It is intended to reconcile the
policy of letting accidents lie where they fall, and the
reasonable freedom of others with the protection of the
individual from injury.
But the law does not even seek to indemnify a man from all harms.
An unrestricted enjoyment of all his possibilities would
interfere with other equally important enjoyments on the part of
his neighbors. There are certain things which the law allows a
man to do, notwithstanding the fact that he foresees that harm to
another will follow from them. He may charge a man with crime if
the charge is true. He may establish himself in business where he
foresees that [145] of his competition will be to diminish the
custom of another shopkeeper, perhaps to ruin him. He may a
building which cuts another off from a beautiful prospect, or he
may drain subterranean waters and thereby drain another's well;
and many other cases might be put.
As any of these things may be done with foresight of their evil
consequences, it would seem that they might be done with intent,
and even with malevolent intent, to produce them. The whole
argument of this Lecture and the preceding tends to this
conclusion. If the aim of liability is simply to prevent or
indemnify from harm so far as is consistent with avoiding the
extreme of making a man answer for accident, when the law permits
the harm to be knowingly inflicted it would be a strong thing if
the presence of malice made any difference in its decisions.
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