An Introduction to Law of Torts: Meaning, Nature and Essential elements

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

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.

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

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.

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.

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.“

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

**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";

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".

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.

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.

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 )

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

• 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.

• 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.

• 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.

• 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 .

• 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.

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.

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.

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.

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.

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))

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

Some General Elements in Torts
2. Voluntary and Involuntary Acts-
Voluntary acts may involve liability and the Involuntary acts may not.

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.

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.

(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)

(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.

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

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 .

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.

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

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.

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

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.

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)

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".

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.

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.

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.

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

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.)

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

An Introduction to Law of Torts: Meaning, Nature and Essential elements

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