law of tort

This article is written by Akshaya  V, a student of CMR University, School of Law and Legal Studies, Bangalore


This article will explain the meaning of torts at first and further relates the concept of malfeasance, misfeasance and nonfeasance to the context of negligence in torts. 


Every person in the country shall have rights and corresponding duties governed by law to ensure there is no civil disobedience. The object of this is to promote peace and harmony. However, the law gives scope for civil disobedience under “torts” as a violation of legal rights of others is recurring. Therefore, a person is given legal duty and if the duty is breached, a civil wrong is committed. For instance, violation of a duty to not injure someone’s name and fame leads to defamation, violation of a duty to not physically enter another person’s property amounts to trespass, etc. 

Definition of Tort

According to Section 2(m) of the Limitation Act, 1963, “Tort means a civil wrong which is not exclusively a breach of contract or breach of trust.” Torts is redressible by unliquidated damages if an injury is caused to the plaintiff. Thus, it may be seen that:

  1. Tort is a civil wrong;
  2. not a breach of contract or breach of trust
  3. This wrong is redressible by an action for unliquidated damages.

To claim for legal damages, there shall be an act or omission by the plaintiff. The term “act” here means an illegal act and “omission” means to have failed to act wherever necessary(inaction). This was proved in a leading case of Municipal Corporation of Delhi v Subhagwanti. Secondly, in order to be successful in an action for tort, the plaintiff has to prove that there was a gross infringement of legal rights vested in him and such infringement has caused injury and damages. The burden of proof lies with the plaintiff. He may be given appropriate remedy once a violation of his legal rights is proved. 

Concept of negligence 

The Indian law of torts found its origin from English common law. The law relating to negligence is applied in Indian Courts considering the principles of justice, equity and good conscience. The term Negligence is derived from the Latin word negligentia, which means ‘failing to pick up’. Generally, negligence means being careless and in a strict legal sense, it means the failure to carry out the required standard of care which the doer as a sensible man should have exercised in a given situation. Under English law, negligence emerged as a term and cause of action in the eighteenth century. Similarly, Indian Penal Code, 1860 contained no provision for causing the death of a person by negligence which was later amended in the year 1870 by addition of section 304A in the Act. 

Definition of Negligence

According to Winfield and Jolowicz, Negligence is the breach of a legal duty of care by the plaintiff which results in undesired damage to the plaintiff. In Blyth v. Birmingham Water Works Co, the meaning of negligence was given as ‘a person failing to carry out duty of care as a man of prudence would do.


Under negligence, the concept of misfeasance is an unlawful act committed by one resulting in the injury of another. It means the act of not doing something when it should have been done. The duty which is legally imposed is not done appropriately or not done at all. This term is interchangeably used in both civil and criminal laws. It is applicable to unlawful acts, such as trespass, which is actionable per se without needing to prove mens rea or motive.

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. 

Illustration – A person in charge of kids after school until their parents come to take them, he will be held for misfeasance if the kids go missing or fell victim for any injuries as he was negligent in dispensing his duty appropriately in monitoring him. 


Any wrongful act which a person has got no legal right to do or any conduct that hinders the performance of any official duty either partly or and to which that person has no authority to do, he is said to have done 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. 

Illustration – A, appointed as a car driver for his manager for his official duties. After dropping A at the office, A takes the car to the club to meet his friends and does not return. Here A has acted unlawfully and in bad faith. 


While misfeasance spoke about not acting properly where it was necessary amounting to negligence, nonfeasance is complete inaction or failure to act as a man of prudence would have acted wherever necessary. An act of nonfeasance results in liability if: 

(1) the defendant owed a duty of care towards plaintiff;

(2) the defendant failed to show the duty of care and; and

(3) Such failure by the defendant has caused injury to the plaintiff.

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. 


With subtle differences in the meaning of misfeasance, malfeasance and nonfeasance, negligence may be classified as above. These terms are widely used in relation to negligence committed in offices, by public servants disposing of duties, in the medical field and in case of breach of public duty. 

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