Law of Torts
Fault as the Basis of Liability: Intention, Motive, Malice in Law and Malice in Fact
Four words describe the mental side of a tort, and they are constantly treated as though they meant the same thing. Intention is what the defendant meant to do. Motive is why he did it, and it is ordinarily irrelevant: a lawful act does not become unlawful because of a bad motive, and an unlawful act is not excused by a good one. Malice means two entirely different things depending on the phrase it appears in. Malice in law is a wrongful act done intentionally and without just cause or excuse, and says nothing about the defendant's feelings. Malice in fact is actual ill will, and must be pleaded and proved. Getting these four apart is the whole of this topic.
The four terms, the rule on motive, and the cases on each side of it
1. Fault as the Basis of Liability
- The general rule is no liability without fault, meaning either intention or negligence.
- But fault in tort is not moral blame. The standard in negligence is objective, that of the reasonable man, so a defendant who tried his honest best and fell short of it is at fault in law.
- And there is no general requirement of a guilty mind. Some torts require intention, some require negligence, and some require neither.
- The classes without fault are growing: vicarious liability, the rule in Rylands v. Fletcher, absolute liability under M.C. Mehta, and the statutory no fault schemes.
- So fault is the starting point and not the whole subject, and the first question in any problem is what mental element this particular tort requires.
2. Intention
- It is the state of mind directed at the act and its immediate consequences. The defendant meant to do what he did, and meant its natural result.
- It is an ingredient of the intentional torts: assault, battery, false imprisonment, trespass, deceit, conspiracy and malicious prosecution.
- It is irrelevant to the torts that do not require it. In negligence the question is what a reasonable man would have done; in strict and absolute liability the question is not asked at all.
- It need not extend to the harm. A defendant who intends the act is liable for the consequences the law attributes to it, whether or not he intended those.
- Transferred intent operates in trespass. A blow aimed at one person that strikes another is a battery on the person struck.
3. Motive
- It is the reason behind the act, the ulterior object the defendant hoped to achieve. Intention looks at the act; motive looks past it.
- It is generally irrelevant in tort. The rule has two limbs: a lawful act does not become unlawful because it was done from a bad motive, and an unlawful act is not excused because it was done from a good one.
- The first limb is Bradford Corporation v. Pickles, and the second is the reason a defendant who trespasses to save life is still a trespasser, absent the defence of necessity.
- The reason for the rule is that the law must be able to tell a person what he may and may not do, and a rule that turned on motive would make the lawfulness of an act depend on an enquiry into the mind of the actor after the event.
- Motive may still be relevant to damages, even where it is irrelevant to liability, because oppressive or malicious conduct may attract aggravated or exemplary damages.
4. The Two Cases on Motive
📖 Bradford Corporation v. Pickles [1895] AC 587 Facts The Corporation drew its water supply from springs fed by water percolating through the defendant's land. The defendant sank a shaft on his own land, diverting and discolouring the water that reached the Corporation. It was admitted that his object was to compel the Corporation to buy his land at his price. Held No action lay, and no injunction was granted. Ratio An act which is lawful does not become unlawful because the motive with which it is done is improper. The defendant was exercising a right over his own land, and the law does not enquire into the motive of a man exercising his own right. As Lord Macnaghten put it, it is not a question of motive but of right. |
📖 Allen v. Flood [1898] AC 1 Facts The plaintiffs were shipwrights working for a company on a day to day basis. The defendant, a trade union official representing boilermakers who objected to the plaintiffs, told the employer that his members would stop work unless the plaintiffs were dismissed. The employer, being entitled to do so, declined to re engage them. It was alleged that the defendant acted out of spite. Held No action lay. Ratio An act otherwise lawful, though harmful, does not become actionable by reason of the motive with which it was done. The defendant used no unlawful means, induced no breach of contract, and did no more than tell the employer what his members would lawfully do. Motive alone cannot supply the missing element of illegality. |
5. Malice in Law and Malice in Fact
Malice in law | Malice in fact | |
What it means | A wrongful act done intentionally and without just cause or excuse | Actual ill will, spite, or an improper motive |
Also called | Implied or legal malice | Express or actual malice |
Does it concern the state of mind | No. It says nothing about the defendant's feelings | Yes. It is a fact about his mind |
How it is established | Inferred from the wrongful and unjustified act itself | Pleaded and proved like any other fact |
The leading statement | Shearer v. Shields [1914] AC 808 | The malicious prosecution and defamation cases |
Where it matters | In the general proposition that an intentional wrongful act without excuse is malicious in law | In malicious prosecution, injurious falsehood, conspiracy, and to defeat qualified privilege |
Its effect on liability | It is a description of the wrong, not an additional ingredient | It is an additional ingredient, or the answer to a defence |
- The statement in Shearer v. Shields is the one usually quoted: a person who inflicts an injury upon another in contravention of the law is not allowed to say that he did so with an innocent mind; he is taken to know the law, and he must act within it. He may therefore be guilty of malice in law, although, so far as the state of his mind is concerned, he acts ignorantly and in that sense innocently.
- The practical consequence is that a pleading of "malice" must be read to see which kind is meant, and a defendant who proves he bore no ill will has answered malice in fact and not malice in law.
6. Where Motive and Malice in Fact Do Matter
The situation | The role malice plays |
Malicious prosecution | An ingredient of the tort, alongside the absence of reasonable and probable cause, the termination of the proceedings in the plaintiff's favour, and damage |
Malicious civil proceedings | The same, within the narrower limits in which the tort is recognised |
Injurious falsehood | An ingredient: the false statement must have been published maliciously |
Qualified privilege in defamation | Malice destroys the privilege, so proof of it defeats the defence |
Fair comment | Likewise defeated by malice |
Conspiracy to injure | A combination whose predominant purpose is to injure may be actionable though each act taken alone is lawful |
Nuisance | Malicious conduct may make an otherwise reasonable use of land unreasonable, and so actionable |
Damages generally | Malice may aggravate the damages, or attract exemplary damages, even where it is irrelevant to liability |
- These do not contradict Bradford Corporation v. Pickles. In each of them the law has made malice part of the definition of the wrong or of the defence. None of them is a case of motive turning a lawful act into an unlawful one.
- Conspiracy is the case that looks closest to a contradiction, and the explanation is that the law treats concerted action aimed at injuring a person as different in kind from individual competition. Allen v. Flood concerned an individual; the conspiracy cases concern a combination.
7. The Order of Questions
⚠ Start from the tort, not from the defendant's state of mind The mistake to avoid is asking at large whether the defendant was at fault, or whether he was malicious. The question is always tort specific. First, which tort is alleged? Second, what mental element does that tort require: intention, negligence, malice, or nothing at all? Third, if it requires malice, which kind, malice in law or malice in fact? Fourth, is a defence in play that malice would defeat, as with qualified privilege? And fifth, quite separately, does the defendant's state of mind bear on the damages, even though it does not bear on liability? A defendant's spite is irrelevant to whether he committed the tort of trespass and highly relevant to what he will pay for it. |
8. The Position Stated Shortly
1. The general rule is no liability without fault, but fault in tort means intention or negligence and not moral blame.
2. There is no general requirement of mens rea: some torts require intention, some negligence, and some neither.
3. Intention is the state of mind directed at the act and its immediate consequences.
4. Motive is the reason behind the act, and it is generally irrelevant in tort.
5. A lawful act does not become unlawful because of a bad motive: Bradford Corporation v. Pickles; Allen v. Flood.
6. An unlawful act is not excused by a good motive.
7. Malice in law is a wrongful act done intentionally and without just cause or excuse, and says nothing about the defendant's feelings: Shearer v. Shields.
8. Malice in fact is actual ill will or an improper motive, and must be pleaded and proved.
9. Malice matters where the law has made it part of the tort, as in malicious prosecution and injurious falsehood, where it defeats a defence such as qualified privilege, and in conspiracy to injure.
10. Motive may be relevant to damages even where it is irrelevant to liability, through aggravated and exemplary damages.