Discharge and Extinction of Tortious Liability: The Ways a Good Claim Ceases to Exist

A cause of action in tort may be perfectly good when it accrues and yet be unenforceable when the plaintiff comes to sue. The wrong is not undone; the right to a remedy is gone. There are seven recognised modes: the death of a party, waiver by election of an inconsistent remedy, accord and satisfaction, release, judgment recovered, acquiescence, and the expiry of the period of limitation. Some of them extinguish the right itself and some merely bar the remedy, and the distinction matters because a barred remedy may revive and an extinguished right does not.

1. The Seven Modes

2. Death of a Party

• The old maxim is actio personalis moritur cum persona: a personal action dies with the person. It applied to the death of either party, and its effect was that a wrongdoer escaped by dying and a victim's family took nothing by his death.
• Section 306 of the Indian Succession Act, 1925 governs survival. All demands and all rights to prosecute or defend any action existing in favour of or against a person at the time of his decease survive to and against his executors or administrators, except causes of action for defamation, assault as defined in the Indian Penal Code, or other personal injuries not causing the death of the party.
• The exception is the surviving fragment of the old maxim, and it is the reason a claim for pain and suffering short of death does not pass to the estate.
• The Fatal Accidents Act, 1855 gives the dependants their own claim, which is a new cause of action and not a survival of the deceased's. It coexists with the survival claim and both should be pleaded.
• For a motor accident the Motor Vehicles Act, 1988 supplies the route, and the dependency is computed on the multiplier method: TORT 084 and TORT 087.

3. Waiver and Election

• Where one set of facts gives two alternative and inconsistent remedies, the plaintiff must choose. Having chosen, he cannot afterwards take the other.
• The standard instance is waiver of the tort. A defendant who converts goods and sells them may be sued in conversion for their value, or in quasi contract for the proceeds of the sale as money had and received. The plaintiff elects: TORT 109.
• The expression waiver is misleading, since the plaintiff is not forgiving the wrong but choosing between two ways of complaining of it.
• United Australia Ltd. v. Barclays Bank Ltd., [1941] AC 1 settles when the election becomes final: the choice binds only when judgment has been obtained and satisfied, and the mere commencement of one form of action does not bar the other.
• The remedies must be genuinely inconsistent. Damages in tort and an injunction are cumulative and not alternative, and pleading both is not an election at all.

4. Accord and Satisfaction, and Release

• Accord without satisfaction discharges nothing. The agreement to take a substituted performance is not itself the discharge; the performance is.
• The rule about releasing one joint tortfeasor is the trap. A settlement drawn as a general release may, in form, discharge wrongdoers the plaintiff never intended to release. The answer is a covenant not to sue coupled with an express reservation of rights against the others: TORT 121.
• A settlement obtained by fraud may be set aside, and section 17 of the Limitation Act, 1963 postpones the running of time until the fraud is discovered: TORT 151.
• A concluded settlement is otherwise final. The curative petition in the Bhopal litigation was dismissed in March 2023 on the footing that a settlement is either valid or must be set aside for fraud, and cannot be reopened for a top up: TORT 057.

5. Judgment Recovered

• A cause of action merges in the judgment given upon it. Transit in rem judicatam: the plaintiff's right is thereafter to enforce the decree and not to sue again.
• At common law a judgment against one joint tortfeasor barred an action against the others, even if it was never satisfied, because the cause of action was one and it had merged. The rule caused obvious injustice where the first defendant was insolvent.
• It was abolished by statute in England and is not followed in India, where a plaintiff who has an unsatisfied judgment against one wrongdoer may proceed against another: TORT 121.
• Against independent tortfeasors the rule never applied, there being separate causes of action against each.
• Res judicata under section 11 of the Code of Civil Procedure, 1908 is the wider principle, and bars a second suit on a matter directly and substantially in issue which has been heard and finally decided.

6. Acquiescence

• A plaintiff who stands by while the wrong is committed, knowing of it and of his own rights, may be refused relief.
• It operates on the discretionary remedies and not on the right to damages. An injunction may be refused for acquiescence where damages must still be given, which is why section 41 of the Specific Relief Act, 1963 lists conduct disentitling the plaintiff as a ground for refusing an injunction: TORT 160.
• Mere delay is not acquiescence, though delay is itself a ground on which discretionary relief may be refused. Acquiescence requires knowledge of the wrong and conduct encouraging the defendant to continue.
• It is closely related to estoppel, and where the defendant has altered his position on the faith of the plaintiff's inaction the case for refusing relief is strongest.
• It cannot legalise a continuing public nuisance, no length of time doing so, and it cannot confer a right to trespass: TORT 138 and TORT 139.

7. Limitation

• The Limitation Act, 1963 bars the remedy and does not ordinarily extinguish the right, section 27 being the exception, which extinguishes the right to property on the expiry of the period for a suit for possession.
• Part VII of the Schedule governs tort claims, and the periods are short: one year for defamation, for false imprisonment, for malicious prosecution and for most trespasses to the person, and three years for the general negligence and property claims.
• Article 113 is the residuary article, three years from when the right to sue accrues, and it catches whatever the specific articles do not.
• Where damage is an ingredient the cause of action accrues when the damage occurs, not when the careless act was done, which is why limitation in negligence runs from the damage: TORT 111.
• Section 22 provides for a continuing wrong, so a fresh period begins at every moment during which the breach continues. This is why a continuing nuisance or trespass is actionable for the period within limitation however long it has gone on: TORT 139.
• Section 17 postpones the running of time in cases of fraud or concealment, until the plaintiff has discovered it or could with reasonable diligence have done so.
• Section 6 protects a person under a legal disability, a minor, an insane person or an idiot, allowing him to sue within the prescribed period after the disability ceases.
• The subject is examined fully in TORT 097.

8. Which Modes Extinguish and Which Merely Bar

9. The Position Stated Shortly

1. Tortious liability is discharged by death of a party, waiver, accord and satisfaction, release, judgment recovered, acquiescence and limitation.

2. Actio personalis moritur cum persona survives only in the exception to section 306 of the Indian Succession Act, 1925 for defamation, assault and other personal injuries not causing death.

3. The Fatal Accidents Act, 1855 gives the dependants a fresh cause of action, which is not a survival of the deceased's.

4. Waiver is an election between alternative and inconsistent remedies, and United Australia v. Barclays Bank holds that it binds only on a satisfied judgment.

5. Accord without satisfaction discharges nothing; the performance and not the agreement is the discharge.

6. A general release may in form discharge a co wrongdoer, and the answer is a covenant not to sue with an express reservation of rights.

7. A cause of action merges in the judgment given upon it, though the rule barring an action against other joint tortfeasors is not followed in India.

8. Acquiescence bars the discretionary remedies and not the right to damages, and is reflected in section 41 of the Specific Relief Act, 1963.

9. The Limitation Act, 1963 bars the remedy and not the right, except under section 27, and Part VII of the Schedule governs tort claims.

10. Section 22 gives a fresh period for a continuing wrong, section 17 postpones time for fraud, and section 6 protects a person under a legal disability.