presumed to exist by law, the liability is limited to nominal damages. Presence or intention of absence of immaterial. It is clear that these consequences may be intended or may not be intended, or may only be intended in part; but the liability for them, when they are traced home to the act, is consequences independent of any such intention or absence of intention. If therefore the actor's state of mind affects the question in any way, it is not with reference to the consequences of acts, but only with reference to the acts themselves. Actor's state affects acts of mind alone. Acts are involuntary, intentional, or It becomes necessary therefore to consider the liability incurred in respect of intentional acts, and also of involuntary acts. But there is another class of acts in respect of which negligent. liability attaches, which are termed negligent, and which must be considered separately. meanings of Some little difficulty arises from the different ways in which Different the word negligence is used. There is the precise meaning word negliattached to the word by writers on jurisprudence; there is gence. the indefinite meaning of ordinary use, when it signifies carelessness; and there is the wider, but still somewhat indefinite meaning implied by the term legal negligence. between recklessness, It is not unimportant to bear in mind the exact meaning Distinction of the word, and the distinction which Austin has so carefully negligence, drawn between negligence, recklessness, and heedlessness. and heedlessAs to the last two the acts themselves are intentional. In ness. the simple case of intentional acts, there is a knowledge of the consequences and a deliberate intention that they shall follow the act. Where, however, there is a knowledge of the consequences, and no deliberate intention that they shall follow the act, this neglect of consequences is termed recklessness; and where there is no knowledge of the consequences, and no regard is paid to whether any, or none, follow on the intentional act, this neglect of consequences is termed heedlessness. Negligence implies, on the other hand, the neglect of an True meaning act; and since tortious liability cannot attach simply for the of negligence. neglect of an act without more, for negligence to become a Legal negli gence. The duty neglected may be positive or negative. Heedlessness and reckless ness not independently recognised in law. tort there must be implied a breach of some duty, and it must therefore mean neglect of an act which a person was bound in duty to perform; or, shortly, neglect of a duty. Austin thus points out the distinction between negligence and heedlessness [I. p. 441]: "Negligence and heedlessness both suppose unconsciousness. In the first case the party does not think of a given act; in the second case, the party does not think of a given consequence." The conclusion to which Austin arrives is that it is impossible for negligence to be intentional; and in the strict language of jurisprudence this is no doubt accurate. But as we have already said, negligence is not used in legal language with so much strictness as jurisprudence requires. Its principal feature however, the neglect of an act or of a duty, remains the same. But acts are of omission and of commission; and duties are positive and negative-duties to do, and duties to forbear. When an act which should have been done is left undone, a positive duty is left unperformed; and when an act which should have been left undone is done, a negative duty is broken; in both cases there is a neglect of a duty, or legal negligence. The act in respect of which legal negligence may be charged may therefore be something done, or something left undone; and so long as this act is a breach of duty, the intention, or absence of intention, of committing it would seem to be immaterial. So also must be the intention, or absence of intention, with regard to the consequences. Thus it appears that in legal phraseology heedlessness and recklessness have disappeared: in part being absorbed by the term legal negligence; in part falling under the specific torts, which may be committed heedlessly or recklessly. Legal negligence may consequently be regarded as a convenient term under which are grouped all those acts whether of commission or omission which do not fall under the head of malicious or fraudulent injuries, nor to which such definite names as trespass, slander, libel, false imprisonment are applied. Nor does this lead to any very grave inaccuracy because the states of mind only determine the fact of liability, while the measure of liability is determined by the consequences. The consideration of Mens Rea thus divides itself into Involuntary Acts, Negligence, and Intentional Acts; these last splitting up into Fraud and Malice, and generally also into the other well-known torts. § 1. INVOLUNTARY ACTS. It is no defence that injury is un intentional. "As to the want of criminal intention," said Lord Kenyon, 2 East 92. C.J., in Haycraft v. Creasy, "in the party making the false representation, I have learnt from Lord Bacon's maxims that there was a distinction in that respect between answering civiliter et criminaliter for acts injurious to others. In the latter case the maxim applied, actus non facit reum nisi mens sit rea; but it was otherwise in civil actions, where the intent was immaterial if the act done were injurious to another." The intent here referred to is obviously intentional injury; and does not refer to the consequences of involuntary acts. There are numerous examples of persons being held liable for unintentional injuries, and it may serve to emphasize the distinction which we have dwelt on, and to point out clearly what an involuntary act is, if we notice shortly one or two of the best known cases. "If a man assaults me so that I cannot avoid him, and I lift my staff to defend myself, and in lifting it up, undesignedly hit another who is behind me, an action lies by that person against me; and yet I did a lawful act in endeavouring to defend myself: " James v. Campbell (per Blackstone, J., in Scott v. Shepherd). Scott v. Shepherd, and indeed all the cases in which the question of remoteness of damage has been decided in the plaintiff's favour, are so many examples of unintentional injuries for which the person causing them has been held liable. 5 C. & P. 372. 2 W. Bl: 892. P Hob: 134. 3 East 539. I Str: 596. 3 Lev: 37. So also in the case "where one was shooting at butts for a trial of skill with the bow and arrow, the weapon then in use, in itself a lawful act, and no unlawful purpose in view: yet having accidentally wounded a man, it was holden to be a trespass, being an immediate injury by an act of force from another. Such also was the case of Weaver v. Ward, where a like unfortunate accident happened whilst persons were lawfully exercising themselves in arms." (Lord Ellenborough, C.J., in Leames v. Bray.) In Underwood v. Hewson, the plaintiff was looking at the defendant, who was uncocking a gun: the gun went off and wounded him, and it was held that he could recover. The defendant in mowing his own land, by accident, and as he alleged unintentionally, mowed a little of the plaintiff's land. He was held liable: "the fact being voluntary, his intention and knowledge are not traversable, they cannot be known:" Baseley v. Clarkson. Thus it will be seen that what are called accidents may nevertheless form the subject of an action; the fact that the injury was not intended being more in the nature of an excuse or apology, and is not a defence in law. The only question considered in these cases was whether the act was voluntary, and in all of them it manifestly was; the legality or illegality of the act, and the design or absence consequences, of design to injure, making no difference (1). The intention to injure cannot be looked into, it is immaterial; the defendant's act is either right or wrong: Simmons v. Lillystone. Only consideration, was the act, which produced the voluntary. 8 Ex: 431. But even in voluntary acts, liability for the consequences is taken away if these consequences are to be attributed to the plaintiff's own negligence, unless the defendant in his turn could reasonably have avoided it. As in the case put by L. R. 1 Ex: at Blackburn, J., in Fletcher v. Rylands: "Suppose a man leans P. 274. 4 C. B. 806. against my cart. If I remove the cart suddenly, and without warning, not knowing he is there, I am not liable; but if I (1) So in a case of infringement of patent, the question must be determined by the facts without reference to the existence or non-existence of a fraudulent intention: Stead v. Anderson. Chap. VII. § 1. INVOLUNTARY ACTS. do so knowing that he is there, though he has no right to lean against my cart, yet I am liable if my act injures him." acts. But where the act is purely involuntary no liability attaches No liability for involuntary in respect of it, however great an injury may have been suffered. This principle was recognized in Beckwith v. Shor- 4 Burr: 2092. dike; the facts of the case, however, were held to constitute a voluntary act. The marginal note has been frequently quoted down to the present day: "A merely accidental involuntary trespass may be justified, but a voluntary one cannot." squib case. Turning once more to the famous squib case, Scott v. Shep- [ante, p. 164.] herd, it was thought quite clear that Willis and Ryall, not Illustrated by being free agents with regard to their share in passing the squib on, but acting under a compulsive necessity, and, as we have already pointed out, automatically, were not liable. Or to take another example, a boy pushes another boy against a third, who is impelled against a fourth, who is impelled against a fifth, who is driven against a wall and injured. An action would lie only against the first; the acts of the second, third and fourth, being involuntary, would involve no liability: hand and strike another." "If one as if one should take my person makes use of another, who is a mere instrument, to do any act, the thing done is the act, not of him who is merely the instrument, but of the person who uses him as such instrument." (Holroyd, J., Ilott v. Wilkes.) One of the best illustrations that can be found of the principle is Holmes v. Mather, where the defendant's horses, while being driven by his servant in the public highway, ran away, and became so unmanageable that the servant could not stop them. The plaintiff was knocked down and injured. The only real difficulty in the case arose from the fact that the servant in endeavouring to stop them, gave the horses a pull or inclination in the direction of the plaintiff: but this, as Bramwell, B., pointed out, made no difference, the fact remaining that the horses were running away with the carriage. "If it were not so," said the learned judge, "it would come to this: If I am being run away with, and I sit quiet and let P 2 of a ministerial [Note the case servant, ante, p. 75-1 3 B. & Ald: 304. 261. L. R. 10 Ex: Illustration of run away with. a man being |
