Unlike criminal law, where mens rea or guilty mind is an important factor to determine a crime, in a tort the state of mind of a person is not so important, and in fact irrelevant, except in certain cases (because unlike criminal law, the focus in the law of torts is not on punishing the wrongdoer, but vindicating the rights of the injured person). The term ‘malice’ has been raised in two different senses:

(a) Malice in law, and (b) Malice in fact.

Malice in LawIn its legal sense, the term ‘malice’ means “a wrongful act done intentionally without just cause or excuse.”

In Shearer v Shields (1914) A.C. 808, it was observed that a person who inflicted an injury upon another person in contravention of the law is not allowed to say that he did so with an innocent mind; he is taken to know the law, and he must act within the law. Thus, a wrongful intention is presumed in case of an unlawful act done without just cause or excuse or for want of reasonable or probable cause (Smt. S. R. Venkataraman v Union of India AIR 1979 SC 49).

Malice in FactIn its narrow and popular sense, the term ‘malice’ means an evil or improper motive. It is the malice in fact or ‘actual malice’. When a defendant does a wrongful act with a feeling or spite, vengeance or ill will the act was said to be done ‘maliciously’. Motive means an ulterior reason for the conduct e.g. motive for theft may be to buy food for his children or to help a poor man.

As a general rule, malice in the sense of improper motive is entirely irrelevant in the law of torts. The law in general asks merely what the defendant has done, not why he did it.

The case of Bradford Corporation v Pickles (1895) A.C. 587, explains that a lawful act does not become unlawful merely because of an evil motive. In this case, the defendant was held not liable for intentionally intercepting, by means of excavations on his own land, the underground water that would otherwise have flowed into the adjoining reservoir of the plaintiffs, although his sole motive in doing so was to force the plaintiffs to buy his land at his own price. The court observed that it is the act, not the motive for the act that must be regarded.

Similarly, in Town Area Committee v Prabhu Dayal (AIR 1975 All 132), the defendants (municipal authorities) had demolished the illegally constructed building of the plaintiff; the municipal commissioner was alleged to be an enemy of the plaintiff. Held that the plaintiff has suffered no ‘injuria’ (violation of a legal right).

Exceptions to the rule

In the following exceptional cases, the malice or evil motive becomes relevant in determining liability under the law of torts :

(1) When the act is otherwise unlawful and wrongful intention can be gathered from the circumstances of the case, In Balak Glass Emporium v. United India Insurance Co. Ltd., in a multi-storeyed building, the water from the upper storey, under the control of the defendant escaped to the lower floor, occupied by the plaintiff. There was evidence of ill will between the plaintiff and the defendant. It was found that not only the tap on the upper floor was left fully open, but the outlet of the tank was also closed. There was only one inference that the said act was done by the defendant, with the wrongful intention, and hence, the plaintiff was held entitled to get damages for the same.

(2) In the torts of deceit, conspiracy, malicious prosecution and injurious falsehood, one of the essentials to be proved by the plaintiff is malice on the part of the defendant.

(3) In certain cases of defamation, when qualified privilege or fair comment is pleaded as a defence, motive becomes relevant. The defence of qualified privilege is available if the publication was made in good faith. The presence of malice or evil motive negatives good faith and the defendant cannot avoid his liability by the defence of qualified privilege in such a case.

(4) Causing of personal discomfort by an unlawful motive may turn an otherwise lawful act into nuisance.

(5) Malice or evil motive may result in aggravation damages.

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