In tort malice come out in two ways;
(a) The intentional doing of some wrongful act without proper excuse
(b) To act with some collateral or improper motive.
It is the second that is usually referred to and it is worth noting that in torts in that sense malice becomes irrelevant in tort, i.e. if a person has a right to do something then his motive in doing it is irrelevant.
Bradford Corporation v Pickles (1895)
The defendant extracted water in undefined channels with the result that the water supply to the plaintiffs‟ reservoir was reduced. The defendant‟s motive in doing this was to force the plaintiffs to buy his land at his price. The action failed, as the defendant had a right to extract the water. As he had such a right, his motive, even if malicious, was irrelevant.
There are two groups of exceptions to this basic principle:
1. Where malice is an essential ingredient of the tort, for example, in malicious prosecution, the plaintiff must prove not only that the defendant had no grounds for believing that the plaintiff was probably guilty, but also that the defendant was activated by malice. The reason for this requirement is that policy in this area favours law enforcement over individual rights. The result of the requirement is that there are few successful cases of malicious prosecution.
2. There are also torts where malice may be relevant to liability. For example, in nuisance malice may convert what would have been a reasonable act into an unreasonable one.
Christie v Davey (1893)
Plaintiff and defendant lived in adjoining houses. The plaintiff gave music lessons and this annoyed the defendant. In retaliation the defendant banged on the wall and shouted while the lessons were in progress. The plaintiff was held to be entitled to an injunction because of the defendant‟s malicious behaviour.