The Defendant's Fault
Jill Cottrell · 2018
The basic approach of the common law would suggest that neither inebriation nor insanity should excuse - though they might negative actual malice. If the hearers or readers of the statement knew of the condition of the defendant, it would surely be appropriate for the court to hold that the words would not have been taken seriously - by analogy with "mere abuse". The traditional form of pleading - that the defendant was "malicious" - is just a piece of pleader&s;s embroidery, and is quite unnecessary to a prima facie case. The situation so far as insanity is concerned seems obscure. Lord Esher seems to have suggested that an inability to understand the nature and quality of his act would generally exempt from civil liability - at least he said that if a person did understand this he would be liable.