MOTIVE AND MALICE |Law of Torts Notes|


Motive And Malice – Notes On Law of Torts

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Motive And Malice

Motive and malice explained:

The general rule is that motive is irrelevant in torts. Motive denotes the reason for the conduct of an individual. Thus, if the act is unlawful then mere good motive will not exonerate it. If the conduct is lawful then a bad motive will not make him liable.

The fact that motive is irrelevant is evident from the leading case: Mayor of BroadFord Corporation V. Pickles. Here, the corporation refused to purchase the land which belonged to pickles, for the purpose of the water supply scheme. In revenge, he sank a shaft on his land. In consequence, the water of the corporation became discoloured and diminished. The corporation sued pickles. It was held that pickles was not liable. The judge said “we are to take the man’s act into consideration, not the motive behind it”.

In another case, Allen V. Flood this was re-stated. In this case, P was appointed by A to make repairs to the ship and this was terminable at will. D, belonging to an union objected to the appointment and threatened to go on strike if P was not removed. A dismissed P. P sued D. Held, the motive of D may be bad but not unlawful and hence not liable. This shows that if the act is lawful, mere bad motive will not make the act tortious.


Malice: It means

  • evil motive and
  • a wilful act done without just cause or excuse.

The rule is that if lawful, evil motive will not make the act tortious. Further, if the act is good, still the defendant becomes liable if the act injures and damages the rights of the plaintiff. In Bradford Corporation V. Pickles, the court observed; ‘If the act gives rise to damage without legal injury, then motive however reprehensible it may be, will not make the act tortious’.

In another case (Guive V. Swan), D, a baloonist landed on the garden of P. People, in large number, entered the garden to see him, but much damage was done to the vegetables and flowers. P sued D. Held, D had committed trespass and liable. Though, D had no motive or malice he was held liable.


Exceptions to the rule that Motive is irrelevant:

  1. Malicious prosecution,
  2. Conspiracy
  3. Deceit or Negligent Misstatements.
  4. Some circumstances in Nuisance. (Christie V. Davey)

Ubi jus ibi remedium: Where there is a right, there is a remedy

According to some jurists, the law of torts had developed from this maxim. “Jus” means the “legal right“, to do something, “Remedium” is the right to take action (ie. remedy according to law). Hence, a person who has a legal right also has the means to vindicate his rights. It is difficult to imagine a legal right without a legal remedy.

In injuria sine damno, there is a legal remedy available to the plaintiff through the court. But, in cases coming under damnum sine injuria there is no legal injuria and hence there is no compensation.

Injuria Sine Damno and Damnum Sine Injuria Explained:

Damnum‘ is damage in the substantial sense of the term, involving economic loss or loss of comfort, service, health, or the like. ‘Injuria‘ is legal injury and hence tortious.

Injuria sine Damno: Injuria Sine Damno means “legal injury, without damage”. There is an infringement of a legal right, but no substantial damage or loss, The plaintiff has a cause of action under section 42 of specific Relief.

Ashby V. White:

The defendant, a returning officer, without proper reason refused to register P’s vote duly tendered. Held that the plaintiff had a legal right to vote and that there was a legal injury to him. Defendant was held liable. The Court observed “every injury imports a damage, though it may not cost a farthing to the party”.

Merzette V. william (Bank Case):

In this case without any excuse the Banker refused to honour the cheque presented by a customer. Held: that the Banker was liable to the drawer. Compensation was paid by the Bank.


Damnum Sine injuria:

Damnum sine Injuria means actual and substantial loss without the infringement of the legal right. The actual loss sustained by the plaintiff may be substantial enough, but as no legal injury has been done to him, no compensation can be recovered.

Chasemore V. Richards:

The defendant D dug a well on his own soil. In consequence, the adjoining owner P’s stream of water dried up and his mill was closed down. P sustained heavy economic loss. Held: No compensation. There was no legal injury to P but only economic loss.

Gloucester Grammar School:

A teacher who was illegally terminated by Gloucestor school opened a school opposite to it. The pupils, who loved the teacher joined his school in large numbers. Thereupon the Gloucestor school was closed. Held; No compensation. Reason: Business competition, and teacher has not infringed any legal right of the Gloucestor School.

  • Moghul Steamship Co., V. Mcgregor:

A B C and D four ship owners joined together and offered special terms to the consignors to book cargo. In consequencee, P a’ prosperous steamship company suffered substantial loss, for which itsued ABC and D for compensation. Held: Not liable.(Business competition and no legal injury to P).

Dickson V. Reuter Telegraph Company:

A sent a telegram to B to send goods. The telegram was wrongly delivered by the post office to c. c sent the goods to A. A refused to take the goods. C sued A. Held : No compensation.


Misfeasance Non feasance and Mai feasance:

Misfeasance means doing a lawful act in an improper manner. (Cases in master and servant). Nonfeasance means not performing or omitting to do that which must be legally done (cases of negligence). Malfeasance means doing an unlawful act e.g. trespass.

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