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DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

SABBAVARAM, VISAKHAPATNAM, A.P., INDIA

Topic: Mental Element in Tort Law

Subject: Torts

Name of the Faculty: Prof. (Dr.) P. Sri Devi

Name of the Candidate: Anjali Gurumoorthy


Roll No.: 18LLB012
Semester: First
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Acknowledgement
I want to express my special thanks to my teacher Prof. (Dr.) P. Sri Devi, who gave me this
golden opportunity to do this wonderful project on the topic, ‘Mental Element in Tort
Law’, which also helped me in doing a lot of research and I came to know about a lot of
things.

Secondly, I also thank DSNLU for providing me with all the necessary materials required for
the completion of the project.
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Index
I. Abstract…………………………………………………………4
II. Research Question(s)…………………………………………...4
III. Literature Review………………………………………………4
IV. Research Methodology…………………………………………4
V. Introduction…………………………………………………….5
VI. What is Intention?....................................................................6
a) The Core of Intention………………………………………….6
b) Intention, Recklessness, and Negligence………………………7
c) Intention, Knowledge, and Belief……………………………..11
d) Intention and Proof…………………………………………..15
VII. Conclusion…………………………………………………….18
VIII. Bibliography…………………………………………………19
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Abstract
In ethical terms, intention is widely felt to be the strongest basis for the attribution of personal
responsibility for conduct and outcomes. By contrast, in tort law intention is a much less
important ground of liability than negligence. This article analyses the meaning of intention
in tort law and its relationship to other concepts such as voluntariness, recklessness, motive,
and belief. It also discusses difficulties associated with proving intention and other mental
states, and the idea of a general principle of tort liability for intention. The key to explaining
the relatively minor role of mens rea in tort law is found to lie in the emphasis tort law gives
to the interests of victims, and to social values, in constructing its concept of responsibility.
This approach also helps to explain the greater importance of mens rea in criminal law.

Research Problem(s)
1. Whether there exists a definite explanation for mental element in tort law?
2. Whether intention plays a major role in torts?

Literature Review
Sources regarding the study mostly include the web sources and certain books. Review is
done on a wider basis in order to elaborate accurately way. Data is collected from the web
sources too.

Research Methodology
The researcher has adopted the Doctrinal Research method of study. This makes the
collection of accurate information regarding the research topic Mental Element in Tort
Law.
Mental Element in Tort Law 5

INTRODUCTION
In ethical terms, intention is widely felt to be the clearest and strongest basis for
the attribution of personal responsibility for conduct and outcomes. In the law, this
view is reflected in the importance of intention as a ground of criminal liability.
By contrast, in tort law intention is a much less important ground of liability than
negligence. Indeed, it is no exaggeration to say that while responsibility for what
one does and brings about intentionally is the paradigm in the moral sphere 1,
liability for negligence is the paradigm in tort law. But before giving this
explanation, it is necessary to analyse what is meant by 'intention' in tort law. In
general, tort lawyers have not given much attention to this issue 2, and the
discussion in Section 2 i.e the definition of intention goes some way to making
good this omission.

1
Lacey, Declan Roche, and Jane Stapleton for penetrating comments on earlier versions. John Mackie's
'straight rule of responsibility J.L. Mackie, Ethics: Inventing Right and Wrong (1977), 208
2
W.V.H. Rogers, The Law of Ton (2nd edn, 1994) 15; W.V.H. Rogers (ed.), Winfield and Jolowicz on Ton (14th
edn, 1994) 48. F. Trindade and P. Cane, The Law of Torts in Australia (3rd edn, 1999) 30-6, 111-13, 146-8, 178-
9, 216-18, 224, 230-3, 243-4, 247-8.
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What is Intention?
A. The Core of Intention
What do we mean by 'intention'? As I have said, this is an issue to which tort lawyers
have given relatively little attention. Because of the importance of mens rea in
criminal law, the meaning of intention has been more discussed in that context3; but
it is not safe to assume that 'intention' is used in the same way in tort law as it is in
criminal law. There is also a large philosophical literature about intention, but there
are several reasons why that literature is not of much help for my project. For one
thing, philosophers tend to analyse intention primarily in terms of 'purpose'; but as
we will see, tort law takes a broader approach. Secondly, most philosophers do not
discuss legal meanings of intention; and those who do tend to focus on criminal law.
Thirdly, philosophers are by no means agreed amongst themselves about what we
mean by 'intention'. While the philosophical and criminal law literature can provide a
useful starting point, it needs to be supplemented by careful analysis of tort law. So
what is 'tortious intention'?
As a preliminary to answering this question it is important to distinguish between
conduct and consequences, because even in cases where tort liability rests on having
done something with the intention of producing certain consequences, liability for the
consequences of that conduct may not depend on their having been intended. This is
true of the tort of deceit, for instance: a person can be liable for deceit only if they
made a false statement, which they did not believe to be true, with the intention that
the addressee of the statement should rely on it. But liability for deceit extends
beyond intended and foreseeable harm to all harm directly caused by the tortious
conduct.
In both philosophical and legal literature, the most widely accepted account of the
'core' of the concept of intention in relation to conduct is based on the idea of choice;
and in relation to consequences, on the concepts of aim, purpose, and objective. What
one chooses (not) to do, one intends (not) to do; and events which one aims to bring
about (or avoid), one intends to bring about (or avoid). Many legal accounts of
intention also give a prominent place to desire. But the word 'desire' is ambiguous. In

3
For example, R.A. Duff, Intention, Agency and Criminal Liability (1990).
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one sense (which John Finnis dubs 'volitionally desiring') 4 what one chooses to do,
one desires to do; and events which one aims to bring about, one desires to bring
about. In this sense, 'desire' is synonymous with choosing or aiming at, as the case
may be. But in another sense (which Finnis dubs 'emotional desire')5, one may choose
to do what one would rather not do, and may aim to bring about events which one
would rather avoid. Intending is also to be distinguished from trying. Whereas in
relation to actions, doing something intentionally involves that one tried to do it, this
is not so in relation to omissions. A person can intentionally refrain from action
without trying to do so.

B. Intention, Recklessness, and Negligence


Defined in terms of purpose, intention is clearly distinguishable from recklessness.
Recklessness in its core sense is commonly conceptualized in terms of awareness of a
risk that certain consequences will result from conduct, and indifference to that risk 6.
A person intends a particular consequence of their conduct if their purpose is to
produce that consequence by their conduct. A person is reckless in relation to a
particular consequence of their conduct if they realize that their conduct may have
that consequence, but go ahead anyway. The risk must have been an unreasonable
one to take: a surgeon is not reckless simply by virtue of being aware of the risk that
the patient may die on the operating table. While the frame of mind of the intentional
agent is different from that of the reckless agent in relation to the consequences of
their conduct, their frame of mind in relation to the conduct itself is the same both set
out to engage in the conduct, the reckless person regardless of the risk of the
consequence, and the intentional person in order to produce that consequence. In
relation to their conduct both, we might say, engage in it deliberately.

Some people are willing to extend the concept of intention to consequences which
the agent realizes will almost certainly, or at least very probably, result from
deliberate conduct but which it was not the agent's purpose to bring about. This
extension is referred to as 'oblique intention', and its effect is to blur the distinction
or, at least, to move the boundary, between intention and recklessness. The precise

4
J. Finnis, 'Intention and Side-Effects' in R.G. Frey and C.W. Morris (eds.), Liability and Responsibility: Essays in
Law and Morals
5
Ibid.
6
A. Ashworth, Principles of Criminal Law (3rd edn, 1999) 184-5.
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location of this boundary is of less importance in tort law than in criminal law.
Although it appears that there may be 7 some circumstances in which a person can be
liable in tort for harm done to another only if the person aimed to do harm to the
other, in many situations it appears that recklessness is sufficient to satisfy a
requirement of intention8. An explanation for this, I think, is (as I have just said) that
the person who intends that their conduct should produce a particular consequence,
and the person who is reckless as to whether their conduct will produce a particular
consequence, both engage in the conduct deliberately. It is this element of
deliberateness in relation to conduct that links intention and recklessness and leads to
their assimilation in tort law. Doing deliberately something of which the law
disapproves is worse than doing it without deliberateness; and it is this line between
deliberate and non-deliberate conduct to which tort law gives prime significance.

Because liability for 'intentional torts' can sometimes be attracted by reck lessness, it
is important to map the boundaries of tortious recklessness, and in particular to map
the boundary between recklessness and negligence. The starting point must be to
understand the nature of tortious negligence. Negligence in tort law is failure to
comply with a legally specified standard of conduct, pure and simple. It has no
mental element.

On the one hand, the plaintiff in a tort action for negligence does not have to prove
inattention or inadvertence on the part of the defendant." Inadvertence is not a
precondition of tort liability for negligence (or under any other head). On the other
hand, if a driver intentionally rams a pedestrian with their car in order to injure, and
emotionally desiring to injure, the pedestrian, the driver could be held liable in tort
for negligence on the ground that a person who does that fails to take reasonable care

7
This exceedingly non-committal form of words is made necessary by the lack of clarity in and consistency
between judicial discussions of intention in tort law. The secondary literature is equally confused and
confusing
8
For example, American Law Institute, Restatement of Torts 2d, ?8A. In a recent article, Philip Sales and Daniel
Stilitz have argued that liability for inflicting harm by unlawful means will arise only if it was D's aim or purpose
to harm P either as an end in itself or as a means to some further end: 'Intentional Infliction of Harm by
Unlawful Means' (1999) 115 LQR 411, 425-30. In their view, there can be no liability if D merely foresaw the
risk of harm to P as a side-effect of what they intended, even if it was nearly certain to materialize. However,
their discussion wavers uneasily between the descriptive and the prescriptive.
Mental Element in Tort Law 9

for the safety of another9. Similarly, a driver who injures a pedestrian as a result of
speeding, having adverted to the possibility of harm and being consciously
indifferent to the risk, could be held liable in tort for negligence.

These examples illustrate a more general point. The elements of the various heads of
liability we call torts do not describe the conduct that falls within the relevant head of
liability. Rather they specify conditions for the imposition of liability. Conduct may
satisfy those conditions even if we would not 'naturally' describe it in terms of those
conditions. This is obvious in the case of strict liability. Absence of fault is not a
condition of strict liability.

Conduct may attract strict liability even if it was negligent, or even reckless or
intentional. Indeed, an important ant justification for strict liability, first put forward
by Justice Oliver Wendell Holmes, and taken over by modem economic analysts of
law10, is that it increases the chance that those guilty of fault will be held liable in
circumstances where proof of fault is difficult, albeit at the possible cost of imposing
liability in some cases in the absence of fault. It follows that in principle, conduct
may attract liability under more than one head. For instance, intentional conduct may
attract liability for negligence and also under some other head of liability for which
proof of intention is a condition. Thus, a fraudulent misstatement may attract liability
for negligence or for deceit. The plaintiff would have a choice whether to sue for
negligence or deceit, knowing that any advantages of liability for deceit over
negligence liability could be obtained only at the expense of undertaking the difficult
task of proving fraud.

Since tortious negligence involves no mental state, the line between it and 'conscious'
recklessness (which entails actual awareness of risk) is clear enough. In order to be
consciously reckless a person must take an unreasonable risk of which they were
actually aware, whereas a person can be negligent even if they were not aware of the
unreasonably risky nature of their conduct, provided they should have been. But in

9
In Reeves v Commissioner of Police of the Metropolis [2000] 1 AC 360 the House of Lords held that a prisoner
who committed suicide while of sound mind could be held guilty of contributory negligence for failing to take
reasonable care for his own safety. Conscious risk-taking, may attract liability for negligence.
10
3 See D. Rosenberg, The Hidden Holmes (1995) 126, 138-40; S. Shavell, Economic Analysis of Accident Law
(1987) 26-32, 264-5
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the context of criminal law, Anthony Duff has argued that a person can be indifferent
to a risk of which they are unaware, and that indifference need not be conscious but
need only be 'manifested in' conduct. It might seem very difficult to distinguish
recklessness so understood11 from failure to comply with a legally specified standard
of conduct. As Duff puts it (speaking of recklessness):
[We] could usefully ask this question: 'how else could a person who acted thus have
failed to notice that risk if not because he did not care about it?’12
In other words, whereas negligence is failure to take reasonable care to avoid causing
harm to others, recklessness is failure to care, as the normal person would, about the
risk that others may suffer harm as a result of one's conduct. For Duff, what
distinguishes recklessness from negligence is not that the latter is failure to comply
with a legally defined standard of conduct while the former is a frame or state of
mind, but rather that recklessness and negligence consist of failure to comply with
different legally specified standards of conduct.

Recklessness is unreasonable failure to care for the welfare of others, and negligence
is unreasonable failure to take care (i.e. precautions) to prevent harm to others. Of
course, a person who fails to meet the legal standard of caring for the welfare of
others may, in fact, have been aware of the risk. But just as intentional conduct may
amount to tortious negligence, so too, applying Duff's view, 'conscious' recklessness
could constitute recklessness defined as un reasonable failure to care for the welfare
of others. This does not, however, alter the nature of the legal tests of negligence or
recklessness, respectively.

Duff's approach to recklessness was developed in support of certain leading decisions


in English criminal law; and whatever one thinks of it in that context, I am not aware
of any evidence to support its applicability to tort law. From now on, therefore, I
shall assume that recklessness in tort law means conscious recklessness. Because
recklessness may satisfy a requirement of intention in tort law, I shall use the term
'tortious intention' to refer to this composite of intention and conscious recklessness,
and 'intention' by itself to distinguish intention from recklessness. For the sake of

11
Which Duff calls 'practical indifference’
12
6 Above n 3 at 166. In some cases, the test of negligence is not 'did D behave unreasonably?', but 'was D's
behaviour such as no reasonable person could have engaged in?'. In such cases, the line between negligence
and recklessness (as understood by Duff) might be very fine indeed.
Mental Element in Tort Law 11

simplicity, parts of the discussion that follows will refer only to intention. However,
in most instances, something very similar to what I say about intention could, I think,
be said about conscious recklessness as well.

C. Intention, knowledge, and belief


Intention is related to belief. Normally, saying that a person intended some conduct
or event X involves saying that they believed X not to be impossible. Similarly, to
say that a person was consciously reckless in relation to a particular outcome
involves saying that they believed the outcome not to be impossible. In some torts,
the mental element may be expressed in terms of 'lack of honest belief': for instance,
lack of honest belief in the truth of a statement in deceit, and lack of honest belief
that what one did was intra vires in misfeasance in a public office. Lack of honest
belief in X implies awareness of the risk that not X. To make a statement, aware of
the risk that it might be false, is to make a false statement recklessly.18 Secondary
tort liability for inducing and authorizing the tortious conduct of another will arise
only if the defendant knew of the circumstances which made the conduct tortious
(although, of course, they need not have appreciated that it was tortious). In other
words, the 'secondary party' must have acted with deliberation in furthering the
tortious conduct.

D. Motives in tort law


(i) Intention and motive
In tort law it is important to distinguish between intention and motive. In
relation to intentional conduct, one's motive is the reason why one engages in
the conduct or intends its consequences. In any particular case, intention and
motive may coincide: a person may aim to produce a particular outcome
because they desire it. But equally, they may diverge: a person may
intentionally do X not because they desire to do X but because, for instance,
they promised to do X; indeed, the person's desire may be not to do X.
(ii) Bad motives
Mental Element in Tort Law 12

In tort law, bad motives are referred to as 'malice'. The concept of malice is
important to an understanding of tortious intention because to say that a
person's conduct was malicious implies that it was intentional or consciously
reckless. Indeed, intention and conscious recklessness are sometimes
themselves referred to as 'malice', but this confusing terminology is better
avoided. A person can act intentionally or recklessly for good reasons.
Confusing, too, and better avoided, is using the term 'malice' to describe the
making of a statement without qualification, as if it were true, but with the
belief that it might not be true. Such conduct is better described in terms of
recklessness. A person can make a statement, which they believe to be true,
out of a bad motive13.
Malicious motives are of two types which I shall refer to as 'intrinsic' and
'collateral'. Intrinsic malice is inherently reprehensible. Collateral malice need
not be inherently reprehensible. For instance, malice defeats a defence of
qualified privilege in defamation; and in this context, malice may consist in
using an occasion of privilege for some purpose other than that for which the
privilege is given, even if it is not inherently reprehensible. Furthering one's
own interests is not regarded by the law as inherently reprehensible, but it can
constitute collateral malice. Inherently reprehensible motives include 'spite or
ill-will', and emotionally (as opposed to volitionally) desiring to harm
someone or to make a gain at their expense. People often have mixed
motives, and tort law uses the concept of 'predominant motive' to measure, in
a vague way, the relative strengths of mixed motives.

Malice plays a role in various contexts in justifying the imposition of tort


liability. Malice, both intrinsic and collateral, can defeat certain defences to a
prima facie case of defamation (as can conscious indifference to truth).
Intrinsic malice is one basis of liability for injurious falsehood (the other is a
belief that the statement might be false); and it is a precondition of liability
for abuse of legal process.14 There can be no liability for lawful means
conspiracy unless the conspirators' predominant motive was intrinsically
malicious.

13
thern Territory of Australia v Mengel (1995) 185 CLR 307, 370, per Deane J.
14
P. Cane, Ton Law and Economic Interests (2nd edn, 1996) 266-8
Mental Element in Tort Law 13

There is authority for the proposition that malicious conduct can constitute an
actionable nuisance even if it does not amount to an unreasonable interference
with the use and enjoyment of land (which is the normal test of an actionable
nuisance) 15. But care is needed here. The test of unreasonableness in nuisance
operates as a standard of conduct, and it is similar to the ordinary concept of
negligence in tort law. While maliciously causing someone harm can be
'negligent' within the meaning given to that term in tort law, harm-causing
conduct cannot be negligent merely by virtue of being malicious. So how can
malicious conduct attract liability for nuisance if it is not an unreasonable
interference with the use and enjoyment of land?
The situation here is different from that in defamation or injurious falsehood.
In those cases, malice justifies the imposition of liability for conduct which is
prima facie wrongful-in the case of injurious falsehood, the making of a false
statement and in the case of defamation, the making of a (false) defamatory
statement. But in the case of nuisance, the supposed effect of malice is to
justify the imposition of liability for conduct which is prima facie lawful. This
would not create a problem if, as in the case of lawful means conspiracy,
intrinsic malice were a precondition of liability in every case; but malice is
not an element of the basic test of nuisance. John Finnis says:
[t]he claim that ... bad motives cannot delegitimate lawful means ...
sophistically ignore[s] one of morality's most elementary principles and one of
moral philosophy's most strategic themes ... One's conduct will be right only if
both one's means and one's end(s) are right ... all the aspects of one's act must
be rightful for the act to be right 16.
In this passage, and throughout the section from which it comes, there is an
equivocation between intention and motive. But Finnis's basic point seems to
be that where harm is done out of a bad motive (immorally), there should be
liability unless, for instance, D inflicted the harm on P in response to a refusal
by P to do or to abstain from doing something which it was already P's legal
duty to do or not to do; or D enjoyed legal privilege; or where D's conduct
was an omission in circumstances where D had no (?legal) duty to act. The
15
Trindade and Cane, above n 2 at 634-5; J.G. Fleming, The Law of Tons (9th edn, 1998) 472
16
J. Finnis, 'Intention in Tort Law' in D.G. Owen (ed.), Philosophical Foundations of Ton Law (1995) 238 (original
emphasis). Finnis's specific comment on nuisance is at 241, n 51.
Mental Element in Tort Law 14

thrust of Finnis's argument is against the English law, established in Allen v


Flood, that in the absence of combination, intentional harm-causing will
attract tort liability only if the conduct which caused the harm was
intrinsically unlawful; and in favour of the American prima facie tort
doctrine, under which intentional infliction of harm is actionable unless
'justified', that is, done for a good motive or proper reason.

By recognizing exceptions to his general rule, Finnis undercuts his position


because the exceptions allow the defence that what was done, despite bad
motive, was not unlawful17. Consistent with this concession we might argue,
in relation to nuisance, that liability for doing with a bad motive that which
would not be a nuisance (or any other legal wrong) if done for good reason is
anomalous. On the other hand, an explanation which fits some (although not
all) of the relevant nuisance cases in which liability was based on bad motive
is that what the defendant did served no useful social purpose.

Furthermore, since the test of unreasonable user in nuisance is a utilitarian


balancing test, this explanation would suggest that in the 'malice' cases, the
defendant's conduct was actually an unreasonable use of land precisely
because it served no useful social purpose. Take Christie v Davey18, for
instance. The defendant was held liable for making loud noises 'maliciously'
and 'only for the purpose of annoyance' in order to interrupt a neighbour's
music teaching even though, it was said, the offending conduct would not
have amounted to a nuisance if it had been done 'perfectly innocent[ly]'. We
might argue that the means chosen by the defendant to deal with the situation
were likely to exacerbate conflict and, therefore, unreasonable (or, as the
court put it, 'not legitimate'), regardless of D's motives.

What is anomalous, we might think, is a rule under which a person whose


conduct was reasonable should be held liable merely because it was not also
sweet.

17
J.B. Ames, 'How Far an Act May be a Tort Because of the Wrongful Motive of the Actor' (1905) 18 H
18
0 [1893] 1
Mental Element in Tort Law 15

(iii) Good motives


In tort law, good motives find their place in the concept of 'justification',
although not all justifications are good motives-some are legal powers or
privileges. The most firmly established justifying motive in tort law is self-
interest. In the tort of lawful means conspiracy, a predominant motive of
furthering one's financial interests can justify conduct which is also motivated
by a desire to injure another; but self-interest cannot justify interference with
rights under existing contracts, even if unlawful means have not been used.
There is authority for the proposition that a desire to protect or further some
moral or social principle of good conduct can justify interference with
contractual rights, at least if unlawful means have not been used 19. But the
cases do not establish a general rule that unlawful means can never be
justified, nor even a general rule that unlawful means can never be justified
by pursuit of self-interest20.

E. Intention and proof


So far I have been discussing the nature and content of the concepts of intention and
recklessness. It is one thing to understand what mental states count as intention and
recklessness, but quite another to prove that a person acted intentionally or
recklessly. In practice, it may be very difficult to give effect to distinctions that are
clear in theory. The classic legal approach to proof of intention starts with the
proposition that intentions are not directly observable. From this it is concluded that
in order to determine whether a person's conduct was intentional and whether its
consequences were intended, we must rely either on that person's account of their
frame of mind at the relevant time, or on 'inferences' from their conduct and its
surrounding circumstances. This conclusion in turn has important implications for
analysis of the legal concept of intention.

Even leaving aside the possibility of lies, defects of memory, and ex post facto
rationalizations, and assuming truthfulness, the agent's own account of their mental
state will inevitably be mediated through their understanding of the concept of

19
2 Brimelow v Casson [1924] 1 Ch 302. See generally Fleming, above n 23 at 762-4; J.D. Heydon, Economic
Tons (2nd edn, 1978), 42-4; also 19-22, 24-6 (re
20
J.D Heydon, 'The Defence of Justification in Cases of Intentionally Caused Economic Loss', 20 U Toronto LJ
131, 171-82 (1970).
Mental Element in Tort Law 16

intention. In other words, the account is unlikely to consist merely of 'raw' data about
the agent's frame of mind. A skilled questioner might hope to be able to elicit useful
information from the agent about their state of mind, but we should not, perhaps, be
too sanguine about the 'accuracy' of self-reporting of past mental states even in
response to skilled interrogation.

In the common case where the subject's mental state has to be inferred from
behaviour and surrounding circumstances, the position is much worse. In such cases,
it seems to me, a judgment that a person's conduct was intentional will be
underpinned by an assertion about the 'normal person', not about the agent. In relation
to conduct, the reasoning will go something like this: the agent's conduct must have
been intentional because what the agent did is not the sort of thing that people
normally do unintentionally. And in relation to consequences, the reasoning will go
somewhat as follows: the agent must have intended these consequences because they
are not the sort of thing that people normally bring about unintentionally. If I am
right about this, 'inferred intention' as we might call it, is not a frame of mind at all;
rather it expresses a judgment about the way people normally (ought to) behave.

My argument is not that when a person is found, by inference, to have intended


conduct or its consequences, they did not so intend. They may or may not have had
the intention which is attributed to them; and so they may or may not bear the
responsibility which attaches to intentional conduct and intended consequences.
Rather my point concerns the relationship between the meaning of intention and the
criteria for the imposition of legal liability for intentional conduct. Consider strict
liability: as was noted earlier, an important justification for strict liability is that it
increases the chance that those guilty of fault will be held liable in circumstances
where proof of fault is difficult. Similarly, the 'normal person test of intention' is a
concession to the difficulty of proving intention-a rebuttable presumption of
intention, in other words. And because it is rebuttable, the agent may escape liability
by proving that in fact the conduct in question and its consequences were not
intended. The truth remains, however, that for practical purposes this concession
turns a finding of intention from a proposition about a person's (subjective) frame of
mind into a statement about normal behaviour. It does not follow that the agent may
not bear the responsibility of having acted intentionally. But it does follow that
Mental Element in Tort Law 17

bearing this responsibility is not a necessary condition of incurring legal liability for
having acted intentionally.

This startling conclusion might seem to open up an even larger gap than the one I
identified at the beginning of this article between ideas of responsibility outside the
law and responsibility in (tort) law. The gap I referred to initially is created by the
fact that legal responsibility can arise even in the absence of intention. But here we
find that legal liability for intentional conduct may arise even in the absence of
intention! However, I think that the gap is not as large as it might appear at first sight.
Most moral philosophers confine their attention to the meaning of concepts such as
responsibility and intention, and ignore problems of proof. But the problems of proof
that arise in legal contexts also arise in moral contexts as soon as we go beyond
defining intention and concern ourselves with the practical matter of imposing
sanctions (such as blaming and shaming) for intentional conduct. It does not follow,
of course, that problems of proof are solved in the same way in extra-legal contexts
as in legal contexts. But the problems arise in both places and need to be resolved in
both places. We have no greater access to other minds in 'ordinary life' than in the
courtroom. However, because heavy sanctions can attach to legal responsibility,
problems of proof typically need to be addressed in legal contexts more urgently and
carefully than in non-legal contexts.

Motives, too, may present problems of proof21. The problems and the possible
solutions are, no doubt, similar in nature in relation to motives as in relation to
intention; although we might think that proving why a person behaved as they did
would be even harder than proving that their conduct executed a plan. It is one thing
to say that a person's conduct manifested a plan of action; or to say, 'given what you
did, you must have intended it', or 'the reasonable person would not have done X
without a plan'. It is quite another thing to say that a person's conduct reveals their
reasons for action; or to say, 'given what you did, this rather than that must have been
the reason for your conduct’; or that ‘the reasonable person would not have done
what you did for the reason you say motivated your conduct'.

21
Allen v Flood [1898] AC 1: R.F.V. Heuston and R.A. Buckley (eds), Salmond and Heuston on the
Mental Element in Tort Law 18

CONCLUSION
The concept of 'intention' is used loosely in tort law. Sometimes it appears as a
synonym for 'voluntary'; sometimes it is described as a 'motive'; and it is often used to
embrace recklessness. In this paper I have attempted to clarify the meaning and role of
intention in tort law and the relationship between tortious intention and motive. I have
argued that the minor practical and symbolic importance of tortious intention is a
function of the fact that tort law is as much concerned with the interests of victims and
of society as with those of agents. I have also argued that the normative pluralism of
tort law makes the project of discovering or generating a general principle of liability
for intention difficult and undesirable. These arguments support a broader thesis to the
effect that the concept of 'responsibility' which underlies tort law in particular, and
civil law in general, is 'relational' in the sense that it cannot be captured by focusing
on the conduct of 'the responsible person' at the expense of the interests of the victim
and of society more generally. Development of this broader thesis must await another
occasion.
Mental Element in Tort Law 19

Bibliography
I. Ratanlala and Dhirajlal, Law of Torts
II. Peter Cane, Oxford Journal of Legal Studies
III. WVH Rogers, The Law of Tort
IV. F. Trindade and P. Cane, The Law of Torts in Australia
Mental Element in Tort Law 20