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Author: Muskaan Sawhney,

Vivekananda Institute of Professional Studies, Delhi

There is a widespread conjecture which has erupted from a deep rooted belief that for there to be an offence, the mindset or the motive behind it must play an unparalleled role. But the same cannot be held true for every situation, with the law of tort being a prime exception. A tort is an act or omission that gives rise to injury or harm to another and amounts to a civil wrong for which courts impose liability.[i] Herein, an ‘injury’ has been used to describe a violation of a legal right of the individual whereas the ‘harm’ is used to signify the suffering or loss faced by an individual. The word ‘tort’ has been derived from the Latin word “tortum’ which means “something twisted or crooked” and includes all types of civil wrongs except contract law.

Motive is the reason and the mindset behind the act which leads to the formation of intention. It signifies the reason for conduct. Sometimes 'motive' may be used in the sense of an evil motive, or it may signify doing an act willfully without just cause or excuse. In a criminal trial the establishment of the motive and intention is a prima facie necessity. Moreover, the criminal law further reinforces the importance of motive by weighing down both the mens rea and actus rea to decide upon the guilt of the accused. However, in law of torts if conduct is presumptively unlawful, a good motive will not exonerate the defendant; if the conduct is lawful apart from motive, a bad motive will not make him liable.[ii] It may or may not be essential to prove malafide intent to fix liability upon the tort feasor and the same is dependent upon the facts and circumstances of each case.[iii]

A legal act, though motivated by malice, will not make the actor liable to pay damages. Mere malice cannot disentitle a person from taking recourse to law for getting the wrong undone. It is, therefore, not necessary to investigate whether the action was motivated by malice or not.[iv] A bad intention is morally deemed to be a pre-requisite for any offence yet the law of torts has deemed that “A good motive is no justification for an action otherwise illegal and a bad motive does not make wrongful an act otherwise legal.”[v] Mudholkar J. opined in a judgment[vi] that “What has ordinarily to be seen is the unlawful act. If it is so, then motive with which it was done is of little significance.” The law of torts puts down a lot of significance on the precedents and the position of this law over the consideration of motive while a decision which was clarified by the House of Lords in the landmark judgments of Bradford Corporation v. Pickles[vii] and Allen v. Flood[viii].

The brief facts of the case of Bradford Corporation v. Pickles are that the defendant had a reservoir which was adjacent to the land of the plaintiff. The water that fed the reservoir was coming through the latter’s land and dug up the soil of his land to stop the water from going into the reservoir. The defendant sank a shaft into his land to alter the flow of water which reduced the amount of water flowing into the springs of the plaintiffs. This act of the defendant was lawful in nature. The plaintiff laid down the contention that the act had been done out of malice and thus was invalid. The Courts after deliberate consideration held that if an act that has been carried out is lawful in nature, then the act cannot be held invalid inspite of any (evil) motive or malice behind it. Lord Halsbury stated that “It’s not a case where the state of mind of the person doing the act can affect the right to do it. If it was a lawful act, however ill the motive might be, he had a right to do it. Motives and intentions in such a question as is now before your lordships seem to me to be absolutely irrelevant.”[ix]

In the case of Allen v. Flood, the dismissal of the plaintiff by the defendant owing to a malicious reasoning behind it was questioned. The plaintiff was earlier employed by a rival employer. The defendant had employed the plaintiff on a pre stated condition that the plaintiff could be dismissed at any time. But, the employment of the plaintiff was met with resistance from the other employees who threatened to strike. Subsequently, the defendant discharged the plaintiff and did not re-employ them. The Hon’ble Court held that there was no violation of legal rights of the plaintiff by the defendant and stated that the dismissal of the plaintiff was not done by unlawful means. The court admitted that while there was a possibility that the defendant had discharged the plaintiff out of evil motive yet his conducts and actions were lawful in nature. The same was reiterated in Govindji J. Khona v. K. Damodaran and Ors.[x] wherein it was held that “Malice has been kept separate from lack of reasonable and probable cause because 'however spiteful an accusation may be, the personal feelings of the accuser are really irrelevant to its probable truth' and 'malicious motives may co-exist with a genuine belief in the guilt of the accused'.

However, it would be wrong to state that motive plays no part in the law of torts as there are several offences which refute this belief and in which motive is paramount to ascertain the liability of the accused. The exceptions to the standard rule are the cases of defamation, malicious prosecution, nuisance, deceit, injurious falsehood and the subtypes of intentional torts such as assault, battery, false imprisonment; trespass etc. Defamation means an offence of injuring a person's character, fame, or reputation by false and malicious statements.[xi] It is further classified into libel and slander on the basis of the statement being written or spoken. In order to establish a case of defamation the following must be fulfilled i.e. the statement must be defamatory in nature, should be published and should be in relation to the person who has filed the suit for defamation. Until and unless the statement which is deemed to be defamatory is true or based on actual facts, fair comment or privilege which is bestowed upon a person it is clear that apart from these cases the mindset and motive of the person was to cause injury to the reputation of defamed person and thus, in cases of defamation the element of motive plays due significance.

When a person institutes a case against another person without any true or honest reasonable explanation and there is a judicial proceeding for the same then such a situation is termed to be malicious prosecution. Under false imprisonment, a person unlawfully confines a person and prevents him from going to his intended destination and blocks the ways of escape. Both malicious prosecution and false imprisonment walk on the stool of evil motive and bad intentions and so it is imperative that the mental element is taken into consideration to drive the vehicle of justice in the right direction and decide the liability. Deceit is the case of dishonest statements knowingly passed or the representation of conduct which leads to an incorrect and false impression which causes damage and harm to the other party. When a party makes false statements about another’s business or entity which would ultimately result in causing harm to the business or entity then it is a case of injurious falsehood. Whether it is the case of deceit or injurious falsehood statements are made which are false in nature and the maker of the statements knows that they are in fact not true and still makes them to cause harm to the other party and hence the motive weighs down the decision of the court to decide suitable liability.

Nuisance refers to the unlawful interference caused to an individual who is affected by the usage or enjoyment of land or property etc. It has been held[xii] that causing personal discomfort by an unlawful motive may turn an otherwise lawful act into nuisance. Trespass can be defined as the act in which a person intentionally and knowingly enters the property, person or goods of another person to cause unreasonable invasion and interference. When a person creates a reasonable apprehension in the mind of the another person that the act that would be committed is likely to or is intended to cause harm then such a situation is termed as an assault. Whereas, when there is actual application of physical force applied by one person to another person in order to cause harm then the act is termed as battery. With both assault and battery the mindset of the attacker is an important parameter to determine the liability.


To conclude, tort involves offences which are civil in nature excluding contract law. In order to be a tort there is a twofold approach that must be satisfied i.e. there must be commission or omission of an act by the defending party and that this act or its omission has resulted in legal damage to the plaintiff. The standard rule of law of tort revolves around the exclusion of motive as a factor to settle the accountability of the party in question. It translates to the ejection of the mental element and the removal of the criteria as to why the act was committed or omitted. However, there are some exceptions to this rule wherein motive is a determining factor in the decision making process. Overall, the precedence of removal of motive and the examination of the lawful nature of the act is deemed to be present.

[i] https://www.law.cornell.edu/wex/tort [ii] Pranab Kumar Dey vs The Dibrugarh University AIR 1988 Gau 61 [iii] https://www.lawyersclubindia.com/articles/mental-elements-essentially-in-tort-5116.asp [iv] Town Area Committee v. Prabhu Dayal AIR 1975 ALL 132 [v] http://www.legalserviceindia.com/legal/article-575-tort-lawful-act-and-bad-motive-motive-malice-intention-and-tort.html [vi] Vishnu Basudeo v. T. H. S. Pearse AIR 1949 NAG 394 [vii] (1895) AC 587 [viii] (1898) AC 1 [ix] https://blog.ipleaders.in/role-of-motive-intention-and-malice-in-torts/ [x] AIR 1970 Ker 229 [xi] Black Law’s Dictionary [xii] Palmer v. Loder 1962 CLY 2333

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