MALICIOUS PROSECUTION Malignant prosecution is the noxious establishment of unsuccessful criminal or bankruptcy

or liquidation procedures against another without sensible or reasonable justification. Liability for the malicious
prosecution for the most part relies on two contending principals which are: Every individual ought to have opportunity to
set law in movement and convey criminals to equity; and The need to check lying allegations against pure individuals. If
there should arise an occurrence of tort of malicious prosecution the mental component which is significant is Malice.
Perniciousness can be characterized as “Some other motive than the longing to convey to equity a man whom he [the
accuser] genuinely accepts to be liable. Subsequently we can say “Malevolence exist where the informer’s dominating is
an option that is other than the law”.

NEGLIGENCE AND RECKLESSNESS Black’s law dictionary defines negligence as: “The exclusion to do something which
a sensible man guided by those normal contemplations which usually direct human issues would do, or the doing of
something which a sensible and judicious man would not do” In the law of torts, negligence has two meanings: (i) An
independent tort and (ii) A mode of committing certain other torts. For example: trespass or nuisance. In Donoghue v.
Stevenson, it was held that carelessness exists where there is a “duty to take care”, and there is rupture of this obligation.
It was watched that negligence is a behavior and not a perspective and there is no fundamental component of flaw
included. Recklessness implies a high level of thoughtlessness. It is the doing of something which actually includes a grave
danger to others, whether the practitioner acknowledges it or not.

NEGLIGENCE : In legal sense it means failure to exercise standard of care which the doer as a reasonable man should
have exercised in the circumstances. In general it is a legal duty to take care when it was reasonably foreseeable that failure
to do so was likely to cause injury. Negligence is a mode in which many kinds of harm may be caused by not taking such
adequate precautions. Winfield and Jolowicz- According to them, negligence is a breach of legal duty to take care which
results in damage, undesired by the defendant to the plainti . Essentials of Negligence I. Duty to take care– One of the
essential conditions of negligence is duty to take care. In Grant v. Australian Knitting Mills Ltd, the plainti purchased two
sets of woolen underwear from a retailer and contacted a skin disease by wearing an underwear. The woolen underwear
contained excess of sulphates which the makers failed to remove while washing them. The manufacturers were held liable.
Duty to whom– Donoghue v. Stevenson 1932 AC 562 carried the idea further and expanded the scope of duty saying that
the duty so raised extends to your neighbour. Explaining so as to who is my neighbor Lord Atkin said that the answer must
be the persons who are so closely and directly a ected by my act that I ought reasonably to have them in contemplation
as being so a ected when I am directing my mind to the acts or omission which are called in question. Duty must be
towards the plainti – It is not su icient that the defendant owed a duty of care towards the plainti . It must also be
established that the defendant owed a duty of care towards the plainti . Case– Bourhill v. Young Breach of Duty to take
care – Yet another essential condition for the liability in negligence is that the plainti must prove that the defendant
committed a breach of duty to take care or he failed to perform the duty. Case– Municipal Corporation of Delhi v.
Subhagvanti. V. Consequential harm to the plainti – The harm may fall into the following classes:- a.) Physical harm b.)
Harm to reputation c.) Harm to property d.) Economic Loss e.) Mental Harm. In Achutrao Haribhau Khodwa v. State of
Maharastra 1996 2 SCC a cotton mop was left inside the body by the negligence of the doctor. The doctor was held liable.
DEFENCES FOR NEGLIGENCE (1) CONTRIBUTORY NEGLIGENCE: It was the Common law rule that anyone who by his
own negligence contributed to the injury of which he complains cannot maintain an action against another in respect of it.
Because, he will be considered in law to be author of his wrong. Butterfield v. Forrester, the defendant had put a pole across
a public thoroughfare in Durby, which he had no right to do. The plainti was riding that way at 8’O clock in the evening in
August, when dusk was coming on, but the obstruction was still visible from a distance of 100 yards, he was riding violently,
came against the pole and fell with the horse. It was held that the plainti could not claim damages as he was also
negligent. (2) ACT OF GOD OR VIS MAJOR: In Nichols v. Marsland; the defendant had a series of artificial lakes on his land
in the construction or maintenance of which there had been no negligence. Owing to an exceptional heavy rain, some of
the reservoirs burst and carried away four country bridges. It wa held that, the defendant was not liable as the water
escaped by the act of God.(3) INEVITABLE ACCIDENT: Inevitable accident also works as a defence of negligence. An
inevitable accident is that which could not possibly, be prevented by the exercise of ordinary care, caution and skill. It
means accident physically unavoidable. In Brown v. Kendal; the plainti ’s and defendant’s dogs were fighting, while the
defendant was trying to separate them, he accidentally hit the plainti in his eye who was standing nearby. The injury to
the plainti was held to be result of inevitable accident and the defendant was not liable.

ASSAULT -Whoever makes any gesture, or any preparation intending or knowing it to be likely that such gesture or prepa-
ration will cause any person present to apprehend that he who makes that gesture or preparation is about to use criminal
force to that person, is said to commit an assault. Explanation.—Mere words do not amount to an assault. But the words
which a person uses may give to his gestures or preparation such a meaning as may make those gestures or preparations
amount to an assault. Essentials (1) I. Intent to Cause apprehension and (2) Imminent Harm. Case Hopper v. Reeve [(1817)
Taunt. 698] – If a person is about to sit on a chair and the chair is pulled, there is an assault as long as he takes to fall to the
ground. The moment he makes contact with the ground, it will become a battery.

BATTERY refers to the intentional application of force/ criminal force to another person without any lawful justification.
Here Criminal force.—Whoever intentionally uses force to any person, without that person’s consent, in order to the
committing of any o ence, or intending by the use of such force to cause, or knowing it to be likely that by the use of such
force he will cause injury, fear or annoyance to the person to whom the force is used, is said to use criminal force to that
other. Essentials (1) Use of Force (2) Without lawful justification Case Leigh v. Gladstone , the force-feeding of a hunger-
striking prisoner to save his life was held as a valid defence for battery. Any injury that is caused unintentionally or by
accident, is also not considered as a battery. Battery is subclassified into the following categories (1) Simple Battery – It
includes all forms of unlawful and unjustified contact with another person. It is the most basic form of battery, and it is not
essential that injury should be caused to the victim. There should be a intent and willfulness to cause the harm. (2) Sexual
Battery – It is a crime that involves the act of intentionally or recklessly engaging in, or causing, o ensive or unwanted
sexual contact with a person’s body. The main di erence between sexual battery and rape is that sexual battery does not
involve any intercourse. Sexual battery includes the action of touching one’s intimate body part and doesn’t necessarily
warrant the act of intercourse itself. (3) Aggravated Battery – While simple battery is a simple o ence and does not
necessarily constitute any harm to the victim, aggravated battery is done with the intent to cause some serious injury or
hurt to the victim.

Nuisance - As per the most accepted definition of Nuisance which is the one given by Bermingham, Nuisance is an
unlawful interference with a person’s use and enjoyment of land, or of some right over, or in connection with it. Hence it is
an injury or inconvenience faced by a person in the use of his property because of another person who unreasonably uses
his own property in a way which negatively a ects the former. Elements - I. Wrongful Act by the Defendant- (ii)
Damage/Loss/Inconvenience caused to the Plainti - Case Laws: In Ushaben V. Bhagyalaxmi Chitra Mandir, where the
Plainti sued the Defendant against the screening of the movie “Jai Santoshi Maa”, claiming that it hurts the Religious
sentiments of a particular Hindu community, the court dismissed the Plea stating that hurt to religious feeling was not an
actionable wrong and the Plainti is free to not watch the Movie again. Kinds of Nuisance- Nuisance as a tort is further
categorized into two types- Private Nuisance and Public Nuisance, both have their own areas of actions and types of
damages. Private Nuisance where the actions of the defendant are “causing a substantial and unreasonable interference
with a claimant’s land or his/her use or enjoyment of that land”. Public nuisance, where the defendant’s actions “materially
a ects the reasonable comfort and convenience of life of a class of Her Majesty’s subjects” public nuisance is also a crime.

Defamation- A defamatory statement is one which injures the reputation of another by exposing him to hatred, contempt,
or ridicule, or which tends to lower him in the esteem of right-thinking members of society. Black’s Law dictionary defines
defamation as The taking from one’s reputation. The o ense of injuring a person’s character, fame, or reputation by false
and malicious statements. The term seems to be comprehensive of both libel and slander. Defamatory statement in
permanent form is libel. Libel is a written defamation. ‘libel’ includes written statement, typed or lithographed material,
raised letters, pictures etc. Defamatory statement in transitory form is slander. It may be exemplified by verbal speech,
nod, wink, shake of head, smile, hissing and finger language of the deaf and the dumb etc. Libel is actionable per se
whereas damage must be proved for slander, except in four instances: Where there is an allegation that the claimant has
committed an imprison able o ence; Where there is an imputation that the claimant is su ering from a contagious
disease, such as venereal disease, leprosy, plague and, arguably, HIV/AIDS; Where there is an imputation that a woman
has committed adultery or otherwise behaved in an ‘unchaste’ fashion or Where there is an imputation that the claimant
is unfit to carry on his trade, profession or calling. ESSENTIAL that a statement was made about the plainti ’s reputation,
honesty or integrity that is not true; there was a publication to a third party (i.e., another person hears or reads the
statement); and the plainti su ers damage as a result of the statement.

Major mental elements in tort – (i) INTENTION “Intention signifies full advertence in the mind of the defendant to his
conduct which is in question and to its consequences together with a desire for those consequences”. (Winfield). On the
basis of intention, tort can be divided into two namely: (i) Intentional Tort - It is a sort of tort that can come about just from
the purposeful demonstration of the wrong-practitioner. Regular intentional torts are battery, assault, false detainment,
trespass to land, trespass to assets, and deliberate punishment of enthusiastic trouble. (ii) Unintentional Tort -On
account of an accidental tort, the litigant reasons harm to the o ended party, however with no mala fide goal. It might be
called an unintended mischance. Such a person may be termed as careless or reckless. In the occasion of an inadvertent
tort, we may see that the damage is brought on because of the exclusion of the “obligation of duty of care”, which a sensible
and judicious man should have considered. (2) INTENTIONAL OMISSION - In such circumstances likewise there is no
requirement for goal in tort. For instance: if a medical attendant purposely permits a kid to get into a position of risk and
get wounds, she will be held liable. Here it is not the intentional exclusion which is the premise of liability, yet it is the
breach of her duty to take care of and look after. Intention by itself is not a good defense in tort. It is clearly impossible to
know what is going on in the mind of the defendant. (3) MOTIVE - is the perspective of a man which rouses him to do a
demonstration. For the most part, it implies the reason behind the commission of an act. Motive, much the same as goal,
is by and large superfluous in the law of tort. As per Salmond,- “It is the act and not the motive for the act that must be
respected. In the event that the act, aside from the rationale, gives rise just to harm with legal injury. The motive, however
reprehensible it may be, will not supply that element.” A good motive is no avocation for acts generally unlawful and a bad
motive does not make wrongful a demonstration generally legitimate.