Malice in Law of Torts

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MALICE IN THE LAW OF TORTS
I
MR. JUBTICE MCCARDIoEn ce 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 “ vindictive 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 malevolence " 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 IawyYye ven 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 disinterested malevolence. The confusion, it is suggested, results from

the fact that in a sense this meaning of malice is an artificial...
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