Applicability of Mental Element in Tort: Comparative Analysis with Crime

Tort is defined under section 2 (m) of the Limitation Act, “tort means a civil wrong which is not exclusively the breach of contract or the breach of a trust”. In this article, we will be dealing with ‘the applicability of mental elements in tort and the comparative analysis with crime. The difference between the mental element in crime and torts, how the mens rea is applied in crime, and how intention, motive, malice, negligence, recklessness, and the other mental elements work in torts. As jurist Salmond defined it – “It is the act and not the motive for the act that must be regarded. If the act, apart from the motive, gives rise merely to damage with legal injury, the motive, however reprehensible it may be, will not supplement that element”. The difference between mental elements in torts and crime and the different types of mental elements in torts will be discussed in depth with various case laws and judicial precedents. The questions to answer in this article are, ‘the importance of mental elements in torts’; ‘how the mental elements differ in crime and torts’ and ‘what significant role do mental elements play in determining tortious liability? The two different types of torts, intentional and unintentional torts will be discussed in depth. The mental element in this article refers to the person’s ‘intention’ to harm any other person by infringing his or her legal rights. The objective of this article is to study the comparative analysis with crime, how the mental element is essential in crime and not that relevant in torts, and vice versa. The article also deals with a critical analysis of the applicability of mental elements in torts and crime.