Role of intention in Torts

THIS ARTICLE WAS WRITTEN BY JENNIFER PHILIP, STUDENT OF SCHOOL OF LAW, BENNETT UNIVERSITY.

Introduction

“Tort is a breach of some duty independent of contract between the citizens giving rise to a civil cause of action”[1]. The commission of tort leads to civil liability, and the remedy of unliquidated damages would vary on the basis of the presence of intension to cause harm to the other or not. Intention is the mental desire or knowledge of wrongdoing. Sometimes intention to cause harm needs to be proved in tort. “Even when intention is needed, tort law often only requires that the initial interference with the claimant be intended and does not insist that the defendant intend the consequences of that interference”[2]. This means that even if the defendant does not intend to cause harm to the plaintiff i.e., the defendant might not have intended about the consequences but acts so, then also he will be liable and such torts come under intentional torts. Intentional torts require the plaintiff to prove that the defendant had the intention to do the act.

Discussion

Intention in simple terms is the purpose or attitude towards the effect of one’s action or conduct. In some torts, the plaintiff has to prove that the defendant has an additional element of intention, to prove him guilty. And there comes the difference between intentional torts and negligent torts. Damages awarded in tort cases when intent is proven is larger and more successful than negligence cases.

The difference between intentional torts and negligent torts is subtle but is very important to be distinguished. Intentional tort brings into the intention of the tortfeasor in doing the tort, whether he really intended to do so or not. The additional burden to prove this goes to the plaintiff and not the defendant. In case of assault, the plaintiff has to prove that the defendant had the intent to cause harm. “An assault is an attempt or a threat to do a corporeal hurt to another, coupled with an apparent present ability and intention to do the act”[3]. In assault, physical contact is not necessary. The intention and act make up assault. Also in assault, there should be a reasonable apprehension of an immediate harmful or offensive act. Therefore, if one tries to hit someone and the other person gets threatened, then an assault has occurred. ” A civil action lies for an assault and criminal proceedings may also be taken against the wrong-doer. The fact that the wrong-doer has been fined by a criminal court for assault is no bar to a civil action against him for damages”[4].

In Tuberville v Savage[5], the defendant put his hands on the sword and said to the plaintiff,” if it were not assize time, I would not take such a language from you “, the court held that it was not a case of assault as the act was not intended. This highlights the importance of intention in cases of assault. Also, in Police v Greaves[6], where the defendant threatened a police man, exercising his duty to either stop doing so or get stabbed, it was held by the court that the defendant’s words were enough to constitute an assault. His words expressed his intention, which is required for an assault to be committed.

There are exceptions to the fact that intention is needed for assault. For example, A jokingly said to C that his close friend B met with an accident. B went into a state of shock. A has committed assault but he had no intention to commit it.  In this situation, intention cannot be taken into consideration.

 Another intentional tort closely related to assault is battery. Assault is commonly used instead of battery. Battery and assault are often paired together because many batteries also include assault. In battery, an act, physical contact without lawful justification needs to be committed unlike assault. An injury or harm caused using an instrument in hand can also come under physical contact. But just touching the hand or pat on the shoulders cannot be said as battery. Battery also need intention to be proved.

 In Pursell v Horn [7], the defendant threw a bucket of boiling water over the plaintiff which struck his face and blinded him in one eye. The court held the defendant liable for the battery committed with intention to do so. Cole v Turner[8], a case which attempted to distinguish between battery from everyday touching with the presence of anger. It established the factor of intent and how it is different from social touching. It also narrowed the tort by explaining that if there is no intent, it may be negligence.

In Wilson v Pringle[9], the defendant as a schoolboy prank pulled the bag of another 13-year-old pupil, causing the plaintiff to fall over and suffer hip injuries. The court held that intention need not be taken into consideration in this scenario and the defendant was held liable for the tort of battery committed. Also, in Marube v Nyamuro[10], the plaintiff suffered when the defendant was flogging him with a rope which hit his right eye, causing him to lose his eye. It was not intended but the court held that damages be awarded irrespective of whether intention was there or not. In another case, Livingstone v Ministry of Defence[11], the plaintiff was injured when a soldier fired a baton round after some soldiers were attacked by rioters. The court held that the Ministry of Defence, would be vicariously liable, as the soldier had committed battery even though he didn’t intend to do so.

Conclusion

In order to commit assault, one needs to have a general intent. Sometimes without intention also, assault could be committed, which is punishable under law of torts. Battery generally requires an intent to harm. Social touching does not come under battery unless they have wrongful intentions.

Both assault and battery are intentional torts. Intention in the part of defendant needs to be proved before the court by the plaintiff.

[1] Halsbury’s Laws of India vol 29(1),), para 1

[2] Winfield and Jolowicz, Tort (19^th edn, Sweet & Maxwell,2015)

[3] Ratanlal & Dhirajlal , The Law of  Torts[ 27th edn,LexisNexis]

[4]  Ratanlal & Dhirajlal , The Law of  Torts[ 27th edn, LexisNexis]

[5] Tuberville v Savage (1669) EWHC KB J25

[6] Police v Greaves (1964) NZLR 295

[7] Pursell v Horn [1838] 8 A&E 602

[8] Cole v Turner [1704] 6 MOD 149

[9] Wilson v Pringle [1987] QB 237

[10] Marube v Nyamuro [1983] CA No. 8

[11] Livingstone v Ministry of Defence [1984] NILR56