Q: What is the reason of considering soverign functions and non sovereign functions in state liability tort ?.

Ans: The theory of sovereign functions and non sovereign functions is placed in state liability tort because it is a tort of vicarious liability.

If there is a case of tort of state against fundamental rights, res ispa loquitur occurs and the burden of proof shifts from plaintiff to defendent and defendent will have to prove that he was not negligent.

Res ispa loquitur means the things speak in itself. Res ispa loquitur is based on negligence per se i.e., negligence in itself.

In case of composite negligence in liability of state in tort, the doctrine of res ispa loquitur occurs and the burden of proof shifts to defendent.  Generally in  tort of negligence, the burden of proof shifts to defendent whether it is intentional tort while in intentional tort and no fault tort, the burden of proof is not obligatorily shifted to defendent. 

In tort of state liability,  the doctrine of  res ispa loquitur occurs and it will be the duty of state to prove that the act was performed as a sovereign functions of state.

Res ispa loquitur takes away the right of tort per se but it is applicable in negligence per se and state liability of torts because it is always a perplexity in negligence.  The international torts and no fault torts are actionable per se and not negligence per se.

Injuria dine damno is not applicable while state is performing its sovereign funtions. But fundamental rights are the rights in rem i.e., the legal action will be taken against anyone who would contavene the implementation of fundamental rights.


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