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LAW OF TORTS
(LAW 222)
Fall Semester, 2010-2011
Instructor: Maryam Khan
Course Timings: Mondays & Wednesdays, 4.00 – 5.50 pm
Office Hours: Tuesdays, 11 am – 5 pm
Contact: maryamk@lums.edu.pk ; ext. 2277
 Course Objectives
The emphasis of this 4-unit course is on the Law of Tort as it has developed and continues to
evolve in South Asia – though as the progenitor of the common law, the English jurisdiction
figures prominently in areas that are characterized by a vacuum in Pakistani and Indian law. The
broader objective of this course is two-fold: to survey and examine the doctrinal elements
surrounding each tort and, more importantly, to critically analyze the sociological issues and
developments surrounding tort liability in the Pakistani legal milieu through a comparative lens.
The course is divided into two parts. The first lays down a historical and theoretical framework,
leading up to a closer look at the familiar paradigm of “underdevelopment” of the Law of Tort in
South Asia. This prologue helps to frame the critical dimension of the course which runs through
the second part on substantive law.
 Teaching Methodology & Grading
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2. The course content is demanding and rigorous, and primarily case-based as far as substantive law
is concerned. The objective is to accustom students to engage with primary legal sources and to
apply their critical insights to the socio-legal context of Pakistan. To this end, classes will be
structured to allow as much interactive dialogue as possible. Students are thus expected to come
to class prepared. Attendance will be strictly enforced: (a) any student who is more than 10
minutes late to class will be marked absent and may, at the instructor’s discretion, be barred from
sitting in that class; and (b) more than 3 absences will lead to a grade reduction unless the
absence has been approved by the instructor in her discretion prior to the class in question
(absences for extracurricular activities will not be excused).
The final grade for the course will comprise of the aggregate of the following grading
instruments:
Class Participation 20%
Midterm 20%
Quiz 20%
Final Paper 40%
Further guidelines for the above will be provided in class in due course.
COURSE SYLLABUS
Syllabus Key
o Statutory laws
 Cases/judgments
PART I Theory, History & Sociology of Tort Law
1. Introduction
No readings.
2. Nature & Functions of Tort
 Theories of Tort Law:
Jules Coleman, “Theories of Tort Law,” Stanford Encyclopedia of Philosophy,
2003. Available at http://plato.stanford.edu/entries/tort-theories/
 Islam and “Crim-Torts”?:
Mohammad Ma’sum Billah, “Quantum of Damages in Takaful (Islamic
Insurance): A Reappraisal of the Possibility of Adopting the Doctrines of Al-
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3. Diyah and Al-Daman,” Arab Law Quarterly, Vol. 14, No. 4 (1999), pp. 339-347.
JSTOR
3. Colonial Backdrop
 Anglo-Indian Developments:
Courtenay Ilbert, “Application of European Law to Natives of India,” Journal of
the Society of Comparative Legislation, Vol. 1 (1896-1897), pp. 212-226. JSTOR.
 To Codify or Not to Codify?:
(i) Sir Frederick Pollock, “The Law of Torts: A Treatise on the Principles of
Obligations arising from Civil Wrongs in the Common Law,” to which is added
the Draft of a Civil Wrongs Bill, Prepared for the Government of India, (4th
ed.),
1886, pp. 536-539, 561-566. Available at
http://files.libertyfund.org/files/2123/Pollock_1428_Bk.pdf
(ii) Sir Henry Maine, Minutes. Excerpts.
4. Contemporary Systems in Comparison
 The Progenitor and Its Progeny:
P. S. Atiyah, “Tort Law and the Alternatives: Some Anglo-American
Comparisons,” Duke Law Journal, Vol. 1987, No. 6 (Dec. 1987), 1002-1006,
1016-1044. JSTOR
 Tort Law in the South Asian Context
(i) B. M. Gandhi, Law of Tort, 1987. Excerpts from Introduction.
(ii) Abraham and Abraham, “The Bhopal Case and the Development of
Environmental Law in India,” International and Comparative Law
Quarterly, Vol. 40, No.2 (Apr. 1991), pp. 350-355. JSTOR
 Jehangir Services v. Rukhsana Begum, PLD 1995 Karachi 329 (an example
of “crim-torts”).
5. Torts, Legal Evolution & Social Change
(i) Sir Henry S. Maine, Ancient Law, Chapter X: The Early History of Delict
and Crime, 1861. Excerpts. Available at
http://www.efm.bris.ac.uk/het/maine/chap10
(ii) Michael Clarke, “Durkheim’s Sociology of Law,” British Journal of Law &
Society, Vol. 3, No. 2 (Winter 1976), pp. 246-255. JSTOR
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4. 6. The Post-Colonial Paradigm of “Underdevelopment”
(i) Ananyo Basu, “Torts in India: Dharmic Resignation, Colonial Subjugation, or
“Underdevelopment”? South Atlantic Quarterly, Vol. 100, No. 4, Fall 2001, pp.
1053-1070. Available at
http://muse.jhu.edu/journals/south_atlantic_quarterly/v100/100.4basu.pdf
(ii) Marc Galanter, “India’s Tort Deficit: Sketch for a Historical Portrait,” in
Fault Lines: Tort Law as Cultural Practice (David M. Engel & Michael McCann,
eds.), Stanford, 2010, pp. 47-65.
(iii) Timothy J. O’Neill, “Through A Glass Darkly: Western Tort Law From a
South and East Asian Perspective,” 11 Rutgers Race and L. Rev. 1, 2009, pp. 1-
30. LEXIS-NEXIS
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5. PART II Law of Tort: A Comparative Approach
7. Trespass to the Person I: Assault & Battery
The protection of the person from deliberately and intentionally inflicted physical harm and
restriction on freedom of movement, and the protection of interests in tangible property,
especially the right to non-interference with land and goods, were historically the most important
concerns of the Law of Torts. The relevant torts include trespass in its various forms, including
trespass to the person, trespass to land, and interference with goods.
(i) Consilio, “Review: Tort – Assault and Battery,” 2000.
 Letang v. Cooper, [1965] 1 QB 232.
 Collins v. Wilcock, [1984] 3 All ER 374.
 Wilson v. Pringle, [1986] 2 All ER 440.
(ii) International Environmental Law Research Centre, “Tort Law in India,” Annual
Survey of Indian Law 2001 (2002), pp. 1-6.
8. Trespass to the Person II: False Imprisonment
 Murray v. Ministry of Defence, [1988] 2 All ER 521.
 Govt. of Pakistan v. Sardar Muhd. Ali, PLD 1965 Karachi 1.
 Mazharuddin v. The State, 1998 P Cr. LJ 1035.
 Riaz Ahmed v. I.G. of Police, 2006 MLD 1093.
9. Trespass to Land & Interference with Moveable Property
 Trespass to Land
(i) Possession of land
 Street v. Mountford, 1985 1 AC 809.
(ii) What constitutes land?
 Bernstein v. Skyviews, 1978 QB 479.
 Anchor Brewhouse v. Berkley House, 1987 284 E.G. 625.
(iii) What constitutes direct interference?
 Abdul Gafur Mia v. Abdul Gafur, PLD 1961 Dacca 174.
(iv)Distinguish civil from criminal trespass
o Pakistan Penal Code, 1860: ss. 441-443, 447.
o Illegal Dispossession Act, 2005.
 Interference with Moveable Property
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6.  Provincial Govt. NWFP v. Afzal Khan, PLD 1959 (W.P.) Peshawar 34.
10. Negligence – Duty of Care
The law of negligence is the backbone of the Law of Torts, since it extends over the whole
sphere of human activity and is not confined, as most other torts are, to particular types of
conduct or activity. It concerns the way in which activities are carried out, and not any particular
activity, and it protects a variety of interests. The tort of negligence consists of 3 essential
elements: (a) duty to take reasonable care, (b) breach of that duty, and (c) damage resulting or
caused by that breach of duty.
(i) The Neighbor Principle
 Donoghue v. Stevenson, [1932] AC 562.
 Karim Buksh v. KESC, 1997 CLC 507.
(ii) Omission to Act
 Hill v. Chief Constable of West Yorkshire, [1989] 1 AC 53.
(iii) An Intentional Tort of Negligence? Sexual Harassment and Blurring of the
Trespass/Negligence Boundary:
Joanne Conaghan, “Harassment and the Law of Torts: Khorasandjian v. Bush,”
Case Notes, Feminist Legal Studies, Vol. I, No. 2, 1993, pp. 189-197. Available at
http://www.springerlink.com/content/v421160g12213u35/fulltext.pdf
11. Negligence – Special Cases
 Pure Economic Loss
 Spartan Steel v. Martin, [1972] 3 All ER 557.
 Murphy v. Brentwood, [1990] 2 All ER 908.
 Nervous Shock
(i) Consilio, “Review: Tort – Nervous Shock,” 2000.
 Alcock v. Chief Const. of South Yorkshire Police, [1991] 4 All ER 907.
 Page v. Smith, [1996] 1 AC 155.
 Muhd. Ishaque v. Metropolitan Corp., PLD 1996 SC 737.
 PIA v. Ali Raza Rizvi, 1996 CLC 627.
12. Professional Negligence
 Negligent Statements
 Hedley Byrne v. Heller, [1963] 2 All ER 575.
 Caparo v. Dickman, [1990] 2 AC 617.
 Victor Electronics Appliances v. Habib Bank, 2005 CLD 1383.
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7.  Lawyers’ Negligence
 Veerappa v. Evelyn Sequeira, AIR 1988 SC 506.
 Arthur Hall v. Simons, [2000] 3 All ER 673.
13. Breach of Duty
(i) Reasonable Man Standard
 Blyth v. Birmingham Waterworks, (1856) 11 Ex. 781.
 Glasgow Corporation v. Muir, [1943] AC 448.
(ii) Res ipsa Loquitor
 Hayat Services v. Kandan, 1989 CLC 2153.
(iii) Degree of Care
 Wagon Mound No. 2, [1967] 1 AC 617.
 Nettleship v. Weston, [1971] 2 QB 691.
(iv) Professionals
 Roe v. Ministry of Health, [1954] 2 QB 66.
 Bolam v. Friern Hospital, [1957] 2 All ER 118.
 Alia Tareen v. Amanullah Khan, PLD 2005 SC 99.
14. Causation
 Causation in fact – the “but for” test
 Barnett v. Chelsea, [1969] 1 QB 428.
 McGhee v. National Coal Board, [1972] 3 All ER 1008.
 Jobling v. Associated Dairies, [1982] AC 794.
 Wilsher v. Essex, [1988] 1 All ER 871.
 Causation in law
(i) Foreseeability of damage
 The Wagon Mound No. 1, [1961] 1 All ER 404.
 Hughes v. Lord Advocate, [1963] All ER 705.
(ii) Intervening acts and events
 McKew v. Holland, [1969] 3 All ER 1621.
 Lamb v. London Borough, [1981] 2 All ER 408.
15. Negligence – General Defences
 Contributory Negligence
 Froom v. Butcher, [1975] 3 All ER 520.
 Harrison v. British Railways, [1981] 3 All ER 679.
 Voluntary Assumption of Risk
 Smith v. Baker, [1891] AC 325.
 Condon v. Basi, [1985] 2 All ER 453.
 Ghulam Qadir v. Azim Bakhsh, PLD 1969 B J 20.
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8.  Public Policy
 Pitts v. Hunt, [1991] 1 QB 24.
 Necessity
 Rigby v. Chief Constable of Northamptonshire, [1985] 2 All ER 985.
16. MIDTERM (tentative)
17. Occupiers’ Liability
o Occupiers’ Liability Act, 1957 (UK), extracts.
(i) Who is an occupier?
 Wheat v. Lacon, [1966] 1 All ER 582.
(ii) Reasonable Care
 Haseldine v. Daw, [1941] 2 KB 343.
 Federation of Pakistan v. Ali Ihsan, PLD 1967 SC 249.
(iii) Reasonable safety
 Phipps v. Rochester, [1955] 1 QB 450.
(iv) Non-visitors and Trespassers
 Javed Iqbal v. Province of West Pakistan, 1992 CLC 2369.
 Revill v. Newbery, [1996] 1 All ER 291.
18. Employers’ Liability
 Wilsons & Clyde v. English, [1938] AC 57.
 Paris v. Stepney, [1951] AC 367.
 General Cleaning v. Christmas, [1953] AC 180.
 Bux v. Slough, [1974] 1 All ER 262.
 Hatton v. Sutherland, [2002] 2 All ER 1.
o Employers’ Liability Act, 1938
 PIA v. Ursulina D’Lima, PLD 1966 (W.P.) Karachi 580.
o Workmen’s Compensation Act, 1923: ss. 1-4, 22-A
 Nathey Khan v. Govt. of Pakistan, 1980 SCMR 485.
19. Vicarious Liability and Joint Liability
 Vicarious Liability
 Mersey Docks v. Coggins, [1947] AC 1.
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9.  Sitaram v. Motilal v. Bhatt, AIR 1966 SC 1697.
 Ready Mixed Concrete v. Minister of Pensions, [1968] 2 QB 497.
 Rose v. Plenty, [1976] 1 All ER 97.
 Smith v. Stages, [1989] 1 AC 928.
 Mukhtiar Begum v. Karachi Transport Corp., 1992 MLD 1711.
 Joint Liability and Contribution between Tortfeasors
 Khushro Gandhi v. Guzder, AIR 1970 SC 1468.
20. Private Nuisance
Certain torts exist in relation to the protection of personal and proprietary interests against
conduct which is not necessarily, or cannot be proved to be, either intentional or negligent. These
include torts of ancient origin such as nuisance (private and public) and the strict liability rule in
Rylands v. Fletcher, which highlight the importance vested in the landowner’s interest in
enjoyment of property. Actions strict liability for injuries and property damage caused by
defective goods, have emerged in response to the need for improving standards of public health
and personal safety.
(i) Proprietary Interest in Land
 Hunter v. Canary Wharf, [1997] AC 655.
(ii) Unlawful Interference
 Robinson v. Kilvert, 41 Ch D 88.
 Hollywood Silver Fox Farm v. Emmett, [1936] 2 KB 468.
 Halsey v. Esso Petroleum, [1961] 2 All ER 145.
 Miller v. Jackson, [1977] QB 966.
 Faridul Hassan v. Muhammad Ayub, 1986 MLD 371.
21. Public Nuisance and Strict Liability
 Public Nuisance
o Code of Civil Procedure, 1908: s. 91.
o Pakistan Penal Code, 1860: s. 268.
 Naz Shaukat v. Yasmin Minhas, 1992 CLC 2540.
 Islamuddin v. Ghulam Muhammad, PLD 2004 SC 633.
 Khurshida Shorish v. Province of Punjab, PLD 2004 Lahore 744.
 Strict Liability & Foundations of Environmental Law
 Rylands v. Fletcher, [1861-73] All ER Rep 1.
 Cambridge Water v. Eastern Counties, [1994] 1 All ER 53.
 M. C. Mehta v. Union of India, AIR 2004 SC 4016.
 Farzana Parveen v. KESC, 2005 MLD 1556.
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10. 22. Product Liability and Consumer Protection
(i) A. Salman Humayun, “Consumers Versus Corporate Sector: Judicature’s Role in
Balancing the Equation,” undated manuscript, pp. 1-17. Available at
http://www.supremecourt.gov.pk/web/subsites/scp50/Articles/18/1.pdf
(ii) Consumer Rights Commission of Pakistan, “Model Consumer Protection Act
2000,” 2000, extracts. Available at http://www.crcp.org.pk/PDF
%20Files/mcp_act_2000.PDF
o Punjab Consumer Protection Act, 2005. Available at
http://punjablaws.gov.pk/laws/477.html
(iii) Consumer Rights Commission of Pakistan, “General Elections 2008:
Policy Commitments of Political Parties, Consumer Protection.” Available at
http://www.crcp.org.pk/PDF%20Files/Elections_CPL_Dec27.07.pdf
 Journalistic sources
(a) Rana Tanveer, “Consumer Court Gaining Popularity,” Daily Times,
Monday, April 13, 2009.
(b) Jamaluddin Jamali, “Consumer Courts in Dilemma over Consumer
Definition,” The Nation, November 25, 2009.
(c) See generally Special Report on Consumer Protection, The News, at
http://www.jang.com.pk/thenews/sep2007-weekly/nos-02-09-2007/spr.htm
 Shamshad Hussain Syed v. District Consumer Court, Lahore, PLD
2010 Lahore 214.
 Chief Executive, FESCO v. Nayab Hussain, PLD 2010 Lahore 95.
23. Damages for Property Damage and Personal Injury
 Property Damage
 Muhammad Reaz Janjua v. Mirpur Development Authority, PLD 2005
AJK.
 Personal Injury
 Lim v. Camden, [1980] AC 174.
 Picket v. British Rail, [1980] AC 136.
 Smith v. Manchester, 17 KIR 1.
 Nazar Ali Siddiqui v. Pakistan, 1986 CLC 1370.
 Naseem Rashid Mirza v. Municipal Committee, 1998 MLD 167.
 Rahat Ali v. Dr. Saeeda Rehman, 2002 CLC 96.
24. Damages for Death
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11.  Death as Creating Liability
o Fatal Accidents Act, 1855: ss. 1-4.
 Kerala State Road Transport v. Susamma, AIR 1994 SC 1631.
 Manmatha v. Muhammad Rehman, PLD 1969 SC 565.
 Subhan Bano v. Sultan Khan, 1988 CLC 830.
 Punjab Road v. Zahida Afzal, 2006 SCMR 207.
 Feroza Wajid v. Govt. of Sindh, 2006 MLD 786.
 Death as Extinguishing Liability
o Legal representatives’ Suits Act, 1855: ss. 1-2.
o Succession Act, 1925: ss. 305-306.
 Mercantile Co-operative Bank v. Habib, PLD 1967 Karachi 755.
25. Defamation
The Law of Tort has long protected individuals’ interest in their reputation. The law of
defamation, like many other branches of torts, provides for balancing of interests. The interest
which a person has in her reputation has to be balanced with the interest which every person has
in freedom of speech. The tort of defamation protects reputation, and the defences to this tort
protect the freedom of speech. Similarly, the torts of malicious prosecution and frivolous
litigation, apart from discouraging the perversion of the machinery of justice and abuse of the
judicial process, also have a role to play in the protection of reputation.
o Defamation Ordinance, 2002.
(i) Defamatory Statements
 Sim v. Stretch, [1936] 2 All ER 1237.
 Charleston v. News Group Newspapers, [1995] 2 All ER 313.
 Botham v. Khan, July 1996.
(ii) Reference to Claimant
 Morgan v. Odhams Press, [1971] 2 All ER 1156.
 Hasan Razaqi v. Mehrun Visa Mehr, PLD 1971 Karachi 266.
(iii) Defamation & Freedom of Speech
 New York Times v. Sullivan, 376 U.S. 254 (1964).
 Majid Nizami v. Muhammad Rashid, PLD 1996 Lahore 410.
(iv)Distinguish from Defamation as a Criminal Offense
o Pakistan Penal Code, 1860: ss. 499-500.
26. Malicious Tort Actions
 Malicious Prosecution
(i) Prosecution
 Martin v. Watson, [1996] 1 AC 74.
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12. (ii) Lack of reasonable and probable cause, and malice
 Glinski v. McIver, [1962] AC 726.
 Abdur Rashid v. State Bank of Pakistan, PLD 1970 Karachi 344.
 Abdul Rauf v. Abdul Razzak, PLD 1994 SC 476.
 Niaz v. Abdul Sattar, PLD 2006 SC 432.
 Malicious Civil Proceedings (“frivolous litigation”)
 Muhammad Akram v. Farman Bi, PLD 1990 SC 28.
 Zahra Zaidi v. Anwar Ghauri, 2004 CLC 223.
 Malicious Arrest/Process
 Muhammad Mantazuddin v. Shamsur Rahman, PLD 1964 Dacca 618
27. Tortious Liability of the State: A Pakistani Case Study
This is a special session devoted to tortuous liability of the state in general and torts that are
closely related to the liability of the state and public/statutory functionaries, such as breach of
statutory duty and misfeasance in public office.
(i) Maryam Khan & Osama Siddique, “The 2005 South Asian Earthquake:
Natural Calamity or Failure of State? State Liability and Remedies for Victims of
Defective Construction in Pakistan,” (2007) 9 Asian Law, pp. 187-233.
(ii) Access to Justice Program, “Public Servant Immunity & Tort Law,”
undated manuscript.
28. QUIZ
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