Mental Element in Torts PDF

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TOPIC : MENTAL ELEMENT IN TORTS CHAPTER- I 1.1. INTRODUCTION: “It is the act and not the motive for the act that must be regarded. If the act, apart from the motive, gives rise merely to damage with legal injury, the motive, however, reprehensible it may be, will not supplement that element” – Salmond To understand the role mental element plays in tort law, we must first analyse the terms Intention, Motive, Malice, Negligence and Recklessness. These are the terms associated with the Mental Element in torts. In Tort Law, Motive is a person’s state of mind which actually inspires him to do an act. Motive is generally irrelevant in tort law, just like intention. Motive leads to the formation of intent. Further, it was held by the Honourable Indian courts that if the act is lawful, then the motive for the act is of little significance. Now, Tort may be Intentional or Unintentional. According to Tort law, the liability may be incurred irrespective of whether the injury was intentionally or accidentally inflicted. Malice is loosely associated with bad motive or is synonymous with spite or ill-will. In the legal sense, it means causing damage or injury intentionally. Malice becomes relevant in determining liability when the act is otherwise unlawful and wrongful intention can be gathered from the facts and situation presented in the case. Defined in terms of purpose, intention is clearly distinguishable from Recklessness in its core sense is commonly conceptualized in terms of a risk that certain consequences will result from conduct, and that risk. Because liability for 'intentional torts' can sometimes be attracted by recklessness, it is important to map the boundaries of tortious recklessness, and in particular to map the boundary between recklessness and negligence. Negligence in tort law is failure to comply with a legally specified standard of conduct, pure and simple. It has no mental element. On one hand, the plaintiff in a tort action for negligence does not have to prove inattention or inadvertence on the part of the defendant.

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CHAPTER- II MOTIVE: Motive is the state of mind of a person which inspired him to do an act. Generally, it means the purpose behind the commission of an act. “It is the act and not the motive for the act that must be regarded. If the act, apart from the motive, given rise merely to damage with legal injury1, the motive, however reprehensible it may be, will not supply that element.” - Salmond It is unive8rsally acknowledged that “where one exercises a legal right only, the motive which actuates him is immaterial”. Motive leads to intension formation, which is the ultimate cause. Motive is the ultimate object with which an act is done, while the immediate purpose is the intention. The decisions of Lord Halsbury and Lord Watson in Bradford Corporation vs Pickles2 and Aleen vs Flood 3, are considered to be one of the earliest cases which moulded the place of motive in tort law. In the case of Bradford4, the plaintiffs, owned land below which were water springs that were used to supply water to Bradford town for more than 40 years. The defendant owned land over the plaintiffs on a higher level. There was a natural reservoir under the defendant’s land and water flowed from that reservoir down to the springs of the plaintiffs. The defendant, however, sank a shaft into his land to alter the flow of water. This reduced the amount of water flowing into the springs of the plaintiff significantly. There was sufficient proof to suggest that the defendant was following this course of action, not to give himself any immediate advantage, but merely to deprive the plaintiffs of water. The plaintiffs insisted that this was malicious and that they had the right to an injunction to stop the defendant from their course of action. It was held that, the issue in question was not if the state of mind of the person who committed the act can affect the right to do it. If it was a lawful act, however ill the motive might be, he had a right to commit the act. Also, no use of property, which would be legal if due to a proper motive, can become illegal because it is prompted by a motive that is improper or even malicious.

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Damnum sine injuria [1895] AC 587 3 [1898] AC 1 4 Bradford vs Pickles 2

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Further observed, in the case of Allen vs Flood5, which is a leading case in Tort law on intentionally inflicted economic loss, a trade union official told an employer that his members would not work alongside the claimants. The employer was pressured to get rid of the claimants. For the loss of work, the claimants sued the trade union official. An important fact is that all the workers in the case were only hired day by day, so they were liable at any time to be discharged. Therefore, the trade union official had never threatened a breach of contract because the contracts began afresh with a new day’s work. It was held that even though there was ‘malicious motive’, this could not turn a contract unlawful because the effect actually complained of (no reemployment) was in itself entirely lawful. Also, in the course of the judgement, it was pointed out by Lord Davey that ‘an employer may refuse to employ (an individual) for the most mistaken, capricious, malicious or morally reprehensible motives that can be conceived, but the workman has no right of action against him.’ One must keep in mind that in considering a person’s liability to civil proceedings the proposition in question only applies to ‘acts otherwise lawful’, i.e., to acts involving no breach of duty, or, in other words, no wrong to anyone. The act committed by Allen did not infringe the rights of the plaintiffs, even though Allen acted maliciously and with a conscious will to injure them. To conclude, to inform a person that others will annoy or injure him unless he acts in a particular way cannot of itself be actionable, whatever the motive or intention of the informant may have been. Therefore, the decision of Lord Watson in Allen vs Flood, settled that ‘Motive is irrelevant in the Law of Torts.’ It, therefore, means, as a general rule that an act which is lawful cannot become unlawful merely because it is done with any motive. That is to say, if conduct is unlawful, good motive will not exonerate the defendant,6 and that if conduct is lawful, a ‘bad motive will not make him liable.’ Indian courts too have spoken about the irrelevance of motive as well as malice in many cases, the leading case being Vishnu Basudeo vs T.L.H. Smith Pearse7, where it was observed by Mudholkar. J that, in a leading case such as the case od Allen vs Flood, that lays down that as a general rule, a bad motive is an essential condition of liability for a civil wrong except in 5

[1898] AC 1 To this, however, defences like necessity and private defence are exceptions, for they defend to a certain extent on a good motive on the part of the defendant. 7 AIR 1949 NAG 364

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cases like malicious prosecution, defamation and conspiracy. What has ordinarily to be seen is the lawful act. If it is so, then motive with which it was done is of little significance. In this case, however, it has been held that the act must presume to have been intended by the respondent to ‘cause mental and bodily distress’ to an appellant. Therefore, we can say that a good motive is no justification for acts otherwise illegal and a bad motive does not make wrongful act otherwise legal. 2.1. EXCEPTIONS: There are certain sections in torts where motive may be an essential element, and therefore relevant in determining liability: 1. In the cases of deceit, malicious prosecution, injurious falsehood and defamation, where defence of privilege or fair comment is available. The defence of qualified privilege is only available, if the publication was made in good faith. 2. In cases of conspiracy, interference with trade or contractual relations. 3. In cases of nuisance, causing of personal discomfort by an unlawful motive may turn an otherwise lawful act into nuisance. Motive becomes relevant in the tort of defamation when qualified privilege or fair comment is pleaded. The defence of qualified privilege is available if the statement was made in good faith. The presence of malice or evil motive negates good faith. In such a case of personal discomfort an unlawful motive may turn an otherwise lawful act into nuisance as observed in the case of Palmer vs Loder8.

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1962 CLY 2333

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CHAPTER- III INTENTION: Intention signifies full advertence in the mind of the defendant to his conduct, which is in question, and to its consequences, together with a desire for those consequences. But it is essential to add that the interpretation of this definition by the law is often technical in nature. To begin with, it is impossible for the law to do more than to infer a man’s intention, or indeed any other mental state of his, from his conduct. A party must be considered, in point of law, to intend that which is the necessary or natural consequence of that which he does. 9 A tortious liability may arise if a person causes any injury related to the life, property, reputation, etc. of the victim. According to tort law, the liability may be incurred irrespective of whether the injury was intentionally or accidentally inflicted. Depending on the intention, a tort can be divided into two broad categories. Namely: 1. Intentional Tort 2. Unintentional Tort Some action must be taken with a purpose to commit an intentional tort, i.e. an intention is must to commit an act. It is essential that there is a mental element. In Garratt v. Dailey10, in 1955, a young boy whose named Brian, pulled a chair from underneath Ruth Garratt as she went to sit down. Unaware of what Brian did, Ruth fell and broke her hip because Brain pulled the chair. Ruth filed a lawsuit against the family of Brian who she claimed was acting intentionally, hence causing her personal injury. Although Brian did not intend to cause injury, the court delivered a judgement that held that since the act resulted in the hip being broken, Ruth was awarded $11,000 in damages. Brian’s family appealed on the grounds that children of 5 years of age could not be held liable for an intentional tort. The court ruled that children can be held liable and that ‘the intent element is in place if the person knew with certainty that the act carries a risk of injury’.

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Winfield P.h, Law of Tort (4th, , London 1948) 42-44 46 Wash. 2d 197, 279 P.2d 1091

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Intentional tort includes: Battery: When physically applying some force to another person’s body in an offensive manner that causes some harm is called battery. Assault: When one person’s act creates an apprehension in another person’s mind that such act is likely or intended to cause such harm. The difference between battery and assault is, in battery, physical contact is mandatory while in assault, physical contact is not mandatory as the purpose is to threaten not to harm. False Imprisonment: It is the person’s unlawful confinement without his will. It is not necessary to place a person behind bars, a mere impossibility of escape from a certain area against the person’s will is sufficient to constitute false imprisonment wrong. It includes the use of physical force (actual expression of force is not always required), a physical barrier such as a locked room, invalid use of legal authority. False arrest is the part of false imprisonment that includes police detention of the person without legal authority. Malicious prosecution falls under the category of false imprisonment. Trespass: It is the intentional, unreasonable invasion of property, land, person or goods. The unreasonable interference can harass or harm the other person, however slight it may be. The owner of the property’s legal right is infringed because the misappropriation or exploitation of his right deprives him of his right to enjoy the benefit of the property. Unintentional Tort includes: The defendant causes injury to the plaintiff in the case of unintentional torture, but without any mala fide11 intention. It could be called an unexpected accident. This was inadvertently done by the person who caused the injury because he/she was not being careful. Such an individual may be described as negligent or reckless. In the case of unintentional tort, it may be noted that the injury is caused by the omission of the “duty of care” that a reasonable and prudent man should have considered. In the case of Wilkinson v. Downton12, the defendant joked that her husband had encountered an accident and had been admitted to a hospital. She was shocked by this news and fell seriously ill. She subsequently sued the defendant for damages under tort. The defendant claimed he

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In bad faith (1897) 2 QB 57

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never wanted to harm the plaintiff, but only cut a joke. The court dismissed his claim, holding him liable. Here, the court observed that mere intention was not an essential factor in tort. The defendant was aware of the natural and probable consequences of his act which caused the plaintiff to suffer damage. He was therefore liable, whether he intended to do so or not. Under both criminal and tort prosecution, a defendant who may prove to the court’s satisfaction that he or she was unaware of the nature or consequences of his or her actions at the time of the offense may be exempt from charges, thus failing to account for intent. 3.1. INTENTION & MOTIVE: While intention determines whether the accused committed the crime purposely or accidentally, motive answers the question, why the accused committed the crime. Simply put, motive impels intention, so, the latter arises out of the former. In every criminal case, the intention of the defendant is foremost, because, the guilt or innocence can only be proved with it. On the other hand, motive does not play a significant role in determining the guilt or innocence. The motive has been described as “the ulterior intent.” These two words are often used in popular and even legal usage interchangeably. The ultimate object with which an act is done is the motive, whereas the intention is the immediate purpose. For example, A, steals a bunch of bananas from B’s general shop. A is liable for theft as well as for illegal trespass, though A’s motive was to feed his starving wife, not to cause loss to B. 3.2. MALICE: ‘Malice’ in legal sense means an intention to cause injury to another party. The tort of malicious prosecution implies initiation of unsuccessful legal proceedings against a party, without reasonable and probable cause. An act or statement becomes malicious if it is used for a purpose other than that which is sanctioned by the authority of law. There is emphasize put on the fact that a wrongful act does not become lawful merely because the motive is good. Similarly, a lawful act doesn’t become wrongful because of an improper, bad or evil motive or malice.13

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Bradford Corporation vs Pickles, [1895] AC 587

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In the case of Town Area Committee vs Prabhu Dayal14, plaintiff had made construction of 16 shops on the old foundations of the building and the defendants , Town Area Committee illegally demolished these very constructions. But, according to him, under Section 186 of the U.P Municipal Act15 was bad as it gave the plaintiff a span of only two hours to demolish the constructions and that was considered as not a reasonable amount of time as contemplated in Section 302 of the Act. It was also asserted that demolition, after this notice was bad as the notice was served at a time when the plaintiff was out of station. This action was said to be mala fide16. Here, it was held that the plaintiff can get compensation only if he proves to have suffered injury because of an illegal act of the defendant and not otherwise. Malice isn’t related in no sense. A legal act, though, motivated by malice, will not make the actor liable to pay damages. Mere malice cannot disentitle a person from taking recourse to law for getting the wrong undone. 3.3. EXCEPTIONS TO MALICE: In the following cases, malice becomes relevant in determining tortious liability: 1. When the act is otherwise unlawful and wrongful intention can be gathered from the circumstances of the case17. 2. Malice on the part of the defendant to be proved in torts of deceit and malicious prosecution. 3. The presence of malice in cases of defamation and mala fide the defendant cannot avoid liability by the defence cannot avoid liability by the defence of qualified privilege in such a case. 4. Causing personal discomfort by public nuisance. 5. Malice which results in aggravation of damages. Lack of a reasonable or probable cause or ‘intentional wrongdoing without a just cause or excuse’ is known as ‘malice in law’. ‘Improper or evil motive’ is popularly termed as ‘malice in fact’. It is, as discussed, not necessary to investigate whether the action is motivated by malice or not.

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AIR 1975 AII 132 Power of Municipality to stop erection 2nd to demolish building erected 16 In bad faith 17 Balak Glass Emporium vs United India Insurance co. Ltd, AIR 1993 Ker 342 15

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CHAPTER- IV NEGLIGENCE & RECKLESSNESS: Negligence is the breach of a legal duty to take care which results in damage, undesired by the defendant to the plaintiff – Winfield & Jolowicz Negligence signifies total or partial inadvertence on the part of the defendant towards his conduct and its consequence. In many cases, there may be advertence, but it is necessary there must be lack of desire to produce the consequences complained of. It is on the basis that negligence may be distinguished from intention. The law of negligence requires individuals to conduct themselves in a way that conforms to certain standards of conduct. If a person doesn't conform to that standard, the person can be held liable for the harm he or she causes to another person or property. Sometimes the standard of conduct requires a person to act, so it's possible for the omission of an act to give rise to a negligence claim. In order to prove that a defendant was negligent, a plaintiff must prove the elements of negligence. The elements of negligence are duty, breach, causation, and damages. Although this seems fairly straightforward, proving these elements involves a lot of legal knowledge and analysis.18 It should be noted here that the expression 'negligent' may not always apply specifically to the tort of negligence; it has a different meaning in other contexts, of failure by a person to comply with a strict duty laid upon him by law whereby the person in question had his mind wholly or partly diverted from what he was doing. This applies to certain torts where a person has done something potentially harmful and is required to take responsibility for his actions even though he may have acted unintentionally, and the consequences of his conduct were unforeseeable. Recklessness differs from negligence - which consists mainly of carelessness or incompetence - in that recklessness requires the conscious choice to take a particular course of action. Also, recklessness requires a further degree of risk on the part of the actor than negligence does. Under recklessness, the actor intends to commit the act but does not actually intend to cause harm to others. Instead, he may wish that the harm does not happen,

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https://injury.findlaw.com/accident-injury-law/negligence.html

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but he has a strong reason to believe that it might.19 The legal difference between an act of negligence and an act of recklessness is one of intention. If someone knowingly endangers another person’s health and safety, often also breaking a law in the process, they may be sued for recklessly causing an injury. In cases involving reckless conduct, the injured party involved may be able to collect punitive fines in addition to other forms of compensation if their claim is successful. Negligence, on the other hand, is failing to safely conduct oneself or provide a safe environment for others, but not necessarily intentionall...