Updated: Thursday January 14, 2010/AlKhamis Muharram 29, 1431/Bruhaspathivara Pausa 24, 1931, at 07:00:50 PM


Course Contents:

Tort does mean everything, which in the eyes of law is wrong and requires remedy, so it is also called remedial law. Tort is a law of damages.

If someone commits crime against anybody, law-enforcing agency arrests him and gives him punishment upon the proof of crime, but what is remedy to victim? Where there is conflict there is need of law. Law is a formula to decide something. Every wrong has remedy. Where there is wrong there is remedy. Law is a codified commonsense. Rights and duties make law, while offer and acceptance form contract.

People who obey the laws are called social and who violate the laws is called anti-social. Right is an interest that is recognized and protected by law. Law becomes angry upon committing of wrong or crime. Law came into force when the right of another is violated.

Violation against state is called crime. Breach of contract and violation of right of person involves remedy. Contract is a story between two private parties.

Upon the committing of the wrong, remedy is determined by the Court that may be unimaginable. In the age of non-civilization there was self-help remedy on civil matters and private vengeance upon criminal matters. This practice was abandoned upon the process of civilization. In criminal law state is a party and the case is tried between accused and state.

Damages are of two types, liquidated and un-liquidated damages. Ubi jus ibi remedium – Where there is wrong, there is remedy.

Definition – Salmond: Tort is a civil wrong, independent of contract, and remedy in the form of un-liquidated damages. John Locke: Crime is an ill bargain to the offender.

Expressed term part of the contract. – Implied term part of the contract.

Principles upon which contract is moral infringe. When a single person is affected, that is tort, and if society is affected that is crime.

Crime                          Offence                       Wrong against State

Tort                             Wrong                         Offence against person

Tort is separate from contract. We have duty to pay respect of the right of another.

Winfield: Tortuous liability arises from the breach of duty; primarily fixed by law; this duty is towards persons generally; and its breach is redress-able by an action of un-liquidated damages.

Tort has three kinds: Intentional torts, torts of Negligence, and torts of strict liability.

Some torts are actionable and some are not actionable. All the torts, which are against the public and all the torts that are against the person that are non-actionable and require something-extra proof of damage. Trespassing is also a tort.

Define torts and distinguish it from crime and contract: In contract damages are liquidated and in crime punishment is given rather than damages. In tort damages are un-liquidated. S. 95 of PPC says acts causing slight harm are not crimes. Torts are also known as trifles. De minumis non curat lex, small wrongs are not torts. Maxim means saying, principles, famous, and used in law sentences are called maxims. Where there is violation/wrong there is remedy. Equity will not suffer a wrong to be without a remedy.

Some agreements are not legal, i.e., conspiracy, dirty, sex, evil things etc. There is not case on dirty cause.

Plaintiff has three choices, i.e., legal right, violation, and remedy. Law is not to be taken in our own hands. PPC 99 and 82. Law is story between two neighbors. Object of law is to put the people in law. Law is made to control the people. In tort act is seen rather than motive and malice. Where is continue series of negligence, there is not tort.

Violation of legal right is called injury. Licensee is meeting without business and Invitee is the business meeting.

Who cannot sue? Convict or felon, Bankrupt, and. Alien Enemy. Normally torts are related to person, property, and defamation.

Forfeiture Act, 1870, CPC 83. Criminal Justice Act, 1948, now property can not be forfeitures, Transportation of life, imprisonment for life (imprisonment till death), is also prohibited.

Nulla peona sine lege (Nobody can be punished without law). Necessity knows no laws. Court is the agency of law. Forfeiture Act, 1970 was abolished with Criminal Justice Act, 1948. Crime + Punishment = Innocence. 21 States have abolished the death sentence in USA.

Husband and Wife: Courts were pronounced wife as husband. Unmarried woman is called feme sole and married woman is called feme covert. It was assumed that woman has been merged into man and became the body of man, so she has lost her right to sue against her husband.

Under The Married Women Act, 1882, S. 12, Women became the master of their property and then under Law of Property Act, 1925, married woman can acquire, hold, and dispose of property as she is unmarried.

Law Reform (Married Women and Tort Feasors) Act, 1935, according to which it was decided that whoever will commit wrong against each other, will be responsible and can sue and can be sued. Latest development was made under Law Reform (Husband and Wife) Act, 1962, husband and wife can sue each other.

Corporation (legal fiction) does mean association of men who make one. Object may be there so that punishment may be given. Law is a caretaker of the interests of the people. This is a body of people that incorporated according to law. Corporation is an artificial person. Person is a subject of rights and duties, and we are natural persons. Natural person has a blood, can be imprisonment. False imprisonment means illegal detention. Person become major at the age of 18 years, but Corporations became major at once. Now Corporations can sue and can be sued each other.

Vicarious Liability: When a person held responsible against the wrongdoing of others, it is called vicarious liability. Company is responsible of the wrongdoing of its employees within the course of employment, because they were committed for the interest of the Company and also Company is rich than of individual. Servant is the person who draws the salary in order to obey the orders. Relationship occurs Master and Servant. Servant is defendant No. 1 while the Corporation or Company comes later. Damages will be borne by the Company because she is rich.

Intra Vires means internal while Ultra Vires means external. A Station-Master was checking the tickets of commuters of the rail and he found one of them with horse. He had ticket for him but not for his horse. A Station-Master arrested the owner of the horse. Held Ultra Vires because he was not authorized to arrest master because he had ticket for him. If any person who has ticket for him and not for the luggage, only the luggage will be kept despite the owner.

Trade Union: It is a legal association and can be made friendly for the purpose of trade etc. Union was allowed to sue earlier. In 1901 House of Lords, held, that union could be sued in tort cases. The Trade Dispute Act, 1906: Trade Union cannot be sued in tort cases but may be sued in personal torts. The Trade Disputes and Trade Unions Act, 1927, was passed, in which held, that if government servant suppress/oppress, then tort action will lie on him. Now a Trade Union can sue and can be sued. It shall have perpetual secession and a common seal. U/s 14 of Industrial Relations Ordinance, 1969, held, now a Trade Union is like a legal entity for suit purposes. Now Trade Union can sue and be sued.

Child or Minor: A child can be sued, and damages will be borne by his parents. A child and person of unsound mind can sue for tort by next friend, e.g., parents. Order 32, Rule 1 CPC.—Every child can sue through next friend. A unborn child was not allowed to sue. In Canada in 1930, a mother was injured while she was pregnant, she claimed damages, but at birth of her child, he was not allowed for suit. A child who was injured during in womb, born in clugfeet, this birth was due to an accident of mother, mother claimed damages, and after birth of child he could claim damages. In 1976 law was passed. Child can sue after his birth. Congenital Disabilities (Civil Liabilities) Act, 1976. The Fatal Accident Act, 1846. A child could recover the damages of his died mother after his birth.

Alien Enemy: He is the person against country is at war. He can not sue but upon case of defamation he can sue after getting approval from the state department.

Insolvent: Law deprives him to sue in the Court of law.

Lunatics: Since he can not understand the matters of law so he is deprived.

Who cannot be sued: Following are the persons who cannot be sued:

The King (Crown): King cannot be sued because the King can do no wrong. He establishes everything. He is foundation of the justice. Once a time there was a war between king and people and people won it. The Crown Proceeding Act, 1947. Now the size of king and common person became equal. Size of king has been brought down to the level of a common person. S. 2 of CPC, now government can be sued. Now they can sue officers, but damages will be borne by them personally. King can sue and be sued for the torts and others wrongs committed by his servants (Vicarious Liability).

The King will be liable for breach of statutory duty. Article 174 of Pakistan Constitution, 1973, President is responsible. S. 9 of CPC the Crown will not be liable for tort relating to a postal packet. S. 10 Wrongdoing by army caused during its army action etc. will also be exempted. S. 40(1) Queen shall not be personally liable for the torts committed.

Foreign Sovereign – Ruling Chief cannot be sued. They are privileged class. If they have consent then they can be sued. S. 86 of the Code of Civil Procedure, Extra Territorial Jurisdiction: Extradition. Article of 248 of Pakistan Constitution says that Executives can be sued in civil matters. § 86 and 87–A to be studied.

Ambassadors cannot be sued, Government Servants also.

Defences in torts: There are 15 different general defences in tort that can be fit in all types of torts.

Definition: A defence is a shield to protect the defendant. There is another type of defence that is called particular defence including defamation and negligence. Particular defence cannot be fit in other torts. The Pakistan Penal Code, 1860, from § 76 to 106 include general defence. Although they are concerned with crimes but exceptionally they may be used in torts.

1.      Volenti non fit injuria maxim applies where plaintiff gives his consents to do certain thing. If he has given his consents to enter in his property, then no tort will be constituted but if defendant commits theft after getting permission to enter in property, then it will constitute tort.

Events or games that involve risk do not constitute tort. There is possibility of injury in boxing, car racing, foot ball, hockey, cricket, horse racing, cycle race, while playing or watching, if consents are free, then no tort commits. In a case of Smith – v – Baker, Smith was an employee of Baker. He was engaged in working of stone cutting where a crane swung heavy stones over his head. He was drilling the rock face in the cutting. He knew risk that heavy stone might fall as well as to his employer Baker. There was no preventive warning against risk. Plaintiff injured when a stone fell down upon him. Where there is a risk factor and due care is not taken, defendant is liable.

Maxim Leave and License is applied in property cases where consents are free.

These maxims are not applied in the case of:

1.      Consents are not free or under coercion.

2.      Where there is negligence on the part of defendant.

3.      Rescue operations or cases.

2.      The Act of State: State is a corporation and artificial person. It is a source of power. State acts through its agent or servant. The servant’s act is the act of master’s act. A maxim is provided in this regard Qui facit per alium facit per se means one who gets acted through servant, supposed acted himself. An act of state is an act that is done in exercise of sovereign power against an alien. As per English law, one who is not the citizen of UK is alien and in case of tort against them, they cannot sue being alien. It is a pure matter of FORCE or TERRIRORISM. An act of state includes:

1)      Tort of state against alien, is act of state;

2)      It is done by agent of government or servant; and

3)      An act is authorized earlier by the government or if not it is ratified later on spot.

Buron – v – Denmuan, some owned slaves were released by the commander of Royal Navy, held, that no action will lie because it was an act of state. Slave is not supposed a person. A person is that who has rights and duties, so slaves are considered commodity. There is difference in resident and alien and different conduct is applied.

There are three ingredients in this type of defence, e.g., it should be against alien, it should be through the servant of the state, and such act should be within the lawful authority of the servants, if not it may be ratified later.

3.      Judicial Acts: The Judicial Officers’ Protection Act, 1850, says that no action lies against a judge for acts done or words spoken in the exercise of his judicial functions. He is not responsible for his words or actions even they are not in the honest exercise of his judicial function. Object of this principle is to provide an environment to judges so that they may work fearlessly and independently. A remedy is provided in case of judicial error.

A judge passes a decree against property occupant and sent bailiff to get released the possession, no one can sue if some damage is occurred on the part of his agent. If judge terms someone thief, it is not a tort. If he awards imprisonment or sentence of death, he is not liable because these are judicial acts.

4.      Quasi Judicial Acts: A person who exercise as quasi judicial authority is also immune from civil action provided in the theory of natural justice. Rule of natural justice includes, proper notice to be served to the party, opportunity to be given to the party of hearing to defend himself, and impartial and judicial – always be fair and work in good faith.

If a person is expelled from a union or club after passing a fair enquiry is not invalid and the Court will not interfere with such a decision.

5.      Executive Acts: Sometime police acts upon the orders of commissioner for the dispersion of mob and to maintain the law and order situation. During this course some people may injure which does not come under tort and are not sue-able. These are called executive acts and there is protection under The Judicial Officers’ Protection Act, 1850.

6.      Parental Authority: Father and Mother have authority over their children under the age of eighteen year and they can punish them for their benefit and care. This is sufficient defence.

7.      Quasi-Parental Authority: Teachers also have authority over their students. They can retain them against their will for the education or ethical training purpose. They also may punish them.

8.      Acts of Necessity Jus Necessitates: When a necessity arises to escape/save someone’s life and no lawful or reasonable sources are available and no exception is there, steps can be taken which are necessary to do the right job. And if during the course of escape someone’s gets injured cannot claim tort because of the act of necessity. If a house gets fire and need sprinkling of water to stop fire, and during this exercise one is injured or water is over sprinkled to others would not establish tort. It would not be called wrong because necessity knows no laws. It was share necessity at that time. If Muslims are fighting with Non-Muslims and some of them deviate and join the Non-Muslims and fight against Muslims, they must be killed. The Hazrat Umar passed this act. It would not establish trespassing. Shakespeare said in his play that necessity knows no law. In unavoidable circumstances, acts may be done, which, in normal circumstances, considered wrongdoing or offence. For example, a captain of vessel may throw goods of commuters in sea in order to save vessel from fire or lives of the commuters. Lives of the people are so important than of goods. Once a time 90 plus slaves were thrown in sea to save the lives of persons, when ship was overloaded. This act was done in USA. Then slaves were supposed commodity and not person. During the World War, a warehouse of oil was destroyed in order to prevent any possible loss, later it was compensated.

Authority of Necessity: Government grants authority or to make statute by legislature to authorize someone to accomplish the job. There are two types of authorities, i.e., imperative Authority and permissive or Conditional Authority.

In imperative authority unlimited powers are delegated under the law. A Company who was responsible to spread railway lines, was given authority of trespass of land of people. S. 56 of CPC says that flights cannot be stopped on the ground of noise.

Pulling down a house which is in fire, to prevent spreading of fire to other property, to throw cargo over boards, to save a ship in danger during storm, forcible feeding of hunger striker in jail are common examples.

9.      Acts causing slight harms: Section 95 of the Pakistan Penal Code declares that act which causes slight harm constitutes no harm are not offence. Touching a person to other in rush, pushing someone who is trespasser, cycling on footpath by a child are slight harms. There should be some tolerance to live in society. High noise of radio does not constitute tort while continues noise may constitute wrongdoing.

10.  Plaintiff a Wrongdoer: This situation arises when plaintiff himself is contributory negligent in the case. Law for sea and land was different. Plaintiff could not recover damages if he was wrongdoer at land. In 1945, a law was passed that, on land, plaintiff can recover damages even he is wrongdoer, after excluding the wrongdoing on his part. This law was also available under The Maritime Convention Act, 1911, for sea.

11.  Private Defence and Defence of Property: When someone assaults someone or intends to inflict harm or injury someone, he may take initiatives to prevent this possible harm or injury.

If someone enters in property without permission, he may push him out. PPC 97 provides defence for the safety of property and self-protection against trespasser.

12.  Inevitable accidents:

13.  Act of God:

14.  Exercise of common rights:

15.  Contributory negligence:

Discharge of Torts: How the case of tort is discharged.

Death: This is the case in which case is abolished before proceedings begin in Court. If plaintiff dies, the case of tort ends. In 13th Century torts started in England. Defendant frees upon the death of plaintiff till 1934. A law was passed with the name of The Law Reforms (Miscellaneous Provisions) Act, 1934. Now case cannot be end even if plaintiff dies, but there are five exceptions. They are as follows:

1.      Defamation case ends upon death.

2.      Seduction in which one party is married.

3.      To convince another’s wife or husband to leave that house and remain apart.

4.      Adultery in which both parties are married.

5.      Fornication in which both parties are unmarried.

False statement, which injures another’s reputation, is called defamation. However to say murderer to murderer is not a defamation. If the following people die then case closes.

Now new laws have been made and under these laws case remain continue even after the death of plaintiff or defendant. In Victorian age Railway line was installed/spread. People were unaware that how it is crossed. During the crossing deaths were occurred. Death was not tort but if they escaped and got injured then they claimed damages against injury. Later death became tort under the Fatal Accidents Act, 1846. This Act comes in India in 1855. Another Act was passed named The Lord Campbell Act, 1846. Now the death of plaintiff or defendant does not end the case, but it continues by his heirs. Law is made when mischief occurs. The Employers’ Liability Act, 1880 and The Workmen’s Compensation Act, 1923. Under these laws death in relation to tort cannot ends case.

1.      Judgement: Once the case has decided in Court, either in favour or contrary, it is discharged and cannot be proceeded twice in the same Court, however an appeal can be made.

2.      No Double Jeopardy: Once the accused has been inflicted in a crime, he cannot be convicted again in the same offence.

3.      Release: It is on the option of party whether she wants to recover or not the debt. If one party consents for not to recover the debt then case is discharged.

4.      Accord and Satisfaction: If the case has been started in civil Court and both parties decided to quit from Court proceedings upon the decision that matter is agreed to discharge upon accord and satisfaction, case will be discharged.

5.      Waiver: Some people are privileged and are exempted in legal proceedings. They may waive their privilege. If the one part of the case is taken into consideration then it will be called waiver and if full then release.

6.      Statues of limitation: Limitation Act prescribes the period within which action in tort may be filed. If an action is not brought within the time prescribed, it becomes time-barred and ultimately case discharges. Acquiescence: It is based on the maxim that equity aids the vigilant and not the indolent. If the limited time has gone then the case is discharged being time barred. And if the time is gone in the absence of Limitation Act, it is called laches.

Vicarious Liability: When a person held responsible against the wrongdoing of others, it is called vicarious liability. Company is responsible of the wrongdoing of its employees within the course of employment, because they were committed for the interest of the Company and also Company is rich than of individual. Servant is the person who draws the salary in order to obey the orders. Relationship occurs of Master and Servant. Servant is defendant No. 1 while the Corporation or Company comes later. Damages will be borne by the Company because she is rich.

Definition: Liability for the wrongful acts of others is called vicarious liability.

Master is responsible of his servant by three ways. The liability of a master is joint and several. Both are responsible in some cases. There are three steps, which fallen/put masters into liability of tort of his servant:

1.      By Relationship: If the relationship of master and servant exists, then it is sufficient to make master liable for the tort committed by his servant. If there is no relationship, there is no liability/responsibility. Master is responsible being the employer. If employee meet with an accident during the course of employment following the Intra Vires (permitted acts), then employer will be responsible.

2.      Ratification: If an employer ratifies Ultra Vires on the ground of his past loyalty, it will make employer/master liable. Ratification means authorization of unauthorized acts of servant. If employee works contrary to employer’s orders and commits an Ultra Vires, then he himself will be liable and employer will be free.

3.      Abetment: It is help in wrongdoing. Both are responsible, i.e., employee and employer. The liability is joint, as well as several.

Contract of service is the agreement in which an employee or servant agrees to work under control of employer by orders and he receives salary against the work done. It creates the relationship of master and servant.

Contract for service is an agreement in which a job is assigned to a party who is independent and master and servant relationship does not arises.

Who is servant at law: There are three recognitions, which determine the status of a servant. These must be found collectively:

1.      One who works for his master for money,

2.      Servant must work under order/instruction of his master, and

3.      He should be under control of his master.

A master is liable for all the torts of his servant on the following principles:

1.      A servant’s act (tort) is master’s act is based on maxim Qui facit per alium facit per se. He, who tells others to do, works himself. It is to blow hot and cold. The rule of approbation and reprobated is applied here.

2.      Deep pocket theory. He is rich man. Also he is called Respondent Superior. He must be responsible because he is rich.

3.      The incompetence of a servant is master’s liability. Why he has selected such person who is unskilled? So master is liable.

A petrol supply company had hired a driver who was habitual smoker. While delivery of the petrol he begins the smoking which got fire. Besides closing the supply of petrol and removing the cigarette, he got run the truck from that place but a line of petrol got fire and truck met with fire and a home badly affected with this incident. They claimed damages. Company refused to pay damages stated that we had not advised to smoke the driver and responsibility lies to driver. Held this the responsibility of the employer who hires him.

There are seven stages where master is liable for the tort of his servant. These are as follows:

1.      Carelessness of servant: If the servant commits tort during the course of employment, due to his carelessness, master will be vicariously liable. In a case master was ordered to his servant to dispose of some rubbish. He put it in street that touched to the wall of other’s property. Since this action was done carelessness, but by the orders of the master, held master is liable.

In an another case death was occurred due to the careless driving, held master is liable for damages.

2.      Mistake of servant: The master is also liable for the tort of his servant committed mistakenly in the performance of duties and thereby caused an injury or damage. During the mobilization of sugar a child took some sugar, and driver of the vehicle gave him slap, held master of the servant is liable.

3.      Willful wrong of servant: This is another way by which a servant may make his master liable by committing willful wrong. It is enough that act was committed in the course of employment. This rule is applied in all cases even they are forbidden and clear-cut violation of the employer’s instructions. In a case driver was not allowed to run his bus speedily to carry the passengers. He not only driven the bus speedy but obstructed the plaintiff’s bus which caused damage. This action was for the promotion of defendant’s business.

4.      Fraud of servant: If a servant commits fraud during the course of employment without permission and knowledge of master, even than master is liable. In a case a woman came to clerk of Building Society for investment of her income. He cleverly obtained the money and run away. Held master is liable, whether or not the clerk had action for his own purpose or for his employer.

5.      Theft by servant: In theft case of servant, master is also liable.

6.      Criminal act of servant: It also makes master responsible even it is committed after the working hours.

7.      Negligence: A porter negligently put some people from right boogie to wrong one that caused injury to them. Held Railway is responsible.

Difference between Crime and Tort: It is very difficult to draw a clear-cut distinction between a crime and a tort. A tort today may be a crime tomorrow and vice versa. Tort is a private wrong or infringement of a civil right while public wrongs are violations of rights.

If the offence is serious, it maybe treated as crime, and if it is not, it may be treated as tort.

Definition of Crime: Crime is an illegal act or omission prohibited by and punishable at law, and for which a special procedure is provided at law to punish the offender.

Definition of Tort: Tortuous liability arises from the breach of a duty primarily fixed by law; this duty is towards persons generally and its breach is redressible by an action of un-liquidated damages.

Judicial Decisions: Tort involves a civil remedy or damages while punishments are imposed in crimes.

Case Proceedings: Tortuous or civil proceedings are started in civil Court purpose of which is enforcement of certain rights claimed by the plaintiff against the defendant. Examples of civil proceedings are an action for restoration of property, recovery of damages, etc. Proceedings of crimes are started in criminal Court for the punishment of offence.

It is possible that torts may give rise to civil and criminal proceedings, i.e., assault, defamation, theft, and malicious injury to property. In these cases both proceedings are concurrent proceedings. The wrongdoer may be punished by imprisonment or ordered to pay compensation to the injured party.

Magnitude of Wrong: Civil liability is measured by the magnitude of the wrong done while the measuring the criminal liability we take into consideration the motives, intention, character of the offender, and the magnitude of the offence.

Nature of Wrong: Tort is a breach of duty primarily fixed by law which duty is towards persons generally while crime is the commission of prohibited act with ill will or guilty mind.

Nature of Decisions: Punishments are awarded for the purpose of deterrence in crimes while remedy in term of cash compensates the victim. In other words chief object of punishment is deterrence while remedy in the form of damages is imposed to take measures for prevention of violation of private rights.

Elements of Wrongs: Mens rea is required to constitute the crime along-with actus reus while only action is sufficient to constitute tort and ill will is no more necessary. One, who trespasses another’s land or body, must have to pay damages.

Crime does not complete until or unless actus reus takes place. Just mens rea is insufficient to constitute the crime while tort may occur without injury, i.e., simply trespass to other’s property is a tort without injury. Here maxim injuria sine demnum applies.

Compound-ability of Wrongs: Tort is compound-able by the private party and state cannot interfere or compel for the withdrawal of case because crimes are against the state and not compound-able being public wrongs.

Parties in Cases: Both parties are private or common persons in tort as plaintiff and defendant while state is a party being victim in criminal proceedings and other one is accused.

Attempt in Wrongs: An attempt to commit a crime can itself be an offence while attempt is not considerable to constitute tort.

Commencement of Wrongs: Crime requires preparation while tort can be committed without it.

Defence as Innocent Actions: Innocent action in crime may be a defence in some cases but tort does not recognize innocence.

Age Limit in Liability: Child under the age of 7 year is regarded by law as doli incapax incapable of having mens rea while tort may takes place by an innocent child and he may be sued through his next friend, i.e., parents or guardian.

Defence of Insanity: Insanity is a good defence in crime but not in tort. Provocation or instigation or temptation is defence in crime but not in tort.

Intention of Wrongs: “Crime is an unlawful act or default which is an offence against the public and renders the person guilty of the act or default liable to legal punishment. While a crime is often also an injury to private person, who has a remedy in a civil action, it is an act or default contrary to the order, peace, and well-being of society that a crime is punishable by the state.” Action under mistake is not a crime. For example, a policeman goes to arrest A, but actually he arrests B, thinking to be A. since he has not guilty mind so he is not responsible, while mistake is not considered in tort at all.

Unborn Children’s Liability: Unborn child can sue after he is born in civil cases but there is no legality of unborn child in crime.

Waiver: Criminal law does not allow waiver in case where privilege class has been exempted from liability while in tort waiver can be used.

Codes applicability: Criminal Procedure Code is applied in criminal cases while Civil Procedure Code is applicable in civil or tort cases.

Remedies in Tort: Each tort that harms slight is ignore-able. There is not benefit to contest if it causes slight harm and these are not taken as crime. Trifles are not torts. S. 95 of PPC says, “Act causing slight harm is not crime.” If someone touches you without consents, it is battery, but is must be tolerated. If tort is serious then we will go to Court for recovery of damages. There are two types of remedies, i.e., Judicial (within Court and Extra-Judicial (outside Court) remedies.

What remedy is available in Extra-Judicial cases:

1.      Damages can be claimed if loss is occurred.

2.      Goods snatched can be recaptured.

3.      Trespasser can be expelled.

4.      Trespasser may be stopped.

Judicial Remedies:

1.      Damages can be recovered.

2.      Injunctions or stay orders may be obtained.

3.      Recovery of property which is illegally occupied or property restitution.

§ 8 and 9 of Specific Relief Act deal with immovable property while § 10 to 11 deals with moveable property.

There are two types of injunctions, i.e., temporary or interlocutory and permanent or perpetual injunction. There are two types of Court orders, i.e., mandatory injunction in which something is allowed to do and other one is probationary injunction in which something is prohibited.

There is another type of injunction that is given before happening of non-permissible action. A person may be doing his work diligently but seems to be wrong in future. An interim injunction can be issued against his future ill will.

Private injunctions are issued at once while government injunctions are given after serving a notice to government and hearing the government cause.

Status of a person is very important in the cases of defamation. Damages vary person to person. Defamation of Prime Minister or Landlord is greater than of the defamation of a poor man or beggar.

There are two types of damages, i.e., general and special. General damages are those, which Court determines to be natural and probable consequences of the defendant’s act. These damages are not to be proved by evidence. A particular statement cannot be produced as to how much loss is occurred. Special damages are those in which Court does not presume. They are claimed specially while pleadings. Evidence is produced at the time of trial. A particular statement is provided in contrast to general damages. It includes actual loss of plaintiff, loss of earnings, legal expenses, loss of pension right, reduction of prospects of marriage etc.

Besides the broad classification of general and special damages, damages are of four kinds described as follows:

1.      Contemptuous or ignominious damages: These damages are awarded in defamation cases where social status is negligible particularly poor person’s status. When the Court form a very low opinion of plaintiff’s legal claim, or case should not brings to Court of law, the Court awards trifling amount such as half rupee. Maxim ubi jus ibi remidium applies here.

2.      Normal damages: Where plaintiff’s legal right violates but he suffers from no loss. Here maxim injuria sine demnum applies and nominal or small amount of damages is awarded. If A trespasses in B’s property but no damage is occurred and A brings the tort case in Court, since no loss is happened, so Court will award nominal damages because legal right of A is violated. In the case of Ashby – v – White, plaintiff was legally qualified voter. Defendant refused willfully, maliciously, and fraudulently to cast him vote. Legal right was infringed but there was no actual loss because candidate was elected in election. In another case of Constantine – v – Imperial Hotel, plaintiff was refused to allot accommodation in hotel. Plaintiff got accommodation in other hotel. He received damages, which were very nominal.

3.      Compensatory or substantial damages: In these damages actual amount of loss or repair can be awarded. All the expenses, which are incurred on the restitution of property, are recovered.

4.      Punitive or vindictive or exemplary damages: These damages are awarded to deter the action of defendant. This is punishment to defendant. These damages are awarded in case where statute allows, oppressive cases, and cases in which illegal profit is expected. If judge irritates from the arguments and shouting of defendant then he imposes damages greater than actual. Suppose if house arson damages are Rs. 10,000/-, he will impose Rs. 5,000/- extra damages. There are circumstances which help in the mitigation (to less) or aggravation (to increase) of damages. If government servant commits tort, aggravated damages will be imposed and if behavior of defendant is bad, then also aggravated damages are imposed. The most important principle in tort is that law or Court looks to the proximate or immediate cause and not the remote cause. You must request and not cringe.

Trespass to the person: If there is direct interference with the person’s body, is called trespass to the person and if the interference is indirect then it constitutes nuisance. Someone attacks to another with stick or bullet and there is apprehension that is trespass to the person. Trespass can be committed with land, the person, and goods. Trespass is a direct action. Corporation is also a person but artificial. Injury to the person has four kinds: 1. Assault, 2. Battery, 3. False Imprisonment, and 4. Mayhem[1] (Maim).

1.      Assault is an act of the defendant, which cause to the plaintiff reasonable apprehension of infliction of battery on him by the defendant.

The essential requirements of assault are:

1.      There should be some preparation of use of force.

2.      There should be reasonable apprehension of the use of force.

3.      There should be ability of the defendant to carry out the threat.

4.      This act is of present. Future threat is not assault.

Use of empty pistol may constitute assault if person threatens. Infliction in drama is not assault. Murder is result of battery.

Assault is tort, threat without touch while battery is touch, thus crime.

Defences in assault:

1.      Self defence.

2.      Property’s defence.

3.      Parental and quasi-parental authority.

4.      Volenti non fit injuria.

5.      Lawful authority.

6.      Inevitable accidents.

7.      Act of God.

8.      Act of State.

2.      False imprisonment means the infliction of bodily restraint, which is not expressively or implied authorized by the law. It has two ingredients, i.e., it is unauthorized by law and complete restraint of liberty.

In the case of Bird – v – Jones, the Jones wrongfully enclosed a part of public way on bridge. They put seats on bridge to watch boat race. Bird was insisted to go from other side. He sued in Court and held there was not complete restraint because other way was available. If one person is detained in a room where a place is available and detainee knows it, it does not constitute false imprisonment, but if there is a window to escape, but there is sea side and detainee cannot escape, it constitute false imprisonment.

Wardale agreed to work in mine and was taken down there at 09:00 a.m., later he changed his mind to stay there and wanted to come out. The owner of mines held him there upto 01:30 p.m. He sued for false imprisonment, the Court decided against him.

Interrogation for the purpose of enquiry is no false imprisonment.

Trespass to land or immovable property: One who does not get permission before entering in house or property is called trespasser or tortfeasor. It is interference without consents. It also defines as unjustifiable or unauthorized interference with the possession of the land. Some types of tort are as actionable per se, such as libel or all types of trespass. It does not require any special proof of damage. Trespass may be committed either by defendant himself or by some tangible object such as throwing stones on the land of another or allowing cattle to stay upon the land.

Tort of fraud, conspiracy, slander, malice, waste of land, negligence, and nuisance etc. require some special proof of damage, in the Court of law.

Driving a nail or putting a ladder on others’ wall is trespass. Everyone has to live within his limits with liberty.

How trespass is unjustifiable? It is the essential element for the tort of trespass to land. Interference with the possession of land must be unjustifiable under law. Slightest interference with the land of another will amount to trespass if no justified by law. Placing a foot on others’ land or throwing stone are trespass.

Entry with permission but remaining there is also trespassing. Law is watchdog of rights of people.

Continuos wrong is a sort of tort, which goes continue. If a pit is digs and someone is fallen into it, it amounts tort and if again someone is fallen, it again amounts tort. Mental condition is not taken into consideration in tort.

A ship, full of oil came to shallow water and anchored. Oil spills to land of another person, who claimed trespass to land. Interference under necessity does not amount trespass.

How trespass commits? There are three ways to commit trespass, i.e., Malfeasance, Misfeasance, and Nonfeasance. One who commits tort is called tortfeasor.

1.      Malfeasance is there where is serious tort occurred, e.g., giving a blow or house arson.

2.      Misfeasance is the act of unskilled person. Teacher should do, as he should be. Negligence constitutes this tort.

3.      Nonfeasance means where there is no answer of question or appeal.

Trespass ab initio: When entry, authority, or licence is given to anyone by the law, and he does the abuse it, he shall be a trespasser ab initio.

Who can sue? A person who is possessor of land even as tenant, occupant, having right of possession can sue.

Remedies available with plaintiff: Following remedies are available to plaintiff.

1.      Reentry: If trespasser gets out the occupier he can re-enter to his property even by force.

2.      Action for ejection: If anybody comes without permission to the property can be ejected forcefully.

3.       Damages: Plaintiff can claim damages against trespasser.

Defences in trespassing:

1.      Volenti non fit injuria: Where there are consents of plaintiff, there is not tort. In the match of hockey or boxing, the natural consequences of injury, does not constitute tort.

2.      Lawful act: Detention and interrogation by policeman to remove his suspect is not a trespass. If he comes with search warrant in property is not a trespass.

3.      Self-defence: One, who enters in other’s property in result of his self-defence, cannot be treated as trespasser.

4.      Victory in Court: If he comes in property after winning of case in Court is not trespasser.

5.      Retaking of goods: One who has taken the goods of defendant cannot maintain the suit of trespassing. He can take his goods by entering in other’s property without his consent.

6.      Abatement in nuisance: One, who abates the nuisance and touch the property of other, cannot be regarded as trespasser.

7.      Easement: One who gets the rights of easement after completion of the period of twenty years, cannot be treated as trespasser.

Trespass to goods defined as “consists in committing without lawful justification any act of direct physical interference with a good in the possession of another person.”

It is of three types, i.e., replevin[2], detinue[3], and trover[4] or conversation or theft, as per Pakistan Penal Code (PPC) 378.

1.      Replevin is a taking of goods un-authorized or without consents, secretly. Removal of goods from carts. Detention of goods upon default of payment. Court may ask for return of goods.

2.      Detinue is “a claim lies at the suit of a person who has an immediate right to the possession of the goods against a person who is in actual possession of them, and who, upon proper demand, fails or refuses to deliver them up without lawful excuse.” Legal retention but retention without consent is detnue. Detainee is regarded as bailee. Remedy in detinue is to redeliver the goods or must pay compensation.

3.      Trover or conversation or theft: The term conversation is used as “any act in relation to the goods of a person, which constitutes as unjustifiable denial of his title to them.” It is a willful interference, without justification, with any goods in a manner inconsistent with the right of another, whereby that other person is deprived of use and possession of it. Goods belonging to other cannot be sold. Damages must be paid.

A VCR is taken to house for checking and at the time of revert its reversion is refused. Its remedy is only compensation. A thing is taken and dropped into fire or canal, amounts trover.

Legal removal of goods but sale without consents is trover or conversion. This also involves unauthorized use or consumption for own or other is trover. A wrongful disposal of is also termed as trover.

Reversionary is a person who has bailed goods to a person, who is responsible, to revert the goods. If these goods are to be transferred to third person, the third person will be called as remainder. Both reversionary and remainder can sue the person who is guilty.

Defences in trespass to goods: Following defences are available in trespass:

1.      Recapture: If the goods of plaintiff are captured unlawfully by defendant, he can recapture them even forcibly.

2.      Reentry: If the owner is expelled from his property forcibly and without lawful authority, can reenter in his property by expelling even forcibly being the owner.

3.      Self-defence: If the goods of someone are trespassed or damaged while the act of self-defence cannot constitute trespass to goods.

4.      Lawful act or licence: If any person or policeman with lawful authority enters in a property and takes some goods in suspect to helpful in case proceeding is not trespass to goods.

5.      Act of necessity: If some goods are broken being the act of necessity while defending himself or touched during passing in a market is not a trespass to goods.

6.      Bailee is owner: If A sends some goods to B, or B takes some goods from A, either lawfully or unlawfully, he is the owner of the goods and goods cannot be snatched from B claiming the goods of A. One who have the goods in his hand, is considered the owner of the goods. So bailement is a good defence.

Nuisance is any thing, which injures health or offending to senses and which causes injury or damage or annoyance or discomfort to other. Wrongful act and damages or annoyance or discomfort must be there. Winfield defines it as “unlawful interference with a person’s use or enjoyment of land, or of some rights over or in connection with it.” Interference and damages or annoyance must be there to constitute nuisance and this act should be continued. Noise, smell, pollution of air or water is the instances which are most usual but there are many other. Excessive tolling of church bell or escape of fumes which kills vegetation and cattle are nuisances. The whole law on the subject represents a balancing of conflicting interests. Some noise, smell, vibration are must be tolerated in any modern town, otherwise modern life will become impossible.

There is a maxim sick utere tuo ut alienam non laedas means so use your property as no to injure your neighbors. Direct hit, i.e., setting bullet, blow, or slap constitute trespass and indirect hit is flow of water towards other’s property, roots of tree so that foundation of others property weakens or imbalances are indirect acts so causes nuisance.

Kinds of nuisances: There are three kinds of nuisance, i.e., statutory, public, and private nuisance.

1.      Statutory nuisance is the nuisance for which statute is provided in law to mitigate it. For example air, noises, and water pollution. Statutes are provided to mitigate the nuisance.

2.      “Public nuisance or common nuisance includes which diverse activities as carrying on an offensive trade, keeping a disorderly house, selling food injurious to health, obstructing public highways, and throwing fireworks about in the street.” It is a crime u/s 268 of Pakistan Penal Code (PPC). It constitutes reasonable discomfort and inconvenience of public in general or a class of the people. Public nuisance is an act of illegal omission, which causes any common injury, damage or annoyance to the public or to the people in general who dwell or occupy properties in the vicinity or which must necessarily cause injury, obstruction, damage, or annoyance to persons who may have occasion to use any public right. If some particular or special damage is proved then it becomes actionable and gives rise civil action. A man falls down in a trench dug left open and unfenced. No light was placed as security measures. His wrist and other portion of body received injury. Held negligence on the part of defendant and liable to pay damages. Appeal in High Court dismissed and upheld the decision of the trial Court.

3.      Private nuisance is “unlawful interference with a person’s use or enjoyment of land or of some right over or in connection with it.” It is also continuous process. Noises, smells, pollution of air and water are the instances. Injury to property and continuous unlawful interference must be there to constitute private nuisance. Give and take and live and let live must be followed to avoid private nuisance.

If the nuisance is tolerable or slight, it must be tolerated. Sometime mood of a person becomes off due to tiredness or extra ordinary workload; this reasonable nuisance must be avoided, being normal thing. To constitute the wrong of nuisance, it should be unreasonable, continuous, and creating injury or harm. Dead body of horse laying on ground, vibration or noises of machinery, are nuisances. If it amounts reasonable, no amounts nuisance. Sale of perished or staled food items, false or misleading trade descriptions, injury of a child due to negligence or carelessness of parents, renting out of house used in prohibited trade items are nuisances. Neighbor is the house or person who affects or may affect each other. If a person or his anything affects from far away, he becomes neighbor at law. If plaintiff proves damage, defendant is liable. In a case a horse was died while taking/grazing fodder. It was explored, later on, that the pieces of iron fence of neighbor was escaped and mixed up in fodder which gone into the mouth of horse, resulted death of horse.

Negligence: In the older ages direct hit to body or property was rendered a person guilty of trespass while indirect hit was considered as negligence. For example, direct blowing was considered as trespass and if blow is given to third person other than of person in target was called negligence.

It is now defined as “negligence is the omission to something which a reasonable man guided upon those considerations which ordinarily regulate human affairs, would do or doing something which a prudent or reasonable man would not do.”

In strict analysis, negligence means more than heedless or careless conduct, whether in omission or commission; it properly connotes the complex concept of duty, breach and damage thereby suffered by the person to whom the duty was owing.

Negligence is a act or omission in relation to reasonable man, i.e., if a reasonable man do something, negligent omit that thing and if reasonable man omit to do certain act, negligent man will act that thing. Negligence is opposite of care-ness and injures to neighbor. A reasonable man is that who looks fit in his field and takes proper care. Carelessness is contrary to reasonable man. Negligence is actually a state of mind in which due care and attention is disregarded and it is dealt by penal code. If reasonable man has to do something, he not to do or omits and if reasonable man has not to do, he has to do that act. This is called negligence. Putting the ladder on slippery floor or cutting the same branch of tree on which sitting is negligence.

If injury is desired then crime is committed and if injury is not desired then negligence is occurred. Only careful attention is required and not special to constitute reasonableness. If metallic wire is not property insulated that render it to negligence.

Since 1952, negligence is diverted toward intention from indirect hit. Unintentional wrongs are negligence while intentional commission is regarded as crime. Following are the ingredients of negligence.

a)      Duty to take care: Australian advocate, who became judge in England, derived this principle from Bible. Tort is a story of neighbors. Bible says take care of your neighbors. Do not distress them. When a person comes proximate to other is called neighbor and when he goes away, then he is disregarded as neighbor.

So proximity makes a person neighbor and finally renders in responsibility. Neighbors are duty bound persons to take care of others. If I am careful then no loss will occur. Remote geographical proximity becomes, in the eyes of law, legal proximity, if loss occurs.

Third person who is not part of the contract may claim damages, if some loss or injury occurs toward him. In a case of Donoghue – v – Stevenson, a retailer of beer house sold ginger beer to a lady. She offered beer to her guest. She consumed the beer which was included the decomposed remains of a snail. As the bottle was of dark color, so the foreign elements could not be seen during inspection. Plaintiff sued the manufacturer for the negligence claiming that she became ill after consuming the contents of bottle. Question arose whether defendant was under obligation to take care towards to plaintiff. He held responsible even she was not part of the contract.

b)      Duty of care must be owed to the plaintiff: It is not sufficient that defendant has taken care but this care must be toward plaintiff. In an American case, two servants of defendant were trying to board a passenger in train who was carrying a parcel-containing firework. Due to negligence of servants it fell down and shocks knocked over some scale about 25 feet away striking and injured the plaintiff. Held even the conduct of defendant was wrong in relation to passenger, but it was not wrong in relation to the plaintiff standing far away. In relation to her, negligence was not established at all.

Case Bourhill – v – Young, a lady carrying fish basket was being helped by a driver of tram to put basket on her back, a motorcyclist after passing the tram, collided with a car and died. She could not see either deceased or accident due to the tram standing between the deceased and her. She simply heard about the collision. After the removal of dead body she went to the place of accident and saw some blood left there on the road. Consequently she suffered from nervous shock and gave birth of still-born child of eight month. She sued and held motorcyclist being no responsible. Also held that duty to take care toward plaintiff was not anticipate-able in this case. Such duty arises when results are anticipated or can be anticipated.

c)      Breach of duty to take care: This is the most important element of the negligence that duty to take care is breached. Onus to prove negligence lies to plaintiff. This is a duty of banker to check signature on cheque before the cheque is en-cashed, otherwise bank will be responsible.

d)     Consequent damage to the plaintiff: This is the last essential element of negligence that damage caused to plaintiff was the result of the breach of duty and not too remote.

Res ipsa loquitur: It means thing speaks itself. This maxim is applied where plaintiff is totally unable to state facts, which caused him injury. There are many cases in which accidents speak their story.

The maxim applies whenever it is so improbable that such an accident would have happened without the negligence of the defendant, that a reasonable jury could find without further evidence that it was so caused. In case of Byrne – v – Boadle, a barrel of flour rolled out of an open doorway on the upper floor of the defendant’s warehouse and fell upon the plaintiff, a passer-by in the street below. It was held that this of itself was sufficient evidence of negligence to go to jury. The maxim throws on to the defendant the burden of disproving negligence.

Defence of Act of God: In the case of Nicholes – v – Marsland, defendant made an artificial lake which was overloaded while torrential rain and caused damage to plaintiff’s field. Held that water which was escaped from lake was due to rain and was an act of God and beyond human control.

Inevitable accident: These are the accidents, which cannot be foreseen or perceived and reasonable care cannot be taken to avoid them. They are proximate to defendant and he is free from burden.

Contributory negligence was defence earlier but now it is not defence at all.

Maxim res ipsa loquitur is not applied:

1.      If more than one stories arise;

2.      If thing or object was not in possession;

3.      If defect was known to plaintiff. It is clear case of negligence;

4.      If story is stated by plaintiff and defendant.

Defamation is the “publication of a statement which tends to lower a person in the estimation of right-thinking members of society generally; or which tends to make them shun or avoid that person.”

Kinds of defamation: According to English Law, defamation is of two kinds: Libel and Slander. “A libel consists of a defamatory statement or representation in permanent form; if a defamatory meaning is conveyed by spoken words or gestures it slanders.” Slander is converted into libel when spoken words are written on paper.

How libel is committed: Printing, mark or sign exposed to view, picture, statute, waxwork etc. Libel refers to eye.

How slander is committed: Defamation in the manual language of the deaf and dumb, and mimicry and gesticulation generally. It refers to ear.

Distinction between libel and slander: Following are some distinctions between libel and slander:

1.      Action: Libel in all cases is actionable per se while special damage is to be proved in slander to constitute slander.

2.      Liability: Libel is both tort and crime whereas slander is only tort or civil wrong.

3.      Mode of defamation: Writing or telecasting or broadcasting commits libel whereas slander is verbal statement.

4.      Magnitude: Libel is greater than of slander in magnitude.

5.      Publication: Slander becomes defamation when it is known by third person whereas libel does not need publication.

6.      Time period: Libel is permanent defamation whereas slander is temporary defamation.

Exceptions in slander: There are some exceptions, which make slander actionable per se. They are as follows:

a)            Imputation of a criminal offence punishable with imprisonment.

b)            Imputation of dangerous disease which prevent other person to associate plaintiff.

c)            Imputation of unfitness or disqualification or incompetence in any office, profession, trade, or business.

d)           Imputation of unchastely to any woman or girl.

e)            Fifth exemption has been repealed that is imputation of caste which lowers position of plaintiff.

What is theory of freedom? Cicero, a Roman Jurist, says, “we are the slaves of law so that we may be able to be free.”

Remedies: Fish is animal of water and remains free in water. If she come out from water, she losses her freedom at that moment. Everyone is free to drive vehicle, but with brakes.

1.      Stay order can be obtained to stop the person making defamation. Cartoon or caricature and story in newspaper may damage repute of someone. Stay order stops its publication.

2.      Must be stopped: Defamation either libel or slander must be stopped to continue.

3.      Damages may be received against the defamation.

Innuendo is kind of defamation in which words used are not defamatory in its general meaning but they have hidden meaning of defamation. There may be a statement containing an allegation, which apparently is no imputation, may be proved by plaintiff to have in imputation under the special circumstances of the case. As per Winfield, “Where, however, the words are not defamatory in their natural and ordinary meaning, or where the plaintiff whishes to rely upon an additional meaning in which they were understood by persons having knowledge of particular facts, then an innuendo is required. Defamation does not take place between husband and wife unless third person is involved.

Defences: There are three defences, i.e., justification or truth, fair comments, and privilege.

1.      Justification or truth: Action cannot be taken if the person responsible of defamation proves justification or establishes that it is true or substantially true. If contrary is not proved by defendant, Court will award heavier damages against him. Substantial truth is enough to prove justification. In a case of Alexander – v – N. E. Rly, the plaintiff was convicted for travelling without ticket in a train and was fined one pound or imprisonment of two weeks in default of payment. Defendant published one pound fine and three weeks imprisonment in default of payment. Held the statement was substantially true.

2.      Fair comments: For the purpose of public interest fair comment is good defence. If a person says to another that do not give him your house on rent to X being defaulter is fair comment and not actionable. X should be proved defaulter. Fair comments must contain public interest, an expression of opinion and not an assertion, must fair and must not be malicious.

3.      Privilege: It is a statement which is between the two parties which are integral part of each other like husband and wife, judge and parties etc. There are two types of privilege, i.e., absolute privilege and qualified privilege. In absolute privilege any thing can be said even malice but in qualified privilege statement should not contain malice.

a)            Judicial privilege: Dialogues between parties, advocates, judges are not actionable being defamation. They have complete privilege and action can not be taken against the statements, which are given in the proceedings of cases.

b)            Parliamentary privilege: Parliamentary members have also privilege. Statements or dialogues exchanged in parliament are not actionable and all the parliamentary members have privilege to exchange any sort of statement.

c)            Official privilege: Defamatory statement of one officer to other during the course of employment is complete defence.

d)           Husband and wife: Exchange of statements between husband and wife is not defamation unless third party is involved.

Strict Liability is like nuisance with slight difference. We consume goods in two ways out of which in one defendant is liable if commits negligence but in second way defendant is liable even if he is not negligent or he has not fault. In strict liability defendant may be held responsible for the consequences or harm caused to the plaintiff although the defendant neither intends the results not is guilty of negligence. This rule was first propounded in Rylands – v – Fletcher, 1868, case. All the things, which we use in our routine life, can be termed natural use and all the things use of, which is not common, are called non-natural use. We use all these things in our home or land. We bring goat in home, which is natural or common use. No one can take elephant in his home, if so, it will be termed as non-natural user of land or home. Little fire in home is enough for household. Petrol in huge quantity is exceptional case. Plants are common things but poisonous trees are exceptional use. They are natural or non-natural users of their land or house.

Driving a car is natural use, if driven at high speed, will create nuisance or negligence. Brining goat in home is natural use, if he escapes and causes injury will be liable under nuisance. If tiger is taken into home, which is non-natural use of home, and if he escapes and causes injury will be liable under strict liability.

All the non-natural things brought at home must be collected and kept under control and if they escape, defendant will be liable. Smoke creates nuisance while petrol tank may create strict liability. In Rylands – v – Fletcher case, defendant employed independent contractors to construct a water reservoir on his land for the supply of water to his mill. Contractors made a reservoir without taking due care and committed negligence. When water was filled in the tank, water leaked through the old shafts and flooded the mines of the plaintiff. In this case an independent contractor was negligent and defendant was not negligent. But upon sue of plaintiff, defendant held liable.

Essentialities of strict liability: Following are three pre-requisites of this rule:

1.      Bringing and keeping on land anything likely to do mischief, if escape: Defendant must have brought anything on his land, kept there, which can be escaped. This rule is applied on gases, oil, electricity, vibration etc.

2.      Escape: Dangerous thing must be escaped and causes injury. Mere bringing and keeping a dangerous thing on land is not an actionable wrong. Liability arises when it escapes. If no escape, liability will no arise.

3.      Non-natural use of land: Strict liability arises when land is used for non-natural purpose. Storing water in huge amount was considered to be non-natural use of land. It is a question of fact whether particular object can be dangerous or particular use can not be non-natural. In deciding this question all the circumstances of the time and place and practice of mankind must be taken into consideration so that natural and non-natural use of object may be varied.

Defences: There are certain defences against strict liability as follows:

1.      Plaintiff’s own fault: Fault in escape of non-natural object by plaintiff acquits defendant from liability.

2.      Act of God: If the huge amount of water is escaped and causes injury to plaintiff is actionable but if water escapes in result of torrential rains or flood which is beyond human control then it is good defence.

3.      Natural user of land: Anything, which is non-dangerous and natural use of thing, if escape and causes injury, rule of strict liability is not applied but nuisance.

4.      Consent of the plaintiff: If plaintiff and defendant, both have consents to use land or home, and escape causes injury, it will not be actionable under the rule of strict liability.

5.      Act of stranger: Even in case of non-natural user of land or home, if escape is caused by the act of stranger, it is good defence.

6.      Statutory authority: If any statute of government allows keeping and collecting which is dangerous or non-natural use of land can not be held liable under strict liability. Statutory authority has two kinds, i.e., absolute statutory authority and permissive statutory authority. Under the absolute statutory authority liability does not arise in any case. In a case of Celanese, Company was authorized to make electric cables in huge quantity during war time, and due the negligence iron sheets touched the electric supply cables and consequently power failed. Held not liable under absolute statutory authority. Under the permissive statutory authority negligence may create liability. An organization was allowed to make hospital for prevention of small pox and they made hospital within city, which caused spread of small pox rather than its control. They were sued and held liable being negligent in the selection of site within city. They should be constructed hospital outside of the city.

7.      Bringing and keeping things, which are not dangerous: Natural use of land and non-dangerous objects cannot create strict liability but nuisance.

8.      Common benefit: If non-natural objects or dangerous things are kept and collected for common benefit of the society or parties then strict liability rule will not be applied.

Rule of strict liability is applied in the following cases: Poisonous gases leakage, Atomic Radiation, Oil Pollution, Motor Vehicle Act or Accidents, Vicarious Liability, Factories Act for Workmen’s Compensation, Food and Drugs Act, Res ipsa loquitur, and Product Liability.

Malicious prosecution and malicious civil proceedings defined as tort, which consists of instituting certain kinds of legal proceedings against another person maliciously and without reasonable and probable cause. Malicious is applied for malicious prosecution, malicious bankruptcy and liquidation proceedings, malicious arrest, and malicious execution against property.

Society as a whole is interested in protection of individual against unjustifiable and oppressive imputation of criminal charge.

Essential ingredients for malicious prosecution: In an action for malicious prosecution, plaintiff has to proof following:

1.      That he was criminally charged in prosecution.

2.      Proceedings complained were dismissed in his favour.

3.      Prosecution or proceedings were carried on with malice intention.

4.      There was an absence of reasonable and probable cause.

5.      Suffering of plaintiff in result of prosecution or proceedings.

There was a railway accident case in Dr. G. A. Abrath – v – North-East Railway Company. In this case Mr. M was travelling in rail which met with accident. Mr. M received injuries. Mr. M received damages levying allegation of negligence on the part of railway. After payment of damages, railway brought an action of conspiracy against Dr. G. A. Abrath and Mr. M, both. Dr. G. A. Abrath had given treatment to Mr. M after receiving injuries. Railway alleged that there was no injury to Mr. M and Dr. G. A. Abrath instigated Mr. M to bring an action against railway. During the proceedings it was held that prosecutions were without reasonable and probable cause and the case was initiated with ill will and there was no truth in case so Dr. G. A. Abrath suffered. Case was dismissed in favour of Dr. G. A. Abrath. Dr. G. A. Abrath brought an action against North-East Railway Company for malicious prosecution in which Court held Dr. G. A. Abrath innocent and awarded damages.

[1] Disorder, havoc, chaos, confusion, turmoil.

[2] Order demanding the release of confiscated property (Law).

[3] Order to return unlawfully held possessions (Law).

[4] Lawsuit to recover property that has been taken and used by someone else (Law).

Back | Next

Go to Index | LL. B. – II | LL. B. – III | Laws| Home