Mental Elements in Tort. The word “Tort” is of French origin which has been further derived from the Latin word “Tortum” meaning “to twist” and implies conduct which is tortious or twisted.
A paradigm tort is constituted due to the occurrence of a “wrongful act or omission” by any person. JHere the term “Act” must be accorded the widest possible interpretation. Hence, it must include both positive as well as negative acts i.e. acts and omissions. It should be noted that the act but be done “intentionally, deliberately, or emphatically” to cause “legal damages to the other party.
Consequently, a “legal” remedy must be awarded to the injured party which is usually in the form of “unliquidated” damage.
A tortious liability may arise if a person causes any injury related to the victim’s life, property, reputation, etc. This liability is civil in nature. In law of tort, the liability can be incurred regardless of whether the injury was inflicted intentionally or by accident.
Unlike tort, the presence of mens rea is pertinent in criminal law. However, in law of tort, its existence is dependent upon the circumstances and facts of each case. It may or may not be essential to prove a mala fidel intent to fix liability upon the tort feasor. The important question which arises is that how far mental element is an essential element in determining the tortious liability.
Tort can be divided into two broad categories namely:
- Intentional Tort
- Unintentional Tort
- Intention and negligence
It is a type of tort that can result only from the intentional act of the wrong-doer. Common intentional torts are battery, assault, false imprisonment, trespass to land, trespass to chattels, and intentional infliction of emotional distress.
Knowledge along with reasonable and substantial certainty, that an act of the defendant shall produce a tortious result, is sufficient to hold him liable.
In the majority of tort it must be shown that the defendant’s invasion of the plaintiff’s rights was either intentional or negligent. An act is intentional when it is done with full advertence to its consequences and a desire to produce them. It is of course impossible to prove what went on in the defendants mind, for “the Devil himself knoweth not the thought of man”.
However, the court may presume the defendants intention by looking at what he said or did and at all the surrounding circumstances. Further, it is a well known principle of law that “a party must be considered to intend that which he does’’
Thus, for example, if A fires a shot at B’s cat intending to frighten it, and the bullet in fact kills the cat, A cannot escape liability by pleading that he only intended to frighten the animal for it must be presumed that the natural consequences of shooting at the dog will be to kill it.
Negligence differs from intention in that intention denotes a desire for the consequences of the act, whereas if the defendant is negligent he does not desire the consequences of his act but is indifferent or careless as to the consequences.
Negligence in the law of tort is used in two different senses:
- To mean the independent tort of negligence, and:
- To mean a mode of committing certain other torts-such as trespass or nuisance. It is in the second sense that negligence must be distinguished from intention, and it is in the second sense that it amounts to carelessness. Negligence in the first sense has a more limited and technical meaning.
Unintentional Tort – Mental Elements in Tort
In the case of untentional tort, the defendant causes injury to the plaintiff, but without any mala fide intention. It may be called an unintended accident. The person who caused the injury did so inadvertently because he/she was not being careful. Such a person may be termed as negligent or reckless. In the event of an unintentional tort, we may notice that the injury is caused due to the omission of the “duty of care” which a reasonable and prudent man ought to have considered or foreseen.
In such circumstances also there is no need for intention in tort. For example: if a nurse deliberately allows a child to get into a position of danger and receives injuries, she will be held liable. Here it is not the intentional omission which is the basis of liability, but it is the breach of her duty to look after and take care of the child.
We know that intention by itself is not a good defence in tort. It is clearly impossible to know what is going on in the mind of the defendant.
Justice Brian has aptly described the above argument in the following words: “It is common knowledge that the thought of man shall not be tried, for the devil himself knoweth not the thought of man.
Motive – Mental Elements in Tort
Motive is trhe state of mind of a person which inspires him to do an act. Generally, it means the purpose behind the commission of an act. Motive, just like intention, is generally irrelevant in the law of tort.
According to Salmond,
“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 supply that element.”
The decision of Lord Watson in Allen V. Flood, settled that Motive is irrelevant in the law of torts:
“Although the rule may otherwise with regard to crime, the law of England does not take into account motive as a constituting an element of civil wrong. any invasion of the civil right of another person is itself a legal wrong, carrying it with the liability to repair its necessary or natural consequences in so far as those are injurious to the person whose right is infringed, whether the motive which promoted it to be good, bad or indifferent.”
The Court in India have also pronounced on the irrelevancy of motive as well as malice in a number of cases. In Vishnu Basudeo V. T.L.H. Smith Pearse, Mudholkar, J. Observed,
“The leading case of Allen V. Flood, lay down that as a general rule, a bad motive is an essential condition of liability for a civil wrong except in cases like malicious prosecution, defamation and conspiracy. What has ordinarily to be seen is the unlawful 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 i agree with this view.”
Finally, we could say that a good motive is no justification for acts otherwise illegal and a bad motive does not make wrongful act otherwise legal.
Exceptions to the Rule – Mental Elements in Tort
There are certain categories of tort where motive may be an essential element, and therefore relevant in determining liability:
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.
In cases of conspiracy, interference with trade or contractual relations.
In cases of nuisance, causing of personal discomfort by unlawful motive may turn an otherwise lawful act into nuisance (held in the case of Palmer V. Loder, (1962) CLY 2333)