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Persons against whom an action for Tort cannot be maintained

There are categories of persons or bodies of persons against whom an action in tort cannot be maintained. Here we will discuss, as to what are such bodies and why action cannot be maintained against them.


An act done in exercise of sovereign power in relation to another state or subjects of another state is an act of state and cannot be questioned by Municipal Courts.

State: Government of India Emblem and Flag

In the words of Justice Hidayatullah “an act of State is an exercise of power against an alien and neither intended nor purported to be legally founded. A defense of this kind does not seek to justify the action with reference to the law but questions the very jurisdiction of the Courts to pronounce upon the legality or justice of the action.”

The essential elements of an Act of State-

  1. The act is done by the representatives of a State.

  2. The act is injurious to some other state or its subject.

  3. The act may be either previously sanctioned or subsequently ratified.

  • In the case of BURON v. DENMAN, an action was brought against Captain Denman in the British Navy for releasing for releasing slaves and burning the barracoons owned by the plaintiff on the West Coast of Africa (outside British Dominion). The defendant had no authority to do so, but the act was ratified by the British Government for which no action would lie. The plaintiff, therefore, could not recover anything.

  • In the case of STATE OF SAURASHTRA (GUJARAT) v. MOHD. ABDULLA & ORS, the Nawab of erstwhile State of Junagadh had made grants of certain properties which were being held by the respondents. The administrator appointed by the Government of India in November 1997 to take over the administration of the State cancelled these grants and dispossessed the respondents of these properties.

Thereafter, the State of Junagadh merged with the State of Saurashtra. The respondent challenged the resumption of grants and their dispossession of properties on the ground that they could not be deprived of property by an executive action.

The Supreme Court held that the orders of the administrator arose out of and during an act of State over which the Municipal Courts had no jurisdiction. It was also held that even though the de facto control of the state of Junagadh was taken over by the Government of India in November 1997, but there was no de jure change of sovereignty till November 1997.


A corporation is an artificial person distinct from its members. Being an artificial person, it always acts through its agents and servants and so its liability is always vicarious for the acts done by other people.

Corporations: Buildings

In the case of CITIZEN LIFE INSURANCE v. BROWN, it was observed that even though the corporation may not have requisite mental element for a tort requiring malice, its agents can have the same and therefore if the act is done within the course of employment, a corporation is liable for their act like an ordinary employer.

A corporation is always liable if the scope of authority or employment of its agents or servants acting on its behalf was within the power of (intra vires) of the corporation.

However, such an assertion gives rise to a question-whether a Corporation shall be liable for ultra vires torts?

Although in the case of POULTON v. L & S. W. RAILWAY, was claimed to be the authority on this subject and held that corporations cannot be held liable for ultra vires torts or acts of the employees, but the correct position has been explained in the case of CAMPBELL v. PADDINGTON CORPORATION, where it was held that there was no need to draw a distinction between intra vires and ultra vires acts of the corporation because a corporation is as much liable for the torts committed ultra vires by its members or representatives as it is for the intra vires torts.


A minor has a capacity to sue like an adult, with only procedural differences that he/she themselves cannot sue but has to bring an action through their next-friend.

In the case of MONTREAL TRAMWAYS v. LEVILLE, the Supreme Court of Canada allowed an action by a child born with clubbed feet, two months after an injury to its mother by negligence of the defendants. Many jurists were of the view that an action for pre-natal injuries should also be recognized once the act of the defendant was tortious.


Minority is no defense under the Law of Torts and a minor is liable in the same manner and extent as an adult for any tort committed by him. A Minor is also incompetent to contract and a child of seven years of age cannot be made liable for criminal action.

In the case of WALMSLEY v. HUMENICK, the Supreme Court of British Columbia held that the defendant- a child of 5 years of age could not be held liable for negligence because he has not reached such stage of mental development where it could be said that he should be found legally responsible for his negligent acts.


Generally, a parent or a guardian cannot be made liable for the torts of a child, with the following exceptions-

  1. When the child is the father’s servant or agent, the father shall be vicariously liable but only in the capacity of an employer or principal.

  2. When the father by himself, through his own negligence affords his child an opportunity to commit a tort, liability would be imposed.


As per common law, there would be no action between a husband and a wife for tort.

Where the husband, while acting as an agent or servant for some third party, committed a tort causing injury to the wife, the wife could sue the third party.

A couple

In the case of BROOM v. MORGAN, it was held that if a husband committed a tort against his wife in the course of employment of his master, the master was held liable for the same.

A wife could also sue the husband for the protection and security of her property but not for personal injury caused to her by the husband. Thus, if the husband damaged the personal property, say a LAPTOP belonging to his wife, the wife could sue him, but if the husband were to cause her arm to fracture through negligence, the wife will not be able to bring any action for that.

At common law, if the wife committed a tort, there could be an action against both the husband and wife, because the wife could not be sued alone but the same was later abolished by a new legislation and a wife could be sued even after the marriage.

The rule prohibiting action between the spouses was also abolished and if the Court believed that the cause of action is genuine and beneficial for either party, then the Judge would allow the case to proceed.


Parents and persons in loco parentis have a right to administer punishment on a child to prevent him/her from doing any mischief to themselves or others.

The law is that a parent, teacher, or other person having lawful authority or control of a young person or child, is allowed to administer punishment to such child.

Parents are assumed to delegate such authority to a teacher when a child is sent to school. Such an authority warrants the use of reasonable and moderate punishment only and if there is excessive use of force, the defendant may be held liable for assault, battery, or false imprisonment.

The authority of a teacher to correct the wrongs committed by a student are not limited to wrongs committed in school but may extend to wrongs committed outside school as well.


A judicial officer has been granted protection against any action done or ordered to be done by him in the discharge of his judicial duties. The officer is protected still even though he may have exceeded his authority, given that at the time of making such order he genuinely believed that he had the power or jurisdiction to exercise such power or pass such an order.

Judge gavel: A mark of judicial authority

In the case of SAILAJANAND PANDEY v. SURESH CHANDRA GUPTA, the Magistrate acting mala fide, illegally and outside his jurisdiction ordered the arrest of the plaintiff. The Patna High Court that he was entitled to the protection granted by the Judicial Officer’s Protection Act, 1850 and was therefore not liable for the wrong of false imprisonment.

However, in the case of TULSIRAM v. STATE OF U. P., it was held that such protection is not afforded to a judicial officer when he is acting in a ministerial or administrative capacity.

Executive Officers also enjoy certain protections from tortious action. Public servants are not liable for acts done by them in the exercise of their powers and duties, such as a Police Officer acting on a warrant or an FIR.

Acting under apparently valid authority is a defense but the exemption ceases if it is proved that the officer was acting maliciously.


When two or more persons commit a tort against the same plaintiff, they may be categorized as Independent or Joint Tortfeasors.

INDEPENDENT TORTFEASOR- when the acts of two or more persons acting independently causes a singular damage, they are known as Independent Tortfeasors. There is no concerted action on their part but just a similar design.

JOINT TORTFEASORS- when two or more persons who are in concert while committing a wrongful act, which incurs a singular damage, not independently of one another, but rather in furtherance of a common design, and even if any one of them commits a tortious act, both, or all of them will be held liable.

  • In the case of BROOK v. BOOL, A and B entered the premises of Z, to search for an escape of gas. Each one of them in turn applied naked lights to the gas pipe. A’s application of light resulted in an explosion causing damage to the premises of Z. in this case, even though the Act of A alone had caused the damage, both A and B were held liable as joint tortfeasors and awarded damages to Z.

The Courts in India have not necessarily followed the distinction between joint and independent tortfeasors as seen in England. When two or more people are responsible for a common damage (whether acting independently or together) they will be termed as COMPOSITE TORTFEASORS.

The liability of such composite tortfeasors is joint and several. Thus, for the wrong done by the agent, both the agent and the principal are liable for jointly and severally, and consequently both can be sued irrespective of who the wrongdoer is.

In the case of SASIDHARAN v. SUKUMARAN, a wrongfully parked truck was hit by a bus driver rashly and the negligently and a person sitting in the truck sustained injuries. The tribunal held that both drivers were equally negligent.

However, the person injured shall not be entitled to claim compensation awarded from the driver, owner or insurance company of either of the two vehicles, as both drivers were not joint tortfeasors, and their liability was not joint and several. Damage was not caused by joint action but separate actions independent from each other.

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