HomeLegal ReasoningBrief Introduction to The Law of Torts on Negligence and Malicious Prosecution

Brief Introduction to The Law of Torts on Negligence and Malicious Prosecution

Brief Introduction to The Law of Torts on Negligence and Malicious Prosecution

Brief Introduction to The Law of Torts on Negligence and Malicious Prosecution


Although negligence also means a mental element for various torts but​​ Negligence is​​ also​​ a separate tort and actionable if all the essentials​​ are fulfilled.​​ Negligence​​ refers​​ to​​ careless and unreasonable​​ conduct that creates a risk causing damage to the other person.​​ But mere unreasonable conduct is not actionable if no damage is caused. This was recognised in the case of Donoghue v Stevenson.


To prove the tort of negligence, following three essentials must be​​ fulfilled:

  • The defendant owed a duty of care to the plaintiff.

This refers to legal duty and not merely a duty which is moral, social or religious in nature. Such duty is also subject to the foreseeability of the injury to the plaintiff. Mere carelessness on the part of the defendant will not entitle the plaintiff to file a civil suit for negligence, if the defendant does not owe a duty of care to the plaintiff. If the defendant owes a duty​​ to other persons and not​​ plaintiff,​​ but plaintiff still gets an injury as the consequence of defendant’s negligence, he cannot sue the defendant.


  • The breach of duty.

Breach of duty means not taking due care which is required in a particular circumstance. Degree of duty varies with the degree of risk involved. The standard of such care is hat of a reasonable prudent man and if the defendant has done what a prudent man would have done, there is no negligence.


  • The damage suffered by plaintiff because of the breach of duty.

Mere existence of duty to care and breach of such duty will not result in a cause of action to file a suit for negligence to claim damages. There must be some kind of injury caused to the plaintiff, as a result of such breach. The injury could be​​ physical​​ or mental or any other kind.


In the case of negligence, the burden of proof lies upon the plaintiff to prove that the defendant has breached the duty of care he owed to the plaintiff and that has resulted in the injury to plaintiff, thereby causing negligence. Once the plaintiff has discharged this duty and proved prima facie the negligence, the defendant can mow put forward his defence and prove otherwise. There is a presumption of negligence according to the maxim​​ “res​​ ipsa loquitor’ which means thing speaks for itself but for this maxim to apply it is necessary that the​​ accident couldn’t have occurred but for defendant’s negligence and such accident was within​​ the​​ control of the defendant.


  • Contributory Negligence​​ 

When the plaintiff fails in avoiding the consequence of the defendant’s negligence and does not exercise the ordinary care and diligence to avoid the consequence, he​​ cannot claim​​ damages​​ arising out of such negligence. This is called as contributory negligence by the plaintiff.​​ When two persons are negligent, the one who had the last opportunity of avoiding the accident by exercising ordinary care, would be liable.

Contributory negligence is different from composite negligence because in contributory negligence, the negligence on the part of plaintiff to avoid the consequence of the accident is taken into account whereas in composite negligence, the negligence of two or more persons results in the same damage and they are known as composite tortfeasors.

  • Act of God

Also called as Vis Major, Act of God is the direct, violent, sudden and unavoidable act of nature that could have not been foreseen or avoided, provided there was no human interference. But for this defence to apply, Act of God must be the immediate cause of the accident and not the remote cause.​​ 


  • Inevitable accident

Inevitable accident is a defence to the tort of Negligence.​​ . An inevitable accident is said to be caused if it was not intentional and also could have not been avoided by exercise of ordinary care and caution. But it is mandatory that such ordinary care and caution should have been exercised.​​ 






The basis for this tort to be actionable is injury to the plaintiff’s character, person or​​ property. Malicious prosecution is basically instituting a criminal proceeding against another person without any reasonable or just cause. It is a common observation that whenever criminal charges are pressed against a person, it leads to the injury to his​​ reputation​​ in the society he lives in.​​ 


To prove a case of malicious prosecution, the following essentials must be proven by the plaintiff:

  • The plaintiff was prosecuted by defendant

The plaintiff must prove that the defendant has filed a case against him in the past and the case must be a criminal case​​ before a judicial officer. Prosecution is said to be commenced after a person is summoned to​​ answer​​ a​​ complaint. Mere act of giving information to the police will not imply that the​​ defendant​​ was the prosecutor. His active participation in the prosecution is​​ necessary.


  • There is no probable or reasonable cause for the suit instituted by the defendant.

Any cause will be referred​​ to​​ as reasonable and probable cause if there is an honest belief in the guilt of the accused founded upon reasonable grounds arising out of the existence of circumstances and making it to be believed as true. If such​​ probable and​​ reasonable cause is not there, it will be a case of malicious prosecution.


  • The proceedings terminated in plaintiff’s favour in the prosecution​​ being referred to as malicious and caused damages to the defendant in that case.

The proceedings being referred as malicious must have terminated in favouring the person who filed such prosecution and as a result, the damage must have been caused to the defendant. The damage could be financial, physical, mental or social. Such malicious prosecution often results in the loss of reputation in the society.


Always remember, the burden of proof to prove the tort of malicious prosecution lies on the person alleging it and once he has proved it, the defendant may put forward their defence to prove otherwise.

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Aditya Anand
Aditya is 93.1% sure that he knows Japanese. We think he speaks Japanese in Bhojpuri accent.


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