Mental Elements Essentiality in Tort


The word “Tort” in the dictionary means “breach of duty leading to damages”. It is devoted to law with the same reference. In common usage, torts comprise of any act done without any just excuse or cause.

“Tort” is basically a French word which has more consequent of a Latin word “Tortum” which means “to twist” and tells about the acts which are tortious or twisted. It is a type of civil injury or civil wrong. By civil wrong, the meaning that we derive is that the initiation of a civil proceeding that comprises the enforcement of various legal rights claimed by the plaintiff against the defendant.


A tort exists when any wrongful act or omission occurs by any individual. The term “act” here must be understood with the broadest view. Therefore both positive and negative acts and omission must be included. “Intentionally, deliberately, or emphatically” the action should be done to cause legal damage to the other party. As a result, a legal remedy must be provided to the injured party that is mostly in the form of “unliquidated” damages.

The above-mentioned fundamentals can be described by the following flowchart:

Act/Omission + Causation + Fault + Protected interest + Damage = Liability

For example, A is driving her car negligently and carelessly and mounts it on the footpath. B who is a pedestrian is walking on the footpath and is injured by the act of A. The damage was because of negligent driving of A and it was her fault. The injury suffered by B attracts liability in the eyes of law. A will be liable for negligence in the law of tort to B and B will recover damages.

Mental Elements

Civil liability of tort arises when a person causes any injury which is correlated to the plaintiff’s property, life, reputation, etc. In torts law, the liability is incurred if the injury was caused by intention or also by an accident.

Unlike criminal law where mens rea is pertinent, in the law of torts it is based on the situations, circumstances, and facts of every case. It may or may not is essential to prove mala fide intention to fix liability upon the tortfeasor. Hence based on intention tort can be divided into two categories that are:

a)Intentional tort

b)Unintentional tort


The intention in tort is not always with an antagonistic intent, or with a wish to do any wrong. Instead, it is intended to come to a result that infringes on the interests of others in such a manner that the law does not permit.

Theories of intent in the law of torts can be either subjectivist aiming to punish the offenders for intentionally or knowingly violating laws. The mental state and intention of the tortfeasor are very important in determining the liability that is going to be fixed or imposed on him.

For example- in the case of trespass, it is very clear that a person can be made liable even when he had no intention to commit trespass.

If X points an unloaded gun at Y, he can in all cases be liable for the tort of assault, or to put someone else into fear of imminent harm even though he was not erroneous on his part and he cannot take any defense.

But we should also know that in some specific cases, the non-attendance of intention or bona fide mistake is a very good defense.

For example, The vicarious liability of the master for the wrongful torts committed by his servant can be ignored if the mistake of the servant lies outside the normal course of employment.


In these situations also there is no need for the element of the intention in tort. For example: if a nurse knowingly allows a small kid to get in a situation of danger or receive injuries, she will be held liable. Here the breach of duty to take care of the child and look after him and not the intentional omission will be the basis of liability in tort.

As mentioned above intention by itself is not a good defense in tort. It is totally impossible to know the ongoings in the mind of another person.

Chief justice Brian has clearly elaborated the above argument in these words:

“It is common knowledge that the thought of man shall not be tried, for the devil himself knows not the thought of the man.


Black’s dictionary of law defines negligence 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 torts law, negligence has two senses:

  1. An independent tort
  2. A mode of committing certain torts. For example nuisance and trespass.

In a case, Donoghue v. Steveson’s negligence was held as existential where the duty of taking care and breach of duty are present. It is noticed that negligence is clearly conducted and not a mental state and no important element of fault is present.


The mental state of a person that inspires him to perform or do an act is known as a motive. Commonly, it is the main purpose that backs the commission of any act. It is irrelevant in torts just like intention. According to Salmond,

The decision of Lord Watson in Allen v. Flood proved that the presence of motive is irrelevant in torts:

“Although the rule may otherwise with regard to crime, the law of England does not take into account motive as a constituting 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..”

In many cases, the Indian Courts have also talked about the irrelevance of motive and malice. In Vishnu Basudeo v. T.L.H. Smith Pearse, Mudholkar. J. explained,

“The leading case of Allen v. Flood lay down 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 is ordinarily to be seen is the unlawful act. If it is so, then the 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.”

The conclusion that can be drawn is that a good motive cannot make any act legal if it is illegal and a bad motive cannot make any legal act illegal.


A motive has been expressed as an “ulterior intent”. Many a time’s intention and motive are used interchangeably in common and legal terms. The motive is the “driving force” of an act whereas an intention is an immediate purpose.

For example, A steals a loaf of bread from a bakery to feed his starving children. Here the motive is feeding the kids whereas the intention is breaking into the bakery.

X publishes a defamatory notice about Y, his maid, to Z. X’s motive is to inform Z who intent to employ Y, about her bad character, and stop her from employing Y but his intent is to defame Y. In this case, though the intent is libelous X’s act will be considered as lawful because of good motive.


Malice implies the nearness of some gross, ill-advised, or unreasonable prejudice behind the presentation of certain demonstrations. In the event that an act is accomplished for some reason other than that permitted by law, it is done maliciously.

In lawful terms, it signifies, “An unjust act done deliberately, with no worthy motivation or excuse or for the need of plausible or probable cause. By and large, it implies an improper or evil motive.

Again we have to make reference to that an act can end up legitimate in the event that it is finished with a decent rationale and an act does not wind up unlawful on the off chance that it is done with an awful intention or malevolence.

The name of tort itself prescribes that Malice is of the most major part in Noxious arraignment, in any case, the amount it is basic can be surveyed through the going with driving case law, In Drainville v. Vilchez, Mr. Denis Drainville was criminally charged for guile and unsafe driving depending upon the statements of Mr. Vilchez. After the fundamental approach against Drainville, he was vindicated. After his exclusion, Drainville brought a suit against Vilchez for the tort of malicious prosecution. The reasonable judge picked that “In default of any restriction, the irritated party’s revelation of case certifies that the respondent’s change of occasions, wherein he recognized, was false,” he made. “Those twofold dealings included instances of truth that incorporated the criminal’s parts charges. These are statements of truth that I ought to perceive.”

Here is some special case where malice become significant in deciding risk:

  • An act which is indifferent cases unlawful and terrible expectations can be gotten from the circumstances.
  • Malicious prosecution demonstrated in torts of deceit.
  • Public nuisance causing personal discomfort.
  • Malice bringing about expanding of harms.
  • Malice present in instances of defamation where qualified privilege can’t be benefited.


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.

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 wrongdoer has complete knowledge of his actions and its consequences. Furthermore, he has a desire to achieve those consequences. In Criminal law, the mental elements form an essential ingredient of the crime. Here the mere act of a wrongdoer is not sufficient to hold him liable for an offense. The presence of a guilty mind is also required.

However, it can be adduced from the previous chapters that intention or mental elements are “irrelevant” in the law of torts. The term “irrelevant” denotes that the presence or absence of a mental element shall not negative the liability of the wrongdoer. 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 a mental element is required to determine tortious liability (for example in the assault, battery, false imprisonment), while in latter, the mental elements are insignificant in the determination of tortious liability(negligence). The underlying principle is that a wrongdoer cannot escape liability under the law of torts, simply because he has no intention to cause harm. However, a wrongdoer may not be held liable in certain exceptional cases (for example qualified privilege).

Thus, it can be concluded that “Mental Elements” are not essential in tort. However, we may say the presence of it only aggravates the damages.

Author: Archita Tiwari,

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