An Introduction to Law of Torts:

Meaning, Nature and Essential elements

1. Meaning of tort • The term ‘tort’ is the French equivalent of the English word ‘wrong’, and of
the Roman Law term ‘delict’ • It is introduced into the English law by Norman jurists. • The
word ‘tort’ is derived from the Latin term ‘tortum’, twisted, and implies conduct which is
twisted or tortious. • It means a breach of some duty independent of contract between citizens
giving rise to a civil cause of action and for which compensation is recoverable. • Public
nuisance is an instance of a civil injury for which an action for damages in tort will not lie except
when it becomes a private nuisance as far as the person suffering special damage is concerned

2. How word “Tort” came to India • It came to India through England. • In 1065 England was
conquered by Normans who were the French speaking people of Normandy, a region of France.
• After Norman conquest, French became the spoken language in the Courts in England, and
thus many technical terms in English law owe their origin to French, and ‘Tort’ is one of them.

3. TORT LAW IS BASED ON THE IDEA THAT EVERYONE IN OUR SOCIETY HAS CERTAIN RIGHTS •
Along With Having Certain Rights, Everyone Has The Duty to Respect the Rights of Others. • The
Purpose of Tort Law is to Enforce Those Rights and Duties

4. Meaning of tort • The person committing a tort or wrong is called a tort-feasor or wrong
doer, and his misdoing is a tortious act . • The principal aim of the law of torts is compensation
of victims or their dependants. • Grant of exemplary damages in certain cases will show that
deterrence of wrong-doers is also another aim of the law of torts.

5. Salmond's Definition of Tort and its shortcomings Sir John Salmond: "Tort is a civil wrong for
which the remedy is common law action for unliquidated damages and which is not exclusively
the breach of contract or the breach of trust or other merely equitable obligation.“ • It fails to
underline the essential characteristics of tortions acts. • it does not explain what is wrong and
what kinds of wrong explaining jural features of tort. • The definition is more informative but
this is also not perfect.

6. Definitions of tort Fraser: A tort is an infringement of a legal right in rem of a private

individual, giving a right of compensation of the suit of the injured party. Prof. P H Winfield:
Tortious Liability arises from breach of a duty primarily fixed by law; this duty is towards
persons generally and its breach is redressable by an action for unliquidated damages. Section
2(m) of Limitation Act, 1963: "Tort means a civil wrong which is not exclusively a breach of
contract or breach of trust.“
7. Salmond's Definition of Tort and its shortcomings Sir John Salmond: "Tort as a civil wrong
for which the remedy is common law action for unliquidated damages and which is not
exclusively the breach of contract or the breach of trust or other merely equitable obligation.“ •
It fails to underline the essential characteristics of tortions acts. • it does not explain what is
wrong and what kinds of wrong explaining jural features of tort. • The definition is more
informative but this is also not perfect.

8. Tort and Contract • DISTINCTION • A contract is founded upon consent: a tort is inflicted
against or without consent. • A contract necessitates privity between the parties to it: in tort no
privity is needed. • Tort vs breach of contract • A tort is a violation of a right in rem, i.e., of a
right vested in some determinate person, either personally or as a member of the community,
and available against the world at large: -whereas a breach of contract is an infringement of a
right in personam, i.e., of a right available only against some determinate person or body, and
in which the community at large has no concern. • In the case of a tort, the duty violated is one
imposed by the law and is owed to the community at large. - In the case of a contract, the duty
is fixed by the will and consent of the parties, and it is owed to a definite person or persons.

9. Tort and Contract • E.g. if A assaults B, or damages Bs property without lawful cause or
excuse, it is a tort. • Here the duty violated is a duty imposed by the law, and that is the duty
not to do unlawful harm to the person or property of another. • But if A agrees to sell goods to
B for a price, and either party fails to perform the contract, the case is one of a breach of
contract. • Here there is no duty owed by A except to B, and none owed by B except to A. • The
duty that is violated is a specific duty owed by either party to the other alone, as distinguished
from a general duty owed to the community at large.

10. Tort and Contract • In a breach of contract, the motive for the breach is immaterial: in a
tort, it is often taken into consideration. • Damages in Contract- Liquidated, Tort- Unliquidated.
• In a breach of contract, damages are only as a measure of compensation. In an action for tort
to the property, they are generally the same. But where the injury is to the person, character,
or feelings, and the facts disclose improper motive or conduct such as fraud, malice, violence,
cruelty, or the like which aggravate the plaintiffs injury, he may be awarded aggravated
damages. • Exemplary damages to punish the defendant and to deter him in future can also be
awarded in certain cases in tort but rarely in contract. • A clause in a contract limiting liability
cannot be relied upon by a person who is not a party to that contract and incurs liability in tort.
• Law of torts is aimed at allocation or prevention of losses whereas the law of contract aims to
see that the promises made under a contract are performed.

11. Same Action amounting to Tort and a Breach of Contract • Persons, such as carriers,
solicitors, or surgeons, who undertake to discharge certain duties and voluntarily enter into
contracts for the due performance thereof, will be liable for neglect or unskillfulness either in
an action for a breach of contract or in tort to a party to the contract or in tort only to a person
not a party to the contract who suffers injury. • The breach of such contracts amounts also to a
tort because such persons would be equally liable even if there was no contract as they
undertake a duty independently of any contract. • A father employs a surgeon to attend on his
son. The son is injured by unskilful treatment. Here there is a contract between the father and
the surgeon, but none between the son and the surgeon. The father, therefore, may sue the
surgeon in contract, but the son can sue him only in tort.

12. Same Action amounting to Tort and a Breach of Contract • In Donoghue v. Stevenson,
(1932) AC 562: 48 TLR 494(HL) a manufacturer who sold substandard article to a retailer who
sold it to a customer was held liable to a friend of the customer who after consuming it became
ill. • The manufacturer was under a contractual duty to the retailer and was in breach of that
duty but he also owed a duty in tort to take reasonable care not to harm the consumer.

13. Tort and Quasi-Contract • Quasi -contracts cover those situations where a person is held
liable to another without any agreement for money or benefit received by him to which the
other person is better entitled. • contract differs from tort in that there is no duty owed to
persons generally for the duty to repay money or benefit received is owed to a definite person
or persons; and the damages recoverable are liquidated damages and not unliquidated
damages as in tort. • On both these aspects quasi -contract has similarity with contract.

14. Tort and Quasi-Contract • Quasi -contract resembles tort and differs from contract on one
aspect that the obligation in it as in tort is imposed by the law and not under an agreement as
in contract. • There is one aspect in which quasi -contract differs from both tort and contract. •
E.g. when A pays money under a mistake to B, B is under an obligation to refund it to A, even
though the payment is voluntary and is not induced by any fraud or misrepresentation
emanating from B. • In this illustration it cannot be said that there was any primary duty on B
not to accept the money paid to him under a mistake and the only duty on him is the remedial
or secondary duty to refund the money to A; but in tort as also in contract there is always a
primary duty the breach of which gives rise to the remedial duty to pay compensation.

15. Tort and Crime • A tort is an infringement or privation of the private or civil rights belonging
to individuals considered as individuals; whereas a crime is a breach of public rights and duties
which affect the whole community. • In tort, the wrongdoer has to compensate the injured
party: whereas, in crime, he is punished by the State in the interests of society. • In tort, the
action is brought by the injured party: in crime, the proceedings are conducted in the name of
the State and the guilty person is punished by the State. • Criminal Courts are authorised within
certain limits and in certain circumstances to order payment of a sum as compensation to the
person injured out of the fine imposed on the offender. The compensation so awarded
resembles the award of unliquidated damages in a tort action but there is a marked difference.
The award of compensation in a criminal prosecution is ancillary to the primary purpose of
punishing the offender but in a tort act ion generally it is the main purpose. Only exemplary
damages allowed in a tort action are punitive in nature and one of the reasons for severely
restricting the categories of cases in which they can be awarded is that they import a criminal
element in civil law without proper safeguards.

16. Tort and Crime • The Bombay High Court has viewed the difference from the perspective of
the nature of punishment and sanctions imposed. • The court observed that "it is the
fundamental principal that what constitutes crime is essentially a matter of statute law. Word
"crime is not defined precisely in the penal Code. A crime has to be distinguished from a tort or
a civil wrong. The distinction consists in the nature of the sanction that is attached to each form
of liability. In the case of a crime, the sanction is in the form of punishment while in the case of
a tort or a civil wrong the sanction is in the form of damages or compensation to the person
injured. Primarily, the purpose of punishment is deterrence. The purpose of compensation,
however, is recompense". (State of Maharashtra v. Govind Mhatarba Shinde (2010) 4 AIRBom
167) • There is, however, a similarity between tort and crime at the primary level. In criminal
law also the primary duty not to commit an offence for example murder like any primary duty
in tort is in rem and is imposed by the law.

17. Tort and Crime • The same set of circumstances will, in fact, from one point of view,
constitute a tort, while, from another point of view, amount to a crime. • In the case, for
instance, of an assault, the right violated is that which every man has, that his bodily safety shall
be respected, and for the wrong done to this right the sufferer is entitled to get damages. But
this is not all. The act of violence is a menace to the safety of society generally, and will
therefore be punished by the State. • Where the same wrong is both a crime and a tort (e.g.,
assault, libel, theft, mischief to property) its two aspects are not identical; its definition as a
crime and as a tort may differ; what is a defence to the tort (as in libel the truth) may not be so
in the crime and the object and result of a prosecution and of an action in tort are different.

18. Tort and Breach of Trust • In case of BoT by trustees, the beneficiary can claim such
compensation which depends upon the loss that the trust property has suffered. • The
damages in the case of BoT, are liquidated- Damages in the tort are unliquidated.

19. **Trust • Indian Trusts Act, 1882 • 3. Interpretation clause- "trust" • A "trust" is an
obligation annexed to the ownership of property, and arising out of a confidence reposed in
and accepted by the owner, or declared and accepted by him, for the benefit of another, or of
another and the owner: • "author of the trust": "trustee": "beneficiary": "trust property":
"beneficial interest": "instrument of trust": • the person who reposes or declares the
confidence is called the "author of the trust": the person who accepts the confidence is called
the "trustee": the person for whose benefit the confidence is accepted is called the
"beneficiary": the subject-matter of the trust is called "trust-property" or "trust-money": the
"beneficial interest" or "interest" of the beneficiary is his right against the trustee as owner of
the trust-property; and the instrument, if any, by which the trust is declared is called the
"instrument of trust";

20. CREATION OF TRUST The elements of valid trust are presented in section-6. Intention of the
author to create the trust. Purpose of the trust. The monetary asset is assigned for the benefit
of the trustee. Gives control or transfer the trust property to the trustee which includes
intention of the author. Trustee can claim expenses & salary from the benefits from the trust of
his work. The requirement of the trust law is that the author should indicate by words or
conduct with the reasonable intention to create a trust. "breach of trust": a breach of any duty
imposed on a trustee, as such, by any law for the time being in force, is called a "breach of
trust".

21. CONSTITUENTS OF TORT

22. CONSTITUENTS OF TORT • Tort is an instrument for making people adhere to standards of
reasonable behavior and respect the rights and interests of one another. • "interest" means "a
claim, want or desire of a human being or group of human beings which the human being or
group of human beings seeks to satisfy. • The law, determines what interests need protection.
• A protected interest gives rise to a legal right which in turn gives rise to a corresponding legal
duty. • Some legal rights are absolute in the sense that mere violation of them leads to the
presumption of legal damage. • There are other legal rights where there is no such
presumption and actual damage is necessary to complete the injury which is redressed by the
law.

23. CONSTITUENTS OF TORT • An act which infringes a legal right is a wrongful act . • But every
wrongful act is not a tort. • To constitute a tort or civil injury, there must be, • (1) wrongful act
• (2) legal damage or actual damage and • (3) legal remedy in the form of an act ion for
damages.

24. CONSTITUENTS OF TORT: A. Wrongful Act • 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. (Rogers v. Rajendro Dutt, (1860) 8 )

25. CONSTITUENTS OF TORT: Wrongful Act • An act which, prima facie, appears to be innocent
may become tortious, if it invades the legal right of another person. • E.G. Construction on ones
own land of anything which obstructs the light to a neighbours house. • It is lawful to erect
what one pleases on ones own land; but if by twenty years enjoyment, the neighbour has
acquired the legal right to the unobstructed transmission of the light across that land, the
erection of any building which substantially obstructs it is an invasion of the right, and so not
only does damage, but is unlawful and injurious. • The crucial test of legally wrongful act or
omission is its prejudicial effect on the legal right of another

26. CONSTITUENTS OF TORT: Wrongful Act • Legal right: • It has been defined, by Austin, as 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 sub-divided into
private rights and public rights.

27. CONSTITUENTS OF TORT: Wrongful Act • Private rights include all rights which belong to a
particular person to the exclusion of the world at large. • These rights are: • (1) rights of
reputation • (2) rights of bodily safety and freedom • (3) rights of property • Public rights
include those rights, which belong in common to the members of the State generally.

28. CONSTITUENTS OF TORT: Wrongful Act • Every infringement of a private right denotes that
an injury or wrong has been committed, which is imputable to a person by whose act, omission,
or forbearance, it has resulted. • But when a public right has been invaded by an act or
omission not authorized by law, then no action will lie unless in addition to the injury to the
public, a special, peculiar and substantial damage is occasioned to the plaintiff.

29. CONSTITUENTS OF TORT: Wrongful Act • To every right there corresponds an obligation or
duty. • If the right is legal, so is the obligation • if the right is contingent, imaginary, or moral, so
is the obligation. • A right in its main aspect consists in doing something, or receiving and
accepting something. So an obligation consists in performing some act or in refraining from
performing an act .

30. CONSTITUENTS OF TORT: Wrongful Act • Liability for a tort arises, 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.

31. CONSTITUENTS OF TORT: B.Legal Damage • "Damage" means the harm or loss suffered or
presumed to be suffered by a person as a result of some wrongful act of another. • The sum of
money awarded by court to compensate "damage" is called "damages". • From the point of
view of presumption of damage, rights are classified into • (1) absolute and • (2) qualified.

32. CONSTITUENTS OF TORT: B. Legal Damage • When an absolute right is violated the law
conclusively presumes damage although the person wronged may have suffered no pecuniary
loss whatsoever. • The damage so presumed is called legal damage. • Violation of absolute
right is, therefore, actionable per se, i.e., without proof of any damage. • In case of qualified
rights, there is no presumption of legal damage and the violation of such rights is actionable
only on proof of actual or special damage.

33. CONSTITUENTS OF TORT: B.Legal Damage • In other words, in case of an absolute right, the
injury or wrong, i.e., the tortious action, is complete the moment the right is violated
irrespective of whether it is accompanied by any actual damage, • whereas in case of a
qualified right, the injury or wrong is not complete unless the violation of the right results in
actual or special damage.

34. CONSTITUENTS OF TORT: B. Legal Damage • legal damage is illustrated by two maxims,
namely,  Injuria Sine Damno and  Damnum Sine (or Absque) Injuria. • By damnum- a loss,
hurt, harm, or damage • By injuria is meant a Injury; wrong; the privation or violation of right. •
There are two kinds of torts-  those which are actionable per se, that is, without proof of
actual damage, and  those which are actionable only on proof of actual damage resulting from
them.

35. Injuria Sine Damno • Injuria Sine Damno- the infringement of an absolute private right
without any actual loss or damage, the person whose right is infringed has a cause of action. •
Every person has an absolute right to his property, to the immunity of his person, and to his
liberty, and an infringement of this right is actionable per se. • In India the same principles have
been followed. • The Privy Council has observed that "there may be, where a right is interfered
with, injuria sine damno sufficient to found an action: but no action can be maintained where
there is neither damnum nor injuria" . (Kali Kissen Tagore v. Jodoo Lal Mullick, (1879) 5 CLR 97
(101))

36. Injuria Sine Damno Ashby v. White, (1703) 2 Ld. Raym.938 Refusal to register vote. The
defendant, a returning officer, wrongfully refused to register a duly tendered vote of the
plaintiff, a legally qualified voter, at a parliamentary election and the candidate for whom the
vote was tendered was elected, and no loss was suffered by the rejection of the vote. Held-
Defendant Liable. An action for damages will also lie if a citizen is deprived of his right to vote
by a law which is unconstitutional law by reason of offending right to equality.

37. CONTD…… Marzetti v. Williams, (1830) 1 B&Ad 415. Banker refusing customers cheque. An
action will lie against a banker, having sufficient funds in his hands belonging to a customer, for
refusing to honour his cheque, although the customer did not thereby sustain any actual loss or
damage.

38. CONTD…… BHIM SINGH v. STATE OF JAMMU & KASHMIR, AIR 1986 On the opening day of
the Budget Session of the Legislative Assembly, Shri Bhim Singh was suspended from the
Assembly. He questioned the suspension in the High Court of Jammu & Kashmir. The order of
suspension was stayed by the High Court. The next day, he was arrested and was taken away by
the police. His wife filed the present application for the issue of a writ to direct the respondents
to produce Shri Bhim Singh before the court, to declare his detention illegal and to set him at
liberty. HELD: The court held that the detention was illegal and qualified as false imprisonment.

39. Damnum Sine Injuria • In cases of damnum sine injuria, i.e., actual and substantial loss
without infringement of any legal right, no action lies. • Actionable only on proof of damage
caused by an act. • damage caused by acts authorized by statute are instances of damnum
absque injuria, and damage resulting therefrom is not actionable. • Hence the meaning of the
maxim is that loss or detriment is not a ground of act ion unless it is the result of a species of
wrong of which the law takes cognizance. • In a suit for damages based on a tort the plaintiff
cannot succeed merely on the ground of damage unless he can show that the damage was
caused by violation of a legal right of his.

40. Damnum Sine Injuria District Board, Manbhum v. S. Sarkar, AIR 1955 Pat 432 (Patna High
Court) When a statute confers upon a corporation a power to be exercised for the public good,
the exercise of power is not generally discretionary but imperative. No action lies against a
District Board for the planting of trees by the side of a road even if a tree through unknown
causes falls and damages the house of the plaintiff, unless it is proved that the District Board
did not use due care and diligence.

41. Damnum Sine Injuria Acton v. Blundell, (1843) 12 M&W 324 a landowner in carrying on
mining operations on his land in the usual manner drained away the water from the land of
another owner through which water flowed in a subterraneous course to his well, and it was
held that the latter had no right to maintain an act ion. Mayor & Co. of Bradford v. Pickles,
(1895) AC 587 Where the defendant intended to divert underground water from a spring that
supplied the plaintiff corporations works, not for the benefit of his own land, but in order to
drive the corporation to buy him off, it was held that the defendants conduct was
unneighbourly but not wrongful and therefore no action lay.

42. Damnum Sine Injuria Wilson v. Waddell, (1876) Damage caused by lawful working of mine .
Where a landowner by working his mines caused a subsidence of his surface, in consequence of
which the rainfall was collected and passed by gravitation and percolation into an adjacent
lower coal- mine, it was held that the owner of the latter could sustain no action because the
right to work a mine was a right of property, which, when duly exercised, begot no
responsibility.

43. Damnum Sine Injuria Gloucester Grammar School case, (1410) Setting up rival school.
Where the defendant, a schoolmaster, set up a rival school next door to the plaintiffs and boys
from the plaintiff school flocked to defendants, it was held that no action could be maintained.
44. Damnum Sine Injuria Day v. Brownring, (1878) 10 ChD 294 Using of name of another mans
house. The plaintiffs house was called "Ashford Lodge" for sixty years, and the adjoining house
belonging to the defendant was called "Ashford Villa" for forty years. The defendant altered the
name of his house to that of the plaintiffs house. The plaintiffs alleged that this act of the
defendant had caused them great inconvenience and annoyance, and had materially
diminished the value of their property. It was held that defendant had not violated any legal
right of the plaintiffs.

45. Damnum Sine Injuria Butt v. Imperial Gas Co., (1866) 2 LR Ch App 158. Obstruction to view
of shop. The plaintiff carried on his business in a shop which had a board to indicate the
materials in which he dealt. The defendant by virtue of statutory powers constructed a
gasometer which obstructed the view of his premises. In an action by the plaintiff to restrain by
injunction the erection of the gasometer as it injured him by obstructing the view of his place of
business, it was held that no injunction could be granted for the injury complained of.

46. Damnum Sine Injuria Anand Singh v. Ramachandra, AIR 1963 Damage to wall by water . The
defendant built two pacca walls on his land on two sides of his house as a result of which water
flowing through a lane belonging to the defendant and situated between the defendants and
plaintiffs houses damaged the walls of the plaintiff. The plaintiff had not acquired any right of
easement. It was held that the defendant by building the wall on his land had not in any way
violated the plaintiffs right, that this was a case of damnum sine injuria and that, therefore, no
right of act ion accrued to the plaintiff.

47. Damnum Sine Injuria Vishnu Dutt Sharma v. Board of High School and Intermediate
Examination, AIR 1981 All 46 . Loss of one academic year. A student was wrongly detained for
shortage of attendance by the Principal on a misconstruction of the relevant regulations and
thereby the student suffered the loss of one year. In a suit for damages it was held that the suit
was not maintainable as the misconstruction of the regulations did not amount to a tort.

48. CONSTITUENTS OF TORT: C. LEGAL REMEDY • The law of torts is said to be a development
of the maxim ubi jus ibi remedium (For every wrong, the law provides a remedy.). • Jus signifies
here the legal authority to do or to demand something; and remedium may be defined to be
the right of action, or the means given by law, for the recovery or assertion of a right.

49. Some General Elements in Torts 1. ACT AND OMISSION To constitute a tort there must be a
wrongful act, whether of omission or commission, but not such acts as are beyond human
control and as are entertained only in thoughts. An omission is generally not actionable but it is
so exceptionally. Where there is a duty to act an omission may create liability.

50. Some General Elements in Torts 2. Voluntary and Involuntary Acts- Voluntary acts may
involve liability and the Involuntary acts may not.
51. MENTAL ELEMENTS A voluntary act, except in those cases where the liability is strict, has to
be accompanied with requisite mental element, i.e., malice, intention, negligence or motive to
make it an actionable tort assuming that other necessary ingredients of the tort are present.

52. MENTAL ELEMENTS Malice Malice in the popular sense means spite or ill-will. But in law
malice has two distinct meanings: (1) Intentional doing of a wrongful act: malice is synonymous
with intention. (2) Improper motive. malice refers to the motive and in this sense it includes not
only spite or ill-will but any motive which the law disapproves.

53. (1)Intentional doing of a wrongful act: Thus, "Malice in law" means an act done wrongfully,
and without reasonable and probable cause, and not, as in common parlance, an act dictated
by angry feeling or vindictive motive. "Malice in law" is "implied malice" when from the
circumstances of the case, the law will infer malice. Case West Bengal State Electricity ... vs Dilip
Kumar Ray on 24 November, 2006 (2006)

54. (1)Intentional doing of a wrongful act: "Malice in law“: A knocks down a perfect stranger on
the road, without any excuse, without knowing who it is QUINN V LEATHEM (1901) AC 495 A
trade union called the Belfast Journeymen Butchers' and Assistants' Association had wanted to
enforce a closed shop agreement against Leathem's butcher business in Lisburn. They
approached one of his customers, Andrew Munce in Belfast, and told him that he should refuse
to trade with Leathem unless Leathem employed only workers who joined the trade union.
They said that if Munce did not do as they wished, they would call a strike among Munce's own
workers. Munce had been buying Leathem's beef for 20 years, but there had been no written
contract about it, and none of Munce's workers had yet been induced to strike (break their
contracts). Leathem suffered considerable loss to his business, and brought an action for
conspiracy. Lord Justice FitzGibbon instructed the jury that the crucial question was whether
the defendants' dominant motive had been to injure the plaintiff. The jury found for the
plaintiff and awarded him £200 damages.

55. Improper motive Malice in the second sense, i.e., improper motive, is sometimes known as
"express malice", "actual malice" or "malice in fact" which are synonymous expressions. Malice
in this sense, i.e., improper motive, is for example, relevant in the tort of Defamation Malicious
prosecution Willful and malicious damage to property Slander of title

56. Improper motive Malice-in-fact Malice-in-law 1. When an act is done with ill- will motive
towards an individual then it is called Malice –in –fact or express malice . But when an act is
done wrongfully and without reasonable and probable cause , it is called Malice- in-law or
implied malice. In malice- in-law, the act done must be wrongful or legal right must be violated.
2. In Malice-in-fact there must be ill-will or any vindictive motive of the defendant against the
plaintiff. While in Malice-in-law there must be Concurrence of mind with a wrongful act done by
the defendant without just cause or excuse. 3. Motive is the main ingredient upon which
Malice-in-fact is based . On the other hand , Knowledge is the main ingredient upon which
Malice-in – law is based .

57. Intention Intention is an internal fact, something which passes in the mind and direct
evidence of which is not available. An act is intentional as to its consequences if the person
concerned has the knowledge that they would result and also the desire that they should
result.

58. Intention GUILLE V SWAN (1822) A balloonist descended in the plaintiff’s garden. A crowd of
people broke into the garden and considerable damage was caused to the plaintiff’s vegetables
and flowers. Trespass Liable Wilkinson v Downtown (1892) Defendaded played a joke by falsely
informing the plaintiff the husband of the plaintiff had met with a serious accident whereby
both his legs were broken. The plaintiff suffered a severe shock. Held Liable

59. Motive Motive is the ulterior object or purpose of doing an act . It differs from intention in
two ways. First, intention relates to the immediate objective of an act, whereas, motive refers
to the ulterior objective. Secondly, motive refers to some personal benefit or satisfaction which
the act or desires whereas intention need not be so related to the actor. When A poisons B, the
immediate objective is to kill B, and so this is A's intention. The ulterior objective of A may be to
secure B's estate by inheritance or under a will executed by him and this objective will be A's
motive. Motive is generally irrelevant in tort.

60. BASIS FOR COMPARIS ON INTENTION MOTIVE Meaning Intention refers to a purposeful
action and a conscious decision to perform an act, that is forbidden by law. Motive alludes to
the ulterior cause, that induces a person to do or abstain from doing a particular act. What is it?
Objective Driving force

61. In Allen v. Flood; (1898) AC 1 Lord Watson said: "Although the rule may be otherwise with
regard to crimes, the law of England does not take into account motive as constituting an
element of civil wrong. Any invasion of the civil rights of another person is in itself a legal
wrong, carrying with it liability to repair its necessary or natural consequences, in so far as
these 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 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.

62. The 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. ** Mayor of Bradford Corporation v Pickles
(1895)

63. Negligence and Recklessness • It is a case of negligence when the consequences are not
adverted to though a reasonable person would have foreseen them. • It is "recklessness" when
the consequences are adverted to though not desired and there is indifference towards them
or willingness to run the risk. • Recklessness is sometimes called "Gross negligence" but very
often and more properly it is assimilated with intention. It is sometimes said that "a party must
be considered in point of law to intend that which is the necessary or the natural consequence
of that which he does".

64. Malfeasance, misfeasance and nonfeasance- 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 negligence or malice. The
term ‘misfeasance’ is applicable to improper performance of some lawful act. The term ‘non-
feasance’ applies to the failure or omission to perform some act which there is an obligation to
perform.

65. MISFEASANCE A public official hires his sister without realizing hiring family members is
illegal. A lawyer has an incorrect deadline, and files important legal documents past the
deadline’s actual date. An accountant makes an unintentional error on his client’s tax return. A
business executive willfully ignores company policy and decides to try and take a short cut to
save time and resources.

66. FAULT Liability for tort generally depends upon something done by a man which can be
regarded as a fault for the reason that it violates another man’s right. But liability may also arise
without fault. Such liability is known as absolute or strict liability.

67. strict liability is the rule in Rylands v. Fletcher, that the occupier of land who brings and
keeps upon it anything likely to do 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 been guilty of
any negligence. A more important example of strict liability is the rule laid down in M.C. Mehta
v. Union of India, that an enterprise engaged in a hazardous or inherently dangerous activity is
strictly and absolutely liable for the harm resulting from the operation of such activity. Another
example of liability without fault is the liability of a master for the tort committed by his
servants in the course of employment. There are also many duties and liabilities imposed by
statutes on employers, e.g., the Factories Act, the Workmen's Compensation Act, where the

68. Wrongful act + Legal damage + Legal remedy = Tort | (a breach of legal duty) |
(infringement of private legal right of another person) | (there must be at least 1 out of 4
remedies recognised by law i.e. damages,injunction, specific restitution of property and self
help.)

69. References: 1. The Law of Torts, Ratanlal and Dhirajlal 2. Law of Torts , RK Bangia