TORT 014 Capacity to Sue and Be Sued Natural Persons — Law of Torts Notes for Judiciary

Capacity to Sue and Be Sued: Minors, Persons of Unsound Mind, Intoxicated Persons and Married Persons

The general rule is that every person may sue and every person may be sued in tort. Most of the disabilities the older books list have been abolished, and what remains is a small set of real questions. A minor is liable for his own torts like anybody else, and the only difficulty is the case where the wrong is in substance a breach of a contract that the law will not enforce against him. A person of unsound mind is liable for torts that do not require a particular state of mind, and not for those that do. Voluntary intoxication is no defence at all. And the disabilities of married women have gone entirely.

The four classes, the contract problem for minors, and the position of parents

1. The General Rule

Every person of full age and capacity may sue and be sued in tort. Capacity is the rule and incapacity the exception.
A person under a disability sues through a representative. Order XXXII of the Code of Civil Procedure, 1908 provides for suits by a minor through a next friend and against a minor through a guardian for the suit, and Rule 15 applies the same provisions to persons of unsound mind.
Disability affects procedure, not the substance of liability, except where the tort itself requires a state of mind the person could not have had.
Section 6 of the Limitation Act, 1963 protects a person under disability, extending the period until the disability ceases, within the limits that section prescribes.

2. Minors: Capacity to Sue

A minor may sue for a tort committed against him, through a next friend under Order XXXII Rule 1.
The duty owed to him is not reduced by his age. A defendant owes a child the same duty of care, and in some situations a higher one, because a child is less able to look after himself.
His own contributory negligence is judged by the standard of a child of his age, and a very young child is ordinarily incapable of contributory negligence at all.
He may sue for a prenatal injury in a proper case, where the injury was inflicted before birth and the damage manifested afterwards.
A parent or guardian may have a claim of his own arising from the same facts, for medical expenses incurred and, in a fatal case, under the Fatal Accidents Act, 1855.

3. Minors: Capacity to Be Sued

A minor is liable for his own torts. Minority is no defence to trespass, battery, conversion, defamation or negligence.
He is sued through a guardian for the suit, appointed under Order XXXII Rule 3.
Where the tort requires a state of mind, his age is relevant to whether he had it. A child too young to form the intention required by deceit cannot commit it.
In negligence the standard is that of a reasonable child of his age, not that of a reasonable adult.
The decree runs against his own property, and not against his parents.

4. The Minor's Tort Connected with a Contract

⚠ The rule and the reason for it

A minor's agreement is void under Section 11 of the Indian Contract Act, 1872, as settled in Mohori Bibee v. Dharmodas Ghose. It would defeat that protection if a plaintiff could simply reframe his contract claim as a claim in tort. So the rule is that a minor is not liable in tort where the tort is in substance a breach of the contract, that is, where the wrongful act is merely the negligent or improper performance of the very thing the contract permitted. But he is liable where the act complained of falls outside the contract altogether, so that it is an independent wrong and not a dressed up breach. The line is between doing badly what the contract allowed, and doing something the contract never allowed at all.

📖 Jennings v. Rundall (1799) 8 TR 335

Facts A minor hired a mare for riding. He rode her so hard and immoderately that she was injured. The owner sued him in tort for the damage.

Held The minor was not liable.

Ratio The wrong complained of was the negligent performance of the very act the contract of hire permitted. To allow the action would be to enforce the contract indirectly against a person whom the law protects from contractual liability.

📖 Burnard v. Haggis (1863) 14 CBNS 45

Facts A minor hired a horse expressly for riding, and expressly on the terms that it was not to be used for jumping. He lent it to a friend, who used it for jumping, and the horse was impaled on a fence and killed.

Held The minor was liable.

Ratio The act complained of was outside the contract of hire altogether. What the minor did was not a negligent performance of the contract but something the contract expressly forbade, and so an independent tort for which minority was no answer.

The situation	Liable in tort	Why
A minor hires a horse for riding and rides it carelessly	No	The wrong is the improper performance of what the contract permitted
A minor hires a horse for riding and uses it for jumping, contrary to the terms	Yes	The act is outside the contract altogether
A minor hires goods and sells them	Yes	A sale is outside any contract of hire; the tort is conversion
A minor obtains goods by falsely representing that he is of full age	No contractual liability; restitution may be ordered in a proper case	A claim in deceit would be an indirect enforcement of the void contract
A minor commits a trespass or a battery	Yes	No contract is involved at all

5. Parental Liability

A parent is not vicariously liable for the torts of his child, merely as a parent. There is no such doctrine in Indian or English law.
He is liable for his own negligence. The liability is personal and is founded on what the parent did or failed to do.
The commonest instance is entrusting a dangerous thing to a child unfit to be trusted with it. In Bebee v. Sales (1916) 32 TLR 413 a father who allowed his fifteen year old son to keep an air gun, after complaints that the son had already caused damage with it, was held liable for the injury the son later caused.
He is also liable where he failed to control a child he knew to be dangerous, or where the child was acting as his agent or servant.
Otherwise the plaintiff's remedy is against the child alone, which in practice is often worth little, and that is the reason the question is litigated at all.

6. Persons of Unsound Mind

He is liable for torts that do not require a particular state of mind, provided the act was voluntary. Trespass, conversion and negligence fall in this class.
He is not liable where the tort requires intention or malice and his condition made it impossible for him to form it. Malicious prosecution and deceit are examples.
The act must still be voluntary. A movement over which he had no control at all is not an act of his in any sense, and no tort follows.
In negligence the standard is the ordinary objective one, which means his condition does not lower the standard of care expected of him.
He sues and is sued through a next friend or guardian under Order XXXII Rule 15 of the Code of Civil Procedure, 1908.
The reasoning is the same as for minors: the law is placing a loss rather than apportioning blame, and as between an innocent plaintiff and a defendant whose act caused the harm, the defendant bears it.

7. Intoxicated and Married Persons

	The position
Voluntary intoxication	No defence whatever. The standard of care remains that of the sober reasonable man, and the defendant is liable for what he did while drunk exactly as if he had been sober
Involuntary intoxication	May negative a state of mind the tort requires, on the same footing as unsoundness of mind, but does not lower the standard in negligence
Getting drunk itself	May be the negligence complained of, as where a person drinks and then drives, or undertakes work requiring care
Married women: suing	A married woman may sue in her own name for any tort. The old rule requiring the husband to be joined has gone
Married women: being sued	She is liable for her own torts and is sued in her own name. The Married Women's Property Act, 1874 removed the Indian disability
The husband's liability	He is not liable for her torts merely as her husband. He is liable only on ordinary principles, as where she acted as his agent
Actions between spouses	A husband and wife may sue each other in tort. The old common law bar has no application in India

8. The Position Stated Shortly

1. Every person may sue and be sued in tort; capacity is the rule and incapacity the exception.

2. A minor sues through a next friend and is sued through a guardian for the suit, under Order XXXII of the Code of Civil Procedure, 1908.

3. A minor is liable for his own torts, and minority is no defence to trespass, conversion or negligence.

4. Where the tort requires a state of mind, his age is relevant to whether he had it, and in negligence he is judged by the standard of a reasonable child of his age.

5. A minor is not liable in tort where the wrong is in substance a breach of the contract, because his agreement is void under Section 11 of the Contract Act: Jennings v. Rundall.

6. He is liable where the act falls outside the contract altogether: Burnard v. Haggis.

7. A parent is not vicariously liable for his child's torts, but is liable for his own negligence, as in Bebee v. Sales.

8. A person of unsound mind is liable for torts not requiring a particular state of mind, provided the act was voluntary, and not for those that do.

9. Voluntary intoxication is no defence at all, and the standard remains that of the sober reasonable man.

10. The disabilities of married women have been abolished; a married woman sues and is sued in her own name, the husband is not liable merely as husband, and spouses may sue each other.