This article was written by Priyam Jain a student of National Law University Odisha.

A Tortious Liability may emerge if a man brings on any harm identified with the casualty’s life, property, notoriety, and so forth. This liability is polite in nature. In law of tort, the liability can be acquired paying little heed to whether the damage was perpetrated deliberately or coincidentally.

Not at all like tort, is the vicinity of mens rea correlated in criminal law. Be that as it may, in law of tort, its presence is subordinate upon the circumstances and certainties of every case. It could possibly be vital to demonstrate a mala fide[1]plan to alter obligation upon the tortfeasor. Hence, on the basis of intention, tort can be divided into two namely:

a) Intentional Tort

b) Unintentional Tort


It is a sort of tort that can come about just from the purposeful demonstration of the wrong-practitioner. Regular intentional torts are battery, assault, false detainment, trespass to land, trespass to assets, and deliberate punishment of enthusiastic trouble.

Knowledge alongside sensible and considerable sureness, that a demonstration of the respondent might deliver a tortious result, is adequate to hold him at liable.


On account of an accidental tort, the litigant reasons harm to the offended party, however with no mala fide goal. It might be called an unintended 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 occasion 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.


Prosser’s Handbook of the Law of Torts says that goal in tort law is not so much an antagonistic purpose, or a craving to do any damage. Maybe it is expectation to achieve an outcome which will attack the interest of another in a manner that the laws won’t authorize[2]

Hypotheses 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 in the law. The guideline basic is that the mental condition 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 be 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.[3]

The court held that “Where an expert of staghounds 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.[4]

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.

In Wilkinson v. Downston[5], the respondent kidded to the offended party that her spouse had met with and a mishap and was admitted to a doctor’s facility. This news stunned her and she fell truly sick. From that point, she sued the litigant for harms under tort. The respondent fought that he never needed to bring about any mischief to the offended party however cut a joke just. The court dismisses his dispute and held him subject. Here, the court watched that mere intention is not a crucial component in tort. The respondent knew the regular and plausible outcomes of his demonstration which made harm the offended party. In this manner, he was obligated, whether he planned it or not.[6]


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 breach of her duty to take care of and look after.

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


Motive is the perspective of a man which rouses him to do a demonstration. For the most part, it implies the reason behind the commission of an act. Motive, much the same as goal, is by and large superfluous in the law of tort. As per Salmond,-

“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.”

The choice of Lord Watson in Allen v. Flood[7], settled that Motive is unimportant in the law of torts: “Despite the fact that the principle might somehow or another concerning wrongdoing, the law of England does not consider motive as a constituting a component of civil wrong. Any intrusion of the common right of someone else is itself a lawful wrong, conveying it with the liability to repair its important or normal outcomes in so far as those are harmful to the individual whose right is encroached, whether the intention which elevated it to be great, terrible or detached.”

Taking everything into account, we could say that a good motive is no avocation for acts generally unlawful and a bad motive does not make wrongful a demonstration generally legitimate.


There are sure classifications of tort where motive may be a key component and along these lines pertinent in deciding liability:

  • In the cases of deceit, malicious prosecution, injurious falsehood and defamation, where safeguard of benefit or reasonable remark is accessible. The resistance of qualified benefit is just accessible, if the distribution was made in compliance with common decency.
  • In instances of conspiracy, interference with exchange or contractual relations.
  • In instances of nuisance, bringing on of individual distress by an unlawful motive may transform a generally legal act into nuisance.


According to Salmond, “fault is the basis of all Tortious liability”. The rule fundamental is that the casualty should be qualified for monetary reparation, just and just if, his damage is brought on by the respondent’s deficiency.

In spite of the accentuation on the prerequisite of fault as a vital state of liability, the law of tort contains standards of “strict liability” i.e. liability forced without evidence of issue. On account of M.C. Mehta v. Union of India[8], the Supreme Court expressed the principle of Rylands v. Fletcher, the tenet of strict liability. Also, on account of perilous and innately hazardous industry, the rule of supreme liability has been perceived.


The relative late pattern is to move the liability to those shoulders who can endure it or who can go on the loss to people in general. In the main instance of White v. White[9], Lord Denning observed, “late authoritative and legal advancements demonstrate that the model of liability in tort is not so much culpability, but rather on whom the danger fall?”

In Indian situation acts like the Workmen Compensation Act, 1923 are acts which accommodate remuneration without considering upon the topic of obligation.

The Motor Vehicles Act, 1988, accommodates an altered measure of pay if there should be an occurrence of death or perpetual handicap of the casualty’s mischance, regardless of the fact that the driver or proprietor of the vehicle is not at shortcoming. In such a case, even contributory negligence of the mishap is no guard.


“False imprisonment is the infliction of bodily restraint which is not express or impliedly authorized by law”

In the case of tort related to False Imprisonment the mental element which is relevant is knowledge. Knowledge which is relevant here is that of claimant about the wrong being done against him. Knowledge may simply be defined as “information as to a fact”

The relevance of mental element of knowledge in the case of false imprisonment can be examined through the leading Case Law, In Meering v. Grahame-White Aviation Co Ltd.[10]The petitioner was blamed for taking a barrel from his businesses, respondents for this situation. Their two gatekeepers were requested that take him to their organization’s principle office. Throughout voyaging they took an alternate way and was taken to the sitting tight space for further procedures. While she was in the holding up room the policeman stayed in neighborhood. Subsequently a suit guaranteeing False Imprisonment was brought against the respondents. The court held that, Atkins L.J. ruled that “It appears to me that a person could be imprisoned without his knowing it. I think a person can be imprisoned while he is asleep, while he is in a state of drunkenness, while he is unconscious, and while he is a lunatic. Of course the damages might be diminished and would be affected by the question whether he was conscious of it or not”


Malignant prosecution is the noxious establishment of unsuccessful criminal or bankruptcy or liquidation procedures against another without sensible or reasonable justification.

Liability for the malicious prosecution for the most part relies on two contending principals which are:

  • Every individual ought to have opportunity to set law in movement and convey criminals to equity
  • The need to check lying allegations against pure individuals.

If there should arise an occurrence of tort of malicious prosecution the mental component which is significant is Malice. Perniciousness can be characterized as “Some other motive than the longing to convey to equity a man whom he [the accuser] genuinely accepts to be liable. Subsequently we can say “Malevolence exist where the informer’s dominating is an option that is other than the law”.

The name of tort itself propose that Malice is of the most essential component in Malicious indictment however the degree to which it is significant can be inspected through the accompanying driving case law, In Drainville v. Vilchez[11], Mr Denis Drainville was criminally charged for mischief and risky driving depending on the affirmations of Mr Vilchez. After the trial procedures against Drainville he was vindicated. After his exoneration Drainville brought a suit against Vilchez for the tort of malicious prosecution. The honourable judge decided that “In default of any resistance, the offended party’s announcement of case asserts that the respondent’s adaptation of occasions, in which he accepted, were false,” he composed. “Those deceptions included claims of truth that involved the criminal’s components charges. These are assertions of truth that I must acknowledge.”

Malicious indictment is a misuse of the court’s procedure by wrongfully getting the law under way on a criminal allegation. Keeping in mind the end goal to succeed the offended party must demonstrate that there was an indictment with no equitable and sensible reason, started by perniciousness and the case was chosen in the offended party’s support. It is important to demonstrate that harms were brought about by the offended party as an indictment’s consequence. The weight of verification lays on him. He needs to demonstrate the presence of malice.

Malignance may be demonstrated by already reclosed relations, absurd and despicable behaviour like promoting the energize or getting false confirmation. Despite the fact that minor lack of regard is not the fundamentally confirmation of perniciousness, irrational behaviour like scurry, rashness or inability to make enquiries would be some proof.


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

  • At the point when the act is generally unlawful and wrongful goal can be accumulated from the case’s circumstances.[12]
  • Malice with respect to the litigant to be demonstrated in torts of deceit, malicious prosecution.
  • The presence of malice in instances of defamation negatives great confidence and the respondent can’t keep away from liability by the resistance of qualified benefit in such a case.
  • Creating of individual uneasiness by public annoyance.


Black’s law dictionary defines negligence[13] as: “The exclusion to do something which a sensible man guided by those normal contemplations which usually direct human issues would do, or the doing of something which a sensible and judicious man would not do”

In the law of torts, negligence has two meanings:

  • An independent tort
  • A mode of committing certain other torts. For example: trespass or nuisance.

In Donoghue v. Stevenson[14], it was held that carelessness exists where there is a “duty to take care”, and there is rupture of this obligation. It was watched that negligence is a behavior and not a perspective and there is no fundamental component of flaw included. Recklessness implies a high level of thoughtlessness. It is the doing of something which actually includes a grave danger to others, whether the practitioner acknowledges it or not.

  • It has turned out to be very much settled from the above exchange that tort is a common wrong where a legitimate harm is brought on to the casualty by the tortfeasor and thusly, financial reparation is honored to the harmed party as unliquidated damage.
  • By “Mental elements” we mean the “intention” of a man to bring about legitimate damage to someone else by encroachment of his lawful right. Expectation implies a perspective where the wrong practitioner has complete information of his demonstration and its outcomes. Moreover, he has a longing to accomplish those outcomes. In Criminal law, the mental element shapes a key element of wrongdoing. Here the unimportant demonstration of a wrong practitioner is not adequate to hold him subject for an offense. The vicinity of a guilty mind is additionally needed.
  • Then again, it can be illustrated from the past parts that intention or the mental element is “immaterial” in the law of tort. The expression “irrelevant” means that vicinity or unlucky deficiency of mental element should not negative the liability of the wrong doer. It has been as of now talked about in the first section that torts can be purposeful and additionally unexpected. If there should be an occurrence of the previous the vicinity of mental component is obliged to focus Tortious liability (for instance in assault, battery, false detainment), while in recent, the mental component is immaterial in determination of Tortious liability (carelessness). The basic standard is that a wrong practitioner can’t escape liability under the law of tort, just on the ground that he had no goal to bring about mischief. In any case, a wrong practitioner may not be held at risk in certain outstanding cases (case: qualified benefit).
  • In this way, it can be inferred that “Mental component” is not key in tort. Nonetheless, we may say that the vicinity of it just aggravates the damages.

[1]PrabodhSagar v. Punjab State Electricity Board, 5 SCC 630, (2005)

[2]William. L. Prosser, Handbook Of The Law Of Torts,(1971)

[3]League Against Cruel Sports v. Scott (1985)

[4] Gaya Prasad v. Bhagat Singh,(1908)

[5]Wilkinson v. Downton , (1897)

[6] Ibid.

[7]Allen v. Flood, H.L. 349(1898)

[8]M.C.Mehta  v. Union Of India, Air SC 1086(1987)

[9]White v. White .(1950)

[10] Meering v  Grahame-White Aviation Co Ltd, 122 LTR 44(1920)

[11] Drainville V. Vilchezonsc ,(2014)

[12]Balak Glass Emporium v. United India Insurance Co. Ltd, Airker, 342( 1993)

[13]New Alderson B In Blyth v.Birmingham Waterworks Co11 Exch. 781, 784 (1856)

[14]Donoghue v.  Stevenson, 562 (1932)

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