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“Tort” dictionarily means “breach of duty leading to damage”1. Same meaning attaches to it in law. In general, torts consist of some act done without just cause or excuse2.

The word “Tort” is of a French origin which has been further derived from the Latin word “Tortum” meaning “to twist”3 and implies conduct which is tortious4 or twisted. It is a species of civil injury or wrong. By civil wrong we mean the initiation of a civil proceeding which involves the enforcement of certain legal right claimed by the plaintiff as against the defendant5.

The law of tort, primarily originated in France, came to India en route England after the Norman Conquest. In Surendra Kumar v. Distt. Board, Nadia6, B.K. Mukherjee. J. discussed the applicability of law of torts in India. He perceived,

“In the case of tort, there being no Indian statutory law, the Indian courts have always adopted the English common law as being consonant to justice, equity and good conscience. They have departed from the English law only when a particular rule was unsuitable to local conditions”7

The expression “justice, equity and good conscience” was further interpreted by the Privy Council to mean, “the rules of English common law if found applicable to the Indian society and circumstances.”8


A paradigm tort is constituted due to the occurrence of a “wrongful act or omission” by any person. Here the term “Act” must be accorded the widest possible interpretation. Hence, it must include both positive as well as negative acts i.e. acts and omissions. It is noteworthy that the act must be done “intentionally, deliberately, or emphatically” to cause “legal” damages to the other party. Consequently, a “legal” remedy must be awarded to the injured party which is usually in the form of “unliquidated”9 damages10.

The aforementioned elements can be illustrated with the help of a flowchart:

Act (or omission) + causation + fault + protected interest + damage = liability

For example: X drives his car carelessly with the result that it mounts the pavement and hits Y, a pedestrian, causing Y personal injuries. The act is X driving the vehicle. This act has caused damage to Y. The damage was as a result of X’s carelessness, i.e. his fault. The injury suffered by Y, personal injury, is recognized by law as attracting liability.  A will be liable to Y in the tort of negligence and Y will be able to recover damages.

The term “Tort” has not been given a precise or specific definition. Dr. Winfield has made a critical examination of many possible definitions and the one suggested by him is as follows,

“Tortious liability arises from the breach of duty primarily fixed by law, such duty is towards persons generally and its breach is generally redressable by an action for unliquidated damages”11


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 fide12 intent to fix liability upon the tort feasor13. 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.

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 liable15.


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.


Prosser’s Handbook of the Law of Torts says that intention in tort law is not necessarily a hostile intent, or a desire to do any harm. Rather it is intent to bring about a result which will invade the interests of another in a way that the laws will not sanction17.

Theories of intent in tort law can be either subjectivist or objectivist. The former theory aims to punish the tortfeasors for intentionally or at least knowingly violating norms that are implicit in the law. The principle underlying is that the mental state of the wrong doer is important while determining the appropriateness of the liability.

On the other hand, under the objectivist theory, fixation or determination of tortious liability is exogenous with respect to the mental state of the wrong doer. For example- It is clear in the case of trespass that one can be found liable for it even though there was no intent to trespass.

If A points an unloaded gun at B, he could be held liable for assault even though he sincerely, though erroneously, believed that B knew that the gun was unloaded. In such an event of assault, intent to harm or to put someone in the fear of immediate harm is of grave importance. Here, the tortfeasor cannot take any defence.

We must also understand that in certain circumstances, the absence of intention or a bona fide mistake is a good defence. For example: Vicarious liability of a master for the tort of his servant may be neglected by a mistake of the servant which is outside the course of his employment18

In popular sense, Intention implies that the defendant is completely aware of his conduct and the natural consequences which are bound to follow. Moreover, he has a strong desire for the occurrence of those consequences.

In Wilkinson v. Downston19, the defendant joked to the plaintiff that her husband had met with and an accident and was admitted to a hospital. This news shocked her and she fell seriously ill. Thereafter, she sued the defendant for damages under tort. The defendant contended that he never wanted to cause any harm to the plaintiff but cut a joke only. The court rejected his contention and held him liable. Here, the court observed that mere intention is not an essential element in tort. The defendant knew the natural and probable consequences of his act which caused damage to the plaintiff. Therefore, he was liable, whether he intended it or not.


In such circumstances also there is no need for intention in tort. For example: if a nurse deliberately allows a child to get into a position of danger and receive injuries, she will be held liable. Here it is not the intentional omission which is the basis of liability, but it is the breach of her duty to look after and take care of the child.

As already discussed, we know that Intention by itself is not a good defence in tort. It is clearly impossible to know what is going on in the mind of the defendant.

Chief Justice Brian has aptly described the above argument in the following words:

“It is common knowledge that the thought of man shall not be tried, for the devil himself knoweth not the thought of man”20


Motive is the state of mind of a person which inspires him to do an act. Generally, it means the purpose behind the commission of an act. Motive, just like intention, is generally irrelevant in the law of tort. 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 injury21, the motive, however reprehensible it may be, will not supply that element.”

The decision of Lord Watson in Allen v. Flood22, settled that Motive is irrelevant in the law of torts:

“Although the rule may otherwise with regard to crime, the law of England does not take into account motive as a constituting an element of civil wrong. Any invasion of the civil right of another person is itself a legal wrong, carrying it with the liability to repair its necessary or natural consequences in so far as those are injurious to the person whose right is infringed, whether the motive which promoted it to be good, bad or indifferent.”

The Indian courts have also spoken about the irrelevancy of motive as well as malice in a number of cases. In Vishnu Basudeo v. T.L.H. Smith Pearse23, Mudholkar. J. observed,

“The leading case of Allen v. Flood, lay down that as a general rule, a bad motive is 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 so, then motive with which it was done is of little significance. In this case, however, it has been held that the act must presume to have been intended by the respondent to cause mental and bodily distress to an appellant I agree with this view.”

In conclusion, we could say that a good motive is no justification for acts otherwise illegal and a bad motive does not make wrongful an act otherwise legal.


There are certain categories of tort where motive may be an essential element, and therefore relevant in determining liability:

· In the 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.

· In cases of conspiracy, interference with trade or contractual relations.

· In cases of nuisance, causing of 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)


Motive has been described as an “ulterior intent”24. These two words are often used interchangeably in popular and even legal usage. Motive is the ultimate object with which an act is done, while intention is the immediate purpose. Examples: A publishes a defamatory letter about B, his servant, to C. A’s intent to defame B but his motive may be to inform C an intending employer of B, about B’s character and prevent C employing B. Here, in spite of a libelous intent, a good motive will render A’s act lawful.

Sometimes the position may be reverse. A steals a loaf of bread from B’s bakery. A is liable for theft as well as for the civil wrong of trespass, though A’s motive was not to cause loss to B but to feed A’s starving child.


According to Salmond, “fault is the basis of all tortious liability”25.The principle underlying is that the victim shall be entitled to pecuniary reparation, only and only if, his injury is caused by the fault of the defendant.

Despite the emphasis on the requirement of fault as an essential condition of liability, the law of tort contains principles of “strict liability” i.e. liability imposed without proof of fault. In the case of M.C.Mehta v. Union of India26, the Supreme Court stated the rule of Rylands v. Fletcher, the rule of strict liability. Similarly, in the case of hazardous and inherently dangerous industry, the principle of absolute liability has been recognized.


The relative recent trend is to shift the liability to those shoulders who can bear it or who can pass on the loss to the public. In the leading case of White v. White27, Lord Denning observed, “recent legislative and judicial developments show that the criterion of liability in tort is not so much culpability, but on whom the risk fall?”

In Indian scenario acts like the Workmen Compensation Act, 1923 are acts which provide for compensation without even pondering upon the question of liability.

The Motor Vehicles Act, 1988, provides for a fixed amount of compensation in case of death or permanent disability of the accident of the victim, even if the driver or owner of the vehicle is not at fault. In such a case, even contributory negligence of the accident is no defence.


Malice means the presence of an improper motive, or even gross or unreasonable prejudice28. An act or statement becomes malicious if it is used for a purpose other than sanctioned by the authority of law.

The term Malice can be discussed in legal as well as popular sense. In the legal sense, it means “a wrongful act done intentionally, without any just cause or excuse29 or for want of reasonable or probable cause30. In the popular sense, it signifies an “improper or evil motive”. The author would again like to emphasize here that a wrongful act does not become lawful merely because the motive is good31. Similarly, a lawful act does not become wrongful because of an improper, bad or evil motive or malice32.

In Town Area Committee v. Prabhu Dayal33, the court observed that “a 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 is motivated by malice or not.”


In the following cases malice becomes relevant in determining tortious liability:

· When the act is otherwise unlawful and wrongful intention can be gathered from the circumstances of the case34.

·  Malice on the part of the defendant to be proved in torts of deceit, malicious prosecution.

· The presence of malice in cases of defamation negatives good faith and the defendant cannot avoid liability by the defense of qualified privilege in such a case.

· Causing of personal discomfort by public nuisance.

· Malice which results in aggravation of damages.


Black’s law dictionary defines negligence35 as: “The omission to do something which a reasonable man guided by those ordinary considerations which ordinarily regulate human affairs would do, or the doing of something which a reasonable and prudent man would not do”

In the law of torts, negligence has two meanings:

1. An independent tort

2. A mode of committing certain other torts. For example: trespass or nuisance.

In Donoghue v. Stevenson36, it was held that negligence exists where there is a “duty to take care”, and there is breach of this duty. It was observed that negligence is a conduct and not a state of mind and there is no necessary element of fault involved.

Recklessness means a high degree of carelessness. It is the doing of something which in fact involves a grave risk to others, whether the doer realizes it or not37.

Cases such as the Balloon case, Scott v. Shepherd38 involves subject matter dealing with lesser states of mind which may be regarded as negligence or recklessness.


It has become well settled from the above discussion that 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.

The questions before the author were to elucidate:

· How far are “Mental elements” essential in tort?

· Whether or not “Mental elements” play a significant role in determination of tortious liability?

By “Mental elements” we mean the “Intention” of a person to cause legal injury to another person by infringement of his legal right. Intention means a state of mind where the wrong doer has complete knowledge of his act and its consequences. Furthermore, he has a desire to achieve those consequences. In Criminal law, the mental element forms an essential ingredient of crime. Here the mere act of a wrong doer is not sufficient to hold him liable for an offence. The presence of a guilty mind is also required.

However, it can be adduced from the previous chapters that 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 liability of the wrong doer. It has been already discussed in the first chapter that 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.


1. Wharton’s concise law dictionary, Universal Law Publishing Co.

2. Jay Laxmi Salt Works (P) Ltd. V. State of Gujarat, (1994) 4 SCC 1 (9)

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

4. Anything done by wrong; an act involving the forfeiture of property

5. The Law of Tort, Salmond and Heuston, 20th Edn, R.F.V. Heuston and R.A. Buckley, Sweet and Maxwell, Universal Law Publishing Co.

6. AIR 1942 Cal 360

7. Ibid, p.365

8. Vidya Devi v. M.P. State Road Transport Corporation, AIR 1975 MP 89

9. When the amount to be recovered depends on all the circumstances of the case and on the conduct of the parties, or is fixed by opinion, or by an estimate, the damages are said to be unliquidated damages

10. Ratanlal & Dhirajlal, 25th Edn, 2008, Wadhwa & Co. Nagpur

11. Province of law of tort, Tagore law lectures, 1931, p.32

12. In bad faith. It is not a meaningless jargon. It has a proper connotation. Malafides depends upon its own facts and circumstances [held in Prabodh Sagar v. Punjab State Electricity Board, (2005) 5 SCC 630]

13. Means who commits a tort; a wrongdoer, Black’s law dictionary, 7th Edn, p.1497

14. Legal information institute, Cornell University law school

15. Garrat v. Dailey, 46 Wash 2d 197, 279 p. 2d 1091 (wash 1955)

16. In tort law, duty of care is a legal obligation imposed on an individual requiring that they adhere to a standard of reasonable care while performing any acts that could foreseeably harm others

17. William. L. Prosser, Handbook of the law of torts, 31 (St. Paul West Publishing Co. 4th Edn, 1971)

18. Gaya Prasad v. Bhagat Singh, ILR (1908) 30 AII 525 PC

19. Original (1897) 2 QB 57

20. Year book Pasch, 17th Edn, 4 Vol.2, p.2

21. Damnum sine injuria

22. (1898) 7 H.L. Cas 349

23. AIR 1949 Nag. 364

24. Salmond jurisprudence, p. 397

25. Salmond, Law of Torts, 20th Edn, p.23

26. AIR 1987 SC 1086

27. (1950) p. 39 at p. 59

28. Horrocks v. Lowe, (1975) AC 135

29. Bromage v. Prosser, (1825) 4 B&C, 247 at 265 per Bayley.J.

30. Smt. S.R. Venkatraman v. Union of India, AIR 1979 SC 49 at 51

31. South Wales Miners’ Federation v. Glamorgan Coal Co. (1905) AC 239

32. Bradford Corporation v. Pickels, (1895) AC 587

33. AIR 1975 AII 132

34. Balak Glass Emporium v. United India Insurance Co. Ltd, AIR 1993 Ker 342

35. New Alderson B in Blyth v. Birmingham Waterworks Co. (1856) 11 Exch. 781, 784

36. (1932) AC 562

37. Donovam v. Landy’s Ltd, (1963) IR 441, 461, “The best and the most realistic test”

38. (1773) WBI 892


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

2. The Law of Tort, Salmond and Heuston, 20th Edn, R.F.V. Heuston and R.A. Buckley, Sweet and Maxwell, Universal Law Publishing Co.

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

4. Ramaswamy Iyer’s The law of torts, 9th 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

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