Mental elements: intention, motive and malice

1. Why mental elements matter in tort

Criminal law usually requires mens rea. The law of torts is less concerned with the defendant’s state of mind, because its object is compensation, not punishment. Still, the mental element matters in three ways: some torts require intention (deceit, malicious prosecution, assault); the tort of negligence turns on carelessness; and in strict and absolute liability the defendant is liable without fault. The mental states the law recognises are intention, recklessness and negligence. Motive and malice are related ideas that must be kept separate.

2. Intention

Intention is the state of mind of a person who foresees the consequences of his act and desires them. A person is presumed to intend the natural and probable consequences of what he does. Intention is essential to trespass to the person in its intentional form, to deceit and to malicious prosecution. In Wilkinson v. Downton (1897) the defendant, as a practical joke, falsely told the plaintiff that her husband had been seriously injured in an accident. She suffered nervous shock and was ill for weeks. He was held liable: he had wilfully done an act calculated to cause harm, and it did.

3. Negligence and recklessness

• Negligence as a state of mind is inadvertence: the defendant does not foresee the harm though a reasonable person would. It is also an independent tort (see the note on negligence), where the question is objective: did the defendant fall below the standard of the reasonable man?
• Recklessness lies between intention and negligence. The defendant foresees the risk of harm but does not care whether it happens. In Derry v. Peek (1889) the House of Lords held that fraud in the tort of deceit is proved when a false statement is made knowingly, without belief in its truth, or recklessly, careless whether it be true or false. Recklessness is treated like intention for most purposes.

4. Motive

Intention refers to the immediate purpose of an act; motive is the ulterior reason for which it is done. If A shoots B, the intention is to kill; the motive may be revenge or gain. The general rule is that motive is irrelevant in tort.

In Bradford Corporation v. Pickles (1895) the Corporation drew its water supply from springs fed by water that percolated through Pickles’s land in undefined channels. Pickles sank a shaft on his land which reduced and discoloured the flow. His motive was to force the Corporation to buy his land at a high price. The House of Lords refused an injunction. Lord Halsbury said that if the act was lawful, however ill the motive might be, Pickles had a right to do it; if it was unlawful, however good his motive, he would have no right to do it. Lord Macnaghten added that it was not a case where motive could matter at all.

Allen v. Flood (1898) confirmed the rule. Union officials told an employer that boilermakers would stop work unless two shipwrights, whom they disliked, were dismissed. The employer lawfully ended their employment, which was terminable at will. The House of Lords held that the officials were not liable: an act lawful in itself does not become actionable because it is done with a malicious motive.

The reverse also holds. A good motive is no defence to a wrongful act: a person who trespasses on another’s land to do him a favour is still a trespasser.

5. Malice: in law and in fact

• Malice in law means a wrongful act done intentionally without just cause or excuse (Bromage v. Prosser, 1825). It does not imply spite. A defendant who knowingly publishes a defamatory statement acts with malice in law even if he bears the plaintiff no ill will.
• Malice in fact (express malice) means an improper motive: spite, ill will, or a purpose other than the one for which the law gives the right. This is malice in the popular sense, and as a rule it is irrelevant for the reasons in Pickles.

6. Exceptions: where motive matters

• Malicious prosecution. The plaintiff must prove that the defendant prosecuted him with malice, meaning a purpose other than bringing an offender to justice, and without reasonable and probable cause.
• Defamation. Malice defeats the defences of qualified privilege and fair comment. A privileged occasion protects only honest use.
• Conspiracy. Where two or more combine to injure the plaintiff by lawful means, they are liable only if their predominant purpose was to injure rather than to protect their own interests (Quinn v. Leathem, 1901; Crofter Hand Woven Harris Tweed Co. v. Veitch, 1942).
• Nuisance. Malice may turn a reasonable use of property into an unreasonable one. In Christie v. Davey (1893) the defendant, annoyed by his neighbour’s music lessons, banged trays and whistled to disturb them; he was restrained. In Hollywood Silver Fox Farm v. Emmett (1936) a man who fired guns near his boundary to stop the plaintiff’s vixens from breeding was liable.
• Exemplary damages. Malice can increase damages: an act done with spite may attract aggravated or exemplary damages.

Christie v. Davey is consistent with Pickles. Nuisance depends on unreasonableness, and motive is evidence of unreasonableness. In Pickles there was no right to percolating water at all, so there was nothing for motive to affect.

7. Problem

X, out of spite, builds a high wall on his own land, just inside the boundary, to block the view from his neighbour Y’s window. Y has no easement of light or view. Can Y sue?

Issue. Whether a lawful act done with an evil motive is actionable.

Law. Motive is generally irrelevant: Bradford Corporation v. Pickles, Allen v. Flood. The exceptions are torts where malice is an ingredient or evidence of unreasonableness, such as nuisance (Christie v. Davey).

Application. Y has no legal right to a view. Building on one’s own land is lawful. Blocking a view is not a nuisance, because the law does not protect a view, so the exception in Christie v. Davey does not help. If the wall obstructed light to which Y had acquired an easement under the Indian Easements Act, 1882, the answer would differ.

Conclusion. Y cannot sue. The spite is irrelevant.

How this is examined

As an essay: “Motive is generally irrelevant in tort. Discuss with exceptions” or “Explain the mental elements in the law of torts.” Both have appeared in recent KSLU papers. Define intention, motive, malice in law and in fact, recklessness and negligence; set out Pickles and Allen v. Flood; then list the exceptions. As a short note: malice in law and malice in fact, or Bradford Corporation v. Pickles.