Insurance, Rose v Plenty, Mersey Docks); identifying the correct test of servant; capacity of parties; exceptions to non-liability for independent contractors; the maxims respondeat superior, qui facit per alium facit per se; assertion-reason on constitutional torts.