Law of Torts
Intention and Motive: What the Defendant Meant to Do and Why He Wanted to Do It
Intention is the state of mind directed at the immediate consequence of the act: the defendant meant that result to follow. Motive is the reason lying behind it, the ulterior object the result was to serve. A man who throws a stone through a window intends to break the glass; his motive may be revenge, or profit, or a wish to attract attention. The law of torts is interested in the first and, as a general rule, indifferent to the second. It asks what was done and whether it was wrongful, not why the defendant wanted it done.
1. The Distinction
Intention | Motive | |
What it is directed at | The immediate consequence of the act | The ulterior object the act was to serve |
The question it answers | Did he mean that result to follow | Why did he want that result |
Its place in liability | An ingredient of the intentional torts | Generally irrelevant to liability |
How it is proved | From the act itself and its natural and probable consequences | From surrounding circumstances, prior dealings and conduct |
If it is good | A good motive is no defence to an intended wrong | A good motive does not excuse an act otherwise unlawful |
If it is bad | A bad intention makes an otherwise lawful act unlawful only where the tort so requires | A bad motive does not make a lawful act unlawful |
Transferability | An intention aimed at one person serves for the harm done to another | Does not arise in the same way |
2. Intention in the Law of Torts
- Some torts require it and some do not. Assault, battery, false imprisonment, trespass, deceit, malicious prosecution, conspiracy and inducing breach of contract all require an intentional act, and in several of them an intention as to the consequence too. Negligence requires the opposite, and strict liability requires neither.
- Intention is inferred and not confessed. A man is taken to intend the natural and probable consequences of his act, and a defendant who says he did not foresee what anyone would have foreseen is unlikely to be believed.
- Intention is transferred. A blow aimed at one person which strikes another is a battery against the person struck, the intention attaching to the act and travelling with it. The same principle operates where the intended tort differs from the one committed.
- Intention is distinct from malice. An intentional act done without just cause is malicious in law though the defendant bore nobody any ill will at all: TORT 114.
- And a good motive is no answer to an intentional wrong. A man who detains another to prevent him doing something foolish has falsely imprisoned him; a surgeon who operates without consent to save a life has committed a battery, subject to the doctrine of necessity.
3. The General Rule About Motive
📖 Mayor, Aldermen and Burgesses of Bradford 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 which intercepted the percolating water, diminishing and discolouring the corporation's supply. He made no secret of his purpose, which was to compel the corporation to buy his land or his water at his price. Held No action lay. The injunction granted below was discharged. Ratio There is no property in percolating water while it percolates, and the defendant was doing no more than he was entitled to do upon his own land. An act which is lawful does not become unlawful by reason of the motive with which it is done. As Lord Halsbury put it, if the act is lawful, however ill the motive might be, the defendant has a right to do it; and Lord Macnaghten observed that the defendant was acting within his rights, however shocking the object might appear. |
- The converse is equally true. A good motive will not make lawful an act that is unlawful, so the defendant who trespasses to do his neighbour a kindness is a trespasser still.
- The rule follows from injuria sine damno and damnum sine injuria. Liability depends on the violation of a right. Where a right has been violated, the motive adds nothing to the wrong; where none has been violated, no motive can supply one: TORT 112.
- Allen v. Flood, [1898] AC 1 states the same proposition in the industrial context: an act lawful in itself does not become actionable because it was done with a bad motive, and a man may lawfully procure the dismissal of another by persuasion if he uses no unlawful means.
4. Where Motive Is Material
The situation | How motive operates |
Malicious prosecution | Malice is an express ingredient. The plaintiff must prove that the prosecution was instituted without reasonable and probable cause and with a motive other than a desire to bring an offender to justice: TORT 066 |
Malicious falsehood and slander of title | Malice is an ingredient, and the statement must have been made maliciously and have caused special damage: TORT 073 |
Defamation, qualified privilege | The privilege protects the occasion, and proof of malice in fact destroys it. Motive does not create the liability; it removes the defence: TORT 070 |
Defamation, fair comment | The same. A comment made not as an honest expression of opinion but for an improper purpose loses the protection |
Nuisance | An act otherwise lawful may become a nuisance where it is done deliberately to annoy. Christie v. Davey and Hollywood Silver Fox Farm v. Emmett |
Conspiracy | A combination whose predominant purpose is to injure the plaintiff is actionable though the means employed are lawful. Here motive is the very gist: TORT 077 |
Exemplary damages | Motive raises the award without affecting the liability, malice being an aggravating circumstance |
Statutory malice | Where a statute makes malice an element of the wrong or a condition of a defence |
📖 Hollywood Silver Fox Farm Ltd. v. Emmett, [1936] 2 KB 468 Facts The plaintiff bred silver foxes, which are notoriously nervous during the breeding season and will destroy their young if disturbed. The defendant, a neighbouring landowner who objected to a sign advertising the farm, sent his son to fire a shotgun on his own land as near to the breeding pens as possible, for the declared purpose of disturbing the vixens. Cubs were lost. Held The plaintiff succeeded in nuisance and obtained an injunction and damages. Ratio Where an act is done on a person's own land deliberately for the purpose of annoying his neighbour, and it does annoy him, the malicious purpose is relevant to whether the user is reasonable. Shooting on one's own land is lawful; shooting there in order to injure a neighbour's business is not a reasonable use of land and is a nuisance. |
- Christie v. Davey, [1893] 1 Ch 316 is the companion case. A music teacher gave lessons at home; the neighbour, irritated, retaliated by hammering on the party wall, beating trays and shrieking. An injunction was granted, the noises having been made deliberately and for the purpose of annoyance and therefore not a reasonable use of the house.
5. Reconciling Pickles With the Exceptions
- The apparent conflict is that Pickles says motive is irrelevant and the nuisance cases say it is decisive. They are reconciled by noticing what motive is being asked to do in each.
- In Pickles the plaintiff had no right at all. There was no property in percolating water, so the corporation could point to no injuria, and the malice was being invoked to create a wrong where none existed. That the law will not permit.
- In the nuisance cases the plaintiff had a right, namely the right to the reasonable enjoyment of his land, and the only question was whether the defendant's use of his own land was reasonable. Reasonableness is an evaluative standard, and a purpose of pure annoyance is plainly relevant to it. Motive is not creating the wrong; it is answering a question the tort itself poses.
- In malicious prosecution and conspiracy the tort expressly contains a mental element, so proving motive is proving an ingredient and not importing a new principle.
- In qualified privilege and fair comment motive removes a defence rather than establishing a wrong. The publication was already defamatory; the privilege excused it; malice withdraws the excuse.
- So the rule may be stated exactly. Motive cannot create liability where no right has been violated; but wherever a tort or a defence contains a mental element, or turns on a standard of reasonableness, motive is proved and weighed like any other fact.
⚠ Why the law is indifferent to motive, and what the indifference costs The rule in Pickles is frequently criticised as licensing spite, and the criticism has obvious force: the defendant in that case admitted that he was destroying a town's water supply to extort a price, and the House of Lords held that his admission made no difference. The justification is not that the law approves of him but that the alternative is unworkable. If a bad motive could convert a lawful act into an actionable one, then no person could know in advance whether what he was entitled to do was safe to do, because the answer would depend on a state of mind that a court would reconstruct years later from circumstantial evidence. Property rights, trading rights and the freedom to compete would all become conditional on a judicial assessment of the holder's inner purposes. The law therefore fixes the boundaries of what may be done by reference to rights, which are ascertainable, and not by reference to motives, which are not. What the indifference costs is exactly the case of Pickles, and the law has responded not by abandoning the rule but by narrowing the space in which it operates, through statutory regulation of water, competition and planning, and through the expansion of the situations in which a tort or a defence makes the state of mind an element of its own. |
6. The Position Stated Shortly
1. Intention is directed at the immediate consequence of the act; motive is the ulterior reason for wanting that consequence.
2. Intention is an ingredient of the intentional torts, and is inferred from the act and its natural and probable consequences.
3. An intention aimed at one person is transferred to the harm done to another.
4. A good motive is no defence to an intentional wrong, and a bad motive does not make a lawful act unlawful.
5. Mayor of Bradford v. Pickles is the leading authority: a man abstracting percolating water on his own land, avowedly to extort a price, committed no wrong.
6. Allen v. Flood states the same rule for the inducement of a dismissal by lawful means.
7. Motive is material in malicious prosecution, malicious falsehood, conspiracy by lawful means, and nuisance, and it defeats qualified privilege and fair comment in defamation.
8. Christie v. Davey and Hollywood Silver Fox Farm v. Emmett show that an act done on one's own land purely to annoy a neighbour is not a reasonable user and is a nuisance.
9. Pickles and the exceptions are reconciled by asking what motive is doing: it cannot create a wrong where no right was violated, but it answers a mental element or a standard of reasonableness that the tort itself poses.
10. The law fixes liability by rights, which are ascertainable, rather than by motives, which are reconstructed after the event.