Definition of Tort:

A tort is a civil wrong, other than a breach of contract, which gives rise to a legal liability. It
involves a person’s act or omission that causes harm or injury to another, for which the injured
party may seek compensation through a civil lawsuit. The primary aim of tort law is to provide
relief to the injured party and deter others from committing similar wrongs.

According to Winfield,

"Tortious liability arises from the breach of a duty primarily fixed by law; such duty is towards
persons generally and its breach is redressable by an action for unliquidated damages."

Etymology:

o The word "tort" is derived from the Latin word tortus, which means "twisted" or
"crooked".
o It was adopted into English from the French word tort, meaning "wrong" or
"injustice".

History of Tort Law

1. Roman Period (Ancient Times)

 In Roman law, civil wrongs were categorized as "delicts", which formed the basis for
what we now know as torts.
 Roman jurists recognized several forms of wrongful acts, including:
o Injuria – wrongful harm to person or reputation,
o Damnum iniuria datum – wrongful damage to property,
o Furtum – theft,
o Rapina – violent theft.
 These laws emphasized compensation and personal responsibility.
 Roman law laid the foundation for later European civil law systems, influencing tort-like
principles in countries that follow the civil law tradition.

2. 1200s – Medieval England

 This was the early common law period after the Norman Conquest of England.
 Tort law began developing under the writ system. Two major writs were:
o Writ of Trespass: Direct, forceful injuries to person or property (like assault or
battery).
o Writ of Trespass on the Case: For indirect or consequential harm.
 Judges started recognizing patterns of wrongs, forming the basis for tort categories like
nuisance, defamation, and negligence.
 The courts gradually moved from rigid writs to broader recognition of harm and duty.
3. 1600s – Renaissance Period

 The Renaissance brought more focus on individual rights, personal liberty, and rational
thought.
 Legal scholars began systematizing tort principles based on reason and justice.
 Courts emphasized the moral blame of the wrongdoer and began distinguishing between
intentional wrongs and negligence.
 Concepts like causation, fault, and duty of care began gaining clarity.
 The idea that every individual has a duty to not harm others became more entrenched in
the legal thinking of this period.

4. 1900s – Modern Development

 Tort law saw major evolution during the 20th century, especially with the rise of
industrialization and personal injury claims.
 The landmark UK case Donoghue v. Stevenson (1932) introduced the "neighbour
principle" and solidified the modern law of negligence.
 Courts expanded tort law to include:
o Product liability
o Occupier’s liability
o Professional negligence (malpractice)
o Strict liability (e.g., Rylands v. Fletcher)
 Tort law became more accessible to the common citizen, promoting consumer
protection, worker safety, and human rights.

5. Tort Law in Pakistan

 In Pakistan, tort law is not codified in a single statute but is mostly judge-made law,
based on:
o English common law principles inherited during British colonial rule.
o Islamic principles of justice and equity, especially under Article 2A of the
Constitution.
 Pakistani courts recognize major torts like:
o Negligence
o Defamation
o Malicious prosecution
o Nuisance
o False imprisonment
 Tort claims are usually filed under civil procedure, with remedies including damages,
injunctions, and declarations.
 Despite its presence, tort law is still underdeveloped in Pakistan due to:
o Lack of awareness,
 o Weak enforcement,
o Absence of specific statutes (except in areas like consumer protection, workplace
injury, etc.).

DIFFERENCE BETWEEN TORT AND CRIME

Aspect Tort Crime
A civil wrong against an individual A public wrong against society or the
Definition
causing harm or loss. state, punishable by law.
Nature of Wrong Private wrong; affects an individual. Public wrong; affects society at large.
To punish the offender and deter
Purpose of Law To compensate the injured party.
criminal behavior.
Individual (plaintiff) sues another The state prosecutes the accused
Parties Involved
individual (defendant). (defendant).
Proceedings Civil suit in civil court. Criminal trial in criminal court.
Beyond a reasonable doubt (more
Burden of Proof Balance of probabilities (less strict).
strict).
Damages (compensation), Punishment (imprisonment, fine, death
Remedies
injunction. penalty, etc.).
Consent or No consent needed; law imposes the No consent; breaking a duty owed to
Agreement duty. the state or public.
Examples Defamation, negligence, trespass. Murder, theft, rape, robbery.
Possibility of Some acts can be both tort and crime Yes, a person can face both civil and
Overlap (e.g., assault). criminal liability.
DIFFERENCE BETWEEN TORT AND CONTRACT
Aspect Tort Contract
A civil wrong that causes harm or loss, A legally binding agreement between
Definition
resulting in legal liability. two or more parties.
Source of Duty is imposed by law (even without Duty arises from a mutual agreement
Duty agreement). or contract between the parties.
No consent is required; the duty exists Consent of both parties is essential for
Consent
regardless of relationship. a valid contract.
Nature of Breach of a legal duty towards others Breach of the terms agreed upon in the
Breach (e.g., negligence, defamation). contract.
May be intentional (like assault) or Usually involves a failure to perform a
Intent
unintentional (like negligence). promised act.
Damages, injunctions, or other remedies Damages or specific performance to
Remedy
to compensate or prevent harm. enforce the agreement.
Defamation, trespass, negligence, Breach of a contract to sell goods or
Examples
nuisance. provide services.
Parties One party wronged another (even Contracting parties only (who agreed to
Involved strangers). the terms).
To protect individual rights and duties as To uphold the intentions and
Objective
set by law. expectations agreed upon in a contract.
DIFFERENCE BETWEEN TORT AND QUASI CONTRACTUAL
RELIEF
Aspect Tort Quasi-Contractual Relief
A civil wrong causing harm due A legal obligation imposed by law to
Definition to breach of a legal duty by one prevent unjust enrichment, not based on
person. an actual contract.
Obligation arises from law due
Nature of Obligation arises from law to ensure
to wrongful conduct (like
Obligation fairness, even without agreement.
negligence).
No agreement or consent No real contract exists, but law treats it
Consent/Agreement
between parties is needed. as if there were one.
Compensation for harm or injury Restitution – returning benefit unfairly
Focus
caused. received.
A person negligently causes Person A mistakenly pays money to B;
Example
damage to another’s car. B is bound to return it.
Damages to compensate for the Restitution – refund of money or return
Remedy
loss suffered. of benefit.
Law of quasi-contract (found in
Law of Tort (common law
Legal Basis Contract Act, e.g., Sections 68–72 of
principles).
the Pakistan Contract Act).
Parties' No prior legal or consensual Relationship is created by law to avoid
Relationship relationship is required. injustice.
1. Intentional Torts

Definition:

Intentional torts are civil wrongs committed by a person who deliberately acts in a way that
causes harm to another individual. These torts involve intentional acts, meaning the defendant
meant to commit the act, even if they didn't intend the harm.

Forms of Intentional Torts:

 Assault: An act that creates an apprehension or fear of immediate harmful or offensive

contact.
 Battery: The actual physical contact with the victim that is harmful or offensive.
 False Imprisonment: The unlawful restraint of a person's freedom of movement.
 Defamation: The false statement made about an individual that harms their reputation.
o Libel: Written defamation.
o Slander: Spoken defamation.
 Intentional Infliction of Emotional Distress (IIED): Extreme or outrageous conduct
that causes severe emotional distress to another person.
 Trespass: Unauthorized entry onto another person’s land or property.

Case Law:

Cole v. Turner (1704) – This case set the precedent that even the slightest touch could amount
to battery if it was unwanted. In this case, it was ruled that touching another person without
consent can be actionable in tort, regardless of how minor the touch.

2. Negligent Torts

Definition:

Negligent torts occur when a person fails to exercise reasonable care, resulting in harm to
another. Unlike intentional torts, negligence does not involve the intent to cause harm, but rather
a failure to act responsibly.

Forms of Negligent Torts:

 Negligence: Failing to act with the level of care that a reasonable person would exercise
under similar circumstances.
 Medical Negligence: Failing to provide the standard of care expected from medical
professionals, resulting in injury to the patient.
 Car Accidents: Harm caused by the carelessness of a driver, such as speeding or failing
to signal.
  Slip and Fall Accidents: When a property owner’s failure to maintain a safe
environment results in someone’s injury.

Case Law:

Donoghue v. Stevenson (1932) – This case established the neighbor principle in negligence,
where the House of Lords ruled that a manufacturer owes a duty of care to the ultimate
consumer, even without a direct contract. The case involved a woman who fell ill after drinking
ginger beer containing a decomposed snail, leading to the creation of modern negligence law.

3. Strict Liability Torts

Definition:

Strict liability torts impose liability on a party regardless of fault, negligence, or intent. The
defendant is held responsible for harm caused by certain activities, especially those that involve
inherently dangerous or hazardous actions.

Forms of Strict Liability Torts:

 Dangerous Animals: A person who owns dangerous animals is strictly liable for any
harm caused by them.
 Abnormally Dangerous Activities: Activities that are inherently dangerous, such as
using explosives, are subject to strict liability.
 Product Liability: Manufacturers are held strictly liable for defective products that cause
injury, even if they were not negligent in their production.

Case Law:

Rylands v. Fletcher (1868) – In this landmark case, the defendant built a reservoir on his land,
and it burst, flooding the claimant’s coal mine. The court imposed strict liability on the defendant
for the damage caused, even though there was no negligence. This case established the rule that a
person who uses their land in a way that creates a non-natural risk to others must be held strictly
liable for any damage caused.

4. Nuisance Torts

Definition:

Nuisance torts involve an interference with a person's enjoyment or use of their land. This can
occur due to activities that cause harmful or unreasonable disruptions, such as noise, smell, or
pollution.
Forms of Nuisance Torts:

 Private Nuisance: Interference with the use or enjoyment of an individual’s property.

 Public Nuisance: Interference with the rights of the public or a large group of people,
such as obstructing a public road or causing environmental harm.

Case Law:

Halsey v. Esso Petroleum Co. (1961) – The claimant sued Esso for the fumes and noise emitted
by their oil refinery, which interfered with his enjoyment of his land. The court ruled in favor of
the claimant, recognizing it as a private nuisance. The court held that activities causing
discomfort and inconvenience to a property owner could amount to nuisance.

JUSTIFICATION IN TORT
1. Consent (Volenti non fit injuria)

Definition:

This defense applies when the plaintiff voluntarily agrees to the risk of harm, meaning they
consented to the act that caused the harm. If the plaintiff consents to the risk, they cannot later
claim for injuries resulting from that act.

Forms:

 Implied Consent: This can arise from the situation or the relationship (e.g., sports).
 Expressed Consent: The plaintiff explicitly agrees to the act, either in writing or
verbally.

Case Law:

Collins v. Wilcock (1984) – The court held that a person who consents to a touch (even a slight
one) in certain situations, such as during a conversation, cannot claim battery. In this case, a
police officer touching the plaintiff’s arm during a conversation was considered to be implied
consent, and no battery occurred.
2. Self-Defence (Defence of Property)

Definition:

A person can use reasonable force to protect themselves or their property from harm. This is a
complete defense to torts like assault, battery, or trespass. However, the force used must be
proportionate to the threat.

Forms:

 Self-Defence: Protecting oneself from harm.

 Defence of Property: Protecting property from harm or intrusion.

Case Law:

R v. Palmer (1971) – In this case, the court ruled that self-defence is a valid defense as long as
the force used was reasonable and proportionate to the threat faced. The defendant used force to
defend themselves during a robbery, and the court accepted it as self-defence.

3. Necessity

Definition:

This defense is used when a person commits a tort to prevent a greater harm. The harm caused
by the defendant's actions must be necessary to avoid an even greater harm.

Forms:

 Public Necessity: When a person acts to prevent harm to the public, such as during a
natural disaster.
 Private Necessity: When a person acts to protect their own property or life.

Case Law:

Cooper v. Willimott (1903) – The defendant caused damage to the plaintiff's property to prevent
a greater harm (fire). The court accepted that the defendant acted under necessity to avert a
disaster and thus ruled in favor of the defendant, applying the defense of necessity.
4. Contributory Negligence

Definition:

This defense is raised when the plaintiff contributes to their own harm through their own
negligence. The defendant can argue that the plaintiff’s actions or omissions partially caused the
injury, reducing the defendant's liability.

Forms:

 Partial Negligence: Where both parties' negligence contributes to the harm, the court
will reduce the damages proportionally.

Case Law:

Froom v. Butcher (1976) – The court held that the plaintiff’s failure to wear a seatbelt
contributed to their injuries in a car accident. As a result, the damages awarded to the plaintiff
were reduced due to their contributory negligence.

5. Act of God (Vis Major)

Definition:

An Act of God refers to an event that is unforeseeable and uncontrollable, such as a natural
disaster (flood, earthquake, etc.), and it serves as a defense to certain torts, like negligence or
nuisance. It absolves the defendant from liability if the harm was caused by a natural event.

Forms:

 Natural Causes: Earthquakes, floods, hurricanes.

 Unforeseeable Events: Events that no reasonable person could anticipate or prevent.

Case Law:

Nichols v. Marsland (1876) – In this case, the defendant's dam caused flooding on the plaintiff's
property due to a heavy rainfall (an Act of God). The court held that the flooding was due to an
unforeseeable natural event, and the defendant was not liable.
6. Inevitable Accident

Definition:

An inevitable accident is an event that could not have been prevented by the defendant, even
with the utmost care. It serves as a defense when the defendant did everything they could to
avoid harm, but the harm occurred due to circumstances beyond their control.

Forms:

 Unavoidable Accidents: Accidents that occur without anyone's fault or negligence, like
an object falling due to unforeseen circumstances.

Case Law:

Stanley v. Powell (1891) – The plaintiff was injured when a gun, which was being handled by a
third person, discharged. The court ruled that the injury was caused by an inevitable accident, as
the discharge was not caused by the defendant's negligence or intention.

7. Legal Authority (Statutory Authority)

Definition:

If a defendant commits a tort under legal authority (such as a law, statute, or court order), they
may be exempt from liability. This defense applies when the defendant’s actions are authorized
by law.

Forms:

 Statutory Authority: When a defendant’s actions are authorized by legislation (e.g.,

police using force under lawful duties).

Case Law:

Laws v. Flintham (1916) – In this case, the defendant was immune from liability for trespass as
they were acting under statutory authority to deal with an issue under the law. The court held that
statutory authority justified the defendant's actions.
8. Discharge of Liability by Agreement (Contractual Exemption)

Definition:

In some cases, a person may be exempt from liability due to an agreement made beforehand,
such as a waiver of liability or release agreement where the plaintiff agrees not to hold the
defendant liable for certain types of harm.

Forms:

 Waiver: Where the plaintiff voluntarily gives up the right to sue.

 Exclusion Clause: Clauses in contracts that exclude or limit liability for certain actions.

Case Law:

Smith v. Eric S. Bush (1990) – The court ruled that an exclusion clause in a contract could not
shield the defendant from liability for negligence when the clause was deemed unfair. The case
illustrated how courts will not always enforce liability waivers if they are found to be
unreasonable.