May 28, 2024
mental element

By Pranav Bajaj

Edited By: Ms. Ragini Sehgal

Mental Element
Wikimedia Commons


The term tort is the French equivalent of the English word ‘wrong’ and Roman law’s word ‘delict’. The term was introduced by Norman Jurists. The word is derived from the Latin word ‘tortum’ which means ‘twisted’. For a layman, a tort can be defined as conduct that is not lawful. Salmond defines a tort as a civil wrong for which the remedy is a common-law action for unliquidated damages and which is not exclusively the breach of a trust or other merely equitable obligation. For example, A person who enters into the property of another without his/her permission is said to have committed the tort of trespass. The Law of tort is the branch of law of obligations, which means it obliges us to refrain from causing harm to another and if harm is committed, then it is the duty of wrongdoer to compensate for the damages. But as in crime, does one need to have a guilty mind, to be held liable under torts? The answer to this question will be discussed in detail in this blog.


Every voluntary act requires a mental element to fasten the liability of the wrongdoer. Generally, the concept of mental element is crucial in criminal law which has (actus reus as well as mens rea). Whereas, in the law of torts, actus reus is the main component and the mental element, i.e., mens rea is composed when there is malice, motive, and intention.


Malice, in a literary sense, means ill will. It has two distinct meanings, the first one being intentional doing and second being improper motive. In intentional doing, there is intention to do the wrongful act which causes injury to a person. The term improper motive means that it does not include any spite will, but also any motive which the law disapproves. In the words of Bayley J., “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”
. A wrongful act that is done with the knowledge and has injurious consequences may be called malicious. The term malice has two branches which are malice in law and malice. The term malice in law means intentional wrongdoing or an act done wrongfully and without reasonable and probable cause and not as in common parlance. It is the implied wrong as in the case of defamation. Malice in fact means improper motive as actual malice and express malice as in the case of malicious prosecution.


Liability in tort arises if a person commits a wrong that causes injury to the person such as reputation, property, etc. According to the law of torts, the intention is not incurred when liability is decided. The intention is divided into two parameters.

(A)Intentional tort– Some action must be taken with a purpose to commit an intentional tort, i.e. an intention is must to commit an act. There must be a mental element.
Intentional tort includes- trespass, false imprisonment, battery, assault.
It can be understood through the Garratt V Daily case:
In 1955, a young boy, named Brian, pulled a chair from underneath Ruth Garratt as she went to sit down. Ruth fell and broke her hip because of Brian’s chair-pulling. Ruth filed a lawsuit against the family of Brian claiming to have acted intentionally, causing her injury. Although Brian did not intend to cause injury, the court found that the act resulted in the hip being broken and awarded Ruth $11,000 in damages. Brian’s family appealed on the grounds that children 5 years of age could not be held liable for an intentional tort. The court ruled that children can be held liable and that the intent element is in place if the person knew with certainty that the act carries a risk of injury.
(B)Unintentional tort- It is the omission of the duty of care which a reasonable man should consider. This type of tort is committed when a person causes injury to others because he was recklessly doing work or was negligent. There is no mala fide intention in the act which causes injury.
It can be understood through Wilkinson V Downtown (1897) 2 QB 57 case.
The defendant joked that her husband had encountered an accident and had been admitted to a hospital. She was shocked by this news and fell seriously ill. She subsequently sued the defendant for damages under tort. The defendant claimed he never wanted to harm the plaintiff, but only cut a joke. The court dismissed his claim, holding him liable. Here, the court observed that mere intention was not an essential factor in tort. The defendant was aware of the natural and probable consequences of his act which caused the plaintiff to suffer damage. He was therefore liable, whether he intended to do so or not.
Exceptions to unintentional torts are Deceit, Malicious prosecution, Assault, Conspiracy.
Motive is the ulterior object or purpose of doing an act. It differs from intention in two ways. First, intention relates to the immediate objective of an act, whereas, motive refers to the ulterior objective. Secondly, motive refers to some personal benefit or satisfaction which the act or desires whereas intention need not be so related to the actor. When A poisons B, the immediate objective is to kill B, and so this is A’s intention. The ulterior objective of A may be to secure B’s estate by inheritance or under a will executed by him and this objective will be A’s motive. Motive is generally irrelevant in tort. In Allen v Flood, Lord Watson said, “Although the rule may be otherwise concerning crimes, the law of England does not consider motive as constituting an element of civil wrong. Any invasion of the civil rights of another person is in itself a legal wrong, carrying with it the liability to repair its necessary or natural consequences, in so far as these are injurious to the person whose right is infringed, whether the motive which prompted it to be good, bad, or indifferent”. An act that does not amount to a legal injury cannot be actionable because it is done with a bad motive. The act must be regarded not the motive. The exceptional cases where the motive is seen are malicious prosecution, falsehood, conspiracy, nuisance, defamation, etc.

Let us look at the facts and proceedings of Allen V Flood (1898) AC1 for understanding the involvement of motive for the commission if a tort.
Facts of the case:
Flood and Walter was a shipwright who was employed on a ship, liable at any time to be discharged. As they had worked for a rival employer, fellow workers objected to their employment. Allen was a trade union representative on the vessel for the other employees and approached the employers, telling them that the other staff would strike if they did not discharge Flood and Walter. Consequently, the employers discharged Flood and Walter and refused to re-employ them where they would otherwise. Flood and Walter brought the action to induce a contract breach in a malicious way.
It was held that:
The decision was reversed, finding that Allen had not infringed any Flood and Walter’s legal rights. There was no legal right for them to be employed by the employer and Allen did not perform an unlawful act and did not use any unlawful means to obtain the dismissal of the employee. Allen was found to have represented what would happen to the employers if they continued to work with Flood and Walter. He relied on what he believed was going to happen, and he was believed by the employers. This was not regarded as an obstruction or disturbance of any right: it was not the procurement of any infringement of rights. The conduct of Allen was not actionable, although his motive might be malicious or bad.
Indian courts have also spoken about motive non-relevance as well as malice in tort. In Vishnu Basuedo V T.H.S.Pearse (AIR 1949 NAG 364) and Town Area Committee V Prabhu Dayal (AIR 1975 ALL 132), the courts held that it is to be seen if the act is lawful, then the motive for the act is of little significance.
To conclude, A wrongful act does not become lawful merely because the motive is good. Similarly, a lawful act does not become wrongful because of a bad motive, or malice.


  • FAULT WHEN RELEVANT: There are many branches in the law of torts that requires the state of mind of a person when he commits a wrong such as – assault, battery, trespass, malicious prosecution, conspiracy, etc. It might happen that one has to see whether the particular act was intentionally done or maliciously. Sometimes while deciding the case, the conduct of a reasonable man in that act is considered, if the act falls below the standard of what a reasonable man might have done then the defendant is liable for the act. For example, if the act wants the duty and care of a person who is doing that and if he fails in that then he is liable for the negligence. Sometimes there are instances where an act or accident is inevitable then if something wrong occurs then a defendant is not liable. Now, talking about the defence that a defendant can take is the defence of necessity if the defendant proves that act was done in necessity then he might not be liable for the act done.
  • LIABILITY WITHOUT FAULT: This means that there are some areas in tort where the mental element is not important but the defendant is said to be liable for the act done. In such a case, defence of honesty or innocence is not a good defence. As an example, in the torts of conversion, vicarious liability, defamatory, strict liability, a person is liable without any fault.
  • In Rylands v Fletcher case, the defendants, Rylands got a reservoir constructed, through independent contractors, over his land for providing water to his mill. There were some old disused shafts under the site of the reservoir, which the contractors failed to observe. They did not block the shafts. When water was filled within the reservoir, it busted through the shafts. As a result, the plaintiff’s coal mines on the adjoining land was flooded. The defendant did not know about the shafts and he had not been negligent although the independent contractors had been negligent. Since the plaintiff Rayland had to suffer losses, he sued the defendants.The defendant was held liable in the case, the judges while deciding the liability of the defendant said that anyone who uses the land for the non-natural purpose and the if that non-natural thing escapes the land without any negligence or mischief of the defendant and causes damage to the other person then that person will be liable for that cause. So, the defendant Fletcher was liable under the rule of strict liability and was directed to pay compensation to the plaintiff Ryland. So, through this case, it can be understood that a person can be held liable although he without having any mental element to cause damage to the other person.


These days it can be seen that there is a sudden shift in trend. It means that liability is generally shifted to another person. As observed by Lord Justice Denning, “recent legislative and judicial developments show that the criterion of liability in tort is not so much culpability, but on whom should the risk fall?” In India as well as in England, one comes across various enactments like the Fatal Accidents Acts and Workmen’s Compensation Acts, which provide for compensation to the victims without going into the question of fault. The reason behind this is that those who are made to pay the compensation are in a better position in society or have influence in the public domain. The best example of this is shifting liability when any accident happens, that is why insurance is done to indemnify him from the liability is shifted on insurance companies. There is a law in India that provides compensation to the victim if he dies (to the family) or any injury happens to him even if the driver is not at fault. Name of law—Motor Vehicle Act 1988.


At last, it can be concluded that the mental element does not play an important role in finalizing liability in the law of torts, but there are some exceptional torts such as defamation, malicious prosecution, deceit, conspiracy, trespass, nuisance, etc. where all depends upon the circumstances.

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