Tortious liability of the state

10 January, 2024

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Introduction

Tortious liability is the legal responsibility of the State for any damage or harm caused to persons or their property because of wrongful omissions or acts. The word tort is derived from the Latin word ‘Tortum’ which means ‘to twist’. According to Salmond, “A tort is a civil wrong for which the remedy is an action for unliquidated damages and which is not exclusively the breach of a contract, or the breach of a trust, or the breach of other merely equitable obligation.” Tortious liability is an essential aspect as it ensures that the State is held accountable for its actions and provides a legal remedy to the victims. India’s tortious liability of the state has evolved through judicial interpretations and landmark judgments. Under British Rule, the concept of sovereign immunity protected the State from being held liable for its wrongful acts.

After India gained independence in 1947, sovereign immunity was gradually curtailed. The Constitution of India provided for fundamental rights and established the State's liability for violating these rights. In the M.C. Mehta vs. Union of India (December 20, 2986) case, Justice Bhagwati said “We have to evolve new principles and lay down new norms which would adequately deal with the new problems which arise in a highly industrialized economy. We cannot allow our judicial thinking to be constricted by reference to the law as it prevails in England or for the matter of that in any other foreign country...We are certainly prepared to receive light from whatever source it comes but we have to build up our own jurisprudence.” This article discusses the key elements of tortious liability and different types of tortious liability along with important landmark cases of the Supreme Court.

Key elements of Tortious liability

Below are the key elements of the tortious liability.

Duty: It is one of the most important elements of Tortious liability which illustrates that one person must owe some duty or obligation to another. Initially, one has to identify whether a person (defendant) owes any duty of care to another person (plaintiff). In case the defendant fails to fulfill that duty then he/she can be held liable. Similarly, like any other entity, the Government owes a duty of care towards its citizens. No direct relationship between the defendant and the plaintiff is required as the duty of care is imposed by the law.
Breach of Duty: In case there is a breach of duty (duty of care) then tortious liability arises. If it is proven that the government entity breached its duty of care then it leads to failure resulting in harm to the individuals.
Cause: The Government entity’s breach of duty must be the cause of damage or harm to its citizens. In other words, a defendant’s breach of duty must cause harm or injury to the plaintiff which means there must be a direct link between them.
Damage or Harm or Injury: To ensure that the government is liable for the breach of its duty of care, the citizens must have suffered actual loss, pain, damage, or violated their legal rights. The damage can either be physical, financial, or emotional.

Types of Torts

Based on the nature of the wrongful act committed and the damage it causes, torts are classified into various types. Some of the commonly defined types of torts are discussed as follows:

Intentional Torts

It is an action committed with the intention to cause damage or injury to another person. This means any wrongful act committed (by tortfeasor) with an intent to cause harm to the plaintiff is known as intentional tort. Some of the examples of intentional tort are as follows:

Battery: Harmful or offensive physical contact with another person with an intention to cause harm is called a battery. Some of the common examples of battery are throwing water over a person, punching on the face, throwing a chair, hitting someone with a stick, and pushing a person with force so that he/she falls.
False Imprisonment: Confinement of a person without lawful jurisdiction as well as without his will is known as false imprisonment. To constitute a tort of false imprisonment, it is not necessary to put an individual behind bars whereas a mere impossibility of escape from a certain area is sufficient to establish the false imprisonment tort.
Assault: In assault, there is no actual physical contact rather there is an intent to cause apprehension of offensive contact. For instance, if one person threatens another person to slap then the latter will have been assaulted.
Trespass: Unreasonable interference or unauthorized entry of an individual onto someone else’s property resulting in exploitation of his right to enjoy the benefit of property is known as trespass. It is of three types, Trespass to person (invasion of an individual’s right to freedom), Trespass to land (unauthorized or unlawful interference in someone’s property or causing damage to the property), and Trespass to chattels (Interfering with the property of another person and causing damage to the property or taking their belongings).
Defamation: An act of causing harm to the reputation of another person by making false statements either in written (libel) or verbal (slander) form. In case, defamation charges are proved against the defendant then compensation can be given to the plaintiff.

Negligence

Negligence occurs when an individual fails to exercise reasonable care resulting in harm to another individual or their property. To establish this type of tort, Duty, breach of duty, causation, and damages are the elements that are required to be proved.

Strict Liability

In strict liability, a person is held legally responsible for the damage caused by the action regardless of the intention or level of care exercised. Herein, a plaintiff does not need to prove the occurrence of the tort and he/she can directly sue the defendant for the same. Strict liability does not require an element of negligence or intent and defendant can be held liable for the consequences of their actions. To constitute the tort of strict liability, there must be an availability of a dangerous thing on an individual’s land, the thing must have escaped and there is no natural use of land.