A PAPER ON

RELEVANCY OF INTENTION AND MALICE IN LAW OF TORTS.

SUBMITTED FOR THE PURPOSE OF INTERNAL EVALUATION

LAW OF TORTS
FIRST SEMESTER

LLB(Hons.) IN INTELLECTUAL PROPERTY LAW

RGSOIPL - IIT KHARAGPUR

Submitted by

ADITHYA B
Student ID: 19IP63003
 Relevancy of intention and malice in Law of Torts.

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

It is very important to understand the meaning of tortuous liability or rather the nature
of tort law in order to understand its purpose. The expression tort is of French origin. It is
derived from Latin word ‘tortum,’ which means twisted or crooked act that is deviation from
straight or right conduct. It is equivalent to English word wrong. Liability arises when a
person commits a tort; thereby another person suffers damage or injury.

So a tort came, in law to define particular class of wrongs for which an action in tort
was recognized by the courts of common law as remedy and to lose the generic sense of
wrong which it may have helped in accepted use.

An intentional tort is any deliberate attack of, or interference with, the property,
property rights, personal rights, or personal liberties of another that causes injuries without
just cause or excuse. In tort an individual is considered to intend the consequences of an act
whether or not she or he actually intends those consequences—if the individual is
substantially certain that those consequences will result.

Keywords
Liability, Law, Tort, Fixation, Expression, Tortum, Intention, Malice, Mental element

What is a Tort?

A tort, in common law jurisdictions, is a civil wrong that causes a claimant to suffer
loss or harm, resulting in legal liability for the person who commits the tortious act. It can
include the intentional infliction of emotional distress, negligence, financial losses, injuries,
invasion of privacy and many other things.1

1
Glanville Williams, Learning the Law. Eleventh Edition. Stevens. 1982. p. 9.
 The expression tort is of French origin. It is derived from Latin word ‘tortum’, which
means twisted or crooked act that is deviation from straight or right conduct. It is equivalent
to English word wrong. Liability arises when a person commits a tort; thereby another person
suffers damage or injury.

Mental element in Tort Law

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 supplement that element” 2

Mental element is an essential element in most of the forms of crime. Generally,

under criminal law, mere act of a person is not enough to create his liability. This
fundamental principle of criminal law is contained in the maxim actus non facit reum mens
sit rea, i.e., the act itself creates no guilty mind. A man, therefore, is not ordinarily punishable
for something which he never meant, or the consequences of which he could not foresee. It is
not so easy to make any such generalization about liability in tort. 3

This is because of the following reasons:

(1) In most cases liability is based upon fault but on very few occasions an intention
to injure is required. More often just negligence is sufficient.

(2) In certain cases, mere negligence or even intention is not enough rather actual
malice i.e., malice in fact is required.

(3) There are certain exceptional situations in which the duty is

strict/absolute/statutory, and the question of intention/negligence/malice is irrelevant
in those cases.

2
The Law of Tort, Salmond and Heuston, 2 Edn, R.F.V. Heuston and R.A. Buckley, Sweet and Maxwell,
Universal Law Publishing Co.
3
Mayank Madhaw, Law of Torts. Sixth Edition. Singhal’s. p.53.
Intention

Intent is a psychological attitude with which a person acts, and therefore it cannot
ordinarily be directly proved but must be inferred from surrounding facts and circumstances.
Intent refers only to the state of mind with which the act is done or omitted. 4 It differs from
motive, which is what prompts a person to act or to fail to act. Motive has been described as a
concealed intent.5

The word intention is used in the logic of a plan to produce the damage complained
of. It implies an precursor or knowledge of injurious consequence, and a went to produce it.
When a person commits a tort with a mental condition of this kind, his liability is clear and
does not need any discussion.6

Position of Intention in Tort

Intention as a rule is not an essential condition of tort in most of the cases. In a

large number of cases of torts, absence of intention is not a permissible defence. 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 and probable consequences of his act. However, in some
torts, such as assault, deceit, defamation, malicious prosecution, conspiracy and
interference with trade or contractual relations, intention is one of the essential
requirements.7

An intentional tort is any deliberate attack of, or interference with, the property,
property rights, personal rights, or personal liberties of another that causes injuries without
just cause or excuse. In tort an individual is considered to intend the consequences of an act
—whether or not she or he actually intends those consequences—if the individual is
substantially certain that those consequences will result.

In Guille v. Swan (1882) (Balloon Case), the defendant flew in a balloon but
unfortunately had to embark in the garden of the plaintiff. A huge crowd entered the garden

4
https://definitions.uslegal.com/i/intent/
5
Salmon Jurisprudence, p.397
6
Ramaswami Iyer, The Law of Torts. p.669
7
Mayank Madhaw, Law of Torts. Sixth Edition. Singhal’s. p.56
to witness him as a result of which his garden was damaged. The plaintiff sued the defendant
for damages. The defendant pleaded that he never intended to harm the plaintiff in such a
manner but it happened accidentally. But the Court held that defendant was liable because
loss to the plaintiff's garden was the natural consequence of defendant's act as crowd would
naturally wish to see the person flying in the balloon. The defendant could foresee the
consequence of his act, and it was sufficient that plaintiff had suffered loss.8

Negligence represents a mental attitude, "the mental attitude of undue indifference

with respect to one's conduct and its consequence." As an illustration of full advertence,
reference may be made to the case of Vaughan V. Menlove, (1837). In this case the plaintiff
had warned the defendant and his haystack was likely to spread to the land of his neighbour
(plaintiff). Despite this warning he took no care (for he was insured). The haystack did catch
fire on overheating causing damage to the neighbour. The defendant he was held liable.9

There has been much less discussion of intention in law of tort and there are probably
two reasons for this (apart from the relative uncommonness of cases on intentional torts).
First, since the abolition of the forms of action the plaintiff may sometimes be able to fall
back upon a wider principle of liability for negligence. Secondly while the criminal intention
law may insist that the defendant’s intention must extend to all the elements and
consequences of his act making up the definition of the crime.

The law of tort may separate the initial interference with the victim from the
consequences of the interference and while intention or foresight may be necessary as to the
former it may not as to the latter.10

Motive means the reason behind the act or conduct or an object to be achieved in
doing in an act. Whereas means evil motive or bad motive or ill will. Salmond describes
motive as the ‘Ulterior intent’. Generally, motive is irrelevant in tort. A person cannot be
liable in tort on the ground of evil motive (bad motive) if the act itself is not unlawful.

Evil motive or malice on the part of defendant is one of the essential elements to be
proved by plaintiff in respect of torts viz deceit conspiracy, malicious prosecution and
injurious falsehood. Similarly, good motive becomes relevant to get exemption from liability

8
Guille v. Swan. 19 Johns. 381; 1822
9
Vaughan v Menlove (1837) 132 ER 490 (CP)
10
An Introduction to the Comparative Study of Private Law by James Gordely and Arthur Taylor
in tort. In cases of qualified privilege and fair comment as defence, the defendant can plead
exemption in tortuous liability on the ground of good motive.

MALICE

The word ‘Malice’ means ill-will or evil motive or bad motive. It also means to do an
act wilfully with any excuse or just cause. Malice means and implies an intention to do an act
which is wrongful to the detriment of another. It is a term derived from the Latin word
malitia. It is a formed design of doing mischief to another technically called malice presence
or aforethought. In common acceptance malice means ill-will against a person, but in its legal
sense it means a wrongful act done intentionally without just cause or excuse. So long as a
person believes in the truth of what he says and is not reckless, malice cannot be inferred
from the fact that his belief is unreasonable, prejudiced or unfair.11

Baylay J. in Bromage vs. Prosser 12 defined Malice as “Malice in common acceptation

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

The term 'malice' has been used in two different senses:

(i) In its legal sense, it means a wilful act done without just cause or excuse and it
is known as 'malice in law'
(ii) In its narrow and popular sense, it means an evil motive, and the same is
known as 'malice in fact’

Malice in Law

Malice in law means an act done wrongfully, and without reasonable and probable
cause, and not, as in common parlance, an act dictated by angry feeling, or vindictive
motive13, In Stockley v. Hornidge, (1837). 'Malice in law’ is 'implied malice' when from the
circumstances of the case, the law will infer malice. Malice in law, simply means a
wrongful intention which is presumed in case of an unlawful act, rather than a bad

11
Mayank Madhaw, Law of Torts. Sixth Edition. Singhal’s. p.57-58
12
[1825] EngR 42, (1825) 4 B and C 247, (1825) 107 ER 1051

13
Mayank Madhaw, Law of Torts. Sixth Edition. Singhal’s. p.57
motive or feeling of ill-will. For example, in an action for defamation, it may be mentioned
that the alleged statement was published falsely and 'maliciously'. Here, it simply means that
the statement is false and is also made without lawful excuse. As regards malice in exercise
of statutory power, as held in Des Raj Bansal v. State of Haryana, AIR 1989 P&H 240,
"malice in law may be deemed to exist when an order is made contrary to the object and
purpose of the statute under which the order is made.”14

In Shearer v. Shields (1914) AC 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. He may,
therefore, be guilty of malice in law, although, so far the state of mind is concerned he acts
ignorantly and in that sense innocently. Thus, malice in law does not mean a bad motive or
feeling of ill-will, it is not an act dictated by angry feeling or vindictive motive, as understood
in common parlance.15

In Quinn v. Leathem (1901) AC 495, A, without just cause or excuse induced B's
workmen to discontinue their work in breach of their contract with B. A did this prompted by
good motive to do good to both, B and B’s workmen. It was held that nonetheless A was
liable, in as much as the procurement of breach of contract without just cause was a tort and,
therefore actionable.16

Malice in fact

Malice in the second and popular sense, i.e., improper motive is sometimes known as
"express malice", "actual malice" or "malice in fact”. When the defendant does a wrongful
act with a feeling of spite, vengeance or ill-will, the act is said to be done ‘maliciously’.
Motive means an ulterior reason for the conduct. It is different from intention, which relates
to the wrongful act itself. The immediate intention of a person may be to commit theft, the
motive for the theft may be to buy food for his children or to help a poor man.17

In Smt. S.R. Venkataraman v. UOI, AIR 1979 SC 49, the Supreme Court held that
"a wrongful act is not converted into a lawful act by a good motive” Because as a general

14
Des Raj Bansal v. State of Haryana, AIR 1989 P&H 240
15
Shearer v. Shields (1914) AC 808
16
Quinn v. Leathem [(1901) AC 495]
17
Mayank Madhaw, Law of Torts. Sixth Edition. Singhal’s. p.58-59
rule, the motive of a person is not relevant to determine his liability in Law of Torts. A
wrongful act does not become lawful merely because the motive is good. Similarly, a lawful
act does not become wrongful because of a bad motive or malice in fact.18

The case of South Wales Miners' Federation v. Glamorgan Coal Company,

(1905) AC 239, explains that a wrongful act is not converted into a lawful act by a good
motive. In this case, the plaintiffs, the owners of coalmines, brought an action against the
defendants, a miner’s union, for inducing its workmen to make the breach of contract of their
employment by ordering them to take certain holidays. The act of the defendants was not
actuated by any ill-will but the object was to keep up the price of coal by which the wages
were regulated. The House of Lords held that the defendants were liable.19

The case of Bradford Corporation v. Pickels, (1895) AC 587, explains that a 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 the 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. Lord Macnaughen
said, "In such a case motives are immaterial. It is the act, not the motive for the act, that must
be regarded. If the act apart from the motive gives rise merely to damage without legal injury,
the motive, however reprehensible it may be, will not supply that element."20

Special/Exceptional cases where malice is relevant

(a) Wrong of defamation on a privileged occasion (privilege closes when evil motive
is shown).

(b) Malicious prosecution.

(c) Injurious flasehood, slander of goods etc.

(d) Nuisance

18
Venkataraman v. UOI, AIR 1979 SC 49
19
South Wales Miners' Federation v. Glamorgan Coal Company, (1905) AC 239
20
Bradford Corporation v. Pickels, (1895) AC 587
 (e) Conspiracy

(f) Unlawful interference with another's lawful activities

(g) Evil motive may aggravate damages.

In M/s Balak Glass Emporium v. United India Insurance Co. Ltd., AIR 1993 Ker
342, the plaintiff (occupying the ground floor of the building and dealing in mirrors, plywood
etc.), suffered loss due to water escaping from shop on upper floor of building (occupied by
one Joseph running photo studio in the name and style: 'Durbar Photo Studio'). The evidence
showed that not only tap was left open but even outlet of tank which stored water was
kept closed. The Kerala High Court held: "It is proved that the tap was fully opened and the
drain was closed. When that is taken in the background of evidence and the plea in the plaint
that there was enmity between the plaintiff and Joseph, the inference irresistible is that it
was an intentional act of Joseph, which resulted in the loss suffered due to malicious acts of
Joseph and the claim falls within the purview of malicious damages. Under the insurance
policy, plaintiff is entitled to recover from the Insurance Company.21

In Christive v. Davey, (1893), the defendant lived in a house next to the plaintiff, a
music teacher. Being annoyed with plaintiff’s piano lessons, he started producing loud noises
to disturb the music teacher and to make his life intolerable. On the suit, the Court granted an
injunction. But it has been aptly remarked: These entitled to succeed whenever a defendant
maliciously interferes with an existing amenity of his. For as far as water rights are concerned
at any rate, there is no authority to the effect that abstraction of water, even in the plaintiff
and (a present amenity) is still not actionable (though the particular case does not deal
specifically with malicious abstraction). These unsatisfactory distinctions are the result of the
casuistic approach of the common law as well as the absence of a general and coherent theory
of abuse of rights."22

Distinction between malice in fact, and malice in law (implied malice)23

(a) Express malice in fact is an act done with ill-will towards an individual; malice in
law means an act done wrongfully and without reasonable and probable cause, and

21
M/s Balak Glass Emporium v. United India Insurance Co. Ltd., AIR 1993 Ker 342
22
Christive v. Davey, (1893)
23
Mayank Madhaw, Law of Torts. Sixth Edition. Singhal’s. p.62
 not, as in common parlance, an act dictated by angry feeling or vindictive motive. In
order to constitute legal malice, the act done must be wrongful.

(b) Malice in fact, depends, upon motive; malice in law depends upon knowledge

(c) Malice in fact, means will or any improper motive against a person but in its legal
sense, that is, malice in law means the concurrence of the mind with a wrongful act
done without just cause or excuse.

ROLE OF INTENTION IN FIXING LIABILITY

It is common knowledge that the thought of man shall not be tried, for the devil
himself knoweth not the thought of the man.24

Intent requires "that the actor desires to cause consequences of his act, or that he
believes that the consequences are substantially certain to result from it." Intention in tort law
is not necessarily a hostile intent, or a desire to do any harm. Rather it is an intent to bring
about a result which will invade the interests of another in a way that the law will not
sanction.25

Conclusion

By “mental elements”, we mean a person’s ‘intention’ to harm another person by

infringing his or her legal rights. Intention means a state of mind where the wrongdoer is
fully aware of his actions and their consequences. In addition, he has a desire to achieve these
consequences. In criminal law, an essential ingredient of crime is the mental element. Here
the mere act of the wrongdoer is not enough to hold him liable for an offense. Another
requirement is the presence of a guilty mind.

Tort is a civil wrong where a legal injury is caused to the victim by the tortfeasor and
consequently, pecuniary reparation is awarded to the injured party in the form of unliquidated
damages. Intention or the mental element is “irrelevant” in the law of tort. The term
“irrelevant” denotes that presence or absence of mental element shall not negative the

24
PER BRIAN, C.J., in Year Book Pasch. 17 Edw.,4 fol.2, pl.2.
25
William L. Prosser, Handbook of the Law of Torts 31 St. Paul: West Publishing Co., 4th
liability of the wrong doer. Torts can be intentional as well as unintentional. In case of the
former the presence of mental element is required to determine tortious liability (for example
in assault, battery, false imprisonment), while in latter, the mental element is insignificant in
determination of tortious liability (negligence). The underlying principle is that a wrong doer
cannot escape liability under the law of tort, simply on the ground that he had no intention to
cause harm. However, a wrong doer may not be held liable in certain exceptional cases
(example: qualified privilege).

Thus, it can be concluded that “Mental element” is not essential in tort. However, we may say
that the presence of it only aggravates the damages.

Bibliography

1. Law of Tort, S.P. Singh, 5 Edn, Universal Law Publishing Co.

2. The Law of Tort, Salmond and Heuston, 2 Edn, R.F.V. Heuston and R.A. Buckley, Sweet
and Maxwell, Universal Law Publishing Co.

3. Ratanlal & Dhirajlal, 25 Edn, 2008, Wadhwa & Co. Nagpur

4. Ramaswamy Iyer’s The law of torts, 9 Edn, LexisNexis Butterwoths

5. Intent in Tort law, Boston University School of Law Working Paper No. 09-21 (April 22,
2009) by Keith N. Hylton

6. Negligence Torts by Steve W. Schneider

7. Mayank Madhaw, Law of Torts. Sixth Edition. Singhal’s.