THE LAW OF Torts CHAPTER | DEFINITION AND GENERAL OF TORT What is ‘tort??—The word ‘tort’ is deri is ‘tortum, to twist, and implies conduct which is: ‘aia —_a" corresponds to the English word ‘wrong’ and to the Roman word delle. i may be-defined as “a civil wrong, independent of contract, for which is remedy is an action for damages”: (Salmond). It is “an act or omission which prejudicially affects a person in some legal private right”: (Ratanlal) It may be noted that infliction of all civil injuries is not ‘tort’. A civil injury for which an action will not lie is not a tort. _ PRINCIPLES Law of torts or civil wrongs in Pakistan is almost wholly the English Law, which is administered as rules of justice, equity and good conscience. Before applying any rule of English Law, court has to see whether it suits to the society and circumstances.! DEFINITION “Law of torts’ belongs to one of those branches of law which elude definition. Addison has said that, “it is not possible to give a scientific definition of tort.” Thus it is admitted on all hands that tort has not been defined satisfactorily. In his book titled, “Foundation of Legal Liability”, Street has also supported the above mentioned view in following words: “No definition of tort at once logical and precise can be given”. The reason for Biving no satisfactory definition of tort may be summed up as follows:- The law of tort is still growing. : It is based on common law and not statute law. It is implicated historically with procedure. “Underhill”.—“A tort is an act or omission which is authorized by law, and independently of contract— (1) — Infringes mai (@ some absolute right of another, or 1 PLD 2011 sc go.w OF TORTS [Chapter 2 THE LA (0) some qualified right of another causing damage, or ight resulting in some substantial and_ particu, © pay a aot, eyond that which is suffered by in public generally, and (2) . gives rise to an action for damages at the suit of the injure ig for which the remedy is q “A tort is a civil wron! unliquidated damages, other merely equitable ish Law of Tort, there is meré , “Salmond” .— Common Law action for the breach of a trust or that, “there is no Englis Torts.” and which is not exclusively obligation”. He further says ely an English Law of _- =“Winfield”.—“Tortuous liability arises from the breach of a duty primarily fixed by the law, this duty is towards persons generally and its breach is redressible by an action for unliquidated damages”. “Clark and Lindsell”} ‘as “a wrong independent of contr: common law action.” oe “Fraser” is near the mark when he says, of ‘right in rem’ of a private individual, giving the suit of the injured party.” Conclusion.—Undoubtedly, many jurists have defined torts to some ‘extent clearly but the Winfield’s definition has been considered more precise and clear, although it is rather procedural in nature. ~ ‘Thus; tort may be defined as a civil wrong independent of contract for which the appropriate remedy is an action to damages. It is a wrong “which involves some injury to the rights as an individual by the ‘non- performance of duties which are generally imposed by law. ‘Law of Tort? and ‘Law of Torts’.—According to Salmond, there is no law of tort; there is merely a Jaw of torts, i.e., a list of acts and omissions which, in certain conditions, are actionable, The law of torts consists of a number of specific rules prohibiting certain kinds of harmful activity, and leaving all the residue outside the sphere of legal responsibility. The activity of a person may be harmful yet quite legal. A wrongful activity is not necessarily illegal. Thus, if you open a shop opposite mine and reduce the price of your wares, Iam sure to lose some clientele-and money. You have harmed me but no Court will hear my complaint on the ground that I have not suffered any legal harm: this being based on the principle that fair competition is no wrong. So, wrongs are either legal or otherwise. Thus there are: Torts to Person, Property, Reputation, etc. in their view law of ‘torts,’ describe a tort act for which the appropriate remedy is a “A tort is an infringement a right of compensation atChapter I) DEFINITION AND GENERAL PRINCIP] ‘LES OF TORT 3 Wrongs which are not tort - . ts." which stand outside the. sphere of tort, mee three classes of Wrongs (1) Wrongs exclusively criminal, (2) Civil wrongs—breaches of contracts, (3) - Breach of trust. 1, Wrongs exclusively criminal,—Ordinar ; or criminal. Thus, detention, conversion, aga oe civil wrongs ie, torts. Dacoity, murder, forgecy te Fag etc., are Purely wrongs, i.e., crimes. Remedy in case of the former is an pti he ee Civil Court for damages, compensation, etc. For ceimes, the ea criminal prosecution in a Criminal Court with the object of naishigg he Sais. : Punishing the “eats There are, however, certain wrongs which are both torts as well crimes, — assault, defamation, negligence, are instances. A civil suit and or a criminal prosecution will lie in such cases. * \2. : Civil wrongs/Breach of Contract.—Civil wrongs which are exclusively breaches of contract. A breach of contract, though a civil wrong, is not a tort. 3. Breach of trust.—A breach of trust is neither a breach of contract-nor a tort. Trust is a matter of confidence and not a matter of contract or tort. Law. on torts in. Pakistan.—There is no Act of the Legislature (like the Penal Code, Contract Act, etc.) in Pakistan dealing with the Law of Torts. The Law of Torts applicable here is the English Law of Torts which, in its turn, is based on the Common ‘Law obtaining in England. The rules of English Law are to be’applied so far‘as they are applicable to our society and circumstances. ESSENTIALS OF A TORT There are five very important essentials of a tort. These are as follows:— : e (1) Civil wrong. (2) “Infringement of right in rem. (3) Right fixed by law. (4) Common Law action. (5) | Remedy. ime on the ae ed to a crime on 1... Civil, wronge-A tort is a civil wrong a5 oPPOS} y THE LAW OF TORTS (Chapter 1 teres and a breach of contract or a breach of trust, on the other. A torts i Contract and a breach of trust are civil wrongs but they are not Inasmuch as the remedies afforded for such breaches are governed by Statutes whereas the remedies given for a tort owe their origin to the Common Law, 2. Infringement of right in rem.—A tort is an infringement of a right in rem and not of a right in personam. A right in rem is a right vested in some determinate person (either personally or as a member of the community) and available against the world at large. Thus one’s rights not to be defamed or assaulted, etc., are rights available against the whole world. Such rights are rights in rem. Their number is countless. . The very opposite of a right in rem is'a right in personam. A right in personam is a right available only:against some determinate person or body, and in which the community at large has no concern. Thus, A agrees to sell his house to B for a certain sum. A does not carry out.the contract. B will thereupon have a right to sue A for damages for breach of contract. Here mutual rights of A and B against each other are created by their private mutual agreement. These rights are personal to both of them. Outsiders are not concerned with them. Such rights are therefore called rights in personam, i.e., personal rights as opposed to general rights. 3. Right fixed by law.—The right which is infringed must be a right (which is fixed by the law) independently of the consent of the parties. “4, Common Law action.—The action available in respect of such a violation should be a Common Law action. Of course, there is nothing like Common/Law in. Pakistan. In England there are numerous Common Law actions of which torts are a part. Such actions become actionable also in Pakistan. 5. Remedy.—The remedy should be by way of damages, i.e., compensation in money. -forr AND CRIME, DISTINGUISHED Both tort and crime resemble each other in this, viz. that both are violations of rights in rem and in both the rights and duties are fixed by law irrespective of the consent of parties: Following are the distinctions between the two. 1. ‘As to the consequence of the act or omission.—A tort is an infringement of the private right of an individual considered as an individual; a ime is the infringement of some public right affecting the public-at- ae according to Stephen a crime is an act or omission in respect of which large.Chapter I] DEFINITION AND GENERAL PRINCIPLES OFTORT 5 Jegal punishment may be inflicted on the acting or omitting to act, Person who is in default either by nee In the ports of Blackstone, “private Wrongs and civil an infringement of the civil rights of individuals, Civil injuries are are a breach and violation of the public rights and saat wrongs or crimes community, considered as a community in its social ee to the whole le capacity,” 2. As to redress of remedy.—In to the injured party in money; in aria! he cae a fine, imprisonment or with death. The compensatioi inj i in criminal action is in addition to punishment. ‘Thus i fhe wodine: underlying principle of redress is different. In the ae - say poagnet punishes the offenders not only to deter them from on ‘he 6 ain of the crime but also to produce examples before those rel rhe wey who are like minded’ with them. But in the case of on the ie is cay provide Se compensation to the person wronged. Crimes are aga ee oa : at bre tape and is in no way remissible by the Crown alone, igdoer has to compensate ied by the State either with 3, As to procedure.—In tort the injured party bri ion; ir crime proceedings are conducted in the Game of ie Deaies sl the pathy person is punished by the State. Criminal proceedings differ from civil case _in the rules of evidence, in waiver of the rules of procedure, in the State’s power of pardon and in other ways. 4, _ As to their history.—Both tort and crime differ in their historical origin, Law of crimes is later in origin than the law of torts. Sir Henry Maine in his book, ‘Ancient Law’, has made the point clear, that the penal Jaw of primitive communities was not the law of crimes but the law of wrongs or torts. Exception.—The above distinction is not without an exception. The real test is that a°tort can be remitted by the person injured, i.e. the injured may refrain from suing, while in case of a crime only the State may do so. Degree of negligence required in a criminal case is much higher than required in civil action. Requisites in criminal case is gross negligence in civil case 1s or breach of duty to take proper care and caution. Requisites i ss falling short of standard of reasonable care required by law, irrespective of its degree or extent. Extent of liability of tortfeasor in civil action ca not on degree of negligence but on amount of damage done. SRT degree of negligence, however, is the determining question in cr! cases," 1. PLD 1976 Kar. 560.THE LAW OF TORTS [Chapter 1 WORT AND BREACH OF CONTRACT, DISTINGUISHED Civil wrong arose when a person breached a legal duty owed to another. Legal duties were of two kinds: one was contractual duty and the other was non-contractual duty. Breach of contractual duty was not a tort while breach of non-contractual duty emanating from legal obligation gave tise to tort. Breach of contractual duty may be redressed by its enforcement : through specific performance while in the latter case, it accrued a right of damages for civil wrong caused,! Both tort and breach of contract resemble in this namely that in both, there is an infringement of private rights, the society in general not being concerned -at all. Moreover, in both, action is taken by the person injured and in both, the remedy is by way of compensation or damages, Damages could not be granted under law in absence of evidence.? The following are, however, the points of difference between the two:— 1. Nature of right infringed.—A tort is a violation of a right in rem, i.e., a right exerciseable against the whole world, whereas a breach of. Contract is an infringement of a right in personam i.e., a right exerciseable against a definite person or Persons. 2. Duty.—In the case of a tort the duty is one imposed by: the law and is owed to the society in general : whereas in the case of a contract the duty is fixed by the will and consent of the parties and it is owed to a definite Person or persons. _ 3.» Consent.—In contract the obligation is founded on the consent of the parties. In a tort the obligation arises independently of any consent, i.e., a'tort is inflicted against consent or without it. : 4. Privity.—In a contract there must always exist privity between the Parties, i.e., a binding legal tie between them; no such privity can exist in tort which is always inflicted against the will id without the consent of the Party injured. ; 5. As to damages.—So far as damages are concerned, there are three Points of difference between a tort and a breach of contract:— (@) Measure of damages.—In a tort the measure of damages is not limited or fixed with precision. In‘a breach of the contract the measure of damages is determined by the stipulation between the parties. (0) Remoteness of damages.—In tort a man is Many a time held liable 7 for damages arising from special circumstances of which he had no knowledge: If there are. special circumstances under which a 1. 2016 PLC (CS) 845. 2. 2013 YLR 1065.Chapter 1] DEFINITION AND G ENERAL PRIN CIPLES OF TORT 41 (3) Thirdly, in cases in which dama, 5 i : nuisance), a fresh cause of action arises 4 Ghar ae eo cases of continuing nuisance successive actions raph damage acerus, In brought in respect of their continuance, may, from time to time, be (4) Lastly, where, the injury is of a continu; an action and the recovery of damages cn _ wrong do not prevent the injured party from brin; continuance of the injury. gi ig Nature, the bringii ure, ging of eparation of the crigiaal ‘ing a fresh action for the 7, Statutes of Limitation.—Actions for tort 1 a oad, ‘otherwise the right to sue is ae or Must be brought within the * In Pakistan, the Limitation Act, 1908, id down the respective jods within which to sue f¢ pe fifferent torts. one = ; ety Pursenis eters Us [OUS LIABILITY—} Stun a LIABILITY FOR the ‘feand © cere. WRONGS COMMITTED BY OTHERS ae y ary ce § HcUSF OY icarious liability.—'Vicarious liabil Nari i 'y-—'‘Vicarious liability’ means liabilit hich is \facurred for or instead of another. Every person is responsible for tis pone "PY ’But there are circumstances where liability attaches to him ie ab mited by others, The most common instances is the whl frye ne for wrongs committed by his servant. In these cases liability is joint as well as several. The wrongdoer himself is liable, be he a servant or an agent, as much as his principal. It is, therefore, quite correct to say “In general a person is responsible only for his own acts, but there are exceptional cases in which the law imposes on him vicarious responsibility for the acts of others, however blameless himself” .—(Salmond). ‘ Vicarious liability, pre-requisites.—Vicarious liability in’ tort required, first, a relationship between the defendant and the wrongdoer, and ; secondly, a connection between that relationship and the wrongdoer’s act or - default, such as to make it just that the defendant should be held legally responsible to “the claimant for the consequences of the wrongdoer’s conduct." Vicarious liability, scope.—“A” might be vicariously liable for the tortuous act of “B” even though the’ act in question constituted a violation of the duty owed to “B” by “A” and even if the act in question was 2 © offence.? The doctors examining a patient are primarily responsible to ene the patients, but the administration of hospital also plays an import - bebe care of a patient, as it is the hospital where the patente ae 7 and the administrator of hospital is primarily qe , emai arrangements like ICU availability of oxyee® etc., for those patients. eis 4, 2016 SCMR 963 (Supreme Court of U-K-)- DiS SCMR 787.‘Chapter I] DEFINITION AND GENERAL PRINCIPLES OFTORT 4 iS Principles under} ‘ . . ny doctrine of vicarious liability ra a the fase a ty —The as ‘Qui facit per alium, facit ie ca acts through another is deem ae law a8 doles tee a responsibility for the servant's act had also its origin (oa : its i Teasoning is that a person who puts another in his Place to do gee ed in his absence Necessarily leaves him to determine. creat ae circumstances that arise, When an act of that class is to be di eae - him for the manner in which it is done; Consequently he is aaevebe the wrong of the person so entrusted either in the manner of doing su ch = act or in doing such an act under circumstances in which it ought ae fi hare been done; provided what is done:is not done from any caprice of the servant _ but in course of the employment. Z » “he who ie Master’s 2. . Respondent Superior.—Another maxim usually referred to in this connection is “respondent Superior”, i.e., the superior must be responsible, or let the ‘principal be liable’. In Such cases, not only he who obeys but also he who commands becomes equally liable. This rule has its origin in the legal presumption that all acts done by the servant in and about his master’s | business are done by his master’s express or implied authority, and are in *.truth the acts of the master. The master is answerable-for every such wrong of the servant as is committed in the course of his service, though no express command or privity is proved. Similarly, a principal and agent are jointly and severally liable as joint wrongdoers for any tort authorized by the former and committed by the latter. 3. Expediency and public policy.—Normally, every Person is supposed to. do his acts himself and if he chooses to have done through others he must do so at his own risk and responsibility..Thus, the law permits delegation by the master only on condition of his remaining. answerable for the torts committed by the servants. If a person for the sake of convenience or for unavoidable practical reason, desires that -his business should be done by other persons, law ha permit its delegation only on condition of his continuing to be ee sd conduct of those persons to whom he has delegated his business. Actu Epa need not be shown to have accrued to the master. As Sir ee has observed: “I am answerable for the wrong of my servant or ageal Eyre he is authorized by me or personally Tepresents me but enya sett affairs and I am bound to see that my affairs are conduct is tat of expediency the safety of other.” The underlying idea of this doctrine and public policy. 7 mmissi Now liability for another’s wrongful ‘acts or © three ways— ions arises in has authorized or 1. Liability by ratification. —Where the defendant : ratified the particular wrongful act or omission.IE LAW OF TORTS 46 TH (Chapa 2. Liability arising out of special relationships.—Where the defen, stands to the wrongdoer in a relation which makes the former answerable wrongs committed by the other though not specifically authorized, This the most important form of liability. . 3. Liability by abetment. 4 LIABILITY BY RATIFICATION What is ratification.—An act done for B by A not for 4 himseyp but for B though without the authority of B becomes the act of the Principay B if subsequently ratified by B. If one person commits a tort assuming to act on behalf of another but without his authority, and that other Subsequently ratifies and assents to that act, he thereby becomes responsible for it. Qui facit per alium, facit per se.—yAny person who authorizes or Procures a tort to be committed by another is responsible for that tort as if he had committed it himself. Jn such a case the Person authorizing js liable not only for the tort actually authorized, but also for its direct consequences. . Three conditions of. ratification.—Three conditions have to be Satisfied before one person can be held liable for another’s tort on the ground of ratification. These are— (1) Only such acts bind a principal by subsequent ratification as were done at the time on his behalf. What is done by a person on his own account cannot be effectually adopted by another. : (2) The person ratifying the act must have full knowledge of its tortuous character. (3) An act which is illegal and void cannot be ratified. Goyernment’s responsibility when its acts are ratified. “Ratification” is-to be understood in sense of “approval”, without regard to ratification in law. Illegal arrest and detention on order of Additional District Magistrate or District Magistrate “ratified” by order of detention passed with retrospective effect by -Administrator of the city under Section 2 of Sindh Maintenance of Public Safety Act (XV of 1948) is liability of the Governments.' Damages of Rs.10,000 were awarded. LIABILITY ARISING OUT OF SPECIAL RELATIONSHIP It may be noted that “normally, and naturally the person who is i for a wrong is he who does the wrong”. To this maxim the persons wotioned in items 1 to 6 below are exceptions. fee 1. PLD 1961 Kar. 88.