law of tort

This article is written by Harshit Khandelwal, 2nd year Law student currently pursuing BBA-LL.B(Hons.) from Unitedworld School of Law, Karnavati University. In this article, the author discusses the concept of Torts to Domestic Relations. 

Domestic Relation is a developing area of Tort Law dealing with the inner functions of a family. The evolution of Domestic Relations Tort has not only influenced the manner in which family members can collect as a result tortious behaviour for damages or interference with the family unit itself; it has affected the manner in which husbands, wives, kids and legal guardians are seen as legal entities. 

Children and wives were originally considered as chattels under common law and worked under the proprietary rights of a man . Several advances in family law in the 1990s provided for women and children’s legal rights to act as separate legal entities from their husbands/fathers. 

Torts in the Family

Tort law acknowledged a similar right to sue just like the secondary liability, in which superior acts in the name of his or her subordinate. This application of proprietary rights to family law cases permits fathers as well as husbands to recuperate damages for the injuries caused to family members by the tortfeasors. On the grounds of loss of ‘services’ from the child or wife, a father or husband can recuperate damages. Services there generally include household duties such as child care, companionship, cleaning and other “marital responsibilities” no longer available from the child or wife.  

Vicarious Liability

In spite of the parties being distinct legal identities, the court system holds on to the family unit as a collective identity. The family unit’s interests and relations are judged to be proprietary to a certain scope and “ by right.” Any interference or action that alters, changes, infringes or intimidates the family unit is therefore perhaps a tortious interference in family law.  Importantly, interference with family relationships between members of a specific family unit may occur. 

Husband and Wife

In the case of husband and wife, the issue of personal liability can be traded in with two scenarios. 

1.) Husband’s Liability for Wife’s Torts

According to common law, a married woman cannot sue any person for any tort in the earlier phase of the evolution of tort, unless and until her husband joined her as a party to the plaintiff. In addition, without making her husband a defendant’s party, the wife cannot be sued. 

These anomalies were abolished by the legislative acts, i.e., The Married Women’s Property Act, 1882, and the Law Reform (Married Women and Tortfeasors) Act, 1935. After certain acts, a wife may sue or be charged without making her husband a joint party to the suit. 

However, the husband and wife can be made jointly liable, if they are joint tortfeasors. 

  • Drinkwater v. Kimber , (1952) 2 Q.B. 281

This case describes the point. A lady was wounded because of the combined negligence of her husband and a third party. She recuperated the full amount of reimbursement from the third party. The third-party could not recuperate any contribution from the husband as the husband could not be made liable with regard to his wife for personal injuries. 

In Merryweather v. Nixon, it is stated that the joint tortfeasors, the one tort-feasor who paid the full amount of damages for the wrongdoing could not claim contribution from the others. 

The Law Reform (Married Women and Tortfeasors) Act, 1953 scrap to recover their contribution. The Law Reform (Husband and Wife) Act, 1962 has transformed further and in this regard, the law has modified to the effect that when a spouse sues a third person, the latter can profess contribution from the other spouse who was a joint tort-feasor. 

2). Action between Spouses

At common law, there could be no action between husband and wife in tort. If the other spouse committed a tort, neither the wife could sue her husband nor the husband could sue her wife. The change has been brought up by the Married Women’s Property Act, 1882 and allows married women to sue their husband in tort for protection and security of her property. The property embrace chose in action which is given in Section 24 of Married Women’s Property Act, 1882. 

As a wife could sue her husband only for the prevention and security of her property, she could not sue her husband if he caused her personal injuries. Thus, if the husband damages her watch, she could sue for the same but if carelessly fractured her legs, she could not bring any action. The husband has no right for action for any kind of suffering caused by his wife to him. 

  • Curtis v. Wilcox (1948) 2K.B. 474(C.A.) 

The passenger was injured because of the negligent driving by the driver. After the issue of her writ, claiming, inter alia, damages for pain and suffering, but before the hearing of the action, the plaintiff married the accused. The accused,  the husband’s insurance company, manifest that the claim for general defences was prohibited by the marriage. 

Oliver J. held that he was bound by the judgement of McCardie J. in Gottliffe v. Edelston (1930) 2K.B. 378, and rejected the claim for general defences. The courts of Appeal in a considered judgement. allowed the appeal and repeal Gottliffe v. Edelston. They assented with McCardie J’s view that a thing in action assimilate a right of action in tort, but they don’t agree from his decision that ‘ thing in action’ as used to define distinct property in the Married Women’s Property Act, 1882, Section 24, was used in a narrow sense. Accordingly, a wife is now authorised to sue her husband for an absolutely personal antenuptial tort.  

  • Broom v. Morgan (1953) 1Q.B. 597


  • Ms. Broom was hired as the helper of a beer and wine house, of which her husband, Mr. Broom, was hired as the manager. Ms. Broom fell down through a trap that her husband was in charge of keeping closed, suffering wounds as a result. Ms. Broom sued for injuries due to the negligence of her husband, but the courts held that, under statute, a husband cannot be held responsible in tort against his wife. She then sued the employer for being vicariously liable for the carelessness of her husband. 


  • The question emerged as to whether a negligent employee’s immunity from tortious liability towards an injured party precluded the employer from being held vicariously liable for the carelessness of said employee.


  • The Court held that the fact that an individual has no right of action in opposition to an employee by law in respect of a tort does not prevent the vicarious liability of the manager if the employee’s careless act was escorted during the scope of his tenure. In this case, the policy reason the rule regarding tortious liability of the husband was to discourage litigation between spouses; it does not follow that an employer can benefit from this same immunity. In particular, Lord Denning, described the rationale of vicarious liability as being: “[the master] takes the welfare of the work when it is carefully done, and he must take the liability of it when it is recklessly done.”  . Accordingly, the employer was held vicariously liable for the carelessness of Mr. Broom in causing the injuries of Mrs. Broom.

Furthermore, the Indian Constitution detaches all anomalies of marital status and personal capacity present in common law. Article 14 embodies an assurance against arbitrariness and unreasonableness, taking into account the case of Ajay Hasia v. Khalid Mujib (1983).

  • Cleary v. Booth, (1893) 1 Q.B. 465


Booth (Accused), a school headmaster, administered corporal punishment on two boys after knowing that they had fought on the way to school. The accused was charged with assault and battery and convicted for it. He appealed.


The authority of a teacher to correct his students is not only restricted to the wrongs which the student may carry out upon the school premises but may also extend to the wrongs done by him outside the school, for “there is not much chance for a boy to show his moral conduct while in school under the eye of the master, the probability is while he is at play or outside the school”.

This is very much clear that, while at home, a child is under a parent’s authority. The question is under what authority the child is when he is approaching from home to school. Similarly, the child may be said to be under the headmaster’s authority through the parent’s delegated duty. In that case, if obligatory, the headmaster has the dominance to inflict punishment on the child in order to properly raise the child. The jurisdiction of the headmaster increases not only to acts performed by children while they are at school but also while they are approaching from  school to home. 

Eisel v. Board of Education (1991)

The Maryland Court governed that school authority were incautious in not disclosing their apprehension of a student’s threatened suicide to the guardians . The counsellor’s negligence was not for failure to physically prevent the student’s suicide, but rather for not communicating information regarding the child’s objective .

Interference with Family Relations

A particularly demanding subject of tort law is family torts in domestic relations. The motive for this is that the family structure itself and its functionalities are often at the core of the complainant’s and the defendant’s arguments.  Family torts may be associated with tortious action between husband and wife, or between parent and child. Tort in the family may also comprise vicarious liability and negligence on behalf of the parent or legal guardian for tortious actions performed by a minor under an adult’s legal guardianship.

Injuries to Family Members

Vicarious Liability is a secondary liability for the actions of its inferior parties. Thus, torts raised in opposition to legal subordinates are vicariously transferred for litigation purposes to the superior party.  This usually means that in Domestic Relation tort, parents are accountable for the tortious offenses committed by their children . The Vicarious Liability also increases to legal guardians, who are vicariously liable for their adolescent wards ‘ tortious actions’.


Torts between parent and child now tend to turn round around the “parental discretion” concept that is left to analyse by the court. Usually, a jury is not justified to second guess the right of a parent to act for their own child in their acumen.  The idea of “parental discretion” is not absolute, however, a court may find a parent guilty of tortious behaviour towards his or her child as a separate legal entity and may, therefore, find the parent liable. The identical principle works for family torts for husband/wife, which warrants a definite amount of cause to infringe marriage confidentiality and pass judgment.


In the law, a tort is a civil wrong in which one person has contravened a duty owed to another person, where the duty emerges because of the mere existence of the relationship. In a general sense, torts are often the civil wrongs correlated with a criminal wrong .It can be duly established that marriage does not affect the rights and liabilities of any of the spouses concerning any tort done by any of them by a third party.

Latest Posts


Leave a Reply

Your email address will not be published. Required fields are marked *