I MISFEASANCE

Misfeasance is defined in tort law as an act that is legal but is performed improperly. Generally a civil defendant will be liable for misfeasance if the defendant owed a duty of care toward the plaintiff, the defendant breached that duty of care by improperly performing a legal act, and the improper act resulted in harm for the plaintiff. 1 The tort is traceable back to the 17th century, and was described recently by the Privy Council as well-established in Dunlop v Woollahra Municipal Council. The law was comprehensively reviewed by the House of Lords in the Three Rivers DC v Bank of England. The purpose of this tort is to give compensation to those people who have suffered loss as a result of improper abuse of public power, as it is based on the principle that such power should be exercised for public good and not for improper purposes. Misfeasance in a public office is not based upon breach of statutory duty. It refers to an unauthorised or unlawful act by a person holding a public office like public bodies like local authority, a government department etc provided it is done with the needed mental element. When a claim is brought against a public body or institution it will be necessary to show that the mental element was possessed by an identifiable human agent.2 Although the mental element is restricted to intention or recklessness the tort has a considerable reach, for there is no requirement that the conduct should be actionable in damages in its own right, it covers non-actionable breach of statutory duty and a decision which is taken contrary to the requirements of natural justice. The mental element relates both to the validity of the act and its effect upon the claimants. For the first criteria, the officer must act in bad faith, which means he must either be aware that his act is unlawful or be consciously indifferent to its lawfulness, mere negligence is not enough.

1 2

Rogers, W.V.H. Tort. London. Thomson Reuters. 2010. p 404 Chagos Islanders v Att Gen [2004] EWCA Civ 997

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As for the claimant, there can be two situations. The first is called targeted malice, which means in this case the defendant acts with the purpose of causing harm to the claimant. An example for this is Roncarelli v Duplessis (1959) 16 D.L.R. (2d) 698, where the defendant, Prime Minister and Attorney-General of Quebec, deprived the claimant of his restaurant license as an act of revenge for standing bail for members of the Jehovahs Witnesses sect, against whose activities there had been a campaign. Alternatively, the defendant will be liable if he is aware that his act will probably cause damage of the type in fact suffered by the claimant or he is consciously indifferent to that risk. In some circumstances the public officer may be exposed to an action for negligence but the tort of misfeasance is wider. The Three Rivers3 litigation arose out of allegations that the Bank of England had acted wrongfully in granting a banking license to the Bank of Credit and Commerce International, thereby causing loss to over 6000 depositors. The claimant must obviously have sufficient legal standing to sue, so that if for example , the defendant were alleged to have improperly refused the claimants vote in an election (at a time when this was remediable by an action for damages) the claimant must necessarily show that he has the right to vote4-there must be damage which, completes the special connection between him and the officials act.5 The misfeasance must be in the public office so that a malicious act done by the defendant solely in his private capacity falls outside this tort, but if the officer acts out of motives of personal profit or spite those are plain examples of the abuse of power which is the underlying factor of this tort. It is not the nature or origin of the power which matters. Whatever its nature or origin, the power may be exercised only for public good. It is the office on which everything depends.6 Historically, misfeasance in a public office is an action on the case, for which the general rule is that there is no cause of action unless the claimant has suffered damage. Usually this is economic

3 4

Three Rivers DC v Bank of England [2004] UKHL 48; [2005] 1 A.C. 610 This matter is handled by the Representation of the People Act 1985. 5 Three Rivers at [2003] 2 A.C. 231 per Lord Hobhouse 6 Jones v Swansea CC [1989] 3 All E.R. 162 at 186 per Nourse L.J.

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damage7, but the tort is capable of extending to personal injury8 or loss of liberty.9 In Watkins v Home Office prison officers had intervened with the claimants correspondence in contravention of the Prison Rules. At that time the Human Rights Act 1998 was not in force, but for the future that is where redress for such conduct should be sought. Claims or misfeasance in a public office have been brought frequently in recent years but they have rarely succeeded, probably because of the difficulty of proving the requisite state of mind in the public officials involved. The Law Commission had provisionally proposed that the tort be abolished as part of a wider project on claims for damages against public bodies where there would be a new liability for serious fault when the claim involved a truly public function.10

As an action on the case it should not cover mere loss of reputation without proof of financial loss though such damages have been awarded in Canada: Uni-Jet Industrial Pipe Ltd v Canada(Attorney General) (2001) 198 D.L.R. (4th) 577. 8 Akenzua v Secretary of State for the Home Dept[2002] EWCA Civ 1470; [2003] 1 W.L.R. 741 9 Karagozlu v MPC [2006] EWCA Civ 1691; [2007] 1 W.L.R. 1881 10 Administrative Redress: Public Bodies and the Citizen, LCP No. 187.

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II MALFEASANCE
Malfeasance is defined as the performance by a public official of an act that is legally unjustified, harmful or contrary to law; wrongdoing (used especially of an act in violation of public trust.11

Malfeasance however is also a term used in both civil and criminal law to describe any act that is wrongful. It is not a distinct crime or tort, but may be used generally to describe any act that is criminal or that is wrongful and gives rise to, or somehow contributes to, the injury of another person. Malfeasance is an affirmative act that is illegal or wrongful. In tort law it is distinct from misfeasance, which is an act that is not illegal but is improperly performed. It is also distinct from Nonfeasance, which is a failure to act which results in injury.

The rule of law states that an action in contract will lie for any of the three i.e. misfeasance, malfeasance, or nonfeasance. However an action in tort will lie only for misfeasance or malfeasance.12 Malfeasance is distinguished from "misfeasance," which is committing a wrong or error by mistake, negligence or inadvertence, but not by intentional wrongdoing. Example: a city manager putting his deprived cousin on the city payroll at a wage the manager knows is above that allowed and/or letting him file false time cards is malfeasance; putting his able cousin on the payroll which, unknown to him, is a violation of an anti-nepotism statute is misfeasance. This distinction can apply to corporate officers, public officials, trustees, and others cloaked with responsibility.
11

Law, M.-W. D. (n.d.). Malfeasance. Retrieved October 5, 2011, from http://dictionary.reference.com/browse/malfeasance

12

R. v. Kilderby, 1669, 1 Will. Saund. 311, 312 c

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The distinctions between malfeasance, misfeasance, and nonfeasance have little effect on tort law. Whether a claim of injury is for one or the other, the plaintiff must prove that the defendant owed a duty of care, that the duty was breached in some way, and that the breach caused injury to the plaintiff.

MALFEASANCE IN OFFICE
Malfeasance in office or official misconduct is the commission of an unlawful act, done in an official capacity, which affects the performance of official duties. Malfeasance in office is often a ground for a cause removal of an elected official by statute or recall election. The West Virginia Supreme Court of Appeals summarized a number of definitions of malfeasance in office. Malfeasance has been defined by appellate courts in other jurisdictions as a wrongful act which the actor has no legal right to do; as any wrongful conduct which affects, interrupts or interferes with the performance of official duty; as act for which there is no authority of warrant of law; as an act which a person ought not to do; as an act which is wholly wrongful and unlawful; as that which an officer has no authority to do and is positively wrong or unlawful; and as the unjust performance of some act which the party performing it has no right, or has contracted not to do.13

Misconduct in public office is an offence at common law which can be tried only upon indictment. Under the common law, it carries a maximum sentence of life imprisonment. It is an offence confined to those who are public office holders and is committed when the office holder acts (or fails to act) in a way that constitutes a breach of duties of that office.

13

Daughtery v. Ellis, 142 (West Virginia 1956).

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The Court of Appeal has maintained that the offence should be strictly confined. It can raise complex and sometimes sensitive issues. Prosecutors should therefore consider seeking the advice of the Principal Legal Advisor to resolve any uncertainty as to whether it would be appropriate to bring a prosecution to such an offence.

Definition of the Offence The elements of the offence are summarized in Attorney Generals Reference No. 3 of 2003[2004] EWCA Crim 868.

The offence is committed when: A public officer acting as such, willfully neglects to perform his duty and/or willfully misconducts himself, to such a degree as to amount to an abuse of the publics trust in the office holder without reasonable excuse or justification.

Elements of the offence Malfeasance in office requires an affirmative action or omission. Malfeasance requires that the act must be done in an official capacity i.e. under the color of office. Malfeasance requires that the act somehow interferes with the performance of official duties.

A public officer The prosecution must have evidence to show that the suspect is a public officer. There is no simple definition of this term and each case must be assessed individually, taking into account the nature of the role, the duties carried out and the level of public trust involved. The judgement of Lord Mansfield in R v Bembridge14 refers to a public officer having:

14

(1783) 3 Doug KB 32

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An office of trust concerning the public, especially if attended with profit by whomever and in whatever way the officer is appointed. It does not seem that the person concerned must be the holder of an office in the narrow or technical sense. The authorities suggest that it is the nature of the duties and the level of public trust involved that are relevant, rather than the manner or nature of appointment. In R v Whitaker15 the court stated: A public office holder is an officer who discharges any duty in the discharge of which the public are interested, more clearly so if he is paid out of a fund provided by the public.

Acting as such The suspect must not only be a public officer; the misconduct must also occur when acting in that capacity. It is not sufficient that the person is a public officer who has engaged in some form of misconduct. The mere fact that a person is carrying out general duties as a public officer at the time of the alleged misconduct does not mean he or she is necessarily acting as a public officer in respect of the misconduct.

There must be a direct link between the misconduct and an abuse, misuse or breach of the specific powers and duties of the officer or position.

The offence would also not normally apply to the actions of a public officer outside that role, unless the misconduct involved improper use of the public officers specific powers or duties arising from the public office.

A deliberate misuse by an off-duty police officer of the powers of a constable, for example, may mean that the officer is acting as such by virtue of his or her assumption of the powers of the office. Such a situation might arise if an off-duty police officer arrested an innocent man with whom he had a personal dispute or took steps in order to prevent or frustrate an enquiry.
15

[1914] KB 1283

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The principles involved apply equally to all holders of public offices. In case of a school governor or a local authority official or other such member of a public body, for example, it will be necessary to show that the misconduct was closely connected with exercising(or failing to exercise) the relevant public function.

Willful neglect or misconduct

The willful neglect or misconduct can be the result of a positive act or a failure to act. In the case of R v Dytham16 for example, a police officer was held to have been correctly convicted when he made no move to intervene during a disturbance in which a man was kicked to death.

There must also be an element of knowledge or at least recklessness about the way in which the duty is carried out or neglected. The test is a subjective one and the public officer must be aware that his/her behavior is capable of being termed as misconduct. Abuse of the publics trust Public officers carry out their duties for the benefit of the public as a whole. If they neglect or misconduct themselves in the course of their duties this may lead to a breach or abuse of the publics trust. The behavior must be of such a serious nature so as to amount to an abuse of the publics trust in the office holder. In R v Dytham17, Lord Widgery said that the element of culpability must be of such a degree that the misconduct impugned is calculated to injure the public interest so as to call for condemnation and punishment.

16 17

[1979] QB 722 Ibid, see footnote 4

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Consequences The likely consequences of any wilful neglect or misconduct are relevant when deciding whether the conduct falls below the standard expected: It will normally be necessary to consider the likely consequences of the breach in deciding whether the conduct falls so far below the standard of conduct to be expected of the officer as to constitute the offence. The conduct cannot be considered in a vacuum: the consequences likely to follow from it, viewed subjectively will often influence the decision as to whether the conduct amounted to an abuse of the public's trust in the officer.' (AG Ref No 3). Whilst there is no need to prove any particular consequences flowing from the misconduct, it must be proved that the defendant was reckless not just as to the legality of his behaviour, but also as to its likely consequences. The consequences must be likely ones, as viewed subjectively by the defendant. Although the authorities do not say so, likely can probably be taken to mean at the very least 'reasonably foreseeable'; it is arguable that likely may mean 'probable' in this context. Motive In order to establish whether the behavior is sufficiently serious to amount to the offence, the officer's motive is also relevant: the question has always been, not whether the act done might, upon full and mature investigation, be found strictly right, but from what motive it had proceeded; whether from a dishonest, oppressive, or corrupt motive, under which description, fear and favour may generally be included, or from mistake or error To punish as a criminal any person who, in the gratuitous exercise of a public trust, may have fallen into error or mistake belongs only to the despotic ruler of an enslaved people, and is
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wholly abhorrent from the jurisprudence of this kingdom.18

At its highest the motive may be malice or bad faith but they are not prerequisites. Reckless indifference would be sufficient. Without reasonable excuse or justification It is not necessary for the prosecution to prove the absence of a reasonable excuse or justification, although the nature of the prosecution evidence should in practice negate any such element. The defendant may advance evidence of a reasonable excuse or justification. It is for the jury to determine whether the evidence reveals the necessary culpability. Charging Practice Misconduct in public office should not simply be used as a substitute for other offences without some other aggravating factor. Misconduct by a public officer can often be adequately presented as an aggravating feature of a statutory offence. Where the misconduct can be adequately presented by a statutory offence giving the court adequate sentencing powers, that offence should be the starting point. The fact that the offender is a public officer should be treated as an aggravating feature of that offence. An assault by a police officer committed on duty should not, for example, automatically be considered as misconduct in public office. A charge of assault would normally provide the court with adequate sentencing powers and the ability to take into account the breach of trust by the officer as an aggravating factor.19 Misconduct in public office should be considered where:

there was serious misconduct or a deliberate failure to perform a duty owed to the public,
with serious potential or actual consequences for the public;

18 19

(R v Borron [1820] 3 B&Ald 432: Abbott CJ, at page 434.) (R v Dunn (2003) 2 Cr.App.R.(S)).

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 there is no suitable statutory offence for a piece of serious misconduct (such as a serious
breach of or neglect of a public duty that is not in itself a criminal offence);

the facts are so serious that the court's sentencing powers would otherwise be inadequate;
or

It would assist the presentation of the case as a whole (for example, where a co-defendant
has been charged with an indictable offence but the statutory offence is summary only and cannot be committed or sent for trial with the co-defendant). There may be cases in which a number of statutory offences can be more conveniently indicted as a single charge of misconduct in public office in order to make the case easier to present to the court. Similar reasoning applies to the charging of misconduct in public office as to the offence of perverting the course of justice.20

20

R v Sookoo (2002) EWCA Crim 800

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III NONFEASANCE

INTRODUCTION

Nonperformance of an act which should be performed; omission to perform a required duty or total neglect of duty.21 Failing to execute or perform an act or duty required by position/office or law that results in harm or damage to a person or property. The perpetrator can be found liable and subject to prosecution. For example, if a daycare provider is employed to supervise children and s/he fails to prevent a child from climbing out on a window ledge from which the child falls, the daycare provider could be found liable of nonfeasance because it was her contracted duty to watch and protect the child from harm and she failed to take action when necessary.22 The intentional failure to perform a required duty or obligation. Nonfeasance is a term used in Tort law to describe in action that allows or results in harm to a person or to property. An act of nonfeasance can result in liability if the doctor owed a duty of care toward the injured person, the doctor failed to act on that duty, and the failure to act resulted in injury.

21 22

http://www.hyperdictionary.com/dictionary/nonfeasance http://www.investopedia.com/terms/n/nonfeasance.asp#axzz1cMdaSs8o

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Originally the failure to take affirmative steps to prevent harm did not create liability, and this rule was absolute. Over the years courts have recognized a number of situations in which a person who does not create a dangerous situation must nevertheless act to prevent harm. Generally a person will not be held liable for a failure to act unless he or she had a preexisting relationship with the injured person.23 For example, if a bystander sees a stranger drowning and does not attempt a rescue, he cannot be liable for nonfeasance because he had no preexisting relationship with the drowning person. The bystander would not be liable for the drowning even if a rescue would have posed no risk to him. However, if the victim is drowning in a public pool and the bystander is a lifeguard employed by the city, and if the lifeguard does not act to help, she may be held liable for the drowning because the lifeguard's employment places her in a relationship with swimmers in the pool. Because of this relationship, the lifeguard owes a duty to take affirmative steps to prevent harm to the swimmers. Courts have found a preexisting relationship and a duty to act in various relationships, such as the relationship between Husband and Wife, innkeeper and guest, employer and employee, jailer and prisoner, carrier and passenger, Parent and Child, school and pupil, and host and guest. A person who renders aid or protection to a stranger also may be found liable if the rescuer does not act reasonably and leaves the stranger in a more dangerous position, even if the rescuer had nothing to do with the initial cause of the stranger's dilemma. Courts have found a duty to act if a person does something innocuous that later poses a threat and then fails to act to prevent harm.24 For example, assume that MR. X loans a powerful circular saw to MR. Z . If MR. X later remembers that the bolt securing the blade is loose and that the blade will dislodge in a dangerous manner when the saw is used, MR. X must try to warn MR. Z . If MR. Z is injured because MR. X failed to act, MR.X can be held liable for nonfeasance.

23 24

http://legal-dictionary.thefreedictionary.com/nonfeasance http://law.jrank.org/pages/8838/Nonfeasance.html

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In theory nonfeasance is distinct from misfeasance and malfeasance. Malfeasance is any act that is illegal or wrongful. Misfeasance is an act that is legal but improperly performed. Nonfeasance, by contrast, is a failure to act that results in harm. In practice the distinctions between the three terms are nebulous and difficult to apply. Courts in various jurisdictions have crafted different rules relating to the terms. The most difficult issue that faces courts is whether to imply a duty to act and find liability for the failure to act. Originally courts used the term nonfeasance to describe a failure to act that did not give rise to liability for injuries. The meaning of the term reversed direction over time, and most courts now use it to describe inaction that creates liability.25
DISTINCTION BETWEEN MISFEASANCE AND NONFEASANCE

the distinction between misfeasance and nonfeasance, between actively causing harm to another on the one hand, and passively allowing harm to fall upon him on the other. In the first case, liability has traditionally been imposed on those whose negligence proximately causes harm to another. Examples range from such egregious behavior as drag racing in automobiles, to more innocent conduct, such as failing to organize a fishing contest so as to aviod creating an unreasonable risk of harm. In such cases little controversy is involved in imposing liability upon the negligent when their unreasonable conduct harms others. But in the case of nonfeasance, there has been a valiant resistance to imposing liability. One of the many classic examples of nonfeasance involves a man strolling down a dock late a night, who hears a man calling for help from the water below. Peering over the edge, he sees a man struggling to stay above water, coming perilously close to drowning. At his feet is a length of rope, which he quickly deduces is more than sufficient to reach the ailing gentleman. Without provocation, however, he simply turns about, and continues on his way. The man below drowns. Many scholars have attempted to argue that the man who fails to rescue another should be liable for the harm suffered. Interestingly, though, few (if any) courts have gone ahead and imposed liability in this situation.26

25

http://legal-dictionary.thefreedictionary.com/nonfeasance

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CASE LAW ON NONFEASANCE Jay Laxmi Salt Words (P) Ltd Vs State Of Gujarat on 4 May, 1994 27 BENCH:SAHAI, R.M. (J) ,SAHAI, R.M. (J) ,KULDIP SINGH (J) FACTUAL DISCRIPTION In 1954 the State of Saurashtra, which now is part of State of Gujarat, made a plan for reclamation of vast area of land from saltish water of sea by erecting a 'reclamation bundh' so as to prevent the sea water flowing in several creeks in the area on the seaside of the bundh from flowing further to the claimed site and making the lands in that area saltish. This bundh was completed in the year 1955. In the very first monsoon of 1956, due to change of natural course of different streams in the reclaimed area and its diversion towards the appellant's factory which was existing from before led to increased flow and discharge of water on appellant's land and factory. The appellant even before the construction of the bundh had been writing to the authorities concerned either to abandon the bundh or to change the location of weirs so as not to face the appellant's factory. But this request had not been acceded to and when there was heavy downpour and the appellant found that the level in the river was rising he ran from one authority to the other requesting them to lessen the level of waterand avoid increased flow near his factory with no result. By the time his running could bring forth any movement the flood level rose to such an extent in the night between 4th and 5th July, 1956 that water filtered to the premises of the factory breaking even the protective bundh made by the appellant on the border of its factory. After the flood receded the appellant approached the authorities and the Government for redress and claimed damages of approximately Rupees Four Lakhs. 28

JUDGEMENT (DATE OF JUDGMENT04/05/1994)

26 27

http://jurisblawg.wordpress.com/2006/06/09/misfeasance-and-nonfeasance-yania-v-bigan/ 1994 SCC (4) 1, JT 1994 (3) 492 28 http://indiankanoon.org/doc/1503529/

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Article 36 as it stood in the relevant period, prior to 1963 exhaustive of torts as held by the High Court? What was the scope of malfeasance, misfeasance and nonfeasance? Was the rule of Rylands v. Fletcher' applicable? Has it been modified by our Court in State of Punjab v. Modem Cultivators2? Prior to adverting to these issues it appears appropriate to notice in brief how the High Court grappled with the problem. Mr Justice Sheth who agreed on facts with Mr Justice Desai, was of the opinion that, liability could arise out of malfeasance, misfeasance or nonfeasance or even independently of any one of them. But Article 36 applied if it arose out of any one of them only. He thereafter discussed the rule of strict liability as explained by the English Courts in Rylands v. Fletcher', its modification in Read v. J. Lyons & Co. Ltd.3 the vicissitudes it suffered subsequently in Rickards v. John Inglis Lothian4 and Bartlett v. Tottenham5 both on natural and non-natural user of land and artificial collection of goods resulting in injury and various exceptions carved out of it. The learned Judge then discussed the ratio in the State of Punjab v. Modem Cultivators2 and observed that the rule of strict liability as modified by this Court entitled the appellant to successfully claim damages. Article 36 of the Act applied to actions based on negligence, and the suit was filed after two years from the date the cause of action arose the trial court did not commit any error in dismissing the suit as beyond time.

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