In tort law the culpability of the defendant’s conduct is defined with reference to the consequences of that conduct. Negligence is conduct that gives rise to a foreseeable and substantial risk of its consequences. As the likelihood of the consequences increases, the conduct of the defendant may be described first as grossly negligent and then as reckless.2Conduct is not, however, intentional unless the defendant either desires the consequences of his conduct or the consequences are substantially certain to result from the conduct.
The first definition of intentional conduct is intuitive. Intent commonly connotes a subjective desire to cause the consequences of one’s actions. When one person stabs another he wants to injure him. The injury is said to be caused with actual intent. Conduct is also intentional if the consequences, while not desired, are substantially certain to result from the defendant’s conduct. Imagine, for example, a defendant who shot into a crowd of people, hitting and injuring B. He cannot avoid liability for the intentional infliction of harm to B by claiming that he meant to hit C. It was substantially certain that he would injure someone and that is sufficient to make the act intentional. To excuse
the defendant from liability would reward stupidity and exclude extremely dangerous and morally culpable conduct from the reach of the intentional torts. In such circumstances, the defendant is said to have constructive or imputed intent.
The definition of intent has been extended further by the concept of transferred intent. It arises, for example, where A intends to shoot B but misses and hits C, whom A had no actual intention to injure. Sometimes constructive intent can be found in such cases, but if it is inapplicable because, for example, it was not known that there was anyone else nearby, A’s intent to injure B is transferred to C. This legal fiction is justified on the grounds of the serious moral culpability of the defend-ant’s behaviour and the complete innocence of the plaintiff. As between A and C, the loss, in all fairness, should be allocated to A. It has even been suggested that intention may be transferred from one intentional tort to another.3It may apply, for example when A intends to shoot B (a battery) but misses and hits C’s...