• Legis Scriptor

Intention and Tort liability

Authored by Ishaanvi

Keywords: liability, assault, battery, tort.


A tortious liability could arise if an individual causes any injury relating to the life, property, reputation, etc. of the victim. According to tort law, the liability may be incurred regardless of whether the injury was intentionally or accidentally inflicted. In tort assault battery infliction of mental distress damages awarded in tort cases when intent is proven are ordinarily larger and more successful than negligence cases. Plaintiffs charging defendants with intentional tort should prove that the defendants acted wittingly while committing the offense, and that the offense might have damaging consequences. If the defendant is nesciant of the potentially detrimental consequences, his or her actions might not constitute intentional tort, but rather negligent tort.


Intent is a cognitive framework and therefore can’t be proven directly, but must be inferred by the court through evidence.[1] Depending on the intention, a tort can be divided into two categories namely:

1. Intentional Tort

2. Unintentional Tort

a) Intentional Tort

Some action must be taken with a motive to commit an intentional tort, i.e. an intention is must to do an act. It’s essential that there is a mental element.

Garratt v. Dailey

In 1955, a young boy, Brian pulled a chair from beneath Ruth Garratt as she went to sit down. Ruth fell and broke her hip because chair pulling by him. Ruth filed a lawsuit against his family claiming to have acted intentionally, causing her personal injury. Even though Brian did not intend to cause injury, the court found that the act resulted in the hip being broken and awarded Ruth $11,000 in damages. Brian’s family appealed on the grounds that children 5 years of age couldn’t be held liable for an intentional tort. The court ruled that children can be held liable and that the intent element is in place if the person knew with certainty that the act carries a possibility of injury.

[2]Intentional tort includes:


Battery occurs when a person physically forces the other person without the person’s consent.


When one person’s act creates a discernment another person’s mind that such act is likely or intended to cause such harm.

The difference between battery and assault is, in battery, physical contact is essential while in assault, physical contact is not essential as the purpose is to threaten not to harm.

False Imprisonment

It’s the person’s unlawful confinement without his will. It’s not necessary to place a person behind bars, a mere impossibility of escape from a certain area against the person’s will is sufficient to constitute false imprisonment wrong. It covers the use of physical force (actual expression of force is not always required), a physical barrier such as a locked room, and illegitimate use of legal authority. False arrest is the part of false imprisonment that covers police detention of the person without legal authority. Malicious prosecution falls under this category:


It is the intentional invasion of property, land, person or goods. The unreasonable intrusion can harass or harm the other person, regardless of how slight it may be. The owner of the property’s legal right is contravened because the misappropriation or exploitation of his right deprives him of his right to enjoy the benefit of the property.

b) Unintentional Tort

The defendant causes injury to the plaintiff in the case of unintentional torture, but without any mala fide intention. It could be called an unexpected accident. This was unwittingly done by the person who caused the injury because he/she was not being careful. Such an individual may be considered as negligent or reckless. In the case of unintentional tort, it may be noted that the injury is caused by the omission of the “duty of care” that a reasonable and prudent man should have considered.

Wilkinson v. Downton

The defendant joked that her husband had come across an accident and had been admitted to a hospital. She was appalled by this news and fell seriously ill. She eventually sued the defendant for damages under tort. The defendant claimed he ne’er wanted to harm the plaintiff, but only cut a joke. The court dismissed his claim, holding him liable. Here, the court observed that mere intention was not a crucial factor in tort. The defendant was cognizant of the natural and probable consequences of his act which caused the plaintiff to suffer damage. He was consequently held liable, whether he intended to do so or not.


[3]By “mental elements”, we mean an individual’s ‘intention’ to harm another person by infringing his or her legal rights. Intention means a state of mind where the wrongdoer is cognizant of his actions and their consequences. Furthermore, he has a desire to achieve these consequences. In criminal law, a crucial ingredient of crime is the mental element. Here the mere act of the wrongdoer isn’t enough to hold him liable for an offense. Another necessity is the presence of a guilty mind.

The underlying principle is that a wrongdoer can’t escape liability under the law of tort, simply because he has no intention of causing harm. Even though, in some cases, an offender may not be held liable (e.g., qualified privileges).





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