General Conditions Of Liability In Torts Including Mental Element

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 fide 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. In this chapter, we shall deliberate upon this question. The author has discussed concepts of intention, motive, malice, negligence, recklessness and fault to understand the essentiality of mental element in the law of tort.

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Hence, on the basis of intention, tort can be divided into two broad categories namely:

a) Intentional Tort

b) Unintentional Tort


 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 distress14. 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 case of an unintentional 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”16 which a reasonable and prudent man ought to have considered.


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 injury, the motive, however reprehensible it may be, will not supply that element.”


The decisions of Lord Halsbury and Lord Watson in Bradford Corporation v. Pickle and Allen v. Flood may be treated as one of the earliest decisions that settled that motive is irrelevant in tort.

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1. Bradford Corporation v Pickles [1895] AC 587


The plaintiffs owned land beneath which were water springs that were used for more than 40 years to supply Bradford town with water. The defendant owned land on a higher level than the plaintiffs. Under the defendant’s land was a natural reservoir and water flowed from this reservoir down to the plaintiff’s springs. However, the defendant sank a shaft into his land in order to alter the flow of the water. This seriously reduced the amount of water that flowed into the plaintiff’s springs. There was ample evidence to suggest that the defendant followed this course of action, not in order to provide any direct benefit to himself, but simply so as to deprive the plaintiffs of water. The plaintiffs insisted that this was malicious and hence that they were entitled to an injunction to prevent the defendant acting in this manner.


Lord Halsbury L.C : This is not a case in which the state of mind of the person doing 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 do it. Motives and intentions in such a question as is now before your Lordships seem to me to be absolutely irrelevant.

LORD WATSON: No use of property, which would be legal if due to a proper motive, can become illegal because it is prompted by a motive which is improper or even malicious. 

2. Allen v Flood [1898] AC 1


Flood and Walter was a shipwright employed on a ship, liable to be discharged at any time. Fellow workers objected to their employment as they had worked for a rival employer. Allen was a trade union representative for the other employees on the ship and approached the employers, telling them that if they did not discharge Flood and Walter, the other employees would strike. The employers consequently discharged Flood and Walter and refused to employ them again, where they otherwise would. Flood and Walter brought action for maliciously inducing a breach of contract.. 


The decision was reversed, finding that Allen had not violated any legal rights of Flood and Walter. There was no legal right for them to be employed by employer and Allen had not carried out an unlawful act and had not used any unlawful means, in procuring the employee’s dismissal. Allen was found to have made a representation to the employers of what would happen if they continued to employee Flood and Walter. He relied the events of what he believed would happen and the employers believed him. This was not considered to be an obstruction or disturbance of any right: it was not the procurement of the violation of any right. Allen’s conduct was not actionable, however malicious or bad his motive might be.

The courts in India have also spoken about the non-relevance of motive as well as malice in tort. In Vishnu Basudeo v. T.H.S Pearse [AIR 1949 NAG 364] and Town Area Committee v. Prabhu Dayal [AIR 1975 All 132], courts have held that it is to be seen if the act is lawful, then motive with which it was done is of little significance. 

Exceptions to Rule:

There are certain categories of tort where the motive may be an essential element and thus relevant to the determination of liability:

  1. In the case of deceit, malicious prosecution, injurious falsehood and defamation, where the defense of fair comment or privilege is available. The defense of qualified privilege shall be accessible only if it has been published in good faith. 
  2. In case of conspiracy, interference with the trade or contractual relations.
  3. In cases of nuisance, causing personal discomfort by an unlawful motive may turn an otherwise lawful act into nuisance (held in the case of Palmer v. Loder (1962) CLY 2333). 


Unlike criminal law, where mens rea or guilty mind is an important factor to determine a crime, in a tort the state of mind of a person is not so important, and in fact irrelevant, except in certain cases (because unlike criminal law, the focus in the law of torts is not on punishing the wrongdoer, but vindicating the rights of the injured person).

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The term ‘malice’ has been used in two different senses:

  1. Malice in law,
  2. Malice in fact.

1. Malice in Law

In its legal sense, the term ‘malice’ means “a wrongful act done intentionally without just cause or excuse.” In Shearer v Shields (1914) A.C. 808, it was observed that a person who inflicted 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.

Thus, a wrongful intention is presumed in case of an unlawful act done without just cause or excuse or for want of reasonable or probable cause (Smt. S. R. Venkataraman v Union of India AIR 1979 SC 49).

2. Malice in Fact

In its narrow and popular sense, the term ‘malice’ means an evil or improper motive. It is the malice in fact or ‘actual malice’. When a defendant does a wrongful act with a feeling or spite, vengeance or ill will the act was said to be done ‘maliciously’.

Motive means an ulterior reason for the conduct e.g. motive for theft may be to buy food for his children or to help a poor man.

As a general rule, malice in the sense of improper motive is entirely irrelevant in the law of torts. The law in general asks merely what the defendant has done, not why he did it. The case of Bradford Corporation v Pickles (1895) A.C. 587, explains that a lawful act does not become unlawful merely because of an evil motive.

In this case, the defendant was held not liable for intentionally intercepting, by means of excavations on his own land, the underground water that would otherwise have flowed into the adjoining reservoir of the plaintiffs, although his sole motive in doing so was to force the plaintiffs to buy his land at his own price. The court observed that it is the act, not the motive for the act that must be regarded.

Similarly, in Town Area Committee v Prabhu Dayal (AIR 1975 All 132), the defendants (municipal authorities) had demolished the illegally constructed building of the plaintiff; the municipal commissioner was alleged to be an enemy of the plaintiff. Held that the plaintiff has suffered no ‘injuria’ (violation of a legal right).

Torts where Malice is Relevant

  1. Malicious prosecution, nuisance, conspiracy, deceit and injurious falsehood.
  2. In certain cases of defamation, the defence of qualified privilege is available if the publication was made in good faith. The presence of malice negatives good faith.
  3. Malice may result in increase of damages for an otherwise ordinarily libel, assault or trespass.

The recent trend is not only in making malice irrelevant, but also under certain circumstances liability arises even without any negligence on the part of the defendant.




3. .R.K. Bangia Law of Torts, 26th Edition 2021 by Allahabad Law Agency

4. M.N. Shukla The Law of Torts 18th Edition Central Law Agency

5. THE LAW OF TORTS by Dhirajlal & Ratanlal 28th Edition LexisNexis Publication



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