Explain mens rea or intention in torts

Mens rea is principle of law associated with law of crimes. It says that, in order to constitute a crime mens rea is necessary. It must be accompanied with the actus reus (guilty act). However, it is not so in case of torts.

However, some qualification of the general statement is necessary. In torts, while ascertaining the liability of the wrongdoer, unlike in crimes of assault, false imprisonment, malicious prosecution, conspiracy or even battery, the state of the mind of the person committing the offence is irrelevant.

In the tort of negligence, certain amount of care is expected of a person and if he does not take the expected care, then he is liable for the tort. However, if he took expected care, then he will not be liable even if his act causes damage or injury to the other person.

Hence, if the conduct of a person is innocent in regard to the act done by him and injury is due to the inevitable accident, then he may not be liable for the tort. Thus, an injury caused to a drowning person in saving him and forcible feeding of a prisoner who is on hunger strike are not actionable acts.

Outstanding feature of law of tort is that the liability arises in some torts even when there is no bad intention, no malicious intention or motive to cause harm or injury. Therefore, if a statement made by a person turns out to be defamatory, he cannot take the plea that, he had no intention to defame.

This proposition can be illustrated with the help of the doctrine of strict liability in the light of the Ryland v. Fletcher case. It says, if a person makes a non-natural use of his land by collecting there something which is likely to do mischief on escaping, then he will be liable if the thing escape and causes damage. In such cases, he cannot take the defence that, he was not negligent in collecting it or allowing its escape.

Essential elements of a tort

In order to constitute an act or omission a tort, there must be some act or omission on the part of one party and such an act should constitute one of the torts; and the act or omission should result in causing some damage or injury or violation of legal rights vested in the other party.

Act or Omission

In order to constitute a tort, there must be an act or omission. It may be either negative or positive. In either case, it is the act which is considered as unlawful. When a person has a legal duty to perform and if he fails to perform, then he can be made liable.

Resultant Damage

Mere act or omission or failure to perform an obligation or a duty will not constitute a tort, unless otherwise it results in some injury or damage to the person suing for violation of his legal right. This can be explained with the help of two maxims injuria sine damno and damnum sine injuria.

Injuria sine damno

If a legal right has been violated, remedy must be provided. This principle lays down that, if an absolute right of an individual has been violated, an action lies even if no injury or damage results. It is actionable per se. i.e., no need to prove any damage. E.g. Trespass.

On the other side, if a qualified right has been violated no action lies unless actual damage or injury has resulted. Hence, in case of nuisance or malicious prosecution, actual damage or injury must be proved.

In Ashby v. White, the plaintiff was a qualified voter at a parliamentary election. However, the returning officer, the defendant in the present case wrongfully refused to take plaintiff’s vote. Though no loss was suffered by such a refusal, as the candidate to whom the plaintiff actually wanted to vote won the election, court held the defendant liable for committing a tort.

Damnum sine injuria

If there is no violation of legal right, even though the act of one party causes harm or injury to the other, no action can be taken. In other words, howsoever gross the damage or injury may be, if there is no violation of legal right, damages or relief cannot be claimed.

In Gloucester Grammar School case, the defendant, a school master set up a rival school to that of the plaintiff of the present case in the same locality. As a result, the plaintiff had to reduce their fees so as to compete with the defendant. It was held by the court that, the defendant had not committed any tort. Hence, the plaintiff is not entitled for any remedy.

Define tort and explain the nature of tort

In every jurisdiction, law imposes a duty to respect and not to violate rights vested to the members of its society. Any individual committing a breach of such duty commits a wrong OR his such an act is said to be wrongful.

Rights are generally classified as public rights and private rights.Public rights are those which affects the entire society, whereas the private rights are those which affects the individual. It is often said that, a wrong which is not a crime, which is not a breach of contract or which is not a breach of trust is a wrong of tort.

The word tortis derived from the Latin word tortum, which means twist. Like all other wrongs, tort is a wrongful act whereby the wrongdoer commits the breach of legal right vested in some individual.Tort is a civil wrong but not all civil wrongs are torts.

Tortious liability arises from the breach of a duty primarily fixed by law. This duty is towards the persons general and its breach is redressable by an action for unliquidated damages. Three main elements in tort are;

1. Civil Wrong
2. Civil wrong other than a breach of obligation under a contract or trust; and
3. Claim is always for unliquidated damages

Tort belongs to the category of civil wrongs. The basic nature of wrong is different from criminal wrong. In case of civil wrong the injured party or the plaintiff institutes civil proceedings against the defendant. The main remedy available under tort is damages.

If a civil wrong does amount to breach of contract or trust then it is a tort. It is often said that, if civil wrong is neither of these, then it is a tort. Monetary compensation in most torts is the only remedy available to the aggrieved party, and monetary compensation, by the very nature of the wrong cannot be claimed in fixed sum of money: the final determination of damages or monetary compensation is to be made by the court.

Nature of a tort can be understood by differentiating

1. tort and crime; and
2. tort and breach of trust

What is the difference between tort and crime?

In order to understand the concept of law, we always try to distinguish the same from crime. In crime we find that, the normal marks are that, the state has power to control the procedures to remit the penalty or to inflict punishment.

There are various wrongs which find the place both under criminal law and law of torts. Some examples of such wrongs are; assault, defamation, negligence, conspiracy, and nuisance. Definition of any of these wrongs may be different under civil and criminal laws.

For the purpose of civil liability for any one of the wrongs, the rules of torts will be applicable and for the purpose of criminal liability the rules of criminal law will be applicable.

In case of crime the offender is prosecuted in a criminal court and if the offence is committed, it will result in a jail term or fine or both. In case of a civil wrong, it is only monetary compensation that can be awarded. In no case, the person who has committed a tort can be sentenced to a jail term.

Tort and breach of contract

When parties have voluntarily undertaken certain obligations under a contract, and any party commits a breach of that obligation, he commits a breach of contract. Whereas, in tort, the obligation is imposed by the law and when a person commits a breach of said obligation, he may be guilty of committing tort.

In both tort and breach of contract, the usual remedy is by way of monetary compensation, though in a contract, the compensation may be liquidated amount, while in torts; it is always as an unliquidated amount. Sometimes, in both tort and breach of contract, injunction may be the only remedy.