Tort Project 2003

        Malice is defined as

                a state of mind usually taken to be equivalent to intention or

                recklessness, it does not require any hostile attitude.

 Malice is said to be transferred when someone intends to commit a crime/tort against one person but in fact commits the same crime/tort against someone else. The following scenario is an example of transferred malice;A intends to hit B but misses and hits C instead. A had the intended malice to

 commit a tort against B but in tort law C cannot bring an action against A for battery.

                                                                                                                

        

        Although it is clear that criminal cases do not lay down rules or guidelines for civil law that should be adhered to yet in this instance it appears that in one eye of the law (ie) criminal a certain scenario would result in a crime being committed whereas in the other eye (ie) tort, this  same scenario would not result in a tort being committed. A simple example of this would be if A intends to hit B with a stick that he has thrown, in circumstances that would have amounted to The The doctrine of transferred malice is accepted in criminal law, in all jurisdictions including our own. The doctrine of transferred intent was established in the case of R. v Latimer. In this case the defendant aimed a blow at someone with his belt. The belt recoiled off that person and hit the victim who was severely injured. The Court held that the defendant was liable for maliciously wounding the un-expected victim as malice (ie) mens rea was transferred from his battery in crime would he have hit B, but A misses B and hits C instead. Although with regard to C the conduct of A is neither intentional nor negligent, A commits a crime. In tort this point is undecided.

        A person may fire a gun into a crowd at random thus not intending to kill the particular victim who in fact is killed or intend to shoot a particular person but in fact kill a bystander. This is sufficient mens rea in the form of intention as the particular mens rea may be transferred and applied to the actual actus reus. This doctrine only applies where the mens rea to be transferred and the actual actus reus involve the same type of crime in this instance murder. This is the basis for the doctrine of transferred intent and it does have the proper guidelines and boundaries laid down so it cannot be used in any situation, like any law it is there to protect the people and these conditions have to be followed for a plea of transferred intent to be successful so if a form of this doctrine was introduced to Irish tort law the courts could lay down similar guidelines to prevent the doctrine from being abused.

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        One jurisdiction which has accepted the concept of transferred malice in relation to battery in tort law is Northern Ireland. In researching this project it was difficult to uncover many cases where transferred malice has been accepted so when one as close as across the border from us arose it made me question even more why we have not yet accepted the process or if we ever will.

         The case in which is being used to highlight that sometimes transferred malice will be accepted is Livingstone v Ministry of Defence. In this case the plaintiff was struck and injured by a baton round fired by a soldier at a time when the security forces had cordoned off streets in the vicinity of Divis Street and Millfield in Belfast in order to prevent an unlawful procession reaching the centre of the city. It was part of the case for the defence that baton rounds were fired by the security forces after they had been attacked by rioters who threw stones and bricks and other missiles at them, this claim was not seriously disputed by the plaintiff. The plaintiff had pleaded his case against the defendant in assault and battery as well as negligence and the judge delivered his judgment only in relation to the claim in negligence. At the end of his judgment the learned trial judge stated:

                “ Therefore I am satisfied that the plaintiff has not

                discharged the onus of proof which is necessary.

                Indeed I put it further, I am satisfied that he was

                engaged in rioting and that there was no negligence

                by either of the defendants. So I dismiss the action.”

        The case was then appealed to her Majesty's Court of Appeal in Northern Ireland as the learned trial judge had not regarded the plead of assault and battery in giving his verdict. In hearing the appeal the learned trial judge Hutton J made reference to Mr, Kerr's argument for the defence when he put forward the decision in Cole v Turner when Lord Denning held that :

                “if he does not inflict injury intentionally, but only unintentionally,

                the plaintiff has no cause of action today in trespass”

        Mr. Kerr also cited the definition of battery :

                “Battery is the intentional and direct application

                of force to another person”

        Hutton J. held in his judgment that :

                “When a soldier deliberately fires at one rioter, intending to strike him,

        and misses him and hits another rioter nearby, the soldier has “intentionally”

         applied force to the rioter who has been struck. Similarly if a soldier fires a rifle

        bullet at a rioter intending to strike him and the bullet strikes that rioter and passes

        through his body and wounds another rioter directly behind the first rioter, whom

         the soldier had not seen, both rioters have been “intentionally” struck by the soldier

        and, assuming that the force used was unjustified, the soldier has committed a battery

         against both.”

         Hutton J. also referred to the case of James v Campbell in reaching his final conclusion that the soldier who had fired the baton round which struck the plaintiff was guilty of battery to the plaintiff and found that the plaintiff was entitled to damages unless the first named defendant could establish the defence that the firing was justified.

        The outcome of this case , by applying the concept of transferred malice proved that it could be more commonly applied in tort cases specifically in trespass to the person cases.  

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        In other common law jurisdictions the question of transferred malice in tort law is still  relatively undecided. It is quite difficult to predict whether the English, and Irish, Courts would follow the American ones, in following the criminal analogy by having recourse to a fiction of transferred intent.

        In America, a battery is defined as being

                                                                an action with intent to cause harm or offense or the apprehension of                 harmful or offensive contact plus the harmful contact actually happens                 but not necessarily as a direct result of that action.

        

        If the batterer acts intending to cause harm or offense or the apprehension of harmful or offensive contact and the offensive contact directly or indirectly results then you have a battery. If the intent was to cause harm or offense to a third person and the person misses and hits somebody else it is still held to be a battery.

        The case of Talmage v Smith accepted the Doctrine of Transferred Intent in American Law. According to this Doctrine of Transferred Intent if the defendant intends to hit somebody then the defendant will be held liable for hitting anybody. Another example of where the doctrine was accepted by the American courts is Carnes v Thompson. This case laid down that the courts would recognise transferred intent as well as recklessness in the area of tort law.

        Despite some developments in America there is no doctrine of transferred intent in English,Irish or Australian Law. The law of torts requires a state of mind of mental element which is specific to the act it governs the culpability of a defendant who claims he had no intent to harm the particular victim. Old English cases suggest force had to be direct but this may no longer be the case as in R v Haystead it was given a wide interpretation where the harm appeared to be indirect. Here, the defendant punched his girlfriend who was holding her baby resulting in the baby falling from her arms hitting his head on the floor. The defendant was convicted of battery on the baby. The Court held that direct can include via another person so for example setting a dog on someone can be direct force. The concept of transferred malice could have been successfully applied here also to achieve the same outcome.

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CONCLUSION

        In concluding this argument, I would like to clearly point out that in America the concept of transferred intent /malice has been accepted and is established in the Doctrine of Transferred Intention. I believe through the case law i have been able to locate on the issue of transferred intent  /malice being used in American tort law,  that it has proven to be quite successful since it has been introduced. Northern Ireland has also proven that a doctrine is quite workable and can be successfully applied in tort law. Even though since the application of this doctrine in the Livingstone case no further progress or guidelines have been laid down by the courts in relation to this issue.

        England currently has no doctrine of transferred intent / malice in tort law but it has widened its view towards the acceptance of such a doctrine and may be accepted fully into tort law in the near future.

        Despite these other common law jurisdictions progressing in the area of accepting the concept of transferred malice in tort law the Irish Courts, seem quite reluctant to follow in their footsteps

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BIBLIOGRAPHY

1.  Irish Law of Torts

    McMahon and Binchy, 1981

2.  A casebook on the Irish Law of Torts

     McMahon and Binchy

3.  Harry Street the Law of Torts (8th edition ) edited by Margaret Brazier

4.  Prosser and Keaton on the Law of Torts

     (5th edition)

5.  Cases and Materials on Torts

     William L. Prosser, John W. Wade & V. Schwartz  

     (7th edition 1982)

6.  Law of Tort        Vivienne Harpwood

7.  Criminal Law        Hogan and Smith 8th Edition

8.  Criminal Law        Peter Charleton, P.A Mcdermott and M. Bolger

9.  Murdochs Dictionary of Irish Law  Revised 3rd Edition 2000

10.  Northern Ireland Law Journals 1984

11.  Restatement 2nd of Torts 1965

                                

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