Article 57

The Basic Concept of

Gandhi Pandit*
Tort Law
Introduction and whose existence, is reflected in individual
Tort is a remarkably wide-ranging subject and actions seeking civil redress for injuries not
probably the most difficult of all legal areas to arising out of contractual relations, which can
lay down all-embracing principles in one book be traced back to primitive societies. It would
or article. Therefore, it is not possible to analyze therefore be a staggering task to write the
and discuss the concept of tort in comprehensive history of tort law. However, tort law is
manner. The method the writer has taken in developed and originated from common law
discussing the basic concept of tort law in this of England. It is not codified like other
article is to lay down a general pattern of tort branches of law. It is derived from Latin term
law and then to show some of the main "Tortum" which implies conduct that is
deviations from this pattern. In this article, the twisted or wrong.1
writer will attempt to explain some very basic
The typical torts that we have understood in
principles, which underlie the law of tort.
present time are intentional interference with
I. Meaning of Tort the person, such as assault, battery, or false
The word ‘tort’ is derived from the Latin imprisonment, as well as intentional
"tortus" meaning ‘twisted’. It came to mean interference with chattels and real property.
‘wrong’, and it is still so used in European Prior to the late nineteenth century, none of
countries. In the US, the word ‘tort’ has a these torts included as an element intentional
purely technical legal meaning – a legal harm by the defendant. The traditional torts
wrong for which the law provides a remedy. generally are traced from the common law
writ of trespass developed in 13th century in
A tort is a civil wrong in the sense that it is England.2
committed against an individual (which
includes legal entities such as companies) In the final decades of the nineteenth century,
rather than the state. The essence of tort Frederick Pollock and Oliver Wendell Holmes
law is to give protection to the interest and proposed a general theory of intentional tort,
right of a person. These interests protected a theory eventually known by the courts as
by law can be enforced by a court awarding the "prima facie tort doctrine." That doctrine
a sum of money, known as damages, for can be summarized in a simple proposition:
infringement of a protected interest. the intentional infliction of injury without
justification is actionable.3
II. History of Tort Law
Tort law is a field of law that encompasses Modern tort law recognizes a number of so-
material of considerable breadth and diversity called "intentional torts," that is, causes of
* Attorney at Law, Corporate lawyer practicing law in Supreme Court of Nepal
1
Kenneth J Vandevelde, " A history of Prima facie Tort: The origin of a general theory of Intentional Tort", Hofstra Law Review, vol
199, Iss 2 ( 1994)
2
Ibid
3
Ibid
58 el8{S6 cª\s $, @)&$

action, which arise only when the defendant helmets. The employer may be liable in a
acted with the intent to injure the plaintiff or tort called breach of statutory duty if the
with substantial certainty that his action employee does not wear a helmet and is
would injure the plaintiff. Examples of injured as a result.
modern intentional torts include several
ii. Damnum sine injuria
"traditional" intentional torts, recognized as
In some cases the act or omission of the
causes of action for centuries, such as
defendant may have caused damage to the
assault, battery, false imprisonment,
claimant but the claimant may have no action
trespass to chattels and trespass to real
as the interest affected may not be one
property.4
protected by law. Lawyers refer to this as
III. Basic Elements of Tort damnum sine injuria or harm without legal
a. Commission or Omission wrong. 7
The tort consists of an act or omission by
Example
the defendant, which causes damage to the
A opens a fish and chip shop in the same
claimant. The damage must be caused by
street as B’s fish and chip shop. A reduces
the fault of the defendant and must be a kind
his prices with the intention of putting B out
of harm recognized as attracting legal
of business. A has committed no tort as
liability.5
losses caused by lawful business
Example competition are not actionable in tort.
A drives his car carelessly with the result
IV. Interest Protected by Tort Law
that it mounts the pavement and hits B, a
a. Personal security
pedestrian, causing B personal injuries. The
act is A driving the vehicle. This act has People have an interest in their personal
caused damage to B. The damage was as a security. This is protected in a number of
result of A’s carelessness, i.e. his fault. The ways. If one person puts another in fear of
injury suffered by B, personal injury, is being hit, then there may be an action in the
recognised by law as attracting liability. A tort of assault. If the blow is struck, then the
will be liable to B in the tort of negligence person hit may have an action in the tort of
and B will be able to recover damages. battery. A person whose freedom of
movement is restricted unlawfully may be
b. Variation able to sue for false imprisonment. If personal
i. Strict Liability injury is caused negligently, then the
The elements of act (or omission) and claimant may have an action in the tort of
causation are common to all torts. There are negligence. 8
certain torts which do not require fault. These
are known as torts of strict liability. 6 b. Interest in property
Property in the broad sense of the word is
Example protected by tort law. A person has an
An Act makes it compulsory for employers interest in their land which is protected by a
to ensure that their employees wear safety number of torts such as nuisance and
4
Supra Note 4
5
John Cooke, Law of Tort, 8th ed. Pearson & Longman 2007 P 3
6
Catherine Elliot & Frances Quinn, The Law of Tort, Pearson & Longman, 7th ed 2009, P 3-5
7
Supra 6 P 4
8
Ibid Page 6
 The Basic Concept of Tort Law 59

trespass to land. Interests in personal If a person has a right to do something then

property are protected by torts such as his motive in doing it is irrelevant. 11
trespass to goods and conversion. Where
clothing or a car is damaged in a negligently Example
caused accident, then a person may have The defendant extracted percolating water
an action for damages in negligence. 9 in undefined channels with the result that
the water supply to the plaintiffs’ reservoir
c) Economic interests was reduced. The defendant’s motive in doing
Tort law will give limited protection to this was to force the plaintiffs to buy his land
economic interests where the defendant has at his price. The action failed, as the
acted unlawfully and has caused economic
defendant had a right to extract the water.
loss to the claimant. These are known as
As he had such a right, his motive, even if
the economic torts. Such protection is limited
malicious, was irrelevant.
because the common law has been cautious
in drawing the line between lawful and b) Intention
unlawful business practice. This is a line The meaning of intention varies according to
which is largely left to statute to draw. the context in which it is used. Intention is
d) Reputation and privacy relevant in three groups of torts: 12
Increasingly important are a person’s 1. In trespass, intention means where a
interests in their reputation and privacy. person desires to produce a result
Where a person’s reputation is damaged by forbidden by law and where they foresee
untrue speech or writing, then they may have it and carry on regardless of the
an action in the tort of defamation. There is consequences. The defendant must
no specific tort in English law to defend intend to do the act, but need not intend
privacy but there have been some interesting harm.
developments in this area, which are dealt 2. In cases of fraud, the defendant must
with in the chapter on privacy. make a statement, which they know is
untrue.
V. State of Mind in Tort10
3. In cases of conspiracy, if two persons
There are three states of mind which one
combine together and act to cause injury
may need to be aware of in tort law. These
to other person, then the other person will
are malice, intention and negligence. Where
have an action provided that they can
a tort does not require any of these it is said
prove that their primary motive was to
to be a tort of strict liability.
cause them damage.
a) Malice
Malice in tort has two meanings. (a) the c) Strict liability
intentional doing of some wrongful act without Whereas fault is a positive idea, strict liability
proper excuse; (b) to act with some collateral is a negative one. Under the principle of law,
or improper motive. strict liability means liability without fault. In
the last century, the emphasis was placed
In the sense of (b) above there is a basic by the courts on fault-based liability only,
principle that malice is irrelevant in tort law. and strict liability was generally ignored.
9
Supra 9
10
Ibid
11
Ibid
12
Supra Note 12
60 el8{S6 cª\s $, @)&$

The basic structure that encompasses that Various torts have been developed for these
of strict liability is the fact that liability is purposes. For example, the tort of nuisance
maintained despite any intent otherwise. In protects a person’s use or enjoyment of land,
this way, it matters only that the action was the tort of defamation protects his or her
performed to its fruition and an eventual injury reputation, and the tort of negligence protects
of another. Certain areas in which safety laws the breaches of more general duties owed
have had to come to the forefront concerning to that person.
liability include incidents involving product
defects. In cases such as these, consumers c) Deterrence
must only prove that their injuries stemmed It has been suggested that the rules of tort
have a deterrent effect, encouraging people
directly from the product in question in order
to take fewer risks and to conduct their
to garner an appropriate judgment from the
activities more carefully, mindful of their
court. The purpose behind such a seemingly
possible effects on other people and their
rigid form of legislature is to prevent future
property. This effect is reflected in the greater
occurrences from happening by providing
awareness of the need for risk management
precedence to fall in line with.13
by manufacturers, employers, health
What is common to all tort actions is the providers and others which is encouraged
idea of causation. The claimant must always by insurance companies. The deterrent
effect of tort is less obvious in relation to
prove that the defendant caused their injury.
motoring though the incentives to be more
There are frequently calls for drug
careful are present in the insurance premium
manufacturers to be made strictly liable for
rating system.
injury caused by their products. If this were
to occur then the claimant would no longer d) Retribution
have to prove negligence but would still be An element of retribution may be present in
faced with the difficult task of proving that it the tort system. People who have been
was that drug which caused their injury. harmed are sometimes anxious to have a
day in court in order to see the perpetrator
VI. Objective of Tort Law
of their suffering squirming under cross-
The objectives of the law of tort can be many,
examination. This is probably a more
some of which are summarized as below: 14
important factor in libel actions and
a) Compensation intentional torts than in personal injury
The most obvious objective of tort is to provide claims which are paid for by insurance
a channel for compensating victims of injury companies. In any event, most cases are
and loss. Tort is the means whereby issues settled out of court and the only satisfaction
of liability can be decided and compensation to the claimant lies in the knowledge that
the defendant will have been caused
assessed and awarded.
considerable inconvenience and expense.
b) Protection of interests The claimant also risks financial loss if the
The law of tort protects a person’s interests case is decided against him or her and this
in land and other property, in his or her is a factor to be weighed in the balance when
reputation, and in his or her bodily integrity. retribution is sought.
13
Catherine Elliot & Frances Quinn, The Law of Tort, Pearson & Longman, 7th ed 2009, P 6
14
See Richard Owen, Essential Tort Law, 3rd Ed, Cavendish Publishing, 2000 Page Page 7-12
 The Basic Concept of Tort Law 61

e) Vindication negligence, although they may be morally

Tort provides the means whereby a person reprehensible. On the other hand, the person
who regards him or herself as innocent in a who tries their best, but falls below the
dispute can be vindicated by being declared standard set by the court and causes
publicly to be ‘in the right’ by a court. damage, will be liable. There are three
However, again, it must be noted that many elements in negligence: 16
cases never actually come before a court
i) Standard of Conduct
and the opportunity for satisfaction does not
There are certain elements that are required
arise.
to prove that a defendant acted negligently.
f) Loss distribution There is a specific code of conduct, which
Tort is frequently recognised, rather all people are expected to follow, and there
simplistically, as a vehicle for distributing is a duty of the public to act in a certain
losses suffered as a result of wrongful way, which reduces the risk of harm to
activities. In this context loss means the others. Negligence can only be claimed by
cost of compensating for harm suffered. This an injured plaintiff, whose interests have
means re- distribution of the cost from the actually been interfered with. This portrays
claimant who has been injured to the that a plaintiff must prove his injuries, and
defendant, or in most cases the defendant’s prove that they were caused by the
insurance company. Ultimately, everyone defendant. This proximate cause is the link
paying insurance or buying goods at a higher between the defendant's actions and the
plaintiff's injuries.
price to cover
The standard set is an objective one. The
g) Punishment of wrongful conduct
court will apply the test of what a ‘reasonable
Although this is one of the main functions of
man’ would have done in the defendant’s
criminal law, it may also play a small part in
position. One effect of this test is that no
the law of tort, as there is a certain symbolic
account is taken of individual disabilities.
moral value in requiring the wrongdoer to pay
the victim. However, this aspect has become ii) Negligence Proof
less valuable with the introduction of The necessity for a negligence case to be
insurance. tried in a court of law is essential and evident.
Tort law, like any other law, is tough to decide
VII. Types of Tort
upon when an enforcement or violation issue
Tort is basically categorized in three types: arises, and is furthermore tedious. In
Negligence tort, Intentional Tort and Strict negligence cases, a court appoints a jury to
Liability Tort. 15 make a decision upon a case based on the
direct or circumstantial evidence that is
1) Negligence
available to them. The burden of proof a plaintiff
Negligence in tort has several meanings. It
faces in a case, relates to four elements of
may refer to the tort of negligence or it may
proof that must exist in order for them to be
refer to careless behaviour. Negligence does able to prove that a negligent act not only
not refer to a state of mind. A person who existed, but the fact that the act by a
totally disregards the safety of others but defendant, led to the injury sustained by the
does not injure them is not guilty of plaintiff.
15
See Anita Stuhmcke, Essential Tort Law, 2nd ed. Cavendish Publishing, 2001 15-25
16
Ibid
62 el8{S6 cª\s $, @)&$

iii) Proximate Cause harm another person. Another straightforward

The name given to the direct cause of an way that assault is sometimes defined is as
accident, or incident leading to injury, is an attempted battery. Indeed, generally the
referred to as 'proximate'. The term proximate main distinction between an assault and a
has long been known to mean near, or in the battery is that no contact is necessary for
vicinity of, not actual. This gives a an assault, whereas an offensive or illegal
misconception to the name, as if the cause contact must occur for a battery.
was nearly opposed to the actual one. Other
issues arise deeper within proximate cause, In assault, a person is subject to liability to
and that is with the scope of liability and its another for assault if (a) he acts intending to
extent. Controversy exists as to where cause a harmful or offensive contact with the
liability should be extended to a defendant, person of the other or a third person, or an
based on their responsibility or duty. imminent apprehension of such a contract,
and (b) the other is thereby put in such
2) Intentional tort imminent apprehension.
An intentional tort is an act that is
intentionally committed against another Even though contact is not generally
person with the aim of causing harm such necessary for an assault offense, a conviction
as assault, battery, conversion, fraud, false for assault still requires a criminal "act".
imprisonment, trespassing and invasion of
C. Battery
privacy. 17
A typical definition for battery is the
A. Trespass intentional offensive or harmful touching of
a) Trespass to a person: If one man another person without his or her consent.
intentionally applies force directly to another, Under this general definition, a battery
the plaintiff has cause of action on trespass offense requires all of the following:
to the person18. Trespass is defined in a case, i) Intentional touching;
Letang v. Cooper 1964, by Lord Denning ii) The touching must be harmful or offensive;
stating "If one man intentionally applies force iii) No consent from the victim.
directly to another, the plaintiff has cause of
A battery generally does not require any
action on trespass to the person…"
intent to harm the victim (although such intent
b) Trespass to land: It is simply a direct often exists in battery cases). Instead, a
and unlawful interference with land which is person need only have intent to contact or
in the possession of another.19 cause contact with an individual.

B. Assault 3) Torts of Strict Liability

Assault is often defined as an attempt to Although the vast majority of tort actions are
injure to someone else, and in some for negligence, it is not necessary to prove
circumstances can include threats or fault in some torts. All that needs be proved
threatening behavior against others. One is that the defendant committed the act
complained of, and that the damage was the
common definition would be an intentional
result of that act. These are termed torts of
attempt, using violence or force, to injure or
‘strict liability’. 20
17
Supra Note 16
18
Letang v. Cooper 1964
19
Chris Turner, Supra note 8 at 287.
20
John Cooke, Law of Tort, 8th ed. Pearson & Longman 2007 P 13
 The Basic Concept of Tort Law 63

Strict liability is a legal doctrine that makes a. that a statement was made about the
a person or company responsible for their plaintiff’s reputation, honesty or integrity
actions or products, which cause damages that is not true;
regardless of any negligence or fault on their b. publication to a third party (i.e., another
part. 21 person hears or reads the statement);
and
In this is kind of tort, the burden of proof or
c. the plaintiff suffers damages as a result
responsibility of the conduct cannot be
of the statement.
shifted to another person. Strict, or
"absolute," liability applies to cases where Defence to Defamation
responsibility for an injury can be imposed One absolute defense to defamation is
on the wrongdoer without proof of negligence consent. If the plaintiff consented to the
or direct fault. What matters is that an action publication of defamatory information about
occurred and resulted in the eventual injury him or her, the consent is a complete
of another person. Defective product cases defense. Another defense to libel or slander
are prime examples of when liability is is truth. Traditionally, it was presumed that
maintained despite intent. In lawsuits such a statement was false once the plaintiff
as these, the injured consumer only has to proved it was defamatory. 24
establish that their injuries were directly
caused by the product in question in order VIII. Tort and Contract
to have the law on their side. The fact that The remedy for breach of duty in tort is
the company did not "intend" for the usually an action for damages. The main aim
consumer to be injured is not a factor. 22 of tort is said to be compensation for harm
suffered because of the breach of a duty fixed
4) Defamation by law. 25
Not all torts result in bodily harm. Some
cause harm to a person's reputation instead. Contract on the other hand has been less
Defamation is the general tort that concerned with fault as a basis of liability,
encompasses statements that damage and it is often unnecessary to prove fault in
one's reputation. There are different forms of order to be compensated for a breach of
defamation, including libel and slander. The contract. All that is necessary to prove is
difference between libel and slander is simply that the act, which caused the loss, was
whether the statements are written (libel) or committed. This is known as strict liability,
spoken (slander). If a person suffers injury and is a feature of much of the law relating
to his or her reputation because of another to sale of goods. 26
person's statements, he or she can sue under
IX. Tort and Criminal law
the theory of defamation.23
Torts are concerned with the actions brought
It is the act that violates the privacy of another or to be brought by a private individual against
or the reputational injuries. In order to prove other individuals or legal persons. Whereas
defamation, the plaintiff must prove: criminal law is concerned with prosecutions
21
Ibid.
22
Ibid.
23
Ibid
24
Supra Note 21
25
Vivienne Harpwood, Modern Tort Law, 7th Ed, Routledge-Cavendish, 2009 page 13
26
Ibid.
64 el8{S6 cª\s $, @)&$

brought on behalf of the state for breaches compensate any victims of their wrongful
of duties imposed upon individuals for the activity. Insurance can also create problems
protection of society. Criminal prosecutions of waste because it is impossible to predict
are dealt with by criminal courts, and the when liability will arise and people may over-
standard of proof is more stringent than in insure. It has also been claimed that in some
civil cases. The consequences of a finding cases insurance motivates the law of tort. 29
of criminal guilt are regarded as more serious
for the individual concerned than are the Nevertheless, insurance is a useful way of
consequences of civil liability whereas spreading the cost of compensating people
standard of proof in tort claim is less stringent who suffer injury because of negligence.
than in criminal case. 27 Insurance allows people to recover damages
for negligent driving from close relatives, so
X. Insurance and the law of tort easing the burden of caring within families.30
Foundation of the modern tort system is the
arrangement of insurance, which provides XI. Conclusion
payment of compensation in most tort cases. Tort is difficult to define. It suffers throughout
from many internal inconsistencies because
Indeed, it is usually not worth the trouble
of haphazard decisions and judicial policy.
and expense of suing in tort unless the
It must be concluded that the search for a
defendant is insured (or is very wealthy). It
grand design, which gives the law of tort
is possible to insure against liability in tort
internal coherence, is naive and is likely to
in relation to many different activities. 28
prove inconclusive.31 But this law need to
There is, of course, a counter-argument improve and implement to protect personal
concerning insurance – that people who are and financial interest of a person.
aware that they are insured are likely to be Strengthening of tort law will properly redress
the victim from loss or injury caused by the
less careful because they can be confident
negligent actor.
that their insurance company will
27
Supra Note 24 page 5
28
Supra Note 24 page 6
29
Ibid.
30
Supra note 26 p 6
31
Ibid

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