General Rules Governing the Law of Torts: Understanding the Basics

Tort law does not operate on a simple formula of “wrong committed = liability imposed.” Before any tortious claim can succeed, a series of foundational questions must be answered: Who has the legal standing to sue? Who can be held liable, and under what circumstances? If someone else caused the harm, can a third party still be held responsible? And once liability is established, how much damage is actually recoverable? These questions are governed by a set of general rules that form the backbone of tort law. Understanding them is essential for anyone studying or practising law in India.

Capacity to sue and be sued 🔗

Capacity in tort law refers to the legal ability of a person or entity to initiate or defend a tort claim. The general rule is straightforward: any person who suffers harm due to another’s wrongful act can file a suit. But several categories of persons and entities are subject to special rules.

Minors 🔗

A minor can be held liable in tort if they commit a wrongful act intentionally or negligently – this is treated much like the liability of an adult. However, a minor cannot independently file a lawsuit; they must do so through a next friend (usually a parent or guardian). The tort must also be independent of any contract, since minors lack contractual capacity. A child who throws a stone and breaks a neighbour’s window, for instance, may be held liable for trespass or negligence.

Persons of unsound mind 🔗

Mental incapacity is generally not a complete defence in tort law. Courts may still hold a person of unsound mind liable, particularly for torts that do not require mens rea (mental intention), such as trespass. However, in torts that require intent or malice – like deceit or defamation – the defendant’s mental state becomes relevant, and courts may take incapacity into account.

Corporations 🔗

A corporation is a juristic person – it exists in law independently of its members and shareholders. It can both sue and be sued in tort. Under Indian law, companies can be directly liable for negligence, nuisance, or defamation if the wrongful act is committed on their behalf. They can also face vicarious liability for torts committed by their employees during the course of employment. A factory that pollutes a river, for example, can be sued for public nuisance.

The State 🔗

Historically, governments enjoyed broad immunity from tort claims under the doctrine that “the king can do no wrong.” In India, this position has been significantly transformed. Under Article 300 of the Indian Constitution, the Union of India and state governments are recognised as juristic persons that can sue and be sued. The Government of India may be sued in its name as “Union of India,” and each state government in its own name. However, the extent of liability depends on whether the act in question was a sovereign function or a non-sovereign function.

Sovereign functions – such as defence, policing, and the administration of justice – have traditionally attracted immunity. Non-sovereign functions – such as running commercial enterprises, maintaining roads, or operating government hospitals – are treated like acts of a private individual, and the State can be held fully liable. In the landmark case N. Nagendra Rao & Co. v. State of Andhra Pradesh (1994), the Supreme Court considerably narrowed sovereign immunity, holding that the State is vicariously liable when citizens suffer damage due to the negligent acts of public servants, and that the traditional sovereign/non-sovereign distinction cannot serve as an automatic shield.

Compare this with Kasturi Lal v. State of UP (1965), where the Supreme Court denied liability because the wrongful act – misappropriation of seized gold by a police officer – was held to fall within sovereign police functions. This case drew considerable criticism and was later distinguished in subsequent decisions. In Nilabati Behera v. State of Orissa (1993), compensation was awarded for custodial death, with the court holding that sovereign immunity does not apply to violations of fundamental rights enforceable under Articles 32 and 226 of the Constitution.

Vicarious liability 🔗

The general rule in tort law is that a person is only responsible for their own wrongful acts. Vicarious liability is an important exception – it is the legal principle by which one person is held liable for the tortious acts of another, purely by reason of the relationship between them. The Latin maxim respondeat superior (“let the principal be liable”) and qui facit per alium facit per se (“he who does an act through another is deemed to do it himself”) both underpin this doctrine.

Master and servant (employer and employee) 🔗

The most common form of vicarious liability arises in the employment context. An employer is vicariously liable for torts committed by an employee if three conditions are satisfied: first, a genuine employer-employee relationship must exist (as distinct from an independent contractor arrangement); second, the tort must have been committed in the course of employment; and third, the act must have sufficient connection to the employee’s authorised duties.

The “course of employment” condition has been interpreted broadly. It covers not just acts expressly authorised by the employer, but also wrongful modes of doing authorised acts. If an employer authorises a driver to deliver goods and the driver causes an accident while on the route, the employer is liable – even if the driver was negligent. The employer and employee are treated as joint tortfeasors, and the plaintiff may sue either or both of them.

By contrast, an employer is generally not liable for torts committed by an independent contractor. In Morgan v. Incorporated Central Council, a visitor injured by an open lift shaft could not hold the defendants liable because the maintenance had been entrusted to an independent contractor. This immunity has exceptions – for example, where the contractor is engaged to carry out an inherently dangerous activity, or where the employer has a non-delegable duty of care.

Principal and agent 🔗

A principal is vicariously liable for torts committed by their agent acting within the scope of their authority. Both the agent and the principal are treated as joint tortfeasors, and the plaintiff may sue either or both. The key question is whether the agent was acting within the authority granted by the principal at the time of the wrong. In State Bank of India v. Shyama Devi, for instance, a bank employee who misappropriated funds while acting as a depositor’s friend (not in his official bank capacity) did not attract vicarious liability for the bank, since the fraud was unconnected to his employment duties.

Partners 🔗

Under the Indian Partnership Act, partners are jointly and severally liable for torts committed by any one partner in the ordinary course of the firm’s business. In Hamlyn v. Houston & Co., one partner who bribed a clerk to breach an employment contract rendered the other partner vicariously liable – because the act fell within the scope of partnership authority.

Liability of the State under vicarious liability 🔗

The State’s vicarious liability is anchored in Article 300 of the Constitution and interpreted through case law. The State can be sued for tortious acts of its employees committed in the course of their official duties, particularly where those acts relate to non-sovereign functions. Police brutality, negligence by government doctors, and accidents caused by government vehicle drivers have all been recognised as grounds for State liability. Notably, the Law Commission of India in its very first report recommended abolishing the outdated doctrine of sovereign immunity entirely – though no legislation on the subject has been enacted to date, leaving courts to evolve the law on a case-by-case basis.

Remoteness of damage 🔗

Even where a tort has been committed and causation is established, a defendant is not automatically liable for every consequence that flows from their wrongful act. The doctrine of remoteness of damage limits liability to those consequences that bear a sufficient legal relationship to the wrongful act. The underlying rationale is that holding defendants responsible for an infinite chain of consequences would be both unjust and impractical.

The test of directness: Re Polemis (1921) 🔗

The earlier approach, established in Re Polemis and Furness, Withy & Co. Ltd. (1921), was the test of directness. Under this test, a defendant was liable for all direct consequences of their wrongful act – regardless of whether those consequences were foreseeable. In that case, stevedores negligently dropped a plank into a ship’s hold, causing a spark that ignited petrol vapours and destroyed the entire vessel. Even though the fire was an entirely unforeseeable outcome of dropping a plank, the defendants were held fully liable because the fire was a direct result of their negligent act. The test focused solely on the unbroken causal chain, not on what a reasonable person could have predicted.

The test of reasonable foreseeability: The Wagon Mound (1961) 🔗

The test of directness was decisively rejected by the Privy Council in Overseas Tankship (UK) Ltd. v. Morts Dock and Engineering Co. Ltd. – widely known as The Wagon Mound (No. 1) (1961). In that case, oil spilled from the defendants’ ship in Sydney Harbour drifted to the plaintiff’s wharf, where welding operations were underway. The oil caught fire, causing extensive damage. The Privy Council found that while the oil spill itself was foreseeable, the resulting fire was not – furnace oil floating on water was not expected to ignite. The defendants were therefore held not liable for the fire damage.

The Privy Council held that the correct test for remoteness is reasonable foreseeability: a defendant is only liable for damage of a type that was reasonably foreseeable at the time of the wrongful act. Crucially, the defendant need not foresee the exact manner or extent of the harm – only the general type. The Wagon Mound decision shifted the law significantly in favour of defendants, replacing a broad rule of unlimited liability with one grounded in predictability and fairness.

Refinements to the foreseeability test 🔗

The foreseeability test has been further refined by subsequent decisions. In Hughes v. Lord Advocate (1963), a child was injured when a paraffin lamp fell into an unguarded manhole and caused an unexpected explosion. The House of Lords held the defendants liable – some injury from the lamp was foreseeable, even though the exact manner of the explosion was not. This established that as long as the type of harm is foreseeable, it does not matter that the precise way in which it occurred was not.

An important qualification is the thin skull rule (or “egg-shell skull rule”): a defendant must take the victim as they find them. If the plaintiff has a pre-existing vulnerability that makes them more susceptible to harm than an ordinary person, the defendant is still liable for the full extent of the damage – provided the type of harm was foreseeable. Unforeseeable aggravation of a known type of injury does not break the chain of liability.

Position in India 🔗

Indian courts have generally adopted the test of reasonable foreseeability as laid down in the Wagon Mound case. Although there is no direct Supreme Court ruling on the precise test of remoteness, several High Court decisions confirm the application of foreseeability. In Veeram v. Krishna Murthi (AIR 1966 Kerala 172), a lorry driver was held liable for injuring a schoolboy who was crossing the road after a bus passed – the injury was a reasonably foreseeable consequence of the negligent driving. Indian courts continue to apply this standard in negligence claims, limiting recovery to consequences that a reasonable person in the defendant’s position would have anticipated.

Why these rules matter together 🔗

The rules on capacity, vicarious liability, and remoteness of damage do not operate in isolation – they interact to define the full scope of tortious accountability. Establishing that the defendant had capacity, that liability can be attributed to them (whether directly or vicariously), and that the harm suffered was not too remote are all essential steps in a successful tort claim. Without these principles working in tandem, tort law would either impose impossible burdens on defendants or leave plaintiffs without meaningful remedies. For students of law in India, internalising these rules is the first step toward understanding how courts actually reason through complex civil liability disputes.

What do you think? Given that India still lacks a comprehensive statute governing the State’s tortious liability, should the sovereign/non-sovereign distinction be codified and clarified by Parliament – or should courts continue to develop it case by case? And does the test of reasonable foreseeability always achieve a fair balance between compensating victims and limiting the liability of defendants?

References

1. https://www.legalserviceindia.com/legal/article-4532-liability-strict-liability-absolute-liability-and-vicarious-liability-under-law-of-tort.html
2. https://blog.ipleaders.in/limits-sovereign-immunity/
3. https://blog.ipleaders.in/act-of-state-as-a-defence-in-indian-law/
4. https://lawbhoomi.com/doctrine-of-sovereign-immunity/
5. https://www.legalservicesindia.com/article/1634/Vicarious-Liability-in-India.html
6. https://www.legalserviceindia.com/legal/article-10378-vicarious-liability-under-torts.html
7. https://vidhilegalpolicy.in/wp-content/uploads/2015/06/VidhiReportonStateLiabilityinTort.pdf
8. https://lexpeeps.in/doctrine-of-sovereign-immunity/
9. https://blog.ipleaders.in/remoteness-damage-torts/
10. https://testbook.com/ugc-net-law/remoteness-of-damages
11. https://lawcolumn.in/doctrine-of-remoteness-of-damages/