LAW311 Law of Torts — Unit 1: Introduction to Tort

Unit 1: Introduction to Tort

Syllabus coverage in this unit
1.1 Meaning and Definition of Tort · 1.2 Essential Elements of Tort · 1.3 Foundation of Tortious Liability and Difference between Tortious Liability and Other Types of Liabilities · 1.4 Strict Liability against Tort · 1.5 Comparison between Tort and Crime, Contract and Breach of Contract

1.1 Meaning and Definition of Tort

The standard definition (learn it exactly): a tort is a civil wrong, other than a breach of contract, for which the remedy is an action for unliquidated damages — Winfield’s classic formulation: the breach of a duty fixed by law, owed to persons generally, redressed by the damages action. “Unliquidated” is the key: the amount is determined by the court after the wrong, not fixed in advance (the contract’s liquidated-contrast).

The word: Latin tortus — twisted, wrong (the French wrong family) — the law’s name for the private wrongs.

The functions (the exam’s list — five):

1. Compensation — the victim’s restoration (the primary function);
2. Deterrence — the wrong’s pricing (the future wrongs’ discouragement);
3. Justice — the corrective justice’s intuition: the wrongdoer answers;
4. Loss distribution — the insurance-and-deep-pocket realities (the loss spread through the enterprise);
5. Behaviour regulation — the standards’ setting (the tort law as the safety regulator).

1.2 Essential Elements of Tort

The plaintiff’s four-step ladder (the exam’s core — every negligence answer climbs it):

1. DUTY — the law’s obligation: the neighbour principle’s frame (the reasonable foreseeability of harm to those closely and directly affected — the famous “neighbour” formulation: the persons so closely affected that one ought reasonably to have them in contemplation);
2. BREACH — the standard’s failure: the reasonable person test (the objective standard — not this defendant’s personal care, but the ordinary careful person’s);
3. CAUSATION — the factual link (the but-for test: but for the act, would the harm have occurred?) and the legal link (the remoteness-and-foreseeability screens: the consequences too remote do not count);
4. DAMAGE — the legally-recognised harm (the protected interests: person, property, reputation, the recognized heads).

Plus the defences’ gate (Unit 3.5 and Unit 6’s frame): the elements negated or excused.

1.3 Foundation of Tortious Liability and Difference from Other Liabilities

The foundation’s theories (why liability at all):

1. Fault — the blame principle: liability for the careless or intentional wrong (the classical default — the “he who faults, answers”);
2. Corrective justice — the wrong’s balancing (Aristotle’s frame: the loss shifted to the wrongdoer);
3. Distributive justice — the loss’s fair spread (the deep-pocket-and-insurance realities);
4. Utilitarianism — the welfare’s maximisation (the deterrence’s calculus);
5. Economic analysis — the efficiency frame: the cheapest cost avoider; the activity’s risk internalised (the enterprise liability theories).

The liabilities’ differences (the marking table):

The overlaps (the honest close): the same act’s double or triple life — the assault as crime AND tort (the parallel proceedings’ rule: the criminal prosecution does not bar the civil claim); the contract-tort boundary cases (the duty in contract vs. the duty in law — the concurrent liability debates).

1.4 Strict Liability against Tort

The idea: liability WITHOUT fault — the no-fault pockets where the law dispenses with the breach-proof:

1. The strict liability’s classic (the reservoir rule): the dangerous thing’s escape from the land’s non-natural use — liability without negligence, WITH the defences (the plaintiff’s own default; the act of God; the stranger’s act; consent; statutory authority; common benefit);
2. The absolute liability’s modern turn (the Bhopal-era rule): the hazardous-and-inherently-dangerous enterprise’s liability — NO exceptions (the enterprise’s full answer; the social cost’s internalisation);
3. The distinction (the exam’s discriminator): strict = no-fault WITH defences; absolute = no-fault, NO defences;
4. The product liability face: the defective product’s strict answer (Unit 2.5 and Unit 4.6’s world);
5. The animals-and-buildings faces: the animal keeper’s answer for the beast’s harm; the structure’s fall — the owner’s answer.

1.5 Comparison between Tort and Crime, Contract and Breach of Contract

The three-way comparison (the expansion of 1.3’s table — the exam’s favourite long question):

The boundary rules to state: (i) the same act may be both crime and tort — the parallel proceedings (the acquittal does not bar the claim); (ii) the tort-contract boundary: the duty’s source decides (the contractual duty by agreement; the tortious duty by law) — the negligent performance cases can run both routes; (iii) the breach of contract is NEVER a tort by itself (the definition excludes it) — but the same facts may carry both wrongs.

Model Questions

1. Define tort and explain its essential elements with the neighbour principle. (15)
2. Explain the foundation of tortious liability and distinguish it from contractual and criminal liability. (15)
3. Compare tort, crime and breach of contract. (10)
4. Distinguish strict liability from absolute liability. (10)
5. Short notes: (a) unliquidated damages; (b) neighbour principle; (c) act of God; (d) the dual life of wrongs. (4×2.5)

📚 Get the complete notes: Download the full Law of Torts PDF (all units) — Law Info Nepal Original Notes Series (LL.B., 3-Year New Course, 2076/077 B.S.).