SCHOOL OF LAW

Research Paper
On
TOPIC: RES IPSA LOQUITUR

Submitted by:
Sahil Singh
BBA LL.B.- B
PRN: 1182230144

Submitted to:
Dr. Pournima Inamdar
Assistant Dean and Professor, School of Law, MIT-World Peace University
Meaning Of Tort: -
In French, "tort" refers to both the Roman legal term "delict" and the English word
"wrong." The Latin word "tortum," which meaning twisted, crooked, or wrong, is the
source of the English word "tort." In contrast, the word "rectum," which is straight, is
the root of the English word "rectum." Everyone should act honourably; if someone
goes off the straight path and engages in dishonest behaviour, they have committed a
tort. Torts are therefore actions that are not straight but rather twisted or crooked. In
English law, the term "tort" refers to a specific type of civil wrong or injury and has
taken on special meaning. The Norman jurists introduced it into the English legal
system. Tort now means a breach of some duty independent of contract giving rise to a
civil cause of action and for which compensation is recoverable. In spite of various
attempts an entirely satisfactory definition of tort still awaits its master. In general
terms, a tort may be defined as a civil wrong independent of contract for which the
appropriate remedy is an action for unliquidated damages. Some other definitions for
tort are given below:
Winfield and Jolowicz- Tortuous liability results from the violation of an obligation
that is essentially set by law; this obligation is to people in general and can be
addressed by filing a claim for unliquidated damages.
Salmond and Hueston- A tort refers to a civil wrong that can be remedied through a
common action for unliquidated damages. It encompasses more than just breaching
contracts, trusts, or other simple equitable obligations.
The Law of Torts in India: -
A tort was construed far narrower under Hindu and Muslim law than it is under
English law. In these systems, compensating for wrongs was less important than
punishing criminals. The English tort law, which is founded on the common law of
England, is the primary source of tort law in India. This was modified by legislative
acts to make it appropriate for Indian conditions while upholding the ideals of justice,
equity, and good conscience. Its inception is associated with the founding of British
courts in India. The Privy Council gave the meaning of "justice, equity, and good
conscience" to mean applying English law to Indian society and circumstances when
it was determined that it was appropriate. Before implementing any English law rule,
Indian courts consider whether it is appropriate for Indian society and circumstances.
For this reason, English law has only been applied selectively in India. The Privy
Council has noted that one of the advantages of the common law is its flexibility in
accommodating the unique conditions of the nations in which it has established itself.
Further, in applying the English law the Indian courts are not bound by common law
on a given issue. It is open to Indian courts to reject the antiquated common law
principles and apply the new English statute law rules if they are more consistent with
justice, equity, and good conscience than the previous common law rules. For
instance, even though India's Parliament has yet to pass a comparable Act, the Law
Reform (Contributory Negligence) Act, 1945, which is based on English law, has been
applied in that country. The development in Indian law need not be on the same lines
as in England. In M.C. Mehta V. Union of India, Justice Bhagwati stated that in order
to effectively address the new issues that emerge in a highly industrialized economy,
we must develop new norms and principles. We cannot permit the law as it is
practiced in England, or for that matter, in any other foreign nation, to shape our
judicial thinking. While we must develop our own body of law, we are undoubtedly
ready to accept light from any source. It has also been held that section 9 of The Code
of Civil Procedure, which enables the civil court to try all suits of a civil nature,
impliedly confers jurisdiction to apply the Law of Torts as principles of justice, equity
and good conscience. Therefore, in order to expand this area of liability, the court may
utilize its inherent powers as provided by section 9.
In a more recent ruling in the case of Jay Laxmi Salt Works (p) ltd. v. State of Gujarat,
Sahai, J. made the following observation: morality is the foundation and structure of
tort law as a whole.
As a result, it would be archaic to completely or strictly limit the ever-widening scope
of tortious liability. Even social progress, the orderly expansion of society, and cultural
sophistication would benefit from the liberal approach to tortious liability adopted by
the courts. The Nature of a Tort
The nature of a tort can be understood by distinguishing: -
-Torts and Crime
-Tort and duty in other civil cases, i.e., a Contract and Quasi- Contract
Tort And Crime: -
Historically, criminal procedure served as the foundation for tort. Even now, certain
provisions of the damages regulations contain a punitive component. On the other
hand, a tort is a type of civil wrong or injury. The type of remedy allowed by law
determines whether a wrong is considered civil or criminal. A civil wrong is one that
results in legal action. While the goal of a criminal proceeding is to punish the
defendant for an alleged act, a civil proceeding focuses on the enforcement of a right
asserted by the plaintiff against the defendant. It is occasionally possible to make the
same offense the focus of both types of proceedings. For example, assault, libel, theft,
malicious injury to property etc. in such cases the wrong doer may be punished
criminally and also compelled in a civil action to make compensation or restitution.
Not all civil wrongs qualify as torts. A civil wrong can only be classified as a tort if an
action for unliquidated damages is the proper course of action. Public nuisance, for
instance, is not a tort just because the attorney general may file a lawsuit to obtain a
civil remedy of an injunction; rather, it is only a tort in those rare instances where a
private party may obtain damages for losses he has suffered as a result of the nuisance.
It is important to remember that a person can still be held accountable for torts even if
they are not the target of a lawsuit for damages. The party is liable from the moment
he commits the tort. Although an action for damages is an essential mark of tort and
its characteristic remedy, there may be and often other remedies also.
Nonetheless, there is a fundamental similarity between crime and torts. Like any
primary duty in tort law, the primary duty in criminal law is not to commit an offence,
such as murder. and is mandated by law in rem. From one perspective, a given set of
circumstances can be considered a crime, but from another, a tort. Every man, for
instance, has the right to have his physical safety respected. Therefore, the victim of
an assault is entitled to compensation. Furthermore, assault is a threat to society, and
as such, the state will punish it.
Nonetheless, the two aspects of a wrong are not the same when it is both a crime and a
tort. First, it could be defined differently as a crime and a tort, and second, there might
be differences in the defences offered for each. The wrongdoer may face jail time or a
fine in addition to being forced to pay compensation in a civil lawsuit. If a person
publishes a defamatory article about another in a newspaper, both a criminal
prosecution for libel as well as a civil action claiming damages for the defamatory
publication may be taken against him. In P.Rathinam. V. Union of India, the Supreme
Court observed, In a way there is no distinction between crime and a tort, inasmuch as
a tort harms an individual whereas a crime is supposed to harm a society. But then, a
society is made of individuals. Harm to an individual is ultimately the harm to the
society. According to a common law rule, an offender would not be sued in a tort case
if he had not yet been prosecuted in a felony, or else he would need to provide a valid
justification for not being prosecuted. India has disregarded this rule, and England has
done away with it.
Torts and Contract: -
P.H. Winfield's definition makes a clear distinction between a tort and a contract.
According to this, tortuous liability results from the violation of a legal obligation
primarily imposed on people; this obligation is to people in general and can be
addressed by filing a claim for unliquidated damages. A contract is a type of
agreement in which the parties to it define and create a legal obligation for one
another. It is a legal relationship, and the parties' agreement defines and determines its
nature, content, and implications. Salmond argues that a contract is created when
private parties exercise the independent legislative power granted by the law to
establish and specify the terms of reciprocal rights and obligations. Today, a tort
differs from a contract in that the obligations in a tort are essentially set by the law,
whereas in a contract, the parties determine the obligations themselves. The
foundation of all contractual obligations is agreement. "Tortious liability cannot be
created by agreement between parties. As a result, I have a legal obligation to refrain
from assaulting you, slandering you, and trespassing on your property—not because
we have an agreement to that effect. The same incident may occasionally result in
liability under both contract and tort law. For instance, the railway company is liable
for both a tort and a contract violation when a passenger who is travelling with a ticket
is hurt due to the company's negligence. The obligation under the contract might be
owed to just one party and the obligation outside of the contract to an alternative.
When a father calls a surgeon to operate on his daughter, the surgeon has a legal
obligation to provide for his daughter. If he disobeys that obligation, he is also
accountable for tortiously harming the daughter. In Austin v. G.W. Railway, the
defendant's negligence caused the child's injuries while the mother and her child were
riding in the defendant's train. Since the child had been admitted as a passenger, it was
determined that it was entitled to compensation.
Torts and Quasi-Contract: -
A quasi-contract covers circumstances in which one party is legally obligated to
another for money or benefits that he has received but to which the other party is more
entitled, even in the absence of an agreement. The existence of a hypothetical contract
that is implied by law serves as the judicial foundation for the obligation under a
quasicontractual, according to the Orthodox perspective. However, the radical
perspective holds that the prevention of unjust enrichment serves as the foundation for
the obligation in a quasi-contract, which is sui generis.
Quasi contract differs from tort in that:
· There is no duty owed to persons for the duty to repay money or benefit received
unlike
tort, where there is a duty imposed.
· In quasi contract the damages recoverable are liquidated damages, and not
unliquidated
damages as in tort.
Quasi contracts resembles tort and differs from contracts in one aspect. The obligation
in
quasi contract and in tort is imposed by law and not under any agreement. In yet
another
dimension quasi contract differs from both tort and contract. If, for example, A pays a
sum
of money by mistake to B. in Quasi contract, B is under no duty not to accept the
money and
there is only a secondary duty to return it. While in both tort and contract, there is a
primary
duty the breach of which gives rise to remedial duty to pay compensation.
Essentials of Tort
The law of torts is fashioned as an instrument for making people adhere to the
standards of
reasonable behaviour and respect the rights and interests of one another. This it does
by
protecting interests and by providing for situations when a person whose protected
interest
is violated can recover compensation for the loss suffered by him from the person who
has
violated the same. By interest here is meant a claim, want or desire of a human being
or
group of human beings seeks to satisfy, and of which, therefore the ordering of human
relations in civilized society must take account. It is however, obvious that every want
or
desire of a person cannot be protected nor can a person claim that whenever he suffers
loss he should be compensated by the person who is the author of the loss. The law,
therefore, determines what interests need protection and it also holds the balance when
there is a conflict of protected interests.
Every wrongful act is not a tort. To constitute a tort,
· There must be a wrongful act committed by a person;
· The wrongful act must be of such a nature as to give rise to a legal remedy and
· Such legal remedy must be in the form of an action for unliquidated damages.
Wrongful Act: -
An act which prima facie looks innocent may becomes tortious, if it invades the legal
right of

another person. In Rogers V. Ranjendro Dutt, the court held that, the act complained
of
should, under the circumstances, be legally wrongful, as regards the party
complaining. That
is, it must prejudicially affect him in some legal right; merely that it will however
directly, do
him harm in his interest is not enough.
A legal right, as defined by Austin, is a faculty which resides in a determinate party or
parties
by virtue of a given law, and which avails against a party (or parties or answers to a
duty
lying on a party or parties) other than the party or parties in whom it resides. Rights
available against the world at large are very numerous. They may be divided again
into
public rights and private rights. To every right, corresponds a legal duty or obligation.
This
obligation consists in performing some act or refraining from performing an act.
Liability for tort arises, therefore when the wrongful act complained of amounts either
to an
infringement of a legal private right or a breach or violation of a legal duty.
Remedy: -
The law of torts is said to be a development of the maxim ‘ubi jus ibi remedium’ or
‘there is
no wrong without a remedy’. If a man has a right, he must of necessity have a means
to
vindicate and maintain it and a remedy if he is injured in the exercise or enjoyment of
it; and
indeed it is a vain thing to imagine a right without remedy; want of right and want of
remedy
are reciprocal.
Where there is no legal remedy there is no wrong. But even so the absence of a
remedy is
evidence but is not conclusive that no right exists.
Unliquidated Damages: -
In general, a tort consists of some act done by a person who causes injury to another,
for
which damages are claimed by the latter against the former. In this connection we
must
have a clear notion with regard to the words damage and damages. The word damage
is
used in the ordinary sense of injury or loss or deprivation of some kind, whereas
damages
mean the compensation claimed by the injured party and awarded by the court.
Damages
are claimed and awarded by the court to the parties. The word injury is strictly limited
to an
actionable wrong, while damage means loss or harm occurring in fact, whether
actionable
as an injury or not.
The real significance of a legal damage is illustrated by two maxims, namely,
Damnum Sine
Injuria i.e. damage without injury and Injuria Sine Damno i.e. injury without damage.

Malfeasance
Malfeasance is a comprehensive term used in both civil and Criminal Law to describe
any
act that is wrongful. It is not a distinct crime or tort, but may be used generally to
describe
any act that is criminal or that is wrongful and gives rise to, or somehow contributes
to, the
injury of another person.
The term Malfeasance applies to the commission of an unlawful act. It is generally
applicable to those unlawful acts, such as trespass, which are actionable per se and do
not
require proof of intention or motive.

Malfeasance is often used in reference to people in public office. In many cases,

proving
malfeasance on the part of an official is grounds to remove that person from his or her
post.
Proving malfeasance can, however, be a difficult chore, as most experts do not
completely
agree on its definition. Even the court systems are not entirely in agreement.
The West Virginia Supreme Court of Appeals summarized a number of the definitions
of
malfeasance in office applied by various appellate courts in the United States.
“ Malfeasance has been defined by appellate courts in other jurisdictions as a
wrongful act
which the actor has no legal right to do; as any wrongful conduct which affects,
interrupts or
interferes with the performance of official duty; as an act for which there is no
authority or
warrant of law; as an act which a person ought not to do; as an act which is wholly
wrongful
and unlawful; as that which an officer has no authority to do and is positively wrong
or
unlawful; and as the unjust performance of some act which the party performing it has
no
right, or has contracted not, to do.”—Daugherty V. Ellis
All courts agree that malfeasance has to do with wrongful doing, but defining
wrongful
doing and proving malicious intent are difficult tasks. In addition, the act must be
proven to
have interfered with the perpetrators’ official duties. Determining whether or not the
act
interfered with the duties is also difficult. In addition, some courts believe
malfeasance also
applies to an act that interferes with the official duties of other public officials.
The distinctions between malfeasance, misfeasance, and nonfeasance have little effect
on
tort law. Whether a claim of injury is for one or the other, the plaintiff must prove that
the
defendant owed a duty of care, that the duty was breached in some way, and that the
breach caused injury to the plaintiff.
One exception is that under the law of Strict Liability, the plaintiff need not show the
absence of due care. The law of strict liability usually is applied to Product Liability
cases,
where a manufacturer can be held liable for harm done by a product that was harmful
when it was placed on the market. In such cases the plaintiff need not show any actual
malfeasance on the part of the manufacturer. A mistake is enough to create liability
because
the law implies that for the sake of public safety, a manufacturer warrants a product’s
safety
when it offers the product for sale.
Difference Between Malfeasance And Misfeasance And Nonfeasance:-
Malfeasance is an affirmative act that is illegal or wrongful. In tort law it is distinct
from
misfeasance, which is an act that is not illegal but is improperly performed. It is also
distinct
from Nonfeasance, which is a failure to act that result in injury.
Misfeasance
The term ‘misfeasance’ is applicable to improper performance of some lawful act for
example where there is negligence. Generally, a civil defendant will be liable for
misfeasance
if the defendant owed a duty of care toward the plaintiff, the defendant breached that
duty
of care by improperly performing a legal act, and the improper performance resulted
in
harm to the plaintiff.

For example, assume that a janitor is cleaning a restroom in a restaurant. If he leaves

the
floor wet, he or his employer could be liable for any injuries resulting from the wet
floor.
This is because the janitor owed a duty of care toward users of the restroom, and he
breached that duty by leaving the floor wet.
In theory, misfeasance is distinct from Nonfeasance. Nonfeasance is a term that
describes a
failure to act that result in harm to another party. Misfeasance, by contrast, describes
some
affirmative act that, though legal, causes harm. In practice, the distinction is confusing
and
uninstructive. Courts often have difficulty determining whether harm resulted from a
failure
to act or from an act that was improperly performed.
To illustrate, consider the example of the wet bathroom floor. One court could call a
resulting injury the product of misfeasance by focusing on the wetness of the floor.
The
washing of the floor was legal, but the act of leaving the floor wet was improper.
Another
court could call a resulting injury the product of nonfeasance by focusing on the
janitor's
failure to post a warning sign.
Misfeasance in public office is a cause of action in the civil courts of England and
Wales and
certain Commonwealth countries. It is an action against the holder of a public office,
alleging
in essence that the office-holder has misused or abused his power. The tort can be
traced
back to 1703 when Chief Justice Sir John Holt decided that a landowner could sue a
police
Constable who deprived him of his right to vote (Ashby V. White) The tort was
revived in
1985 when it was used so that French Turkey producers could sue the Ministry of
Agriculture over a dispute that harmed their sales.
The peculiarities of the tort of misfeasance in a public office from the perspective of
two popular, contemporary theories of tort law: the rights-based theory of Robert
Stevens, and the corrective justice theory of Ernest Weinrib. It identifies four
significant problems of fit for these theories: viz, the fact that this tort does not protect
a clearly defined private law right; the fact that its touchstones of liability include
concepts that are highly unusual in tort law (such as malice, recklessness and bad
faith); the fact that it confounds the private/public law dichotomy envisaged by both
authors, and the fact that it is both animated by, and makes ready use of, public policy
considerations. It is nonetheless argued that these apparent oddities are not unique to
this tort (each featuring elsewhere in tort law) and that, therefore, misfeasance in a
public office is by no means as anomalous as these theories would lead us to believe.
Having established that it is not a theoretical anomaly, the article goes on to suggest
that this tort also serves a discrete and vital role in holding public officers to account
thus, rendering implausible any suggestion that it has very little to commend it in
practical terms, or that it ought to be abolished.
Difference Between Misfeasance And Nonfeasance: -
The term “misfeasance” is used in Tort Law to describe an act that is normally legal or
lawful but which has been performed improperly or in an unlawful way. In theory,
“Misfeasance” is distinct from “Nonfeasance”. Nonfeasance is a term that describes a
failure to act that results in harm to another party. Misfeasance, by contrast, as just
shown, describes some affirmative act that, though legal, causes harm. In practice, the
distinction the distinction between “Misfeasance” and “Nonfeasance” can be
confusing with a court often have difficulty determining whether harm resulted from a
failure to act (nonfeasance) or from an act that was improperly performed
(misfeasance).
Nonfeasance
Nonfeasance is a term used in Tort Law to describe inaction that allows or results in
harm to a person or to property. An act of nonfeasance can result in liability if (1) the
actor owed a duty of care toward the injured person, (2) the actor failed to act on that
duty, and (3) the failure to act resulted in injury. Originally the failure to take
affirmative steps to prevent harm did not create liability, and this rule was absolute.
Over the years courts have recognized a number of situations in which a person who
does not create a dangerous situation must nevertheless act to prevent harm.
Generally, a person will not be held liable for a failure to act unless he or she had a
preexisting relationship with the injured person. For example, if a bystander sees a
stranger drowning and does not attempt a rescue, he cannot be liable for nonfeasance
because he had no preexisting relationship with the drowning person. The bystander
would not be liable for the drowning even if a rescue would have posed no risk to him.
However, if the victim is drowning in a public pool and the bystander is a lifeguard
employed by the city, and if the lifeguard does not act to help, she may be held liable
for the drowning because the lifeguard's employment places her in a relationship with
swimmers in the pool. Because of this relationship, the lifeguard owes a duty to take
affirmative steps to prevent harm to the swimmers.
Courts have found a pre-existing relationship and a duty to act in various
relationships, such as the relationship between Husband and Wife, innkeeper and
guest, employer and employee, jailer and prisoner, carrier and passenger, Parent and
Child, school and pupil, and host and guest. A person who renders aid or protection to
a stranger also may be found liable if the rescuer does not act reasonably and leaves
the stranger in a more dangerous position, even if the rescuer had nothing to do with
the initial cause of the stranger's dilemma.
Courts have found a duty to act if a person does something innocuous that later poses
a threat and then fails to act to prevent harm. For example, assume that Johnny loans a
powerful circular saw to Bobby. If Johnny later remembers that the bolt securing the
blade is loose and that the blade will dislodge in a dangerous manner when the saw is
used, Johnny must try to warn Bobby. If Bobby is injured because Johnny failed to
act, Johnny can be held liable for nonfeasance.
Difference Between Non-Feasance And Malfeasance And Misfeasance: -
In theory nonfeasance is distinct from misfeasance and malfeasance. Malfeasance is
any act that is illegal or wrongful. Misfeasance is an act that is legal but improperly
performed. Nonfeasance, by contrast, is a failure to act that results in harm. In practice
the distinctions between the three terms are nebulous and difficult to apply. Courts in
various jurisdictions have crafted different rules relating to the terms. The most
difficult issue that faces courts is whether to imply a duty to act and find liability for
the failure to act. Originally courts used the term nonfeasance to describe a failure to
act that did not give rise to liability for injuries. The meaning of the term reversed
direction over time, and most courts now use it to describe inaction that creates
liability. Misfeasance And Nonfeasance: Yania V. Bigan One of the most contentious
debates in tort law arises out of the distinction between misfeasance and nonfeasance,
between actively causing harm to another on the one hand, and passively allowing
harm to fall upon him on the other. In the first case, liability has traditionally been
imposed on those whose negligence proximately causes harm to another.
Examples range from such egregious behaviour as drag racing in automobiles, to more
innocent conduct, such as failing to organize a fishing contest so as to avoid creating
an unreasonable risk of harm. In such cases little controversy is involved in imposing
liability upon the negligent when their unreasonable conduct harms others. But in the
case of nonfeasance, there has been a valiant resistance to imposing liability. One of
the many classic examples of nonfeasance involves a man strolling down a dock late a
knight, who hears a man calling for help from the water below. Peering over the edge,
he sees a man struggling to stay above water, coming perilously close to drowning. At
his feet is a length of rope, which he quickly deduces is more than sufficient to reach
the ailing gentleman. Without provocation, however, he simply turns about, and
continues on his way. The man below drowns.
Many scholars have attempted to argue that the man who fails to rescue another
should be liable for the harm suffered. Interestingly, though, few (if any) courts have
gone ahead and imposed liability in this situation. One of the more recent cases which
flatly refused to impose liability in the just the type of scenario outlined above is Yania
V. Bigan. The facts are somewhat similar to the above example, only even less
sympathetic. Yania and Bigan were business associates in the strip-mining business.
One day they met along with another party on Bigan’s land, near a large trench full of
water roughly 10 feet deep. What followed was some type of contest of machismo,
ending in Yania proving his manliness by jumping into the trench of water and
drowning, while Bigan stood by.
Yania’s wife brought suit against Bigan on behalf of herself and their three children.
The court summarized the case against Bigan as follows: “Bigan stands charged with
three-fold negligence: (1) by urging, enticing, taunting and inveigling Yania to jump
into the water; (2) by failing to warn Yania of a dangerous condition on the land, i.e.,
the cut wherein lay 8 to 10 feet of water; (3) by failing to go to Yania’s rescue after he
had jumped into the water,” (Id. At 345). Interestingly, the court had little sympathy:
“Appellant initially contends that Yania’s descent from the high embankment into the
water and the resulting death were caused “entirely” by the spoken words and
blandishments of Bigan delivered at a distance from Yania. The complaint does not
allege that Yania slipped or that he was pushed or that Bigan made any physical
impact upon Yania. On the contrary, the only inference deducible from the facts
alleged in the complaint is that Bigan, by the employment of cajolery and
inveiglement, caused such a mental impact on Yania that the latter was deprived of his
volition and freedom of choice and placed under a compulsion to jump into the water.
Had Yania been a child of tender years or a person mentally deficient then it is
conceivable that taunting and enticement could constitute actionable negligence if it
resulted in harm. However, to contend that such conduct directed to an adult in full
possession of all his mental faculties constitutes actionable negligence is not only
without precedent but completely without merit.”
The court noted that Bigan might have been liable to Yania for failing to warn of a
dangerous condition on the land; however, the court dismisses this potential by
averring that Bigan pointed the ditch out to Yania, and any danger was obviously
apparent to both as owners/operators of coal strip-mines.
The court ends the case with a classic formulation of the “no duty to rescue”
rule:
“Lastly, it is urged that Bigan failed to take the necessary steps to rescue Yania from
the water. The mere fact that Bigan saw Yania in a position of peril in the water
imposed upon him no legal, although a moral, obligation or duty to go to his rescue
unless Bigan was legally responsible, in whole or in part, for placing Yania in the
perilous position: Restatement, Torts, § 314. Cf: Restatement, Torts, § 322. The
language of this Court in Brown v. French, 104 Pa. 604, 607, 608, is apt: “If it
appeared that the deceased, by his own carelessness, contributed in any degree to the
accident which caused the loss of his life, the defendants ought not to have been held
to answer for the consequences resulting from that accident. ... He voluntarily placed
himself in the way of danger, and his death was the result of his own act. ... That his
undertaking was an exceedingly reckless and dangerous one, the event proves, but
there was no one to blame for it but himself. He had the right to try the experiment,
obviously dangerous as it was, but then also upon him rested the consequences of that
experiment, and upon no one else; he may have been, and probably was, ignorant of
the risk which he was taking upon himself, or knowing it, and trusting to his own skill,
he may have regarded it as easily superable. But in either case, the result of his
ignorance, or of his mistake, must rest with himself – and cannot be charged to the
defendants”. The complaint does not aver any facts which impose upon Bigan legal
responsibility for placing Yania in the dangerous position in the water and, absent such
legal responsibility, the law imposes on Bigan no duty of rescue.
Recognizing that the deceased Yania is entitled to the benefit of the presumption that
he was exercising due care and extending to appellant the benefit of every well
pleaded fact in this complaint and the fair inferences arising therefrom, yet we can
reach but one conclusion. That Yania, a reasonable and prudent adult in full possession
of all his mental faculties, undertook to perform an act which he knew or should have
known was attended with more or less peril and it was the performance of that act and
not any conduct upon Bigan’s part which caused his unfortunate death.” The court
ultimately reached the right outcome here, though a persuasive case could be made
that inducing someone to take perilous actions and then failing to assist them should
be a species of negligence. But that is the subject of another post, which perhaps I’ll
address at a later date. Some of the interesting consequences of the
misfeasance/nonfeasance dichotomy are the various exceptions to the “no duty to
rescue” rule that courts have created. I plan on discussing some of these exceptions in
future posts.

Conclusion
Thus, to conclude, law of torts is a branch of law which resembles most of the other
branches in certain aspects, but is essentially different from them in other respects.
Although there are differences in opinion among the different jurists regarding the
liability in torts, the law has been developed and has made firm roots in the legal
showground. There are well defined elements and conditions of liability in tort law.
This bough of law enables the citizens of a state to claim redressal for the minor or
major damage caused to them. Thus, the law has gained much confidence among the
laymen. At present the terms misfeasance and nonfeasance are most often used with
reference to the conduct of municipal authorities with reference to the discharge of
their statutory obligations; and it is an established rule that an action lies in favour of
persons injured by misfeasance, i.e. by negligence in discharge of the duty; but that in
the case of nonfeasance the remedy is not by action but by indictment or mandamus or
by the particular procedure prescribed by the statutes. This rule is fully established in
the case of failure to repair public highways; but in other cases, the courts are astute to
find evidence of carelessness in the discharge of public duties and on that basis to
award damages to individuals who have suffered thereby.

Misfeasance is also used with reference to the conduct of directors and officers of
joint-
stock companies. The word malfeasance is sometimes used as equivalent to
malpractice by a medical practitioner. The terms Malfeasance, Misfeasance and
Nonfeasance are of very wide import but they
can’t cover a case of breach of public duty which is not actuated with malice or bad
faith
such as defective planning and construction of bundh.
Recommendation And Suggestion
The main concern of this project that is “Malfeasance, Misfeasance and Nonfeasance
in Tort
Law” carries a very thin line of difference in between the terms. Whereas,
malfeasance
applies to the commission of an unlawful act, misfeasance applicable to improper
performance of some lawful acts and lastly nonfeasance applies to the omission to
perform
some act when there is an obligation to perform it.
Example: A company hires a catering company to provide drinks and food for a
retirement
party. If the catering company doesn't show up, it's considered nonfeasance. If the
catering
company shows up but only provides drinks (and not the food, which was also paid
for), it's
considered misfeasance. If the catering company accepts a bribe from its client's
competitor
to undercook the meat, thereby giving those present food poisoning, it's considered
malfeasance. In lieu of the marginal difference among the terms its applicability in
Indian scenario in Law
of Torts is not notable. As mentioned before the term misfeasance and nonfeasance are
most often used terms. The law of torts in India is definitely not unnecessary but
merely requires enactments to

make it more ascertainable. Failure of aggrieved persons to assert their legal rights is
perhaps to be ascribed not merely to insufficient appreciation of such rights but to
other
causes as well, e.g., difficulties in proving claims and obtaining trustworthy testimony,
high
court fees, delay of courts. The elimination of difficulties which obstruct aggrieved
parties in
seeking or obtaining remedies which the law provides for them is a matter which is
worthy
of consideration. If these lacunae are removed, India could also witness a growth in
tort
litigation.