General Elements in Torts
To constitute a tort, there must be a wrongful act - where the word
"Act" encompasses both action and omission. And an
omission becomes wrongful only where there was "a duty to act."
For instance - and this is apparently a very popular legal example:
If a man sees a child drowning, and he is capable of saving the child
without any risk of harm or "appreciable exertion" to himself, but he
does nothing - that is perfectly within that man's right.
Yes, you read that right - it's perfectly OK to stand by and watch as
harm comes to someone else - you have no duty to act in such a case.
Stovin
versus Wise, (1996) 3 All ER 801 (HL), p. 82: "A duty to prevent harm to others
or to render assistance to a person in danger or distress" is a duty that
can apply to a very large class of people (who cannot be determined/defined).
Therefore, "why should one be held liable rather than another?"
Yes, the reasoning is that any number of people could be duty-bound to
act in a particular situation, and to cherry pick one or a few out of that
number for punishment would be unfair.
Of course, it's worth noting here that this is only a very general principle
of law. A guideline, as it were. It's up to various countries and jurisdictions
to legislate and judicially interpret their way into defining classes of people
who are given various kinds of duties.
Voluntary and Involuntary Acts
Voluntary acts (or omissions) that are wrongful will attract liability,
whereas involuntary acts and omissions do not. "Involuntary acts are where
the actor lacks the power to control his actions, and involuntary omissions are
where the actor's lack of power to control his actions renders him unable to do
the act required." Salmond, Jurisprudence, (12th ed., 1966), p. 354.
Mental Elements
Even where an act is voluntary, it doesn't automatically become an act
for which you can be punished. A further mental element is necessary in the
form of any of the following:
1. Malice
2. Intention
3. Negligence
4. Motive
The exception to the mental element requirement is the principle of strict
liability (and, by extension, the principle of absolute
liability). I'll probably elaborate on that later, but essentially it
means you fucked up BIG, and so regardless of whether or not you intended to
fuck up, you're going to pay the price.
Malice
According to Salmond
and Heuston, Torts, (20th ed., 1992, p. 20), Malice can be:
- Intentional
doing of a wrongful act: Aka Malice-in-law, or express malice.
"A wrongful act, done
intentionally, without just cause or excuse." - Justice Bayley, Bromage versus
Prosser, (1825) 4 B & C 247, 255.
- Improper
motive (i.e.
any motive the law disapproves of.): Aka Malice-in-fact, Express malice or
actual malice. E.g.: Malicious prosecution.
Intention, Negligence and Recklessness
Intention is composed of a person's thought process, and therefor12e
unknowable to anyone else. However, someone can't (and shouldn't) punished for
a wrongful act they didn't intent to do. After all, accidents do happen. The
best of intentions may go awry. The central role of intention with regards to
applying the law therefore conflicts with the fact that we can't actually guess
at a person's intention.
This conflict is resolved by inferring that a person intended to do a
thing if they have the knowledge that their actions would result in a
particular outcome, and if they desired that particular outcome.
Negligence is defined as those situations where a person did not intend
a particular outcome, but where a reasonable person would have foreseen that
outcome and taken steps to avoid it.
Recklessness may sometimes be defined as gross negligence, but it is
usually clubbed under intention, presumably because if someone behaves in a
such a rash and grossly negligent fashion, then they deserve the same
punishment as someone who intended such an outcome.
Motive
Motive refers to the ulterior purpose of an act. It differs from
intention in that intention is the immediate purpose of an act, which may or
may not be the same as the ulterior purpose. In addition, motive always refers
to a personal benefit or desire, whereas intention need not necessarily be
connected to something personal.
Salmond, Jurisprudence, (12th
edn., 1966, pp. 371-372).
Motive is generally irrelevant in tort, because causing legal injury,
regardless of motive, is sufficient to attract liability. Allen versus Flood, (1898) AC 1, 92. Vice versa, an act done out of wrong
motive isn't actionable as long as it doesn't cause legal injury. The
exceptions, where motive is taken into account, are with respect to the torts
of malicious prosecution, malicious abuse of process, malicious falsehood,
defamation, nuisance and conspiracy.
Malfeasance, misfeasance and non-feasance
Malfeasance: Commission of an
unlawful act which is actionable per se, and which doesn't
require proof of intention or motive.
Misfeasance: Improper commission
of a lawful act which results in legal injury.
Non-feasance: Omission to act where
there is an obligation to do so.
Fault
“Negligence;
want of care. An improper act or omission, injurious to another, and
transpiring through negligence, rashness, or ignorance.”
Salmond was of the opinion that “fault is the basis of all tortious liability.”
Salmond, Torts, 6th Edn. Pp. 12-13 Unfortunately for him, practically everybody
disagrees. From the fact that compensation is calculated on the basis of
damages, and not fault, to the fact that strict liability is accepted as valid
law, it is clear that fault is not a necessary element to constitute actionable
tort.
On the one hand, intentionally caused damage (i.e. with the existence of
“fault”) is not actionable in the absence of legal injury. On the other hand
lies the concept of no-fault liability, where
legal injury becomes actionable in the complete absence of fault. And in
between lies the area where existence of fault is necessary, be it in the form
of intention, negligence or motive, to ensure that an act is actionable. The
first and the third categories have already been discussed, and now I’ll
discuss the second category, i.e. the concept of no-fault liability.
- Strict liability: This concept was first established in the case of Rylands versus Fletcher [(1868 LR 3 HL 330)] and states that regardless of whether a person is at fault, they must bear the liability in certain cases. Exceptions to this rule are:
a.
Act
of God
b.
Act
of 3rd party
c.
Plaintiff’s
own fault
d.
Statutory
authority: i.e. if the act is done under statutory authority.
e.
Consent
of the plaintiff: i.e. if the plaintiff consented to the act.
- Absolute liability: This principle has been further modified into the concept of absolute liability in the Indian case of M.C. Mehta versus Union of India [AIR 1987 SC 1086] i.e. the case that deals with the infamous Bhopal Gas Tragedy. There is no exception.
- Vicarious liability: Any legal injury committed by a servant (in a master-servant relationship) in the process of carrying out their duties are actionable against their master, even if the master was not at fault.
- Statutory liability: A number of statutes impose duties and liabilities, and their importance is underscored by the fact that failure to adhere to them attracts no-fault liability. Examples include:
a.
Motor
Vehicles (Amendment) Act, 1982 (India)
b.
Nuclear
Installation Act, 1965 (U.K.)
c.
Factories
Act, 1961
d.
Worker’s
compensation law.
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