Torts I

Capacity of a Minor to Sue

Or be sued under Law of Torts

Hemant Sharma (2651)

I Trimester

I Year

B.A.L.L.B. (Hons.)

2020-21
 Capacity of a Minor to Sue or be sued under Law of Torts

Introduction
A child’s innocence, ignorance, naughtiness, inability to make sound decisions, incapability of
distinguishing right and wrong make him different from an adult. Acknowledging the same,
different legislations such as Indian Contract Act, Indian Penal Code etc. have made special
provisions for minors. A child under the age of 7 is presumed to be doli incapax and can’t be
made liable for crimes, while any individual between 7-12 years of age can’t be held liable until
sufficient maturity has been proved.1 Similarly any contract with a minor is void ab initio.2

However, with no specific written legislation, law of torts remains hazy in this respect. Hence it
becomes important to analyze the relevant principles and case-laws to understand what exactly is
the liability and capacity of a minor under the same. The paper will delve into this very issue of
minors under law of torts.

Research Methodology

Aims and Objectives

The aim of this research paper is to understand who minors are under law of torts, their liability
and capacity to sue by looking at some landmark judgments regarding the same in brief.
However, there is no codified tort law yet regulating the liability of a minor. Hence, it becomes
important to understand the existing judicial decisions as these decisions act as precedents and
source to adjudicate further suits.

Research Questions
1. Who is a minor under law of torts? Is there a special provision for them?
2. What is their capacity to sue under the same?
3. What is the liability of minor in torts?

Writing Style
The study uses a descriptive and analytical form of writing
1
Indian Penal Code 1860, s 82,83.
2
Indian Contract Act 1872, s 11.
Sources of Data
The researcher has referred to both primary (case-laws) and secondary (commentaries) sources

Minor
Normally, the age of majority in India is 18 years. But in the event of a guardian being appointed
before that age under the authority of court, the same age is raised to 21 years. 3 There is no
exception to this provision under law of torts. Any individual who is considered minor under
Indian Majority Act, 1875, can be considered a minor under law of torts.

In respect to contracts, minors are not allowed to enter into contract and any agreement with
them is void.4 The provision has been used in Mohori Bibee vs Dharmodas Ghose5 and this very
judgment has been recently cited in Supreme Court.6 The law of torts however, makes no
exception for liability of minors. There is no special provision that distinguishes between a minor
and an adult’s capacity to sue or be sued under law of torts.

Capacity to Sue
Minors can sue like any other individual in all respects apart from the fact that they must file the
suit through a next friend,7 who for the most part is a guardian. They can, in fact, sue for the
injuries sustained while en ventre sa mere due to which they are born with disability. 8 This is
however met with an issue. There was no legal individual at the time the tort was committed,
because the fetus is not considered to be a legal person. This issue is resolved by maintaining that
the cause of action emerges after birth, or by fictional attribution of personality to the fetus in
conformity with the Nasciturus pro jam nato habetur9 maxim. The child however will not be
able to sue in the event of injury being pre-conceptional and the parents accepted the risk. Also,
they can’t prosecute the doctor if the disability is due to a contagious disease suffered by the
mother and doctor didn’t provide the information about the risk.10
3
Indian Majority Act 1875.
4
Ibid 2.
5
Mohori Bibee v Dharmodas Ghose, (1903) SCC OnLine PC 4.
6
Mathai Mathai v Joseph Mary, (2015) 5 SCC 2.
7
Ratanlal and Dhirajlal, Law of Torts (28th Edition, 2019).
8
Winfield and Jolowicz, Tort (19th Edition, Sweet and Maxwell U.K, 2014).
9
Salmond, Jurisprudence, (12th Edn 1966) p 301.
10
McKay v Essex Area Health Authority, (1982) 2 All ER 771.
In the absence of any Indian Act for adjudicating suits by minors relating to congenital
disabilities, the Indian courts may take guidance from the English Act. 11 The Supreme Court
cited the English Act in Union Carbide Corporation v UOI12 and held that compensation would
be available for individuals who were not born at the time of the Bhopal gas leak tragedy given
that they can show that their birth defects are due to the toxicity from the gas leak. In fact, the
Supreme Court approved a compensation of Rs1.5 lakh to the father of a girl child. 13 The girl was
conceived and born after the disaster and died after four months showing symptoms of gas
impact due to the mother's inhalation of gas.

Liability of a Minor
Under law of torts, there is no special provision due to infancy, but age has a role to play. If the
tort is such that a special mental element such as deceit, malicious prosecution or conspiracy is
necessary, the child can’t be held liable for the same unless it can be proved in the case that he
had sufficient maturity for committing that tort. 14 When minors are accused of negligence, their
age is critical in assessing what they should have reasonably anticipated. Therefore, in an action
for negligence against minors, it is insufficient to establish that they acted in a manner that would
amount to an adult's negligence. It must be shown that their behavior fell below the standard of
an ordinarily reasonable and prudent child of their age.15

Even if they fraudulently represent themselves to be of full age, a minor’s agreement is void 16
and so they will not be made to repay a loan that they secured by changing the form of action to
one for deceit.17 However, if possible, they might be obliged to return the property gained by
false representation, given that it is recognizable and still in their possession or control.18

Even though minors may not be liable for certain torts, in certain circumstances their parents will
be liable. When a child acts as a servant for them at the time of commission of tort, the parent or

11
Congenital Disabilities (Civil Liability) Act 1976.
12
Union Carbide Corporation v UOI, (1991) 4 SCC 584.
13
S Said-Ud-Din v Court of Welfare Commissioner, (1997) 11 SCC 460.
14
RK Bangia, The Law of Torts (21st edition, Allahabad Law Agency 2008).
15
Ibid 8.
16
Sadik Ali Khan v Jaikishore, AIR 1928 PC 152.
17
Dhannumal v Ram Chunder Ghose, (1890) 24 Cal 265.
18
Leslie (R) Ltd v Sheill, (1914) 3 KB 607 : 111 LT 306.
guardian may be made vicariously liable as a master.19 A father can also be responsible for his
own personal error in giving his child a chance to make a mistake. For example, when he
provides an air-gun to his son or allows him to stay in possession of it despite reports of mischief
caused by the use of the gun, and the boy unintentionally injures an individual afterwards.20

Conclusion
The paper delved into who minors are and described their capacity to sue or be sued under law of
torts.

There is no minimum age to sue or be liable under law of torts. Minors can sue for wrongs
committed against them via a litigation friend. Their capacity to sue extends to the moment they
became a fetus. Similarly, minors can be sued for torts if they have attained sufficient maturity to
understand and anticipate the implication of their act. Ordinarily, parents and guardians are not
liable for the torts of minor unless the minor acted as their servant or agent during the
commission of the act or it was error on their side that gave the child a chance to commit a tort.

19
Ibid 7.
20
Bebee v Sales, (1916) 32 TLR 413.
Bibliography

Books
1. Ratanlal and Dhirajlal, Law of Torts (28th Edition, 2019).
2. RK Bangia, The Law of Torts (21st edition, Allahabad Law Agency 2008).
3. Salmond, Jurisprudence, (12th Edn, 1966) p 301.
4. Winfield and Jolowicz, Tort (19th Edition, Sweet and Maxwell U.K, 2014).

Cases
1. Bebee v Sales, (1916) 32 TLR 413.
2. Dhannumal v Ram Chunder Ghose, (1890) 24 Cal 265.
3. Leslie (R) Ltd v Sheill, (1914) 3 KB 607 : 111 LT 306.
4. Mathai Mathai v Joseph Mary, (2015) 5 SCC 2.
5. McKay v Essex Area Health Authority, (1982) 2 All ER 771
6. Mohori Bibee v Dharmodas Ghose, (1903) SCC OnLine PC 4.
7. S Said-Ud-Din v Court of Welfare Commissioner, (1997) 11 SCC 460.
8. Sadik Ali Khan v Jaikishore, AIR 1928 PC 152.
9. Union Carbide Corporation v UOI, (1991) 4 SCC 584.

Statutes
1. Congenital Disabilities (Civil Liability) Act 1976.
2. Indian Contract Act 1872.
3. Indian Majority Act 1875.
4. Indian Penal Code 1860.