Law of Torts — General Principles and Specific Wrongs
The law of torts governs civil wrongs that give the injured party a right to claim unliquidated damages. Unlike contract, tort obligations are imposed by law and arise erga omnes (against the world). Pakistan inherits the English common-law tort system; there is no comprehensive tort code, so courts apply judicially-developed principles supplemented by statutes such as the Fatal Accidents Act 1855 and the Motor Vehicles Ordinance 1965.
A civil wrong, independent of contract, for which the appropriate remedy is an action for unliquidated damages. The word derives from the Latin tortum — "twisted" or "wrong" — and entered English law through Norman French.
Essential elements
Every tort requires:
- A wrongful act or omission by the defendant.
- Legal damage — damnum sine injuria (loss without legal wrong) is not actionable; injuria sine damno (legal wrong without loss) is actionable per se (e.g. trespass).
- A legal remedy in the form of damages or injunction.
The two foundational maxims are illustrated by Gloucester Grammar School Case (1410) — damnum sine injuria — and Ashby v. White (1703) — injuria sine damno.
Negligence — the dominant modern tort
Negligence requires four elements: duty of care, breach, causation and damage. The landmark Donoghue v. Stevenson [1932] AC 562 laid down the neighbour principle — you owe a duty to persons so closely and directly affected by your act that you ought reasonably to have them in contemplation.
The duty test was refined in Caparo Industries v. Dickman [1990] 2 AC 605 into a three-stage inquiry: (i) reasonable foreseeability of harm; (ii) proximity of relationship; (iii) whether it is fair, just and reasonable to impose a duty.
- Standard of care: that of the "reasonable man" — Blyth v. Birmingham Waterworks (1856).
- Causation: but-for test (Barnett v. Chelsea Hospital [1969]) and remoteness (The Wagon Mound No. 1 [1961]).
- Res ipsa loquitur: the thing speaks for itself (Byrne v. Boadle (1863)) — shifts evidential burden.
- Contributory negligence reduces damages in proportion to plaintiff's fault.
Strict and absolute liability
The rule in Rylands v. Fletcher (1868) LR 3 HL 330 imposes strict liability on one who, for his own purposes, brings on his land and keeps there anything likely to do mischief if it escapes. Defences include act of God, plaintiff's default, consent and statutory authority. The Indian Supreme Court extended this to absolute liability without defences in M.C. Mehta v. Union of India AIR 1987 SC 1086 (Oleum Gas Leak).
Nuisance
| Type | Nature | Remedy |
|---|---|---|
| Public nuisance | Interference with public right; criminal under PPC § 268 | Action by Attorney General; private suit needs special damage |
| Private nuisance | Unreasonable interference with use/enjoyment of land | Damages, injunction, abatement |
A classic example is St Helen's Smelting Co. v. Tipping (1865) — material damage to property from fumes is actionable irrespective of locality.
Trespass
Trespass is direct, intentional (or negligent) interference with person, land or goods. It is actionable per se — no proof of damage required.
- Trespass to person: assault, battery, false imprisonment.
- Trespass to land: unauthorised entry; cf. Entick v. Carrington (1765).
- Trespass to goods: direct interference; conversion is the wider tort dealing with denial of title.
Defamation
Defamation is the publication of a statement that lowers the plaintiff in the estimation of right-thinking members of society. It is governed in Pakistan by the Defamation Ordinance 2002, supplemented by common law.
- Libel: written or permanent form — actionable per se.
- Slander: spoken or transient form — generally requires proof of special damage, except in defined cases (imputation of crime, unchastity, contagious disease, professional incompetence).
Defences include truth (justification), fair comment on a matter of public interest, absolute privilege (judicial and parliamentary proceedings), and qualified privilege.
For CSS-style answers on negligence, structure the response as: (1) definition; (2) four elements with case authority for each; (3) defences; (4) Pakistani statutory overlay (Fatal Accidents Act 1855, Motor Vehicles Ordinance 1965). Always cite Donoghue v. Stevenson and Caparo v. Dickman when discussing duty of care.
General defences
- Volenti non fit injuria — consent (Smith v. Baker [1891] AC 325).
- Inevitable accident — unavoidable despite reasonable care.
- Act of God — extraordinary natural event (Nichols v. Marsland (1876)).
- Statutory authority — act authorised by legislation.
- Necessity — interference to prevent greater harm.
- Private defence — proportionate force to protect self or property.
Remedies
The primary remedy is damages — compensatory, nominal, contemptuous, aggravated or exemplary. Injunctions restrain ongoing torts. Specific restitution of goods and abatement of nuisance are available in appropriate cases. Pakistan's Fatal Accidents Act 1855 allows dependants to claim for wrongful death (still cited in motor-accident litigation alongside the Motor Vehicles Ordinance 1965).