Lecture 4 (Week 3)

Essentials of a Tort (part-2)

Legal Injury (Mal-feasance, Mis-feasance and Non-feasance)

Mal-feasance:

 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.
o For example, a police officer is about to complete his rounds during his shift. His
shift is about to over and he wants to go home. While he is driving home, he sees
that a customer and the cashier at the gas station are having a heated
conversation. The officer was on duty at that time and he knew that his shift
would end in thirty minutes and if he stops there, it would take time and he will
not reach home in time. After that he thinks, if he is on duty and if any serious
issue arises when it is his duty to stop there and try to handle the situation. The
officer was aware that if he will not stop the argument between the cashier and the
customer, it might turn into a fight but he simply ignored it and went home. Later,
the cashier was shot to death and the customer took the cash from the
counter. This accident would not have happened if the police officer had stopped
at the place where the incident took place, the serious consequences would have
been avoided. Whether the act of officer was malfeasance or not? So, the act of
officer was malfeasance as he was aware of his proper protocol and the officer
was still on duty at that time when he saw the incident taking place. The officer
knew that he was supposed to stop at the scene in order to prevent any further
argument between the cashier and the customer. The officer chose not to stop, and
his choice led to the robbery and death of a cashier.
o Another example of malfeasance is a judge taking bribe from the prosecution. The
judge had the knowledge that it is illegal to take money for giving judgment in
favour of a person. Since the judge knows that his action is illegal, but continues
to carry on doing the act anyway, it is an act of malfeasance.
o For example, a school janitor is hired by a principal of a school. The janitor was
his relative and had put false employment history in order to get a salary at a rate
higher than the normal rate as he was facing some financial problems. Knowingly
committing a dishonest act with the motive of getting a higher wage is
malfeasance.
  In simple words, it is understood that doing an act which a person is legally or morally is
not expected to do. A person owes a duty of care in dispensing his obligations, failing
which he may be sued. But when a person intentionally and bad faith acts beyond his
legal capacity to infringe the rights of another party, such unjust performance is said to be
malfeasance. The factor of mens rea is important to be considered in such acts.
 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.
 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.

Misfeasance

 It means the “Improper performance of some lawful act”. Misfeasance means carrying
out legal and improper action, but it is done in such a way that it harms others or causes
injury to other people. Sometimes an act of a person causes harm to other people
unintentionally. While all these actions are often mistakes committed by a person, there
can be legal consequences for such mistakes.
 Attached to those mistakes, misfeasance is the legal term used for an act which is not
illegal but performed in such a way that it harms another individual. There are certain
situations in which a person has to perform a duty in the manner prescribed but the
person fails to perform duty in a particular manner then it will be an act of misfeasance.
 Generally, defendants are held liable as the defendant has a duty of care towards the
plaintiff but did not perform the duty properly.
 Misfeasance is generally actionable in public offices where the holder of the office has
acted beyond his scope by misusing his powers. A person, while carrying out his duty, is
expected to have a duty of care towards the other person and shall not harm by acting
illegally or in an unlawful manner. While he does such an act, if it leads to gross injury in
the other person, the person is said to have committed an act of malfeasance.
 Misfeasance is an illegal act that can be enforced in a court of law and liable for damages.
It is an act done by ill will and with knowledge of acting beyond the latitude of authority.
In Calveley v. Chief Constable of the Merseyside Police, the Court held that an act of
malice shall be present to be liable for misfeasance under tort. Misfeasance is one kind of
negligence as the person or the defendant has failed to carry out his duty which he is
supposed to do in whatever capacity he may be in. In the case of Dunlop v. Woollahra
Municipal Council, it was held that without malice the claim for misfeasance could not
be accepted.
 Another example, a janitor is cleaning a restroom in a restaurant and is irresponsible and
leaves the floor wet without any warning sign or board. In such a case, he or his employer
could be held liable for any injury caused because of 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 and therefore would be held liable. It will come under misfeasance
as the act was lawful but there was an improper performance of the lawful act.

Non-Feasance

 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.
 For such liability to arise, there shall be a pre-existing relationship between the plaintiff
and the defendant shall have been imposed with legal or moral duty. Courts have
determined pre-existing relationships in respect of domestic relationships like parent-
child and student-teacher official relationships like employer-employee. For instance, if a
person who has taken the service of swimming pool arena and further drowns while
swimming, a passer-by shall not be held liable as there is no existing relationship.
However, if the passer-by is part of the rescue and emergency team, failure to act on his
part amounts to civil liability of nonfeasance. A person may avoid acting to prevent the
harm that may be caused to him due to the threat he posed to the other party.
 In Municipal Corporation of Delhi vs. Subhagwanti, a clock tower fell down in Chandni
Chowk, Delhi, many people were injured and many died. The clock tower was not
repaired for many years and the municipal corporation was required to maintain it. The
Municipal corporation failed to do so and the tower collapsed. The municipal corporation
 was held liable as it was their duty to repair the clock which they failed to do. It can be
called as nonfeasance as there was an omission in performing the compulsory act.

Legal Remedy
Ubi jus ibi remedium (Where there is a right there is a remedy)
 Right without a remedy is of no use. Right is a person’s capacity to compel another
person to do or to abstain from doing an act, and capacity to compel means legal capacity
to compel. Unless there is a legal remedy, there cannot be legal compulsion.
 The law of tort is said to be the development of the maxim Ubi jus ibi remedium. The
word “jus” means legal authority to do something or to demand something. The
word “remedium” means that the person has the right of action in the court of law. The
literal meaning of the maxim is where there is a wrong there is a remedy.
 The circuit court of appeals of the United States of America in the case of Leo feist v.
young observed that “it is an elementary maxim of the equity of jurisprudence and there
is no wrong without a remedy”.
 For example, a contract which was required to be made on stamped paper may be made
orally; in such circumstances, irrecoverable harm may be caused to other person and yet
no legal remedy is available. Thus, the maxim does not mean that there is a remedy for
every possible wrong. It is appropriately said by Justice Stephen that maxim would be
correctly stated if maxim were to be reversed to say that “where there is no legal remedy,
there is no legal wrong.
 Therefore, a right without a remedy would be redundant. Therefore, right and remedy are
correlated. If there is no right there will be no remedy. In this regard there are two types
of rights.
 Absolute rights: An absolute right is a right the violation of which amounts to
a wrong and gives rise to cause of action. There is no further requirement of
showing any loss or injury. The tort which is based on the violation of an
absolute right is actionable per se.
 Conditional rights: A conditional right is a right the violation of which by
itself does not amount to a wrong so as to give rise to cause of action. The
plaintiff has to further show that he has suffered loss due to the violation of
that right. Loss is a condition precedent for giving rise to cause of action.

Essentials of Ubi jus ibi remedium

 The maxim ubi jus ibi remedium can be applied only where the right exists and that
right should be recognized by the court of law;

 A wrongful act must have been done which violates the legal rights of a person
clearly.
  This maxim can be used only when sufficient relief has not been provided by the court
to the person who sustained the injury.

 This maxim is applicable if any legal injury had been caused to any person, if no legal
injury has been caused then the maxim damnum sine injuria will be used which means
damage without any legal injury.

Limitations of ubi jus ibi remedium

 The maxim ubi jus ibi remedium does not apply to moral and political wrong which
are not actionable.

 This maxim is not applied to those cases in which proper remedy is given in case of
breach of right under common law.

 If there is no legal damage which has been caused to any person then this maxim will
not be applicable.

 No remedies are available in case of breach of marriage vows or personal commitment

as these all are the promises made without consideration and are based on trust.

 This maxim is also not applicable in case of public nuisance unless and until a
plaintiff shows that he suffered more injury than other members or peoples of the
society.

 This maxim is not applicable where the plaintiff is negligent or there is negligence on
the part of the plaintiff.