LAW OF TORTS

UNIT-II

GENERAL DEFENCES AGAINST TORTIOUS LIABILITY

An act, under certain conditions, may lose its wrongful character,

despite being considered a wrong in the absence of such circumstances. In

such cases, the act is deemed to be justified or excused. These justifications

or excuses for acts that would otherwise constitute torts can be categorized

into two groups. First, there are conditions that excuse or justify only

specific torts, without extending to others; for example, the defences of truth

and fair comment are applicable solely to the tort of defamation. The second

category encompasses conditions that apply universally to all torts. An

example of this is the defence of consent, which may excuse liability in any

tort. Thus, this second category represents "rules of immunity that limit the

rules of liability" more broadly, commonly referred to as general exceptions.

A „defence‟ in tort law serves as a basis for the defendant to evade or

reduce liability. Defences in tort cases are generally classified as either:

1) General defences, or

2) Special defences.

„General defences‟ are those that apply regardless of the specific

nature of the tort and can be invoked in all types of tort actions. Conversely,

„special defences‟ are those defences that are contingent upon the specific
nature of the tort in question, being available only in connection with that

particular tort.

The key general exceptions or justifications in tort law include:

1. Consent, or Leave and Licence (Volenti Non Fit Injuria),

2. Inevitable accident

3. Act of God (Vis Major)

4. Necessity

5. Private defence

6. Mistake

7. Statutory authority

8. Plaintiff the wrongdoer (Ex turpi causa non oritur actio)

 1. Volenti Non Fit Injuria

(Consent or Leave and Licence)

The maxim Volenti Non Fit Injuria rests on principles of common

sense. If one invites another to their home, for instance, they cannot sue for

trespass, as entry was consented to. However, if the guest ventures into a

restricted area, such as a bedroom, without permission, liability for trespass

arises due to unauthorized entry. Similarly, a postman delivering a letter

enters with implied consent and is not liable for trespass, but if he exceeds

permissible boundaries, he could be sued.

In Dr. Laxman Balkrishan v. Trimbak Bapu, the Supreme Court

ruled that a doctor may still be liable for negligence despite a patient‟s

consent to a procedure. Here, a patient‟s death due to inadequate

anaesthesia care demonstrated that, even with consent, liability arises if due

care is lacking.

Essential Conditions of the Doctrine of Volenti Non Fit Injuria

For this doctrine to apply, several key conditions must be satisfied:

 Expressed or Implied Consent: Consent may be given either explicitly

or implicitly. Expressed consent occurs when a person clearly agrees to

the act through verbal or written communication, leaving no ambiguity

regarding their approval. Implied consent, on the other hand, is inferred

from the person's behaviour, gestures, or circumstances, suggesting a

willingness to accept the risk. For example, in a sports event, players

 implicitly consent to certain inherent risks, such as accidental collisions,

as part of the game. However, consent, whether expressed or implied,

must be unambiguous, with a clear indication that the individual is

aware of and accepts the associated risks. If the approval is vague or

open to interpretation, it may not meet the legal threshold for valid

consent.

In Padmavati v. Dugganaika, the driver of the jeep took the jeep to fill

petrol in it. Two strangers took a lift in the jeep. The jeep got toppled due to

some problem in the right wheel. The two strangers who took lift were

thrown out of the jeep and they suffered some injuries leading to the death

of one person.

The conclusions which came out of this case are:

• The master of the driver could not be made liable as it was a case of a

sheer accident and the strangers had voluntarily got into the vehicle.

• The principle of Volenti Non Fit Injuria was not applicable here.

Thus, to invoke Volenti Non Fit Injuria, two elements must be present:

1. Awareness of the risk, and

2. Voluntary acceptance of the risk.

 Consent Must Be Freely Given: Consent must be given voluntarily and

not influenced by coercion, fraud, misrepresentation, or any factor

undermining free will. Consent must be given voluntarily, without any

 fraud, coercion, or compulsion. If a person‟s agreement to the risk is

obtained under duress or deception, it does not qualify as free consent

and cannot be used as a defence. The plaintiff must have willingly and

knowingly accepted the risk associated with the defendant's act.

Furthermore, the defendant‟s actions must align precisely with what the

plaintiff consented to; any deviation may render the consent invalid. For

instance, in cases where a plaintiff consents to a minor medical

procedure but the doctor performs a more invasive one, this would

exceed the scope of consent, making the defence inapplicable.

In White v. Blackmore, the plaintiff‟s husband paid for his family‟s

admission to a car race. A car accidentally hit the safety ropes, catapulting

the husband twenty feet, leading to his death. The court held that, because

he was unaware of the risk posed by faulty rope installation, he had not

willingly accepted this risk.

 Knowledge of Risk Does Not Equal Consent: Knowledge of a risk does

not imply consent to accept it. The maxim is Volenti Non Fit Injuria, not

scientia non fit injuria—mere awareness of danger does not signify

consent to bear it.

In Smith v. Baker, the plaintiff worked under a crane transporting

heavy stones, posing a risk he and his employers knew. When a stone fell

and injured him, the House of Lords found the defendant liable, as the

plaintiff‟s awareness of the danger did not equate to consent to the risk.
Exceptions to Volenti Non Fit Injuria

Few notable exceptions exist where Volenti Non Fit Injuria does not

apply:

 Consent Cannot Be Given to an Illegal Act: Consent cannot justify an

unlawful act or one prohibited by law. For example, consenting to

activities like fistfighting or dueling does not legalize such actions, which

remain actionable.

In R v. Williams, a singing coach deceived his pupil into consenting

to sexual intercourse by falsely claiming that the act would open her air

passages to improve her singing. The court held that her consent was

invalid as it was obtained through fraud, establishing the principle that

consent vitiated by deception, particularly when the nature of the act is

misrepresented, is not genuine consent. This case underscores that valid

consent in both criminal and tort law must be fully informed and free from

deceit, aligning with the doctrine that consent obtained by unfair means

does not constitute a defence.

 Rescue Cases: The assumption of risk doctrine does not apply if a

person faces danger, even of death, in a rescue attempt spurred by the

defendant‟s wrongful conduct. In such cases, the plaintiff‟s voluntary

risk-taking is not a defence for the defendant, even if the endangered

party is a stranger.
 Courts tend to refrain from scrutinizing rescuers' actions, and the

defence of Volenti Non Fit Injuria does not apply if:

 The rescuer was saving persons or property endangered by the

defendant‟s negligence,

 The rescuer acted under a legal, social, or moral duty,

 The rescuer‟s actions were reasonable and directly resulted from the

defendant‟s negligence.

In Haynes v. Harwood, the defendant left horses unattended on a busy

street, and they bolted when a child threw a stone. A constable, attempting

to protect bystanders, sustained severe injuries while stopping the horses.

The court held the defendant liable due to gross negligence, and the defence

of Volenti Non Fit Injuria was deemed inapplicable in rescue scenarios.

 Negligence - In cases of negligence, a defendant is liable if their careless

actions result in injury to the plaintiff, allowing the plaintiff to claim

compensation.

 Statutory Duty - This involves obligations set by law, such as

requirements for factory owners to safeguard dangerous machinery. If a

statutory duty is breached, the defendant cannot claim that the plaintiff

consented to the risk, as statutory obligations are mandatory and

intended to protect individuals from harm, regardless of consent.

 2. Inevitable Accident

Recent legal authorities uniformly support the notion that an

"inevitable accident" negates liability. An inevitable accident refers to an

incident that could not have been prevented even with the exercise of

ordinary care, caution, and skill. It is characterized as an accident that is

physically unavoidable and does not apply to situations where either party

had the opportunity to avert the incident. Specifically, it encompasses

events that the defendant could not have avoided despite using the

necessary degree and kind of care appropriate to the circumstances they

faced. Thus, if a lawful act is performed with due care, and damage occurs

due to an unavoidable cause, this damage does not establish grounds for a

legal claim. As articulated in legal principles, individuals must guard against

reasonable probabilities but are not obligated to protect against fantastical

possibilities.

In the case of A. Krishna Patra v. Orissa State Electricity Board,

the court elaborated on the concept of an inevitable accident, defining it as

“an event that occurs not only without the individual's intent but also despite

all reasonable efforts made by them to prevent it”.

In Brown v. Kendall, a dog owned by the plaintiff engaged in a fight

with a dog owned by the defendant. While the defendant attempted to

separate the dogs using a stick, he inadvertently struck the plaintiff in the

eye, resulting in injury. The court ruled that the defendant was not liable as

he had exercised reasonable care in the circumstances.

 In Stanley v. Powell, the plaintiff, engaged in carrying cartridges

during a pheasant shoot, was injured by a shot fired by the defendant. The

shot ricocheted off a tree before striking the plaintiff. The court held that the

defendant was not liable, as the incident was deemed an inevitable accident.

In National Coal Board v. Evans, a colliery company had buried an

electric cable on land owned by the county council. During excavation, a

contractor inadvertently damaged the cable, which was unknown to both

the council and the contractor. The court ruled that neither party was liable

for the damage to the cable, accepting the defence of inevitable accident due

to the lack of knowledge regarding the cable's presence.

In Fardon v. Harcourt-Rivington, Mr. Fardon was injured by glass

from a car window broken by a dog left inside by its owner, Mr. Harcourt-

Rivington. The court held that Mr. Harcourt-Rivington was not liable, as the

injury resulted from an unforeseeable event. Lord Justice Greer reasoned

that, while vehicle owners owe a duty of care, this duty does not extend to

rare or unexpected incidents that a reasonable person could not anticipate.

This case thus reinforces that negligence requires foreseeable harm, not

merely any harm caused.

Limitations of the Defence

The defence of inevitable accident has notable limitations. It is not

applicable in cases of trespass or negligence. Additionally, under the

established rule of Strict Liability in Rylands v. Fletcher, a defendant may

be held liable even if they have exercised reasonable care. Furthermore, this

defence does not apply in situations governed by strict liability.

Distinction Between "Inevitable Accident" and "Act of God"

Dr. Winfield distinguishes between "inevitable accident" and "act of

God," positing that the latter concept is more archaic and straightforward,

making it easier for laypersons to comprehend. Events such as a falling tree,

lightning strike, tornado, or flood present clear and dramatic occurrences

that a lay observer might readily accept as justifications for harm without

further deliberation. In contrast, determining whether an injury resulting

from an incident such as a runaway horse was inevitable requires a deeper

analysis—specifically, whether a cautious driver would have allowed the

horse to escape.

The distinction between these two concepts lies in their causal origins.

"Act of God" pertains to extraordinary events resulting from natural forces,

whereas "inevitable accident" can arise from either natural forces or human

actions. Cases of "inevitable accident" can be categorized as:

 Events caused solely by natural forces, independent of human agency,

which fall under the definition of "act of God."

 Events that originate, in whole or in part, from human agency**, whether

through action or inaction, which are classified as "inevitable accidents"

or "unavoidable accidents."

An "act of God" is characterized by extraordinary occurrences due to

natural causes that are beyond human intervention and cannot be averted
through foresight and care. For instance, a fire ignited by lightning would

qualify as an act of God. Conversely, an accidental fire that may not result

from human action does not qualify as such.

These cases collectively demonstrate the distinction of the concept of

inevitable accident within tort law, highlighting its significance in

determining liability in various contexts.

 3. Act of God (Vis Major)

The doctrine of Act of God or Vis Major serves as a defence in tort law,

absolving a defendant from liability when damage results solely from natural

forces that are unforeseeable, irresistible, and beyond human control. This

principle rests on the notion that certain natural phenomena are so

unpredictable and overwhelming that no amount of human skill or caution

can guard against them.

To successfully invoke this defence, following conditions need to be

fulfilled:

 Externality: The harm must be caused exclusively by natural forces,

with no human intervention contributing to the event. This requirement

ensures that the incident is entirely beyond human control and is not

linked to any action or omission on the part of the defendant. Natural

events such as earthquakes, floods, hurricanes, or volcanic eruptions

exemplify situations that may satisfy this condition.

 Unpredictability: The event must be extraordinary and not one that

could have been foreseen or prevented. Routine or predictable natural

occurrences, which individuals or entities could reasonably anticipate

and guard against, do not qualify as Acts of God. For instance, seasonal

rainfall would not typically fulfil this condition, as proper precautions can

be taken to manage its effects. However, unprecedented or record-

breaking natural disasters, like an unexpected super storm, might meet

this criterion because they exceed normal expectations.

 Irresistibility: The incident must be unavoidable despite all reasonable

measures and precautions that could have been taken. This criterion

requires that the defendant demonstrate they exercised due diligence and

caution to prevent harm, but the event was so powerful that it could not

have been resisted. For example, if a bridge is swept away by a flood

despite robust construction standards being met, the flood may be

considered an Act of God, provided it was an unusually severe flood that

was truly uncontrollable.

The applicability of the Act of God defence is not automatic; courts

scrutinize whether the specific natural event was indeed unforeseeable and

irresistible. As scientific understanding and technological advancements

improve, many natural risks become more predictable and manageable,

thus narrowing the defence‟s scope. For example, early warning systems for

hurricanes or engineered structures to resist earthquakes reduce the

likelihood that certain natural disasters qualify as Acts of God.

In Ramalinga Nadar v. Narayana Reddiar, the Kerala High Court

ruled that damage caused by criminal activities of an unruly mob did not

qualify as an Act of God, as human actions were involved.

In Saraswati Parabhai v. Grid Corporation of Orissa, an electric

pole fell during a storm, causing the death of a person due to live wire

contact. The Orissa High Court rejected the Act of God defence, holding that

the Grid Corporation had a duty to secure the poles in anticipation of bad
weather, as storms are foreseeable, and adequate precautions should have

been taken.

In Nicholas v. Marshland, the defendant constructed artificial lakes

that were well-maintained under normal circumstances. However, an

extraordinary rainfall caused the banks to burst, flooding nearby properties.

Here, the court accepted the Act of God defence, as the rainfall was

unusually severe and unforeseeable, and the defendant was not found

negligent.

In Kallulal and Anr. v. Hemchand and Ors., the Madhya Pradesh

High Court held the defendant liable for the deaths of the plaintiff's children

after a wall on the defendant's property collapsed during the rainy season.

The defendant claimed the collapse was an "act of God," but the court

rejected this defence, stating that the rainfall was not extraordinary given

the area's monsoon climate. The court found the defendant negligent, noting

that he should have repaired the wall, knowing it was in poor condition.

This case established that an act of God defence does not apply if a natural

event could have been reasonably anticipated and prevented, influencing

Indian tort law on liability in natural disaster cases.

In each of these cases, the facts were scrutinized to determine if the

defence of Act of God applied. The courts tend to limit the defence's

application, especially as advances in knowledge make it increasingly

possible to predict and guard against many natural events.

 4. Plaintiff The Wrongdoer

(Ex turpi causa non oritur action)

The law allows a defendant to raise a defence when the plaintiff‟s own

actions were illegal or wrongful, relying on the Latin maxim ex turpi causa

non oritur actio, meaning "no action arises from an immoral cause." Under

this maxim, a plaintiff‟s unlawful or immoral act can provide a valid defence

in tort law, as well as in areas like contract, restitution, property, and

trusts. When applied successfully, this principle serves as a complete bar to

recovery, precluding any claim arising from the plaintiff's misconduct. This

defence is often referred to as the "illegality defence," though it encompasses

both illegal and immoral conduct. Although invoked infrequently, the

defence has been a subject of considerable debate due to its implications on

justice and fairness.

The principle of ex turpi causa non oritur actio was famously

articulated by Lord Mansfield in Holman v. Johnson (1775), where he

emphasized that the court will not assist a plaintiff whose cause of action is

founded on an immoral or illegal act. Lord Mansfield explained that this

defence is not established to benefit the defendant, but rather to uphold

public policy by not allowing the legal system to support wrongful conduct.

Since then, the maxim has been applied sparingly but remains influential in

preventing claims that arise directly from wrongful or unlawful acts by the

plaintiff, thereby ensuring that the law does not condone or reward immoral

behavior. This principle continues to serve as a critical tool in balancing

justice, focusing not on the severity of the defendant‟s actions but on the

origin of the plaintiff‟s claim itself.

Essential Elements

 Plaintiff’s Conduct Must Be Illegal or Immoral - The plaintiff‟s conduct

must involve an unlawful or immoral act. This means that the plaintiff‟s

claim arises from an action that violates the law or is contrary to public

morals. Courts examine whether the plaintiff's act constitutes a

significant legal or moral breach rather than a minor fault or oversight.

 Close Connection Between Plaintiff’s Conduct and the Claim- There

must be a close or direct link between the plaintiff‟s illegal or immoral act

and the claim they are bringing. The defence does not apply simply

because the plaintiff was involved in wrongdoing at some point; the illegal

conduct must be directly related to the harm or loss that forms the basis

of the claim

 Plaintiff’s Claim Must Depend on the Illegal or Immoral Act - The

plaintiff‟s ability to make a claim must rely upon the illegal or immoral

act. If the plaintiff can prove their case without relying on their wrongful

conduct, the defence may not apply.

 Public Policy Consideration - The court must consider public policy

implications in deciding whether to apply the defence. The purpose of the

defence is not to shield the defendant from liability but to ensure that the

court does not appear to condone or reward illegal behaviour. Thus,

courts weigh the broader impact of allowing or denying the claim. In

 cases where the court feels that enforcing the claim would conflict with

societal interests or moral standards, the defence is more likely to apply.

 Proportionality and Fairness - Modern courts also examine the

proportionality and fairness of applying the defence. If denying the claim

would be overly harsh or produce an unjust outcome, courts may

hesitate to enforce the defence. In cases where the plaintiff‟s fault is

minimal or incidental, the courts may limit the defence‟s application to

ensure justice.

In Ashton v. Turner, the claimant was injured when the defendant,

with whom he had just committed a burglary, crashed the car while

attempting to escape. The defendant, who had been drinking, drove

negligently, causing the accident. Justice Ewbank dismissed the claim,

ruling that public policy bars the recognition of a duty of care between

participants in a crime. Additionally, the judge noted that the claimant had

voluntarily assumed the risk by knowingly entering the car under dangerous

circumstances. This case reinforced the principle that claims arising from

criminal acts are barred under the doctrine of ex turpi causa non oritur

actio.

In Pitts v Hunt, the claimant, Pitts, was injured while riding as a

passenger on a motorbike driven recklessly by his friend, Hunt, who was

unlicensed, uninsured, and intoxicated. Both had been drinking, and Pitts

encouraged Hunt‟s reckless driving. Following a crash that killed Hunt and

severely injured Pitts, Pitts sued Hunt's estate for damages. The court

dismissed the claim, holding that the illegal and dangerous nature of their
conduct precluded a duty of care, citing public policy and the ex turpi causa

non oritur actio defence. This case established that courts will not enforce

claims arising from joint criminal activity that involves reckless disregard for

safety.

In Ponting v. Noakes, the central issue revolved around the liability

for damages incurred when the plaintiff's horse trespassed onto the

defendant's property and ingested poisonous leaves. The plaintiff, Ponting,

sought compensation from the defendant, Noakes, arguing that the

poisonous foliage caused harm to his horse. However, the court ruled that

the damages resulted from Ponting's own negligence, as he failed to

adequately confine his horse and allowed it to wander onto Noakes's land.

The court emphasized the principle of personal responsibility, concluding

that a property owner is not liable for damages caused by a trespassing

animal when the owner of the animal has not taken reasonable precautions

to prevent such trespass. Consequently, Noakes was not held liable for the

incident, reinforcing the idea that property owners have a right to expect

others to manage their animals responsibly.

 Private Defence

The principle of private defence acknowledges that every individual

possesses the right to protect their own life and property. This right,

however, is not restricted solely to self-defence or the defence of one‟s

immediate family members but extends to the protection of others and their

property when necessary. Under tort law, actions taken in the exercise of

this right, provided they meet certain conditions, do not incur tortious

liability.

For the defence of private defence to be applicable, following essential

conditions must be satisfied:

 Existence of a Real and Imminent Threat: A legitimate and immediate

danger to the defendant or their property must be present. A commonly

cited example is that of a ferocious dog barking aggressively. If the dog

turns and begins to walk away, any retaliatory action by the defendant,

such as throwing a stone, would not be justifiable under the defence of

private defence. This is because, at that point, the threat has ceased,

making the defendant‟s response both excessive and unjustified.

 Proportionality of Force: The force used in defence must be reasonable

and proportionate to the threat faced. Where excessive force is applied,

the defendant may lose the right to this defence. The precedent of

Ramanuja Mudali v. M. Gangan provides a notable illustration. In this

case, the defendant, a landowner, installed live electric wires around his

property to prevent trespassers. However, the absence of any visible

 warning about the presence of these electrified wires resulted in the

plaintiff suffering an electric shock upon crossing the property at night.

The court held the defendant liable for the injuries, as the force used was

deemed excessive and unreasonable for the intended purpose of property

protection.

In essence, while tort law supports the use of reasonable force in self-

defence or in defence of property, it imposes limits to prevent abuses under

this doctrine. The right to private defence cannot serve as a blanket

justification for acts that exceed necessity or involve disproportionate

responses to threats, as such actions would give rise to liability.

The legal principles governing the use of force in self-defence and the

protection of property are illustrated through several significant cases,

which demonstrate the necessity of proportionality and the presence of an

imminent threat.

Bird v. Holbrook exemplifies the misuse of force in the context of

property protection. In this case, the defendant installed spring guns within

the confines of his garden to deter trespassers. However, he failed to provide

any form of warning signage regarding the presence of such dangerous

mechanisms. The incident escalated when a child, unaware of the potential

danger, was severely injured due to the automatic discharge of the spring

guns. The court ruled against the defendant, asserting that the use of spring

guns was neither proportional to the perceived danger nor reasonable under

the circumstances. This case underscores the principle that while property
owners have the right to protect their premises, the means employed must

be appropriate to the threat posed, and excessive measures that could cause

harm to innocent parties are impermissible.

In Sitaram v. Jaswant Singh, the courts further examined the issue

of excessive force. Here, the defendant, acting as the occupier of a property,

inflicted an axe wound on a trespasser, severely injuring a vital part of the

latter‟s body. The Nagpur High Court ruled that the defendant's response

was excessive and disproportionate to the circumstances. The court

highlighted that the plaintiff was unarmed and posed no immediate threat,

whereas the defendant resorted to a lethal weapon. Consequently, the court

dismissed the defendant's plea, reinforcing the notion that any defensive

action must align with the level of threat encountered.

The case of Morris v. Nugent introduces another critical aspect of

self-defence: the necessity of an actual threat at the moment of defensive

action. In this instance, the defendant was bitten by a dog while passing by

a house. Upon turning to confront the dog, which had already retreated, the

defendant shot the animal. The court determined that the defendant's action

was unjustified since there was no immediate threat at the time he

discharged the firearm. This case illustrates the principle that self-defense

claims can only be substantiated if the individual genuinely faces an

imminent threat, underscoring the importance of a proportional response to

actual danger.
 NECESSITY

The defence of necessity is a recognized legal principle closely related

to the defence of private defence. It provides individuals or the state with a

privilege to infringe upon another‟s property rights or commit acts that

would otherwise be deemed illegal, to prevent greater harm or serve a higher

purpose. The essence of this defence lies in the maxim "Salus Populi

Suprema Lex", meaning the welfare of the people is the supreme law.

Additionally, the Latin phrase “necessitas inducit privilegium quod jura

private”, translating to necessity induces a privilege because of a

private right, underscores the rationale behind this defence.

Essentials of the Defence of Necessity

For a defendant to successfully rely on the defence of necessity, the

following elements must be proven:

 Significant Risk of Harm: The defendant must act in response to a

significant and imminent threat. This risk should be:

 Substantial and real.

 Immediate, leaving no reasonable opportunity for alternative

solutions.

 Proportionality of the Act: The harm caused by the defendant's act

must not exceed the harm avoided. This requires:

 Balancing the damages inflicted against the benefits achieved.

 Ensuring the action taken was reasonable under the circumstances.

 Justification of the Act: The defendant must show that the act was

done:

 In good faith, with the sole aim of avoiding harm.

 Without any malicious intent or ulterior motive.

 Unavoidable Circumstances: The defendant's actions should be deemed

the only feasible means to avert the impending harm. The absence of

reasonable alternatives strengthens the justification for the act.

Practical Examples of Necessity in Tort Law

 Emergency Situations: If a person damages a neighbour‟s property to

create a firebreak and stop the spread of a wildfire, they may invoke the

defence of necessity.

 Medical Necessity: Administering emergency medical treatment to an

unconscious patient without their consent may be justified under

necessity.

 Protection of Life or Property: Entering someone‟s property to rescue a

child or animal in danger would fall under this defence.

Limitations

 The defence cannot be invoked for actions taken out of negligence or

malice.

 It does not apply if the harm caused outweighs the harm avoided.

 Necessity does not grant blanket immunity from liability but provides

a contextual justification.
Illustration - If A, upon seeing a small fire starting on a nearby field,

trespasses onto B's farm to extinguish the fire, A can invoke the defence of

necessity. In this instance, the trespass is justified because it prevents a

greater harm — the potential spread of the fire. Hence, A would not be liable

for the trespass.

In Surocco v. Geary, during a period of devastating wildfires in San

Francisco, Mayor Geary ordered the demolition of Surocco's house using

dynamite to prevent the fire from spreading further into the city. At the time,

Surocco was attempting to salvage his belongings from the house. Surocco

sued Geary, arguing that the destruction of his house prevented him from

saving more possessions.

The court upheld the defence of public necessity, reasoning that the

destruction of Surocco‟s house averted a much greater disaster. It concluded

that the act was necessary to prevent further damage to the neighborhood,

outweighing Surocco's individual losses.

Significance: This case establishes that actions taken under the public

necessity to safeguard the community can justify the interference with

individual property rights, provided the harm prevented significantly

outweighs the harm caused.

In Leigh v. Gladstone case, a striking labourer on hunger strike was

forcibly fed to save her life. The court recognized necessity as a valid

defence, justifying the forcible feeding on the grounds that it was essential to

preserve life.
Significance: This case highlights the principle of necessity in the context of

personal rights, affirming that actions that might otherwise amount to

battery can be justified if undertaken to save a life or prevent serious harm.

In Cope v. Sharpe, the defendant entered the plaintiff‟s land to prevent

the spread of a fire, which was deemed necessary to save from imminent

danger. The court held that the defendant was not liable, as the entry onto

the land was necessary to prevent greater harm.

Significance: The case establishes that actions taken to avert an imminent

danger are protected under the defence of necessity.

In Olga Tellis & Ors v. Bombay Municipal Corporation, Slum

dwellers claimed necessity to justify encroachment on public spaces. The

defence of necessity was not accepted, as the encroachments were not

reasonably justified by an imminent danger. The court ordered the vacating

of public spaces.

Significance: The case demonstrates that the defence of necessity is not

available when the act complained of is not directly proportional to the

danger or is not immediately demanded by the emergency. Nevertheless, the

decision gained transnational significance as the court recognised the right

to livelihood as an inherent right protected under Art.21 of the Constitution

of India. Wherefore, the court directed the authorities to facilitate a dignified

evacuation in addition to an alternative shelter for the pavement dwellers.

 STATUTORY AUTHORITY / STATUTORY ACTS

The defence of statutory authority is based on the principle that

private rights must yield to the greater public good. Under this defence, acts

performed under the authority of a statute or legislative enactment are

shielded from liability in tort, even if they cause harm, provided they are

performed lawfully and within the scope of the statutory authority.

Philosophy behind the Principle

The philosophy underlying statutory authority is rooted in the concept

of balancing individual rights with the welfare of the community. When the

state or its representatives act in furtherance of public interest, they are

granted certain immunities to enable them to carry out their functions

effectively. This defence ensures that public authorities are not unduly

burdened by liabilities while performing lawful duties.

If the state constructs roads, dams, or bridges under statutory

authority, any incidental damage caused, such as diversion of a stream or

nuisance to nearby properties, is not actionable. However, the defence is

valid only if the act is performed without negligence or malice.

Types of Statutory Authority

 Absolute Statutory Authority - If the authority is absolute, immunity

extends to both the act itself and its natural consequences, as long as the

act is carried out reasonably and there is no alternative course of action.

 Example: The state may divert a stream, construct dams or bridges, or

cause nuisance in the surrounding area while acting under an absolute

statutory mandate. Such acts, even if they cause harm to private

individuals, are not actionable.

 Conditional Statutory Authority - If the authority is conditional,

immunity is available only if the public authority adheres to specific

conditions, whether express or implied, as laid down in the statute. Any

failure to fulfil these conditions may result in liability.

Key Principles

 The act must be expressly or impliedly authorized by a statute.

 The act must be performed within the scope of the authority granted.

 If the statutory authority is absolute, no liability arises for harm caused

by the act or its natural consequences, provided the act is reasonable.

 Negligence or improper execution of the statutory act nullifies the

immunity.

In Smith v. London and South Western Railway Co., the servants of

the railway company negligently left trimmings of grass near the railway

tracks. Sparks from the engine caused the heap of grass to catch fire, which

was spread by a heavy wind to the plaintiff's cottage, located 200 yards

away. The cottage was destroyed by the fire.

 The railway company was held liable because the damage resulted from

their negligence, and the statutory authority did not extend to negligent

acts. The case establishes that statutory authority does not provide

immunity if the act is performed negligently.

In Hammer Smith Rail Co. v. Brand case, the plaintiff‟s property

suffered depreciation in value due to noise, smoke, and vibrations caused by

the operation of trains on a railway constructed under statutory authority.

The plaintiff claimed damages for the interference with their property.

The court held that the depreciation in property value was not actionable

because the railway company was operating under statutory authority. The

noise, smoke, and vibrations were natural consequences of the authorized

activity, and the company had acted within the scope of its statutory powers

without negligence.

Significance: The case establishes that harm caused as a necessary and

unavoidable consequence of acts carried out under statutory authority, such

as noise or vibrations from a railway, is protected from liability.

In Bhogilal v. Municipality of Ahmedabad, municipality of

Ahmedabad demolished a wall of plaintiff under their statutory powers. The

roof of plaintiff also collapsed in the process. On the points raised by the

plaintiff, the court held that no suit will lie against the defendant, as they

have carried out their duty under statutory powers although the plaintiff

has suffered injury. The power (statutory) has been exercised with judgment

and caution.
Limits of the Defence

 Negligence: Immunity is not available if the act is carried out

negligently, as seen in Smith v. London and South Western Railway Co.

 Unreasonable Actions: The defence is invalid if the authority acts

unreasonably or without exploring alternative courses of action.

 Outside the Scope of Authority: Actions beyond the statutory

authority are not protected.

 MISTAKE

Mistake, as a concept in tort law, arises when a defendant acts under

a misapprehension or erroneous belief about the facts or law related to a

situation. However, the general rule is that mistake, whether of fact or law,

is not a valid defence in tort law. The rationale is that tort law seeks to

protect individuals from harm or interference with their rights, regardless of

the intentions or beliefs of the defendant. In most cases, the liability is

determined on the basis of the gravity of harm/damage/injury caused by

such mistake.

Types of Mistake

 Mistake of Law - “Ignorantia Juris Non Excusat” means that

ignorance of the law is no excuse/shall not be excusable. A mistake

of law refers to ignorance or misunderstanding of the legal implications of

an action. In both civil and criminal cases, mistake of law is no

defence, as it is presumed that every individual knows the law or has

access to legal advice.

Example: Entering another's property, believing one has a legal right to

do so, still constitutes trespass.

 Mistake of Fact - “Ignorantia Facti Excusat” means that ignorance

of fact may be excusable. A mistake of fact occurs when the defendant

acts under a false belief about the facts of a situation. While mistake of

fact may sometimes be a defence in criminal cases (if it negates intent), it

is not generally valid in tort law. In tort cases, the defendant is held
 liable even if the harmful act was committed under an honest mistake of

fact.

Principle: No General Defence in Tort for Mistake

In tort law, a mistake, whether of fact or law, is generally not a defence

when the defendant has violated the rights of another person. This is

because:

 Strict Liability: Tort law often operates under the principle of strict

liability, where intent or good faith is irrelevant.

 Protection of Rights: The focus is on protecting the rights of

individuals, not the state of mind of the defendant.

Examples include:

 Trespass: Entering another's land, believing it to be one's own,

constitutes trespass.

 Defamation: Publishing false statements about another, even in good

faith, is actionable.

 Conversion: Taking someone else's property under the mistaken

belief that it belongs to the defendant still constitutes conversion.

In Morrison v. Ritchie & Co., the defendant, a publisher, mistakenly

published an announcement stating that the plaintiff had given birth to

twins. The plaintiff, however, had only been married for two months.
 The court held the defendant liable for defamation, despite the

mistake and good faith. The publication falsely implied immorality on the

part of the plaintiff, damaging their reputation. Good faith or lack of intent

does not negate liability in defamation.

In Consolidated Company v. Curtis, an auctioneer mistakenly sold

goods belonging to the true owner, believing the goods were owned by the

customer who consigned them. The proceeds were paid to the customer. The

true owner sued the auctioneer for conversion.

The court held the auctioneer liable, ruling that the mistake of fact

was irrelevant. The auctioneer‟s honest belief in the customer‟s ownership

did not absolve him of liability for conversion.

Exceptions to the Rule

While the general rule holds that mistake is not a defence in tort law,

there are limited exceptions where the defendant may escape liability by

proving they acted under an honest but mistaken belief. For example:

Necessity: In certain situations, mistake may be excused if the act was

committed to prevent greater harm.

Absence of Negligence: If the defendant‟s mistake was reasonable and

arose despite taking all due care, courts may limit liability in specific

contexts.
 VICARIOUS LIABILITY

Introduction

As a general principle, individuals are liable for their own actions.

However, in specific circumstances, the law extends this liability to another

person who may not have directly committed the wrongful act but is

associated with the wrongdoer in a particular capacity. This legal concept is

known as vicarious liability, which refers to liability incurred by one person

for the acts of another.

The most common scenario of vicarious liability occurs in employer-

employee relationships, where an employer may be held accountable for the

wrongful acts of their employee committed in the course of employment. In

such cases, liability is joint and several, meaning the injured party may

pursue legal action against the actual wrongdoer (the employee) or their

employer (the principal), or both.

Salmond describes vicarious liability as follows:

"In general, a person is responsible only for his own acts, but there are

exceptional cases in which the law imposes on him vicarious responsibility for

the acts of another, however, blameless himself."

This doctrine plays a crucial role in ensuring justice for the injured party

while imposing a duty of care on individuals who exercise control or

authority over others.

Essentials of Vicarious Liability

For vicarious liability to be established, the following conditions must

be satisfied:

 Existence of a Particular Relationship - A specific legal relationship

must exist between the parties, such as:

 Master-Servant Relationship

 Principal-Agent Relationship

 Partners Relationship

 State

 The Wrong Must Be Related to the Relationship - The wrongful act

must be committed in connection with or as a direct consequence of the

relationship. This element ensures that the act occurred in furtherance of

the employment or duties assigned by the principal.

 The Act Must Be Committed in the Course of Employment - The

wrongful act should be performed while the employee is engaged in their

work duties. Acts performed during authorized tasks or activities

incidental to employment generally fall under this category. However, if

an employee acts entirely outside the scope of their duties (referred to as

a "frolic of their own"), the employer may not be held liable.

Principles Underpinning Vicarious Liability

The doctrine of vicarious liability is built on several principles that

highlight its rationale and legal foundations:

 Qui Facit Per Alium Facit Per Se - This Latin maxim translates to "He

who acts through another does the act himself." It underscores the notion

that actions performed by an employee on behalf of the employer are

deemed to be actions of the employer. Employers bear responsibility

because they derive the benefits of the employee's work and exercise

control over their actions.

 Respondent Superior - The phrase "Let the master answer" encapsulates

the idea that the superior (employer) should bear the consequences of

their subordinate's (employee's) actions. This principle is rooted in

fairness and accountability, as employers are better positioned to prevent

harm by supervising their employees. For example, an employer is

answerable for negligence committed by a truck driver while delivering

goods as part of their employment.

 Doctrine of Attribution - Under this principle, the actions of the

employee are attributed to the employer, who is deemed to have

committed the wrongful act. This attribution reflects the legal fiction that

the employer acted through their employee and, therefore, shares

responsibility for the consequences. For instance, if a truck driver

negligently causes an accident while performing a delivery task, the law

attributes the driver's negligence to the employer.

Illustrative Example

To better understand the application of vicarious liability, consider the

following case:

Scenario: A truck driven negligently by „B‟ causes injury to „A‟.

 Employer-Employee Relationship: B is employed as a truck driver by

C.

 Course of Employment: At the time of the accident, B was delivering

goods for C, a task within the scope of their employment.

 Legal Outcome: C, as the employer, will be held vicariously liable for the

negligence of B.

Rationale for Vicarious Liability

The doctrine of vicarious liability serves several important purposes:

1. Promotion of Responsibility: Employers are encouraged to supervise

their employees and ensure they act within the bounds of their duties.

2. Compensation for Victims: By holding employers liable, the doctrine

ensures that injured parties can secure compensation, even if the

employee is unable to pay.

3. Equitable Risk Distribution: Employers benefit from the work of

their employees and are therefore expected to bear the risks

associated with their actions.

 Master-Servant Relationship

The terms master and servant are used to describe a legal relationship

between an employer (master) and an employee (servant). This relationship

forms the foundation for the application of vicarious liability, which makes

the master responsible for the wrongful acts of the servant committed

during the course of their employment.

A master-servant agreement is essentially a contract of service, under

which the employer (master) exercises direct control over the actions and

manner of work performed by the employee (servant). If the master has the

authority to give orders to the servant, it is logical that the master should

also bear liability for the servant's actions while carrying out those orders.

The traditional norms described the same as „Master-Servant‟.

However, subsequent development in labour jurisprudence stressed the

significance of a dignified treatment. Thus, the same was developed as

„Employer-Employee‟ relationship.

Key Features/Basis of the Master-Servant Relationship

The legal relationship between a master and a servant is governed by

specific characteristics that distinguish it from other contractual

relationships, such as that between a business and an independent

contractor. The master-servant relationship forms the bedrock of the

contract of service, distinguishing it from other contractual engagements

such as contracts for service. This distinction plays a crucial role in

determining legal liability, particularly in cases of wrongful acts. By defining

the scope of control and responsibility, the law ensures clarity in resolving

disputes and establishing accountability within professional relationships.

The most significant features/basis of this relationship include:

 A legal relationship among an organisation (Master) and Employee

(Servant).

 Servant/Employee serving the „Interest‟ of the Master/Employer.

 Orders/Directions from the master.

 Benefits to the master.

 Master‟s better financial position.

Contract of Service vs. Contract for Service - A distinction is made

between employees and independent contractors Employers are generally

liable for the torts of employees but not for the wrongful acts of independent

contractors. This distinction hinges on the degree of control exercised by the

employer over the individual performing the task.

Contract of Service - A contract of service establishes the master-servant

relationship. Under this contract the employee (servant) works under the

direct control and supervision of the employer (master). The master has

authority over the servant‟s actions and the manner in which the work is

performed.

Example: A labourer working in a factory is employed under a contract of

service, as the employer supervises and controls their daily work.

Contract for Service - A contract for service defines a contractual obligation

between two businesses, or a business and an independent contractor (a

self-employed individual). Under this contract the independent contractor

provides services as per the agreed terms and has complete freedom to

determine the method of performing the work. The employer can only specify

what work is to be done, not how it is done.

Example: A cab or taxi driver working independently is engaged under a

contract for service. The driver is responsible for ensuring the work is

completed but is not under the direct control of the client.

Servant vs. Independent Contractor

Although both servants and independent contractors are employed to

perform work for an employer, their legal relationships differ significantly:

Aspect Servant Independent Contractor

Contract
Contract of Service Contract for Service
Type

Employer controls both the work Employer controls only

Control
and the manner of doing it. what work is to be done.

Master is liable for torts Master is not liable for torts

Legal
committed by the servant in the committed by the
Liability
course of employment. contractor.
Aspect Servant Independent Contractor

The servant acts under the The contractor acts

Autonomy direction and control of the independently to complete

master. the work.

A freelance graphic
Example A factory worker.
designer.

Tests to Determine a Master-Servant Relationship

The courts often rely on various tests to ascertain whether a given

relationship qualifies as a master-servant relationship. The landmark case

of Short v. J&W Henderson Ltd. laid down the following major criteria:

I. Power of Selection - The employer must have the authority to select

or appoint the individual for the role.

II. Payment of Wages or Remuneration - The presence of a formal

compensation structure indicates an employment relationship.

III. Right to Control Work - The employer has the right to control how

the work is performed, not just what work is to be done.

IV. Right to Suspend or Dismiss - The ability of the employer to

terminate the employment relationship signifies a master-servant

arrangement.
Legal Implications

 Liability for Torts Committed by a Servant - As a general rule, the

master is liable for the wrongful acts (torts) committed by the servant

during the course of employment. This liability is based on the principles

of vicarious liability, including the doctrines of respondent superior

and attribution.

Example - A truck driver employed by a company negligently causes an

accident while delivering goods. The company (master) will be held liable

for the driver‟s (servant‟s) actions.

 No Liability for Torts Committed by an Independent Contractor - The

master is not liable for the wrongful acts of an independent contractor,

as the contractor operates autonomously and is not under the master‟s

direct control.

Example - A homeowner hires a plumber to fix a pipe, and the plumber

accidentally damages the property. The homeowner is not liable for the

plumber‟s negligence, as the plumber is an independent contractor.

In Morgan V/S. Incorporated Central Council, the defendants had

entrusted the job of keeping the lift safe and in proper order to certain

independent contractors. The plaintiff made a lawful visit to the place and

fell down from the lift. It was held that it was an act of negligence on the

part of independent contractors. Thus defendants could not be made liable.

 In B. Govindarajulu v. M.L.A. Govindaraja Mudaliar, the plaintiff

had entrusted a motor lorry to a workshop for repairs. During the process,

an employee of the workshop negligently caused an accident while driving

the lorry. The Madras High Court ruled that the owner of the lorry could not

be held vicariously liable since the workshop was functioning as an

independent contractor and not as a servant of the lorry owner. The

judgment emphasized the distinction between a servant, who operates

under direct control, and an independent contractor, who works

autonomously, affirming that liability in tort law does not typically extend to

acts of independent contractors unless exceptions apply.

Consensus - In Maganbhai vs Ishwarbhai, a temple trustee directed an

independent electric contractor to illegally divert the electric supply from the

agricultural land to the temple lights and sound arrangements. The same

resulted in causing injury to the farmer. Here, court observed that there was

consensus among both to do an unlawful act. Hence, both held liable.

Course of Employment

The concept of "course of employment" is critical in determining whether an

employer can be held vicariously liable for the actions of their employee. Two

prominent tests used to assess. Such as,

Salmond Test (Traditional Approach): This test, formulated by Sir John

Salmond, states that an act is considered within the course of employment

if:

(a) It is a wrongful act authorized by the employer; or

 (b) It is a wrongful and unauthorized mode of performing an authorized

act.

This test primarily focuses on whether the act committed was closely

linked to the duties assigned by the employer. This test focuses on the scope

of employment and whether the act falls within the employee‟s duties.

The case of Limpus v. London General Omnibus Company, is a

landmark judgment in the doctrine of vicarious liability. In this case, the

driver of a bus employed by the London General Omnibus Company

obstructed a competitor's bus while driving, leading to a collision. Despite

explicit instructions from the employer prohibiting such conduct, the court

held the employer liable.

The reasoning was that the driver, while acting contrary to instructions,

was still performing his duties (driving the bus) within the scope of his

employment. The court distinguished between prohibited acts that remain

connected to the employee's duties and those that are entirely outside the

course of employment. Here, the driver's actions were deemed an

unauthorized mode of performing his authorized duties, thus rendering the

employer vicariously liable for the resulting damage.

This case highlights the Salmond test for vicarious liability, which

imposes liability on employers for wrongful acts either authorized by them or

performed in an unauthorized manner during the course of employment.

Close Connection Test (Modern Approach): The Close Connection Test

emerged as a more flexible approach, especially in cases involving

intentional wrongdoing. This test broadens the analysis to include wrongful

acts closely connected to the duties, even if unauthorized or criminal. It

evaluates:

 Whether the act in question was so closely connected with the employee’s

duties that it would be fair and just to hold the employer liable.

In Mohamud v WM Morrison Supermarkets plc, the UK Supreme

Court ruled that Morrison Supermarkets was vicariously liable for an

assault by its employee, who attacked the plaintiff, a customer, after a brief

verbal altercation. The Court applied the "close connection" test, which

assesses whether an employee's wrongful act is closely linked to their

employment duties. The ruling emphasized that even though the assault

was unprovoked, it was connected to the employee‟s role in customer

service, making the employer liable for his actions during work. This case

reinforced the principles of vicarious liability in tort law, highlighting the

broad scope under which employers can be held accountable for employees'

misconduct within the course of their employment.

This test gained prominence in cases like Lister v. Hesley Hall Ltd.,

where the House of Lords held an employer liable for the sexual abuse of

children by a warden, reasoning that the wrongful acts were closely

connected to the duties entrusted to him. The Close Connection Test

emphasizes the context and nature of the relationship between the act and

the employee‟s role.

In the case of National Insurance Company, Kanpur v. Yogendra

Nath, the issue of vicarious liability was explored in the context of the

employer-employee relationship. The owner of a car entrusted a servant with

the task of maintaining the car, including cleaning it while the owner was

away. However, the servant, while performing his duties, took the car to a

petrol pump to inflate the tires, during which he struck and injured two

pedestrians. Even though the owner did not specifically authorize the

servant to drive the car, the court held the owner vicariously liable for the

actions of the servant. This ruling was based on the principle that the

servant was acting in the course of his employment, and his actions,

although beyond the specific task of cleaning, were still related to his duties.

Therefore, the employer (the car owner) was found to be responsible for the

accident, reinforcing the application of vicarious liability where an employee

is acting within the general scope of their employment, even if the act was

not explicitly authorized.

Some other instances

 Fraud of servant- Master is liable if the act is done within the course of

employment. (Barwick V/S. English Joint Stock bank)

 Theft by servant- Master is liable if the act is done within the course of

employment. (Morris V/S. Martin & Sons Ltd.)

 Mistake of servant- For the use of excessive authority by the servant

causing loss to the plaintiff, the master will be held liable. (Poland V/s.

Parr & Sons.)

 Negligence of servant- The losses caused to a third party by the

negligence of the servant, the master would be held liable. (Century Ins.

Co. v/s Northern Ireland Transport Board)

 Acts outside the course of employment- When a servant does any act

which is not in the course of master‟s business, it is considered as act

outside the course of employment and the master shall not be held liable.

(Beard v/s London General Omnibus)

Courts sometime distinguish between an employee‟s “detour” and

“frolic”. For instance, an employer will be held liable if it is shown that the

employee had gone on a mere detour in carrying out their duties, whereas

an employee acting in his or her own right rather than on the employer‟s

business is undertaking a “frolic” and will not subject the employer to

liability

Principal-Agent Relationship and Vicarious Liability

The principal-agent relationship is a legal association where one party

(the principal) appoints another (the agent) to act on its behalf, especially in

business dealings. This relationship is governed by the law of agency, which

defines the authority of the agent and the scope of the principal's

responsibility. In essence, the agent acts as an extension of the principal,

carrying out tasks or making decisions that the principal would otherwise

have to handle personally.

Agent: A person who has been legally authorized to act on behalf of another,

especially in business transactions. The agent acts as an intermediary

between the principal and third parties, executing tasks in the principal's

interest.

Principal: The person or entity that grants the authority for the agent to act.

The principal has the right to control and direct the actions of the agent

within the limits of the agency relationship.

The legal doctrine of vicarious liability holds the principal accountable

for the acts of the agent under certain circumstances, particularly when the

agent commits wrongful acts (torts) while acting within the scope of their

authority. The principal can be held directly liable for the agent‟s negligent

actions or misconduct, as the agent is seen as an extension of the principal

during their duties.

A principal may be held liable for the following:

 Faulty Instructions: If the principal gives improper or unclear

instructions to the agent, and the agent‟s actions lead to harm or injury,

the principal may be liable.

 Negligent Hiring: If the principal fails to properly vet the agent, leading

to the agent committing a tortious act, the principal may be held

accountable for the agent‟s wrongdoing.

 Failure to Supervise: If the principal fails to oversee the agent‟s actions

adequately, particularly when the agent's tasks involve risks, the

principal can be liable for any damage caused by the agent‟s negligence.

In the landmark case Lloyd v. Grace, Smith & Co. , the court dealt with

the issue of an agent‟s fraudulent conduct while acting within the scope of

employment. Mrs. Lloyd visited a solicitor‟s office for advice regarding her

property. She was attended by the firm‟s managing clerk, who, acting under

the authority of the firm, advised her to sign documents related to the sale

of the property. However, the clerk misrepresented the nature of the

documents, having Mrs Lloyd sign gift deeds instead of sale deeds. This

fraudulent conduct by the agent was committed while performing his duties

on behalf of the firm.

The court held that the principal (the solicitor‟s firm) was vicariously

liable for the agent‟s fraudulent acts, as the agent was acting within the

course of his employment. The firm was responsible for the actions of its

managing clerk, even though the clerk‟s actions were fraudulent, because

the acts were committed during the scope of the agency relationship.

In India, the reference can be taken from Section 238 of the Indian

Contract Act, 1872, which states as follows.

“Section 238 - Effect, on agreement, of misrepresentation or fraud

by agent- Misrepresentation made or frauds committed, by agents acting in

the course of their business for their principals, have the same effect on

agreements made by such agents as if such misrepresentations or frauds had

been made or committed by the principals; but misrepresentations made, or

frauds committed, by agents, in matters which do not fall within their

authority, do not affect their principals.”

Partnership and Vicarious Liability

In the context of partnerships, the legal relationship between partners

bears similarities to the principal-agent relationship. Partners, by virtue of

their partnership, act as agents of each other in business dealings, and this

gives rise to the concept of joint and several liabilities. This means that if one

partner commits a tort (wrongful act), all other partners can be held liable

for the tortious act, provided it was committed in the course of the

partnership's business. The liability is both joint (shared by all partners)

and several (each partner is individually liable).

Key Provisions of the Partnership Act, 1932

 Section 4 - Definition of a Partner: This section defines a partner as an

individual who shares in the profits and losses of the partnership and

has the right to participate in its management.

 Section 6 - Mode of Determining the Existence of a Partnership: This

section provides criteria for determining when a partnership exists,

including the sharing of profits and a mutual agreement between parties.

 Section 13 - Mutual Rights and Liabilities: This section outlines the

rights and liabilities of partners towards each other and towards third

parties. Partners are bound by the partnership agreement, and any torts
 committed in the course of the partnership‟s business can result in joint

liability.

Vicarious Liability of Partners

The principle of vicarious liability extends to partners in a partnership.

This means that each partner can be held responsible for the wrongful acts

(torts) of another partner if those acts are carried out in the ordinary course

of business. This shared liability serves to ensure that the actions of one

partner do not unjustly harm the business or other partners.

In the case of Hamlyn v. Houston & Co., the court addressed the issue

of vicarious liability among partners. One of the partners in the defendant

partnership bribed and induced the plaintiff‟s clerk to breach a contract.

The court held that both partners were liable for the tort because the

wrongful act was committed in the ordinary course of business. Since the

bribe was related to the business activities, both partners were held

accountable for the tortious conduct of one partner.

This case illustrates the key principle that in a partnership, all partners

share liability for torts committed in the course of the business. This

ensures that partners cannot escape liability simply because they were not

personally involved in the wrongful act. The ruling highlights the importance

of the partnership agreement in defining the scope of activities that can lead

to shared liability.
 Vicarious Liability of Spouses (Conjugal Liability)

The concept of conjugal liability pertains to the legal responsibility that

one spouse may bear for the wrongful acts (torts) of the other spouse. This

principle originated from the doctrine of inter-spousal immunity, which

historically prevented one spouse from suing the other for torts. The idea

was rooted in the common law rule that husband and wife were legally

considered one person, and that person was the husband. As such, a tort

committed by one spouse, especially the wife, could not lead to a claim

against the other spouse, unless done in the presence or with the direction

of the husband.

Historical Background

At common law, inter-spousal immunity meant that neither spouse could

initiate a tort action against the other. Early American courts adhered to

this doctrine, arguing that because the husband and wife were considered

one legal entity, legal actions between them were unnecessary. However,

over time, courts began to accept exceptions to this rule. For example, in

Hinds v. Jones (1861), the court established that although a husband was

generally not liable for torts committed by his wife, if the tort occurred in his

presence or under his direction, he could be joined as a defendant in a

lawsuit.

Conjugal Liability in Modern Legal Context

While the notion of conjugal liability served certain societal and legal

purposes, it has raised significant concerns, particularly regarding gender

biases and fairness. Conjugal liability has traditionally been applied in a

way that disproportionately affects wives, holding them responsible for the

criminal or wrongful acts of their husbands. In many jurisdictions, wives

have been disproportionately affected by this concept, especially in cases

involving criminal activity, such as drug-related offenses. This raises serious

issues about guilt by association, where the spouse is held liable not for

their actions but for their association with the wrongdoer.

Moreover, the application of conjugal liability often conflicts with

constitutional principles, particularly the right to freedom of intimate

association. This right, as protected by the Constitution, asserts that

individuals should not be forced into legal responsibilities simply due to

their personal relationships. Holding a spouse liable for a wrongdoing

committed by their partner, without a direct link to the act, is seen as an

infringement upon this fundamental right.

The case Curtis v. Wilcox addresses the issue of whether a wife could

sue her husband for a personal injury resulting from an accident that

occurred before their marriage. In this case, the plaintiff was injured in a

motor vehicle accident while she was a passenger in the defendant's car.

Although the incident occurred prior to their marriage, the plaintiff and

defendant married before the case could proceed to trial.

The key legal question was whether the marriage barred the plaintiff from

pursuing a tort claim against her husband. The defendant's insurance

company argued that the claim for general damages was invalid due to the
marriage, referencing the traditional "inter-spousal immunity" rule, which

prevented spouses from suing each other for torts during marriage.

The Court of Appeal ultimately overruled a prior case (Gottliffe v.

Edelston), affirming that a wife has the right to sue her husband for a tort

committed before their marriage. The decision was based on an

interpretation of the Married Women's Property Act, 1882, which allowed

a wife to hold separate property and, by extension, to assert claims for

personal injuries or torts committed prior to marriage. This case marked a

significant shift in recognizing a wife's independent legal rights in tort

actions, even against her husband, following a marriage.

Vicarious liability of Parent - child

Vicarious liability in the context of parent-child relationships involves the

responsibility of a parent or guardian for the torts committed by a minor

under their supervision or control. Generally, minors are responsible for

their own torts, but a parent may be held liable for damages caused by their

child's misconduct, especially in cases of wilful acts. Historically, the law

applied different standards based on the child's age:

 Under age 7: A child could not be negligent.

 Between ages 7 and 14: A rebuttable presumption existed that the

child could not be negligent.

 Between ages 14 and 21: A rebuttable presumption existed that the

child was capable of negligence.

 For example, in the case of Labonte v. Federal Mutual Insurance Co. ,

the court clarified that parents could be held jointly and severally liable for

damages caused by their child's wilful misconduct, particularly if the parent

had knowledge of the child‟s prior actions. Liability often arises when a

parent allows a child access to dangerous items (e.g., firearms or vehicles) or

engages in negligent supervision. In such cases, the parent may be held

accountable for their failure to properly supervise the minor, which could

result in civil damages.

Additionally, the concept of negligent supervision applies to various

individuals who have custody or control of a child, including parents,

guardians, and others like grandparents. This liability may extend beyond

mere acts of negligence to cover the failure to properly monitor a child's

behaviour, especially in situations where the child causes harm to others.

While there are often limits on the amount of liability, some homeowner or

umbrella insurance policies may provide coverage for such claims.

VICARIOUS LIABILITY OF THE STATE

Introduction

Vicarious liability, a legal doctrine that holds an employer or principal

responsible for the actions of their employees or agents, extends to the State

in both common law and constitutional frameworks. The principle, while

rooted in the tort law, varies across jurisdictions based on the nature of the

act performed by the state or its servants. This analysis explores the

evolution and application of vicarious liability of the State in England, the

United States, and India, focusing on the legal provisions and judicial

interpretations that shape this concept.

Position in England

The doctrine of sovereign immunity, encapsulated by the common law

maxim "The King can do no wrong," historically shielded the Crown from

liability for tortious acts committed by its servants. The Crown could not be

sued in tort, even for wrongful acts committed by its servants during the

course of employment.

However, the advent of modern state functions and the need for the

State to be accountable for wrongful acts led to the enactment of the Crown

Proceedings Act, 1947. This legislation marked a significant shift in the

legal landscape by subjecting the Crown to the same liabilities as a private

individual when it comes to tortious acts committed by its servants in the

course of their employment. This act abolished the principle of immunity for

the Crown in tort law, reflecting the evolving role of the state in modern

society.

Position in the United States

In the United States, the principle of state liability in tort is governed

by the Federal Tort Claims Act (FTCA), 1946. The FTCA allows the federal

government to be sued for tortious acts committed by its employees,

mirroring the principles of vicarious liability applicable to private employers.

However, there are specific exceptions under the FTCA, such as claims

arising from discretionary functions of the government, which are exempt

from liability. This statute aligns with the notion that, while the state can be

held accountable for the actions of its employees, certain governmental

functions shield it from liability.

Position in India

India‟s position on state liability for tortious acts is enshrined in

Article 300 of the Constitution, which outlines the right of the Union and

State Governments to sue or be sued. The article allows for the government

to be held accountable in tort, but this is contingent on the nature of the

function being performed—whether it is sovereign or non-sovereign in

nature.

Sovereign vs. Non-Sovereign Functions

The case of P. & O. Steam Navigation Co. v. Secretary of State is a

foundational judgment in the development of the doctrine of state liability in

India. Decided by the Supreme Court of Calcutta in the pre-Constitution

era, it established the distinction between sovereign and non-sovereign

functions, a principle that continues to influence Indian tort law.

Facts - The plaintiff's company servant was traveling from Garden Reach to

Calcutta in a carriage drawn by a pair of horses. The incident occurred near

Kidderpore Dockyard, a government-operated dockyard. While passing

through the dockyard, workers employed by the government were carrying a

heavy iron rod for steamer repairs. The workers, walking in the middle of the

road, became confused and attempted to move aside upon noticing the

approaching carriage. Some workers moved in one direction, while others

moved in another, resulting in confusion. As the carriage approached, the

workers dropped the iron rod, which fell with a loud noise. This noise

startled the horses, causing them to bolt and fall onto the iron rod, leading

to injuries to the horses. The plaintiff company sued the Secretary of State

for India for damages caused due to the negligence of the government

workers.

Issues before the Court

1. Was the Secretary of State for India liable for the negligent acts of

government employees?

2. Did the act fall within the scope of sovereign functions, thereby

exempting the government from liability?

Judgment - Sir Barnes Peacock, C.J., delivering the judgment, held that the

Secretary of State for India was liable for the damages caused by the

negligence of government workers. The key findings of the court were as

follows:

Distinction Between Sovereign and Non-Sovereign Functions: The East

India Company, which had administrative control over India at the time, had

a dual character:

 Sovereign Power: Functions related to governance and

administration.

 Non-Sovereign/Commercial Power: Functions that could be

undertaken by private individuals or entities.

  Liability arose only from acts performed in the course of non-sovereign

functions, which were not directly connected to the exercise of

sovereign authority.

Nature of the Function: The maintenance and operation of the dockyard

were categorized as non-sovereign functions. These activities, such as

carrying out repairs, could just as easily have been performed by private

individuals or businesses. Since the negligence occurred during the

performance of a non-sovereign activity, the State could not claim immunity.

Scope of Liability: Acts performed as part of delegated sovereign powers,

such as defence, law enforcement, and taxation, were immune from liability.

However, the present case did not involve such powers. The government

workers were engaged in activities that did not require the exclusive exercise

of sovereign authority, making the Secretary of State liable for their

negligence.

Legal Principle: The judgment established the principle that state immunity

in tort is restricted to sovereign functions. For liability to attach, the act

must fall within the realm of non-sovereign functions, defined as activities

that:

1. Do not require the exclusive exercise of state authority.

2. Can be performed by private individuals or entities.

Significance: This case introduced a critical distinction that forms the

bedrock of state liability in Indian tort law. The doctrine of sovereign

immunity was not absolute; rather, it depended on the nature of the

function being performed:

 Sovereign Functions: Immune from liability.

 Non-Sovereign Functions: Subject to liability for tortious acts.

Application in Modern Indian Law: The principles laid down in P. & O.

Steam Navigation Co. v. Secretary of State were subsequently incorporated

into judicial decisions post-Independence. Article 300 of the Indian

Constitution carries forward this distinction, holding the State liable for

torts arising from non-sovereign functions. This judgment continues to

guide courts in delineating the extent of government accountability in tort

law.

Evolution of State Liability in India

The Supreme Court of India in the State of Rajasthan v. Vidyawati

case (1962) reinforced the principle that the State is vicariously liable for

tortious acts committed by its servants in the course of their employment,

provided the act is not connected to a sovereign function. The court held

that the State‟s liability is similar to that of any private employer, and it

cannot claim immunity merely because the act was performed by a

government employee.

The case of Kasturi Lal v. State of Uttar Pradesh is a significant

judgment in Indian tort law that upheld the doctrine of sovereign immunity,

reaffirming the State‟s exemption from liability for tortious acts of its
servants when such acts are committed in the exercise of sovereign powers.

The plaintiff, Kasturi Lal, was arrested by police officers on suspicion of

possessing stolen property. During the search, a substantial quantity of gold

was seized under the provisions of the Code of Criminal Procedure (CrPC).

Although he was later released, the gold was not returned because the Head

Constable, who had custody of the gold in the malkhana (police storage),

absconded with it. Kasturi Lal filed a suit against the State of Uttar Pradesh,

claiming damages for the loss caused by the negligent handling of his

property by the police officers.

The trial court found the police officers negligent and held that they

failed to comply with the safeguards provided under the UP Police

Regulations. However, they ruled in favour of the State by invoking the

doctrine of sovereign immunity. When the matter was brought before the

Supreme Court, it agreed that the police officers had acted negligently but

rejected the plaintiff‟s claim, stating that the negligent acts were committed

in the exercise of statutory powers conferred by the CrPC. These powers,

which include arrest, search, and seizure, are sovereign in nature, as they

are essential for maintaining law and order and cannot be delegated to

private individuals. Consequently, the court held that the State could not be

held liable for the loss caused by the officers‟ negligence.

The Supreme Court emphasized that acts performed in the exercise of

sovereign functions are immune from liability, even if negligence is

established. It distinguished between sovereign and non-sovereign

functions, stating that only acts outside the ambit of sovereign functions
could render the State liable. The judgment reaffirmed the doctrine that the

State is not liable for torts committed by its servants during the exercise of

sovereign powers, a principle rooted in the common law doctrine of

sovereign immunity.

The decision in Kasturi Lal has been criticized for its rigid application

of sovereign immunity, particularly in cases where negligence is evident.

Critics argue that the doctrine is out-dated and inconsistent with modern

principles of accountability and justice. Nonetheless, the case has been a

foundation for subsequent judgments involving state liability. Over time,

subsequent rulings have sought to soften the strict application of sovereign

immunity, emphasizing a more balanced approach that considers justice

and accountability alongside the State‟s immunity.

This principle was applied in subsequent cases such as Satyawati

Devi v. Union of India, where the court held that acts like transporting a

hockey team or moving military equipment did not constitute sovereign

functions, and thus, the State could be held liable for damages caused by

the negligence of its servants in those instances.

The Union of India v. Sugrabai is a landmark judgment by the

Bombay High Court that significantly contributed to defining the contours of

sovereign immunity in India. The case revolves around a tortious act

committed by a military driver and the determination of whether the act fell

within the ambit of sovereign functions, thereby exempting the State from

liability.
 In this case, a military truck, driven by a government employee, was

transporting a Records Sound Ranging machine from a military workshop to

the military school of artillery. During the course of this transportation, the

driver negligently caused an accident, resulting in the death of a cyclist. The

aggrieved party filed a claim for damages against the Union of India. The

Union of India invoked the doctrine of sovereign immunity, arguing that the

act was performed in furtherance of a sovereign function—namely, the

maintenance and operation of the armed forces.

Legal Issues

The case presented two primary legal questions:

1. Was the transportation of military equipment an act undertaken in

the exercise of sovereign power?

2. If not, could the State be held vicariously liable for the tortious act of

its servant?

Observations by the Court

The Bombay High Court dismissed the plea of sovereign immunity and

held the Union of India liable. The court reasoned as follows:

Nature of Sovereign Functions: Sovereign powers are conferred upon the

State to enable it to discharge its essential governmental functions, such as

defence, law enforcement, and taxation. While maintaining an army and

training military personnel are sovereign functions, every ancillary act

associated with these functions does not necessarily fall under the ambit of

sovereign power.

Distinction between Sovereign and Non-Sovereign Acts: The court drew a

distinction between acts requiring the exclusive exercise of sovereign power

and those that could equally be performed by private individuals or

agencies. The transportation of military equipment, it observed, did not

necessitate the exercise of sovereign authority and could have been carried

out by private contractors.

Test of Necessity: The court articulated a practical test, “In deciding

whether a particular act was done by a Government servant in discharge of

a sovereign power delegated to him, the proper test is whether it was

necessary for the State, for the proper discharge of its sovereign function, to

have the act done through its own employee rather than through a private

agency.”

Applying this test, the court concluded that transporting equipment

was not inherently tied to sovereign power.

The Bombay High Court held that the act of transporting the Records

Sound Ranging machine did not involve the exercise of sovereign power.

Consequently, the government could not claim immunity under the doctrine

of sovereign immunity. The Union of India was found vicariously liable for

the negligent act of the military driver.