- The burden of proof is on the plaintiff as he needs to prove that the damage which he is claiming against the defendant is actually caused by him. Here, he needs to prove all the essentials of a tort like negligence, nuisance, or defamation.

Defendant

- The defendant is the person or entity against whom the wrong in the form of an act or omission was committed and who allegedly caused injury to the plaintiff. The main role of a defendant in a tort case is to respond to the allegations and mount some form of defence. Important considerations about a defendant include:

- Liability could be a finding if the plaintiff, in such cases, can establish that the defendant's act or conduct meets threshold requirements of a tort. This may mean proving, as the case may be, either negligence, intent, or absolute liability.

- The defendant is entitled to present defences. Standard defences include, inter alia, an argument that the plaintiff's injury was not caused by the defendant, or, alternatively, by consent on the part of the plaintiff to the risk incurred by his injury, or that the defendant's acts were justified or excused in law.

Third Parties

For some tort cases, other parties may be joined either as additional defendants or as witnesses. The latter may include:

- Vicariously Liable Parties: These are parties like employers who could be held vicariously liable for the torts of their employees, committed within the course of their employment.

- Interveners: These are third parties who may have an interest in the outcome of the case or whose interests might be affected by the case proceedings. In cases of public nuisance, for example, government authorities may intervene.

- Witnesses and Experts: Individuals whose testimony or expertise is essential in the establishment of fact or in explaining involved complicated issues.

Legal Representatives

Plaintiffs and defendants usually retain legal representatives that will represent and argue on their behalf.

- Advocates: Those who are attorneys representing the parties in court, presenting evidence, and arguing points in law.

- Solicitors: In some cases, solicitors prepare the case, advise on matters of law and handle procedural issues, while advocates or barristers represent the client in the courtroom.

Capacity to sue and be sued

Capacity to sue and be sued is one of the essential ingredients in the law of tort, which categorizes eligibility among parties for the prosecution or defence of an action in the case of a tort.

1. General Principles

- Capacity to Sue: This is the legal ability of a person or party to file a suit. This is basically a right to initiate a suit before a court.

- To Be Sued: This is the possibility of the person or party being the defendant in a suit. It speaks of susceptibility to the institution of legal action against him or her.

2. Persons

- Persons of Full Capacity: Adults who are of sound mind and not legally incapacitated have full capacity to sue and be sued. These would include persons capable of handling their affairs and understanding the nature of a legal proceeding.

- Minors: Minors do not usually have legal capacity to sue or be sued in their own name. However, they can litigate with the help of a person who represents their interests in court.

The person is expected to act in the best interest of the minor concerned and must be formally recognized by the court. This is usually the guardian or parent of the minor.

- Mentally Incapacitated Persons: A person of unsound mind, incapable of understanding the legal proceedings cannot, as a rule sue or defend directly in any action. His guardian or representative conducts the proceedings on his behalf.

3. Legal Entities

- Corporations: Corporations, being artificial persons, have the ability to sue and be sued. They can sue and can be sued in a court of law much like natural persons, emanating from the fact that they are legitimate bodies.

- Partnerships: A partnership firm may sue and defend under the name of the firm. However, the partners are also liable to be sued personally for the liability incurred or arising out of the partnership dealings.

- Government Bodies and Public Authorities: Government bodies and public authorities may sue and be sued. However, their statutory immunities and privileges are more usual. It may be legally necessary to follow special procedures in order to take action against them.

4. Capacity in Particular Contexts

- Contracts and Torts: This means, in tortuous liability, the law focuses on the ability or capacity to determine whether wrong action has taken place and to establish liabilities concerning that wrong action; therefore, it might not necessarily meet his contractual capacity.

- Companies Act: The Companies Act 2013 specifically conferred on a company the capacity to sue and be sued in its name, which includes participating in every kind of legal proceeding whether related to tortious claims or otherwise.

- Consumer Protection Act: The Consumer Protection Act empowers the consumer to claim damages if there is flawed goods or services. Simultaneously, many businesses and service providers are dragged to courts because of failure to meet the consumer protection criteria.

5. Important Considerations

- Legal Representation: For instance, whenever one lacks direct capacity to sue or be sued-for example, a minor or a person suffering from mental incapacity-legal representation through the use of a guardian or next friend ensures protection of their legal rights in such proceedings.

- Capacity to Appear in Court or Before a Tribunal: While capacity to sue and be sued is key, the court will also consider whether the party has sufficient aptitude to understand and participate in the legal process.

Doctrines

Joint and Several Tortfeasors

Introduction

The doctrine of joint and several tortfeasors is an important doctrine of the law of tort, given it arranges ease for compensation to the plaintiff and apportions fair liability amongst a number of defendants. It ensures that parties to a tort case comprehend the intricacies that surround the issues of liability and recovery of damages. In the law of torts, joint and several tortfeasors refer to cases where there is more than one causation leading to a single injury or damage. The determination of this doctrine is quite relevant for ascertaining exact liability and apportioning damages accordingly in a tort case.

Definition

Joint Tortfeasors - These are various parties who together commit a tortious act, or whose actions collectively contribute to a single harm. Their wrongful conduct is sufficiently intertwined that they are held jointly responsible for the resulting injury. Typically, joint tortfeasors are jointly liable for the entirety of the damages suffered.

Several Tortfeasors - Parties who each independently commit different tortious acts. A several tortfeasors is only liable for damages directly caused by their own actions.

Joint and Several Liability - Both the notions of joint and several liability come into play in this model. In joint and several liability, each tortfeasor is separately liable for the entire amount of damages, as well as jointly liable along with the other tortfeasors. Thus, recovery by the plaintiff of all the damages against one or more of the tortfeasors can be had without the need to show the proportion of each one's contribution to the harm.

Application

Joint Liability

Where tortfeasors act in concert either by collaboration or by related acts they are considered jointly liable. This means that all joint tortfeasors are jointly liable for the full amount of damages.

If a joint tortfeasor pays more than his equitable share of damages, then he is entitled to contribution from the other joint tortfeasors.

Several Liability

When the tortfeasors' acts are independent yet collectively result in causing an injury, they are severally liable. A severally liable tortfeasor is liable only for damages actually caused by him.

The damages recovered by the plaintiff are apportioned according to the contribution of each individual tortfeasor.

Joint and Several Liability

In many instances, the tortfeasors may be jointly and severally liable. The plaintiff can recover all the damages from any one or all of the tortfeasors. This helps the plaintiffs in securing full recovery when some of the tortfeasors are insolvent or cannot pay the share of liability.

The court in cases of multiple tortfeasors sometimes apportions responsibility among the tortfeasors. A tortfeasor paying more than his proportionate share of damages may seek reimbursement from other tortfeasors.

Indian law on joint and several liability is derived from a slew of statutes and judicial precedents. Relevant considerations including Civil Liability Act, 1956. The act has provisions concerning joint and several liabilities applying to particular contexts, for instance in motor vehicle accidents.

The doctrine of joint and several liability allows the plaintiffs to receive all the damages even when some of the tortfeasors are unable to pay, helping in the fair compensation for them.

The paying tortfeasors, who pay more than what they actually owe, can claim contribution against other tortfeasors in order to share the economic burden equitably.

Case Law

Lachhman Dass v. M.C.D (1972) CriLJ 1531

The court confirmed that when a number of parties are liable for damage to an individual, the plaintiff may recover all of the damages from one or all liable parties.

Ex Turpi Causa Non Oritur Actio

Introduction

The principle of ex turpi causa non oritur actio is the basic doctrine of the law of torts whereby a plaintiff will not succeed in a legal action if that action is based upon his own illegality or immorality. This Latin maxim means "from a dishonorable cause, an action does not arise," essentially means the law will not entertain a plaintiff whose claim is, as a matter of fact, turgidly affixed to his own wrong act.

Definition

It defines that no legal claim can flow from an immoral or unlawful act committed by the claimant. When the cause of action, in essence, is inextricably linked with the plaintiff's illegal behaviour, the courts will refuse to entertain the claim and thus adhere to public policy and morality.

This rule applies to many forms of legal actions, among them tort claims. It is a defense employed to bar plaintiffs from damages when their whole claim is necessarily intertwined with their own illegal actions.

This therefore in tort means a rule that exempts claimants from receiving reliefs whose injuries arise directly from their unlawful acts. For Example: A person, while committing a crime, suffers an injury; he may be precluded from claiming damages if the injury arises directly from their criminal actions. As claims that arise from illegal contracts or transactions may be dismissed under this doctrine.

Essentials:

- For the doctrine to apply, it must be that the plaintiff's wrongful conduct is directly causative of the harm suffered. The closer the illegal conduct is to the injury, the more substantial the defense under “ex turpi causa”.

-The doctrine essentially lies in the considerations of public policy, which aims at not allowing the judicial system to be used to perpetuate illegal acts or to condone immoral conduct.

Case Law:

Gambhir v. Gulabchand AIR1959MP151:

The Supreme Court of India ruled that persons engaged in illegal activities cannot seek remedy for injuries arising out of those activities.

Rameshwar v. Union of India (1984) AIR 2006 SUPREME COURT 980:

The Supreme Court applied the doctrine to refuse compensation for injuries suffered in the course of committing illegal acts.

Exceptions and Limitations

- The doctrine may not be applied if sustaining the claim subserves a substantial public interest or prevents further harm.

- In those cases, where the plaintiff's illegal conduct only remotely relates to the injury, the court may entertain the claim, particularly if the predominant cause of injury is unrelated to the illegal act.

- Claims may well be allowed when the injury results from an independent, legal act when the plaintiff was involved in illegal activity at the relevant time.

Conclusion

Indeed, the principle of ex turpi causa non oritur actio itself forms a critical part of the law of torts; namely, the facilitation of claims from illegal or immoral conduct is inexcusable as a matter of law. The doctrine, in barring relief for such claims founded on the plaintiff's wrongdoings, protects public policy and the integrity of the courts of law. A proper grasp of the principle helps in navigating through tort claims when the plaintiff's conduct is at issue.