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.
~~~~~~~~~~~~~~~
# 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)