Lecture 2 (Week 1)

Law of Tort-Introduction

 Tort is a term in common law systems for a civilly actionable harm or wrong, and
for the branch of law dealing with liability for such wrongs. Analytically the law
of tort (or torts) is a branch of the law of obligations, where the legal obligations to
refrain from harm to another and, if harm is done, to repair it or compensate for it,
are imposed not by agreement, but independently of agreement by force of the
general law. Socially the function of tort is to shift loss sustained by one to the
person who is deemed to have caused it or been responsible for its happening, and
in some measure to spread the loss over an enterprise or even the whole
community.
 Historically there was no general principle of tortious liability, but the King’s
courts gave remedies for various forms of trespass, for direct injuries, and later
allowed an action on the case for harm indirectly caused. Other forms of harm
later became redressible, e.g. libel and slander, and distinct forms of action
developed to redress particular kinds of harm, so that the law of tort was
concerned with a number of recognized kinds of wrong, each with distinct
requirements and procedure, Statute added new entitlements to claim, e.g. in cases
of fatal accidents, and new grounds of liability.
 Case-law has extended liability, e.g. from physical injuries to mental injuries, and
from intentional harms to harms done negligently, i.e. by failure to show the
standard of precautions deemed necessary in the circumstances. It remains the
case, however, that the law of tort is a collection of circumstances in which the
courts will give a remedy, normally by way of damages, for legally unjustified
harm or injury done by one person to another rather than a general principle of
liability applicable to manifold cases.
 Tort and crime sprang from a common root but have diverged in many respects,
but it is still true that many common law crimes are also actionable torts, e.g.
assault, but not conversely.
 Torts may be classified into those involving intention, those involving negligence,
and the wrongs of strict liability. They may also be classified into torts affecting
the person (e.g. trespass, negligence), the family (wrongful death of a relative),
reputation (libel and slander), property (e.g. trespass to land or goods, nuisance,
conversion), economic rights (deceit, inducement of breach of contract, injurious
falsehood), and certain miscellaneous torts such as conspiracy. There are certain
 kinds of conduct, such as infringement of privacy, which are not yet, but may
come to be, recognized as actionable torts.
 The normal remedy for a tort is an award of pecuniary damages in compensation
for the harm done; in personal injury and death cases the computation of damages
involves many complicated issues. In some circumstances e.g. nuisance, an
injunction is a competent remedy.
 We may define tort as a civil wrong which is redressible by an action for
unliquidated damages and which is other than a mere breach of contract or
breach of trust.
 It is possible that the same act done by a person may result in two wrongs, a crime
as well as a tort, at the same time. In such a case, both the civil and the criminal
remedies would concurrently be available. There would be civil action requiring
the defendant to pay compensation as well as a criminal action awarding
punishment to the wrongdoer.
 Tort is that civil wrong which is not exclusively any other kind of civil wrong. If
we find that the only wrong is a mere breach of contract or breach of trust, then
obviously it would not be considered to be a tort. Thus, if a person agrees to
purchase a radio set and thereafter does not fulfil his obligation, the wrong will be
a mere breach of contract. It is only by the process of elimination that we may be
able to know whether the wrong is a tort or not. First, we have to see whether the
wrong is civil or criminal; if it is a civil wrong, it has to be further seen if it
exclusively belongs to another recognised category of civil wrongs, like breach of
contract or breach of trust. If it is found that it is neither a mere breach of contract
nor any other civil wrong, then we can say that the wrong is a ‘tort’.
 It may be noted that there is a possibility that the same act may amount to two or
more civil wrongs, one of which may be a tort. For example, if A delivers his
horse to B for safe custody for a week and B allows the horse to die of starvation,
B’s act amounts to two wrongs—breach of contract of bailment and commission
of tort of negligence. Since both the wrongs are civil wrongs and damages is the
main remedy for any kind of civil wrong, the plaintiff can claim damages either
under the law of torts for negligence, or for the breach of contract of bailment. He
cannot claim damages twice.
 Damages is the most important remedy for a tort. After the wrong has been
committed, generally it is the money compensation which may satisfy the injured
party. After the commission of the wrong, it is generally not possible to undo the
harm which has already been caused. There are other remedies also which could
be available when the tort is committed. It is also just possible that sometimes the
other remedies may be more effective than the remedy by way of damages. For
 example, when a continuing wrong like nuisance is being committed, the plaintiff
may be more interested in the remedy by way of ‘injunction’ to stop the
continuance of nuisance rather than claiming compensation from time to time, if
the nuisance is allowed to be continued.
 Damages in the case of a tort are unliquidated. It is this fact which enables us to
distinguish tort from other civil wrongs, like breach of contract or breach of trust,
where the damages, may be liquidated. Liquidated damages means such
compensation which has been previously determined or agreed to by the parties.
When the compensation has not been so determined but the determination of the
same is left to the discretion of the court, the damages are said to be unliquidated.

Distinction Between Torts and Other branches of Law

-Distinction between 'Tort' and 'Crime'

 A crime is an offence against the state and the purpose of a sanction is to punish
the offender. Tort, by contrast, is not primarily about punishment, and unlike
criminal law it is focused not on the interests of the state but on the individual
victim of a tort. Both tort law and criminal law regulate behaviour by establishing
standards of conduct. Yet, unlike the criminal law, tort law is not concerned to
impose abstract standards. Liability in tort, for the most part, is predicated upon
proof of actual damage. A person is not liable in the tort of negligence because
they have driven down a one-way street, while drunk and without a valid driving
licence. They are only potentially liable in the tort of negligence if this chain of
events causes actual damage to a person or property or sometimes damage to a
person’s economic interests. Without damage, such actions would constitute a
crime. Finally, one obvious connection between tort and criminal law is that the
same conduct can be both tortious and criminal – careless driving being the
clearest illustration, along with public nuisance and battery.
 To sum-up, Tort differs both in principle and procedure from a crime and there are
basic differences between a tort and a crime which are as follows;
 Tort is a private wrong. Private wrong is the infringement of civil right of
an individual. It is comparatively less serious and labeled as civil wrong.
Whereas crime is a public wrong. Public wrong is a violation or breach of
rights and duties which affect the community, as a whole. It is a more
serious wrong.
  The remedy in law of tort is damages where as the remedy in crime is
punishment
 In case of tort the suit is filed by injured or aggrieved party where as In case
of crime the complaint is filed in the name of State
 In case of tort the suit can be withdrawn at any time and compromise can be
done with wrongdoer where as In case of crime the complaint cannot be
withdrawn except in certain circumstances (Diyat). But there has been
instances and behavior of the courts have been observed that there has been
an increase practice of settlement of criminal cases between the parties.
 There is no codification in Law of Torts where as The Criminal law is
codified meaning thereby that there is no separate statute deals with tort
other than the Defamation Ordinance 2002. Tort is based on judicial
decisions where as the crimes are dealt in Pakistan Penal Code, 1860.
 In tort, Intention is important but not in all cases, for example, in cases of
negligence where as in crime, Intention is the crux of the offence Despite of
these differences, the injunction may be granted in tort as well as in crime.
There are various wrongs which fall under law of torts as well as under
criminal law, for example, Assault, Defamation, Negligence, Nuisance and
Conspiracy.

Distinction between Tort and Breach of Contract

 A breach of contract results from the breach of a duty undertaken by the parties
themselves. The agreement, the violation of which is known as a breach of
contract is made by the parties with their free consent. A tort, on the other hand,
results from the breach of such duties which are not undertaken by the parties
themselves but which are imposed by law.
 It is tort law that determines what basic rights we enjoy against other people, and
what remedies will be available when those rights are violated. It is contract law
that provides us with the facility to alter the rights that tort law provides us with –
either by entering into contracts that give us extra rights against other people that
tort law does not give us (contracting on top of tort law) or by entering into
contracts that reduce the rights that tort law gives us against other people
(contracting out of tort law).
 In a contract, the duty is based on the privity of contract and each party owes duty
only to the other contracting party while Duties imposed by law under law of torts
are not towards any specific individual or individuals but they are towards the
world at large.
 Case example:
The case of Donoghue v. Stevenson.2 shows that the manufacturer
of drinks owes a duty of care to every possible consumer of his
product. In that case, A went to a restaurant with a woman friend and
bought one bottle of ginger-beer manufactured by the defendants.
The woman consumed part of the contents but when the remainder
was poured into the glass,, she observed the decomposed body of a
snail in it. The ginger-beer bottle, being opaque and sealed, the
presence of a snail could not have been observed earlier. The woman
brought an action against the manufacturer for negligence and
alleged that by taking a part of the contaminated drink, she had
contracted serious illness. The House of Lords held that the
manufacturer owed her a duty to take care that the bottle did not
contain noxious matter injurious to health. Referring to the liability
of the manufacturer of food articles, Lord Macmillan observed :
"The duty, in my opinion, he (the manufacturer) owes to those
whom he intends to consume his products."
 Damages is the main remedy both in an action for the breach of contract as well as
in an action for tort. In a breach of contract, the damages may be 'liquidated’
whereas in an "action for tort, they are always ‘unliquidated’. Damages are
liquidated when the sum payable by way of damages is predetermined,' for
example, by a clause in the contract. When the amount payable is not
predetermined and inelastic sum of money, but the court is at liberty to award such
sum at its discretion as it thinks just, the damages arc known as ‘unliquidated’.

If there is a contract between A and B and as a result of the breach of contract by A,

injury is caused to C, the question is: can C, who is a stranger to the contract, bring an
action against A, whose breach of contract with B has also resulted in the commission
of tort against C ?

 When A’s wrongful act results in the breach of a contract which he had entered
into with B and also the commission of a tort against C, it was thought that just
like B, C has also to show privity of contract before he can bring an action for tort
(Winterbottom v. Wright (1842) 10 M. & W. 109). In Donoghue v. Stevenson, the
consumer could bring an action in tort against the manufacturer even though there
was no contract between the manufacturer and the consumer. Lord Macmillan
observed :
 "On the one hand, there is the well-established principle that no one other
than a party to the contract can complain of breach of that contract. On the
other hand, there is equally the well established doctrine that negligence
apart from contract gives a right of action to the party injured by that
negligence—and here I use the term negligence, of course, in its technical
legal sense, implying duty owed and neglected. The fact that there is a
contractual relationship between the parties which may give rise to an
action for breach of contract does not exclude the co-existence of a light of
action founded on negligence as between the same parties, independently of
the contract, though arising out of the relationship in fact brought about by
the contract. Of this, the best illustration is the right of the injured railway
passenger to sue the railway company either for breach of the contract of
safe carriage or for negligence in carrying him. And, there is no reason why
the same set of facts should not give one person a right of action in contract
and another person a right of action in tort."
 To sum-up,
 In tort, the duty is fixed by the law itself where as in contract, the duty is
fixed by the party themselves.
 In tort, the duty is towards every person of the community or society where
as in contract, the duty is towards specific person or persons.
 A tort is a violation of a right in rem (that is, a right vested in some
determinate person and available against the world at large) where as a
breach of contract is an infringement of a right in personam (that is, of a
right available only against some determinate person or party)
 In an action for tort, no privity is needed or is required to be proved where
as in a breach of contract, privity between the parties must be proved.
 In tort, motive is often taken into account where as in breach of contract
motive is not relevant.
 A third party can sue for tort even though there was no contract between the
person causing injury and the person injured whereas A third party to a
contract cannot sue for breach of contract except in some exceptional cases.
 Law of tort is concerned with losses whereas Contract law is concerned
with promises.
 Limitation begins to run from the date when damages occurs whereas
Limitation commences when the breach of obligation takes place.

Distinction between Tort and Breach of Trust

  In the case of breach of trust by the trustee, the beneficiary can claim such
compensation which depends upon the loss that the trust property has suffered.
The amount of damages being ascertainable before the beneficiary brings the
action, the damages, in the case of a breach of trust, are liquidated. On the other
hand, damages in a tort are unliquidated.
 Law of torts has its origin as part of common law whereas Breach of trust could be
redressed in the court of Chancery.
 Law of tort is not regarded as a division of the law of property where as Law of
trust can be and is regarded as a division of the law of property.

Tort and Quasi-contract distinguished

 When a person gains some advantage or benefit to which some other person was
entitled to, or by such advantage another person suffers an undue loss, the law may
compel the former to compensate the latter in respect of advantage so gained. The
law of quasi-contract covers such obligations. A quasi-contract refers to the
obligation of the contract created out of order by the court not to let one party get
unfair benefit out of the situation at the expense of other parties where there is the
absence of initial agreement among the parties and there is a dispute between
them. For example, A, a tradesman, leaves goods at B’s house by mistake. B treats
the goods as his own. He is bound to pay A for them. Similarly, if A and B jointly
owe 100 rupees to C, A pays the amount to C, B not knowing this fact, pays 100
rupees over again to C, C is bound to repay the amount to B.
 A claim for damages under law of tort is always for an un-liquidated sum of
money where as a claim for damages is for liquidated sum of money.
 Under law of torts the duty is towards persons generally where as in a quasi-
contract, the duty is always towards a particular person.
 The common point between tort and quasi-contract is that the duty in each case is
imposed by the law. However, in certain cases, where a tort has been committed,
the injured party has a choice of not bringing an action for damages in tort, but of
suing the wrongdoer in quasi- contract to recover the value of the benefit obtained
by the wrongdoer. When the injured party elects to sue in quasi-contract instead of
tort, he is said to have 'waived the tort'. The torts which can be waived are those of
conversion, trespass to land or goods, deceit and the action for extorting money by
threats. In certain torts, like defamation and assault, the doctrine of waiver cannot
be applied.