Doctrine of sovereign immunity and its relevancein India

1. Vicarious Liability
2. Torts against persons and personal relations
3. Defamation
4. Parental relations, master and servant relation
5. Malicious prosecution, wrongful confinement
6. Wrongs affecting property
7. Trespass to land
8. Constitutional torts and Public liability for victim’scompensation.

Vicarious liability :-
Respondeat superior, which literally means “let the master answer,” is a doctrine that holds
one party liable for another’s actions based on their relationship. While commonly applied
to hold employers responsible for certain types of their employees’ actions, this doctrine
can also be relevant in principal/agent relationships. Simple negligence claims (e.g.,
negligent hiring, negligent entrustment of an automobile) may also apply in these
relationships.

1. Employee/employer relationships: An employer is vicariously liable for the acts

of an employee as long as the employee’s acts are in the scope of employment. Thus, when
an employee acts to further the employer’s business, the employer will be vicariously liable
(even for intentional torts). However, if the employee commits an intentional tort for purely
personal reasons unrelated to the employment, most jurisdictions will not hold an
employer vicariously liable.
Employers are vicariously liable, under the respondeat superior doctrine, for negligent acts
or omissions by their employees in the course of employment (sometimes referred to as
'scope of employment'). For an act to be considered within the course of employment, it
must either be authorized or be so connected with an authorized act that it can be
considered a mode, though an improper mode, of performing it.
Courts sometimes distinguish between an employee's "detour" vs. "frolic". For instance, an
employer will be held liable if it is shown that the employee had gone on a mere detour in
carrying out their duties, whereas an employee acting in his or her own right rather than
on the employer's business is undertaking a"frolic" and will not subject the employer to
liability. Employer will be held liable if an employer does an authorized act in an
unauthorized way
Generally, an employer will not be held liable for assault or battery committed by employees,
unless the useof force was part of their employment (such as a police officer), or they were in a
field likely to create friction with persons they encountered (such as car re-possessors).
However, the employer of an independent contractor is not held vicariously liable for the
tortious acts of the contractor, unless the contractor injures someone to whom the employer
owes a non-delegable duty of care, as when the employer is a school authority and the injured
party a pupil.

Employers are also liable under the common law principle represented in the Latin phrase,
"qui facit per alium facit per se" (one who acts through another acts in one's own interests).
That is a parallel concept to vicarious liability and strict liability, in which one person is held
liable in criminal law or tort for the acts or omissions of another.

2. Independent contractor/employer relationships: Generally, employers are not

vicariously liable for acts committed by independent contractors. However, when
inherently dangerous activities or non- delegable duties (e.g.,duty of railroad to maintain
safe crossings, duty of storekeeper to make the premises reasonably safe for customers) are
involved, an employer can be held vicariously liable.

3. Automobile driver/owner relationships: In many jurisdictions, the owner is only

vicariously liable if the driver is on an errand for the owner. However, in some jurisdictions,
an owner is vicariously liable for drivers that are members of the owner’s household as long
as the car is intended for family use. In other jurisdictions, as long as the driver has the
owner’s permission to operate the vehicle, the owner is vicariously liable.

Principals' liability
The owner of an automobile can be held vicariously liable for negligence committed by a
person to whom the car has been loaned, as if the owner was a principal and the driver his
or her agent, if the driver is using the car primarily for the purpose of performing a task for
the owner. Courts have been reluctant to extend this liability to the owners of other kinds
of chattel. For example, the owner of a plane will not be vicariously liable for the actions of
a pilot to whom he or she has lent it to perform the owner's purpose. In the United States,
vicarious liability for automobiles has since been outlawed with respect to car leasing
and rental in all 50 states.
One example is in the case of a bank, finance company or other lien holder performing a
repossession of an automobile from the registered owner for non-payment, the lien holder
has a non-delegatable duty not to cause a breach of the peace in performing the
repossession, or it will be liable for damages even if the repossession is performed by an
agent. This requirement means that whether repossession is performed by the lien holder
or by an agent, the repossessor must not cause a breach of the peace or the lien holder will
be held responsible.
This requirement not to breach the peace is held upon the lien holder even if the breach is
caused by, say, the debtor objecting to the repossession or resists the repossession. In the
court case of MBank El Paso v. Sanchez, 836 S.W.2d 151, where a hired repossessor towed
away a car even after the registered owner locked herself in it, the court decided that this
was an unlawful breach of the peace and declared the repossession invalid. The debtor was
also awarded $1,200,000 in damages from the bank.

4. Parental liability
In the United States, the question of parental responsibility generally and the issue of
parental vicarious liability for the torts of their children is evolving. What is clear is that
parents can be held liable for their own negligent acts, such as failure to supervise a child,
or failure to keep a dangerous instrument such as a handgun outside the reach of their
children.

5. The liability of corporations in tort

In English law, a corporation can only act through its employees and agents so it is
necessary to decide in which circumstances the law of agency or vicarious liability will
apply to hold the corporation liable in tort for the frauds of its directors or senior officers.
If liability for the particular tort requires a state of mind, then to be liable, the director
or senior officer must have that state of mind and it must be attributed to the company. In
Meridian Global Funds Management Asia Limited v. Securities Commission [1995] 2 AC
500, two employees of the company, acting within the scope of their authority but
unknown to the directors, used company funds to acquire some shares. The question was
whether the company knew, or ought to have known that it had acquired those shares.
The Privy Council held that it did. Whether by virtue of their actual or ostensible authority
as agents acting within their authority (see Lloyd v Grace, Smith & Co. [1912] AC 716) or
as employees acting in the courseof their employment (see Armagas Limited v Mundogas
S.A. [1986] 1 AC 717), their acts and omissions and their knowledge could be attributed to
the company, and this could give rise to liability as joint tortfeasors where the directors
have assumed responsibility on their own behalf and not just on behalf of the company.
So if a director or officer is expressly authorized to make representations of a particular
class on behalf of the company, and fraudulently makes a representation of that class to a
Third Party causing loss, the company will be liable even though the particular
representation was an improper way of doing what he was authorized to do. The extent of
authority is a question of fact and is significantly more than the fact of an employment
which gave the employee the opportunity to carry out the fraud.
In Panorama Developments (Guildford) Limited v Fidelis Furnishing Fabrics Limited
[1971] 2 QB 711, a company secretary fraudulently hired cars for his own use without the
knowledge of the managing director. A company secretary routinely enters into contracts
in the company's name and has administrative responsibilities that would give apparent
authority to hire cars. Hence, the company was liable.
Employees' Continued Liability and Indemnity
A common misconception involves the liability of the employee for tortious acts committed
within the scope and authority of their employment. Although the employer is liable under
respondeat superior for the employee's conduct, the employee, too, remains jointly liable
for the harm caused. As the American Law Institute's Restatement of the Law, Third, Agency
§ 7.01 states,
An agent is subject to liability to a third party harmed by the agent’s tortious conduct.
Unless an applicable statute provides otherwise, an actor remains subject to liability
although the actor acts as an agent or an employee, with actual or apparent authority, or
within the scope of employment.

6. State Liability :
Under the English Common Law the maxim was "The King can do no wrong" and
therefore, the King was not liable for the wrongs of its servants. But, in England the position
of old Common law maxim has been changed by the Crown Proceedings Act, 1947. Earlier,
the King could not be sued in tort either for wrong actually authorised by it or committed
by its servants, in the course of their employment. With the increasing functions of State,
the Crown Proceedings Act had been passed, now the Crown is liable for a tort committed
by its servants just like a private individual. Similarly, in America, the Federal Torts Claims
Act, 1946 provides the principles, which substantially decides the question of liability of
State.
In ancient India, under the Hindu jurisprudence, it was an undisputed principle that no one
is exempted from the operation of law. This liability to equal punishment extended even to
the king, relative of the king, a judge or an ordinary citizen. The rule of law was considered
supreme and binding on everyone alike. The important functions of the king were
concerned with protection of people, punishment of crimes and maintenance of dharma or
social order.

In the medieval Indian history the personal liability of officers for their wrongs was more
vogues with evidences showing equality between the ruler and the ruled subject. Only
when the king considered it proper to undertake the burden of public officer, it was then
the state treasury used to pay the compensation. Dharma was considered the
administrative law binding the king as well as the subjects. Bothin Hindu law and Muslim
law, the rulers themselves administered justice as far as possible and the rest was done by
the exceptionally learned and honest judges. The most significant recent trend has been an
assertion on the part of the court that it has a power to grant compensation. The principle
of personal liability of public servants for wrongs done to citizens is already a part of Indian
law based on English case laws.
State liability in India is defined by the Article 300(1) of the Constitution that originated
from Section 176 of the Government of India Act, 1935. This could be traced back from the
Section 32 of the Government of India Act, 1915, the genesis of which can be found in
Section 65 of the Government of India Act, 1858. It will thus be seen that by the chain of
enactment beginning with the Act of 1858, the Government of India and Government of
each State are in line of succession of the East India Company. In other words, the liability
of the Government is the same as that of the East India Company before, 1858.

7. Sovereign Functions:
Sovereign functions are those actions of the state for which it is not answerable in any court
of law. For instance, acts such as defence of the country, raising and maintaining armed
forces, making peace or war, foreign affairs, acquiring and retaining territory, are functions
which are indicative of external sovereignty and are political in nature. Therefore, they are
not amenable to jurisdiction of ordinary civil court. The State is immune from being sued,
as the jurisdiction of the courts in such matters is impliedly barred.

The distinction between sovereign and non-sovereign functions was considered at some
length in N. Nagendra Rao v. State of AP. All the earlier Indian decisions on the subject
were referred to. The court enunciated the following legal principles, in its judgment:
In the modern sense, the distinction between sovereign or non-sovereign power thus does
not exist. It all depends on the nature of the power and manner of its exercise.
Legislative supremacy under the Constitution arises out of constitutional provisions. The
legislature is free to legislate on topics and subjects carved out for it. Similarly, the executive
is free to implement and administer the law. A law made by a legislature may be bad or may
be ultra vires, but, since it is an exercise of legislative power, a person affected by it may
challenge its validity but he cannot approach a court of law for negligence in making the
law. Nor can the Government, in exercise of its executive action, be sued for its decision
on political or policy matters. It is in public interest that for acts performed by the State,
either in its legislative or executive capacity, it should not be answerable in torts. That
would be illogical and impractical. It would be in conflict with even modern notions of
sovereignty.

Pre-Constitution Judicial Decisions:

1. Peninsular & Oriental Steam Navigation Company v Secretary :
A consideration of the pre-Constitution cases of the Government’s liability in tort begins
with the judgment of the Supreme Court of Calcutta in the case. P. & O. Steam Navigation
Co. v. Secretary of State.
The principle of this case holds that if any act was done in the exercise of sovereign
functions, the East IndiaCompany or the State would not be liable. It drew quite a clear
distinction between the sovereign and non- sovereign functions of the state.
As the facts of the case go, a servant of the plaintiff-company was proceeding on a highway
in Calcutta, driving a carriage which was drawn by a pair of horses belonging to the plaintiff.
He met with an accident, caused by negligence of the servants of the Government. For the
loss caused by the accident, the plaintiff claimed damages against the Secretary of State for
India.

The Supreme Court observed that the doctrine that the ‘King can done wrong’, was
applicable to the East India Company. The company would have been liable in such cases
and the Secretary of State was thereafter also liable. This arose out of the section 65,
Government of India Act, 1858, which equated the liability of the Secretary of State for India
with that of the East India Company. Distinguishing between sovereign and non-sovereign
functions it was held that if a tort were committed by a public servant in the discharge of
sovereign functions, no action would lie against the Government – e.g. if the tort was
committed while carrying on hostilities or seizing enemy property as prize.
 Secretary of State v. Hari Bhanji,In this case, the Madras High Court held that State
immunity was confined to acts of State. In the P & O Case, the ruling did not go beyond acts
of State, while giving illustrations of situations where the immunity was available.
It was defined that Acts of State, are acts done in the exercise of sovereign power, where
the act complained of is professedly done under the sanction of municipal law, and in
exercise of powers conferred by law. The mere fact that it is done by the sovereign
powers and is not an act which could possibly be done by a private individual does not
oust the jurisdiction of the civil court.

The Madras judgment in Hari Bhanji holds that the Government may not be liable for acts
connected with public safety, even though they are not acts of State. This view was re-
iterated in Ross v. Secretary of State. The Allahabad High Court took a similar view in
Kishanchand v. Secretary of State.
However, in Secretary of Secretary of State v. Cockraft, making or repairing a military road
was held to be a sovereign function and the Government was held not liable, for the
negligence of its servants in the stackingof gravel on a road resulting in a carriage accident
that injured the plaintiff.

Post Constitution Judicial Decisions

State of Haryana v. Santra, the ratio of this case was on the principles of state liability
for negligence. Here it was clearly established that the doctor while performing the
operation was acting as a government servant and acting in the course of employment of
the government. Hence when there was negligence, it amounted to acting in bad faith, and
so the defence of sovereign immunity could not be used by the state. Moreover it was also
held that such negligence which could have been perceived by a professional who had a
duty to do so should take into consideration these matters and cannot escape liability by
claiming defenceof consent by the petitioner.
The respondent in the above case was a poor lady who went under a sterilization operation
at the General Hospital, Gurgaon, as she already had seven children and wanted to take
advantage of the family planning scheme launched by the State Government of Haryana.
Smt. Santra was informed that she would not conceive in future. Smt. Santra approached
the Chief Medical Officer, Gurgaon, for her sterilization in 1988. But she gave birth to a
female child. This led her to file a suit claiming Rs. 2 lakhs as damages for medical negligence
due to “failed sterilization” which was decreed for a sum of Rs. 54,000/- with interest at the
rate of 12 per cent per annum from the date of institution of the suit till the payment of the
decretal amount. Two appeals were filed against this decree in the court of District Judge,
Gurgaon, which were disposed of by Addl. District Judge, Gurgaon, by a common judgment
dated 10.5.1999. Both the appeals - one filed by the State of Haryana and the other by Smt.
Santra were dismissed. The second appeal filed by the State of Haryana was summarily
dismissed by the Punjab & Haryana High Court on 3.8.1999.

There are two major issues involved in the case. One is that there was negligence on the
part of the doctor who operated on her as the operation was a failure. Moreover as the
operation took place in a GovernmentHospital, the state should be vicariously liable for the
negligent act of its servant in the course ofemployment. This law also deals with the Hindu
Adoptions and Maintenance act, 1956, Ss.20 and 23.the principle involved for the above
claim is the vicarious liability of the state for the negligence of its doctors. In reply to the
claim of compensation of Rs. 2 lakhs by the respondent, the officers defending the state
argued that during the time of the operation only the right Fallopian tube was operated on
and the left tube was left untouched. The appellants also argued that the negligence on
the part of the doctors would not make the state vicariously liable and that the damages
paid to her for the maintenance of the child could not be decreed as there was no element
of tort involved.
It was pleaded that she was estopped from raising the plea of negligence or from claiming
damages for an unsuccessful sterilization operation from the State.
After the District Court dismissed the matter giving a compensation of Rs 54,000 and an
interest rate of 12% per annum, the State filed a suit in the Supreme Court challenging the
decision. Due to the failure of the operation and the conceivement of the child, the
respondent had filed a suit claiming for damages worth Rs. 2 lakhs for the maintenance
of the child and herself as she already as seven children. The respondent claimed that if she
had offered herself for complete sterilization operation, both the Fallopian tubes should
have been operated upon. The doctor who performed the operation acted in the most
negligent manner.
Moreover she also stated that as the operation was carried out in a government hospital
and the doctor being a government servant, the state was vicariously liable for the act of
the doctor as a servant of the State.

Judgment:
The explanation given by the appellants for absence of state liability was rejected by the
trial court which the suit for a sum of Rs. 54,000 with pendate lite and future interest at
12% per annum. The decision was confirmed by the Appellant Court and StateHigh Court.
The trial court as also the lower appellate court bothrecorded concurrent findings of fact
that the sterilisation operation performed upon Smt. Santra was not 'complete' as in that
operation only the right Fallopian Tube was operated upon while the left Tube was left
untouched. The courts were of the opinion that this exhibited negligence on the part of the
Medical Officer who performed the operation. Smt. Santra, in spite of the unsuccessful
operation, was informed that sterilisation operation was successful and that she would not
conceive any child in future. The plea of estoppel raised by the defendants was also rejected.
The amount of Rs. 54,000/- which has been decreed bythe courts below represents the
amount of expenses which Smt. Santra would have to incur at the rate of Rs. 2,000/- per
annum in bringing up the child up to the age of puberty. Having regard to the above facts
the court said that Smt. Santra was entitled to full compensation from the State Government
and appeal was dismissed but without any order as to cost.
In certain situations, a person is held liable for the damages caused by his actions even
when the actions aredone without any ill intention or negligence on account of equity and
justice. For example, if a person keeps a lion as a pet and despite of all the precautions the
lion escapes the cage and kills someone. In this case, theowner of the lion will be liable even
though he had no ill intention to cause death and had taken all the precautions to keep the
lion in the cage. This seems just because the damage happened only because he brought a
dangerous thing on his property. He was also aware of the consequences if the lion escapes
the cage and so he should be made liable if it escapes and causes damage.
This principle of holding a person liable for his actions without any kind of wrong doing on
his part is calledthe principle of absolute liability or no fault liability. This principle was first
upheld in the case of Ryland vsFletcher by the Privy Council in 1868. However, later on
some exceptions to this were also established due to which "strict liability" is considered a
more appropriate name for this principle. In this case, the defendant hired contractors to
build a reservoir over his land for providing water to his mill. While digging, the contractors
failed to observe some old disused shafts under the site of the reservoir that lead to
plaintiff's mine on the adjoining land. When water was filled in the reservoir, the water
flooded the mine through the shafts. The plaintiff sued the defendant. The defendant
pleaded that there was no intention and since he did not know about the shafts, he was not
negligent even though the contractors were. Even so, he was held liable. J Blackburn
observed that when a person, for his own purposes, brings to his property anything that is
likely to cause a mischief if it escapes, must keep it at his peril and if it escapes and causes
damage, he must be held liable. He can take the defence that the thing escaped due to an act
of the plaintiff or due to vis major (act of God) but since nothing of that sort happened here,
then it is unnecessary to inquire what excuse would be sufficient.

To this rule promulgated by J Blackburn, another requirement was added by the Court of
ExchequerChamber, that the use must be a non-natural use of land as was the case in Ryland
vs Fletcher itself. For example, growing of regular trees is a natural use but growing
poisonous trees is not. Keeping dogs as pet is a natural use but keeping wild beasts is not.
Thus, the conditions when this rule will apply are –

 The thing kept must be dangerous - The thing kept on the land must be as such
as is likely to cause mischief if it escapes. For example, storing gas or explosives or wild
beasts are all likely to cause damage if they escape.

 The thing must escape - If the thing is within the boundary of the defendant's land,
he is not liable. The thing must escape out of his land for him to be liable. In Crowhurst vs
Amersham Burial Board 1878,branches of a poisonous tree were hanging outside the
land of the defendant. Plaintiff's cattle ate them and died. Defendant was held liable because
protrusion of branches outside his property were considered as escaping from his property.
However, in Ponting vs Noakes 1994, when the plaintiff's horse intruded over his
boundary and ate poisonous leaves of the defendant's tree, he was not held liable because
there was no escape.

 The thing must be a non natural use of land - The use must not be an ordinary
use of the land. There must be a special purpose because of which it brings additional
danger to other. In Noble vs Harrison 1926, a branch of a tree growing on defendant's land
broke and fell on plaintiff's vehicle. It was held that growing regular trees is not a non
natural use of land and the branch fell because of an inherent problem and not because of
any negligence of the defendant and so he was not liable.

As mentioned before the following are exceptions or defenses against this rule –
 Plaintiff’s own default - If the thing escapes due to plaintiff's fault the defendant
cannot be held liable. In Eastern and South African Telegraph Co. Ltd. v Capetown
Tramway Co 1902. The plaintiff's submarine cable transmissions were disturbed by
escape of electric current from defendant's tramway. It was held that since the current was
not causing any problem to regular users and it was causing problem to the cables only
because they were too sensitive and so the defendant cannot be held liable. One cannot
increase his neighbor's liabilities by putting his land to special uses.

 Act of God - In circumstances where no human has control over, no one

can be held liable. In Nichols vs Marsland 1876, the defendant created artificial lakes to
store rainwater. In that particular year, there were exceptionally heavy rains, which caused
the embankments to break causing floods, which broke defendant's bridges. It was held
that since there was no negligence on the part of the defendant and the flood happened only
because of rains so heavy that nobody could imagine, the defendant was not liable.

 Consent of the plaintiff - If the plaintiff has consented for the accumulation of the
dangerous thing,he cannot hold the defendant liable. This is also the case when an activity
is done for mutual benefit. For example, A lives on the ground floor and the defendant lives
on the floor above A's. Now, a water tank is built by the defendant to supply water for both
of them. The defendant will not be held liable for leakage of water from the tank.

 Act of third party - When a third party, who is not an employee or a servant or a
contractor of the defendant is responsible for causing the dangerous thing to escape, the
defendant will not be held liable for the damage. In Box vs Jubb 1879, the overflow from
the defendant's reservoir was caused by the blocking of a drain by some strangers. The
defendant was held not liable. However, if such act can be foreseen, this defence cannot be
pleaded because the defendant must take precautions to prevent such an act. In M.P.
Electricity Board vs Shail Kumar AIR 2002, a person was killed by a live electric wire
lying on the road. SC applied the rule of strict liability and held that the defence of act of
stranger is not applicable because snapping of wire can be anticipated and the Electricity
Board should have cut off the current as soon as the wire snapped.

 Statutory Authority - When an act is approved by the legislature or is done on the
direction of the legislature, it is a valid defence for an action of tort even when the rules of
Ryland vs Fletcher apply. However, it is not application when there is negligence.

Position in India
The principle of strict liability is applicable in India as well. For example, Motor Vehicles
Act 1938, recognizes no fault liability. Similarly, the liability of a public carrier such as
railways has also been increased from that of a bailee to an insurer. However, there has
been a deviation in the scope of this rule. Depending on the situation, its scope has been
increased as well as decreased by the courts. For example, in Madras Railway Co. vs
Zamindar 1974, the water collected in a pond for agricultural purposes escaped and
caused damage to the railway track and bridges. Here, the application of this rule was
restricted because the collection of water in such a way is a necessity in Indian conditions
and so it is a natural use of the land. This mechanism to store rainwater is used throughout
the country and since ages. Therefore, the defendant was not held liable.
A landmark case in this respect was the case of M C Mehta vs Union of India AIR 1987. In
this case, oleum gas from a fertilizer plant of Shriram Foods and Fertilizers leaked and
caused damage to several people and even killed one advocate. In this case, the rule of
Ryland vs Fletcher was applied. However, the company pleaded sabotage as a defence. SC
went one step further and promulgated the rule of Absolute Liability. It observed that the
rule of Ryland vs Fletcher was a century old and was not sufficient to decide cases as
science has advanced a lot in this year. If British laws haven't progressed, Indian courts are
not bound to follow their law and can evolve the laws as per the requirements of the society.
It held that an enterprise that engages in dangerous substances has an absolute
responsibility to ensure the safety of the common public. It is only the company that can
know the consequences of its activities and so it must take all the steps to prevent any
accident. If, even after all precautions, accident happens, the company still should be made
absolutely liable for the damages. The reason being that the company has a social obligation
to compensate the people who suffered from its activity. SC also laid down that the measure
of compensation should depend on the magnitude and capacity of the enterprise so that it
can have a deterrent effect