The Absence of the Concept of Transferred Malice in Irish Tort Law

The Absence of the Concept of Transferred Malice in Irish Tort Law

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The Absence of the Concept of Transferred Malice in Irish Tort Law


The title of this assignment, which i propose that i shall be
revisiting for the purposes of this tort project is that: “the concept
of transferred malice is not accepted in Irish tort law”

In dealing with this topic I will inevitably be looking at what a
battery is, what is transferred malice, cases in other jurisdictions
which have accepted the concept of transferred malice in tort law,
transferred malice in crime and why it is accepted in criminal law,
and finally my arguments as to why I believe it should be adopted into
our jurisdiction.

In examining this topic it will be necessary to refer to case law of a
number of jurisdictions such as America, Australia, the UK, Northern
Ireland, and Ireland.

I look forward to revisiting this topic and examining this aspect of
law and its influences. It shall certainly be a learning process and a


First of all what is a battery? A battery is a trespass against the
person, the definition we accept in this jurisdiction arose in the
case of Dullaghen v Hillen and King[1], as being

the direct application of physical force upon

the person of another without his consent.

There are five required elements to constitute a battery having been
committed. These are

1. a voluntary act by the defendant

2. physical contact or impact to the plaintiff

3. intention or negligence on behalf of the defendant

4. causation

5. no consent.

An attack on him is an obvious example[2]. A tort of battery may be
committed by spitting in his face[3], by overturning a chair he is
sitting on[4], or striking a horse so that it throws him[5]. In
Humphries v Connor[6] the Court of the Queens Bench was agreed that

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the removal by a policeman of an orange lily from the clothes of a
woman could constitute a battery.

The tort of battery protects the person against physical contact to
which he or she does not expressly or impliedly consent. In order to
constitute a battery the contact must have directly resulted from the
defendants act[7]. This is because battery is a species of trespass
which stresses the need for direct relationship between the defendants
act and the injury suffered. Where the defendants conduct results in
indirect injury the plaintiff may not benefit of any recompense, a
separate action on the case may be available to him[8] although the
scope of such action has not yet been clearly articulated by the
Courts. Hence my project, to reform this area of tort law in relation
to the specific area of transferred malice.

Malice is defined as

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

recklessness, it does not require any hostile attitude[9].

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[10]. 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[11]. 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[12]. 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.
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[13]. 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.” [14]

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[15]
when Lord Denning held that :

“if he does not inflict injury intentionally, but only

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”[16]

Hutton J. held in his judgment that :

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

and misses him and hits another rioter nearby, the soldier has

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[17] 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.
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.[18]

The case of Talmage v Smith[19] 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[20].
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[21]
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[22]. The concept of
transferred malice could have been successfully applied here also to
achieve the same outcome.

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[23]. 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[24]. 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[25] towards the acceptance of
such a doctrine and may be accepted fully into tort law in the near

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

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

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.

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

10. Northern Ireland Law Journals 1984

11. Restatement 2nd of Torts 1965



[1] ( 1957) IR Jur Rep 10 (Circuit Court, Judge Fawsitt, 1956)

[2] Donoghue v Coyle (1953-54) IR. Jur Rep 30 (Circuit Court Sheehy J.
1954), Howard v Boner, 78 I.L.T.R 3 (Circuit Court,
O'Briain J. 1943) , McGee v Cunnane 66 I.L.T.R. 147 ( Circuit Court,
Moonan J. 1932) , McCann v Mannion, 66 I.L.T.R. 161 (Circuit Court,
Moonan J. 1932) , Grealy v Casey I.N.I I.R 121 (CA 1901)

[3] R v Cotesworth 6 Mod 172, 87, ER, 928 (1704)

[4] Hooper v Reeve 7 Taunt 698 at 699, 129 E.R. 278 AT 278 (per
Gibbs CJ. 1817)

[5] Dodwell v Burford 1 Mod 24, 86 E.R. 703 (1670)

[6] 17 IR C.L.R.1 (Queens Bench 1864)

[7] Leame v Bray 3 East 593 at 603 (per le Blanc J. 1803)

[8] Cf Street 24,26-27

[9] Oxford Dictionary of Law



[11] Street on Torts page 31-32



[13] ( 1984) NI 354 (CA)

[14] Hutton J in delivering his verdict

[15] (1965) 1 Q.B. 232 at 239 D

[16] Winfield & Jolowicz on Tort 12th Edition at page 54


[17] ( 1831) 5 Car. & P 372, 172 E.R. 1015


[18] Restatement ( second) of Torts 1965

[19] 1894

[20] 1932, Supreme Court of Missouri

[21] 2000

[22] Mitchell (1983) Q.B. 741.





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