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Transferred malice in tort law?
Published online by Cambridge University Press: 02 January 2018
Abstract
Should the doctrine of transferred malice operate in the law of tort? Although there has been little written on this topic in England and Wales, it appears generally to have been accepted by academic commentators that the answer to this question is in the affirmative. Consequently, when the High Court in Bici v Ministry of Defence applied the doctrine to the tort of battery, most regarded this as unremarkable. This paper, however, argues that this position is mistaken: that the doctrine of transferred malice has, and can have, no place in the law of tort. The paper also examines the nature of intention operative in the law of trespass and its relationship with recklessness.
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- Copyright © Society of Legal Scholars 2009
References
1 See, eg, Agnes Gore's Case (1611) 9 Co Rep 81; R v Latimer (1886) 17 QBD 359; R v McCullum (1973) 57 Cr App R 645. The doctrine is also known as transferred intent and transferred mens rea.
2 Prosser and Keeton on the Law of Torts (St Paul MN: West Group, 5th edn, 1984) pp 37–39 Google Scholar. Prosser mentions as partial exceptions Scott v Shepherd (1773) 2 Black W 892, 96 ER 525 and James v Campbell (1832) 5 Car & P 372.
3 [2004] EWHC 786 (QB), (2004) The Times June 11.
4 [1984] NILR 356.
5 (1832) 5 Car & P 372.
6 (1866) 4 F & F 1019.
7 Giliker, P and Beckwith, S Tort (London: Sweet & Maxwell, 2nd edn, 2004) p 325 Google Scholar; (whose support is cautious); . Compare n 78 and p 123, who claims that the doctrine operates in tort law but expresses uncertainty as to whether it ought to. Compare also , who maintains that ‘The criminal law doctrine of “transferred malice” has no place in the law of torts’.
8 Bici, above n 3, at [68]–[71].
9 Ibid, at [42]–[48].
10 Whether or not this is actually relevant is examined below.
11 Bici, above n 3, at [50].
12 Ibid at [53].
13 See ibid at [54]–[58].
14 Cf Gross (1913) 77 JP 352, which deals with provocation. In Bici, the judge ruled that the soldiers were not acting in self-defence with respect to Fahri Bici and so the defence did not defeat Mohamet Bici's cause of action.
15 Not everything that is true of the criminal law is true of tort, of course. For just one example concerning self-defence, see Ashley v Chief Constable of Sussex [2008] UKHL 25, [2008] 1 AC 962.
16 See also Gordley, J Responsibility in crime, tort, and contract for the unforeseeable consequences of an intentional wrong: a once and future rule?’ in Cane, P and Stapleton, J (eds) The Law of Obligations: Essays in Celebration of John Fleming (Oxford: Clarendon Press, 1998) pp 183–196 Google Scholar, whose argument makes no distinction between the criminal law and tort law, assuming that the relevant reasons apply equally to each.
17 See, eg, A-G's Reference (No 3 of 1994)[1998] AC 245. See also Ashworth, A Transferred malice and punishment for unforeseen consequences’ in Glazebrook, PR (ed) Reshaping the Criminal Law: Essays in Honour of Glanville Williams (London: Stevens, 1978 Google Scholar);
18 See also Gordley, above n 16, pp 179–180.
19 J Horder ‘Transferred malice and the remoteness of unexpected outcomes from intentions’[2006] CLR 383. For a reply, see Simester, A and Sullivan, B Criminal Law: Theory and Doctrine (Oxford: Hart, 2007) p 158.Google Scholar
20 Ibid.
21 Simester, A and Brookbanks, W Principles of Criminal Law (Wellington: Brookers, 2002) p 135 Google Scholar (citation omitted; original emphasis). See also Gordley, above n 16, pp 183–188.
22 Note that, even accepting Horder's view that remoteness ought to play a role here, when that rule prevents liability that is not because the defendant killed someone other than the intended victim. It is rather because the killing of the unintended victim happened in a way that was remote from the defendant's intention.
23 Simester and Brookbanks, above n 21, p 136.
24 One might further add that labelling transferred malice a doctrine may have led to the impression that it did produce, or that it ought to have produced, legal consequences, thus resulting in an over extension of its ambit. Compare, for instance, the way in which courts have dealt with the ‘doctrine’ res ipsa loquitur.
25 Again, this relates to the controversy over the application of the doctrine to criminal law mentioned above. Those who object to the doctrine argue that, in practice, it is not always redundant in that it does have (undesirable) legal consequences. These issues are not under examination here.
26 Horder, above n 19, at 383.
27 Ibid.
28 For clarification, the relevant standard may include a necessary result. For the crime of murder, for example, the relevant societal standard includes a prohibition on actually killing someone.
29 Speaking generally, corrective justice theorists build their understandings of the law on similar notions. But it is no part of the argument here that the above necessarily implies an acceptance of corrective justice theory. Hence, even those who claim to reject corrective justice theory should accept this argument. Nor is the position advanced here the same as the one Robert Stevens labels the privity doctrine: Stevens, R Torts and Rights (Oxford: Oxford University Press, 2007 CrossRefGoogle Scholar) ch 8, supported in different terms in ) ch 6 (in recent times, this view goes back to at least )). The view here is consistent with that doctrine, though it does not require it. The point is simply that the law of tort must be about the claimant as well as the defendant. Exactly how it is about the claimant can be left undecided. For an analysis of the doctrine of transferred malice in terms of corrective justice, see at 295 n 47.
30 Note that, although private prosecutions can sometimes be brought, they are not understood as relevantly different to public prosecutions. In particular, there is no requirement that only the victim of a crime can bring a private prosecution. In fact, the RSPCA regularly bring private prosecutions for cruelty to animals. This leads to a further question: if the impersonality doctrine applied to the law of tort, why should it be impossible to sue in tort for injuries to someone else's animals? Moreover, it is also significant that, in criminal law, the state maintains overall prosecutorial authority and has the power to stop any action. See Prosecution of Offences Act 1985.
31 Note that the position taken here is not that when A commits a crime against C, A commits no personal wrong to C. Usually, perhaps always, A will have done so. The claim is only that it does not automatically follow from the fact that A committed a crime against C that A committed a personal wrong against C. The proposition expressed by ‘A wronged C’ is not entailed by that expressed by ‘A committed a crime against C’.
32 See ss 130–134 of the Powers of Criminal Courts (Sentencing) Act 2000.
33 Note that the point here is not one about the function of the criminal law. The claim is not that the criminal law's purpose is retributive rather than, say, deterrent or rehabilitative. The point is that the response of the criminal law to a crime is aimed at the perpetrator and reflects the degree of the perpetrator's wrongdoing, not the injury to the victim per se. I take no stand on whether this response is best explained in terms of retribution, deterrence, rehabilitation, etc. In other words, ‘punishment’ is used here in its wide rather than narrow sense.
34 Assuming, that is, that they are punitive. For the attempt to interpret them otherwise, see Stevens, above n 29, pp 85–88; Edelman, J In defence of exemplary damages’ in Rickett, C (ed) Justifying Private Law Remedies (Oxford: Hart, 2008 Google Scholar). For an attempt to redefine ‘punitive’ so that aggravated damages can also be redescribed as punitive and thus that ‘punitive damages’ can be defended, see P-W Lee ‘Contract damages, corrective justice and punishment’ (2007) 70 MLR 887.
35 For an analysis of the use of ‘function’ in law, see Beever, A ‘The law's function and the judicial function’ (2003) 20 New Zealand Universities Law Review 299.Google Scholar
36 Cf Powers of Criminal Courts (Sentencing) Act 2000.
37 Simester and Brookbanks, above n 21, p 136.
38 As John Murphy has pointed out to me, a better label for such a doctrine would be ‘the doctrine of transferred intent’. This is because the relevant parts of tort law are concerned with intent rather than malice. As I do not support the application of the doctrine, however, and because a doctrine of transferred intent would not fit the policy arguments used to support it, I make nothing of this.
39 Prosser, above n 2, p 38.
40 See also Rogers, above n 7, p 303: ‘the law insists, and insists quite rightly, that fools and mischievous persons must answer for consequences which common sense would unhesitatingly attribute to their wrongdoing’. See also Gordley, above n 16, pp 183–196.
41 R v Pembliton (1874) LR 2 CCR 119; R v Taaffe [1984] AC 539.
42 Here I assume arguendo that battery is fault based because that is what the policy arguments require. In fact, my view is that battery is not fault based.
43 Significantly, as I have shown in Beever, A Justice and punishment in tort: a comparative theoretical analysis’ in Rickett, C (ed) Justifying Private Law Remedies (Oxford: Hart, 2008 Google Scholar), this understanding of the law is deeply embedded in the way in which most modern lawyers conceptualise the law of negligence.
44 See most famously Palsgraf v Long Island Railroad Co 162 NE 99 (NY CA 1928); Bourhill v Young [1943] AC 92.
45 Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd (The Wagon Mound, No 1) [1961] AC 388 (PC); Doughty v Turner Manufacturing Co Ltd [1964] 1 QB 518.
46 See, however, Gordley, above n 16, pp 196–198.
47 I am assuming that after OBG Ltd v Allan[2007] UKHL 21, [2008] 1 AC 1, the tort of conspiracy has been merged into the tort of causing loss by unlawful means. See ibid, at [7] and [20]; Carty, H ‘The economic torts in the 21st century’ (2008) 124 LQR 641 Google Scholar at 659–660. Cf Revenue and Customs Commissioners v Total Network SL[2008] UKHL 19, [2008] 1 AC 1174.
48 Watson v Dutton Forshaw Motor Group (unreported) 22 July 1998 (CA).
49 Oliphant, K The economic torts’ in Oliphant, K (ed) The Law of Tort (London: Butterworths LexisNexis, 2007 Google Scholar) para [29.77].
50 For a reply to the notion that the principle underlies the whole of the law of tort, see Beever, above n 43, pp 270–277 and 290–292.
51 Again, the most important cases are Palsgraf, above n 44; Bourhill, above n 44; Overseas Tankship, above n 45; Doughty, above n 45.
52 One might wish to argue that the order should rather be 5, 7, 8, 6. Nothing turns on that difference here.
53 Rogers, above n 7, p 88.
54 Note that the issue being discussed here is not the impersonality doctrine. The reason it matters that D did not intend to touch F is not because the impersonality doctrine has been rejected per se. Recall that that doctrine is not about the defendant's intentions. Rather, the reason is first because the tort of battery requires intention. It is to this notion that the rejection of the impersonality doctrine applies. Given that the cause of action in battery is defined to include intention and given that the impersonality doctrine does not apply, it follows that the intention must be an intention to touch the claimant.
55 As indicated, the most important alternative remedy will be negligence. In Bici, both claimants succeeded in negligence.
56 Bici, above n 3, at [79].
57 Ibid, at [80] (emphasis added).
58 Note that Elias J said of Fahri Bici that ‘No doubt he would have heard gunfire, but on the night in question that would not necessarily have caused him any anxiety’: ibid, at [79].
59 Ibid, at [58].
60 Recall that Elias J held that the soldiers were not firing in self-defence. It might be the case that Elias J's mistake at this point is caused by his overlooking his own finding regarding the allegation of self-defence.
61 Ibid, at [78].
62 See especially R v Cunningham [1982] AC 566.
63 Bici, above n 3, at [58].
64 In fact, in saying that the solders were not reckless, Elias J seems to have meant that they did not lose military discipline. That was not the relevant issue.
65 Ashworth, above n 17, p 176. Citation from Law Commission, Criminal Law: A Criminal Code Law Comm No 177, HC 299, cl 18. I take this to summarise in clearer terms the consequence of cases such as R v Nedrick [1986] 1 WLR 1025 and R v Woollin [1999] 1 AC 82, which extend intention beyond purpose in the context of murder as follows: ‘Where the charge is murder and in the rare cases where the simple direction is not enough, the jury should be directed that they are not entitled to find the necessary intention unless they feel sure that death or serious bodily harm was a virtual certainty (barring some unforeseen intervention) as a result of the defendant's action and that the defendant appreciated that such was the case’. Any differences between the approach in those cases and the one supported by Ashworth and the Law Commission are not important here. Moreover, it is important to recall that the issue is not the definition of intention in the criminal law but in the law of tort. I am assuming, for the moment, that they are the same. As we see below, however, things are more complicated.
66 Bici, above n 3, at [79].
67 Ashworth, above n 17, p 176.
68 Cf Elias J's claim concerning the soldiers' alleged recklessness: ‘it would be surprising if they lost their discipline in such a fundamental way, and there is no obvious reason why they should have done so’: Bici, above n 3, at [58].
69 There was also an assault of Skender Bici (despite the judge's contrary finding), a conclusion that also did not require a doctrine of transferred malice.
70 Above n 2.
71 Ibid, at 528.
72 Most of the judges ignored the issue of intention. The central focus of the judgments was on whether the defendant touched the claimant directly. See also Trindade, FA ‘Intentional torts: some thoughts on assault and battery’ (1982) 2 OJLS 211 CrossRefGoogle Scholar at 219.
73 [1965] 1 QB 232.
74 Livingstone, above n 4, at 361.
75 Ashworth, above n 17, p 176. See also n 65 above.
76 Rogers, above n 7, p 88.
77 Bici, above n 3, at [49]–[58].
78 See also Trindade, above n 72, at 222. No claim is made here about the nature of intention in the torts of causing loss by unlawful means or inducing breach of contract. Some, commenting on an earlier draft of this paper, have remarked that the resulting definition of ‘intention’, including recklessness, is extremely broad. But this cannot be an objection to my argument. I am not arguing that intention should be, but observing that it is, so defined. Of course, it might be the case that the accepted definitions of ‘intention’ are too broad, but that issue lies beyond the scope of this enquiry.
79 See also ibid, at 224.
80 With respect to both this and the next case, I ignore the fact that the claim was then called assault rather than battery.
81 [1976] QB 421.
82 See also Trindade, above n 72, at 224.
83 R v Pembliton, above n 41; R v Taaffe, above n 41.
84 In fact, Elias J expressed some awareness of these points. He said that he found it ‘surprising to apply the principle of transferred malice from animal to human, however reprehensible violence to the former may be. Given the extension since those times of the principle of negligence, it may be that a different conclusion would now be reached’: Bici, above n 3, at [69]. I agree entirely, but the point can be generalised.
85 Prosser, above n 2, pp 37–39.