MENTAL ELEMENT IN TORT LAW

Abstract: The main objective of this paper is to understand the role of

the mental element in the subject of tort. In most cases, the mental
element categorized as motive, intention, or malice of a wrongdoer
does have a significant role in performing an act; But how does the
mental element affect or establish the tort? Yes, the motive holds a key
position in determining the wrongdoer's liability in some cases, such
as defamation, malicious prosecution, and deceit. In some scenarios
of intentional tort like assault, battery, false imprisonment, and
emotional distress, the mental element holds a better position. It also
helps in determining possible damages to restore the position of the
sufferer. The current discussion explores the role of the mental
element when it can be applied, its significance in determining
liability and damages, and the possibility of a mental element as a
defense.

I. INTRODUCTION:
Tort being a non-statutory law has its fair share of development from Common law
courts and, from the time it has evolved, undergoing many circumstances. In India, a
significant part of tort law is adopted from English law and their courtroom cases., but it is to
be applied suitably to Indian conditions. The main goal is to maintain the principle of justice,
equality, and good conscience. It does not mean that the torts law should walk on the same
line established by English laws. In MC Mehta v Union of India 1, justice Bhagavati
emphasized the need to evolve new principles with an excellent economic elevation, which
should be in tandem with our jurisprudence. We do not need to follow common law or the
law of any foreign nation, for that matters. So, the main motive of torts law is to restore the
person to his original state by awarding damages. When the question arises of what
constitutes a tortious liability, there should be an act, an infringement of a legal right, and
there may be damage; all these three include a tortious liability. However, where does the
mental element fit in? From the basic definition or understanding, one can emphasize that the
mental part and morality is not a necessary checkpoint in tortious liabilities per se. However,
not all tortious liabilities ignore the mental aspect. In tort, most cases(many) would not
consider mental element or motive or intention altogether may be called as Mens Rea. It does
not constrain some legal issues to uphold cognitive factors from an eagle-eye perspective. In
one such case, Jay Laxmi Salt Works (p) ltd. v. State of Gujarat 2 Court observed that law of
torts is established and structured based on morality

1
1987 SCR (1) 819; AIR 1987 965
2
1994 SCC (4) 1, JT 1994 (3) 492
 Contrary to criminal law, where Mens Rea is a prerequisite, torts law has a different
take on cognitive factors. Torts can broadly discuss the mental element perspective in terms
of motive and intention.

II. Motive - Its role in tortious liabilities:

In normative terms, a Motive is an act of perseverance for a reason. Salmond pointed
out that when there is mere damage to the legal right due to the act, it is to be considered
rather than the motive behind the act; it does not regard how good the motive is. Similarly,
one cannot argue that an act done lawfully may also have evil motives. When a person is
entitled to specific legal rights by law, the motive does not come into play until no legal
damage occurs. In the context of both criminal and civil law, a motive has a contrasting
meaning to intentions. While the intention may vary through the act, the motive to commit an
act will remain the same, which is the ulterior reason for an act 3. Intent emphasizes Mens rea
in criminal law, which is a significant criterion considered. Infusing an act with a wrong
motive or intention leads to malice, which is not essential to establish a tort. In torts, two
categories of malice, namely malice in fact and malice in law, are distinguished. Malice-in-
fact refers to the performance of a legal act with a wrong motive, whereas malice in law
refers to the performance of an act without legal or just cause. So as a general thumb rule, the
motive is mostly not considered when determining a person's liability. Merely having a good
motive alone does not make a wrongful act lawful4 .
Similarly, an ill motive does not convert a lawful act into a wrongful act 5. In Hicks v.
Faulkner6 case, J. Hawkins clearly stated that the plaintiff could succeed in a malicious
prosecution only if he/she can establish two things- disregard of reasonable or probable cause
and malice. This condition typically applied to malice-in-fact.
So, this discussion states that motive is not necessary for determining a person's
liability in torts which was already established in Bradford Crop v. Pickles, even if there is
damage without legal right infringement. However, there are exceptions where the motive is
considered a critical element to determine the liability.

3
Ratanlal & Dhirajlal, The Law of Torts 28 (27th edition 20016)
4
Federation v. Glamorgan Coal Company (1905) A.C. 239.
5
Bradford Corporation v. Pickels (1895) A.C. 587.
6
[1878] 8 QBD 167 at p. 170.
A. Exceptions
Except in the circumstances like malicious prosecution, slander, and conspiracy, an evil
motive is not a necessary element of responsibility for a tortious wrong. The role of motive
further elaborated each exception.
a) Defamation:
It is publicizing content that degrades one's reputation or goodwill or the character of a
person. Performing a similar action in gestures or a proper spoken word comes under slander.
A person is also liable if he publishes or distributes printed forms or pictures or cartoons or
any statement in that case that degrades one's reputation.
In Indian law, defamation is both a civil and criminal wrong. In the context of civil
wrongs, it falls under tortuous issues. In a civil case, the defendant must plead and show the
defamatory comments' truth, not only his honest conviction in their truth. As a result, if the
words or remarks complained of are accurate, he is immune from culpability, regardless
matter how wrong his motives may have been. If, on the other hand, the word or statement
turns out to be false, he is accountable, regardless of how honestly and thoroughly he acted or
how unavoidable his mistake was7.
To file a successful defamation suit, one should be able to establish the following
requirements
 There should be defamatory content that led to once damage in terms of either
reputation, character, or goodwill
 The deformity statement should imply that the person who is claiming the
defamatory suit
 Finally, the defamatory statement must be published in oral or written format
already
Exceptions to defamation: The following are the exceptions to the defamation
 The content published should be a fair comment
 The content published must be a truth
 There must be a privilege to publish a content inclined upon him by law
The privilege here is categorized as absolute and qualified, respectively. In absolute privilege,
a statement made considered malice, however, or intentionally, is wholly exempted from
liability. In English laws, slander is part of defamation; the court presumes the presence of

7
Pandey Surendra Nath Sinha v Bageshwari AFAD 852 of 1958, 853 Of 1958
malice. The defendant must prove otherwise that concerned statements are made in good faith
or public interest.
b) Deceit:
It is a case where the claimant suffered damage due to the fraudulent and false
representation of the defendant. A tort arises due to a fraudulent statement of fact issued by
an individual or entity impetuously or with complete knowledge and intention that it should
act on a specific individual or entity that suffered damage as a result.
In most cases, it is not easy to establish this site black by the claimant as he must
show that defendant has
 representation: A published or spoken statement is to be shown which led to false
representation; in this case, silence does not fall under-representation
 faults: knowledge and soundness of mind of the defendant while publishing a
statement, the defendant must know that statement is false or should be negligent
about the truthfulness
 reliance upon representation: the claimant must establish that he stood upon the
representation such that the defendant intended him to do
 damage or loss: representation shall be one of the reasons causing damage or loss
but not be a sole reason
c) Malicious prosecution:
This tort arises when one establishes a judicial proceeding against another person in
criminal or bankruptcy or liquidation procedures maliciously without a just cause8.
Conditions to be proved by the plaintiff for a successful malicious prosecution are:
 The plaintiff must be able to prove that the defendant in a criminal charge
prosecuted him
 The defendant acted without just cause
 defendant acted maliciously
 judgment came in favor of the plaintiff
 the plaintiff must be able to show that he suffered damage

8
Prateek Shanker Srivastava, Malicious Prosecution under Law of Tort, available at
http://legalserviceindia.com/article/l337-Malicious-Prosecution-under-Law-of-Tort.html.
d) Injurious falsehood:
A party or an individual should have made a malicious false statement about a business
which led the other to act to cause a business loss. Also, if their statement or an act is made
solely to injure the rival business can be actionable in case of damages9
Difference between defamation and injurious falsehood:
 in defamation, till proven otherwise statement is presumed to be false, but in
injurious falsehood, the business must establish the publication was false
 in defamation, malicious intent is not necessary to prove unless to claim damages,
but in injuries, falsehood business must show the malicious intention of
publication
 in defamation, once the publication is justified to be defamatory, damages are
presumed, but in injurious falsehood, one should prove there was actual damage
to the business

III. Intent - Its role in tortious liabilities:

Torts' intent understands that it is not always a hostile intent or a desire to cause harm.
Instead, it may be a desire to achieve a result that will jeopardize the interests in a way that
the law does not permit10. It stirs whether the intent is a critical element to file a tort, does
intent always play a role in determining torts. This idea explores and identifies the grey areas
of intent as an intentional and unintentional tort.
A. Intentional tort:
This class of torts holds intent as the primary reason for the act to occur. Intent holds a
more significant role in determining one's liability or role that leads to tort. Following are
classifications of intentional harms.
Intentional torts against a person's physical and mental state: Performing a voluntary
act that leads to physical harm to a person or an act that shakes the mental wellness of a
reasonable person falls in this category.
a) Assault and Battery:
To make someone undergo imminent fear of harm or danger in a reasonable man's
perspective can be noted as assault. The actual intent to harm does not come into play as long
as the action creates a threat. For example, if A points an empty barrel of a gun towards B
nearly to cause fear but not to harm B, it still is accounted as assault. However, not every
9
Mpotive as element of tort, 18 Yale L.J.636 (1909)
10
William L. Prosser, Handbook of The Law of Torts 31 (West, 4th ed. 1971).
threat involving no actual personal violence signifies an assault; there must always be a
means of carrying out the threat 11. Any expression makes a person threatened with a
reasonable fear that the party threatening intends to act violent immediately, or, in the
language of the Indian Penal Code, is about to use criminal force against the person
threatened, constitutes an assault in law if coupled with the present ability to carry such
intention into execution12. It draws the idea that a mere act without an intention is not an
assault13. The physical injury need not exist in an assault.
An assault may have the presence of three elements. Firstly, the plaintiff should apprehend
immediate fear or danger of threat; secondly, the apprehension should be reasonable, and
finally, the defendant should intend to commit the act. Here the intention may be general or
specific to a person.
A Battery is an aggravated form or completion of assault. A Tort of battery arises when
one applies an unreasonable force or physical contact, and such force should not have
consented and privileged. Consider if someone commits assault by creating fear of throwing
water on the face; battery arises the moment water droplets touch the face. Any person,
irrespective of age, with a substantive certainty of their actions, intend to contact someone
physically, and their activities lead to damage, they can be held liable14.
In order to establish a tort of battery, one should prove there is an unjustified force, and
the possible defenses are
 Reasonable force to evict the trespass
 Self-defense
 Reasonable for avoiding a breach of peace15.
In both aggravated cases, the mental element of an individual, i.e., intention, plays a most
crucial role. An assault cannot be established without an intention, and neither can battery.
b) False imprisonment:
Confining someone against their own will is considered false imprisonment. It is
essential to understand the intention of a person who is confining. In most cases, the
confining one should also understand the result of this act; the recklessness act leading to
false imprisonment can also be held liable. Confining a person behind bars should be strictly
limited within that area so that there are no possible escape routes other than the will of the
11
Stephens v Myers EWHC 1830 KB J37
12
A.C. Cama v. H. F. Morgan, BHC 1864 1 205, 206.
13
Tuberville v. Savage, (1669) EWHC KB J25
14
Garratt v. Dailey 1995 (4)6 Wash. 2d 197, 279 P.2d 1091
15
Jai Bhagwan v. Suman Devi, 2011 (185) DLT 29
person confining. Also, it is not the duration of the imprisonment that is important, but the
lack of legal authority to justify unlawful confinement. The internment and immobilization of
any chattel, i.e., goods, is also considered a component of the concept of false imprisonment.
Although false imprisonment is an intentional tort, it only needs the defendant to
intend to confine the plaintiff, not to hurt him physically or emotionally. In law, a shopkeeper
can be held responsible if he detained a customer with an honest but false belief that the
person had shoplifted an item, even if the shopkeeper's mistake was justified.
Significant elements in false imprisonment:
 Importance of intention in false imprisonment: In most cases, the tort of false
imprisonment must be deliberate. A person is not liable for false imprisonment
unless his or her act is done with the intent of imposing confinement or with the
knowledge that such confinement will almost certainly result.
 Duration of confinement: the total amount of time that is confined generally does
not matter even if it is for less duration of time still the person who can find can be
held liable
Exceptions where intention does not matter:
 The intention of parents (Parental authority): one cannot hold parents in the name
of false imprisonment because they imposed restrictions on children. Despite false
imprisonment, the law observes and understands the intention behind the
imprisonment is to discipline16
 The intention of a medical professional: holding a patient against his will to treat
him with good intention still falls under false imprisonment. A medical
professional can be held liable for treating a patient in a specific area against the
patient's will17.
 A person with legal authority: A person or the state can put someone in false
imprisonment with justified legal privilege and authority. The intention does not
matter here unless it is lawfully justified.
c) Infliction of emotional distress:
Voluntary involvement in an act leads to emotional distress in a person's state of mind;
primarily, torts like assault, battery, and false imprisonment mostly lead to emotional distress.
In most cases, the voluntary act may be categorized based on intention and recklessness. The
16
R v Rahman 1985 (81) Cr App R 349 (CA Cr D)
17
Ron Scott, "CHAPTER 4 - Intentional Wrongs", in Ron Scott, Promoting Legal and Ethical Awareness 88-
123 (2009)
intentions of a person performing an act hold importance, but it does not provide an excuse to
a good motive unless justified by an act or holds good in a reasonable man's eye.
Unintentional acts of harm still may give rise to emotional distress. For example, a
person intending to joke says that his family members were involved in an accident or death.
In this example, a person's intention is not to do physical harm or act maliciously; he only
meant it as a joke. However, in the eyes of the law, there is no justification for such an act;
also, it is outrageous to cause enough emotional damage to any reasonable person.
Intentional infliction of emotional distress, the topic itself being of subjective nature,
one who underwent the emotional distress must be able to prove that the person who acted
intentionally or recklessly and such act is highly outrageous causing emotional distress
Some of the situations where intention acted in deciding the liability:
 Causing emotional distress by harassing in late-night calls to collect debt which led to
a heart attack. The court held that the said act was performed out of privilege and
reasonableness18.
 In an interesting case, a woman bought a case of emotional distress and succeeded in
claiming. The said woman held a successful case against an estate man who was a
guest who committed suicide on her kitchen floor. Watching the corps of the guest in
a pool of blood, she went through mental distress and the court held in favor of the
women considering the act as outrageous19.
 In Mollien v. Kaiser Foundation Hospitals, the doctor misdiagnosed the patient, which
led to doubt followed by the patient's husband. Later on, the diagnosis was a mistake;
the patient's husband filed a suit on the hospital and doctor, stating the reckless act
caused emotional distress. The court held in favor of the husband, stating the
foreseeability of misdiagnosis causing emotional distress
In normative, intention in torts plays a minor role as it is tough to prove what it is running in
an individual mind while performing an act, and tortious intention alone does not justify the
grounds of liability20
B. Unintentional Tort:
It is a situation where there arises risk of damage to property or person or financial position.
It is always not necessary to prove the hostile intent in an act; instead, it is sufficient if an act

18
George v. Jordan Marsh Co. (1971) 359 Mass. 244, 268 N.E.2d 915.
19
Blakely v. Estate of Shortal, (1945) 20 N.W.2d 28 Iowa.
20
Peter Cane, Mens Rea in Tort Law, 20 Oxford Journal Of Legal Studies, 533, 552 (2000)
violates the rights of others sanctioned by law 21. The unintentional tort takes place due to the
omission of reasonable care or by negligence. As the name itself suggest, the intention of the
person causing damage does not hold matter. A person causing an accident acted without
reasonable care and was held negligent due to the omission of reasonable care, which a
reasonable person performed in that situation.
To be considered an unintentional tort, the defendant must satisfy three conditions:
the defendant caused the damage, the defendant failed to provide the reasonable person's
standard of care, and the defendant owed the plaintiff an obligation to avoid careless action.
In certain conditions, as stated, there is no need for intention here. In another example, if a
nurse purposefully puts a child in danger and causes injuries, she will be held accountable for
a breach of her duty to look after and take care of the child, rather than the intentional
omission.
It emphasizes that intent is not a good enough defense in tort. It is impossible to know
what is going on in the defendant's head.
C. The significant difference between intentional and unintentional tort:
Intentional torts safeguard interests like personal liberty, justice, and good conscience,
often considerably different from those protected by unintentional torts. The element of intent
distinguishes intentional torts from unintentional torts. The difference between intentional
and unintentional torts must be drawn because harms that are tortious if produced
purposefully may not be tortious if caused unintentionally. When the underlying tort is
performed intentionally, affirmative defenses available in unintentional cases may not be
made accessible.
One who willfully harms another appears to be more guilty than someone who injures
another by mistake. Culpability provides an apparent justification for classifying intentional
torts that differ from the unintentional harms covered by negligence.

IV. Fault:
Fault liability arises due to negligence or reckless activity; a person's fault holds a better
position in determining the person's liability. However, this cannot be the scenario in every
case; the main aim of the tort law is to bring back the sufferer to his original state. What if the
one who caused the harm can not bear the burden of damages or control someone? This
question leads to the concept of no-fault liability, i.e., strict liability and absolute liability.

21
Wlilliam L Prosser, Handbook of the Law of Torts 3 (4th edition 1971)
 In no-fault liabilities, as the name suggests, consideration of the person's intention or
motive on whom the liability imposed holds complete irrelevance. In the present scenario, the
Workmen Compensation Act, 1923 provides compensation without addressing the issue of
culpability.

Conclusion:
As a result of the discussion, a tort can be established as a civil wrong where the main
aim is to restore the sufferer to position as if the damage has not taken place by awarding
proper damages. Addressing the significant role of mental elements and their necessity in
determining the role of torts unveiled different shades. The mental element highlights the
motive or intention of a person to commit an act by which damage to a person arises.
Nerveless, the mental element does not hold a crucial element in determining the tortious
liability of a person. In the case of intentional torts like assault, battery, and false
imprisonment, the intention may be given minor prominence, necessary to determine the
liability of a person; in unintentional torts, complete irrelevance of intention was noticed.
Overall, it gives an idea that the wrongdoer can not defend himself, stating the absence of
mental elements except in some cases like authority and privilege. In most cases, the mental
element may not be necessary, and it is determined to calculate adequate damages.