Malice in the Law of Torts
| Published date | 01 September 1958 |
| DOI | http://doi.org/10.1111/j.1468-2230.1958.tb00488.x |
| Date | 01 September 1958 |
| Author | G. H. L. Fridman |
MALICE
IN
THE LAW
OF
TORTS
I
MR.
JUBTICE
MCCARDIE once complained about the word
“
malice
”
that
it
had been the subject of “a regrettable exuberance of
definition.”’ There can be little doubt that this complaint was
justified. Despite the well-known division and discussion by
Bayley
J.
of
“
malice in fact
”
and
“
malice in law,”
’
which can
be taken as the starting point of modern analysis of malice, other
judges have not hesitated to enlarge upon the possible meanings of
malice, until
it
seems that there must be judicial authority for any
or
almost any meaning that
a
writer wishes to attribute to the
word. However, these various interpretations can be grouped under
four main headings:
(1)
spite
or
ill-will;
(2)
any improper motive;
(8)
the intent to do
a
wrongful
act;
(4)
the intent to inflict injury
without just cause
or
excuse.
It
is
quite
clear that in this sense the word is being used colloquially, not
as
a
term of
art.
“Malice in common acceptance,” said Parker
C.J.
in
1718’
“is
a
desire of revenge
or
settled anger against
a
particular person.”
A
hundred years later, in
a
famous passage in
Bromage
v.
Prosser,
Bayley
J.
called this
‘‘
malice
in
fact
”
and
said
it
meant “ill-will against
a
person.” The effect of later
authorities was summed up by McCardie
J.’s
expression
“
vindic-
tive feeling.” When used in this sense, therefore, malice involved
the desire to satisfy a personal grudge and thereby to benefit the
person
who acted from malice.
But the older idea of vengeance, which as just seen involved at
least emotional benefit to the malicious person, tended in the latter
part
of
the nineteenth century to become absorbed in a broader
notion of any motive which was regarded as undesirable by the
courts of approval and encouragement.
As
a
result, “malice
”
came to mean any improper motive. To quote McCardie
J.
once
again,
‘‘
the jurist
.
.
.
enlarged the layman’s notion
of
malice.”
’
Thus
in
1858
it
was said that there was
‘‘
express malice
”
where
a
party animated by a desire for vengeance
or
other
bad
passion,
chooses to inflict injury
on
another person. Lord Campbell
’
spoke
The use of
“
malice
”
to
mean spite
or
ill-will is early.
1
Br.
Rly.
Traffic
and Electric
Co.,
Ltd.
v.
C.
R.
C. CO.,
Ltd.
[l022]
2
K.B.
260
2
Bromagc
V.
Proaaer
(1825) 4
B.
&
C.
247.
3
Jonea
v.
Gioin
(1713)
Gilb.
185.
4
Pratt
v.
B.
M.
A.
[1919]
1
K.B.
244
nt
pp.
275-276.
6
Ibid.
6
Re
Nolan
(1853) 22
L.T.
(0.8.)
108.
7
Dickaon
v.
Earl
of
Wilton
(1859)
1
F.
&
F.
419
at
p.
427.
nt
p.
268.
484
SEPT.
1968
MALICE
IN
THE
LAW
OF
TORTS
435
of
"
any indirect motive, other than a sense of duty
";
Erle
C.J.'
of
''
corrupt motive
or
any departure from duty
";
Crompton
J.'
of
''
any improper motive," and rejected the idea that malice meant
"merely spite." Coming
to
more modem times, in
Bdden
v.
Shorter
lo
Maugham
J.
called malice "some dishonest or otherwise
improper motive," which statement was approved and adopted by
Harman
J.
in
Loudon
v.
Ryder
(No.
2)."
It
seems clear that
when malice was given this meaning
it
referred not to any desire to
benefit the malicious person, however indirectly, but
to
the desire
to inflict injury merely for the sake of inflicting such injury. Hence
Evatt
J.'s
statement that malice meant
''
disinterested malevo-
lence
"
and the definition given by Holmes
J.
in
1894
that malice
meant
''
a malevolent motive for action without reference
to
any
hope of a remoter benefit
to
oneself
to
be accomplished by the
intended harm
to
another." This is a very different idea from the
simple notion
of
spite or ill-will which was what malice meant for
Parker
C.J.
and Bayley
J.
Yet
it
is not what they understood by
"malice in IawyYy even though some .judges in the nineteenth
century, for example, Baron Bramwell in
Melia
v.
Neate,"
seem
to have suggested that
'(
malice
in
law
yy
meant some kind of
dis-
interested malevolence. The confusion,
it
is
suggested, results from
the fact that in a sense this meaning of malice is an artificial
meaning adopted by the courts for the purpose
of
law; but
it
is
not the same as what may be described as the
technical
meaning
of malice,
to
which Parker
C.J.
and Bayley
J.
gave the name
''
malice in law."
One
of
the meanings given
to
"malice
in
law
yy
is
the intent
to do a
wrongful
act.15 Though this
looks
at first sight more
like
a connotation used in criminal law, rather than the law
of
torts,
it
Bnds its way into cases of tort. Perhaps the most
famous
descrip-
tion
of
malice in, this sense is contained
in
the judgment of
Bowen
L.J.
in the
Mogul
case." There he said that ccmaliciously
. .
.
means and implies an intention to do an
act
which is wrongful
to
the detriment of another.
. . .
The term 'wrongful' imports in
its turn the infringement of some right." But a second
look
at
this
description reveals that
it
is too full
of
words which themselves
8
Hibbs
v.
Wilkimon (1859) 1
F.
&
F.
608
at
p.
610; Turnbull
v.
Bird (1861)
2
F.
&
F.
508
at
D.
524.
9
Hall
v.
Semple (1862) 3
F.
&
F.
337
at
p.
857.
Cf.
ale0
Clark
v.
Molyneuz
(1877) 3
Q.B.D.
237
at
p.
247
("
any
wrong feeling in
a
man's mind
").
10
[1933
Ch.
427.
11
[l953!
Ch.
423
12
McKernan
v.
Fraser (1931) 46
C.L.R.
343
at
p.
398.
1s
I'
Privilege, Malice and Intent,"
8
H.L.R.
1,
reprinted in
Selected Essays
on
the Law
of
Tort,
162,
at
p.
163.
14
(1863) 3
F.
&
F.
at
p.
763:
he called malice
"
in
law
"
anv
undue
or
indirect
object.
15
Rawson's Law Lexicon
(1883)
at p.
199.
1*
(1890)
23
Q.B.D.
598
at p.
612;
cf.
Lord Campbell
"
a
conscious violation
of
the
law.
to
the prejudice
of
another
"
(9
C.
&
F.
321)
and Lord Lindley
in
South
Wales
Miners' Federation
v.
Glamorgan Coal Co., Ltd. [1905]
A.C.
239
at
p.
258.
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