What is a Tort? Definition, Essentials & Tort vs Crime vs Contract — Law of Torts Notes

How the Law of Torts Grew — England and India

In medieval England you could not simply walk into court and complain that someone had hurt you. You had to buy a writ — a printed royal form — and your complaint had to fit one of the forms already on sale. If no writ fitted your grievance, you had no case, however badly you had been wronged. The whole modern law of torts grew out of lawyers arguing that their client’s misfortune did fit one of the forms.

A subject built by judges, not by a legislature

Here is the single most important fact about this subject, and the one students most often skip: the law of torts in India is not codified. There is no “Indian Torts Act” you can hold in your hand. Contract law has the Indian Contract Act, 1872; criminal law has its penal code. Tort has neither. It is judge-made law — worked out case by case, inherited from the English common law, and applied by Indian courts so far as it suits Indian conditions.

That one fact shapes how you must answer every question in this paper. You argue from cases, not from sections. The definitions you quote come from jurists — Salmond, Winfield, Fraser — not from a legislature.

A. The English origin — the writ system.

The word “tort” comes from the Latin tortum [twisted or crooked], reaching English through Norman French. It simply meant conduct that was not straight.

Early English law gave a remedy only through a writ, a formal royal order that started a lawsuit. Two writs did most of the work:

Trespass — for a direct and forcible injury. You struck me; you walked onto my land; you seized my goods. Trespass was actionable per se [by itself], meaning I did not have to prove I lost anything.
Trespass on the case (often just “case”) — for an injury that was indirect or consequential. The classic contrast: if you throw a log at me, that is trespass; if you leave the log lying in the road and I trip over it later, that is case. Under “case” you had to prove actual damage.

From these two roots grew almost every tort you will study — negligence, nuisance, defamation, conversion. The writ system itself was abolished in England in the nineteenth century, but the distinction between wrongs actionable per se and wrongs needing proof of damage survives, and it is examined constantly.

B. How tort law reached India.

There was no single moment of adoption. English tort law arrived in stages:

In the Presidency towns (Calcutta, Madras, Bombay), the Crown’s courts applied English common law from the eighteenth century onwards.
Outside those towns, in the mofussil, courts had no code to apply, so they were directed to decide according to justice, equity and good conscience — a phrase which in practice meant English common law, so far as it was applicable to Indian society.
Section 9 of the Code of Civil Procedure, 1908 keeps the door open to this day: civil courts have jurisdiction to try all suits of a civil nature unless barred. A tort claim is a suit of a civil nature. No specific statute is needed.

The crucial qualification is that English rules were never adopted wholesale. Indian courts apply them subject to Indian conditions — which is why some English doctrines were rejected outright here, and why in one celebrated instance an Indian court went further than England ever had.

C. The Indian departures — where our law overtook England’s.

Three developments are worth naming, because they let you end an evolution answer on a strong, modern note:

Absolute liability. In M.C. Mehta v Union of India (1987), after the Oleum gas leak in Delhi, the Supreme Court refused to follow the English rule in Rylands v Fletcher with its list of exceptions. It laid down a rule of absolute liability for hazardous enterprises, with no exceptions at all. This is taught fully in Unit 3.
Constitutional tort. From Rudal Shah v State of Bihar (1983) onwards, the Supreme Court began awarding compensation directly under Articles 32 and 226 for violation of fundamental rights, without requiring the victim to file an ordinary civil suit.
Rejection of English limits. The doctrine of common employment, and the widest form of sovereign immunity, have both been cut back far more sharply in India than they were in England.

🧩 WORKED EXAMPLE — why “uncodified” changes your answer

Facts. An examiner asks: “Is there a law of torts in India, and where is it found?”

Rule. Tort law in India is uncodified judge-made law, received from English common law and applied subject to justice, equity and good conscience; s.9 CPC gives the civil court jurisdiction.

Apply. A student who writes “the law of torts is contained in the Indian Torts Act” has invented a statute that does not exist. The correct answer names the common-law source, the reception through the Presidency towns and the mofussil, and s.9 CPC as the procedural gateway.

Conclusion. There is a law of torts in India, but it lives in judicial decisions, not in a code — which is exactly why case names carry so many marks in this paper.

Winfield’s definition (his own words): “Tortious liability arises from the breach of a duty primarily fixed by law; this duty is towards persons generally and its breach is redressible by an action for unliquidated damages.”

In Simple Terms: the duties in this subject are imposed on you by the law itself, not chosen by you, and they are owed to everybody rather than to one named person. If you break one, the injured person can sue and the court decides how much you must pay.

flowchart TD
    W["Medieval English writ system"]
    W --> T["Writ of TRESPASS — direct, forcible injury; actionable per se"]
    W --> C["Trespass ON THE CASE — indirect injury; damage must be proved"]
    T --> M["Modern torts: battery, false imprisonment, trespass to land"]
    C --> N["Modern torts: negligence, nuisance, defamation"]
    M --> I["Received in India: Presidency towns + justice, equity & good conscience + s.9 CPC"]
    N --> I
    I --> D["Indian departures: absolute liability · constitutional tort · narrowed sovereign immunity"]

Case Laws

M.C. Mehta v Union of India (1987) — created absolute liability for hazardous industry; the clearest example of Indian tort law departing from English precedent.
Rudal Shah v State of Bihar (1983) — compensation awarded under Art. 32 for illegal detention; the birth of the constitutional tort in India.
Donoghue v Stevenson (1932) — the neighbour principle; the case that turned scattered duty situations into a general law of negligence (taught in Unit 3).

What is a Tort? Definition and Essential Elements

In 1932 a woman in Paisley, Scotland, drank a bottle of ginger beer bought for her by a friend. At the bottom of the opaque bottle were the decomposing remains of a snail. She had no contract with anybody — her friend had paid — yet the House of Lords let her sue the manufacturer. That snail is the reason tort exists as a separate subject: it protects you against people you have never dealt with and never agreed with.

A duty you never agreed to

Think of it this way. A contract is a duty you chose: you promised something, so you must do it. A tort is a duty the law chose for you: you did not agree to drive carefully, but every road-user is entitled to expect that you will.

A tort is a civil wrong — other than a breach of contract or a breach of trust — for which the remedy is an action for unliquidated damages.

Three phrases in that definition are doing real work, and each is worth marks:

Civil wrong. The wronged person sues for himself; the State is not the prosecutor. The object is compensation, not punishment.
Other than a breach of contract or breach of trust. This is a negative definition: tort is defined partly by what it excludes. Breach of contract is a civil wrong, and so is breach of trust, but neither is a tort.
Unliquidated damages. “Liquidated” means fixed in advance. In contract the parties may agree the sum payable on breach; in tort no one has agreed anything, so the court assesses the compensation. This phrase is the single most reliable way to distinguish tort from contract in one line.

A. The four essential elements.

Every tort needs all four. State them as four, explain each, and give an illustration — that structure alone earns most of the marks.

A wrongful act or omission by the defendant. The conduct must be one the law disapproves of, not merely one you find unkind. An omission counts only where the law imposed a duty to act — a lifeguard who does nothing while a swimmer drowns is liable; a stranger walking past is generally not.
Breach of a duty fixed by law. The duty must be a legal duty, not a moral or social one. Refusing to help a beggar breaches a moral duty and no legal one, so no tort is committed.
Legal damage — injuria. The defendant’s act must violate a legal right of the plaintiff. This is the element the examiners test hardest, because “damage” in the ordinary sense and “legal damage” are different things. It is the subject of Topic 5 below.
A legal remedy — an action for unliquidated damages. The wrong must be one the courts will actually redress. Damages are the primary remedy; injunction and specific restitution are also available.

B. Nature and scope — what the subject is really about.

The law of torts protects rights in rem [rights available against the whole world] — your bodily safety, your reputation, your liberty, your property, your peaceful enjoyment of land. Contract, by contrast, protects rights in personam [rights against one particular person].

The scope of the subject is deliberately open-ended. Because it is judge-made, new torts can and do emerge as society changes — nervous shock, absolute liability for hazardous industry, and the constitutional tort were each unknown a century ago.

C. Winfield versus Salmond — the theoretical dispute.

When a question says “critically evaluate the various definitions”, it is asking for this argument. Do not simply list definitions.

Winfield’s wider theory: all harms are torts unless there is some justification. Tort law is one broad principle, and the list of torts can grow. His support: courts have in fact created new torts over time.
Salmond’s narrower theory: there is no general principle; there is only a closed list (“pigeon-holes”) of specific, named torts, and if your complaint fits none of them, you have no claim.
The reconciliation — and this is the sentence that earns the “critical” mark: both are right at different levels. Salmond describes what a lawyer does on any given day (find the pigeon-hole); Winfield describes what the law does over a century (make new pigeon-holes). The growth of negligence after Donoghue v Stevenson, and of absolute liability after M.C. Mehta, shows Winfield’s view operating in practice.

🧩 WORKED EXAMPLE — moral duty is not legal duty

Facts. A strong swimmer stands on a riverbank and watches a stranger drown. He does nothing. The family sues him.

Rule. A tort requires breach of a duty fixed by law; an omission is actionable only where the law imposed a duty to act.

Apply. He owed the drowning man a plain moral duty, but the law imposes no general duty to rescue a stranger. No legal duty, therefore no breach, therefore no tort — however unattractive his conduct.

Note the limit. Change one fact and the answer changes. If he were the lifeguard on duty at that pool or beach, the law would impose the duty, and the same inaction would be actionable. This is exactly the Jan 2026 problem about the lifeguard on his mobile phone.

Conclusion. No liability for the bystander; liability for the lifeguard.

Sir John Salmond: “A tort is a civil wrong for which the remedy is a common-law action for unliquidated damages, and which is not exclusively the breach of a contract or the breach of a trust or other merely equitable obligation.”

Prof. P.H. Winfield: “Tortious liability arises from the breach of a duty primarily fixed by law; this duty is towards persons generally and its breach is redressible by an action for unliquidated damages.”

Fraser: “A tort is an infringement of a right in rem of a private individual, giving a right of compensation at the suit of the injured party.”

In Simple Terms: all three say the same core thing in different words — the law itself (not any promise) tells you what you must not do to other people; if you break that rule, the victim can sue you, and the judge decides the amount.

flowchart TD
    A["Wrongful act or omission by the defendant"]
    A --> B["Breach of a duty FIXED BY LAW (not a moral duty)"]
    B --> C["Legal damage = injuria — a legal RIGHT of the plaintiff is violated"]
    C --> D["Legal remedy — an action for UNLIQUIDATED damages"]
    D --> E["ALL FOUR present = a tort is committed"]
    B --> X["Only a moral/social duty broken = NO tort"]
    C --> Y["Loss but no legal right violated = damnum sine injuria = NO tort"]

Case Laws

[C-1] Ashby v White (1703) — a returning officer wrongly refused a qualified voter’s vote; held actionable although the candidate won anyway, because a legal right was violated.
Donoghue v Stevenson (1932) — a manufacturer owes a duty of care to the ultimate consumer; the foundation of modern negligence.
[C-2] Gloucester Grammar School Case (1410) — a rival schoolmaster who took away all the pupils caused heavy loss but violated no legal right; no tort.

Tort, Crime and Breach of Contract Distinguished

A man punches you in a public street. The State prosecutes him and he is fined or jailed — that is the crime. You separately sue him and he pays you compensation for your injury — that is the tort. One act, two proceedings, two different purposes: the State punishes, and you are compensated. Neither excludes the other.

Three wrongs, three different questions

The clean way to organise this answer is to ask four questions of each wrong: who sets the duty, to whom is it owed, who sues, and what does the court order?

A. Tort compared with crime.

Nature of the wrong. A tort is a private wrong against an individual. A crime is a public wrong against the community at large, even when only one victim is hurt.
Who brings the proceeding. In tort the injured party sues in his own name. In crime the State prosecutes, and the victim is a witness, not a party.
Object. Tort aims at compensation; criminal law aims at punishment and deterrence.
Remedy. Tort ends in unliquidated damages, an injunction, or restitution. Crime ends in imprisonment, fine, or forfeiture — and any fine goes to the State, not to the victim.
Standard of proof. A tort must be proved on the balance of probabilities; a crime beyond reasonable doubt.
Compromise. A tort claim may generally be settled and withdrawn by the parties. Most crimes cannot be compounded except as the law expressly permits.
Overlap. The same act can be both: assault, battery, defamation, trespass and negligence causing death are all simultaneously torts and offences.

B. Tort compared with breach of contract.

Source of the duty. This is the heart of it. In contract the duty is fixed by the parties themselves, by agreement. In tort the duty is fixed by law, whether you like it or not.
To whom the duty is owed. A contractual duty is owed to a definite person — the other party (a right in personam). A tortious duty is owed to persons generally (a right in rem).
Consent. A contract requires the consent of both parties. Tortious duties bind you without your consent.
Privity. Under contract, generally only a party to the agreement can sue. Tort has no such barrier — which is precisely why the plaintiff in Donoghue v Stevenson succeeded although she had bought nothing.
Damages. Contract damages may be liquidated (fixed in advance by the parties) or unliquidated; tort damages are always unliquidated.
Measure of damages. Contract damages aim to put the plaintiff in the position he would have occupied had the contract been performed. Tort damages aim to restore him to the position he was in before the wrong — restitutio in integrum.
Motive and malice. Generally irrelevant in contract. In a few torts — malicious prosecution, conspiracy, defamation on a privileged occasion — malice is decisive.

C. Where a single set of facts gives both.

A surgeon operates negligently. He has broken his contract to treat the patient with skill, and he has also breached the duty of care the law imposes on every professional. The patient may sue in either, and will usually choose whichever gives the better measure of damages or the longer limitation period.

⚠️ DON’T CONFUSE — “civil” does not mean “tort”

Every tort is a civil wrong, but not every civil wrong is a tort. Breach of contract and breach of trust are civil wrongs that are expressly excluded from the definition of tort. Writing “a tort is any civil wrong” is the most common way students lose the definition marks — see Topic 4.

Salmond, on the distinguishing feature: a tort is “a civil wrong for which the remedy is a common-law action for unliquidated damages, and which is not exclusively the breach of a contract or the breach of a trust…”

In Simple Terms: the word “exclusively” matters. If a set of facts amounts only to a broken promise, it is contract and nothing else. If the same facts also breach a duty the law imposes independently, it is a tort as well, and the plaintiff may choose.

flowchart TD
    ACT["One wrongful act"]
    ACT --> TORT["TORT — private wrong; victim sues; unliquidated damages; balance of probabilities"]
    ACT --> CRIME["CRIME — public wrong; State prosecutes; punishment; beyond reasonable doubt"]
    ACT --> CONT["BREACH OF CONTRACT — duty chosen by the parties; owed to one person; damages may be liquidated"]
    TORT --> BOTH["Assault, battery, defamation, negligent driving = tort AND crime at once"]
    CRIME --> BOTH

Case Laws

Donoghue v Stevenson (1932) — no contract between consumer and manufacturer, yet a duty in tort arose; the clearest proof that tort ignores privity.
Bhim Singh v State of J&K (1985) — wrongful detention of an MLA was both a constitutional violation and the tort of false imprisonment.

“All Torts are Civil Wrongs, but All Civil Wrongs are Not Torts”

Think of civil wrongs as a large family, and tort as one child in it. Every member of the family shares the surname — all are private wrongs redressed by civil courts. But pointing at any family member and calling him “tort” would be wrong: two of his siblings are named breach of contract and breach of trust.

Genus and species

This is a question about classification, and the vocabulary to use is genus and species.

The genus is the civil wrong: any wrong for which the remedy is a civil action brought by the injured person, as opposed to a criminal prosecution brought by the State.

Within that genus sit at least three species:

Breach of contract — a civil wrong, but the duty came from an agreement.
Breach of trust — a civil wrong, but the obligation is equitable and the damages are liquidated.
Tort — the residue: civil wrongs that are neither of the above, redressed by unliquidated damages.

So the first half of the statement is true by definition: every tort is a civil wrong, because tort is one species of that genus. The second half is true because the genus contains other species too.

A. Why the exclusions exist.

Ask why the definition bothers to exclude these two, and the answer is that each differs from tort on the two crucial tests:

Breach of contract — the duty is fixed by the parties, not by law, and is owed only to the other contracting party.
Breach of trust — the beneficiary’s claim is for a definite, ascertainable sum (the trust property or its value), so the damages are liquidated, and the obligation is equitable in origin rather than common-law.

B. Other civil wrongs that are not torts.

To show range, name a few more: breach of a quasi-contractual obligation (an obligation the law imposes to prevent unjust enrichment, such as money paid by mistake), and purely equitable obligations enforced only in equity.

💡 EXAM TIP — the structure that scores on this question

The trap. Students spend the whole answer defining tort and never actually justify the statement, which is what the question asked.

What to write. Open with genus and species in two lines. Then take each excluded wrong in turn — contract, trust, quasi-contract — and show on the tests (source of duty, to whom owed, liquidated or unliquidated damages) why it fails to be a tort. Close with one line on the practical consequence: the same facts may found more than one claim, and the plaintiff elects.

Why it scores. The examiner is looking for the reasoning that connects the two halves of the sentence, not for a definition he has already read in your answer to Q.1.

Salmond: a tort is “a civil wrong for which the remedy is a common-law action for unliquidated damages, and which is not exclusively the breach of a contract or the breach of a trust or other merely equitable obligation.”

In Simple Terms: Salmond defines tort partly by subtraction. Start with all civil wrongs; take away breach of contract; take away breach of trust and other purely equitable obligations; what remains is tort.

flowchart TD
    W["WRONGS"]
    W --> CR["CRIMINAL WRONGS — State prosecutes, punishment"]
    W --> CV["CIVIL WRONGS (the genus) — victim sues, compensation"]
    CV --> T["TORT — duty fixed by law; unliquidated damages"]
    CV --> K["BREACH OF CONTRACT — duty fixed by the parties"]
    CV --> TR["BREACH OF TRUST — equitable duty; liquidated damages"]
    CV --> Q["QUASI-CONTRACT — duty imposed to prevent unjust enrichment"]

Case Laws

Donoghue v Stevenson (1932) — shows the tort species operating where no contract existed at all.
[C-1] Ashby v White (1703) — a civil wrong redressed by unliquidated damages assessed by the court, the hallmark of tort.

Mental Elements — Intention, Motive and Malice

In 1895 a Bradford landowner named Pickles deliberately sank a shaft on his land for one purpose only — to cut off the water flowing to the town’s reservoir and force the Corporation to buy him out. His spite was admitted and obvious. The House of Lords held he was entitled to do it. As Lord Halsbury put it, if the act was lawful, “however ill the motive might be, he had a right to do it.”

Why a bad state of mind usually does not matter

Criminal law is preoccupied with the guilty mind. Tort law, for the most part, is not. Its central question is whether a legal right was invaded, not whether the defendant was wicked. But “for the most part” is doing a lot of work, and the exceptions are what the question is really about.

Four terms must be kept apart. Students lose marks by blurring them.

A. Intention.

What the defendant meant to do — the desire to bring about a particular consequence. In some torts intention is essential: assault, battery, false imprisonment, deceit, malicious prosecution and conspiracy all require it. In others — negligence above all — intention is irrelevant, because the wrong lies in falling below a standard of care, not in wanting harm.

B. Motive.

Why the defendant did it — the reason or purpose behind the act. The general rule is blunt: motive is irrelevant in tort. A lawful act does not become unlawful because it was done from a bad motive, and an unlawful act does not become lawful because the motive was good.

A person who exercises his legal right out of spite commits no wrong (Bradford Corporation v Pickles).
A person who commits a tort from a benevolent motive is still liable (a prison warden who force-feeds a hunger-striking prisoner to save his life still commits a battery unless necessity justifies it).

C. Malice in law.

This is a technical expression and has nothing to do with spite. Malice in law means a wrongful act done intentionally, without just cause or excuse. It is sometimes called “implied malice”. Bayley J’s classic formulation is the one to quote.

D. Malice in fact.

Also called “express malice” or “actual malice”. This is malice in the ordinary sense — ill-will, spite, personal hatred, an improper motive.

E. When malice DOES matter — the exceptions to know.

This is where the marks are. The general rule is that malice is irrelevant; state the rule, then immediately give the five situations where it becomes decisive:

Malicious prosecution — the plaintiff must positively prove malice as one of the essentials of the tort.
Defamation on a privileged occasion — qualified privilege is a good defence, but proof of malice destroys it.
Conspiracy — a combination to injure is actionable where the predominant purpose is to harm rather than to advance the defendants’ own lawful interests.
Nuisance — an act otherwise lawful may become an actionable nuisance if done maliciously, as where a defendant deliberately makes noise to annoy his neighbour (Christie v Davey, 1893).
Injurious falsehood / slander of title — malice is an essential ingredient.

⚠️ DON’T CONFUSE — the two malices

Malice in LAW is not a state of mind at all: it means a wrongful act done deliberately without lawful excuse. Malice in FACT is a state of mind: spite or ill-will. A defendant can be liable with malice in law and no ill-feeling whatsoever. Writing “malice means bad intention” collapses the distinction the question is asking you to draw.

🧩 WORKED EXAMPLE — spite on one’s own land

Facts. A landowner sinks a shaft on his own land purely to intercept underground water and pressure the town corporation into buying his land. Nobody disputes his motive.

Rule. Motive is irrelevant. A lawful act does not become unlawful because it is done maliciously (Bradford Corporation v Pickles).

Apply. He had a legal right to abstract percolating water beneath his own soil. Because the act was within his right, his spite could not convert it into a tort. The corporation’s loss is damnum sine injuria.

Note the limit. Change the tort and the answer changes. Had the same spite been expressed by deliberately banging trays to disturb a neighbour’s music lessons, it would be an actionable nuisance (Christie v Davey) — because malice is one of the exceptional torts where motive counts.

Conclusion. No liability on these facts; liability if the tort alleged is one of the five exceptions.

Bayley J in Bromage v Prosser (1825), on malice in law: “Malice in common acceptation means ill-will against a person, but in its legal sense it means a wrongful act, done intentionally, without just cause or excuse.”

Lord Halsbury LC in Bradford Corporation v Pickles (1895): “If it was a lawful act, however ill the motive might be, he had a right to do it.”

In Simple Terms: the first quotation tells you that lawyers use “malice” in a special, bloodless sense — doing something wrong on purpose without an excuse. The second tells you the general rule in a single line: lawful act plus bad motive still equals no tort.

flowchart TD
    M["The defendant's state of mind"]
    M --> I["INTENTION — what he meant to do; essential in assault, battery, deceit, conspiracy; irrelevant in negligence"]
    M --> MO["MOTIVE — why he did it; GENERALLY IRRELEVANT (Bradford Corporation v Pickles)"]
    M --> ML["MALICE IN LAW — a wrongful act done intentionally without just cause; no ill-will needed"]
    M --> MF["MALICE IN FACT — actual spite or ill-will"]
    MF --> E["DECISIVE in 5 torts: malicious prosecution · privileged defamation · conspiracy · nuisance · injurious falsehood"]

Case Laws

[C-4] Bradford Corporation v Pickles (1895) — a lawful act does not become unlawful because of a bad motive.
Bromage v Prosser (1825) — the classic definition of malice in law.
Christie v Davey (1893) — deliberate noise made to annoy a neighbour was an actionable nuisance; malice tipped the balance.
[C-5] Mogul Steamship Co. v McGregor, Gow & Co. (1892) — combination to advance one’s own trade interests is lawful despite the harm intended to a rival.
Wilkinson v Downton (1897) — a wilful false statement calculated to cause harm is actionable; intention supplied the wrong (taught in Unit 3 under nervous shock).

Capacity to Sue and Be Sued

The general rule is beautifully simple: any person may sue for a tort committed against him, and any person may be sued for a tort he commits. It is the exceptions that make an examinable question — and they exist because some defendants cannot form the necessary intention, and some are protected by their office.

The general rule and the persons outside it

Start by stating the rule, then take the exceptions in two groups: persons who cannot sue, and persons who cannot be sued.

A. Persons whose capacity to SUE is limited.

A minor may sue for a tort committed against him, but must do so through a next friend. There is no bar of substance, only of procedure.
An unborn child could not sue at common law. The modern position allows a claim for pre-natal injury once the child is born alive, and Indian courts have awarded compensation in such cases.
An alien enemy cannot sue in the courts of the country during hostilities without the Crown’s or Government’s permission.
An insolvent — rights of action relating to his property vest in the official assignee, but he retains claims that are personal to him, such as defamation or assault.
A corporation may sue for torts affecting its property or its business reputation, but not for wrongs that are purely personal to a human being.

B. Persons who cannot be SUED, or are protected.

Foreign sovereigns, ambassadors and diplomatic agents enjoy immunity under international law and the Diplomatic Relations (Vienna Convention) Act, 1972.
Judicial officers are protected by the Judicial Officers Protection Act, 1850 for acts done in the discharge of judicial duty.
The State — the position turns on the sovereign/non-sovereign distinction and is dealt with fully in Unit 2. In outline: P&O Steam Navigation (1861) drew the distinction; State of Rajasthan v Vidyawati (1962) allowed a claim; Kasturi Lal (1965) is the high-water mark of immunity; and N. Nagendra Rao (1994) and Common Cause (1999) cut that immunity back sharply.
A minor is generally liable for his own torts, since liability does not depend on contractual capacity. But where the tort requires a particular mental element which a child of that age could not form, he escapes; and a parent is liable only where he authorised the act or was himself negligent in allowing it.
A person of unsound mind is liable where the tort requires no specific intent, but not where the tort demands an intention he was incapable of forming.
A married woman may now sue and be sued in her own name; the old common-law disability requiring the husband to be joined has gone.

C. Death and the survival of actions.

The old maxim actio personalis moritur cum persona [a personal action dies with the person] meant that a claim died with either party. It has been substantially cut back:

Under the Legal Representatives’ Suits Act, 1855 and the general law, most causes of action survive for and against the estate.
The Fatal Accidents Act, 1855 gives the dependants a claim where death is caused by a wrongful act.
But purely personal actions — defamation being the standard example — still die with the person, which is why the recurring problem “A defames B and dies before B can sue” is answered against B.

💡 EXAM TIP — a new question, so answer it as a list

The trap. This head first appeared in January 2025 and is not in most textbooks as a single chapter, so students improvise and produce a vague half-page.

What to write. State the general rule in one line. Then two clear groups — who cannot sue, who cannot be sued — with a named authority or statute against each. Finish with actio personalis and its statutory exceptions.

Why it scores. The question says “exceptions”, so the marks sit in the breadth of the list, not the depth of any one item. Nine short, correctly-labelled exceptions beat three beautifully-written ones.

The maxim: Actio personalis moritur cum persona — “a personal action dies with the person.”

In Simple Terms: at common law, if either the wrongdoer or the victim died, the claim died too. Statute has since rescued most claims, but the wholly personal ones — above all defamation — still perish.

flowchart TD
    G["GENERAL RULE — any person may sue and be sued in tort"]
    G --> S["Limits on SUING: minor (next friend) · unborn child · alien enemy · insolvent · corporation"]
    G --> B["Limits on BEING SUED: foreign sovereigns & diplomats · judicial officers · the State · minors and lunatics where intent is required"]
    G --> D["ON DEATH — actio personalis moritur cum persona, cut back by statute; defamation still dies"]

Case Laws

Kasturi Lal v State of U.P. (1965) — sovereign function; State not liable (the position has since narrowed).
State of Rajasthan v Vidyawati (1962) — State held liable for its driver’s negligence.
N. Nagendra Rao v State of A.P. (1994) — sovereign immunity confined to a narrow class of functions.

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