Tort Law explained in detail

1. Torts Lecture 3
Mohammad Ata-ur Rahman

2. Retributive justice places a primary emphasis on punishment
of a wrong committed. "An eye for an eye and a tooth for a
tooth" is an example of a retributive punishment.
Restorative justice places a primary emphasis on
rehabilitating the offender, the victim, and the community.
Law as Conflict Resolution

3. What is a Remedy?

4. Actual damage caused to the plaintiff without an
infringement of his legal right, no action lies against the
defendant. In order to make someone liable in tort,
plaintiff must prove that he has sustained legal injury.
Damage without injury is not actionable in the law of
torts.
Damnum sine injuria

5. A sets up a rival school opposite to B’s school with a low
fee structure as a result of which students from B’s
school flocked to A’s school thereby causing a huge
financial loss to B. This act of A is not actionable in law
of torts since it did not lead to the violation of any legal
right of the plaintiff although he has sustained financial
loss.
Example

6. 1) Injuria - injury to legal right
2) sine -without
3) damno - damages, monetary loss.
Injuria sine damno

7. Injury without damage or it means infringement of an
absolute private right without any actual loss or
damage. whenever there is an invasion of legal right,
the person in whom the right is vested is entitled to
bring an action and may recover damages, although he
has suffered no actual harm.
Meaning

8. Ashby v/s White, 1703.
Facts
Plaintiff was legal voter ,his name was there in voter list.
Defendant was a returning officer, i.e. in-charge of election.
Refused the plaintiff to offer or to tender his lawful vote to
his candidate. Plaintiff sued Defendant for compensation
even though no loss is caused in term of money.
Issue Whether defendant is liable.
Torts Actionable Per Se

9. The plaintiff suffered no loss in money. Moreover, the
candidate to whom he was about to offer /tender his
vote got elected. So defendant not liable?
Defendant’s case

10. Court held that Defendant is liable to pay compensation
because he has violated legal right of plaintiff to
vote. Even though plaintiff suffered no actual loss in
term of money, or the candidate to whom plaintiff was
interested got elected, defendant has committed a tort
and therefore liable to pay compensation.
Held -

11. A person is responsible for his own act of omission and
commission but in certain cases a person is liable for the
act of others.
PRINCIPLE OF VICARIOUS LIABILITY

12. There must be a relationship of a certain kind.
The wrongful act must be related to the relationship in
a certain way.
The wrongful act must be done within the course of
employment.
Elements

13. He who does an act through another is deemed in law
to do it himself.
1. There should be a master-servant relation.
2. The act of omission or commission should be done
within the course of employment.
Employers liability for the act of his
servant

14. If A, driver of B in his course of employment negligently
knocks down C while driving a car, B will be responsible
for the negligence of his driver A.
Example:

15. “to one who volunteers, no harm is done”. A person
who after knowing the risks and circumstances willingly
and voluntarily consents to take the risk cannot ask for
compensation for the injury resulting from it.
PRINCIPLE OF VOLENTI NON FIT
INJURIA

16. Voluntary
Agreement (express or implied)
Knowledge of the risk
Essential elements

17. By participating in a football match, the player willingly
consents to bear the risk that may arise in the normal
course of the game.
Example:

18. The duty owed by land owners to those who come onto
their land. However, the duty imposed on land owners
can extend beyond simple land ownership and in some
instances, the landowners may transfer the duty to
others, hence the term occupier rather than owner.
Occupiers' liability

19. Imposes a common duty of care on occupiers to lawful
visitors. The Act applies not only to land and buildings
but also extends to fixed and movable structures,
including any vessel, vehicle or aircraft. The protected
damage under the Occupiers Liability Act 1957 includes
death, personal injury and damage to property.
Occupiers Liability Act 1957

20. A person may be held responsible for doing a wrong
even though there had been no negligence on his part
or no intention to do such wrong or even if he had
taken necessary steps to prevent such a wrong from
happening. This is known as the principle of strict
liability and is based on a no fault theory.
STRICT LIABILITY:

21. There has to be some hazardous thing brought by the
defendant on his land.
Escape of the hazardous thing from the territory of the
defendant.
There must be a non-natural use of land.
Elements

22. compensatory and
consequential damages
Pain, suffering & loss of amenity
Medical expenses
Lost Wages
Lost Opportunity
Legal Remedies

23. * distinguished from "legal" remedies (which are available
to a successful claimant as of right) by the discretion of
the court to grant them. In common law jurisdictions,
there are a variety of equitable remedies, but the principal
remedies are:
injunction
specific performance
account of profits
rescission
rectification
Equitable Remedies

24. A special court order that compels a party to do or
refrain from specific acts.
A party that fails to comply with an injunction faces
criminal or civil penalties
Injunction

25. Equitable remedy in the law of contract or tort,
whereby a court issues an order requiring a party to
perform a specific act, such as to complete
performance of the contract. It is typically available in
the sale of land.
Specific performance

26. Act of God
A natural hazard outside human
control, such as an earthquake
or tsunami, for which no person
can be held responsible.

27. Oh My God
Shopkeeper sues Bhagwan for
earthquake in his shop.
Legal notices are sent to the
religious priests summoning
them to the court as
representatives of God on earth

28. The Man Who Sued God
Advocate Steve Myers’ fishing
boat is struck by lightning and
explodes into pieces, burns and
sinks. Steve files a claim against
God, naming church officials as the
respondents. Convinces the judge
that insurance companies' use of
the term "Acts of God" is a
misleading term.

29. Lord Hobhouse in Transco plc v Stockport Metropolitan
Borough Council as describing an event:
which involves no human agency
which is not realistically possible to guard against
which is due directly and exclusively to natural causes
and
which could not have been prevented by any amount
of foresight, plans, and care.
Acts of God in Tort Law

30. A right of use over the property of another. Traditionally t
he permitted kinds of uses were limited, the most impo
rtant being
rights of way and rights concerning flowing waters. The
easement was normally for the benefit of adjoining lan
ds, no matter
who the owner was (an easement appurtenant), rather
than for the benefit of a specific individual (easement in
gross).
Torts vs Easements

31. Dominant and servient heritages and owners. The land
for the beneficial enjoyment of which the right exists
is called the dominant heritage, and the owner or
occupier thereof the dominant owner; the land on
which the liability is imposed is called the servient
heritage, and the owner or occupier thereof the
servient owner.
THE EASEMENTS ACT, 1882
(ACT NO. V OF 1882)

32. infers negligence from the very nature of an accident or
injury in the absence of direct evidence on how any
defendant behaved.
Must satisfy elements of negligence
Res ipsa loquitur

33. The injury is of the kind that does not ordinarily occur
without negligence
The injury is caused by an agency or instrumentality
within the exclusive control of the defendant.
The injury-causing accident is not by any voluntary
action or contribution on the part of the plaintiff.
Elements of Res Ipsa Loquitur

34. Patient died after operation.
Post-Mortem found cotton swab in his abdomen.
Res Ipsa applied on surgeon.
Mahon v Osborne (1939)

35. Also known as "comparative fault" or "comparative
negligence“.
bars plaintiffs from any recovery if they contribute to
their own injury through their own negligence.
Contributory negligence

36. Pedestrian crosses a road negligently and is hit by a
driver who was driving negligently. Since the pedestrian
has also contributed to the accident, they may be
barred from complete and full recovery of damages
from the driver
Example

37. IN THE HIGH COURT OF SINDH, KARACHI
M.A.No.19 of 2011 & M.A.No.20 of 2011
Pakistan Pharmaceutical Manufacturers’ Association
Vs.
The Controller of Patents and another
Before: Mr. Justice Zulfiqar Ahmad Khan
Date of Hearing : 21.09.2016.
Appellant : Through Mr. M. Mehmood Baig, Advocate
Respondents : Through Mr. Salim Ghulam Hussain, Advocate for Respondent
No.1.
Assignment: Write summary of following judgment:
High Court of Sindh at Karachi - Pakistan