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Torts & Mental Elements (Law of Torts) –

Torts & Mental Elements

Tortious liability

In doing any wrongful act, generally following  mental elements of human mind are examined

  1. Motive
  2. Intention
  3. Malice
  4. Fault & Strict Liability
  1. Motive –  Motive is that state of mind which inspires the person to do an act. Generally it means the purpose behind the commission of an act. A wrongful act is always the result of an inspiration to do an act.

Generally motive is not relevant (means motive is irrelevant) to decide any act whether it is tort or not in law of tort. No any act is called illegal because of done only with bad motive. If the act done was legal, it would remain legal. Motive leads to intention formation, which is the ultimate cause. Motive is the ultimate object with which an act is done, while the immediate purpose is the intention. 

We can divide the rule related to motive in two parts.

1. The defendant is liable if the act is illegal, even if he did such an act with a good intention.

2. If the act is lawful, then the act will not be illegal because it is done with a bad intention.

Allen v. Flood,[i]

 It is to be noted that motive is not an essential element in tort but it is an important element in crime. If an act is lawful then it will not become illegal because it has not been done with bad motive. Similarly, if an act is illegal then it will not be lawful merely because it has been done with good motive. It is the act not the motive for the act, which is regarded as essential.

Exception to the rule of motive

There are some exceptional cases where motive is relevant as an ingredient of torts and therefore relevant in tortious liability.

In the cases of

Necessity,

Private defence,

Malicious prosecution,

Nuisance,

Conspiracy,

Injurious falsehood,

Defamation.

  • Intention

Intent is a prescriptive element in achieving an objective. Where does an action become intentional only when it has been in the form of a thought before it comes as a fact. The intention is the immediate purpose. According to Samand, the goal with which any work is done keeping in mind is called intention. In this lies the foreknowledge of the injurious result and the desire to obtain it by action.

 In other words, the act done by the desire to achieve the goal and the act done after being inspired by his prior knowledge is called intentional act.

Wilkinson v. Downstone,[ii]

Intention is irrelevant in law of tort. If a person is injured by the act of the defendant then he will be liable, even though his intention might not be to cause injury to that person. In law of torts the liability is determined on the ground that every person knows the natural consequences of his act.

Difference between motive and intention

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 loaf of bread from B’s bakery shop. A is liable for theft as well as for illegal trespass, though A’s motive was to feed his starving child, not to cause loss to B.

3.Malice-

In bromage v. Poser,[iii]

Bayley  J. defined the term “malice” as under:

“Malice” in common parlance means ill will against a person, but in its legal sense it means a wrongful act done intentionally  without any just cause or excuse.”

It has been used in law having two different meaning:

  1. Intentional doing of a wrongful act and
  2.  Act done with improper motive.

The malicious act, sometimes means to do the act intentionally with knowledge that it is wrongful act,

while at another time it meant to do with some improper and wrong motive.             

Malice- Kinds of Malice

Malice is of two kinds :-

1.Malice in fact ( Actual Malice) / Express malice

2.Malice in law ( Legal Maliice) / implied malice

1. Malice  in fact.-

It means improper (evil) motive. It is not relevant in tort but in the sense of motive it is relevant.

In the following cases the malice in fact may become relevant in determining the liability in the law of torts:-

1. Malicious Prosecution

2. Injuries Falsehood

3. Defamation excluding exception

4. Malicious Conspiracy

5. Nuisance

Case Laws –Mayer of Bradford Corporation v. Pickles[iv]

 lawful act does not become unlawful merely because of an evil motive. In this case, the defendant made certain excavations over his own land as a result of which the water, which was flowing in unknown  and undefined channels from his land to the adjoining land of the corporation was discoloured and diminished. it was done by the defendant with a motive to coerce the plaintiffs to purchase the defendant’s land at a high price. In this case, the damage was caused maliciously,  but at the same time, the defendant was making a lawful use of his own land.  it was held by the house of Lords that the defendant was not liable. In such a case,  motives are immaterial. it is the act, not the motive for the act, that must be regarded. 

Allen v. Flood[v]  lawful act does not become unlawful merely because of an evil motive. In this case, the defendant made certain excavations over his own land as a result of which the water, which was flowing in unknown  and undefined channels from his land to the adjoining land of the corporation was discoloured and diminished. it was done by the defendant with a motive to coerce the plaintiffs to purchase the defendant’s land at a high price. In this case, the damage was caused maliciously,  but at the same time, the defendant was making a lawful use of his own land.  it was held by the house of Lords that the defendant was not liable. In such a case,  motives are immaterial. it is the act, not the motive for the act, that must be regarded. 

Malice in law  means a wilful act done without just cause or excuse.

Shesrel v. Shields[vi]Viscount Haldane described malice in law “ A person who inflicts an injury upon another person in contravention of the law is not allowed  to say that he did so with an innocent mind, he is taken to know the law, and he must act within the law. He may, therefore be guilty of malice in law although so far that state of his mind is concerned, he acts ignorantly and in that sense innocently.”

4.Fault and strict liability

Under the strict liability rule,  In tort law, strict liability is the imposition of liability on a party without fault (such as negligence or tortious intent). The plaintiff need only prove that the tort took place and that the defendant was liable. The law places strict liability on situations it considers dangerous.  the law makes people pay compensation for damages even if they are not at fault.

In other words, people have to pay compensation to victims even if they took all the necessary precautions. 

Rylands v fletcher laid down the rule of strict liability. Under that rule, if a person makes non- natural use of his land by collecting there something which is likely to do michief by escape, he will be liable if the thing so collected escape and causes damages to others.

In such a case, it would be no defence to say that defendant was not negligent in collecting the thing or for its escape. Liability is also strict when a person knowing the dangerous nature of an animal keeps the same.

M. C. Mehta v. Union of India, AIR 1987 SC 1086 Similarly, in the case of hazardous and inherently dangerous industry, the principle of absolute liability  has been recognized.


[i] (1898) AC 1.

[ii] (1897) 2 Q.B. 57 

[iii] (1825) 4 B &C  247

[iv] (1895) A. C. 587

[v] (1942) A. C. 435

[vi] (1914) A.C. 808, at 813.

Torts & Mental Elements

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