Lecture 1 (Week 1)

Law of Tort-Introduction

 Law is bundle of rules which regulates the external behavior of individuals in

society. Law of Torts is the branch of law controlling the behavior of people in the

society. It is a growing branch of law and its main object is to define individual

rights and duties in the light of prevalent standards of reasonable conduct and

public convenience. It provides pecuniary remedy for violation against the right of

individuals. The entire Law of Torts is founded and structured on the principle

that, ‘no one has a right to injure another intentionally or even innocently.

 Tort is a branch of the civil law (as opposed to criminal law) which provides a

remedy for a wrongfully inflicted injury or loss or for infringement of a protected

interest. However, this definition tells you nothing about what conduct is tortious.

You will understand that only when you know what counts as injury or loss and

what interests the law protects. When tort law declares that an interest is protected

it is said to create a right on the part of the claimant against invasions of that

interest. At the same time it imposes a duty or obligation on a defendant not to

invade that interest.

 The law of tort covers a wide range of situations, including such diverse claims as

those of a passenger injured in a road accident, a patient injured by a negligent

doctor, a pop star libelled by a newspaper, a citizen wrongfully arrested by the

police, and a landowner whose land has been trespassed on. As a result, it is

difficult to pin down a definition of a tort; but, in broad terms, a tort occurs where

there is breach of a general duty fixed by civil law.

 To sum-up, different torts deal with different types of harm or wrongful conduct.

For example:

 physical integrity is protected by the torts of negligence, public nuisance

and trespass to the person

  interests in property are protected by the torts of negligence, private and

public nuisance and trespass to land

 interests in the use and enjoyment of land are protected by the torts of

negligence, private and public nuisance and trespass to land u reputation is

protected by the tort of defamation.

 privacy is protected by the torts of breach of privacy and misuse of private

information.

 The word tort can be traced back to 1526 AD, in the common law. Tort finds its

origins in the Latin term “tortum” meaning “twist”, interestingly it was imported

in the common law through the French word torquēre which also means “to

twist”.

 Originally, tort and criminal law were indistinguishable, and, even when the two

branches began to acquire independent identities, the former remained for a very

long time in the shadow of the latter. Offenses against the community and the

king’s interests increasingly became the subject of criminal law, whereas wrongs

against the individual came to be dealt with by the emerging (or, in the case of

continental Europe, reemerging Roman-inspired) law of tort.

 Early tort law, however, was concerned only with the most serious kinds of

wrongs—bodily injury, damage to goods, and trespass to land. Not until the 19th

century was it extended to cover such conduct as intentional infliction of economic

loss. In the 20th century the compensation of negligently inflicted economic loss

and other violations of subtler interests (such as psychological injuries and

violations of privacy) took center stage in the wider debate that aimed to set the

proper boundaries of tort liability.

 The law of torts came to Pakistan from the common law of England and is thus not

codified like other streams of law in many common law countries (however, it is

codified in American jurisprudence), and despite being applicable throughout the

world and within Pakistan, its administration and operation are not experienced

more often.
 On the establishment of Pakistan, the Indian Independence Act, 1947, authorized

the continuation of all laws as were in field prior to August 1947 in both the

Dominions of India and Pakistan. Under Art. 268 of the Constitution of Pakistan,

these laws have again been given the protection, and as such law of tort continues

on the same track as was applied prior to 1947. The law is in a continuous mode of

development, yet most of it needs to be codified.

 In Pakistan, Article 212(b) of the Constitution of Pakistan 1973 makes it

imperative on the Parliament of Pakistan to establish administrative courts or

tribunals to adjudicate the tortious claims arising from governmental actions.

Article 212 (1) – Notwithstanding anything hereinbefore contained, the

appropriate Legislature may by Act [provide for the establishment of] one

or more Administrative Courts or Tribunals to exercise exclusive

jurisdiction in respect of:

(b) matters relating to claims arising from tortious acts of Government, or

any person in the service of Pakistan, or of any local or other authority

empowered by law to levy any tax or cess and any servant of such authority

acting in the discharge of his duties as such servant.”

 The Parliament of Pakistan still has to give effect to this Article of

the Constitution by passing relevant legislation to create a competent forum

which would effectively and efficiently deal with the tortious claims of the citizens

of Pakistan against the state.

 Nonetheless, when a tort is committed, the law allows the victim to claim money,

known as damages, to compensate for the commission of the tort. This is paid by

the person who committed the tort (known as the tortfeasor). Other remedies may

be available in addition to or instead of this. In some cases, the victims will be able

to claim damages only if they can prove that the tort caused some harm, but in
 others, which are described as actionable per se, they need only to prove that the

relevant tort has been committed. For example, landowners can claim damages in

tort from someone trespassing on their land, even though no harm has been done

by the trespasser

DEFINITIONS BY RENOWNED JURISTS

‘Tort’ is defined by various jurists as under:

 “A tort is a civil wrong for which the remedy is a common law action for

unliquidated damages and which is not exclusively the breach of a contract, or

the breach of a trust, or the breach of other merely equitable obligation”. –

Salmond.

 “A tort is an infringement of a right in rem of a private individual, giving a

right of compensation at the suit of the injured party”. – Fraser

 “Tortious liability arises from the breach of duty primarily fixed by law; this

duty is towards persons generally and its breach is redressible by an action for

unliquidated damages”.–Winfield.

 Sir Frederick Pollock’s contribution to the definition is “tort is an act or

omission (not merely the breach of a duty arising out of personal relations, or

undertaken by a contract which is related to harm suffered by a determinate

person, giving rise to a civil remedy which is not an action of contract”

 American Jurist Edward Kionka writes “Tort is an elusive concept (and) has

defied attempts to formulate a useful definition. The one common element is

that someone has sustained a loss or harm as the result of some act or failure to

act by another. Tort is perhaps the least bastion of the common law. Tort law

remains un-codified and in large part unaffected by the statute”

 One among the Common Law countries, the Supreme Court of Canada took a

holistic approach in the case of Hall v Herbert, “It is difficult to define the
 nature of tort. Indeed, one of the greatest writers in the field, W.L. Prosser has

expressed the opinion that it should not be defined.

 "Tort means a civil wrong which is not exclusively a breach of contract or

breach of trust"—S. 2 (m), the Limitation Act, 1963 (Indian Law)

 The basic idea which is indicated by these definitions is firstly, tort is a civil

wrong, and secondly, every civil wrong is not a tort. There are other civil wrongs

also, the important of which are a breach of contract and breach of trust.

 When some wrongful act has been done, it has got to be seen first whether it is

civil or a criminal wrong. If the wrong is found to be a civil one, we have to see

whether it exclusively belongs to any other recognised category of civil wrong like

breach of contract and breach of trust. If we find that it is not exclusively any of

the other civil wrongs, then we can say that it is a tort