Author Name:   ankitapaul

This article starts off with the concept of what a law of tort is all about including its meaning and definition and the law of torts in the Indian scenario as an introduction to this project. Further proceeded with the nature of a tort and its essential elements where the three elements have been briefly discussed....

Meaning Of Tort: -
The term tort is the French equivalent of the English word ‘wrong’ and of the Roman law term ‘delict’. The word tort is derived from the Latin word ‘tortum’ which means twisted or crooked or wrong and is in contrast to the word rectum which means straight. Everyone is expected to behave in a straightforward manner and when one deviates from this straight path into crooked ways he has committed a tort. Hence tort is a conduct which is twisted or crooked and not straight. As a technical term of English law, tort has acquired a special meaning as a species of civil injury or wrong. It was introduced into the English law by the Norman jurists.

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 arises from the breach of a duty primarily fixed by law; this duty is towards persons generally and its breach is redressible by an action for unliquidated damages.

Salmond and Hueston- A tort is a civil wrong for which the remedy is a common action for unliquidated damages, and which is not exclusively the breach of a contract or the breach of a trust or other mere equitable obligation.

The Law of Torts In India: -
Under the Hindu law and the Muslim law tort had a much narrower conception than the tort of the English law. The punishment of crimes in these systems occupied a more prominent place than compensation for wrongs. The law of torts in India is mainly the English law of torts which itself is based on the principles of the common law of England. This was made suitable to the Indian conditions appeasing to the principles of justice, equity and good conscience and as amended by the Acts of the legislature. Its origin is linked with the establishment of British courts in India.

The expression justice, equity and good conscience was interpreted by the Privy Council to mean the rules of English Law if found applicable to Indian society and circumstances. The Indian courts before applying any rule of English law can see whether it is suited to the Indian society and circumstances. The application of the English law in India has therefore been a selective application. On this the Privy Council has observed that the ability of the common law to adapt itself to the differing circumstances of the countries where it has taken roots is not a weakness but one of its strengths. Further, in applying the English law on a particular point, the Indian courts are not restricted to common law. If the new rules of English statute law replacing or modifying the common law are more in consonance with justice, equity and good conscience, it is open o the courts in India to reject the outmoded rules of common law and to apply the new rules. For example, the principles of English statute, the Law Reform (Contributory Negligence) Act, 1945, have been applied in India although there is still no corresponding Act enacted by Parliament in India.

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 said, we have to evolve new principles and lay down new norms which will adequately deal with new problems which arise in a highly industrialized economy. We cannot allow our judicial thinking to be constructed by reference to the law as it prevails in England or for the matter of that in any foreign country. We are certainly prepared to receive light from whatever source it comes but we have to build our own jurisprudence.

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. Thus the court can draw upon its inherent powers under section 9 for developing this field of liability.

In a more recent judgement of Jay Laxmi Salt Works (p) ltd. v. State of Gujarat, Sahai, J., observed: truly speaking the entire law of torts is founded and structured on morality. Therefore, it would be primitive to close strictly or close finally the ever expanding and growing horizon of tortuous liability. Even for social development, orderly growth of the society and cultural refineness the liberal approach to tortious liability by court would be conducive.

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 tort had its roots in criminal procedure. Even today there is a punitive element in some aspects of the rules on damages. However tort is a species of civil injury or wrong. The distinction between civil and criminal wrongs depends on the nature of the remedy provided by law. A civil wrong is one which gives rise to civil proceedings. A civil proceeding concerns with the enforcement of some right claimed by the plaintiff as against the defendant whereas criminal proceedings have for their object the punishment of the defendant for some act of which he is accused. Sometimes the same wrong is capable of being made the subject of proceedings of both kinds. 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 every civil wrong is a tort. A civil wrong may be labelled as a tort only where the appropriate remedy for it is an action for unliquidated damages. Thus for example, public nuisance is not a tort merely because the civil remedy of injunction may be available at the suit of the attorney general, but only in those exceptional cases in which a private person may recover damages for loss sustained by him in consequence thereof. However it has to be born in mind that a person is liable in tort irrespective of whether or not an action for damages has been given against him. 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.

There is however a similarity between tort and crime at a primary level. In criminal law the primary duty, not to commit an offence, for example murder, like any primary duty in tort is in rem and is imposed by law. The same set of circumstances will in fact, from one point of view, constitute a crime and, from another point of view, a tort. For example every man has the right that his bodily safety shall be respected. Hence in an assault, the sufferer is entitled to get damages. Also, the act of assault is a menace to the society and hence will be punished by the state. However where the same wrong is both a crime and a tort its two aspects are not identical. Firstly, its definition as a crime and a tort may differ and secondly, the defences available for both crime and tort may differ.

The wrong doer may be ordered in a civil action to pay compensation and be also punished criminally by imprisonment or fine. 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.

There was a common law rule that when the tort was also a felony, the offender would not be sued in tort unless he has been prosecuted in felony, or else a reasonable excuse had to be shown for his non prosecution. This rule has not been followed in India and has been abolished in England.

Torts and Contract: -
The definition given by P.H. Winfield clearly brings about the distinction between tort and contract. It says, tortuous liability arises from the breach of a duty primarily fixed by law; this duty is towards persons generally and its breach is redressible by an action for unliquidated damages. A contract is that species of agreement whereby a legal obligation is constituted and defined between the parties to it. It is a legal relationship, the nature, content and consequence of which are determined and defined by the agreement between the parties. According to Salmond, a contract arises out of the exercise of the autonomous legislative authority entrusted by the law to private persons to declare and define the nature of mutual rights and obligations.

At the present day, tort and contract are distinguished from one another in that, the duties in the former are primarily fixed by law while in the latter they are fixed by the parties themselves. Agreement is the basis for all contractual obligations. “People cannot create tortious liability by agreement. Thus I am under a duty not to assault you, not to slander you, not to trespass upon your land because the law says that I am under such duty and not because I have agreed with you to undertake such duty.

In certain cases the same incident may give rise to liability both in contract and in tort. For example, when a passenger whilst travelling with a ticket is injured owing to the negligence of the railway company, the company is liable for a wrong which is both a tort and a breach of a contract.

The contractual duty may be owed to one person and the duty independent of that contract to another. The surgeon who is called by a father to operate his daughter owes a contractual duty to the father to take care. If he fails in that duty he is also liable for a tort against the daughter. In Austin V. G.W. Railway, a woman and her child were travelling in the defendant’s train and the child was injured by defendant’s negligence. The child was held entitled to recover damages, for it had been accepted as passenger.

Torts and Quasi-Contract:-
Quasi contract 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. According to the Orthodox view the judicial basis for the obligation under a quasi contract is the existence of a hypothetical contract which is implied by law. But the Radical view is that the obligation in a quasi contract is sui generis and its basis is prevention of unjust enrichment.

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.

Some General Conditions In Torts
1. Act & 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. A failure to rescue a drowning child is not actionable, but it is so where the child is one’s own. A person who voluntarily commences rescue cannot leave it half the way. A person may be under duty to control natural happenings to his own land so as to prevent them from encroaching others’ land.

2. Voluntary & Involuntary Acts-  a voluntary act has to be distinguished from an involuntary act because the former may involve liability and the latter may not. A self willed act like an encroachment for business, is voluntary, but an encroachment for survival may be involuntary. The wrongfulness of the act and the liability for it depends upon legal appreciation of the surrounding circumstances.

3. Malice- malice is not essential to the maintenance of an action for tort. It is of two kinds, ‘express malice’ (or malice in fact or actual malice) and ‘malice in law’ (or implied malice). The first is what is called malice in common acceptance and means ill will against a person; the second means a wrongful act done intentionally without just cause or excuse. Where a man has a right to do an act, it is not possible to make his exercise of such right actionable by alleging or proving that his motive in the exercise was spite or malice in the popular sense. An act, not otherwise unlawful, cannot generally be made actionable by an averment that it was done with evil motive. A malicious motive per se does not amount to injuria or legal wrong.

Wrongful acts of which malice is an essential element are:
-Defamation,
-Malicious prosecution,
-Wilful and malicious damage to property,
-Maintenance, and
-Slander of title.

4. Intention, Motive, Negligence & Recklesness- The obligation to make reparation for damage caused by a wrongful act arises from the fault and not from the intention. Any invasion of the civil rights of another person is in itself a legal wrong, carrying with it liability to repair it 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. A thing which is not a legal injury or wrong is not made actionable by being done with a bad intent. It is no defence to an action in tort for the wrong doer to plead that he did not intend to cause damage, if damage has resulted owing to an act or omission on his part which is actively or passively the effect of his volition. A want of knowledge of the illegality of his act or omission affords no excuse, except where fraud or malice is the essence of that act or omission. For every man is presumed to intend and to know the natural and ordinary consequences of his acts. This presumption is not rebutted merely by proof that he did not think of the consequences or hoped or expected that they would not follow. The defendant will be liable for the natural and necessary consequences of his act, whether he in fact contemplated them or not.

5. 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.

6. 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. An important example is the rule in Rylands V. Fletcher thus the two extremes of the law of tort are of non liability even where there is fault or liability without fault. Between these two extremes is the variety of intentional and negligent wrongs to the question whether there is any consistent theory of liability, all that can be said is that it wholly depends upon flexible public policy, which in turn is a reflection of the compelling social needs of the time.

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.

Malfeasance
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 night, 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 oftenly 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.
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# 1987 SCR (1) 819
# 1994 SCC (4) 1
# 1994 AIR 1844
# (1867) 2 Q.B. 442
# (1860) 13 Moo P C 209
# (1868) LR 3 HL 330
# 142 W. Va. 340
# (1703) 92 ER 126
# 155 A.2d 343 (Penn. 1959)

The  author can be reached at: ankitapaul@legalserviceindia.com

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