MENTAL ELEMENTS ESSENTIALITY IN

TORTS

St Joseph's College of Law: III BA LLB

 RELEVANT QUESTIONS
q1: Substantiate in detail mental elements of torts with suitable
examples.

q2: Write short note on mental elements in a tort.

q3: Explain importance of mental elements in tort.

q4: Distinguish between intention and motive.

q5: Write short note on ‘malice in fact’ and ‘malice in law’.

q6: Distinguish between intention, motive and malice.

St Joseph's College of Law: III BA LLB
 PREVIEW
 Intention:
 Intentional Torts
 Unintentional Torts
 Motive
 Malice
 Malice In Fact
 Malice In Law
 Fault
 Malfeasance
 Misfeasance
 Non-feasance
St Joseph's College of Law: III BA LLB
 MENTAL ELEMENTS IN TORTS
 Tort
 a voilation of legal rights of another person
 may be result of delibrate intention or unintentional
 Mental element
 essential element in most forms of crime
 mere act of a person not enough to create criminal liability
 mens rea or a guilty mind also essential
 ordinarily a man is not punishable for something he never meant
 question is how far mental element is essential in determining tortious liability?
 A tortious liability
 if injury caused is related to a victim’s life, property, reputation etc.
 liability is civil in nature
 liability can be incurred regardless of whether injury caused was intentionally or
unintentionally

St Joseph's College of Law: III BA LLB

 INTENTION
 Intentional Torts:
 Battery
 Assault
 False Imprisonment
 Trespass To Land
 Trespass To Chattels (Movable Property)
 Intentional Infliction of Emotional Distress
 Libel
 Slander
 Conversion
 Unintentional Torts:
 Negligent
 Recklessness
St Joseph's College of Law: III BA LLB
 INTENTIONAL TORTS
 a person with his evil mind commits a tort to make a damage, to another person with full
knowledge of his actions is considered as an intentional tort
 he is liable for his actions
 Types of intentional torts:
 Battery:
 illegal act of harmful or offensive contact with other person’s body
 for example firing a gun at someone or using hands to cause harm to another person
 Assault:
 an intentional act to create fear in another person’s apprehension of being harmed
 for example a threat of causing bodily harm
 Intentional emotional distress:
 act of causing mental anguish to another person through outrageous conduct, injury or
other harm
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 INTENTIONAL TORTS
 FALSE IMPRISONMENT:
 AN ACT OF HOLDING SOMEONE AGAINST THEIR WILL WITHOUT LEGAL AUTHORITY
 CONVERSION:
 AN ACT OF SOMEONE TAKING ANOTHER PERSON’S PROPERTY AND CONVERTING IT TO HIS OWN
USE
 TRESPASSING:
 AN ACT OF USING OR OCCUPYING ANOTHER PERSON’S REAL PROPERTY WITHOUT PERMISSION
 TRESPASS TO LAND
 TRESPASS TO CHATTELLS

 LIBEL:
 IT IS A WRITTEN DEFAMATORY STATEMENT
 SLANDER:
 IT IS A SPOKEN OR ORAL DEFAMATORY STATEMENT
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 INTENTIONAL TORTS
Illustration
Bob & Rick got into an argument and Bob punches
rick on his face, thus breaking Rick’s nose
Rick sued Bob for medical expenses related to injury
and wins case
court held that even though, Bob did not intend to
break rick’s nose, he did intend to hit him, knowing
well that his hitting another person could cause injury
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 INTENTIONAL TORT- GUILLE v SWAN
(BALLOON CASE)
Facts:
 In this case defendant flew in a balloon, but unfortunately had to disembark in garden of
plaintiff
 A huge crowd entered garden to witness him and as a result plaintiff’s garden was damaged.
 Plaintiff therefore sued defendant for damages
 Defendant pleaded that he never intended to harm plaintiff in any manner and it happened
accidently
Issue:
 whether defendant is liable for damages?
Judgement:
 court held that defendant was liable, because loss to plaintiff’s garden was natural
consequence of defendant’s act, as crowd would naturally wish to see a person flying in the
balloon
 defendant could have foreseen consequences of his act and as such it was sufficient that
plaintiff had suffered loss
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 INTENTIONAL TORT – GARATT v DAILEY (1955)
FACTS:
 Defendant pulled a chair from underneath plaintiff as she was about to sit
down. As a result of this chair pulling, plaintiff fell down and broke her hip
 Plaintiff filed a suit against defendant stating that he acted intentionally,
causing her personal injury
Issue:
 Whether defendant will be liable for her injury?
Judgement:
 court held that though defendant did not intend to cause an injury, the act
did result in personal injury to the plaintiff and therefore defendant is
liable irrespective of his intention.
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 UNINTENTIONAL TORT

 In unintentional tort a person causes

damage to another person without any
malicious or evil thought
 Negligence

 Recklessness
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 UNINTENTIONAL TORT - WILKINSON v DOWNSTON (GREYHAIR CASE
1897)
Facts:
 defendant jokingly told plaintiff that her husband had broken his legs in an
accident and was admitted to a hospital
 this shocked her and she fell seriously ill and as a result her hair turned grey
 plaintiff filed a suit to recover damages for her nervous shock
 defendant contended that he never intended to cause any harm but played a
practical joke
Issue:
 whether defendant will be liable for his actions?
Judgement:
 court held that intention is not essential in tort
 defendant was aware of the probable consequences of his act which caused
plaintiff damages and therefore wasCollege
St Joseph's liable
of Law:whether
III BA LLB he intended it or not
 UNINTENTIONAL TORT - NEGLIGENCE & RECKLESSNESS

 Negligence means ‘carelessness’

 it is simply a neglect of care toward others
 omission to do something which a reasonable man,
guided upon those considerations which ordinarily
regulate conduct of human affairs, would do
 or doing something, which a prudent and reasonable man,
would not do St Joseph's College of Law: III BA LLB
 Three constituents:
• a legal duty to care

• breach of that duty

• damage to plaintiff as a result of breach of

duty St Joseph's College of Law: III BA LLB
 NEGLIGENCE & RECKLESSNESS – DONOGHUE v STEVENSON (SNAIL IN
BOTTLE 1932)
Facts:

 Donoghue’s friend purchased a bottle of ginger beer from a cafe

 Donoghue consumed half of the bottle which was made of dark opaque glass

 when she poured remaining beer in tumbler, decomposed body of a snail floated out of the ginger beer bottle, causing her alleged
shock and severe gastro-entritis

 Appellant brought an action against manufacturer for damages

Issue:

 defendant pleaded on the ground that he did not owe any duty to care towards plaintiff

 also plaintiff was stranger to contract and her action was therefore not maintainable

Judgement:

 court held that manufacturer owned her a duty to take care as he failed to provide reasonable care during preparation of the
product and hence liable for breach of duty.

 ‘privity of contract fallacy’ was done away with, asSt Joseph's

the liability inoftorts
College Law: was independent of any contract
III BA LLB
 NEGLIGENCE & RECKLESSNESS – VAUGHAN v MENLOVE (1937)
Facts:

 plaintiff had warned defendant that his haystack was likely to spread to the land of the plaintiff

 despite this warning defendant took no due care

 hay ignited and spread to plaintiff’s land burning down two of plaintiff’s cottages

Issue:

 whether defendant will be held liable for loss faced by plaintiff?

Judgement:

 court held that defendant is liable for the loss faced by plaintiff because of defendant’s act of
negligence

Duty of any reasonable person: he should be able to foresee consequences of his actions and also
act of omissions, which could result in injury or College
St Joseph's lossoftoLaw:others.
III BA LLB any failure to do so, makes him liable.
 RECKLESSNESS & NEGLIGENCE
Recklessness:
 it means a person with knowledge that his actions were likely to cause
harm, though not desired, there was an indifference towards the
consequences or willingness to run the risk

 it is also called “gross negligence”, though very often it is mixed with

intention

 for example when a person drinks & drives a car along a public road,
then he is driving the car recklessly
St Joseph's College of Law: III BA LLB
Difference between recklessness & negligence:
 in recklessness person is in knowledge of risks involved of
his actions however there was either indifference or
willingness to run the risk

 where as in negligence, there is a duty to care and the

breach of that duty causes damages

 for example a watchman sleeping on his duty is negligence

St Joseph's College of Law: III BA LLB
 RELEVANCE OF INTENTION IN TORTS
 Intention is irrelevant in the law of torts

 If a person is injured by an act of defendant, then he will be

held liable, even though his intention might not be to injure
the other person

 in the law of torts, liability is determined on the ground that

every person knows natural consequences of his act
St Joseph's College of Law: III BA LLB
 MOTIVE
 Motive means reason behind the act or conduct
 Salmond describes motive as the ‘ulterior object’ or
purpose of doing an act
 for example ‘A’ steals some money of ‘B’. in this case
immediate motive of ‘a’ may be to steal money of ‘B’
but ‘ulterior object’ may be to buy food for himself or
his family St Joseph's College of Law: III BA LLB
 MOTIVE – BRADFORD CORPORATION v PICKLES (1895)
Facts:
 plaintiff had a reservoir adjacent to defendant’s land
 defendant wanted to force plaintiff to buy this land at a higher price
 water that fed reservoir came from defendant’s land
 defendant dug up the soil of his land to stop water going into plaintiff’s reservoir
 defendant was lawful as land owners were allowed to interfere with underground
water
Issue:
 whether plaintiff can hold defendant liable for doing an act with evil motive
Judgement:
 court held that in such case, motives are immaterial as it is the act and not motive
which must be considered for breach of a tort.
 since defendant was lawful, therefore he was not liable to pay damages to plaintiff
St Joseph's College of Law: III BA LLB
 MOTIVE – ALLEN v FLOOD & WALTER (1998)
Facts:
 defendants were employed on a ship
 fellow workers objected to their employment as they had worked for a rival
employer
 plaintiff was a trade union representative for employees
 plaintiff approached employer that if they did not discharge the defendants,
other employees would strike
 employers consequently discharged defendants
Issue:
 whether plaintiff will be held liable to pay damages to defendants
Judgement:
 court held that plaintiff had not carried out an unlawful act
 hence plaintiff’s motive and conduct were
St Joseph's College of Law: IIInot
BA LLB actionable
 MOTIVE
Relevance of motive in Tort
 Motive has no relevance in tort
 A person can not be exempted from liability in tort if he
commits an act with good motive
 for example ‘A’ enters ‘B’s house to fetch drinking water for an
old man on the road.
 ‘B’ commits the Tort of trespass.
 ‘A’ can not be exempted from liability on the ground that he
committed it with good motive.
 Similarly, a person can not be held liable in tort on ground of
evil motive, if an act is not unlawful.
St Joseph's College of Law: III BA LLB
 DIFFERENCE BETWEEN MOTIVE & INTENTION

MOTIVE INTENTION

Ulterior object Immediate & apparent

object

Wrongdoer wishes real Individual benefit may

profit not be wished
St Joseph's College of Law: III BA LLB
 EXCEPTIONS:
• Though motive is irrelevant generally, however under
following exceptional cases ‘evil motive’ becomes
relevant for liability in tort:
 Deceit
 Conspiracy
 Malicious Prosecution
 Injurious Falsehood
 Nuisance

St Joseph's College of Law: III BA LLB

 MALICE
Malice is commonly used in two senses - legal
sense and popular sense
Malice is of two types:
Malice in fact: act done with evil motive
Malice in law: intentional doing of a wrongful
act without just cause or excuse
St Joseph's College of Law: III BA LLB
 Malice in fact:

it means ill will against a person

also called ‘actual malice’
when a person does a wrongful act with a
feeling of spite, vengeance or ill will, the act is
said to be malicious
St Joseph's College of Law: III BA LLB
 MALICE
 Malice in law:
 malice in law means wrongful act done intentionally without
a just cause or excuse

 In Bromage Vs Prosser (1825)

 Justice Bayley described malice in law in its legal sense,
means a wrongful act, done intentionally and without a just
cause or excuse St Joseph's College of Law: III BA LLB
 Shearer Vs Shields (1914)
• Court stated that a person who inflicts injury
over another person in contravention of law is
not allowed to say that he did so in ignorance of
law he will be taken to know law and he must
act within law. therefore he is guilty of malice in
law.
St Joseph's College of Law: III BA LLB
 MALICE IN FACT v MALICE IN LAW
SNO MALICE IN FACT MALICE IN LAW

1. When an act is done with ill will When an act is done wrongfully
towards an individual without just cause or excuse

2. It is called ‘express malice’ or It is called ‘implied malice’

‘actual malice’
3. There must be ill will or any There must be concurrence of mind
vindictive motive with wrongful act done

4. Motive is the main ingredient Knowledge is the main ingredient

5. Used in popular sense Used in legal sense

6. Excusable Non excusable

St Joseph's College of Law: III BA LLB
 MALICE – SOUTH WALES MINERS FEDERATION v GLAMORGAN COAL
COMPANY
Facts:
 plaintiffs, owners of coalmines, had taken action against defendants, a miners’ union, for
inducing its workmen to make the breach of contract of their employment by ordering them to
take certain holidays
 the act of defendants was not actuated with ill will but to maintain the price of coal by which
wages were regulated
Issue:
 whether defendants will be held liable?
Judgement:
 the court held defendants liable
 a wrongful act does not become lawful act by a good motive
 similarly, a lawful act does not become unlawful, merely because of an evil motive – Bradford
foundation v Pickles(the reservoir case)

St Joseph's College of Law: III BA LLB

 MALICE – TOWN AREA COMMITTEE v PRABHU DAYAL
Facts:
 Plaintiff made certain construction without complying with provisions of ‘Uttar
Pradesh Municipalities Act’
 Defendants demolished construction
 plaintiff sued defendants contending that demolition was illegal
Issue:
 Plaintiff said that officers of town area committee acted maliciously
Judgement:
 Allahabad high court held that demolition of building illegally constructed was
perfectly lawful
 court did not investigate whether act was done maliciously or not, which was
considered irrelevant to this because act itself was unlawful

St Joseph's College of Law: III BA LLB

 MALICE – BALAK GLASS EMPORIUM Vs UNITED INDIA INSURANCE
COMPANY LTD
Facts:
 in a multi-storied building, water from upper storey under the control of defendant
escaped to lower floor occupied by plaintiff
 it was found that not only the tap on upper floor was left fully open, but also outlet of
the tank was also closed
 there was evidence of ill will from Defendant’s side
 act was done by defendant with wrongful intention
Issue:
 whether Defendant will be liable to pay damages to plaintiff
Judgement:
 Plaintiff was entitled to get damages

St Joseph's College of Law: III BA LLB

 MALICE EXCEPTIONS

 Deceit
 Malicious Prosecution
 In Cases of Defamation
 Public Nuisance
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 MALICE
As a general rule, motive is not relevant to
determine a person’s liability in law of torts. a
wrongful act does not become lawful merely
because motive is good. similarly, a lawful act does
not become wrongful because of a bad motive or
malice
St Joseph's College of Law: III BA LLB
 MALICE EXCEPTIONS – HOLLYWOOD SILVER FOX FOM LTD v EMMETT
(1936)
Facts:
 plaintiff company set up a farm for breeding foxes and erected a sign saying
“Hollywood silver fox farm”. this annoyed defendant, who was developing a housing
estate on his land and the said sign would deter his customers
 defendant asked plaintiff to remove the sign but he refused to do so. defendant
threatened plaintiff to shoot along the boundary and did accordingly on four
subsequent evenings
 it disturbed animals on plaintiff’s land as animals do not breed to loud noise
Issue:
 will defendant be liable ?
Judgement:
 defendant was held liable for firing and plaintiff was entitled to damages

St Joseph's College of Law: III BA LLB

 FAULT
 Fault is defined as a negligent or intentional failure to act
reasonably
 Fault is relevant when a wrongful act was done intentionally or
maliciously
 There are circumstances where liability arises without fault:
Strict Liability
Absolute Liability
Liability Of The Master
Liability Imposed By Statutes
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 FAULT (STRICT LIABILITY) – RYLAND v FLECHER (1868)
Facts:
 two men were living next to each other. defendant owned a mill for whose energy requirement, he
constructed a water reservoir on his land
 to get his work done, he hired independent contractors and engineers
 there were some old shafts under the site of reservoir which engineers did not notice and thus did not
block
 due to this negligence of contractors, the shafts that led way to plaintiff’s mine and caused huge
damage and loss to the plaintiff
Issue:
 can defendant be held liable for the act of someone else due to which an entity on his land escapes,
without his negligence or intention
Judgement:
 court rejected plea of defendant and held him liable for all damages

St Joseph's College of Law: III BA LLB

St Joseph's College of Law: III BA LLB
 LIABILITY WITHOUT FAULT
 the principle of absolute liability was evolved in case of ‘MC Mehta v
UOI(1985)’

 if an enterprise is engaged in a hazardous or inherently dangerous

activity, it is strictly and absolutely liable for the harm resulting from
the operation of such activity

 liability without fault is liability of master for the tort committed by

his servants in course of employment

St Joseph's College of Law: III BA LLB

 liabilities imposed by statutes on employers for example
factories Act, Workmen Compensation Act, where element
of fault is absent but are held liable

 this does not mean that fault is not important in

determining the tortious liability. But in many situations
‘fault’ exists in the form of intention, negligence or motive,
which is essential to impose liability on the wrongdoer
St Joseph's College of Law: III BA LLB
 MALFEASANCE, MISFEASANCE & NONFEASANCE
 Malfeasance term applies to commission of an unlawful act, such as
trespass, which are actionable but do not require proof of intention or
motive

 Misfeasance is applicable to improper performance of some lawful

act.
 For example when there is negligence

 Nonfeasance is the term applies to non performance or omission to

perform an act, when there is an obligation to perform it

St Joseph's College of Law: III BA LLB

 CONCLUSION
 Tort is a civil wrong where there is violation of a legal right of another
person
 such violation may be the result of deliberate intention or may be
unintentional
 mental elements such as intention ( both intentional & unintentional),
motive, malice etc are important in most forms of crime because
mere act of a person is not enough to create criminal liability but
mental element or ‘mens rea’ is also essential
 but in torts it can be concluded that ‘mental element’ is not essential
the way it is essential in criminal law
St Joseph's College of Law: III BA LLB
 Mental element is irrelevant in most of the tort cases

 A person can not be excepted from liability, if he has

infringed the legal right of another person

 However, we may say that presence of mental element

only aggravate the damages in most of the cases

St Joseph's College of Law: III BA LLB

 Mental element in tortious Liability
In every tort there is violation of legal rights of another person. Such a violation
may be the result of deliberate intention or culpable negligence where the
foresight of the consequences is present though they are not directly desired.
For an example , reckless driving in a crowded street.
Mental element is an essential element in most of the forms of crime.
Generally, under criminal law, mere act of a person is not enough to create his
liability.
Mens rea or a guilty mind is also required.
A man therefore , is not ordinarily punishable for something which he never meant,
or the consequences of which he could not foresee.
The fundamental principle of criminal law is contained in
the maxim Actus non facit reum mens sit rea , this means
that the act itself creates no guilty mind.

The ultimate end of law is to prevent harm by punishing

the doer of it. It is clear that it is useless to punish a man
unless he did the wrongful act with a guilty mind. Under
criminal law mens rea or a guilty mind is an important
element for punishing g a man for committing a crime.
Here the question is how far mental element is an essential
In doing any wrongful act, generally the three
stages of the human mind are examined which
are also follows:
1. Motive
2. Intention
3. Malice
St Joseph's College of Law: III BA LLB
 1. Motive
Motive is that state of human mind which inspires him to do an act. A
wrongful act is always the result of an inspiration to do an act. Motive is The
ulterior object of purpose for which any act is done. For example, A steals
some property of B. Here the immediate object may be to steal the money or
property of B, but the ulterior object may be to buy food for him.
Motive is not an essential element in tort. But it is an important element in
crime. If an act is lawful then it will not become illegal because It has been
done with wrong motive. Similarly, if an act is illegal then it will not be lawful
merely because it has been done with good motive. It is the act not the
motive for the act, which is regarded essential.
St Joseph's College of Law: III BA LLB
In Allen v. Flood ,1898, Lord Watson said:

“Although the rule may be otherwise with regard to crimes,

the law of England does not take account of motive as
constituting a element of civil wrong. Any invasion of the civil
right of another person is in itself a legal wrong, carrying with
it liability to repair its necessary or natural consequences in
so are as those are injurious to the person whose right is
infringed, whether the motive which prompted it be good, bad
or indifferent.
An act which does not amount to a legal injury cannot be actionable
because it is done with a bad motive. It is the act, not the motive for
the act, which must be regarded. If the act, apart from motive, gives
rise merely to damage without legal injury, the motive, however
reprehensible it may be, will not supply that element.

There are some exceptional cases where motive is relevant as an

ingredient are torts of malicious prosecution, malicious abuse of
process and malicious falsehood. Motive is also relevant in the torts
of defamation, nuisance and conspiracy.
• In some cases there may be a plurality of purpose and it may
become necessary to decide as to what is the predominant
purpose. For example, if persons combine to protect their
own interests and to cause damage to another person, they
would be liable for the tort of conspiracy if the predominant
purpose is the cause damage and damage results; but if the
predominant purpose is protection of their legitimate interests,
they would not be liable even if damages is caused to another
person.

St Joseph's College of Law: III BA LLB

2. Intention

According to Salmond, intention means the object or purpose for

which the act is done. In intention, the wrongdoer has full
knowledge of the consequences of his act, which he wants to
achieve. It is difficult to know the intention with which the act is
done. It is a state of mind. Intention can be determined by the
conduct of the person who does an act. Intention and motive are
generally used in the same sense. But both differ from each
other
• Firstly motive is the ulterior object for which an act is done, whereas
intention is the immediate and apparent object for which the act is done.
A thief’s immediate object may be to steal other’s money but is ulterior
object may be to purchase food for himself.

• Secondly, in motive the wrongdoer wishes to get real or imaginary profit

for him.

• Intention is irrelevant in law of tort. If a person is injured by the act of the

defendant then he will be liable , even though his intention might not be to
cause injury to that person on law of torts, the liability is determined on the
ground that every Peron knows the natural consequences of his act.
St Joseph's College of Law: III BA LLB
 In Wilkinson v. Downston, 1897, the defendant jokingly told the plaintiff
that her husband had broken his legs in an accident and was admitted to a
hospital. This shocked her and she got ill seriously. She sued the
defendant for damages. The defendant contended that he never intended
to cause any harm to the plaintiff but cut a joke only. But the Court held tht
intention is not an essential element in tort. The defendant knew he
natural and probable consequences of his act which caused the defendant
damages and therefore he was liable, whether he intended it or not.
3. Malice
The word “malice’ usually means spite or
ill-will. But in law the word ‘malice’ has two
different meanings,
1 intentional doing of a wrongful act and
2. act done with improper motive.

St Joseph's College of Law: III BA LLB

To act maliciously sometimes means to do the act intentionally with
knowledge that it is wrongful, while at another time it means to do the
act with some improper and wrong motive, that is ,some motive of
which the law does not approve.

Malice in the first sense is synonymous with intention.

In the second sense malice means motive and in this sense it includes
not only spite or ill-will but any motive which the law disapproves.

Malice may be defined to be “where any person wilfully does an act

injurious to another without lawful excuse.”
In the first sense, Malice has been defined by Bayley, J as
follows

“Malice in common parlance means ill-will against a

person, but in legal sense it means a wrongful act done
intentionally without any just cause or excuse.

For example, if I poison a fishery without knowing the

owner, I do it out of malice , because it is a wrongful act,
and done intentionally St Joseph's College of Law: III BA LLB
In the second sense, malice means to do an act with
wrong and improper motive.

Thus malicious prosecution does not mean the

intentional and consciously wrongful prosecution of an
innocent man.

It means the prosecution inspired by improper motive,

that is, the motive which is not allowed and sanctioned
by law.
Malice is of two kinds
(1) Malice in fact
(2) Malice in law
‘Malice in law’ means an act done wrongfully and without reasonable and
probable cause. ‘Malice in fact’ means improper motive. Motive in this
sense is relevant in tort of malicious prosecution.
Malice in the sense improper motive is entirely irrelevant in the law of tort.
It generally looks at the actions of a man. It generally does not ask why he
has done this. A good motive will not justify an act which is otherwise illegal.
On the other hand, a bad motive will not make an act illegal if it is otherwise
legal.
St Joseph's College of Law: III BA LLB
The leading case on this point is the case of Bradford Corporation v.
Pickles, 1905, In this case the defendant made an excavation on his own
ground and thus intercepted the underground water which otherwise(if he
had not made the excavations) would have flowed into the adjoining
reservoir of the plaintiff. The defendant did so with the motive to compel
the defendants to buy his land at a high price. The House of Lords held that
the defendant was not liable. He was making a lawful use of his land. Lord
Macnaghten said, “In such a case motives are immaterial. It is the act, not
the motive for the act that must be regarded . If the act apart from the
motive gives rise merely to damage without legal injury, the motive,
Exceptions to the rule: in the following cases, the malice may become
relevant in determining the liability in the law of torts:
(1) Malicious Prosecution: In this case the plaintiff has to prove that the
defendants started the prosecution proceeding against him with malice
and not for any lawful purpose.
(2) Injuries falsehood.
(3) Defamation : when the defendants takes the plea of qualified privilege,
then motive becomes relevant . But when malice is proved then the
defence of qualified privilege will not be available to him.
(4) Malicious conspiracy.
(5) Nuisance.
St Joseph's College of Law: III BA LLB
IV. Malfeasance, Misfeasance and Non-feasance.
The term ‘malfeasance’ means the commission of an unlawful act,
such as which are actionable per se and do not require proof of
intention or motive. For Example, if A enters into the garden of B
without his permission or consent it amounts to malfeasance.
Malfeasance include wrongs which are actionable per se without
proof of negligence or malice.
The term ‘misfeasance’ connotes the improper doing of some lawful
act for example when there is negligence.
A enters a railway compartment without ticket. A T.T.E. B enters the
compartment. He demands ticket from A. A cannot produce it. B
instead of taking legal action pushes a out of the compartment and
he is hurt. B commits misfeasance. The term ‘non-feasance’
means the omission to do some act when their is obligation to
perform. The railway companies are required to keep their platform
in good condition and order. If a platform is in a bad condition and a
passenger trying to board to train falls down due to unevenness of
the platform, the railway company is guilty of non-feasance.
 V. Fault : whether essential element in
tort:
• According to Salmond ‘fault is the basis of all tortious liability’. There are areas in the
law of torts where state of mind of a person is relevant to ascertain his liability. For
example in assault, battery, false imprisonment deceit, malicious prosecution and
conspiracy, mental element may be necessary to determine his liability. We have to see
whether a particular wrongful act was done intentionally or maliciously. In such cases
mental element becomes necessary.
• But there are cases where the mental element is quite irrelevant in determining the
liability of the wrongdoer. In such cases liability may arise even without any wrongful
intention or negligence on the part of the defendant. In such cases the defendant
cannot take the plea tht he was innocent other has been an honest mistake on his part.

St Joseph's College of Law: III BA LLB

 VI. No Fault Liability:
Thus, there are cases where liability arises without fault for example, cases of
Strick Liability and Absolute Liability. For example :
1. In that case it has been held that occupier of land who brings and keeps on
it anything likely to cause damage if it escapes, is bound at his peril to
prevent its escape and is liable for the direct consequences of its escape
even if he has not bee guilty of negligence.
2. According to the principle of absolute liability, if an enterprise is engaged in a
hazardous or inherently dangerous activity , it is strictly and absolutely liable
for the harm resulting from the operation of such Activity.
St Joseph's College of Law: III BA LLB
3. The third example of liability without fault is liability of a master for the
tort committed by his servants in the course of employment.
4. Fourth, in modern times liabilities are also imposed by statutes on
employers, for example Factories Act, the workmen’s Compensation
Act, where the element of fault is agent but they are held liable.
5. No fault liability under the Motor Vehicle Act, the Act provides for
giving compensation immediately to the injured party and their
dependents on the basis for rule of “no fault liability”. This does not
affect the injured party’s right of getting higher compensation on the
principle of fault under the ordinary law. This type of liability is known
as strict liability as the defendant is held liable for the harm caused to
the plaintiff without any fault.