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Law of Torts
By

Mr. Farid Ullah Khan Advocate

Ex Judge

Farid Law Chamber Email: cjfarid@yahoo.com

Room 1, 2, 3 Land line: 0946-700614
Khan Plaza Gulshan Chowk Mobile# 0333 - 9462803
Mingora Swat
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1. Define Torts and state its essentials and differentiate it from

crime and breach of contract?

The word Tort is derived from a Latin word ‘tortum’ which means ‘to twist’

• Definition:
Tort is a civil wrong consisting of violation of right in rem and not right in
personum. It is therefore different from breach of contract. It generally
(normally) results in some corporeal harm for which the plaintiff may sue for
damages.

• Essentials:
Following are the essentials of torts.

a. It must be a civil wrong :

Tort is a civil wrong so therefore it is not a crime, breach of contract and
breach of a trust. Breach of contracts and breach of trusts are also civil
wrongs but they are not torts.

b. It must be the violation of right in rem :

A tort is the violation of right in rem and not right in personum. Right in rem
is such a right which is available to a person either personally or as a
member of the community against the world at large. Thus one’s right not be
defamed or assaulted is right in rem.
On the other hand right in personum is such a right which is available against
some particular person or persons and not against the world at large.

c. The right must be fixed by law:

The right which is violated must be such a right which is fixed by law
independently of the consent of parties

d. The action must be common law action:

The action available for such violation must be a common law action.

e. It must have a remedy:

There must be a remedy for such violation and such remedy
should be in the form of Damages i.e. compensation in money
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Difference between torts and Crime:

Following are the points of distinction between torts and crime:

a. Tort is a private wrong. It is the violation of private right of individual,

while crime is the violation of public rights and duties and affecting the
society
b. In torts the remedy is by way of damages while in crime the wrong
doer is punished by state.
c. In torts the injured (person whose right is violated) person
him/herself brings action while in crime the actions are taken in the
name of state.
d. In torts the proceedings are initiated in civil court while in crime the
proceedings starts in criminal courts
e. In torts the damages are payable to the plaintiff that is why its apt to
the plaintiff to bring an action while in crime prescribed punishment is
given to the wrong doer. This is a case of the state to bring the action.
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Difference between Torts and breach of contract:

Following are some points of distinction between torts and crime:

a. Both torts and breach of contract are civil wrongs.

b. Tort is the violation of right in rem while breach of contract is the violation of
right in personum.
c. Right in rems are those right which are created by law independently of the
consent of parties while right in personum are those rights in which the
consent of the parties is essential for rights under a contract. Though some
rights in personum may be created by law itself.
d. Damages in torts are un- liquidated till the decision of the court (in this the
court will have to decide that how much money would be paid. It is apt to the
court to reduce or enhance the damages) while in breach of contract generally
speaking the damages are liquidated. (In this the fixed amount of money of
contract would be paid. In this one is sure about the damages.)
e. In torts motive of the defendant is often taken into consideration while in case
of breach of contract motive of the defendant is immaterial.
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2. Define damages and what the different kinds of damages are?

• Definition
Damages are the compensation in the form of money which the court awards
for every injury (violation of right). Damage can be compensated by the
award of damages.

• Kinds of damages

Following are the various kinds of damages.

a. General damages:
In all cases of general damage, general damages are awarded

b. Special damages:
Special damages are awarded in all cases of special damage.

c. Nominal damages:
Nominal damages are awarded by court where the damage done is not of a
very serious nature. Like a rupee be awarded for a nominal damage.
For example: a person can be sued in simple trespass even when he keeps
his hand on the other’s wall with out his permission. Though it is not damage,
but it is the way of recognition of legal rights.

d. Substantial damages:
This is the actual measure of damage which is the antonym of nominal
damages. In this fair and equitable compensations are awarded

e. Contemptuous or ignominious damages:

Where the court finds that though the defendant is in fault ‘but the plaintiff’s
conducts are such that he should not be compensated so in such a case the
court awards this kind of damages.
ILLUSTRATION
“A” makes defamatory statement against “B”. “B” sues “A” for damages.
Though “A” has made such defamatory statement but “B” was indulging in
defaming” A”. “A” becomes angry and as a reaction he made such defamatory
statement against “B”. In such type of cases the court usually asks to pay a
very nominal or tiny amount of damages.

f. Exemplary damages:
These are awarded in cases of great injuries. So in such type of cases a very
heavy amount of damages are awarded. Thus exemplary damages may be
obtained in cases of seduction of a man’s daughter with deliberate fraud or of
gross defamation actuated by sheer spite of jealously.
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3. Explain the following terms:

Damage

Malice

Motive

Intention

a. DAMAGE:
By damage we mean material damage, physical damage, damage to property,
loss in business or loss of money, damage or harm to reputation.
Torts generally results in damages but not always.

Kinds of Damage;
There are two kinds of damage:

• General Damage;
General damage is that which is presumed by law to follow from the wrong
complained of.

• Special damage:
Special damage is that type of damage which is not visible to court.
For example if in case of special damage the court awards 100 rupees as
damages but you claim that you should be given 1000 rupees instead of 100
rupees.
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b. MALICE:
Malice can be divided into two kinds:

• Malice in Fact:
It means ill will, spite, hatred, evil motive etc.
No lawful action can be made unlawful on the basis of bad motive.
It is also called express malice or actual malice.

ILLUSTRATION:
“A” dugs a well on his own land and as a result the water of “B’s” well dried
up. So in such a case even if the motive of “A: while digging his well was
malicious but even then it was not unlawful for “A” to dig a well in his own
land.
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• Malice in law:
Malice in law or legal malice means the wrongful act done intentionally
without just cause or excuse. Whenever there is any attack upon any legal
rights the courts consider it malicious acts. Even though if he acts with good
motive or innocently or ignorantly.
ILLUSTRATION:
“A” without just cause or excuse induced “B’s: workmen to discontinue their
work in the breach of their contract with “B”. “A” did this with a good motive
for “B” and for “B’s” workmen. But it was held that it was an actionable tort
and that “A: was liable as much as the procurement of a breach of contract.
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c. MOTIVE:
An act which is lawful can not become unlawful merely on the basis that it
was done with evil motive. And as such an unlawful act can not become
lawful merely on the basis that it is done with good motive

ILLUSTRATION:
“X” made excavation on his own land with the intention of intercepting
underground water that would otherwise have flowed into the adjoining land
belonging to “Y”. ”Y” brought a suit against “X” claiming damages and an
injunction. it was proved at the hearing of the case that in making the
excavation “X” was actuated solely by the malicious motive of doing injury to
“Y” and to coerce them into buying “X’s” land. It was held that “X” was
entitled to deal with his land as he liked. An act which is lawful can not
become unlawful merely because it is done with bad motive.
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d. INTENTION:
A thing which is not legal injury or Wong can not be made actionable merely
it is done with bad intention. A person can not protect himself against tort
that this was not his intention to cause damage.

ILLUSTRTION:
The defendant a balloonist came down in the garden of plaintiff. A crowd of
people came to the garden and considerable damage was done to the garden.
It was held that defendant was liable. (Case Guile versus swan)
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4. Explain the following:

A. DAMNUM SINE INJURIA

B. INJURIA SINE DAMNUM

1. Damnum sine injuria:

DAMNUM means damage SINE means with out and INJURIA means injury. So
the meaning of this maxim is damage without the violation of any legal right.
In such cases though the plaintiff may have suffered considerable loss or
damage at the hands of the defendant yet he may not recover any damages
from the defendant.
Case of Gloucester versus Grammar school.
The defendant’ a school master’ set up rival school next to that of plaintiff. As
a result the students from the plaintiff’s school came to the school of
defendant. The plaintiff sued the defendant for loss. It was held by court that
fair competition in business is allowed however it may cause damage to the
other.
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2. Injuria sine Damnum:

INJURIA means injury SINE means with out and DAMNUM means damage. So
this maxim means that injury with out damage. In certain cases although the
plaintiff may not have suffered the slightest material damage yet he may be
able to recover damages from the defendant.
In case of a simple trespass where no damage done to the property but still
the plaintiff may recover damages.

For example “A” enters into the house of “B” with out his permission.
Although he has done no damage to the house’ but still “B” may recover
damages. It is trespass which is a tort.
Case of Merzet versus Williams
A banker having sufficient funds in his hands belonging to a customer, refused
to honor his cheque. Although the customer suffered no damage or loss, the
court held that he was entitled to damages.
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5. Who is disabled or who cannot sue?

Following are the persons who can not sue:

a. An alien or foreign national:
An alien or foreign national can not sue. He can only sue when he take
permission from the government.

b. Insolvent or bankrupt person:

Insolvent is a legal term and insolvents are those whose assets are less than
their debts. Official assignee or official receiver takes the property of
insolvent as a result of the order of the court.
Actually there are two torts that torts against person and torts against
property. An insolvent person can sue for torts against person but can not
sue for torts against property.

c. Felons or convicts:
Felon is the old term used for a person either he had been given death
sentence or life imprisonment or personal servitude. Personal servitude
means rigorous imprisonment. Convicts or felons can sue for personal torts
but they can not sue for torts against property.
Under Pakistani law where his property is not forfeited he can sue for torts
against his property. Under the law of UK he can only sue for personal torts
but not torts against property.

d. Minor:
A person who is under the age of 18 years is minor and thus can not sue. The
guardian can sue for him and in case if there is no guardian the court will
appoint guardian for him who is also known as next friend.

e. Corporation:
Corporation is known as legal person or juristic person like municipal
committee university. Company etc
A corporation cannot maintain an action for personal wrongs. A corporation
is liable for torts which are committed by its servants or agents. A
corporation can only sue for a tort of libel effecting the property and business
and not for others.

f. Husband and wife:

Under the law of UK husband and wife are considered one person. Each of
the two is half person and half person can not sue. Under the married women
property Act a wife can sue her husband for such property which absolutely
belongs to her. But still she can not sue for personal torts. Under Pakistani
law the husband can not sue for personal torts while the wife can sue for
both personal and property torts.
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6. Who cannot be sued?

Following are the persons who can not be sued:

a. The king Or Queen:

It is extended to all the states that heads of the states are protected to sue
against them. This is based on the Maxim “that the king can do no wrong”
that the king is innocent. But this is not a good law and has not been
appreciated by jurists. It is impossible that the king can do no wrong. The
king is human being and he can do wrong. The parliament of England passed
an Act which is called the crown proceedings Act. Under that law an
individual is allowed to bring an action against government, ministers etc.
But still the king can not be sued. Under Pakistani law president. Governors
and ministers can not be sued.

b. Foreign sovereigns:
The heads of the foreign states can not be sued, because they are protected
under international law. Under Pakistani law foreign sovereigns can be sued
after getting permission from the central government.

c. Ambassadors:
Diplomatic agents cannot be sued. They are protected under international
law.

d. Minors or Infants:
In some cases of breach of contract as well as of torts, minors are protected
by law. The minor can not be sued for breach of contract, because agreement
with minor is void. If a minor enter into an agreement with some one and if
there is one day of reaching the age of majority, even then he is protected.
But a minor is not totally protected under the law of torts and breach of
contact if there is maturity of mind so then he will be liable. Perhaps it is
possible to sue minor who is at the age of 12 years, but not a minor who is a
very small child.
There are certain torts which arise out of a contract.
Case of Genning versus Randall
An infant hired a horse. He overridden it and as a result it was injured. He
then came back and gave back the horse to the owner. The owner sued for
damages not for breach of contract but for torts. It was held that breach of
contract can not be converted into tort.
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Case of Bernard versus Hoggis

A child hired a horse for riding. He was expressly told that the horse is not fit
for jumping. But he used it for jumping so as a result the horse was killed.
The court in such case held that there was tort wholly independent of
contract which the child is answerable.

Minor can be sued under the law of torts but perhaps not.
It may not be possible that minor can be sued in every case because a very
child can not be sued.
The minor can never be sued directly but he can be sued through guardians.

e. Corporation:
Corporation cannot be sued in most cases. But corporation can be sued in
very limited ways. When the agent do an act for the purpose of corporation
so in such a case the corporation is responsible.

f. Public officials:
Public officials cannot be sued for any acts committed by them during their
official capacity. They are the representatives of the crown. But if they
commit any tort in their private life so then they are responsible for damages.

7. What are the remedies in torts?

There are two kinds of remedies:

1. Judicial remedies
2. Extra judicial remedies.

1. Judicial remedies:
Following are the judicial remedies in torts;

a. Damages.
This is one of the remedies in torts which can always be declared.

b. Restitution of property:
When the owner has wrongfully been dispossessed from his land or goods, so
in such a case person can claim restitution f property back to him instead of
damages or he can claim for both damages and restitution f property.

c. Injunction:
Usually it is called stay order of the court in which the court asks the
defendant to do or not to do some thing for which the plaintiff has requested.
It is a temporary order of the court till the decision of court or till the further
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order of the court. In case the plaintiff fails to prove his case the order is
withdrawn.
When the court orders the defendant to do some thing that is called
mandatory injunction and where the court orders not to do some thing that
is called prohibitory injunction.
The application has to be made to the court otherwise he court will not issue
stay order.

2. Extra judicial remedies:

These are those remedies which are available to a person and for which one
need to go court.
They are as follows:

a. Self-defense;
Under the law it is lawful to defend your property and person and the
property and person of any other person, if there is danger to person or
property. As a self defense you can take back your property and you need not
to go to court

b. Expulsion and Re-entry:

If some one has occupied the property of another person so he has the right
to expel this other person from immovable property and re enter his
property.

c. Abatement of nuisance:
Nuisance is where somebody creates loud noise, polluting the air, water,
obstructing the way or any thing which disturb public heath. So in such type
of cases the injured party has the right to remove the disturbance. But in
such a case one has to give notice before. Under the law after such notice he
is allowed to trespass the properly of other and remove the nuisance.

d. Re caption:
It is something like restitution of property without going to the court. For
example if some one has taken your book so you have the right to take back
from him your book,

e. Distress damage peasant

Distress is an old English word used for detention. In the olden days where
the tenant fails to pay the rent, the land lord used to keep from him some
valuable movable property. This was known as detention.
Where a person’s animals come to the fields of other person, and do some
damage to field or eats grass. So in such type of cases the Land lord has the
right to keep the animal with himself and claim the damages from the owner
of the animals.
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8. What are the general defenses available to a defendant to an

action of tort?

Following are the general defense available to defendant in action of tort;

1. SELF DEFENCE
Everyone has the right of self defense. It is available
to both plaintiff and defendant.

2. VIS-MAJOR:
It is Latin term which means act of God. No one can be held liable for an action
which occurred due to an act of God.
For example where a person enters into a contract with a person to build a
house for him, after building the house earth quake came and the building fell
down. The owner of the house in such a case can not claim damages from the
builder of the house. Because the earthquake is, an act of God.

3. Act f State:
It has a very special meaning. It means that when any government official
servant takes any action which amounts to torts against any foreigner, so in
such a case this is a good defense with such official.
The example is where the police are ordered by the government to arrest
foreign spies. In the course of such order where a police man sees a person
who has a radio just near to his ear and listening to commentary on a cricket
match and the police arrest such person on the grounds that that he is a
foreigner and he has a wireless through which he is spying.. The police man
arrests him and takes him to police station. And later one it proves that he
was just listening to the cricket commentary on the radio and as such was
innocent. And after that the foreigner brings an action against such police
officer for damages for being remained in police station for some time, so in
such a case the foreigner/plaintiff can not succeed because it was an act of
state.
But if there is no such order from government to the police to arrest the
foreign spies and if a police man suspects someone and takes him to police
station and keeps him there for more than 24 hours. And later when it proves
that the person is innocent. So in such a case the person arrested is entitled
to claim damages from police officer.
If such officer takes the plea that he did such an act for state or government,
even then he is liable. His illegal act can be legalized by rectification
(Correcting what is incorrect) where they say that the policeman was a
polish man lets rectify his act.
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Action of the state does mean that every act of the state. But some particular
acts in times of war and emergencies that sate can take actions. Those who
are affected from such actions can not bring suits for damages.

CONDITIONS FOR THE ACT OF STATE:

There are three conditions for the act of state;

1. The person who takes such action must be authorized by state.

2. The action should be taken against aliens i.e. foreign nationals. It should not
be against own citizens.
3. It should be taken in certain times like in times of emergency or war.
4. Executive or administrative acts:

There are certain actions which the executive take against its own citizens.
The executive takes such actions on behalf of government.

For example a police officer may arrest anyone whether foreigner or his own
citizens without warrant under certain circumstances but not in all cases. If
there is an unlawful assembly and the assembly is looking dangerous. The
police can use the force and can also shoot them if it is very dangerous.
Because here the situation was such that if was not dispersed it would have
been very dangerous. So in such a case the police are protected by law and it
is one of the good defenses to an action for tort.

5. Statutory authority:

Statute means any law passed by parliament. It is also called enacted law. So a
person who has been authorized to do certain acts by statute is legal and no
action can be brought against such acts. Like radio Pakistan is authorized by
statute to make work. If some one sues radio Pakistan for nuisance his suit
will fail because radio Pakistan is authorized to do so. If a factory is making
smoke and is authorized by statute no action for Nuisance or air pollution
can be brought against such factory.

6. Judicial act:

Anything said or ordered by the judge during the course of performing his
duties is called judicial act. It is not necessary that it is correct or wrong.
Judges have got hundred percent protections.

Suppose the judge sentences a person who was innocent. And every one
knows that that person was innocent and that the judge has taken his old
revenge from such person and the judge has given an absolutely wrong
decision. But even then the judge can not be sued though he can be removed
from his service on the basis of an administrative action. The same immunity
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which enjoys judges is also extended to Military and naval courts and courts
of inquiry arbitrators, and jury men. There is no distinction between superior
and inferior courts.

7. Quasi-judicial acts:

It means semi judicial acts. It is not exactly judicial but some thing similar.
For the sake of arguments it can be said that this act has 95% protection. For
example when some persons are appointed for departmental inquiry to
investigate of any corruption or any misconduct on the part of employees, so
that is know as quasi judicial. These quasi judicial authorities are protected
by law. But they do not have 100 % protection. Under the law there is some
case where damages can be recovered from them. If inquiry is false or wrong,
so in such cases they are protected and they can not be sued. But if it is
proved that the inquiry was malicious so malice is not protected and they can
be sued for damages.

8. Parental authority:

This is a kind of authority available to parents to use force against their

children provided it should be done to a reasonable limit. So such a parental
authority is protected by law. Some parents are so strict that they use
excessive force against their children so such acts are not protected. What is
reasonable limit and what is not is a question of fact which can be gathered
from the circumstances of each and every case.

9. Quasi parental authority:

Quasi parents are those who are the guardian of children. This authority is
available to guardians. Under this the teachers use this authority. The
guardian has to exercise this kind of powers within reasonable limits

10. Act of necessity:

An act which is performed in times of emergency and which is unlawful in
normal circumstances is called act of necessity.
The things which are unlawful in normal circumstances become lawful in
times of emergency.
For example where a house caches fire so in that case trespass is lawful
provided if there is no alternative.

11. Authority of necessity:

Authority of necessity means where a thing is not with in the authority of a
person but which become necessary in time of emergency.
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For example a dispenser is not authorized to inject a person without the

prescription of a physician. But if a person has a very severe pain and he is
dying of such pain and the dispenser inject him without proper prescription.
So his authority become authority of necessity and is protected.

12. Slight Harm:

When the harm suffered by the person is so slight that no man of ordinary
prudence can take into account.
For example if someone keeps his hand on the wall of another with out his
permission it is also a simple trespass. In such cases the defendant is usually
protected.

13. Inevitable accident:

Inevitable accident is that accident which is unavoidable, which impossible to
be avoided by a reasonable man.
For instance if there is a hidden defect in the vehicle and the driver does not
know about such defect and an accident occurs and some one gets injury. So
in such a case the plaintiff can not succeed in his suit for damages against the
driver..

14. VOLENTI NON FIT INJURIA:

This maxim is also known as leave and license. This maxim means that any
person who suffers any harm voluntarily can not complain against it.,
Because in this the person already gives his consent.
For example if two boxers agrees to have a boxing match between them. As
such kind of game is injurious game and if in case one of them gets injury and
dies the other will not be responsible for him.
In case of patient’s operation the patient also agrees with Doctor by
signing an agreement with doctor and gives consent for operation. So in case
if the patient dies during operation the Doctor will not be responsible for this
because the patient had already given his consent.

• KINDS OF CONSENT:
It is of two kinds;
a. Express consent:
Express consent means that the expression made either verbally or
in witting form. For example in the above illustration the patient agrees with
the Doctor in writing by signing the agreement. This is known as express
consent.

b. Implied consent:
Implied consent is that consent which can be inferred from the conduct of
parties.
For example if a person goes to a shop and from there he take a packet of
cigarette and keep the price on the counter so this is the implied consent
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neither the buyer nor the shop keeper say any thing nor they write any thing
so this is implied consent
Case of hall versus Brokland
This case was regarding cricket match. The plaintiff purchased a ticket to
watch a cricket match. When he went to stadium and was watching a match,
the batsman hit a high six which hit the plaintiff on the head and he got
injured. The plaintiff sued against the player and against the management.
After hearing of the case it was held that he can not take damages from the
player and the management, because when a person buys a ticket for a game
he must have to know that what sort of dangerous game is this and this was
implied consent on the part of plaintiff. So volenti non fit Injuria applied here.

Exceptions to this maxim:

There are three exceptions to this maxim.
a. Acts declared by law unlawful:
This maxim does not apply to that act which is declared by law as unlawful.
For instance when “A” says to “B” to take this pistol and kill him. So this is
such type of act which is declared by law as unlawful.
So here this maxim will not apply.

b. Breach of statutory Duty:

Statutory duty means any duty which is imposed by statute.
Thus it is no answer to claim by a workman against the employer for injury
caused through a breach by the employer of duty which is imposed a statute.

c. Cases of negligence:
This maxim will not apply in cases of negligence.

CASE OF HUPER VERSUS HORWOOD

In this case the defendant left his horse negligently. It was running very
dangerously and if it was not tamed it would have caused damaged to the
children. The police asked the plaintiff to tame the horse and he while taming
horse, got some injuries. He sued for damages against the defendant. The
defendant took the plea of VOLENTI NON FIT INJURIA. But the court held
that that the defendant is responsible because he has left the horse
negligently.
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9. Write a detailed not on vicarious liability;

• Meaning:
Vicarious means through another source, through someone else, not
personally, indirectly not directly so vicarious liability is a liability not for
one’s wrongs but for the wrongs of others. The most common instance of this
is the liability of master for the wrongful acts of their servants.

Vicarious liability arise in the following three ways

1. Liability of abetment:
It means to incite, to instigate, to help someone, to do wrongful acts which are
declared by law as unlawful.

2. Liability by rectification:
Rectification means correcting something which is incorrect or authorizing
something which are unauthorized.
For example: An act done for “B” by “A” not for himself but for”B”. Such act
becomes the act of principal “B” if subsequently ratified by “B”:.

3. liability arise out of special relationship:

There are certain special legal relationships where a person is held liable for
the wrongful acts of others.
They are as follows;

• PRINCIPAL AND AGENT:

The principal will be held liable for the wrongful acts of the agent, where he
does the act in the course of employment, Or if it is beyond the scope of
agency if it is authorized by the principal or later on ratified by principal.
The motor factory in Japan is the principal and their branch in Pakistan is the
agents of such factory. So whatever the agent does he does it on behalf of the
principal. So the principal will be responsible for the wrongful acts of his
agents.

• LIBABILITY OF SURETY:
The surety is liable for the wrongs committed by the person for whom surety
stands as surety. This surety liability also arises in criminal aw in bail
matters.

• FIRM AND PARTNER:

Each one of the partners of firm is liable for the wrongs committed by their
other partners.

• COMPANY AND DIRECTORS:

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Companies are liable for the torts committed by their employees in the course
of their employment. Directors are personally responsible for any torts
which they themselves commit or direct others to commit irrespective of the
fact that it may for the benefit of the company.

• MASTER AND SERVANT:

A servant is a person who agrees voluntarily whether for wages or not to be
on service under the control of his master.
A master is a person who is legally entitled that the servant would be under
his control
A son is not a servant under the law.

PRINCIPLES OF VICARIOUS LIABILTY:

Vicarious liability is based on the following principles

a. QUI FACIT PER ALIUM FACIT PER SE:

This maxim means that he who performs any acts through another person is
deemed to have performed it by himself. This is one of the basics reasons for
which master is held liable for his servant’s wrongful acts.

b. RESPONDANT SUPERIOR:
This maxim means that let the superior respondent answerable and liable.
Between the master and servant the master is superior because the master
has the element of control.
Usually the master is richer then the servant, but it may not be the case
always. In very rare cases the servant will be richer then the master.
A master is held liable for the wrongful acts of his servant which the servant
has committed during the course of employment.

10. What is meant by course of Employment?

Course of employment means any act of the servant for the benefit of master,
provided;

1. The act is authorized and it is performed in an utothried manner.

2. The act is authorized and it is performed in an unauthorized manner.
3. Any act of the servant performed by him of his implied authority
4. Any act of the servant for the benefit of the master in an emergency when he
has no recourse of his master.
 19

The only thing which the court sees in such type of cases that, whether the act
was authorized or not.
For example the driver of the car is authorized by the master to drive the car,
but if he commits accident so for that the master will be held liable for the
torts of his servant, because the accident happened during the course of
employment.

CONDITIONS:
There are two conditions for the course of employment.
a. That the act must be authorized,
b. That it must be for the benefit of the maser.

11. Define master and servant and what the different kinds of
liabilities are?

SERVANT:
A servant is a person who voluntarily agrees, whether for wages or not, to
subject him all times during the period of service to the lawful orders and
directions of another in respect of certain work to be done.

MASTER:
A master is a person who is legally entitled to give such orders and have them
obeyed. The relationship of master and servant exist only between persons
of whom the one has the order and control of the work done by the other.
Son is not the servant of his father.

• ”A” is a master and”B” is a servant, a driver. Due to “B’s” negligence “C”

received injuries.” C” sues the defendant “A” For damages and thus got
compensation from ‘A’ (the master).

• “B” a taxi driver” A” is passenger.” A” enters into a contract with “B” that I
will pay you 100 rupees if you take me from swat to university. “B” agrees,
but on the way due to”B’s” negligence an accident takes place who will be
held liable?
The reason is that in the first case the element of control of one person on
another is present and that is why master is liable for the wrong committed
by the servant.
However in the second case the relationship between the two persons is that
of an employer and independent contractor that is why the taxi driver will be
held liable for tort –wrong committed by him and not the passenger.

_________________________________________________
 20

FOUR KINDS OF LIABILITIES

a. MASTER LIABILITY TO THE THIRD PERSON FOR TORT COMMITTED BY

HIS SERVANT

A master is held liable for the wrongful acts of his servant, only when the
servant has performed the act during the course of employment A master is
not held liable if the act of the servant does not fall with in the course of his
employment.
Course of employment means
1 Any act of the servant authorized by the master and performed in a proper
or authorized manner.
2 Any act of the servant authorized by the master but performed in an un
authorized manner
3 Any act of the servant by implied authority
4 Any act of the servant for the benefit of master in an emergency when he has
no recourse of his master
In other words the master will held liable for any act of damaging
dependent/plaintiff provided the act is authorized by the master expressly or
impliedly whether it is performed in authorized or in an unauthorized
manner

PROBLEMS

CASE (JOEL VS MORISON)

• The defendant had a driver he asked the driver to drop him at office and then
pick him 3.00 o’clock back to home and lock the car in the garage and then go
home. one day the driver after locking the car in the garage, the driver came
back without the knowledge of his master (the defendant) and took the car
out of the garage and went to his home and there he took his meal/and while
coming back on his way to the masters house an accid4ent took place due to
the negligence of him (the driver). The plaintiff suffered injuries and sued the
defendant for damages discuss the right of the parties.
Answer:
The defendant will not be held liable for the act done by the servant because
the driver was not acting in the course of his employment

Case (Robert versus shanks)

• After getting down from his car the defendant ordered his driver to lock the
car in the garage. The driver however drove the car to his residence where he
took his meal and while coming back to the garage, negligently drove the car
into the plaintiff’s car and caused damage to his car.
Discuss the rights of the parties.
Answer:
 21

The defendant is liable for damages because the driver was acting during the
course of his employment.

case (Story versus Alston)

• The defendant, a wine merchant, sent a clerk and a car man in his carriage to
deliver some wine. It was the duty of the car man after having delivered the
wine and receives the empty bottles to drive back direct to the wine factory.
But instead, on the persuasion of the clerk, he drove in quite a different
direction. On the way accident happened to the plaintiff arising to the
negligence of the car man.
Is the defendant liable?

Answer:
The defendant was not liable because the driver was not acting with in the
course of employment. His duty was to deliver the wine and carry the empty
bottles to the factory and if he has merely going around about way to factory,
the master would have been liable. But if he had started on entirely new
journey on his own account or his fellow servant’s account, he could not in
any way’ be said to be carry out his master employment.

case (Cheshire Versus bailey)

The plaintiff’ a silversmith’ engaged the defendant’s motor car and driver, for
the purpose of being driven about a big city with samples of silver ware to be
shown to customers. While the plaintiff was temporarily absent from the car
in the course of business’ the drive acting in collusion with certain thieves
drove the car into the corner where of samples were stolen by the thieves.
The plaintiff sued the defendant for the value of the goods. DISCUSS
The defendant, who is the employer of the diver, is not liable. The driver’ in so
conspiring with thieves, being no longer acting with in the scope of his
employment.
In vicarious liability we must look to act, whether the act is authorized by
maser or not. If it is authorized act then the master will be held liable,
otherwise he will not be held liable for any wrong committed by the servant.

case (Gregory versus piper)

• The defendant and the plaintiff were the neighbors and there was a dispute
between them as to the right of way. In order to obstruct the plaintiff from
using the way, the defendant ordered his servants to place rubbish across the
path way, but to dispose off so carefully that it should not touch the plaintiff’s
 22

wall. The servants executed the orders of the master carefully but heaped up
rubbish began to shingle down in course of time with the result that a
portion of it touched the plaintiff’s wall. The plaintiff sued the defendant for
trespass. The court held that if what the servant did was what he was
authorized to do and if the wrong was the natural consequence of something
done by the servant however carefully. It might have been done; the
defendant would yet be answerable.

case( Williams Versus Jones)

• The defendant employed his servant, a carpenter to make a sign board in a
shed lent by the plaintiff. The carpenter, in lighting his pipe while so engaged
negligently set fire to the shed.
Is the defendant liable for loss to the plaintiff?
Answer;
The defendant was not liable, there was no negligence while making the sign
board (the master’s business). Only smoking the pipe( servant’s business).

Case(Driver versus Company)

• The driver of the defendant company’s omni bus willfully and contrary to the
company’s express orders forbidding races and obstructing others. Omni bus
drove across the road in order to obstruct the plaintiff, s buss and caused it to
upset. Discuss whether the defendant, s company is liable?
Answer
The company was liable; far the act of driving was not inconsistent with his
employment, when explained by his desire to get before the other omnibus

b. LIABILITY OF SERVANT TO THIRD PERSON:

A servant is not liable for any harm done by him on his master’s behalf except
in criminal cases.

c. LIABILITY OF SERVNT TO HIS MASTER:

A servant is no doubt, liable to his master (though not to others) for the
consequences of his wrongful omissions. If damages have been received from
the master by reason of servant, s negligence in doing the master’s work (or
in executing his orders) such damages can be recovered by the master from
the servant.

d. MASTER, S LIABILITY TO THE SERVANT:

A master will be held liable for his own negligence.
It is master’s obligation;
a. To provide proper appliances to his servant.
b. He must keep the premises safe for his servants.
c. He must protect one servant from any injury by another servant.
__________________________________________________________________________________________
 23

12. Discuss absolute liability or strict liability or the rule in

Rayland versus Fletcher case:

MENS REA means guilt of mind. All intentional acts falls within mens rea.
If an act is done intentionally or negligently it constitutes an offence. If
intention or negligence is there MENSE REA is constituted. If either of the
two conditions is not present then the person can not be held liable.
But in the case of absolute liability the condition of MENSE REA is not
applicable

RYLAND VERSUS FLETCHER:

Both the defendant (Rayland and the plaintiff (Fletcher) were the neighbors.
The defendant constituted a reservoir upon his land by an independent
contractor, Whose men while working discovered some disused
shafts(passages) communicating with old working of mine in adjoining lands.
The shafts and passages have been filled with loose earth and rubbish. The
contractors did not take the trouble to pack these shafts and passages with
the earth so as to bear pressure of water in the reservoir. When filled shortly
after the construction of the reservoir, even when it was partly filled with
water, the vertical shafts gave way burst downwards. The water damaged the
property of the plaintiff. The plaintiff sued defendant for damages. No
negligence on the part of defendant was proved. The only question whether
the defendant would be liable for the negligence of the independent
contractor employed by him. Who was admittedly a competent Engineer?
The question of negligence was quite immaterial. The defendant in bringing
water into reservoir was bound to keep it there at his part.
The principle of MENSE REA will not be applicable in such a case and the
defendant would be held liable, because the principle is “ if the defendant
keeps any thing dangerous and if it escapes and causes damage to the person
or property of anther then the defendant will be held liable and the principle
of MENSE REA will not be applicable

Exception to this rule:

The following five are the exceptions to this rule;

1. VIS MAJOR OR ACT OF GOD:

This rule does not apply where the escape is due to vis major or act of God or
the operation of some superior force before reasonable exception or human
control.
Act of God or Vis major is defined to be such a direct, violent, sudden and
irresistible act of nature as could not by any ability have been foreseen or if
 24

foreseen could not by any amount of human care and skill have been
resisted. Suppose if the water tank burst due to earth quake or floods the
defendant will not be liable.

2. FAULT OF THE PLAINTIFF:

This is rule does not apply where the escape is due to the fault of the
plaintiff’s own fault. Suppose the tank burst due to some act of the plaintiff so
in such a case the defendant would not be held liable.

3. FAULT OF THE STRANGER OR THIRD PERSON:

This rule is inapplicable where the damage is due to the fault of a stranger or
third person. For example “A” has a dog. “B” comes and incites “A’s” dog on
“C”. And as a result “C” gets injuries. “A: can not be held liable.

4. CONSENT OF PLAINTIFF:

The rule of strict liability is inapplicable in cases where any thing is kept on
the defendant’s land with the consent of the plaintiff for the common benefit
of both plaintiff and defendant.

5. STATUTORY AUTHORITY:

When an individual is allowed by statute to bring or keep upon their land a

dangerous substance, so in such case he will not be liable for damage caused
by its escape.

For example factories are working under the statutory authority that is why
their owners can not be sued for the smoke coming out of their factories
irrespective of the act that it I dangerous.

_________________________________________________________________________________________________

13. Discuss liability of owners regarding their animals.

The second kind of tort relate to the liability relates to escape of animals.

Animal can be categorized into the following:

1. Dangerous:
 25

2. These animals are those which are of very dangerous character. Like Tiger,
Lion, bear, wolf, ape, and an elephant.

3. Non dangerous:

These are such kind of animals which are no dangerous but which can
become dangerous. Like dogs, bulls, horses, and rams etc.

4. innocent:
Innocent animals are poultry, birds, and rabbits etc.

Those who keep dangerous animals have to keep it under control. And
whenever it causes damage to any person, the owner of such animals will be
absolutely liable irrespective of the fact that whether the owner was
negligent or not.
Animals which are not dangerous but some times they become dangerous. In
case where the owner has SCIENTER (Knowledge) that animals he keep have
become dangerous
Then he is responsible.

Innocent animals’ cannot become dangerous .But the owner of such innocent
animals will be held liable in only one case of trespass.
For example some body keeps poultry and it goes to the fields of another and
destroys the crops, food, or vegetable etc. so in such case the owner will be
held liable or trespass.

_________________________________________________________________________________________________

14. Discuss liability regarding keeping dangerous premises;

Occupiers of premises have certain duties and liabilities toward cretin types
of persons. They vary according to these persons who may be.

1. Those who enter as a matter of right:

Those who enter premises as a matter of right have been lawfully authorized.
For example police man with warrant, meter reader, tax collector etc.
They cannot be held liable for trespass because they have been authorized.
For the people who enter such premises, the occupier has the duty to ensure
safety for them.
For example a police man enters into premises of a person with out the
permission of occupier but with the permission of law. So in such a case the
liability of occupier is absolute. If a police man enters into a house of a person
 26

he is absolutely liable for any damage done either by patent or latent defect,
known to the occupier or some defect which he could have discovered.
Defect is of two kinds:
a. Patent: A kind of defect which is visible, apparent, or easily discoverable.
b. Latent: A kind of defect which is hidden but known to the occupier or
some defects which he could have discovered.

2. invitees:
Invitees are those people who are invited in which the occupier is interested.
A customer, who goes to a shop, is invitee, because the shop keeper has
interest in him.
So it is the duty of the owner to inform the customer from any patent or
latent defect known to the occupier or that which he could have discovered.

CASE: CATES VERSUS MONGIN

The plaintiff was setting in a restaurant. Suddenly the ceiling of fan fell down
and as a result the plaintiff suffered injuries. The plaintiff sued the owner of
the restaurant for damages. The defendant took the plea that he did not
know about the defect in the suspense or rod which caused the fall of the fan.
The court held that the defendant was not liable for injuries from dangers
which are not discoverable by the exercise of reasonable care.

3. Licensee:

Licensees are those people who have been permitted to enter into premises.
They have to be informed only about the patent defects and not latent
defects.

CASE: FAIRMAN VERSUSPERPETUAL INSURANCE:

The plaintiff while going upstairs due to some irregular depressions which
were scoped out in the cement, suffered injuries. Because her heel caught in a
depression so firmed and fell. The plaintiff filed a suit against the defendant
for damages.

In this case it was held that the defendants were not liable because the only
duty of owner in this case is to give her warning against any latent defect, the
depression which caused the plaintiff to fall was obvious and could have
been seen by her if she had looked.

4. Trespassers:

A trespasser is a person who enters into a property of another person

without any right or permission. The owner is not responsible when a
 27

trespasser gets injury. The owner will be held liable in case where he set trap
for him intentionally and deliberately therefore a trespasser can expect no
care o warning from the occupier with regard to a dangerous state of the
premises. But the occupier must not intentionally create dangers for them.
Law as to juvenile trespassers:

In trespass cases the can be differences of trespass of children and adults. If

children re trespassers the only duty of owner is not to injure them
intentionally or to put dangerous traps for them. He is under no liability If in
trespassing they injure themselves.
But if dangerous things re placed on the land and the owner place no warning
and caution for children and if they suffer injuries then owner will be held
liable.

CASE OF TYLOR VERSUS GLASGOW:

The plaintiff’s son enters into the defendant’s garden. There was no
restriction upon visiting the garden. He, along with his some other friends,
went to the garden and there ate berries from tree which was poisonous and
as a result he died. The defendant knew that the barriers are poisonous but
he took no precautions to warn children about such danger.
In this case the court held that the defendant was liable because there was no
restriction upon entering into the defendant’s garden and the defendant
knew that children are easily attached to barriers and the barriers were
poisonous.

15. write a detail note on tort NEGLIGENCE:

Negligence is greatest tort against person and property. About eighty percent
torts are the result of negligence. Negligence is from the verb neglect, ignore,
omit, disregard, overrule and the antonym of negligence is care.
So negligence is simply neglecting of some care which are bound by law to
exercise towards somebody. Law imposed certain duties on every individual
and the law say to do such duties with care.
So it is clear that negligence is the omission of duty of care and where any one
fails to perform his duty of care is guilty of the commission of the wrong of
negligence.
Now the question arise that what is the duty of care? And how much care
should be taken.
It is quite clear from the example of a Doctor, who is looking after three
patients. One of simple fever, the other is the patient of kidney and the third
 28

one is the patient of heart. So here the Doctor has duty of care to all the three
patients. The doctor should be careful in treating the fever patient, he should
be more careful in treating the kidney patient while he should be most acre
full in treating the heart patient.
So in all of the above three cases the duty of care varies.
Some time in some particular situations the duty of care of different persons
is different from one another. For example a Doctor is operating a heart
patient and a Nurse and Attendant of patient are also there. Here all the three
i.e. Doctor, Nurse and attendant has to serve their duty with care. So here the
duty of care of Doctor is more than the Nurse and that of Nurse is more than
the attendant. So we found that the duty of care varies from situation to
situation from individual to individual and from circumstances to
circumstances, but the standard however remain the same.
Now what is the STANDARD? That standard is reasonable care. So a person
should take as much reasonable care as a reasonable person take.

• KINDS OF NEGLIGENCE:
Following are the various kinds of negligence.
1. Advertent Negligence:
In case of advertent negligence the person in negligence knows the coming
consequences. That where a person can anticipate that the consequence of
his act will be that or simply knowledge of the consequence.

2. Inadvertent Negligence:
In case of inadvertent negligence the person does not know about the coming
consequences. Here he is not in position to understand what would happen.

ILLUSTRATIONS:

• A person driving his car at a very high speed can easily anticipate that his
over speeding can cause accident. This is an example of advertent negligence.
• A person who is driving and he is absent minded that he is physically present
but mentally absent. In such circumstances if an accident took place so that is
inadvertent negligence.

In the first case the person knows that his act will or possibly result in a
wrongful accident. In the second case the person did not know about the
consequence of his act. That is why danger in the first case will be more than
the second case.

ESSENTIALS FOR PROVIMG NEGLIGENCE

To succeed in action for negligence the plaintiff must prove;

 29

1. That the defendant was under the duty of care (a person can prove
carelessness if he first proves care)

2. That the defendant owed that duty to the plaintiff (it may be contractual duty
or non contractual duty. When a person is operating by the Doctor that is
contractual duty and when the driver is on care to those who go on foot path, is
a non contractual duty.)

3. That the defendant violated that duty. In case of negligence this is the crucial
point.
Exception: But where the circumstances of the case are so obvious that the
Plaintiff need not to prove the breach of duty.
4. That the defendant’s negligence was the direct cause of damage.
For example when you are driving negligently and a man is coming fast to cross
the road and if he is. deaf this is the direct cause of damage

5. The plaintiff has to prove that because of this damage the plaintiff is entitled to
damages.

DEFENCES IN CASES OF NEGLIGENCE:

Following three defenses can be raised in action for negligence.
1. Act of God / VIS MAJOR
Act of God is defined to be such a direct, violent, sudden and irresistible act of
nature as could not by any account of ability have been foreseen or if foreseen
could not by any account of human care and skill, have been resisted, for
example storm, earthquake, or flood.

2. INEVITABLE ACCIDENT:
The second defense in an action for negligence is that of inevitable accident.
An accident which is unavoidable which is impossible to avoid by a reasonable
man is called inevitable accident.
If there is a hidden defect in the engine of a car and the deriver does not know
about the defect, and at the way it causes accident and some one gets injury. So in
such circumstances the situation is such that an accident can not be avoided.

3. Contributory Negligence:
Contributory negligence means negligence in which both the parties (plaintiff and
defendant) have share. Any negligence which is the result of contribution of both
parties, in simple words any case where both the parties are at fault. In such type of
cases the defendant will have to pay damages according to or in accordance to his
negligence. And if it is proved that the plaintiff was negligent, then the defendant
will not have to pay any damages.
 30

Exceptions:
Contributory negligence is a good defense but it will however not apply in certain
cases.

a. In cases where the plaintiff depends entirely upon the care and skill of the
defendant.
Case Gee Versus Metropolitans Railway co.
In this case the plaintiff was traveling in a train of the defendant company. He was
standing at the doors of the train and was looking out side. The doors of the train
were not properly fastened, but were made negligently. Suddenly the plaintiff took
out his head and the door plunge opened and the plaintiff fill down and got injuries.
The plaintiff brought a suit against the railway company for damages. The defendant
took the plea that if the defendant was negligent but the plaintiff would have to be
careful before using the door.
The court held that although the plaintiff might have been negligent but it is the duty
of the defendant to fasten the door properly and in this case the plaintiff was
entirely relying on the care and skill of the defendant.

b. doctrine of last opportunity:

Where the defendant has the last opportunity to avoid an accident, that is called the
doctrine of last opportunity.

Case Davis versus Mann:

In this case the plaintiff left negligently his donkey with his leg tied in a narrow
street. The defendant while coming in his car at a smart or normal pace negligently
ran over the donkey.
The plaintiff brought a suit against the defendant for damages. It was held that the
plaintiff was entitled to damages although he might also be negligent to leave the
donkey in Narrow Street. But still the defendant was liable because he had the last
opportunity to avoid the accident.

c. Doctrine of alternative danger:

Where the defendant has put the plaintiff in a dangerous situation, He can not
setup the defense of contributory negligence merely because the plaintiff acting
under a reasonable apprehension of danger tried to escape in a dangerous way.

Case of Jones versus Boyce;

In this case the defendant was driving a coach very negligently. Suddenly a car came
from opposite side and an accident seemed imminent. The plaintiff, in order to save
himself, jumped out of the coach and suffered injuries. He brought a suit against the
defendant. The defendant took the plea that he did not ask the plaintiff to jump out
of the coach. If the defendant was negligent the plaintiff was also negligent.
The curt held that although the plaintiff jumped out of the coach according to his
own sweet well, but the defendant put him in such a situation that he was not to
decide what to do. Although the accident did not take place but it was so imminent
 31

that an accident might happen, keeping the fact of accident in mind he jumped out of
the coach and received injuries.
So the defendant was held liable and his plea of contributory negligence was
dismissed.

d. Admiralty convention:
The doctrine of contributory negligence does not apply where two ship collies with
each other. Te doctrine of contributory negligence is unknown to the maritime law
administered in court of admiralty jurisdiction.

e. Children:
The doctrine of contributory negligence does not apply to children. It is no defense
to say that the child himself was negligent. Because the state of mind of children is
such that they can not differentiate between good and bad and what is negligent
and what is not.

Case (1) Lynch versus Nurdin:

In this case the defendant has left his horse and cart untenanted in a street where
some boys were playing. The plaintiff (a boy) climbed into the cart while the other
moved the bridle. The horse moved down and the plaintiff fell down and received
injuries.
The court held that the defendant was liable because he left the horse and the cart
unattended and the boys not knowing the consequences of their act.
Case (2) Glasgow Corporation versus Taylor:
This case has already been mentioned before.

16. Define nuisance discuss and differentiate its kinds. What are
the remedies and defenses?

Whoever possesses certain immovable property have certain rights attached

to it, so that he might enjoy his possession peacefully. And when whoever disturbs
such rights is called nuisance, or any thing which creates danger to person and
property comes under nuisance.
OR

• NUISANCE IS;
a. Unnecessary annoyance for example neighbors creates disturbance by
watching television at a high speed at midnight, so that one is disturbed.
b. Where some one creates obstruction to another person so that the other
person might not be able to go on from a certain way.
c. Where from a factory poisonous smoke come out. So these are
dangerous things.
 32

The person who is in possession of such property can bring a suit or nuisance.

• KINDS OF NUISANCE:
Following are the two kinds of nuisance.

1 Public nuisance:
Public nuisance is that nuisance which affect the public generally. For
example’ when some body puts obstruction in the general road, which is
dangerous for public.
No one can sue for damages for pubic nuisance except in cases where the
individual (plaintiff) proves that he is more affected by public nuisance then
the rest.
In Pakistan the Advocate general or Attorney general can sue for damages
only.

2 private nuisance:
Any nuisance which affects any right necessary to the right of possession of
immovable property is a private nuisance. Under the law of torts we are
concerned only with private nuisance.Private nuisance causes damage
either to person or property.

• Difference between public and private Nuisance:

Following are the points of distinction between pubic and private nuisance.
1. Public nuisance affects the public in general while private nuisance affects
the individual only.
2. No private individual can sue for public nuisance damages except where he
suffered more substantial damage then the others while plaintiff himself can
sue for damages in private nuisance. Here the person who is in possession
may sue.
3. Public nuisance is punishable under Pakistan penal code and there should be
declaration of injunction and not damages while in private nuisance the
remedy is injunction as well as damages.
4. No one can abate (to remove) public nuisance i.e. individual or public in
general while private nuisance may be abated by the plaintiff himself.
5. No account of prescription can legalize public nuisance while private
nuisance may be acquired through prescription.

Prescription is the lapse of time which puts the case in favor of the defendant.
Suppose a right for the suit of private nuisance is available for a period of 20
years. But if no body objects with in such period then the nuisance becomes legal
and no one can sue to stop such nuisance.
 33

For the suit of nuisance the plaintiff must prove the following two conditions.
• That he is in possession of immovable property in favor of which
stopping of nuisance is claimed.
• That there is actual and substantial damage to him.
Remedies:

Following are the various remedies available in case of nuisance.

a. Damages:
The first remedy available to a person for nuisance or in any case of tort is the
claim for damages.

b. Injunction:
The second remedy available to a person in case of nuisance is injunction.
Injunction is the order of the court asking the defendant to do or to refrain from
doing the act for the time being, or tell the decision of the suit, or for ever.

c. Abatement:
The third remedy available to a person in case of nuisance is abatement.
Abatement is a right available to a person to abate, to remove or to stop the
nuisance with out going to court. It is an extra judicial remedy. But the removal
must be peaceable. First one has to give notice before entering the property of
another.

ILLUSTRATION;
• “A” manages tree on his land which largely spread over the land of “Z”. “Z”
without giving notice to “A” cuts up the overhanging branches of the tree.
“A” sues “Z: for damages. Here in this case the suit of the plaintiff will fail. A
nuisance may be abated and removed. “Z” can cut the branches with out
notice. But the cut up branches would be returned to “A”.

DEFENSES:
The following are he various defenses to an action for nuisance.

1 charter or grant:
It is a special p[permission granted by law. For example BBC is a special charter
granted by law.

2 Statutory authority:
Statutory authority means that any thing which is allowed/authorized by law.
For example that where company is allowed by law’ to make nuisance.
 34

3 Prescription:
Any nuisance continuously existed for a term of twenty years and without any
interruption. Such nuisance after the lapse of such a long period becomes legal.

CASE: SURGES VERSUS BRIDGMAN:

Defendant has used certain heavy machinery for more than 20 years for his
business. Plaintiff, a neighbor and a physician, constructed consulting room in
adjoining the defendant’s property and then found him seriously incontinent by
the noise of defendant’s machinery. The plaintiff then brought a suit against the
defendant for the removal of nuisance.
In this case the suit of the plaintiff was decreed and it was held that since the
time runs not from the date when the cause of nuisance began but from the date
when the nuisance began.

17. Discuss trespass to goods and what are the remedies and
defenses?

Trespass to good means;

• Taking away movable property from the plaintiff, with out any intention to
deprive him from his possession even for a short time. But if you deprive
someone from his property with the intention then that amounts to theft.
For example when you take away someone’s bicycle with out his permission and
after you give him back. It is trespass to movable property.
• Damaging or destroying the plaintiff, s property, even if the damage is very
slight. For example to kill’ or to injure someone’s animal. Or to puncture
motor, or to break a chair etc.
In these two cases the wrong will be called trespass to goods.

Essentials for proving trespass to goods:

Following are three essentials for proving trespass to goods.

a. The plaintiff must prove that he was the possessor of such goods. Possession
may be actual or constructive. For example if A gives his property to B for
certain time then both will be considered as in possession of the property.
But the difference is that A is in actual possession while B is in constructive
possession. The person in actual or constructive possession can bring suit
for trespass of goods.
b. That plaintiff must prove that the plaintiff has been deprived of his right to
possess even for a temporarily.
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c. The plaintiff must prove that the defendant has damaged the property.

REMEDIES:
Following are the remedies in case of trespass to goods.

a. Restoration:
Restoration means the recovery of goods from the defendant.
b. Damages:
It is also called trover. It is a remedy available to the plaintiff to sue for
damages.

4. Detinue:
It means that suit for damages and recovery of the goods. The plaintiff has the
right to bring suit for both remedies simultaneously.

DEFENSES TO AN ACTION FOR TRESSPAS TO GOODS:

Following are the various defenses to an action for trespass o goods.

1 self-defense or Defense of property:

If a person has actual possession of goods and another person wrongfully
attempt to take the same from him so he is justified for such force as is
necessary for the purpose of defending his own possession.

2 Distress or distress damage peasant:

A person against whom trespass to goods has been committed has the right to
detain other person’s movable property for pressuring him to return his
property. The detaining of such property is not trespass to goods.

3 Recaption or recapture:
It is the retaking of property by the lawful owner of which he was wrongfully
deprived. For example if someone takes a book from another and is not
returning so he has the right to take the book back from him. So it is not
trespass to goods.

4 plaintiff, s default:
If, a person puts something, so as to obstruct the way it may be removed even
by applying force for that purpose. For example if someone stands a cart in the
middle of the road. So a person can remove it to a side. So it is not trespass to
goods.

5 JUS TERTII:
It is a kind of defense available to a person who has neither constructive nor
actual possession.
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For example when the defendant says to the plaintiff that he has some doubts
that that is not the property of plaintiff but he thinks it belongs to someone else.

18. Discuss conversion. What are the defenses in conversion?

What is the difference between trespass to goods and
conversion?

Conversion can be committed in any one of the following six ways;

1 By wrongfully taking away plaintiff’s property and setting up an adverse claim

over the p[property or claiming any interest in the property.

A is a bailor and B is bailee. Due to negligence of B the property is lost or

destroyed. So this is not conversion because of the reason that B is not claiming
any interest in the property.

2 Wrongfully parting away with plaintiff’s property, thereby creating a right over
the property for a third party.

For example A handed some property to B to take care of it. B gifted such
property to third person C instead returning the same property to A.
So in this case B has committed conversion by wrongfully parting away the
plaintiff’s property so as to create a right in a third person.

3 Wrongfully detaining plaintiff’s property. For example A gives some property to

B to be returned after some times. A comes to collect it from B but B refuses and
says that he does not has his property.

Case - Armor versus Delamirie:

Sweeper boy found a valuable jewel .He took it to the defendant, a gold smith to
ascertain its value. The defendant, taking advantage of boy’s simplicity, told him
that it was worth less and offered three pines which the lad declined and
demanded back the jewel.
It was held that the plaintiff was entitled to the jewel. Though the finder of a
chattel does not, by such finding acquire an absolute property and ownership,
yet he has such a property as will to enable him to keep it against all but the
rightful and consequently he may sue for its value against wrong doers who has
wrongfully converted. The finder has good title against all except the owner.

4 Wrongfully selling plaintiff’s property. For example A gives property to B and B

sells it to C.
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5 Wrongfully Destroying plaintiff’s property with the intention to deprive him of

possession of his property.
For example taking coca cola from the bottle of someone and filling it with
water.

6 Wrongfully denying plaintiff, s title to property. There may be conversion of

goods even though the defendant has never been in physical possession of
them, if his act amounts to absolute denial and repudiation of the plaintiff’s
right.

• Defenses to an action for conversion:

a. LIEN
Lien may be either general or particular. For example A sells some movable
property to B for Rupees 1000. If B is not paying the price so A has the right
of lien to retain that property until the payment of price.

b. Right to stop in transit:

In transit means, at the way, for example if the buyer is not paying the price so
this is the right of the seller to stop the goods in transit.

c. Rightfully claiming title:

Rightfully/lawfully, claiming title over plaintiff’s property. Recapture is a good
example f this kind of defense.

d. Sale in market overt:

Market overt means open market. The purchaser does not commit conversion
though the seller may be sued for conversion.
For example A has stolen some property from B and sells it in overt market to C.
C the purchaser can not be sued for conversion because he bought that thing in
overt market and not in covert market (secret market).

Difference between trespass to goods and conversion:

Following are the points of distinction between trespass to goods and
conversion

a. Trespass is the interference in the enjoyment of possession while conversion

is depriving the plaintiff of his title to possession.
b. Claiming the title over the plaintiff’s property is conversion, and if there is no
such intention it is trespass.
c. Conversion is wrong against possession while trespass is wrong against the
right to enjoy possession.
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d. There will be the use of force, even very slight, in trespass to goods while
conversion can be committed with out such force.

_________________________________________________________________________________________________

19. Discuss trespass against immovable property. What is

trespass abinitio. What are the defenses?

Trespass generally means unlawful/unauthorized entry upon the plaintiff’s

immovable property. It is wrong against possession and not ownership.
Trespass to immovable property may be committed in one of the following three
ways;

1) Entering upon plaintiff’s property with out his permission. Even if the entry
is for a minute. It will amount to trespass even if the entry is not complete. If
some one puts only his hand on another’s property it is trespass.

2) Entering upon plaintiff’s property with permission but remaining there with
out his permission unlawfully. Where the purpose of entry is complete but
the person still remain there after completion. For example you invited some
one on tea he took the tea and is not going after tea. It amounts to trespass.
3) Placing any object or thing on the plaintiff’s property with out his
permission. Things objects include animals. If some one throws stones in
some one’s house so that amount to trespass. If your animal goes to
someone’s property so that is also trespass. If you incite dog on someone that
is also trespass.

Trespass Abinitio:
Ibinitio means from the very beginning. When somebody enters into the
property of the plaintiff with authority of law but not with the authority of
plaintiff and remains there unlawfully. The entire entry right from the beginning
will be treated as trespass.

Illustration:
A is authorized by law to enter into a place at 10 AM and remain till 12 AM. He
finished his work though he is still there even the matter is over. So this is
misfeasance (Misuse of authority).now this is entirely trespass from the
beginning i.e. 10Am.

Essentials for trespass abinitio:

Following are the three essentials for trespass abinitio.

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a. Entry must be with the authority of law not by the authority of

plaintiff and subsequently misuse or abuse of that authority by the
defendant.
b. The wrongful act must be of the nature of misfeasance. A mere
nonfeasance will not make trespass abinitio.

Case Vaux Newman:

The plaintiff, an owner of an inn, brought an action for trespass abinitio against six
carpenters, who had entered in an inn and ordered for drink and drank it. And then
they refused to pay. The question arose that whether these acts amount to
misfeasance which would make there entry into inn unlawful?
Not doing can not make a party, who has authority by the law, a trespasser
abinintio. It was held that not doing is no trespass, because there was no
misfeasance on the part of defendants. In other words the plaintiff could do so for
the price.

Defenses:
Following eight are the defenses in action for trespass abinitio;

1. Authority of law:
It is no trespass when some body enters into a place with the authority of law.
For example policeman with warrant can enter into the property of that person.

2. Authority/permission/license by the plaintiff:

If a person enters into the property of plaintiff with his permission, it does not
amount to trespass. For example a buyer enters into a shop.

3. Prescription:
If a person has trespassed another’s property for a period of 20 yeas and with
out interruption’ then he has a right to go on that land. It is called right by
prescription

4. Abatement of Nuisance:
A person can enter into another’s property for the purpose of abatement
(removal) of nuisance. But it is subject to earlier notice from the person who
is trespassing.
5. Re-caption of good or re taking:

If a person has taken something from another and is not returning then the
owner can retake even by entering into his property.

6. Self Defense and defense of property:

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In case of self-defense or defense of property if a person enters into another

person’s property so that does not amount to trespass.

7. Act of necessity:

The thing which becomes very necessary to enter any one’s property with out
his permission is an act of necessity.

For example a house catches fire and you enter into another’s person property to
protect the house from burning. So this is an act of necessity and does not fall
with in the purview of trespass.

8. Re Entry on property:

A person can re enter into his property if somebody has dispossessed him
wrongfully. Such a re entry or re possession is not a trespass provided he proves
the possession or ownership of such property.

20. What are the torts against incorporeal property and what are
the available defenses?
Incorporeal or intangible property is that property which can not be touched,
which is abstract, which does not have body. For example patent right. Like no
one is allowed for 14 years to make such things which are making by the
registered company. The manufacturing is material but the right is immaterial.
Torts committed against incorporeal property are known as passing off’ which
means a false representation by the defendant that the goods he is selling are
actually the goods of the plaintiff.

Trade name or trade mark is neither movable nor immovable property but is
incorporeal property. It is true that trademark is made on a piece of paper etc
but the mark is immaterial. The mark shows the quality of a thing.

a. Trade mark:

It is used for denoting that the goods are manufactured by a particular company
or person. A trade mark can be a picture, number, letters or words and names.
Trade mark indicates the quality of goods. It must be registered.

b. property Mark;

It denotes the ownership of goods. It must also be registered. After registration no

body is allowed to use your property mark or trade mark.
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c. copy Right:

Copyrights can be reserved in respect of books, lectures, songs, poetry etc

provided whoever wants to reserve the copy rights must fulfill certain
conditions which are as follows.

• The publication must be original. If it is not original then there is no copy

right.

• It must be innocent i.e. it should not be against religion’ Morality or public

policy or it should not be obscene.

• It must have some value. If some body writes a book which is useless then
there are no copy rights though it is original.

What the plaintiff must prove in suit of tort against immovable property:

a) That the defendant is using similar mark is the one used by the plaintiff.

b) It is likely to deceive purchasers.

c) The plaintiff trade mark or name is registered

A person knowingly using a registered mark may be asked to pay damages or

submit account of the profit he has made.

If a person is using the trade or property mark innocently. He will not have to
pay damages. The court may issue injunction against an innocent defendant who
may be stopped from using trade mark or property mark again.

Defenses;

Following are the defenses available against an action for tort against
incorporeal property.

a. Denial of plaintiff’s rights.

b. The trade mark or property mark is not registered. Because it is essential

condition that the trade marks must be registered. If it is not registered then
the defendant may take the plea that though he used the same but the
plaintiff did not registered it.
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c. If both the plaintiff and defendant prove that the mark is registered by both
of them. So these are called concurrent rights and thus they can not sue each
other.

d. Estoppel or acquiescence of the plaintiff is another good defense.

e. For example if you have the right to stop someone from using your mark but
you keep silent so this is acquiescence and when the plaintiff gives approval
of a thing he can not subsequently stop it, is estoppel.

21. What is defamation and what are the different kinds of

defamation? What are the defenses for defamation?

Any wrong which affects the reputation of another person is called defamation.

Defamation may be committed by doing the following acts:

a) By any statement of the defendant whether verbal or written.

b) By drawing any picture or cartoon.

c) By any gesture in the air.

d) By any sign.

In cases of defamation the court has to apply his mind that whether the
statement is in joke or serious and the man of ordinary prudence consider it
defamatory or not.

Suppose a person says something in joke. The court after applying its mind will
decide that whether it was joke of not. If it s joke then it does not amount to
defamation.

If for example husband and wife quarrels over some thing and they use abusive
language it will not amount to defamation because these are common to such
relationship.

Ingredients of defamation:

Defamation is which;

a) Tends to lower down the reputation of the plaintiff in the eyes of right
thinking members of the society.
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b) Tends to bring in ridicule, hatred or contempt to the plaintiff.

c) Tends to affect the plaintiff in his profession or business.

d) Tends to compel the people to avoid the company of the plaintiff.

Requisites of defamation:

Following are the requisites of defamation.

a. The statement must be false and defamatory:

In all cases of defamation it is necessary for the plaintiff to prove that the
statement is false and defamatory. No civil action lies for the publication of a
statement which is true.

For example: A steals property from B for which A was convicted as thief.

Later if C publishes that A is thief so this is not defamation because the statement
is true.

b. Statement must be published:

Publication means making known the matter to some person other than the
plaintiff. Here publication does not mean to publish in any newspaper etc. But it
means publicity either verbal or written. It is publication even if one person head
about it.

Illustration:

A writes a letter containing highly derogatory and scandalous remakes about B

the letter is registered to B .and is opened by B.

It does not amount to defamation because it is not published.

But if PA of B opens such letter then it is defamation because the matter came to
the knowledge of a third person.

And in case if B opens and shows it to a third person it is not defamation because
the B (plaintiff) himself publishes the matter.

c. it must refer to plaintiff:

In every case of defamation the plaintiff must prove that the statement referred
to him.
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Case Artemous versus Jones:

A person published a novel in which there was a character which shown the
profession of another living person with the same name and in the same
profession. So in this case it was held that the defendant is liable because he had
to write that all characters in this book are fictitious and if it refers to someone
we are not responsible.

• Kinds of defamation:

Following are the two kinds of defamation:

a. Libel:

A libel is a publication of false and defamatory statement in some permanent

form. Any thing in writing audio video cassettes, any material recorded or
preserved, tending to injure the reputation of another person with out lawful
justification.

b. Slander:

Slander is a false defamatory verbal /oral statement in a transitory/ temporary

form, tending to injure the reputation of another with out lawful justification.

Case: Youssopoff versus Metro pictures:

The defendant produced and exhibited a talking film, in which a woman of good
character and social position is represented as having been forcibly ravished by
a man of a very bad character. Circumstantial detail in the picture point to the
plaintiff and several other acquaintances believe that the film refers to her. The
plaintiff sued the defendant for damages of defamation.

The question arose that whether it was a case of libel or slander. The court held
that any thing in permanent form is a libel like written statement, audio, video
cassettes. And any thing in temporary form is a slander for example verbal
statement (not recorded), signs in the air, gesture etc.

It was held that the plaintiff is entitled to damages with out proof of special
damage. The film constitutes a libel and the plaintiff was likely to be shunned by
society.
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Difference between Slander and Libel:

Following are the points of distinction between slander and libel.

a. Libel is a defamatory statement in permanent form. And any thing in writing

audio , video cassettes, and material recorded or preserved, while slander is
a defamatory statement in a temporary form for example verbal statement (
not recorded), signs in the air, gestures etc.

b. Libel is tort and also a criminal offence while slander is civil wrong in most of
the cases.

c. Period of limitation for bringing a suit for libel is six years.( one year in
Pakistan and India), while period of limitation for bringing a suit for slander
is two years(one year in Pakistan and India)

d. Libel is tort actionable per se (the plaintiff is not required to prove the
damage he suffered) while slander is subject to proof of damage or special
damage.

Slander becomes actionable per se in the following cases:

1. when the plaintiff is falsely accused of having committed a serious offence
like theft, murder, rape, adultery, decoity (not ordinary offence)
2. When the statement affect the plaintiff in his business or profession. For
instance where some body says that this lawyer pleads for one party and
compromise with the other party by taking money from the other party or if
a person is MBBS and you say that he is dispenser.
3. When the statement is made that the plaintiff is suffering from certain
contagious and venereal disease like aids leprosy etc
4. Attributing unchastity to a woman. For example A makes a statement against
B that B has illicit relationship with C.
5. Casting aspersion on the plaintiff’s caste (it is only applicable in India and
Pakistan).

Points of similarity between slander and libel:

1) Slander and libel both are false.
2) Slander and libel both are defamatory.
3) Slander and libel both are published.
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• Defenses:

Following are the defenses in action for defamation:

a. Justification or truth:

A true statement is a valid defense for the defendant in a case of defamation. In

criminal proceedings mere truth is not a defense. It is necessary to prove that the
publication was for public interest. In criminal cases defamation sometimes lead
to a breach of public peace in which the accused is required to prove not only
that the statement complained off was true, but also that it was made in public
interest.

b. Bonafide and fair comment:

Under the law any citizen has the right to express his views about any matter of
public interest but in case of private matter one has to be very careful.

Matters of public interest are;

a) Affairs of state, public acts of minister and officers of state can be commented
on.
b) The administration of justice
c) Public institutions and local authority.

Theaters, films, sports. Literary activities, and other public entertainments.

A writer in a public paper may comment them. For example universities, poets,
writer etc are criticized.

c. Privilege statement:

It is of two kinds’ absolute privilege and qualified privilege.

a) Absolute privilege:

A statement is absolutely privileged when no action lies for that, even though it
is false defamatory and made with express malice.

For example parliamentary proceedings, state proceedings communications

what ever is said in such proceedings are not actionable.

b) qualified privilege;
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A statement is said to be qualified privilege against which no action lies

irrespective of the fact that it is false and defamatory unless the plaintiff proves
express malice.

The following are the chief instances of qualified privilege.

…… statement made in performance of a duty but the statement must be

qualified it must not be malicious.

…….. Any statement for the protection of common interest provided also it must
not be malicious.

……… Accurate reporting of parliamentary and judicial proceedings

So these are matters of public interests and any member of the public can give
his view on these and makes his comments.

22. what are malicious prosecution and false imprisonment and

what are the points of distinction between the two?
Malicious prosecution:

It means filing a false criminal case against a person

For example a murder took place. A says to police that B has committed the
murder. B is arrested and trail is conducted. If B knows that it was done on the
report of A whose aim was to involve him in malicious prosecution. B can sue A
and claim damages provided B (plaintiff) proves;

a) That it was the defendant who got him prosecuted.

b) That the prosecution terminated in favor of the plaintiff.

c) That there was no reasonable or probable cause for prosecution.

d) That he was prosecuted out of malice.

e) That he suffered some damages as a result of this prosecution.

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False Imprisonment:

False imprisonment means complete deprivation of personal liberty, creating such

circumstances where the plaintiff is not in a position to proceed in any of the four
directions and without lawful justification. Imprisonment is necessarily confined to
imprisoning the plaintiff and locking him in a room.

If the plaintiff is surrounded by armed men it is false imprisonment.

If the plaintiff is surrounded by thorny wire, it is false imprisonment.

Imprisonment is imprisonment even if it is done for a very short period and even if
done negligently or just for the sake of joke.

Defenses

Following two are the defenses against an action for false imprisonment.

1) Authority or permission of law:

It means that a police officer may arrest and imprison a person, even a private
person may arrest with out warrant under certain circumstances.

2) Parental and quasi parental authority:

Parental or quasi parental authorities can also imprison a person provided it is

done with in reasonable limits.

Difference between false Imprisonment and malicious prosecution:

a. In false imprisonment the plaintiff is deprived of his liberty either by private

citizen or by a public servant while in malicious prosecution it is the court
which takes action. Thus one may be described as private and administrative
and the other is judicial action.

b. In malicious prosecution malice has to be proved by the plaintiff. Malice is an

essential ingredient of malicious prosecution. No such proof is required in
false imprisonment even an unintentional imprisonment is actionable.

c. Proof of damage is necessary in malicious prosecution false imprisonment is

actionable per se.

d. In malicious prosecution it is for the plaintiff to prove malice. In false

imprisonment it is for the defendant to prove or provide justification.
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23. Write notes on the following;

• Assault

• Battery

• Mayhem.

Assault;
Assault is a threat to use force (actual application of force is not necessary)
which causes reasonable apprehension that the defendant is very likely or about
to use force. For example any gesture, preparation. Simply conveying threat to
plaintiff is assault.

Explanation: Mere words do not amount to assault, unless the circumstances

suggest that the defendant is likely to use force.

There must always be intention to use force and present ability to use force.

• Ingredients of assault:

a. It is threat to use force.

b. The threat cause reasonable apprehension that the defendant is

likely or about to use force.

c. There must be intention and present ability or capability of

committing the offence.

Case Stephen versus Meyers:

He plaintiff was a chairman of a parish meeting the defendant was very

vociferous and the members of the meeting passed a motion against him that
he must be taken out of the meeting. The defendant said that he would not go
out rather he would pull the chairman out of the meeting room and saying
that he moved towards the chairman with his fist clinched towards him, but
on his way he was stopped by other people.

In this case the court held that the defendant was moving towards the
chairman with the intention of using the force. He had the present ability to
use the force against the plaintiff. So he has committed assault.
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Battery:
Battery is the criminal use of force or use of criminal force. It is the actual use
of force. In other words physical force/contact is necessary in battery.
Assault is an incomplete battery.

Ingredients:

To constitute battery the following are the ingredients, which the plaintiff
must prove.

a. The use of force to him, either to body or being an object to his body.

b. The use of force must be intentional. Thus touching a man to call his
attention or jostling one another in a crowed is not a battery

Mayhem:
Mayhem is depriving someone from fighting limb. An action is maintainable
when a person has been deprived from any fighting limb. If it is not a fighting
limb then the action would not be for mayhem but only for battery. It has been
held that the loss of teeth, hands, legs, fingers etc give rise to an action for
mayhem, while cutting of ears or the nose would amount to disfigurement and
not loss of a fighting limb, and therefore give rise only to an action for battery.

Defenses to an action for assault and battery:

a. Self-defense:

Self-defense or defense of one’s wife and husband, children Parents or one’s

master is always permissible.
b. Defense of one’s property:
One can defend his property if other enters his house with force and violence;
the owner is justified in turning him out.
c. Authority of law:
Anything done under authority of law For example warrant of arrest is a
good defense.
d. Leave or license or consent of the plaintiff:
A man cannot complain of harm done to him if he has consented to it
knowingly that it would likely to cause harm. For example boxing, foot ball
(Volenti non fit Injuria).

e. Misadventure (accident):
Where, someone has done trespass to the person of another, due to
inevitable accident.
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f. To prevent a forcible entry or seizure of chattels:

The rightful owner is justified in using force for the repossession of the land or
goods which are wrongfully in the possession f another.

g. Parental and quasi parental authority:

Force may be used for the reformation of children provided that the force is not
excessive or unreasonable.
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