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Role of Intention in Fixation of Tortious Libility
Role of Intention in Fixation of Tortious Libility
OF
TORTIOUS LIBILITY
by
SREEJAYAN V
SUBHAM BATAR
SUDEEP RANJAN
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INTRODUCTION
It is very important to understand the meaning of tortuous liability or rather the nature of tort law
in order to understand its purpose.1The 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.
Another interesting result of this association of the word with a form of action was that it came to
refer also to the liability of a person who did not commit any tort or wrong, e.g. a master who is
sued for the damages by the person injured by a tort committed by his servant 2. This was because
an ‘action in tort’ was the remedy against the master and in course of time and in response to new
needs and situation, the master was held liable to pay damages even though he had not
committed any tort. So the law of torts is that body of law which deals with the liability of
persons against whom an ‘action in tort’ would lie.
INTENTION
Intent is a psychological attitude with which a person acts, and therefore it cannot ordinarily be
straightly proved but must be inferred from surrounding facts and circumstances 3. Intent refers
only to the state of mind with which the act is done or omitted. 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.4
1 http://www.legalserviceindia.com/article/l129-Torts-In-India.html
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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
discussion5.
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.
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.6
6 http://books.google.co.in/books
Personal injury lawsuits typically fall under the legal category of “tort litigation”, in which a
plaintiff will seek restitution for injuries or damages caused by another. This type of litigation is
typically civil rather than criminal, and is usually resolved with the award of financial
compensation for the damages caused by the event in question.7
When dealing with tort litigation, it is important to be familiar with the elements that comprise a
tort and how they are used in personal injury lawsuits. In order to prove that the defendant in a
personal injury case is liable for the injuries suffered by the plaintiff, each of the elements of a
tort must be present.
WRONGFUL ACT
To constitute tort there must be a wrongful act committed by the defendant,ie ,the plaintiff has to
prove that the defendant is guilty of committing a wrongful act. The expression ‘wrongful act
denote to commission of an act ,which is contrary to law or omission of an act that is not doing
an act which amounts to breach of a legal duty . The duty not to harm is owed to all persons
alike, but the duty to avert harm is owed only to a narrowly defined class of persons.8 . An
7 http://www.beltzandruth.com/articles/the-four-elements-of-a-tort.aspx
If a person omits an act, which he is legally bound to do, is said to be an omission of an act or
breach of duty and amounts to tort. Thus, to constitute tort the act must be wrongful in the eyes
of law and not according to parties. Whether the act is wrongful amounting to tort or not ,is to be
decided by the court .
LEGAL DAMAGE
To constitute tort, there must exist ‘injuria’ which means infringement or violation of a legal
right . the plaintiff has to prove that his legal right is infringed due to the act of defendant .A
legal right has been defined as a “capacity residing in one person of controlling with assent
and assistance of the state, the action of others “. The concept of injuria or legal damage can
be explained through the following two maxims
Injuria sine damno: it means infringement of legal right without damage .in other words
plaintiff s legal right is affected but he has not suffered any loss or damage .in such cases, the
suit is maintainable even though the plaintiff suffers no damage.
10 http://www.blackwellreference.com
Damnum sine injuria: It means “damage without the infringement of legal right .In this case
plaintiff suffers loss of damage without any injury to his legal right. Hence, the plaintiff’s suit is
not actionable.
In Gloucester Grammar School Case it was said “every person has a right to carry on his trade
or profession in competition with others and if as a result of a healthy business competition, his
rival suffers a loss, then he is not entitled to recover any compensation.”
MOTIVE
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 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
willfully with any excuse or just cause. Baylay J. in Bromage vs. Prosser12 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.” In tort, malice is used in two
different senses namely:
1) malice in law
12 (1925) 4B & C (247)
CHAPTER-2
15 William L. Prosser, Handbook of the Law of Torts 31 (St. Paul: West Publishing Co., 4th
ed. 1971).
16 http://legal-dictionary.thefreedictionary.com/intent
17 http://www.wisegeek.com/what-is-specific-intent.htm
18 http://www.tpub.com/content/armymilitarypolice/mp1019c/mp1019c0008.htm
INTENTION IN TORT
Tort law is divided into two sections by intent. There is intentional tort, which is when one party
meant to inflict harm on another; and there is unintentional tort, which is when harm was
accidental. If someone meant to cause harm to one person, but accidentally harmed a third party,
the doctrine of transferred intent makes the offender guilty of intentionally harming the third
party. 21What is unique about the intentional torts, what justifies separating them from other torts,
19 http://www.jud.ct.gov/ji/criminal/part2/2.3-1.htm
20 http://www.nolo.com/dictionary/transferred-intent-term.html
21 http://ezinearticles.com/?Transferred-Intent&id=3829551
23 http://law.jrank.org/pages/10817/Tort-Law-Intentional-Torts.html
ASSAULT
25 http://injury.findlaw.com/assault-and-battery/battery-basics.html
26 http://mojolaw.com
27 Ibid note no 25
31 http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1393300
DEFAMATION
Among the tort against persons and personal relations, “Defamation” is of great importance. The
term ‘Defamation’ means ‘Injury to the reputation or character of a person’. According to
Winfield “Defamation is the publication of a statement which tends to lower a person in the
estimation of right thinking members of society generally or which tends to make them shun or
avoid the person.”A defamatory statement is one which is false and lowers the person’s esteem in
the community or subjects the person to hatred, contempt, or ridicule. Defamation involves
speech that damages the reputation of the victim.
Defamation is a dual wrong. It is a tort and also a crime under section 499 IPC. The plaintiff, to
be successful in an action for defamation, has to prove the following conditions:
Defamatory: the plaintiff has to prove that the statement made by defendant contains defamatory
words .sometimes the plaintiff contends that the statement is defamatory, while the defendant
denies the same .in such a situation the court will decide basing on the circumstances of the case.
Publication: In the context of defamation law, a the suit for defamation to be maintainable ,the
statement must be published when it comes to knowledge of the third person i.e. a person other
than the plaintiff or defendant .That term does not mean that the statement has to be in print.
There are two kinds of defamation, namely:
Libel: If the defamation is made in some permanent form giving scope for circulation and more
severe consequences, then it is libel. E.g. Written statements, cinematograph, statute etc. libel
may be defined as a publication of false and defamatory statement in some permanent form,
tending to injure the reputation of another person without lawful justification or excuse. In
Youssoupoff vs. M.G.M. Pictures Ltd.33 It was said that “there can doubt so far as the
photographic part of exhibition is concerned , that is a permanent matter to be seen by the
eye ,and is the proper subject of an action for a libel ,if defamatory.”
3 http://legal-dictionary.thefreedictionary.com/assault
32
To constitute libel or slander the essential elements of defamation must be satisfied. A legal claim
based on defamation entitles the victim to recover against the defamer for his or her emotional
damages. In addition, the victim will be entitled to sue for punitive, or punishment, damages.
Damages are typically to the reputation of the plaintiff, but depending upon the laws of the
jurisdiction it may be enough to establish mental anguish. The plaintiff does not have to prove
damages in defamation cases. Damages are presumed. This means that the plaintiff does not have
to testify that he/she was emotionally destroyed or had to see a psychiatrist or other mental health
specialist or doctor. Defamation claims also require the highest level of intent.34 In defamation,
intent to make statements about another which, in light of the facts, prove to be defamatory, is a
sufficient basis for liability.35
UNINTETNTIONAL TORT
Damage to property or a personal injury caused by another person is a civil wrong called a tort.
If the injury or damage was unintentional, then the wrong is called an unintentional tort. In this
connection the rules that are rules of ‘liability without fault’ , laid down in two famous cases,
firstly, in the decision of the house of lords in Rylands v. Fletcher (1868), landmark case and ,
secondly, in the decision of the Supreme court of India in M.C. Mehta v. Union of India
(1987) may be noted.
The rule laid down in Rylands v. Fletcher is generally known as ‘Rule of strict liability, that is
even if the defendant was not negligent or rather, even if the defendant did not intentionally
cause the harm or he was careful, he could still be made liable under the rule. Strict liability is a
legal doctrine that makes some persons responsible for damages regardless of any fault and
intention on their part. The plaintiff needs only to prove that the tort happened and that the
defendant was responsible.
In Rylands V. Fletcher case the defendant constructed a reservoir on his land for providing water
to his mill. The defendant was not aware that just next to his reservoir there were some unused
mineshafts. The water burst through the reservoir into the shafts and flooded the plaintiff
coalmine to the adjoin land. The defendant pleaded that he was not aware of shafts and there
was no negligence on his part though there was negligence on the part of contractors he had
hired for constructing the reservoir. But court rejected his plea and held defendant liable because
if a person brings a potentially dangerous thing on his land and such thing escapes and does
damages than such person should be responsible even if he was not negligent. It is similar to the
rule of absolute liability except for the fact that there are no defenses to it. If the rule of strict
liability sounds unfair then consider the rule of absolute liability. Rules of absolute liability are
for specific public interest because very dangerous activities are involved in such acts.
The rule of strict liability was involved in the famous Indian case of M.C. Mehta v. Union of
India (1987). This case was dealt with the leakage of poisonous oleum gas from the units of
Sriram industries in delhi. As a result several people injured. The court held that irrespective of
39 .(1964)A.C.465