Mental Element in Tortious Liability - How Relevant Is It?

Updated: Jan 22



Unlike criminal law, where mens rea or guilty mind is an important factor to determine a crime, in a tort the state of mind of a person is not so important, and in fact irrelevant, except in certain cases (because unlike criminal law, the focus in the law of torts is not on punishing the wrongdoer, but vindicating the rights of the injured person).


The term ‘malice’ has been used in two different senses:

  1. Malice in law,

  2. Malice in fact.


Malice in Law- In its legal sense, the term ‘malice’ means “a wrongful act done intentionally without just cause or excuse.” In Shearer v Shields (1914) A.C. 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.


Thus, a wrongful intention is presumed in case of an unlawful act done without just cause or excuse or for want of reasonable or probable cause (Smt. S. R. Venkataraman v Union of India AIR 1979 SC 49).


Malice in Fact- In its narrow and popular sense, the term ‘malice’ means an evil or improper motive. It is the malice in fact or ‘actual malice’. When a defendant does a wrongful act with a feeling or spite, vengeance or ill will the act was said to be done ‘maliciously’.


Motive means an ulterior reason for the conduct e.g. motive for theft may be to buy food for his children or to help a poor man.


As a general rule, malice in the sense of improper motive is entirely irrelevant in the law of torts. The law in general asks merely what the defendant has done, not why he did it. The case of Bradford Corporation v Pickles (1895) A.C. 587, explains that a lawful act does not become unlawful merely because of an evil motive.


In this case, the defendant was held not liable for intentionally intercepting, by means of excavations on his own land, the underground water that would otherwise have flowed into the adjoining reservoir of the plaintiffs, although his sole motive in doing so was to force the plaintiffs to buy his land at his own price. The court observed that it is the act, not the motive for the act that must be regarded.


Similarly, in Town Area Committee v Prabhu Dayal (AIR 1975 All 132), the defendants (municipal authorities) had demolished the illegally constructed building of the plaintiff; the municipal commissioner was alleged to be an enemy of the plaintiff. Held that the plaintiff has suffered no ‘injuria’ (violation of a legal right).


Torts where Malice is Relevant

  1. Malicious prosecution, nuisance, conspiracy, deceit and injurious falsehood.

  2. In certain cases of defamation, the defence of qualified privilege is available if the publication was made in good faith. The presence of malice negatives good faith.

  3. Malice may result in increase of damages for an otherwise ordinarily libel, assault or trespass.

The recent trend is not only in making malice irrelevant, but also under certain circumstances liability arises even without any negligence on the part of the defendant.

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