There are some general elements in torts viz., act and omission, voluntary and involuntary acts and mental elements e.g., malice, intention, negligence, recklessness and motives. Prior to discussing other chapters on tort, it is necessary to study all these essentials which would figure here and there in following chapters.
Wrongful act is a constituent of a tort and the word 'act' connotes both positive and negative acts viz., acts and omissions. In tort, the wrongful acts which make a person liable are positive acts and sometimes omissions. An omission is failure to do an act as a whole.1 Acts and omissions must be distinguished from natural phenomenon viz., lightening, earthquake and for such happenings, a person cannot be held liable. They must also be differentiated from mere thoughts and intentions. As Salmond has said in his jurisdiprudence - 'which are by themselves harmless hard to prove and difficult to discipline.'
The law does not impose liability for mere omissions. [Stovin v. Wise, (1996) 3 All 801 (HL)]. An omission incurs liability when there is a duty to act. In this case, it was further observed that "a duty to prevent harm to others or to render assistance to a person in danger or distress may apply to a large and indeterminate class of people who happen to be able to do something. Why should one be held liable rather than another?" - it can also be understood by referring the example that a person cannot be held responsible for the omission of not rescuing a stranger child whom he sees drowning even then he can rescue him without any appreciable exertion or risk of harm to himself. But this concept/version can be different if the child is one for whose safety and welfare there is a duty laid on the person who finds him drowning. In the above example, if the parent or guardian is standing there when the child is drowning, they will be held liable for failure to attempt and rescue for it would then be a case of an omission where there is and duty to act.
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1. Stovin v. Wise, (1996) 3 All 801 (HL) p. 820.
2.
Q.
Voluntary action means wilful exercise. It may be good or bad depending upon circumstances. According to Brown a voluntary act may be distinguished from an involuntary act by dividing voluntary act into (i) a willed muscular contraction, (ii) its circumstances and (iii) its consequences. An act is wrongful since the circumstances in which it is performed and the consequences which it produces. Example: To crook the forefinger with a certain force is the same act whether the trigger of a pistol is next to it or not. It is only the surrounding circumstances of a loaded pistol and of a human being in such relation to it as to be manifestly likely to be hit that make the act a wrong.
Involuntary act-When the muscular contraction is not willed. Salmond in his Jurisprudence has mentioned-'not in the absence of any actual exercise of will, but due to the lack of ability to control one's behaviour; involuntary acts are those where the actor lacks the power to control his actions and involuntary omissions are those where the actor lacks the power to control his actions and involuntary omissions are those where the actor's lack of power to control his actions renders him unable to do the act required.'
Q.
Voluntary acts also need some mental elements to fasten liability and these are malice, intention, negligence or motive etc.
The word malice denotes ill-will. In law, malice has two distinct meanings: (i) intentional doing of a wrongful act and (ii) Improper motive. First meaning signifies intention whereas the second one refers to the motive which includes not only ill-will but any motive which is disapproved by law. In common parlance, malice means ill-will against a person but in its legal sense a wrongful act, done intentionally, without just cause or excuse. It can also be divided in two:
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Malice-in-law |
Malice-in-fact |
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A wrongful act done intentionally |
ill-will, spite or hatred, then we call it |
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without just cause or excuse, it can |
malice in fact. It is generally relevant |
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be implied in every case where a |
in the torts of defamation on a |
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person has inflicted injury upon |
privileged occasion, malicious |
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another in contravention of the law, |
prosecution, injurious falsehood, |
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without just cause or excuse. |
deceit and conspiracy. |
Bayley J. has described malice in the case Brommage v. Prosser, (1825) 4 B&C 247 (255), as - "Malice in common acceptation means ill-will against a person, but in its legal sense it means a wrongful act, done intentionally, without just cause or excuse. If I give a stranger a perfect blow likely to produce death. I do it out of malice, because I do it intentionally and without just cause or excuse. If, I maim cattle without knowing whose they are, if I poison a fishery, without knowing the owner, I do it out of malice, because it is a wrongful act, and done intentionally." So, a wrongful act, done knowingly and with a view to its injurious consequences, may be called malicious.
Motive is not that much important in law of torts as its other elements. Motive is the ulterior object or purpose of doing an act. It is more relevant in the case of defamation when qualified privilege or fair comment is pleaded. Salmond1 has written that motive refers to some personal benefit or satisfaction which the actor desires whereas intention need not be so related to the actor.
In the case, Nankee v. Ah Fong, AIR 1935 Rang 73, it was observed that the motive of the person doing the act is immaterial. If it is a lawful act, however good his motive might be, he would have no right to do it. Motive and intention in such a question is absolutely irrelevant.
A lawful act cannot become unlawful merely because it is done with any motive at the same time, if the conduct is unlawful, good motive will not exonerate the defendant.
Q.
When a person has intention to commit some wrong act, he is having the knowledge that what would be its consequences and that he wants it to get fulfilled. Intention, we can say is a state of mind and it cannot be permanent, man's state of mind can change any moment. Salmond1 has while discussing the term 'intention' quoted the dictum of Brain C.J. - that no one can be sure of what was in another's mind because what a person thinks can be inferred only from his conduct. An act is intentional as to its consequences if the person concerned has the knowledge that it would result and also the desire that it should result.
Negligence-In negligence a person commits an act without foreseeing the consequences, which may cause harm for others or himself.
Recklessness-Recklessness may also be termed as gross negligence but very often and more properly it is assimilated with intention.
Wilkinson v. Downston, (1897) 2 QB 57.-In this case, the defendant jokingly told the plaintiff about accident of her husband that he got his legs broken and he is in the hospital, the plaintiff fell ill due to nervous shock. Later on, she sued the defendant for damages. It was the observation of the court that the defendant could have known the natural consequences of his act. He was liable for his act whether he had intended it or not.
Intention not as essential condition-
e.g. nuisance, copyright, injury to person or property.
Intention as essential condition-
e.g. assault, conspiracy, malicious prosecution, defamation.
Q.
It is essential to know about the state of mind of a person to ascertain the liability for the offence, he has committed. In the torts like battery, false imprisonment and assault, state of mind of the wrongdoer is an important criteria. But in some cases, mental condition at the time of commission of an act is irrelevant while determining the liability of the wrong doer. A man who was innocent and committed an act without any wrong intention even then he
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1. Jurisprudence, 12th Edn., (1966), p. 371.
will be held liable. Under strict liability, absolute liability and vicarious liability, a person can be held liable even when there was no fault on his part. In the case Ryland v. Fletcher, 1868 LR 3 HL 330, it was observed that a person keeps something on his own land but if it escapes and causes damage to others then he is liable for the offence of causing damage to others. He cannot take plea for his defence that there was no fault on his part or that he was not negligent for collecting the thing or its escape. In the case M.C. Mehta v. Union of India, MANU/SC/0092/1986 : AIR 1987 SC 1086: (1987) 1 Comp LJ 99 (SC): JT 1987 (1) SC 1: MANU/SC/0092/1986 : (1987) 1 SCC 395: (1987) 1 SCR 819, while upholding the principle the absolute liability it was remarked that it (absolute liability) imposes absolute liability on hazardous and inherently dangerous industries for the harm resulting from the hazardous or inherently dangerous activity.
Due to increase in number of motor accidents a view has taken the shape that the victims and their dependents should be allowed certain amount of compensation on the basis of no fault without prejudice to their right of getting higher compensation on the principle of fault and this was first implemented in India by the Motor Vehicles (Amendment) Act, 1982.
As discussed above, abuse of rights has been generally prevented in the system. But, still we are away from the fence where a distinction can be drawn between abuse of private rights which directly injuries the public e.g., setting fire to a corn-field and abuse of right directly affecting adversely to one's immediate neighbour. Thus the former should come under the category of criminal law whereas the later under the law of torts. To cause damage to such things which affect the public at large should figure under the criminal law. (e.g., petrol, kerosene, coal etc.). Whereas such act by which someone has been injured solely from an evil motive, the wrongdoer should be held liable under the law of torts.
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