This article is written by Anshika Agrawal @ LEXCLIQ on Mental Elements in Tort.

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.



Intention means a wish to create a consequences. Thus, it implies two things, firstly, a prior knowledge on the part of defendent of the injurious consequences of his conduct and, secondly, a wish on his part to create such dangerous consequence. In tort the consideration of intention has no importance. It is the act which is judged because the objective of the law of tort is not to punish the wrongdoer but to provide compensation to damaged person. In the large number of cases, the absence of intention or bonafide mistake is defence.

Unintentional Tort

On account of an accidental tort, the litigant reasons harm to the offended party, however with no malafide goal. It might be called an unintentional mischance. The individual who brought about the damage did as such unintentionally in light of the fact that he/she was not being watchful. Such a person may be termed as careless or reckless. In the occassion of an inadvertent tort, we may see that the damage is brought on because of the exclusion of the “obligation of duty of care”, which a sensible and judicious man should have considered.

Relevance of Intention

Prosser’s Handbook of the Law of Torts says that goal in tort law is no so much an antagonistic purpose, or a craving to do any change. Maybe it is expectation to achieve an outcome which will attack the interest of another in a manner that the laws won’t authorize.

Hypothesis of goal in tort law can be either subjectivist or objectivist. The previous hypothesis intends to rebuff the tortfeasors for purposefully or possibly intentionally disregarding standards that are certain of the wrong practitioner is essential while deciding the appropriateness of the liability.

On the other hand, under the objectivist hypothesis, obsession or determination of tortious liability is exogenous as for the mental condition of the wrong practitioner. For instance it is clear on account of trespass that one can discovered liable for it despite the fact that there was no expectation to trespass can be further illustrate by case law.

In League against Cruel Sports V. Scott, a negligent entry is conceivable and was considered in League against Cruel Sports V. Scott. The Ps claimed 23 unfenced zones of area. Staghounds used to enter the area in quest for deer. The Ps sued the joint Masters of the Hounds for harms and looked for a directive against further trespasses. Park J issued an order in admiration of one territory controlling the respondents themselves, their workers or specialists, or mounted adherents, from bringing on or allowing dogs to enter or cross the property. Damages for six trespasses were granted.

The court held that “Where an expert of stagnounds takes out a pack of dogs and purposely sets them in quest for a stag or rear realizing that there is a real danger that in the interest dogs may enter or cross disallowed area, the expert will be liable for trespass on the off chance that he planned to bring about the dogs to enter such land or if by his inability to practice legitimate control over them he makes them enter such land”.

We should likewise comprehend that in specific circumstances, the absence of intention or a genuine oversight is a decent defense. For instance: Vicarious risk of an expert for the tort of his worker may be disregarded by a slip-up of the hireling which is outside the course of his employment.

In well-known sense, Intention suggests that the respondent is totally mindful of his behavior and the characteristic results which are certain to take after. Additionally, he has a powerful urge for the event of those outcomes.

Intention Omission

When damage claimed is the result 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. Here it is not the intentional omission which is the basis of liability, but it is breach of her duty to look after and take care of the child.

In such circumstances likewise there is no requirement for goal in tort. For instance: if a medical attendant purposely permits a kid to get into a position of risk and get wounds, she will be held liable. Here it is not the intentional exclusion which is the premise of liability, yet it is the breah of her duty to take care of and look after.

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


Motive has been described as “the ulterior intent” (Salmond). Motive is, generally is not of any use in determining whether an act or omission is a tort or not. An act which is legal cannot become unlawful merely because it is done with a dangerous motive.

“It is the act and not the motive for the act that must be respected. In the event that the act, aside from the rationale, gives rise just to harm with legal injury. The motive, however reprehensible it may be, will not supply that element.”

Taking everything into account, it can be said that a good motive is no avocation for acts generally unlawful and a bad motive does not make wrongful a demonstration generally legitimate.

Motive and Intention

It is important to know about the importance of motive, intention and malice in the law of torts. Before knowing about this aspects, we must know the difference between Motive and Intention. Motive is ultimately the object with which an act is done, whereas intention is the instant purpose.


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.

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