Professional Documents
Culture Documents
Conflicts and injuries have been increased with the increase in population, technology,
transportation and different kinds of sophisticated appliances, these elements caused an
increase in the human activities as a result laws are also increased to tackle the wrongs of
almost all kinds through court. Law of tort is one of these laws. In many cases function of law
of tort is very much important that is compensating the loss in addition to prevention from
repetition of harm.
WHAT IS TORT?
The word "Tort" is derived from Latin word "Tortum", to twist and implies the conduct
which is twisted or tortuous. It corresponds to the roman word "Delict" and English word
"wrong"
The sense of justice reached the masses with the passage of time, but its main source is the
first written law on earth, when Allah Almighty awarded humans with a written code. The
purpose was to make justice appear in land, to destroy the evil, in order that stronger might
not oppress the weak.
Greeks
Romans
Continental Europe
English
The legal evaluation proceeding in an unbroken and continuous development with each race
is passing on something of achievement to its successors.
1
DEFINITION:
"Tort is one of the wrongs recognized by the law. It's a civil wrong different from criminal
wrong"
It arises an important point that what is the difference between tort and criminal wrong?
A crime is a wrong arising from a violation of a public duty, whereas a tort is a wrong
arising from private duty.
3. In tort, the action is brought by the injured party, in crime, the proceedings are
conducted in the name of state and the guilty person is punished by the state.
KINDS OF TORT
Torts which
are
Torts actionable per actionable
se on proof of
actual
damage
2
Torts actionable per se
Here the defendant is held liable merely because he does a particular ac, even though the
plaintiff has suffered not the slightest harm
Here the defendant is held liable only if, in consequence of his act, damage is inflicted on the
plaintiff. In most cases, is not actionable without proof of special damage.
FELONIOUS TORTS:
The same wrongful act may sometimes constitute both a tort and a crime. In all such cases
there are two different kinds of remedies-civil and criminal. The defendant may be punished
criminally and also compelled in a civil action to pay damages to the plaintiff.
3
CLASSIFICATION OF TORTS
4
ELEMENTS IN TORTS
Every tort there must be a wrongful act, and legal damage or injury: and that every injury
imports demage.It is not every damage that is damage in the eye of the law.
1. Voluntary Act
2. Intent
3. Motive
4. Causal Relationship
1- Voluntary Act
The defendant must be guilty of a voluntary act or omission. Acts committed or omitted by
one who is confronted with a sudden peril caused by another are considered involuntary acts.
2- Intent
Whether intent to do an unlawful act or intent to cause harm is required as a basis for tort
liability depends upon the nature of the tort involved .Liability is imposed for some torts
acted without any intent to do wrong. In other torts, the intent of the actor is an essential
element. Thus in the case of slander and interference with contracts, it is necessary for the
plaintiff to show that the defendant intended to cause harm or at least had the intent to do an
act which a reasonable person would anticipate was likely to cause harm.
3- Motive
As a general rele, motive is immaterial except as it may be evidence to show the existence of
intent, IN most instances, a legal right may be exercised even with bad motives, and an act
that is unlawful is not made lawful by good motives.
4- Causal Relationship
In order to put legal responsibility upon one as a wrongdoer, it is necessary to show that there
was a relationship of cause and effect between the wrongful act and the harm sustained by the
5
plaintiff. In many states, however, the requirement of casual connection has been relaxed so
that it is sufficient that the defendants act or omission substantially contributes to the harm
rather than being the sole and proximate cause. In many instances, the courts define casual
relationship in terms of foresee ability, That is , if it was reasonably foreseeable that the
conduct of the defendant could cause harm to the plaintiff there is a sufficient causal
relationship between the defendants conduct and the plaintiffs harm.
A person may be innocent of wrong but yet be held liable for the tort committed by another
person, As will be discussed later in the chapters on agency, the tort of an employee or agent
may in some cases impose liability upon the employer or principal. A parent is ordinarily not
liable for the tort committed by a child. That is, the mere fact that the person sued is the
parent of the child committing the wrong does not impose liability on the parent.
Example:
If the child is a reckless driver and the parent allows the child to use the parents car, the
parent is liable on the theory that the parent was negligent in entrusting the car to the child.
ELEMENTS IN TORTS
1- Damage.
2- Malice.
3- Intention
4- Motive
Damage and damages are not equivalent terms damages are the compensation, in the form
of sum of money, which the Court awards for every injury but the damages which every
injury imports is that which is supposed to be compensated by award of damages.
6
Malice:
Malice in common acceptation means ill-will against a person, but in its legal sense it means
a wrongful act, done intentionally without just cause or excuse.
Example: If I maim cattle without knowing whose they are I do it of malice because it is a
wrongful act and done intentionally.
Express malice: - Express malice is an act done with ill-will towards an individual. Malice in
Law or Implied malice: - Means an act done wrongfully without reasonable cause or an act
dictated by angry feelings.
INTENTION OR MOTIVE:
When the doer of an act adverse to a consequence of his act and desires it to follow, he is said
to intent that consequence. The obligation to make reparation for the damage cussed by the
wrongful act against right or law arises from the fault and not from the intention. It is not
defence to an action in tort for the wrong doer to plead that he did not intend to cause
damage, if damage has resulted owing to an act or omission on his part which is actively or
passively the effect of his violation. Bodily injury, though the consequence of a lawful act or
a mere mischance, may be a tort; and the existence of an evil intention in the mind of wrong-
doer is not essential.
1-Judicial Acts
2-Executive Acts
3-Quasi-Parental Authorities
4-Works of necessity
7
5-Private Defence
1- Judicial Acts:
The second defence to an action in tort is that the act done by the defendant was judicial act.
No action will lie against a Judge for any acts done or words spoken in his judicial capacity in
a Court of Justice. judges should be at liberty to exercise their function with independence
and without fear of consequences .In Pakistan, the principle of immunity has been applied by
judicial Officers Protection Act,1850, but no distinction has been maintained in person,
actiong judicially, shall be liable to be sued in any Civil Court for within limits of his
jurisdiction.
2- Executive Acts
Valid orders of a public authority form a good defence to a tort committed by its officers in
execution them, e.g, orders of a Court of Justice, But if an officer purposely or maliciously
arrests a person or takes his goods he will be liable. In Pakistan, the Judicial Officers
Protection Act protects officers of Court as well, Police officers are protected in the
performance to their executive duties by express legislative enactments like the various
Police Acts.
3- Quasi-parental authority
The authority of a schoolmaster is , while it exists, the same as that of a parent. A parent,
when, he places his child with a school master, delegates to him all his authority, so far as it
is necessary for the welfare of the child. The master can, therefore, inflict a moderate
chastisement on his pupil or apprentice.
4- Works of necessity
There are many cases in which individuals sustain in injury for which the law gives no action
as where private houses are pulled down to stop a fire. A persons property, liberty and life,
shall be placed in jeopardy or even sacrificed for the public good.
8
5- Private defence
It is human instinct to repel force by force, and this instinct is allowed, even approved, by law
as a natural right. Every person has a right to defend his own person, property or possession
against an unlawful harm. This may even be done for a wife or husband, a parent or child, a
master or servant. The force employed must not be out of proportion to the apparent urgency
of the occasion. The necessity must be proved.
The law does not take account of triflesde minims non cural lex. Nothing is a wrong of
which a person of ordinary sense and temper would not complain. This principle is also
recognized in S.95, Pakistan Penal Code. But the maxim does not apply where there is an
infringement of a legal right.
PROBLEM:
A is driving along a dusty road at furious speed and the wheels of his motor car throw a little
dust on the clothes of B, a pedestrian, which does him no harm.
ANSWER
DAMAGES
In law, damages is an award of money to be paid to, a person as compensation for loss or
injury
COMPENSATORY DAMAGES
Compensatory damages, also called actual damages, are paid to compensate the claimant for
loss, injury, or harm suffered by another's breach of duty.
9
QUANTUM/MEASURE OF DAMAGES
Parties may contract for liquidated damages to be paid upon a breach of the contract by one
of the parties
Damages in tort are generally awarded to place the claimant in the position he/she would
have been had the tort not taken place. Damages in tort are quantified under two headings:
general damages and special damages.
GENERAL DAMAGES
General damages, sometimes styled hedonic damages, compensate the claimant for the non-
monetary aspects of the specific harm suffered. This is usually termed 'pain, suffering and
loss of amenity'. Examples of this include physical or emotional pain and suffering, loss of
companionship, loss of consortium, disfigurement, loss of reputation, loss or impairment of
mental or physical capacity, loss of enjoyment of life, etc. This is not easily quantifiable, and
depends on the individual circumstances of the claimant. Judges in the United Kingdom base
the award on damages awarded
General damages are generally awarded only in claims brought by individuals, when they
have suffered personal harm. Examples would be personal injury (following the tort of
negligence by the defendant), or the tort of defamation.
SPECIAL DAMAGES
Special damages compensate the claimant for the quantifiable monetary losses suffered by the
plaintiff. For example, extra costs, repair or replacement of damaged property, lost earnings
(both historically and in the future), loss of irreplaceable items, additional domestic costs, etc.
They are seen in both personal and commercial actions.
Special damages can include direct losses (such as amounts the claimant had to spend to try
to mitigate problems) and consequential or economic losses resulting from lost profits in a
business. Special damages basically include the compensatory and punitive damages for the
tort committed in lieu of the injury or harm to the plaintiff
10
STATUTORY DAMAGES
Statutory damages are laid down in law. Mere violation of the law can entitle the victim to a
statutory award, even if no actual injury occurred. These are similar to, but different from,
nominal damages (see below) in which no written sum is specified.
For example, the possible remedies for misrepresentation in the United Kingdom are codified
in the Misrepresentations Act
NOMINAL DAMAGES
Nominal damages are very small damages awarded to show that the loss or harm suffered
was technical rather than actual.
Many times a party that has been wronged but is not able to prove significant damages will
sue for nominal damages. This is particularly common in cases involving alleged violations
of constitutional rights, such as freedom of speech.
Generally, punitive damages, which are also termed exemplary damages in the United
Kingdom, are not awarded in order to compensate the plaintiff, but in order to reform or deter
the defendant and similar persons from pursuing a course of action such as that which
damaged the plaintiff. Punitive damages are awarded only in special cases where conduct was
egregiously invidious and are over and above the amount of compensatory damages,
In certain areas of the law another head of damages has long been available, whereby the
defendant is made to give up the profits made through the civil wrong in restitution. The
plaintiff thereby gains damages which are not measured by reference to any loss sustained. In
11
some areas of the law this heading of damages is uncontroversial; most
particularly intellectual property rights and breach of fiduciary relationship.
.The basis for restitutionary damages is much debated, but is usually seen as based on
denying a wrongdoer any profit from his wrongdoing. The really difficult question, and one
which is currently unanswered, relates to what wrongs should allow this remedy.
LEGAL COSTS
In addition to damages, the successful party is entitled to be awarded his reasonable legal
costs that he spent during the case. This is the rule in most countries other than the United
States. In the United States, a party generally is not entitled to its attorneys' fees or for
hardships undergone during trial
REMEDIES
Account of profits:
Historically an account was not an equitable remedy, but was an action at common law, and
is therefore technically an instrument of law, though it arose at a time before the distinction
between law and equity was marked.
Co-owners in concurrent estates also have the right to an accounting of profits, in order to
properly apportion income from the use or leasing of the property
Specific Performance:
An order of specific performance is an order of the court which requires a party to perform a
specific act, usually what is stated in a contract. It is commonly used in the form of injunctive
12
relief concerning confidential information or real property. While specific performance can
be in the form of any type of forced action
Orders of specific performance are granted when damages are not an adequate remedy, and in
some specific cases such as land sale. Such orders are discretionary, as with all equitable
remedies, so the availability of this remedy will depend on whether it is appropriate in the
circumstances of the case.
There are certain circumstances where an order of specific performance would not be
granted. Such circumstances include:
Constructive Trust:
13
INJUNCTION:
An injunction is an equitable remedy in the form of a court order, whereby a party is required
to do, or to refrain from doing, certain acts. The party that fails to adhere to the injunction
faces civil or criminal penalties and may have to pay damages or accept sanctions for failing
to follow the court's order. In some cases, breaches of injunctions are considered serious
criminal offenses that merit arrest and possible prison sentences
TRESPASS:
Assault: it is physical attack crime .striking a person with or with out weapon .Present a gun
or pistols loses or unloaded.
FALSE IMPRESSMENTS:
It is restrained of a person liberty. Keeping officially place with or with out persons consent.
It may take the extreme form of a kidnapping.
Detention:
Keep in place and prevent from living. Stone walls are not required to make a false
imprisonment. If a bank robber holds a bank teller at gun point for the purpose of preventing
the teller from attacking the other robbers or form escaping, there is sufficient detention.
14
TRESPASS TO LAND
A trespass to land consist of any unpermitted entry below, on , across, or above land.
An illegal invasion of property right with respect to property other than land constitutes a
trespass to personal property whether done intentionally or negligently as when one car hits
another. Negligent damage to personal property imposes liability for harm done.
CONVERSION
A conversion occurs when personal property is taken by wrongdoer and kept from its true
owners or prior possessor. An innocent buyer of stolen goods is liable for damages for
converting them.
NEGLIGENCE:
Negligence is a type of tort (also known as a civil wrong). "Negligence" is not the same as
"carelessness", because someone might be exercising as much care as they are capable of, yet
still fall below the level of competence expected of them. It is the opposite of "diligence". It
can be generally defined as conduct that is culpable because it falls short of what a reasonable
person would do to protect another individual from foreseeable risks of harm. In the words
of Lord Blackburn,
"Those who go personally or bring property where they know that they or it may come into
collision with the persons or property of others have by law a duty cast upon them to use
reasonable care and skill to avoid such a collision
Through civil litigation, if an injured person proves that another person acted negligently to
cause his injury, he can recover damages to compensate for his harm. Proving a case for
negligence can potentially entitle the injured plaintiff to compensation for harm to their body,
property, mental well-being, financial status, or intimate relationships. However, because
negligence cases are very fact-specific, this general definition does not fully explain the
15
concept of when the law will require one person to compensate another for losses caused by
accidental injury. Further, the law of negligence at common law is only one aspect of the law
of liability. Although resulting damages must be proven in order to recover compensation in a
negligence action, the nature and extent of those damages are not the primary focus of
negligence cases.
DEFENCES OF NEGLIGENCE:
Contributory Negligence:
Exclusion Clause:
A clause may be inserted into a contract which aims to exclude or limit one party's liability
for breach of contract or negligence. However, the party may only rely on such a clause if (a)
it has been incorporated into the contract, and if, (b) as a matter of interpretation, it extends to
the loss in question. Its validity will then be tested under (c) the Unfair Contract Terms Act
1977 and (d) the Unfair Terms in Consumer Contracts Regulations 1999.
Volenti Non Fit Injuria is a defense in tort that means where a person engages in an event
accepting and aware of the risks inherent in that event, and then they cannot later complain
of, or seek compensation for an injury suffered during the event. This is used often to defend
against tort actions as a result of a sports injury. The same rules are applicable in Pakistan
also.
16
Tort of Passing off:
Passing off is a tort that protects unregistered trade marks. Essentially, a trader must not sell
their own goods under the pretence that they are the goods of another trader. Passing off is a
tort of strict liability: the intention of the person passing itself off as another trader is
irrelevant.
When a business misleads prospective buyers into believing that his goods are those of
another business, and that misrepresentation causes damage to the actual owner of the
goodwill or trade reputation, the damaged business will be able to prevent that conduct by
injunction and claim damages for "passing off" its business as that of the owner of the
goodwill. It does not matter whether the trader intended to mislead the public. So passing
off protects the relationship of a business with its public. Goodwill may exist in a business
name, packaging, branding, in a fictional characters name, someones name (image rights)
and is accrued by trading activity, advertising and marketing activity.
Passing off is a catch area all area of law that entitles a business to prevent other businesses
from unfairly using its goodwill. Goodwill is the attractive force that brings in customers and
is the essence of what passing off protects. Otherwise known as the law of unregistered trade
marks, passing off protects against all activities of other businesses that may lead the public
into believing that they are the trader that actually owns the goodwill.
Passing off is a flexible and adaptable area of law, and often claimed in conjunction with
trade mark infringement, where 1. A registered trade mark exists and 2. There is doubt about
the claim for infringement.
17
REGISTRATION PROCEDURE OF COPYRIGHTS IN PAKISTAN:
Copyright as a work of authorship immediately becomes the property of the author who
created the work. Only the author or those deriving their rights through the author can
rightfully claim copyrights. In the case of a work prepared by an employee within the scope
of his or her employment; the employer and not the employee is considered to be the author,
if the parties expressly agree in a written instrument signed by them that the work shall be
considered a work made for hire. The authors of a joint work are co-owners of the copyrights
in the work, unless there is an agreement to the contrary.
1. Literary works
6. Sound recordings
7. Architectural works
18
PROTECTION OF INTERNATIONAL & WELL KNOWN TRADE MARKS IN
PAKISTAN:
19
note here is that Trade Mark applied for in a Convention Country is not automatically
protected in Pakistan and such Trade Mark merely enjoys a right of priority of six months.
The second circumstance is provided under Section 86 of the Ordinance. Under this provision
a Trade Mark which is entitled to protection under the Paris Convention, as a well known
Trade Mark, and which is a well known Trade Mark in Pakistan is protected in Pakistan
subject to the following conditions enumerated in the said Section:
CONCLUSIONS:
Pakistan is a common law country like England, India and many others. Our social conditions
are different from the social conditions of other countries. It may sometimes difficult to
follow the England law blindly. In Pakistan; the rule of strict liability is not practically
followed. The main approach in Pakistan is based on fault liability. The law of contributory
negligence has a role to play in all tort cases. The main problem in the minimal development
of
tort law is the Pakistan penal code Other that death being treated as tort under the Fetal
Accidents Act all torts in one form or another are crimes more than torts. In Pakistan the law
of torts is less utilized due to many reasons one of them being the shape of law as a text book,
unmodified. The purpose of law of tort is to protect certain rights which relates to person,
property and reputation and to provide compensation for any wrong which infringe them. But
the law will not come to action until there is violation of legal right that the act is legally
wrongful as regards the party complaining because it has prejudicially affected him in some
legal right.
20