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CHAPTER 3
FOUNDATIONAL CONCEPTS IN TORT LAW
- Intention 3–
- Negligence 3–
- Strict Liability 3–
- Motive and Malice 3–
Introduction. Some torts require proof of fault, which means 3– acting with a particular state of mind (usually with an intention to bring about a particular result) or failing to take as much care as the reasonable person would have taken (negligence). Other torts impose strict liability. In the case of strict liability torts, proof of fault on the part of the defendant is not required. These three concepts—intention, negligence and strict liability—are regularly encountered throughout this book. They are foundational ideas in the law of torts. Accordingly, it is useful to look at them jointly before progressing further. To properly understand these concepts, it is necessary to distinguish them from the ideas of motive and malice, and so a few words will also be said about motive and malice.
1. INTENTION
Intention is inferred from conduct. Some torts require proof that 3– the defendant acted with a particular intention. It is, of course, impossible for the law to do more than to infer a person’s intention, or indeed any other mental state, from his conduct. Intention is simply not amenable to direct proof. Centuries ago, Brian CJ said: “It is common knowledge that the thought of man shall not be tried, for the Devil himself knoweth not the thought of man.”^1 It is true that Bowen LJ in 1885 said that “the state of a man’s mind is as much a fact as the state of his digestion”.^2 However, there is no contradiction in these dicta. Brian CJ’s point merely meant that no one can know for certain what passes in the mind of another person. Brian CJ would certainly not have dissented from the proposition that what a person thinks must be deduced from what he says and does, and that is all that Bowen LJ meant.
Intention in general terms. Everyone agrees that a person intends 3– to bring about a consequence if it is his goal to cause it, but beyond that it is probably not possible to lay down any universal definition of intention for the purposes of tort. In crime, the law is that the trier of fact is entitled (but not, it seems, required) to infer intention where the defendant was aware that the harm was “virtually certain” to result from his act.^3
Intention is an under-analysed concept in tort law. Whereas 3– criminal theorists have spent much time exploring the concept of intention in the criminal law,^4 there has been much less discussion of intention in the tort context.^5 There are probably several reasons for this situation. First, actions in tort against persons who intend to cause harm are relatively rare. This is likely because it is often not worth suing such persons, who will usually be without relevant insurance. Secondly, although D acted intentionally, the claimant may sometimes be able to recover in the tort of negligence. This reduces the need for the courts to grapple with the concept of intention. Thirdly, intention is not an element of many torts. Even
recklessness as to consequences will do in tort, so too will recklessness as to circumstances. Thus, the tort of misfeasance in a public office is committed when a public officer acts knowingly outside the scope of his powers with the intent that the claimant will thereby be injured or if he is recklessly indifferent to the legality of his acts and the damage he may inflict on the claimant.^15
2. NEGLIGENCE
Negligence is both a tort and a type of fault. The word 3– “negligence” has two meanings in the law of torts. First, “negligence” is an independent tort. Secondly, “negligence” is a type of fault. What we are concerned with at this point is negligence as a form of fault, and the focus will be on distinguishing it from intention.
Negligence as a form of fault is a type of conduct. Negligence 3– qua species of fault refers to a failure to take as much care as the hypothetical reasonable person in the defendant’s position would have taken in the circumstances. It is, in other words, a falling short of the standard of care set by the reasonable person. The process of determining whether the defendant was negligent involves, therefore, comparing the defendant’s conduct with that of the reasonable person. It is important to note that this means that negligence is a type of conduct rather than a state of mind.^16 It is not required that a defendant be inadvertent (i.e. have a blank mind) with respect to a particular risk of injury in order to be negligent in relation to that risk. On the contrary, people who consciously run risks may be negligent with respect to those risks. An illustration of advertent risk-taking constituting negligence can be found in Vaughan v Menlove ,^17 where the defendant had been warned that his haystack was likely to overheat and catch fire, which might spread to his neighbour’s land. The defendant said that he would “chance it” and he was found to be negligent when the haystack caught fire.
Overlap between negligence and subjective forms of fault. The 3– fact that negligence is a type of conduct means that there is a degree of overlap between the concepts of negligence on the one hand and those of intention and recklessness on the other, the latter being states of mind. It is perfectly possible for a defendant who acts intentionally or recklessly to also act negligently. Provided that the defendant’s conduct is conduct in which the reasonable person would not have engaged, the defendant will be negligent,
3. STRICT LIABILITY
A defendant may be liable in some torts irrespective of whether he 3– was at fault. Such torts impose strict liability. They lack a fault element, such as intention or negligence. It is important to note that strict liability means liability regardless of whether the defendant is at fault. Strict liability torts do not require proof that the defendant was not at fault, and hence it is technically incorrect to say that strict liability is liability without fault. No tort requires proof that the defendant was not at fault. Very often, a defendant who is held strictly liable will in fact be at fault, but the claimant is not required to establish fault on the part of the defendant in order to make out his action.
4. MOTIVE AND MALICE
The general irrelevance of motive. Motive signifies a person’s 3– reasons for committing a particular act. Motive is generally irrelevant in tort law, although there are, as always, exceptions. The mere fact that a defendant was virtuously motivated is, in principle, insufficient to exonerate him from liability if all of the elements of a tort are present. Similarly, if conduct is lawful apart from motive, a bad motive will not make the defendant liable. The general irrelevancy of evil motive was affirmed by the House of Lords in Bradford Corp v Pickles.^22 Pickles was annoyed at the refusal of the claimant corporation to purchase his land in connection with a scheme to supply water to the inhabitants of a town. In revenge, he sank a shaft on his land. The water which percolated through his land in unknown and undefined channels from the land of the corporation on a higher level was consequently discoloured and diminished when it passed again to the lower land of the corporation. For this injury Pickles was held not liable. “It is the act”, said Lord Macnaghten, “not the motive for the act, that must be regarded. If the act, apart from motive, gives rise merely to damage without legal injury, the motive, however reprehensible it may be, will not supply that element”. 23 Three years later this was again emphasised by the House of Lords in Allen v Flood^24 and, for better or worse, it remains the general rule today. As we shall see, however, there are certain exceptional cases in which the evil motive of the defendant, if established, will tip the scales of liability against him.^25
Mixed motive. It is often the case that a person has more than one 3– reason for doing a particular act. In other words, motive is often mixed. When this is the case, the law generally regards a person’s dominant purpose as his motive^26 when, exceptionally, motive is relevant.
3– Malice. The term “malice” is used in several different ways in the law of torts. It may mean what the layperson usually takes it to be
