Relevance of intention, motive and malice in law of torts

In this article we will discuss the relevance of intention, motive and malice in law of torts.

The intention, motive, and malice of the defendant are relevant factors in the law of torts as they can affect the level of liability and damages awarded to the plaintiff.

Intention is an important factor in determining liability in tort law. If the defendant intended to cause harm to the plaintiff, then they will be held liable for the harm caused, even if the harm was not foreseeable. For example, if the defendant intentionally strikes the plaintiff with their car, they will be liable for any injuries caused to the plaintiff.

Motive refers to the reason behind the defendant’s actions. While motive is not usually a relevant factor in determining liability, it can be relevant in certain cases. For example, if the defendant’s motive for their actions was to cause harm to the plaintiff, then this may be evidence of their intent, which can affect the level of damages awarded to the plaintiff.

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Malice is an element of intentional torts and refers to the desire to cause harm to the plaintiff. In cases where the defendant acts with malice, the plaintiff may be entitled to punitive damages, which are intended to punish the defendant and deter others from similar conduct. For example, if the defendant spreads false rumors about the plaintiff with the intent to harm their reputation, they may be liable for defamation and may be ordered to pay both compensatory and punitive damages.

In some cases, the intention, motive, or malice of the defendant may be irrelevant to determining liability or damages. For example, in cases of strict liability, the defendant may be held liable for harm caused regardless of their intention or motive. Similarly, in cases of negligence, the focus is on the defendant’s actions and whether they breached their duty of care, rather than their intent or motive.

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The main mental elements in tort are:

(1) Intention: Intention means a desire to produce a consequence. Thus, it implies two things: first, an antecedent knowledge on the part of defendant of the injurious consequence of his conduct, and, second, a desire on his part to produce such injurious consequence. In tort the consideration of intention has no importance. It is the Act which is judged because the aim of the law of tort is not to punish the wrongdoer but  to award compensation to the injured person.

Intentional Omission: When damage complained of is the result not of positive act but of intentional omission the same rule that there is no need of intention in tort will apply. A nurse deliberately allows a child to get into a position of danger and receive injuries, she will be liable. Under criminal law mere act of a person is not enough to create his liability. Mens rea or a guilty mind is also required.

(2) Motive: Motive has been described as ‘the ulterior intent’ (Salmond). Motive is, generally irrelevant in determining whether an act or omission is a tort or not. An act which is lawful cannot become unlawful merely because it is done with an evil motive. “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”. If an act is prima facie lawful, it would not be rendered unlawful because it was inspired by a malicious motive.

In India the Courts have spoken of the irrelevancy of malice in the law of torts. In Vishnu Basudeo v. T.L.H. Smith Pearse, Mudholkar, J. observed: “The leading case of Allen v. Flood, lays down that as a general rule, a bad motive is not an essential condition of liability for a civil wrong except in cases like malicious prosecution, defamation and conspiracy. What has ordinarily to be seen is the unlawful act. If it is then motive with which it was done is of title significance. In this case, however, it has been held that the act must be presumed to have been intended by the respondent to cause mental and bodily distress to an appellant. I agree with this view.”

Further, in Town Area Committee v. Prabhu Dayal, the Allahabad High Court considered the relevancy of malice and laid down as under : “The plaintiff can get compensation only if he proves to have suffered injury because of an illegal act of the defendant and not otherwise. Malice does not enter the scene at all. A legal act though motivated by malice, will not make the actor liable to pay damages…… Mere malice cannot disentitle a person from taking recourse to law for getting the wrong undone. It is, therefore, not necessary to investigate whether the action was motivated by malice or not.”

In Jay Laxmi Salt Works (P) Ltd. v. State of Gujarat, Sahai, J. has observed that……no one has a right to injure or harm to others intentionally or even innocently.

On the other hand, good motive will not excuse a person from liability where the act is prima facie a legal injury. The presence of a good motive or benevolent intent will not justify a tortious act.

Liability without Fault or No Fault Liability: According to Winfield “must of the law of tort is concerned with the problem of accidental injury to the person or damage to property, and the general approach of the law of tort to this problem rests on two broad principles. Both are subject to a number of exceptions and qualifications but by and large it is the case first that the victim of accidental injury or damage is entitled to redress through the law of tort if, and only if, his loss was caused by the fault of the defendant or of those for whose fault the defendant must answer, and secondly that the redress due from the defendant whose liability is established should, as nearly as possible, be equivalent in value to the plaintiff’s loss. Until comparatively recently neither of these principles was subjected to serious challenge and it was regarded as almost axiomatic that, if no one was a fault, then the victim of accidental injury to the person must bear his loss himself.”

He further goes on to add that “the principle that a person should be called upon to pay for damage caused by his fault may be thought to have an affinity with the criminal law (which the law of tort as a whole certainly did have much earlier in its history) in the sense that one of its purposes is to prevent conduct which is harmful.” Undoubtedly a substantial portion of law of tort which deal with premeditated conduct do help to serve this purpose, for example, newspaper editors take precautions to avoid publication of defamatory matter. But there are equally major portion of the law of tort dealing with accidental injury and the cases of negligence, it has no worthwhile effect in assisting the prevention of accident. Winfield has aptly remarked that a “generalized instruction to people to take care is of little practical use in guiding their behaviour in a given situation and …… in most cases “sanction” for breach of the duty, liability to pay damages, rarely produces a more than trivial reduction in the negligent defendant’s own resources”.

Difference between Motive and Intention: Motive is the ultimate object with which an act is done, while intention is the immediate purpose, e.g., where a person rescues a girl from vagabonds, the intention of the person is to save her still the motive with which he might have done the act may be to seduce the girl.

Exceptions: There are certain categories of torts where malice may be an essential element and, therefore, relevant for purpose of determining liability:

(1) In cases of deceit, malicious prosecution, injurious falsehood and defamation, where defence of privilege or fair comment is available. The defence of qualified privilege is only available, if the publication was made in good faith.

(2) In cases of conspiracy, interference with trade or contractual relations.

(3) In cases of nuisance causing of personal discomfort by an unlawful motive may turn an otherwise lawful act into nuisance.”

(3) Malice: Malice is usually classified into two divisions:

(a) Malice in fact: Express or actual malice, or malice in fact means an act done with ill-will towards an individual. It is, therefore, what is known as malice in the ordinary or popular sense, i.e., ill-will, hatred, enmity against a person. But implied malice means a wrongful act done intentionally without any just cause or excuse.

(b) Malice in law: Malice in law or legal malice is à term which is practically superfluous as in law every tortious act is impliedly malicious on account of its being a legally wrongful act.

The words ‘malice in law’ signifies either (1) the intentional doing of a wrongful act without just cause or excuse, or (2) an action determined by an improper motive. To act maliciously means sometimes to do the act intentionally, while at other times it means to do the act from some wrong and improper motive of which the law disapproves.

The distinction between malice in fact and malice in law is that:

(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 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.

Mens rea, or fault as a condition of liability: Sir John Salmond laid great stress on the element of fault in an action of tort. His view was as follows: “The ultimate purpose of the law in imposing liability on those who do harm is to prevent such harm by punishing the doer of it. He is punished by being compelled to make pecuniary compensation to the person injured. It is clear, however, that it is useless to punish any person, either civilly or criminally, unless he acted with a guilty mind. No one can be deterred by a threat of punishment from doing harm which he did not intend, and which he did his best to avoid. All that the law can hope to effect by way of penal discipline is to make sure that men will not either wilfully or carelessly break the law and inflict injuries upon others.”

In Achutrao Haribhau Khodwa and others v. State of Maharashtra and others, the Supreme Court held “appellants cannot be defeated merely because it may not have been conclusively proved as to which of the doctors or other staff acted negligently”. The Court held the State liable.

Thus, intention is not an element to constitute tort, and it is not a condition of liability or immunity from liability in an action for tort, if the wrongful act has been committed by the defendant whereby the plaintiff has been injured. The case, therefore, negatives the fundamental principle of delicta-liability expressed in the above maxim that a person is not liable, unless he has the guilty mind.

Negligence: Negligence signifies total or partial inadvertence on the part of the defendant towards his conduct and its consequence. In cases, there may be advertence but it is necessary that there must be lack of desire to produce the consequence complained of. It is on this basis that negligence may be distinguished from intention.

Malfeasance Misfeasance Non-feasance : The term ‘malfeasance’ consists in the doing of an act which one has a legal duty to refrain from doing. It applies to the commission of an unlawful act. It is generally applicable to those unlawful acts, such as, trespass, which are actionable per se and do not require proof of negligence or malice. The term misfeasance’ consists in the improper performance of an act which one has a legal right to do. It is applicable to improper performance of some lawful act. The term ‘non-feasance’ applies to the failure or omission to perform some act for which there is an obligation to perform. Non-feasance of a gratuitous undertaking does not impose liability; but misfeasance does.

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