Distinction between Misfeasance (positive action) and Non-feasance (omission) - Indian Laws - General

Distinction between Misfeasance (positive action) and Non-feasance (omission) Misfeasance is willful, reckless or heedless conduct in commission of a positive act lawfully done but with improper conduct. Non-feasance means non-performance of some act which ought to be performed or omission to perform required duty or total neglect of duty. In the case of misfeasance, t e defendant is the author of the source of danger to cause damage due to careless conduct, to the person/property of plaintiff. He has knowledge that the act may give rise to tort but in the case of non-feasance several factors require consideration for giving rise to actionable negligence. In The Law of Torts by John G. Fleming (8th Edn.) 1992, at page 435 on the Chapter of Public Authorities , the author has stated that although public authorities enjoy no immunity as such from ordinary tort liability, a protective screen has long remained in the vestigial non-feasance rule that mere failure to provide a service or benefit pursuant to statutory authority would ordinarily confer no private cause of action on persons who thereby suffer loss. In an article Affirmative Action in the law of Tort: The case of the Duty to Warn published in [1989 (48) Camb. Law Journal] at pages 115-116 it is stated that the distinction between acts [misfeasance] and omissions [non-feasance] sometimes referred to as pure omissions, though a fundamental one, is not one which is easy to make. F.H. Bohlen suggested that misfeasance differs from non-feasance in two respects: in the character of the conduct complained of, and second, in the nature of the detriment suffered in consequence thereof . The first aspect relates to the distinction between active misfeasance and passive inactivity; the second to the distinction between causing loss and simply failing to confer a benefit. A defendant who has inflicted a loss on the plaintiff by his negligent action will be liable for the misfeasance. On the other hand, if he has simply allowed harm to occur without preventing it, or failed to confer a benefit on the plaintiff, he will not be liable, as this is considered to be an omission or non-feasance. The conferment of such benefits lies in the province of contract, not tort. At page 117, he states that Tort law has developed in such a way as to allow the imposition of liability for injuries that are not easily described as damage of loss . Reference - RAJKOT MUNICIPAL CORPORATION VERSUS MANJULBEN JAYANTILAL NAKUM ORS. 1997 (1) TMI 548 - SUPREME COURT