• Lex Specialis

Malfeasance, Misfeasance, Non-feasance under the law of torts

Rabi Ananth


INTRODUCTION


A common man, a man in the street cannot be left high and dry because the wrongdoer is State. The basic element in the law of torts is duty. And that comes into play when there is a common law duty.”[1] An injured man must not go uncompensated is the prudence in the law of torts. Thus if a man is injured due to another person’s intentional malice act or omission he must be compensated. The tort of malfeasance, misfeasance, and non-feasance is also similar kind of tort where a person suffers due to act or omission of another person.

TORT OF MALFEASANCE


Black’s law dictionary defines the term malfeasance as “The wrongful or unjust doing of some act which the doer has no right to perform, or which he has stipulated by contract not to do.” This expression could be seen even in criminal and other law. The act of malfeasance is actionable per se i.e., the action speaks for itself and hence no proof is required to show the action is wrongful. And moreover, the presence of intention is the most important part of the wrongful act. Malfeasance has wider amplitude, any illegal or immoral act done with no authority and caused harm to other person is considered to be malfeasance. Though malfeasance is reflected in many fields of law, this specific term is absolutely considered as torts.


For example, a police officer having a heated argument with the public, and suddenly he slaps a person, as a result, that person died. Now, if the police had the knowledge and guilty mind he is criminally liable for the offence but if such thing is lacking then, he is liable only for a wrongful act i.e., malfeasance under torts law. Since he slapped a person that act is actionable per se, he slapped with an intention, and he did not have any power or authority to slap that person which makes the act as malice, hence it is a perfect example for malfeasance.


The Supreme Court of India has ruled that “malfeasance will not be applicable in every tortious liability cases, arising out of violation of public duty. The expressions malfeasance, would, therefore, apply in those limited cases where the State or its officers are liable not only for breach of care and duty but it must be activated with malice or bad faith.”[2]

TORT OF MISFEASANCE


The black’s law dictionary defines misfeasance as, the improper performance of some act which a man may lawfully do. Thus misfeasance means a lawful act done in an improper manner resulting in an injury or harm to another person. The main difference between malfeasance and misfeasance is that in former intention is absolutely necessary whereas in the latter its quite opposite i.e., the intention is not even a matter of fact. And another main difference is in malfeasance the act performed is vivid unlawful but in latter, the act is perfectly lawful. It is necessary that for the tort of misfeasance a public officer must have acted in a bad faith of maliciously.[3] And the claim for misfeasance will not be valid without malice.[4] But if the public officer knows that his doing is invalid and will injure the plaintiff, then in such cases it is said that tort of misfeasance is committed despite the absence of malice.[5] Evil doing or ill conduct postulates something more than mere omission or commission; misfeasance is recognized as imputable to discharge of duty arbitrarily.[6]


For example, in the case of C. Sivakumar v. Dr. John Mathur,[7] where the complainant had the problem of blockage of urine, the doctor in an attempt to perform, the operation for curing the problem, he totally cut off the complainant’s penis, thereby making him permanently impotent. Thus the doctor while doing a lawful act i.e., attempting to resolve the patient problem, done improper action i.e., cutting his penis. Hence the court held the doctor liable and was directed to pay compensation.


TORT OF NON-FEASANCE


The black’s law dictionary defines Non- feasance as ‘the neglect or failure of a person to do some act which lies ought to do.’ In other words, it is the act of intentionally omitting or neglecting a compulsory or legally bound act which results in the injury of another person. The omission of acts which a man was by law bound to do tantamount to the tort of non-feasance.[8] The difference between non-feasance and misfeasance, malfeasance is that in non-feasance injury results due to non-performance but whereas in the other two some kind of act will be performed that would have resulted in an injury.

For example, A fell down into an open manhole, in this instance, the corporation employees have failed to perform their lawful obligation, due to their non-performance A suffered an injury. Thus the corporation employees are liable for the tort of non-feasance.


CONCLUSION

Thus there exist a thin line of difference among malfeasance, misfeasance and non-feasance in the law of torts. The only commonality in all three-term is that a person will undeniably face an injury in one way or another by an act or omission of another person and by prudence, that injured person is entitled to compensation.


Endnotes

[1] Chairman, M.P. Electricity Board v. Smt. Gindiaba, 1999 (1) M.P.L.J. 587.

[2] Jay Laxmi Salt Words v. The State of Gujarat, 1994 S.C.C. (4).

[3] Calveley v. Chief Constable of the Merseyside Police, [1989] 2 W.L.R. 624.

[4] Dunlop v. Woollahra Municipal Council, 14 [1982] A.C. 158 at 172.

[5] Asoka Kumar David v. M.A.M.M.Abdul Cader, (1963) 1 W.L.R. 834 (P.C.).

[6] Supra at 2.

[7] C. Sivakumar v. Dr. John Mathur, III (1998) C.P.J. 436.

[8] Union of India v. Adarsh Sharma, W.P.(C) 7453/2011


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