The Law of Torts

Writer: Waseem Afzal

These notes are not free from errors and still to be edited.

Sources:

→Law 0f Tort by Winfied

→ Law of Torts by RatanLal

→ The Law of Torts by PLD Publishers

Lecture 1:

1. Nature of Tort
2. Definition of Tort
3. Elements of Tort

NATURE:

Since Law is either Civil or Criminal in nature. The entire body of law has been sectioned as thirty
percent criminal and seventy percent of civil matters. Civil law can either be Breach of Trust or Tort.

The word tort is derived from Latin term tortum which means to twist and it implies to a conduct
which is twisted or tortious. The equivalent word in English is wrong. The nature of Tort law is
essentially concerned with compensation for damages for civil wrongs suffered as a result of
another’s acts or omissions.

Since it is not possible to give a scientific definition of tort. Tort has been defined by different jurists
as follow:

According to Salmond “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 other merely equitable obligation.

Winfield defines torts as “Tortious liability arises from the breach of a duty primarily fixed by law.
This duty is towards persons generally and its breach is redressable by an action for unliquidated
damages.

According to Ratanlal- "Tort is civil wrong, independent of breach of contact for which the
appropriate remedy is an action for unliquidated damages".

it is clear from the definitions, that a tort arises when there has been a breach of a legal duty which
is recognized under the law and that the appropriate remedy is a claim for damages, which is
perhaps the primary characteristic of the action. The person or “party” who suffers harm from the
wrongful conduct of another is known as the plaintiff or claimant. The person or “party” who caused
the injury is known as the defendant or tortfeasor. The lawsuit is called a “tort action.

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Since, it has been mentioned that Tort is a wrong but there are few wrongs which cannot be brought
under the shade of Tort. These are as follow

1. Wrongs exclusively Criminal

2. Civil Wrongs- breaches of Contracts
3. Breach of trust.

Elements of Tort:

1. Wrongful act
2. Legal damage
3. Legal remedy

Wrongful Act:

The first essential ingredient in constituting a tort is that a person must have committed a wrongful
act or omission i.e., he must have committed a breach of that duty which has been fixed by law
itself. The question, therefore, arises what then in law, a duty is. It may mean that there is some
legal limitation or restriction on the conduct of a person that he should behave in such a manner as
a reasonable person would have behaved in like circumstances. If a person does not observe that
duty like a reasonable and prudent person or breaks it intentionally, he is deemed to have
committed a wrongful act. A wrongful act may be a positive ace or an omission which can be
committed by a person either negligently or intentionally or even by committing a breach of strict
duty. For example, if a person drives his motor cycle at an excessive speed in violation of law or fails
to perform a duty as required by law, or beats a person in order to take revenge or keeps a lion on
his land which escapes and injures a person on the road, he can be made liable for positive wrongful
act or omission in negligence, battery or breach of strict duty, as the case may be.

it may be noted that, a breach of merely moral or religious duty will not suffice; it must be a duty
primarily fixed by law. For example, once Miss A was seriously ill and she was all alone in her house.
She requested her neighbour B to look-after her. B did this i.e., he brought medicines, cooked food
for her and served her also. She became alright .After sometime B fell ill and by chance he was alone
in his house. He then requested Miss A to look –after him. But Miss a never acceded to his request
with the result B suffered a lot and became disabled. In this case Mr. B cannot take any legal action
against Miss A as the duty is simply a moral duty and has not been fixed by the law itself.

Even if it is a breach of a religious duty, which is not imposed by law, an action cannot be
maintained. A case worth mentioning in this area is of DHADPHALE V. GURAV (1881) 8 BOM122. In
this case the facts briefly were that Dhadphale, a servant of the Hindu temple, had a right to get the
food offered to the idol. The defendant Mr. Gurav, was under an obligation to the idol to offer the
food, but he did not do so. The servant, therefore, brought a suit against him for damages. It was
held by the court that the defendant was under no legal obligation to supply food to the temple’s
servant, and though, his omission to supply food to the idol might involve loss to the plaintiff, it was
a breach of religious duty, and could not entitle the plaintiff to maintain a suit.

Roger V. Ranjendro Dutt. The court held that, The complained of should, under the consequences,
be legally wrongful, as regard the part complaining. That is’it must prejudicially affect him in some
right, merely that it will however directly do harm in his interest is not enough. So, therefore, duty
must be from the very first must fixed by law. But if an act has been done by a person involuntarily
or under the influence of pressing danger, he will not be deemed to have committed a breach of
legal duty. Again if an act or omission is done under some lawful excuse, it would not amount to

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breach of legal duty or a wrongful act. For example, a police officer in following a thief trespassed
the land of Mr. B. Here the police officer will not be deemed to have committed a breach of legal
duty because of lawful excuse or justification. The crucial test of a breach of legal duty or a legally
wrongful act or omission, however, is its prejudicial effect on its legal right of another person which
is dealt with under the heading legal damage i.e., “infringement of private legal right”, the second
essential of tort. Because without injuria (i.e., infringement of private legal right) a person does not
become a tortfeasor, although he might have committed a breach of legal duty. For example, driving
of a motor-cycle on the wrong side is a breach of legal duty and is not actionable in tort unless
somebody is injured.

Legal Damage:

In general, a tort consists of some act done by a person who causes injury to another, for which
damages are claimed by the latter against the former. In this connection we must have a clear
notion with regard to the words damage and damages. The word damage is used in the ordinary
sense of injury or loss or deprivation of some kind, whereas damages mean the compensation
claimed by the injured party and awarded by the court or in simple words “the sum of money
awarded by the court to compensate.” Damages are claimed and awarded by the court to the
parties. The word injury is strictly limited to an actionable wrong, while damage means loss or harm
occurring in fact, whether actionable as an injury or not.

The real significance of a legal damage is illustrated by two maxims, namely, Damnum Sine Injuria
and Injuria Sine Damno.

(i) Damnum Sine Injuria (Damage Without Injury) .

There are many acts which though harmful are not wrongful and give no right of action to him who
suffers from their effects. Damage so done and suffered is called Damnum Sine Injuria or damage
without injury. Damage without breach of a legal right will not constitute a tort. They are instances
of damage suffered from justifiable acts. An act or omission committed with lawful justification or
excuse will not be a cause of action though it results in harm to another as a combination in
furtherance of trade interest or lawful user of one’s own premises. In Gloucester Grammar School
Master Case , it had been held that the plaintiff school master had no right to complain of the
opening of a new school. The damage suffered was mere damnum absque injuria or damage without
injury. Acton v. Blundell , in which a mill owner drained off underground water running into the
plaintiff’s well, fully illustrate that no action lies from mere damage, however substantial, caused
without the violation of some right. There are moral wrongs for which the law gives no remedy,
though they cause great loss or detriment. Loss or detriment is not a good ground of action unless it
is the result of a species of wrong of which the law takes no cognizance.

(ii) Injuria Sine Damno ( injury without damage)

This means an infringement of a legal private right without any actual loss or damage. In such a case
the person whose right has been infringed has a good cause of action. It is not necessary for him to
prove any special damage because every injury imports a damage when a man in hindered of his
right. Every person has an absolute right to property, to the immunity of his person, and to his
liberty, and an infringement of this right is actionable per se. actual perceptible damage is not,
therefore, essential as the foundation of an action. It is sufficient to show the violation of a right in
which case the law will presume damage. Thus in cases of assault, battery, false imprisonment, libel,
trespass on land, etc., the mere wrongful act is actionable without proof of special damage. The
court is bound to award to the plaintiff at least nominal damages if no actual damage is proved. This

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principle was firmly established by the election case of Ashby v. White, in which the plaintiff was
wrongfully prevented from exercising his vote by the defendants, returning officers in parliamentary
election. The candidate for whom the plaintiff wanted to give his vote had come out successful in
the election. Still the plaintiff brought an action claiming damages against the defendants for
maliciously preventing him from exercising his statutory right of voting in that election. The plaintiff
was allowed damages by Lord Holt saying that there was the infringement of a legal right vested in
the plaintiff.

Legal Remedy:

The law of torts is said to be a development of the maxim ‘ubi jus ibi remedium’ or ‘there is no
wrong without a remedy’. If a man has a right, he must of necessity have a means to vindicate and
maintain it and a remedy if he is injured in the exercise or enjoyment of it; and indeed it is a vain
thing to imagine a right without remedy; want of right and want of remedy are reciprocal. Where
there is no legal remedy there is no wrong. But even so the absence of a remedy is evidence but is
not conclusive that no right exists. Therefore if we mathematically try to explain tort, the following
formula is deducible: Wrongful act + Legal damage + Legal remedy= Torts.

What does the maxim Ubi jus ibi remedium means:

The law of torts is said to be a development of the maxim "ubi jus ibi remedium" which means
"there is no wrong without a remedy". 'Jus' signifies here the 'legal authority to do or to demand
something'; and 'remedium' may be defined to be the right of action, or the means given by law, for
the recovery or assertion of a right.

If a man has a right, he must have a means to vindicate and maintain it, and a remedy if he is injured
in the exercise and enjoymnent of it; and, indeed, it is a vain thing to imagine a right without a
remedy, for want of right and want of remedy are reciprocal.

This maxim does not mean, however, that there is a legal remedy for every moral or political wrong;
but only that legal wrong and legal remedy are correlative terms; so that where there is no legal
remedy, there is no legal wrong; and hence if all legal remedy for a right is barred, the right is in fact
gone.

Lecture 2:

1. Tort vs Crime
2. Tort vs Quasi Contract
3. Tort vs Breach of contract

Tort vs Crime:

Tort and crime resemble each other in this that both are violatons of rights in rem and in both the
rights and duties are fixed by law irrespective of the consent of the parties. Followings are the
differences;

Firstly; The state prosecutes violations of criminal law. A victim's consent is neither necessary nor
sufficient for a prosecution to be brought. In tort law, by contrast, the victim decides whether to
bring a tort claim and is free to choose not to do so.

Secondly, Tort law typically requires harm as a prerequisite to a remedy. Criminal law does not.
Specifically, criminal law punishes not only: (a) Acts that are harmful to others, but also: (b) Acts that
are harmful only or mainly to the actor being punished; (c) Dangerous acts that have not yet caused

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harm; and (d) Acts that the community considers immoral, even if the acts are not "harmful" in the
narrower sense of the term. By contrast, tort law mainly provides a remedy for harmful acts, not for
acts that create risks of future harm, and not for acts that are considered immoral but not harmful

Thirdly, Criminal law often imposes much more severe sanctions than tort law, of course: loss of
liberty or even of life. So the procedural protections in criminal law obviously are much more
extensive and (in theory at least) a much greater barrier to liability. For example, the criminal
defendant, unlike the tort defendant, must be proven guilty beyond a reasonable doubt, the
exclusionary rule sometimes applies, and the double-jeopardy rule precludes the same jurisdiction
from pursuing multiple convictions for the same conduct

Fourthly, Criminal law, in theory at least, contains a proportionality principle, requiring that the
punishment "fit" the crime. But tort law does not purport to provide remedies proportional to the
injurer's wrong: normally, compensation is the remedy, whatever the nature of the tort or wrong.

Fifthly, Criminal law contains a much broader spectrum of fault or culpability than does tort law. The
spectrum is wider along two dimensions: the state of mind, or mens rea, element and the conduct,
or social harm, element. Thus, the requisite culpable state of mind in criminal law ranges from strict
liability to negligence to recklessness to knowledge to purpose, with punishment varying according
to that mens rea. (The multiple degrees and categories of homicide are the best example of this
range.) And the conduct or social harm element also ranges enormously. Every American jurisdiction
contains an extraordinary number and range of criminal offenses.9 By contrast, most of tort law is
governed by a negligence standard. There are relatively few categories of intentional torts and even
fewer categories of recklessness and strict liability. To be sure, a number of distinct torts address
distinct forms of conduct and social harm other than the physical harm that negligence law protects

Furthermore, Criminal law requires a greater minimal level of fault before liability will be imposed
than does tort law. This is a very crude generalization, with many exceptions. Still, the minimum
fault requirement tends, in criminal law, to be something like gross negligence or even recklessness,
while in tort law, ordinary negligence usually suffices.

Moreover, Criminal law pays much less attention to the victim's conduct than does tort law. First, in
criminal law, victim fault hardly ever matters. Contributory negligence is not a criminal law defense,
but it is routinely taken into account in tort law. Second, the consent of the victim to the behavior of
the wrongdoer, or to the risks imposed by his behavior, is much more likely to be a full defense in
tort law than in criminal law. Criminal law includes many so-called victimless crimes, that is, crimes
in which both of the immediate parties to the transaction consent, such as prostitution, gambling,
and drug distribution. And consent is generally no defense to causing serious bodily injury, as
opposed to minor bodily injury, in criminal law; but in tort law, it will more often serve as a full
defense.

In addition, Criminal law is statutory. The doctrine of common-law crimes is largely defunct. By
contrast, tort law remains mainly a set of common-law, judge-made doctrines (although the
statutory overlay is increasing). This fundamental difference is related to many others. For example,
criminal law tends to produce more detailed specifications of wrongful behavior than tort law,

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which, in important domains (especially negligence), creates liability standards that are maddeningly
vague.

Lastly, Excuses to liability are recognized in criminal law much more readily than in tort law. Thus,
the insane are generally liable for their torts, but are not criminally responsible (though again, this
theoretical difference is belied by actual legal practice, since it is extraordinarily difficult for mentally
disordered criminal defendants to succeed with an insanity defense). Moreover, criminal law and
tort law differ in their treatment of children: even relatively young children are often liable for torts,
but they are not criminally responsible.

Tort Crime

Public Wrong or it is a wrong against the whole

Private Wrong or Tort is against Individual
society.

Breach of Private Duties Breach of Public Duties

Object of action is compensation Object of action is punishing the wrong doer.

Individual has to approach a Civil Court for State initiates prosecution against the wrongdoer
redressal and mostly in Criminal Courts

Rule of Civil procedure is applied Rule of Criminal Procedure is applied

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 In Tort, Individual can compromise In Crime compromise is only possible in
compoundable offenses.

Difference between tort and Breach of Contract:

Tort is a civil wrong based upon the common law principle that does not need to have a defined
relationship between the parties involved. On the other hand, a contract is an agreement that is
entered between two or more parties with a set specific set of rules and obligations to be followed
on each individual's part.

Based upon the above explanations, certain distinctions can be pointed out between the law of tort
and breach of contract. They are as follows:

1. Tort is a civil wrong which is not exclusively a breach of contract. Contractual liability arises out of
an agreement between the parties. Tortious liability, on the other hand, arises when there is a
breach of duty involved. This does not fall under the breach of contract.

2. When a tortious act is committed, the remedy is an action for damages, whereas when there is a
breach or failure of performance of contract on the part of either of the parties involved, nature of
damages is always compensatory.

3. Under tort, the duty is generally towards persons generally whereas in contract, the duty is
towards a specific person or group of persons. That means that in tort, privity of contract does not
exist as the duty is not towards a particular person but towards persons generally.

4. Tort, being a private wrong, the party involved herein is required to file a suit against the person
whose act had caused the damage. Though nature of damages is compensatory, but in case of injury
to person, exemplary damages may also be awarded upon facts revealing malice or fault. But for
breach of contract, nature of damage is always compensatory.

5. Generally under tort, the remedy is an action for unliquidated damages. That means that the
awarded damage depends upon the discretion of the court and also upon the facts and
circumstances of each case. Whereas when a breach of contract occurs, the plaintiff sues for pre-
determined and in-elastic sum of money."

6. Except for exceptional circumstances, the reasons for breach of contract is considered immaterial,
whereas through the case is the same under tort law too, however, in instances wherein an evil
motive is involved on the part of the defendant and the same is proved before court, it will prove to
tip the scales of justice and liability against the defendant

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Tort vs Qausi Contract

Lecture 3:

1. Elements in Torts
(a) Act and Omission
(b) Voluntary and Involuntary Acts
(c) Mental Elements

→Malice

→Inten on, Negligence and Recklessness

→ Mo ve

(d) Malfeasance
(e) Fault

ACTS and OMMISSION:

To constitute a tort, there must be a wrongful act. The word “act” is used to include both positive
and negative acts i.e., acts and omissions. Wrongful acts which make a person liable in tort are
positive acts and sometimes omissions. They must be distinguished from natural calamities, and
even from mere thoughts and intentions.

Failure to do something in doing an act is a bad way of performing the act. For example, if a lawyer
gives an opinion without taking notice of the change in law brought about by a reported decision of
the Supreme Court, he would not be guilty of an omission but of performing the act of giving his
opinion in a bad way.

Where as an omission is failure to do an act as a whole. Generally, the law does not impose liability
for mere omissions. An omission incures liability when there is a duty to act. For example, a person
cannot be held responsible for the omission of not rescuing a stranger child whom he sees drowning
even though he can rescue him without any appreciable exertion or risk of harm to himself. But the
result would be different if a parent or guardian is failed to attempt to rescue the child. In that case,
it would be an omission as there is a duty to act.

Where the defendant agrees to act or voluntarily accepts a responsibility, his later failure to do so
will render him liable. Barrett v Ministry of Defence [1995] 1 WLR 1217

VOLUNTARY and INVOLUNTARY ACTS:

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A voluntary act may be distinguished from an involuntary act as only voluntary acts have liability.
Voluntary act can be understand based on its willed mascular contraction, its circumstances and its
consequences. For example, an act of murdering a person by shooting at him is one act and not
merely the muscular contraction of pressing the trigger.
An involuntary act does not give rise to any liability. For example, an involuntary act of trespass is
not a tort.
Omissions like positive acts may also be voluntary or involuntary.

In the case of Olga Tellis v. Bombay Municipal Corporation, the Supreme Court held that the
encroachments committed by those persons are involuntary acts in the sense that those acts are
compelled by inevitable circumstances and are not guided by choice.

MENTAL ELEMENTS:

A voluntary act can be held in strict liability if there’s a presence of required mental element i.e.,
malice, intention, negligence or motive in addition to the other necessary ingredients of the torts are
present.
o Malice in Law and in Fact

Malice means spite or ill-will. However, in law malice has two distinct meanings such as: 1.
Intentional doing of a wrongful act and 2. Improper motive. In the first sense, malice is synonymous
with intention and in the second sense, malice refers to any motive which the law disapproves.

Malice with an intention of wrongful act is called as Malice in Law. It is also called as implied malice.
In a legal sense, malice means a wrongful act, done intentionally, without just cause or excuse. For
example, if a person give a perfect stranger a blow likely to produce death, the person do it out of
malice because, he do it intentionally and without just cause or excuse.

Malice with an improper motive is called as Malice in fact. It is also called as express malice. Malice
in fact is liable for malicious prosecution.

Wrongful acts of which malice is an essential element are:

Defamation
Malicious prosecution
Willful and malicious damage to property

o Intention, Negligence and Recklessness

Intention is an internal fact, something which passes in the mind and direct evidence of which is not
available. There’s a popular saying that it is common knowledge that the thought of man shall not be
tried, for the devil himself knoweth not the thought of man.

In general terms, negligence is “the failure to use ordinary care” through either an act or omission.
That is, negligence occurs when:

somebody does not exercise the amount of care that a reasonably careful person would use under

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the circumstances; or
somebody does something that a reasonably careful person would not do under the circumstances.

In the case of Dulieu Vs. White & Sons (1901), the plaintiff, a pregnant woman, was sitting behind
the counter of her husband?s bar when suddenly a horse was driven into the bar. Fearing her
personal safety, she suffered nervous shock and gave birth to a premature baby. In the
circumstances, the court held that the plaintiff was entitled to recover in negligence.
Recklessness is also called as gross negligence. Gross negligence means conduct or a failure to act
that is so reckless that it demonstrates a substantial lack of concern for whether an injury will result.
It is sometimes necessary to establish “gross negligence” as opposed to “ordinary negligence” in
order to overcome a legal impediment to a lawsuit. For example, a government employee who is on
the job may be immune from liability for ordinary negligence, but may remain liable for gross
negligence.

o Motive

Motive is the ulterior object or purpose of doing an act. It differs from intention in two ways. First,
intention relates to the immediate objective of an act, whereas, motive refers to the ulterior
objective. Secondly, motive refers to some personal benefit of satisfaction which the actor desires
whereas intention need not be so.

For example, When A poisons B, the immediate objective is to kill B and so this is A’s intention. The
ulterior objective of A may be to secure B’s estate by inheritance or under a will executed by him
and this objective will be A’s motive. Motive is generally irrelevant in tort.

In the case of Mayor & Co. of Bradford v. Pickles, A sank a well on his land and thereby cut off
underground water-supply from his neighbour B, and B’s well was dried up. It was not unlawful for a
land-owner to intercept on his own land underground percolating water and prevent it from
reaching the land of his neighbour. The act did not become unlawful even though A’s motive in so
doing was to coerce B to buy his land at his own price. A, therefore, was not liable to B, however
improper and malicious his motive might be.

MALFEASANCE: MISFEASANCE: NON-FEASANCE:

The term “Malfeasance” applies to the commission of an unlawful act. It is generally applicable to
those unlawful acts, such as trespass, which are actionable per se and do not require proof of
intention or motive.
The term “Misfeasance” is applicable to improper performance of some lawful act for example when
there is negligence.
The term “non-feasance” applies to the omission to perform some act when there is an obligation to
perform it. Non-feasance of gratuious undertaking does not impose liability, but misfeasance does.

M.C. Mehta v. Union of India

FAULT:

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If mental elements such as intention, negligence, malice or motive together with an act or omission
which is violative of a right recognized by law plays an important role in creating liability. Such
tortious liability has an element of fault to support it. But there is a sphere of tortious liability which
is known as absolute or strict liability, where the element of fault is conspicuously absent.

In the case of M.C. Mehta v. Union of India, the rule of strict liability is laid down that an enterprise
engaged in a hazardous or inherently dangerous activity is strictly and absolutely liable for the harm
resulting from the operation of such activity.

Lecture: 4

Person Disability:

A person who suffers injury has the right to file a case against the person who caused him harm, but
there are certain categories of people who cannot sue a person for their loss and also there are
some people who cannot be sued by any person, like foreign ambassadors, public officials, infants,
sovereigns, alien enemy. But there are certain limitations where these categories of people can sue
and can be sued, subject to the permission of the central government and unless they themselves
waived their privilege by submitting to the jurisdiction of the court.

(1) Who cannot sue (2) Who cannot be sued

(a) An alien enemy (a) the King
(b) Convicts (b) Foreign Sovereign
(c) Bankrupts (c) Ambassadors
(d) Husband and Wife (d) Public Officials
(e) A corporation (e) Infants
(f) A child in his mother womb (f) Lunatics
(g) Foreign state (g) Corporations
(h) Trade Unions
(i) Married women

1. An Alien Enemy

An Alien enemy is the person of enemy nationality or residing in the enemy territory. Such a person
doesn’t have the right to sue for tort.

According to English law, the person cannot maintain the right of sue unless allowed by order in
council.

According to Pakistan law, the person cannot maintain the right to sue unless obtains the permission
of the central government under section 83 of the civil procedure code is obtained.

Illustration

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If A is a resident/citizen of an enemy country and wants to sue B, a resident of Pakistan, he cannot
do that unless he obtains the permission of the central government.

2. Convict

A convict is a person against whom a judgement of death or imprisonment has been pronounced by
the court of law.

According to English law, the person whose sentence is unexpired does not have the right to sue for
any damages to his property or for recovery. But this concept was removed by criminal justice act,
1948.

Illustration

Situation 1: Before 1924, if A is a convict and want to sue B for injury regarding the property, in that
situation he cannot sue the person in the offence of forfeiture of the property.

Situation 2: After the 1924, if A is a convict and want to sue B for injury regarding property or body,
he gets the right to sue for both injury to property as well as to the body.

3. Bankrupt

A bankrupt is also under the disability to sue for the act against his property.

All the offences against the property, the right to action is vested with the trustee or the assignee.
But in the case of personal wrong, the person has a right to sue.

In the situation, where a tort causes injury to both the person and the property, so the right of
action will split between the two.

Illustration

Situation 1: If A is a bankrupt and his property is vested in the possession of official assignee i.e. C by
the bank. If B trespasses his property, the right of action is vested on official assignee i.e. C.

Situation 2: But if B trespasses A’s body then in that situation the right of action is vested on A.

4. Husband and wife

Back in times, in English law, the husband and wife cannot sue. By the virtue of the married women’s
property act, 1882, a wife can sue her husband. But the husband cannot sue his wife. A wife could
not sue her husband for the antenuptial tort or personal wrong.

The law reform (husband and wife) act 1962 made a drastic change and allowed both to sue.

5. Corporation

A corporation does not have right to sue for the personal injury as because of its nature it is clear,
that a corporation cannot be injured personally but a corporation can sue for the tort affecting its
property.

The qualification is:

1. The tort must not be impossible in nature.

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 2. In the case of defamation, the corporation can sue the other person if, it can prove that the
injury has the tendency to cause actual damages.

3. A corporation may sue for a libel or any other wrong affecting its property or business.

In Manchester v. Williams

In this case, it was held that a corporation has a right to sue, not only for the property but also for its
personal reputation.

6. An Infant/Minor

A minor can sue for the tort committed against him, subject to that by his next friend or guardian.
But he cannot maintain a remedy for the injury sustained when he was in his mother’s womb.

In Walker v. Great Northern Railways

In this case, a pregnant woman injured due to a train accident, as a result of which her child was
born deformed. The Court held that the minor cannot maintain a remedy for the injury sustained
when he was in his mother womb.

But in a case having similar facts, the supreme court of Canada provided the remedy to the infant.

7. A foreign State

In England, a foreign state cannot be sued in any court unless the action is recognised by her
majesty.

In Pakistan under section 84 of the civil procedure code, a foreign state can have the right to sue
provided that such state has been recognised by the central government.

WHO CANNOT BE SUED:

a. Foreign sovereign

A foreign Sovereign cannot be sued unless they themselves submit to the jurisdiction to the local
government.

By residing in a foreign country, one does not waive his right to the jurisdiction from the local
government.

Under the civil procedure code, a foreign sovereign can be sued in the Indian court only with the
consent of the central government.

The conditions under which the Central Government gives permission:-

1. If the foreign sovereign has instituted a suit in the court against the applicant.

2. If the foreign sovereign, by himself or by agent, trades within the local limits of the Pakistani
court.

3. If the foreign sovereign’s immovable property, in respect of which the applicant wants to
sue, is situated in Pakistan.

Prepared and compiled by Waseem Afzal – LLB-F16

As per provisions of Ss. 86 and 87 of CPC, a suit against a foreign sovereign without the consent of
the Central Government is only permissible where the plaintiff is a tenant under the foreign
sovereign and the suit relates to lands held by him.

Otherwise, the permission of the Central Government is mandatory, and when permission has been
applied for and refused by the Government, it is not open to the court to question the propriety of
the order refusing consent.

Illustration

A wants to sue B, a foreign sovereign. He can sue only by taking permission from the central
government.

b. Ambassadors

Foreign ambassadors, their family, servants also, cannot be sued, unless they waived their privilege
by submitting to the jurisdiction of the court. An ambassador cannot be sued during his term of
office.

Foreign ambassadors can be sued in the Pakistani court only with the consent of the central
government. Here are some case laws from our neighbor country India which has developed a
strong mechanism for tort, fortunately or unfortunately. Pakistan needs to update the system, the
laws and the mechanism of courts.

In Harbhajan Singh Dhalla v Union of India

The petitioner, in this case, carried out building maintenance, reconditioning and renovations at the
Algerian Embassy and the residence of the Algerian Ambassador in New Delhi. He tried to collect his
dues but failed and then requested the Ministry of External Affairs to grant the permission to sue the
Algerian Embassy. The Ministry refused to grant the permission on “political grounds” and also
contended that under section 86 petitioner failed to make the prima facie case. And if permission
has been applied for and refused by the Government, it is not open to the court to question the
propriety of the order refusing consent.

c. Public Official

No action lies against the public official in their official capacity with respect to torts committed by
them. But, they can be sued for the act committed by them in their private capacity.

If the act by the servant of the government is done under sovereign power no action lies against the
government.

In U.O.I. v. Bhagwati Prasad

In this case, the train collides with the taxi. For these, Bhagwati prasad files a case against the U.O.I,
of negligence. It was held that a suit for the damages can be filed against the act of the official in
their private capacity but not for the act done under sovereign power.

d. Infants/Minor

The infant/ minor can be sued for the act committed by them as an adult. Thus a minor can be sued
for assault, false imprisonment, libel, slander, fraud etc. but where intention, knowledge or some
other condition of mind are essential ingredients of liability then in that cases minor/ infant can be
exempted due to their mental incapacity.

Prepared and compiled by Waseem Afzal – LLB-F16

In Walmsey v. Humonick (1954 2 D.L.R. 232)

Two little boys were playing cowboy related games. One boy hit the arrow and it hit another boy in
his eye. The court gives the judgement in defendant’s favour as a five-year child doesn’t even think
about it. Hence the defendant is not liable.

e. Lunatic

There are two conditions related to lunatic:

1. If the act was done by a lunatic, when he is not in the condition of a stable mind, in that
condition the lunatic cannot be sued.

Illustration

If A commits battery against B when he is not in a condition of stable mind. He cannot be sued.

2. But, if the act was done by a lunatic when he is in the condition of a stable mind, he can be sued.

Illustration

If A has a disease where he becomes lunatic for some period but, becomes a normal person after
some time. If he commits battery against B when he is normal. In that situation A can be sued.

Corporation

A corporation cannot be sued, unless

1. The act done was within the scope of agent employed by the corporation

2. The act done was within the purpose of the incorporation.

In Poulton v. London and S.W. Rly. Company (1867 L.R.2 Q.B. 534)

The railway master was employed by the defendant company, arrested a man for not paying the
freight charges of the horse he is carrying with him. The petitioner filed a case against the
corporation. It was held that the railway master was employed to arrest the person only if the
person does not pay the freight of himself. No order was given to him to arrest a person if he is not
paying the freight charges for the goods carried by him. Here, he is acting in his private capacity so a
corporation cannot be held liable, only the station master can be held liable

f. Trade Union

In Pakistan the situation is similar to that of Trade Union Act, 1926, where a registered trade union
cannot be sued. But the changes in the Act in 1939, now a trade union can be sued in its registered
name.

Illustration

If one of the members of a trade union named XYZ commits a tort then:

Situation 1: As per the Trade union act, 1926, XYZ cannot be sued

Situation 2: After changes in 1939, XYZ can be sued.

g. Married Woman

Prepared and compiled by Waseem Afzal – LLB-F16

In Pakisatn under the Woman Property Act, 1874 a married woman may sue and be sued alone. In
Pakistan, a husband is not liable for the tort of his wife.

Lecture: 5

Discharge of Tort:

In discharge of tort, the circumstances are such the liability exists but remedy does not exist. The
meaning of discharge of tort is coming to an end of tort. It is a process by which tort cease to exist
and a wrongdoer is not liable for wrong committed by him.

Following are the modes for discharge of tort.

1. Death of the parties

The common law maxim ‘actio personalis moritur cum persona’ applies here which means personal
right of action dies with person. There can be two situations in case of death of parties:

1) Death of wronged person against whom the tort is committed.

2) Death of wrongdoer who has committed tort.

In case death of wronged person, the legal heir can claim damages from the defendant for
proprietary wrong. e.g. if tort was committed against property, in case of nuisance, trespass,
negligence, fraud, waste etc. But for the personal tort defendant cannot be sued. Even in case of
death of wrongdoer the legal heir of deceased are not liable for personal tort of wrongdoer.

Personal torts are those in which are affecting mind and body of the person. E.g. assault, battery,
false imprisonment, defamation etc.

2. Accord and satisfaction

Accord means an agreement whereby a person agrees to accept some valuable consideration in lieu
of right of action that he has against the other. Satisfaction means actual payment of amount of
consideration so agreed to when there is an agreement and it is satisfied by its executors, the
agreement is termed as accord and satisfaction and it discharged the tort.

The consideration may be treated in money or a compensation which is accepted by a wronged

person or his legal heirs and thereby settled the dispute does not proceed in court of law.

When the agreement is executed and satisfaction has been made the agreement is called accord and
satisfaction and operates as a bar to the right of action. An accord and satisfaction in favor of one
joint tortfeasor operates in favor of all when the injury is one and indivisible. Where damages are to
be recovered, accord and satisfaction is good plea action for libel and personal injuries.

3. Release

A release is the giving up or discharging the right of action which a man has or may have against
another man. The wronged or aggrieved person gives up the entire claim or discharged right which
he has against the wrongdoer. This release should be voluntarily and not by threat, compulsion or

Prepared and compiled by Waseem Afzal – LLB-F16

force. In England the release is with consideration and writing but it is valid even without
consideration and in writing. The injured, wronged person does not proceed in court of law against
wrongdoer. A lease executed under mistake, or in ignorance of one’s right or obtained by fraud is
not valid. A convenient not to sue one of the two joint tortfeasors, doesn’t operates as a release so
as to discharge the other.

4. Judgment

Judgment is the final decision of a court of law. If the matter is decided conclusively and finally by
the competent court then for the same cause of action, between the same parties the matter cannot
be reagitated again and further or fresh suit is debarred.

This principal is based on maxim Res-Judicata: u/s.11 of civil procedure Code, 1908, Means thing
once decided cannot be reagitated, more than one action does not lie on the same cause of action.
The doctrine of Res-Judicata rests upon the principle that one should not be vexed twice for the
same cause and there should be finality of litigation. The object of the principle is to prevent endless
litigation. It also prevents a new investigation so that the same person cannot be harassed again and
again in various proceedings upon the same cause of action.

It is based on the maxim nemo debet bis vexari pro in et edem causa means no man should be
vexed twice over the same cause of action.

5. Law of limitation

The law prescribes limit within which an action must be brought for the wrong and if this prescribed
period is over, expired, the right of action is barred and remedy ceased to operate law helps those
only that is diligent about their right. Delay defeat equity .Law will not help to those who were
sleeping over their right for pretty long time.

In England the limitation Act, 1939 as amended by Law Reform Act 1954, fixes time during which
action of tort must be brought. On the other hand in India, Indian limitation Act 1963, provides the
prescribed period during which existing right can be enforced in the court of law. It does not create
nor define any cause of action; the object of the Limitation Act is to enable the parties to file suit
within certain period and forbid them from filing suit after that period.

The object of the law of Limitation is to ensure private justice to suppress and perjury and to quicken
diligence and to prevent oppression.

6. Waiver by Election

Where man has more than one remedy for tort and he elect pursue one of those, giving up the
others, the other remedies are waived. He cannot pursue them if he fails in the one elected. Waiver
is express or implied, express when the person entitled to anything expressly and in terms gives it up
in which case it nearly resembles release; implied, when the person entitled to anything does or
acquiesces in something else which is inconsistent with that to which he is so entitled.

In short waiver means to give up; the aggrieved or wronged person gave up his right of action
against the wrongdoer. For some reason and do not proceed in court of law.

7. Acquiescence

This shows an inactivity of person. The aggrieved person does not proceed in court of law because of
his own incapacity. i.e. .if he has no money to pay court stamp fee or an Advocates fee, or he doesn’t
have time to go in the court of law and file the suit for compensation. Where a person who knows

Prepared and compiled by Waseem Afzal – LLB-F16

that he is entitled to enforce the right, neglects to do so for a length of time, the other party may
fairly infer that he has waived of abandoned his right. But to deprive man of his legal remedies there
must be something more than delay.

LECTURE: 6

Vicarious Liability:

TO BE CONTINUED…………………….

Prepared and compiled by Waseem Afzal – LLB-F16