General Elements of Torts Act & Omission

General Elements of Torts
Act & Omission

To constitute a tort, there must be a wrongful act. The word “act” is used to include both positive and negative acts i.e., acts and omissions. Wrongful acts which make a person liable in tort are positive acts and sometimes omissions. They must be distinguished from natural calamities, and even from mere thoughts and intentions.

Failure to do something in doing an act is a bad way of performing the act. For example, if a lawyer gives an opinion without taking notice of the change in law brought about by a reported decision of the Supreme Court, he would not be guilty of an omission but of performing the act of giving his opinion in a bad way.

Where as an omission is failure to do an act as a whole. Generally, the law does not impose liability for mere omissions. An omission incures liability when there is a duty to act. For example, a person cannot be held responsible for the omission of not rescuing a stranger child whom he sees drowning even though he can rescue him without any appreciable exertion or risk of harm to himself. But the result would be different if a parent or guardian is failed to attempt to rescue the child. In that case, it would be an omission as there is a duty to act.
Voluntary Acts & Involuntary Acts

A voluntary act may be distinguished from an involuntary act as only voluntary acts have liability. Voluntary act can be understand based on its willed mascular contraction, its circumstances and its consequences. For example, an act of murdering a person by shooting at him is one act and not merely the muscular contraction of pressing the trigger.

An involuntary act does not give rise to any liability. For example, an involuntary act of trespass is not a tort.

Omissions like positive acts may also be voluntary or involuntary.

In the case of Olga Tellis v. Bombay Municipal Corporation, the Supreme Court held that the encroachments committed by those persons are involuntary acts in the sense that those acts are compelled by inevitable circumstances and are not guided by choice.
Mental elements

A voluntary act can be held in strict liability if there’s a presence of required mental element i.e., malice, intention, negligence or motive in addition to the other necessary ingredients of the torts are present.
o Malice in Law and in Fact

Malice means spite or ill-will. However, in law malice has two distinct meanings such as: 1. Intentional doing of a wrongful act and 2. Improper motive. In the first sense, malice is synonymous with intention and in the second sense, malice refers to any motive which the law disapproves.

Malice with an intention of wrongful act is called as Malice in Law. It is also called as implied malice. In a legal sense, malice means a wrongful act, done intentionally, without just cause or excuse. For example, if a person give a perfect stranger a blow likely to produce death, the person do it out of malice because, he do it intentionally and without just cause or excuse.

Malice with an improper motive is called as Malice in fact. It is also called as express malice. Malice in fact is liable for malicious prosecution.

Wrongful acts of which malice is an essential element are:

Defamation
Malicious prosecution
Willful and malicious damage to property

o Intention, Negligence and Recklessness

Intention is an internal fact, something which passes in the mind and direct evidence of which is not available. There’s a popular saying that it is common knowledge that the thought of man shall not be tried, for the devil himself knoweth not the thought of man.

In general terms, negligence is “the failure to use ordinary care” through either an act or omission. That is, negligence occurs when:

somebody does not exercise the amount of care that a reasonably careful person would use under the circumstances; or
somebody does something that a reasonably careful person would not do under the circumstances.

In the case of Dulieu Vs. White & Sons (1901), the plaintiff, a pregnant woman, was sitting behind the counter of her husband?s bar when suddenly a horse was driven into the bar. Fearing her personal safety, she suffered nervous shock and gave birth to a premature baby. In the circumstances, the court held that the plaintiff was entitled to recover in negligence.
Recklessness is also called as gross negligence. Gross negligence means conduct or a failure to act that is so reckless that it demonstrates a substantial lack of concern for whether an injury will result. It is sometimes necessary to establish “gross negligence” as opposed to “ordinary negligence” in order to overcome a legal impediment to a lawsuit. For example, a government employee who is on the job may be immune from liability for ordinary negligence, but may remain liable for gross negligence.
o Motive

Motive is the ulterior object or purpose of doing an act. It differs from intention in two ways. First, intention relates to the immediate objective of an act, whereas, motive refers to the ulterior objective. Secondly, motive refers to some personal benefit of satisfaction which the actor desires whereas intention need not be so.

For example, When A poisons B, the immediate objective is to kill B and so this is A’s intention. The ulterior objective of A may be to secure B’s estate by inheritance or under a will executed by him and this objective will be A’s motive. Motive is generally irrelevant in tort.

In the case of Mayor & Co. of Bradford v. Pickles, A sank a well on his land and thereby cut off underground water-supply from his neighbour B, and B’s well was dried up. It was not unlawful for a land-owner to intercept on his own land underground percolating water and prevent it from reaching the land of his neighbour. The act did not become unlawful even though A’s motive in so doing was to coerce B to buy his land at his own price. A, therefore, was not liable to B, however improper and malicious his motive might be.
o Malfeasance, Misfeasance, Non-feasance

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.

The term “Misfeasance” is applicable to improper performance of some lawful act for example when there is negligence.

The term “non-feasance” applies to the omission to perform some act when there is an obligation to perform it. Non-feasance of gratuious undertaking does not impose liability, but misfeasance does.

M.C. Mehta v. Union of India

o Fault

If mental elements such as intention, negligence, malice or motive together with an act or omission which is violative of a right recognized by law plays an important role in creating liability. Such tortious liability has an element of fault to support it. But there is a sphere of tortious liability which is known as absolute or strict liability, where the element of fault is conspicuously absent.

In the case of M.C. Mehta v. Union of India, the rule of strict liability is laid down that an enterprise engaged in a hazardous or inherently dangerous activity is strictly and absolutely liable for the harm resulting from the operation of such activity.