LAW OF TORTS

SCOPE AND APPLICATION OF THE LAW OF TORT IN PAKISTAN

MOHAMMAD AKMAL WASIM

TABLE OF CONTENTS
Introduction.......................................................1
application of the law of tort in pakistan............2

law of torts
definition of tort.............................................2
the subject matter of tort...................................3
tort and contract..........................................10
tort and criminal law....................................11
relevant case law........................................13
conclusion...................................................27

SCOPE AND APPLICATION OF THE LAW

OF TORT IN PAKISTAN

INTRODUCTION

Tort stricto sensu means a wrongful act other than

a breach of contract that injures another and for
which the law imposes civil liability: a violation of a
duty (as to exercise due care) imposed by law as
distinguished from contract for which damages or
declaratory relief (as an injunction) may be
obtained, this includes a cause of action based on
such an act1. The word tort can be traced back to
1526 AD, in the common law. Tort finds its origins
in the Latin term “tortum” meaning “twist”,
interestingly it was imported in the common law
through the French word torquēre which also
means “to twist”2.

Tort, in common law, and the vast majority of

legal systems that derive from it, includes any
instance of harmful behaviour, such as physical
attack on one’s person, interference with one’s
possessions, or the use and enjoyment of one’s
land, economic interests (under certain
1
conditions), honour, reputation, and privacy3.
Originally, tort and criminal law were
indistinguishable, and, even when the two
 branches began to acquire independent identities, the former remained for a very long time in
the shadow of the latter. Offenses against the community and the king’s interests increasingly
became the subject of criminal law, whereas wrongs against the individual came to be dealt
with by the emerging (or, in the case of continental Europe, reemerging Roman-inspired) law
of torts. Early tort law, however, was concerned only with the most serious kinds of wrongs—
bodily injury, damage to goods, and trespass to land. Not until the 19th century was it
extended to cover such conduct as intentional infliction of economic loss. In the 20th century
law of torts

the compensation of negligently inflicted economic loss and other violations of subtler
interests (such as psychological injuries and violations of privacy) took center stage in the
wider debate that aimed to set the proper boundaries of tort liability 4.

The introduction of the Law of Tort in the subcontinent has been succinctly drawn by a
student of erstwhile Hamdard School of Law, Mr. Rashid Jalali in a blowg popularly titled
“Courting the Law”, and which I am reproducing in his own words. In the words of Jalali “The
practice of English common law in India took its first step in 1726 via the Parliamentary
Charter of George I, and following that, Mayor courts were set up in Madras, Bombay and
Calcutta. Hence, the courts of law were obliged to apply English common law with “justice
and right”. The potential and influence of the Britishers increased, gradually till a Supreme
Court of Judicature was bri into being in the Presidency towns, with the authority of King’s
Bench in England, put into effect the law of torts, in company of various laws, through “justice,
equity and good conscience” with adjustments as specified

Influence of the British gradually increased, till a Supreme Court of Judicature was brought
into being in the Presidency towns with the authority of King’s Bench in England, and that put
into effect the law of torts in company of various laws through “justice, equity and good
conscience” and with adjustments as specified by native conditions. A variety of courts was
framed and existed till the passing of Indian High Courts Act 1861. The jurisdiction of British
courts and hence the application of torts extended, till the division of subcontinent. So, the
law of torts came to Pakistan from the common law of England and is thus not codified like
other streams of law in many common law countries (however, it is codified in American
jurisprudence), and despite being applicable throughout the world and within Pakistan, its
administration and operation are not experienced more often.” 5

On the establishment of Pakistan, the Indian Independence Act, 1947, authorized the
continuation of all laws as were in field prior to August 1947 in both the Dominions of India
and Pakistan. Under Art. 268 of the Constitution of Pakistan, these laws have again been
given the protection, and as such law of tort continues on the same track as was applied prior
to 1947. The law is in a continuous mode of development, yet most of it needs to be codified.

APPLICATION OF THE LAW OF TORT IN PAKISTAN

2
DEFINITION OF TORT
Historically, tort has been defined in the following ways by the jurists and legal scholars:

1. Sir Fredrick Pollock

The creation of nuisance to any person is a tort. Causing harm by negligence is a

tort.

law of torts
2. Melville Bigelow

Tort is a breach of duty, fixed by law, and redressible, by a suit for damages

3. Salmond

Tort is a civil wrong for which the remedy is an action for damages

The main or primary principles on which the Law of Tort works are Justice, Equity and Good
Conscience.

We thus find the internal morality of law and ethics to be the foundational stones of a
successful application of tort in cases.6

THE SUBJECT MATTER OF TORT

The Law of Tort can be categorized under the following topics 7:

 Types of Torts
 Types of Remedies
 Vicarious Liability
 Borderline of Tort
 Maxims in Tort

Under the Types of Torts, the following areas are covered 8:

o Negligence
o Trespass
o Nuisance
o Defamation
o Conversion

Remedies in Tort are classified as Judicial Remedies and Extra Judicial Remedies 9

Judicial Remedies 3

1. Damages
 2. Injunctions
3. Restitution of Property

Extra Judicial Remedies include:

1. Self Defence
2. Expulsion of Trespasser/s
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3. Reception of Chattels
4. Abatement of Nuisance
5. Distress Damage Feasant

Vicarious Liability10

o Vicarious Liability is based on “no fault”; it relates to escape of dangerous material,

and employer/s liability for the employee/s

Issues on Borderline of Tort include11

o Invasion of Privacy
o Abuse of Statutory Administrative Power
o Breach of Confidence

Maxims in Tort12

o Ubi Jus Ibi Remedium: There is no wrong without a remedy

o Damnum Sine Injuria: Damages which are not illegal and therefore damages cannot
be claimed for them
o Injuria Sine Damno: An act that has not caused any damage, but is actionable as a
tort

Development of Tort through Landmark Cases13

Case Derived Principle

Donohue v Stevenson 1932 Neighbour Principle
Mayor etc., of Bradford v Pickles 1895 Damnum Sine Injuria
Ashbey v White and others 1703 Injuria Sine Damno
Ryland v Fletcher 1868 Vicarious Liability
Stanley v Powell 1891 Unforeseeable Accident
4 Abraith v North Eastern Railway Company 1883 Burden of Proof
Donoghue v. Stevenson, also known as the ‘snail in the bottle case’, is a significant case in
Western law. The House of Lords’ ruling in this case established the civil law tort of
negligence and obliged manufacturers to observe a duty of care towards their customers. The
events of the case took place in Paisley, Scotland in 1928. While attending a store, Ms May
Donoghue was given a bottle of ginger beer, which had purchased for her by a friend. The
bottle was later discovered to contain a decomposing snail. Since the bottle was not made of

law of torts
clear glass, Donoghue had consumed most of its contents before she became aware of the
snail. She later fell ill and a physician diagnosed her with gastroenteritis. Donoghue
subsequently took legal action against Mr David Stevenson, the manufacturer of the ginger
beer. She lodged a writ in the Court of Sessions, Scotland’s highest civil court, seeking £500
damages14.

Donoghue could not sue Stevenson for breach of contract, because a friend had purchased
the drink for her. Instead, her lawyers claimed that Stevenson had breached a duty of care to
his consumers and had caused injury through negligence – an area of civil law which at the
time was largely untested. Stevenson’s lawyers challenged Donoghue’s action, on the basis
that no precedents existed for such a claim. They referred to an earlier action by Donoghue’s
lawyer, Mullen v. AG Barr, where a dead mouse was found in a bottle of soft drink; judges in
this case dismissed it because of a lack of precedent. Donoghue’s initial action failed,
however she was granted leave to appeal to the House of Lords, which at the time still had
the judicial authority to hear appellate cases. The leading judgement, delivered by Lord Atkin
in 1932, established that Stevenson should be responsible for the well-being of individuals
who consume his products, given that they could not be inspected. The case was returned to
the original court; Stevenson died before the case was finalised and Donoghue was awarded
a reduced amount of damages from his estate15.

The outcomes of Donoghue v. Stevenson established several legal principles and

precedents:

Negligence. Firstly, the House of Lords ruling affirmed that negligence is a tort. A plaintiff can
take civil action against a respondent, if the respondent’s negligence causes the plaintiff
injury or loss of property. Previously the plaintiff had to demonstrate some contractual
arrangement for negligence to be proven, such as the sale of an item or an agreement to
provide a service. Since Donoghue had not purchased the drink, she could prove no
contractual arrangement with Stevenson – yet Lord Atkin’s judgement established that
Stevenson was still responsible for the integrity of his product 16.

Duty of care. Secondly, the case established that manufacturers have a duty of care to the
end consumers or users of their products. According to Lord Atkin’s ratio decendi, “a
manufacturer of products, which he sells… to reach the ultimate consumer in the form in
which they left him… owes a duty to the consumer to take reasonable care”. This precedent
has evolved and now forms the basis of laws that protect consumers from contaminated or 5
faulty goods. These protections began as common law but many have since been codified in
legislation, such as the Trade Practices Act (Commonwealth, 1974) 17.
 Neighbour principle. Thirdly, the Donoghue v. Stevenson case produced Lord Atkin’s
controversial ‘neighbour principle’, which extended the tort of negligence beyond the
tortfeasor and the immediate party. It raised the question of exactly which people might be
affected by negligent actions. In Donoghue’s case she had not purchased the ginger beer but
had received it as a gift; she was a neighbour rather than a party to the contract. Atkin said of
this principle: “You must take reasonable care to avoid acts or omissions which you can
reasonably foresee would be likely to injure your neighbour. Who, then, in law, is my
law of torts

neighbour? The answer seems to be persons who are so closely and directly affected by my
act that I ought to have them in [mind] when I am [considering these] acts or omissions 18.”

Mayor of Bradford v Pickles

The plaintiffs sought an injunction to prevent the defendant interfering with the supply of water
to the city. He would have done so entirely by actions on his own land.
Held: The plaintiffs could have no property in the water until it came on their land and they
collected it, and ‘if the owner of the adjoining land is in a situation in which an act of his,
lawfully done on his own land, may divert the water which would otherwise go into the
possession of this trading company, I see no reason why he should not insist on their
purchasing his interest from which this trading company desires to make profit.’
The exercise of a legal right is not an unlawful abuse of that right merely by reason of a
predominant improper or ulterior purpose19.

Ashby v. White20

Mr Ashby was prevented from voting at an election by the misfeasance of a constable, Mr

White, on the apparent pretext that he was not a settled inhabitant 21.

At the time, the case attracted considerable national interest, and debates in Parliament. It
was later known as the Aylesbury election case. In the House of Lords, it attracted the
interest of Peter King, 1st Baron King who spoke and maintained the right of electors to have
a remedy at common law for denial of their votes, against Tory insistence on the privileges of
the House of Commons22.

Sir Thomas Powys defended William White in the House of Lords. The argument submitted
was that the Commons alone had the power to determine election cases, not the courts 23.

Lord Holt CJ was dissenting from the judgment in the Court of King's Bench, but his dissent
was upheld by the House of Lords by a vote of fifty to sixteen. His judgment reads as follows.

Lord Holt CJ, by Richard Van Bleeck, ca 170024

6
So in the case of Mellor v Spateman, 1 Saund. 343, where the Corporation of Derby claim
common by prescription, and though the inheritance of the common be in the body politic, yet
the particular members enjoy the fruit and benefit of it, and put in their own cattle to feed on
the common, and not the cattle belonging to the corporation; but that is not indeed our case.
But from hence it appears that every man, that is to give his vote on the election of members
to serve in Parliament, has a several and particular right in his private capacity, as a citizen or
burgess. And surely it cannot be said, that this is so inconsiderable a right, as to apply that
maxim to it, de minimis non curat lex. A right that a man has to give his vote at the election of
a person to represent him in Parliament, there to concur to the making of laws, which are to

law of torts
bind his liberty and property, is a most transcendent thing, and of an high nature, and the law
takes notice of it as such in divers statutes: as in the statute of 34 & 35 H. 8, c. 13, intitled An
Act for Making of Knights and Burgesses within the County and City of Chester; where in the
preamble it is said, that whereas the said County Palatine of Chester is and hath been always
hitherto exempt, excluded, and separated out, and from the King's Court, by reason whereof
the said inhabitants have hitherto sustained manifold disherisons, losses, and damages, as
well in their lands, goods, and bodies, as in the good, civil, and politic governance, and
maintenance of the commonwealth of their said county, &c. So that the opinion of the
Parliament is, that the want of this privilege occasions great loss and damage. And the same
farther appears from the 25 Car. 2, c. 9, an Act to enable the County Palatine of Durham to
send knights and burgesses to serve in Parliament, which recites, whereas the inhabitants of
the County Palatine of Durham have not hitherto had the liberty and privilege of electing and
sending any knights and burgesses to the High Court of Parliament, &c. The right of voting at
the election of burgesses is a thing of the highest importance, and so great a privilege, that it
is a great injury to deprive the plaintiff of it. These reasons have satisfied me as to the first
point25.

If the plaintiff has a right, he must of necessity have a means to vindicate and maintain it, and
a remedy if he is injured in the exercise or enjoyment of it, and, indeed it is a vain thing to
imagine a right without a remedy; for want of right and want of remedy are reciprocal... 26

And I am of opinion, that this action on the case is a proper action. My brother Powell indeed
thinks, that an action upon the case is not maintainable, because here is no hurt or damage
to the plaintiff; but surely every injury imports a damage, though it does not cost the party one
farthing, and it is impossible to prove the contrary; for a damage is not merely pecuniary, but
an injury imports a damage, when a man is thereby hindered of his right. As in an action for
slanderous words, though a man does not lose a penny by reason of the speaking them, yet
he shall have an action. So if a man gives another a cuff on the ear, though it cost him
nothing, no not so much as a little diachylon, yet he shall have his action, for it is a personal
injury. So a man shall have an action against another for riding over his ground, though it do
him no damage; for it is an invasion of his property, and the other has no right to come there.
And in these cases the action is brought vi et armis. But for invasion of another's franchise,
trespass vi et armis does not lie, but an action of trespass on the case; as where a man has
retorna brevium, he shall have an action against any one who enters and invades his
franchise, though he lose nothing by it. So here in the principal case, the plaintiff is obstructed
of his right, and shall therefore have his action. And it is no objection to say, that it will
7
occasion multiplicity of actions; for if men will multiply injuries, actions must be multiplied too;
for every man that is injured ought to have his recompence... 27
 To allow this action will make publick officers more careful to observe the constitution of cities
and boroughs, and not to be so partial as they commonly are in all elections, which is indeed
a great and growing mischief, and tends to the prejudice of the peace of the nation... 28

Let us consider wherein the law consists, and we shall find it to be, not in particular instances
and precedents; but on the reason of the law, and ubi eadem ratio, ubi idem jus. This
privilege of voting does not differ from any other franchise whatsoever. If the House of
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Commons do determine this matter, it is not that they have an original right, but as incident to
elections. But we do not deny them their right of examining elections, but we must not be
frightened when a matter of property comes before us, by saying it belongs to the Parliament;
we must exert the Queen's jurisdiction. My opinion is founded on the law of England 29.

  Rylands v Fletcher

Requirements

 1. Accumulation on the defendant's land

2. A thing likely to do mischief if it escapes

3. Escape

4. Non-natural use of land

5. The damage must not be too remote

 1. Accumulation

 The defendant must bring the hazardous material on to his land and keep it there.

 If the thing is already on the land or is there naturally, no liability will arise under Rylands v
Fletcher

The defendant owned a mill and constructed a reservoir on their land. The reservoir was
placed over a disused mine. Water from the reservoir filtered through to the disused mine
shafts and then spread to a working mine owned by the claimant causing extensive
damage30.

Held:

The defendants were strictly liable for the damage caused by a non- natural use of land.
8
Lord Cranworth:
“If a person brings, or accumulates, on his land anything which, if it should escape, may
cause damage to his neighbour, he does so at his peril. If it does escape, and cause damage,
he is responsible, however careful he may have been, and whatever precautions he may
have taken to prevent the damage.”31

Lord Cairns LC:

law of torts
“The Defendants, treating them as the owners or occupiers of the close on which the
reservoir was constructed, might lawfully have used that close for any purpose for which it
might in the ordinary course of the enjoyment of land be used; and if, in what I may term the
natural user of that land, there had been any accumulation of water, either on the surface or
underground, and if, by the operation of the laws of nature, that accumulation of water had
passed off into the close occupied by the Plaintiff, the Plaintiff could not have complained that
that result had taken place. If he had desired to guard himself against it, it would have lain
upon him to have done so, by leaving, or by interposing, some barrier between his close and
the close of the Defendants in order to have prevented that operation of the laws of nature…
On the other hand if the Defendants, not stopping at the natural use of their close, had
desired to use it for any purpose which I may term a non-natural use, for the purpose of
introducing into the close that which in its natural condition was not in or upon it, for the
purpose of introducing water either above or below ground in quantities and in a manner not
the result of any work or operation on or under the land, - and if in consequence of their doing
so, or in consequence of any imperfection in the mode of their doing so, the water came to
escape and to pass off into the close of the Plaintiff, then it appears to me that that which the
Defendants were doing they were doing at their own peril; and, if in the course of their doing
it, the evil arose to which I have referred, the evil, namely, of the escape of the water and its
passing away to the close of the Plaintiff and injuring the Plaintiff, then for the consequence of
that, in my opinion, the Defendants would be liable.”32

Stanley v. Powell

Battery - It is an intentional tort. Application of force on another without any lawful justification
is called battery. It has three elements: -

 Reasonable apprehension of threat.

 Intention to use force.

 Capacity to cause injury.

- Powell, who was the member of a shooting party, fired at a pheasant but the pellet from his
gun glanced off a tree and accidentally wounded Stanley, another member of the party. It was
held that Powell was not liable. If the act is willful or negligent, the defendant would be 9
liable33.

Abrath v North Eastern Railway Co.

 The plaintiff had brought an action against the company of malicious prosecution. It was
rejected by the jury and again on appeal34.

Held: The appeal failed. in an action for damages for the tort of malicious prosecution one of
the elements of the tort is that there was no reasonable or probable cause for instituting the
prosecution – the plaintiff in such an action bears the onus of proving absence of reasonable
law of torts

or probable cause. Lord Bramwell said that it was impossible for a corporation to have either
malice or motive: ‘A fictitious person is incapable of malice or of motive’ even if the whole
body of its directors or shareholders in general meeting approved its acts for improper
reasons. Malice was an unfortunate word in this context.
Lord Fitzgerald had no doubt that Lord Bramwell’s weighty observations would be instructive
in the future and would ‘always carry with them that force before any tribunal which they so
eminently deserve.’35

This case cites:

 Appeal from – Abrath -v- North Eastern Railway Company CA ([1883] 11 QBD 440)
A claim was brought against the company for malicious prosecution. The jury
acquitted it. And the plaintiff appealed.36

TORT AND CONTRACT

The distinguishing features between tort and contract may be summarized as follow.

I. AS TO RIGHTS:37
> Law of tort protects right in rem available against the whole world.
> Law of contract protects rights in personam which means against a particular
individual.
II. AS TO DAMAGES:38
> In tort, damages are unliquidated.
> In contract damages are liquidated.
III. AS TO CONSENT:
> Tort is always inflicted against consent of the person.
> Contract is always founded on consent of a person.
IV. AS TO CODIFICATION:39
> Law of tort is not codified.
10
> Law of contract is codified.
V. AS TO FIXATION OF RIGHT AND DUTIES:
 > Rights and duties are fixed by law in law of tort. > Rights and duties are fixed by
parties in contract.
VI. AS TO DEFENCE:
> In law of tort necessity is a defence. > In contract, necessity is no defence.

law of torts
VII. AS TO DOCTRINE OF VICARIOUS LIABILITY:
> Principle or doctrine of vicarious liability applies.
> Principle or doctrine of vicarious liability does not apply.
VII. AS TO LIMITATION:

> Limitation of time is one year in tort. > Limitation of time is three years in
contract.
IX. AS TO POSITION OF MINOR:

> In law of tort a minor person can sue and can be sued.
> In contract a minor person cannot sue and cannot be sued.

TORT AND CRIMINAL LAW 4 0

AS TO PARTIES:

> In tort parties are known as plaintiff and defendant.

> In criminal law, parties are known state and accused.

I. AS TO PUNISHMENT:
> Tortfeasor has to pay damages.
> On conviction accused are sent to prison.
II. AS TO PROCEDURE:
> In tort, proceedings are regulated by civil procedure code 1908.
> Proceeding are regulated by the criminal procedure code 1898.
III. AS TO INTENTION:
> Intention is not relevant in tortiuous act.
> Intention is always relevant in criminal act.
IV. AS TO DEFENCE:
> Necessity is a defence in tortiuous act. 11
> Necessity is not a defence in criminal act.
 V. AS TO COMPROMISE:
> In tort, compromise is permissible.
> Compromise is not permissible in criminal law.
VI. AS TO PROCEEDINGS:
> Proceedings are conducted by injured person in law of tort.
law of torts

> Proceeding are conducted by the state in criminal law.

VII. AS TO CODIFICATION:
> Law of tort is not codified. It has however been impacted by the rnacted laws as the
Defamation Ordinance 2002, Law Reforms (Contributory Negligence) Act, 1945, Employers
Liability Act, 1938, Social Security Ordinance, 1965, Control of Employment Ordinance, 1965
and the Fatal Accidents Act, 1855.

> Codified in Pakistan Penal Code and other relevant statutes

VIII. AS TO POSITION OF MINOR:

> A person under seven years is tortuously liable in tort.
> A person under seven years is not criminally liable

WHY HASN’T THE LAW OF TORT SUCCEEDED IN PAKISTAN

The main reasons for the general failure of Tort Law litigation in Pakistan can be adduced to

 High Costs of Litigation, specially the professional fee and the stamp duty.
Contingent Fee concept is unlawful, unlike the United States and some other
jurisdictions
 Since the Law of Tort is largely non-codified law, the field of specialization in Tort has
remained limited, while the public at large remains unaware of the accruing rights.
 Most importantly in cases of public utilities, the rampant usage of “in good faith” by
the administrative authorities causes stumbling blocks for the litigants. This clause a
revisit by the Supreme Court and the Provincial High Courts.
 The emphasis on Islamic Law development by the successive governments has also
impacted on Law of Torts as in the case of Private International Law relating to
divorce, inheritance and custody of minors.

MEDICAL NEGLIGENCE
Medical Negligence remains a critical area for the advancement of Law of Tort in Pakistan. A
recent judgment by the Supreme Court of Pakistan sheds light on the issue especially in view
of the significance which the courts place on the opinions of fellow doctors when determining
12 the issue of negligence tends - particularly in Pakistan - to make it more difficult for claimants
to succeed in medical actions than might be the case in actions against other professions41.
2016 SCMR 119 SUPREME-COURT
Side Appellant: Dr. Professor M.A. CHEEMA, SURGEON, PIC, LAHORE
Side Opponent: TARIQ ZIA
O. XVI, Rr. 1 & 2---suit for damages---Death of patient in hospital due to the alleged
negligence of hospital and concerned doctors---Application filed by defendant under O. XVI,
Rr. 1 & 2, C.P.C. for summoning of officials of the hospital for production of record of the

law of torts
deceased patient---civil Court while allowing such application, treated the same as an
application for additional evidence, on the ground that record of deceased patient was helpful
for just decision of the case---Validity---Order passed by civil Court, which was discretionary
in nature, was fully justified on the basis of the facts of the present case---Appeal was allowed
accordingly.

In his decision in Re: Bolam, McNair J. laid down a specific test for determining the standard
of care applicable to the medical profession. Under this test, a doctor "is not guilty of
negligence if he has acted in accordance with a practice accepted as proper by a responsible
body of medical men skilled in that particular art."42

The Bolam test forms the basis for assessing medical negligence in Pakistan and in the UK,
although in the latter its application is now confined to negligent treatment and diagnosis.
Even though the question of whether or not a doctor has been negligent is ultimately for the
court to decide (Bolitho v City and Hackney Health Authority [1998] AC 232)43. Going by
the above discussion the rennet judgment cited here, assumes importance, and needs to be
followed up by the advocates.

RELEVANT CASE LAW

For the purposes of gainful study on tort claims, a summary of the case law is provided here.
These judgments are all addressing the questions raised in Tort litigation, and may prove
helpful.

IF A WILFUL WRONG IS DONE TO A PERSON BY A PUBLIC FUNCTIONARY AND IN

CONSEQUENCE TO SUCH WRONG, THAT PERSON HAS SUFFERED MENTAL
TORTURE AND AGONY OR PHYSICAL INJURY OR FINANCIAL LOSS, SUCH PERSON IS
ENTITLED TO BE REASONABLY COMPENSATED BY WAY OF DAMAGES IN
ACCORDANCE WITH LAW.

2005 SCMR 1950

(a) Damages–

—Act of public functionaries–Recovery of damages–Principle–Public functionaries must act

and discharge their duty quite fairly and in accordance with law–If a wilful wrong is done to a
person by a public functionary and in consequence to such wrong, that person has suffered 13
mental torture and agony or physical injury or financial loss, such person is entitled to be
 reasonably compensated by way of damages in accordance with law–Court must determine
proper damages keeping in view the nature of wrong done and loss caused to such person.

2003 SC MR 1734

—S.73–Damages–Suit for recovery of damages–Plaintiffs’ claim was that on defendants’

failure to provide air-conditioned railway coaches, wherein they had reserved seats, they had
law of torts

to travel on the relevant date under protest by ordinary coach, thus, faced mental torture in
the month of July under great heat and temperature–Courts below had determined question
of fact that plaintiff had suffered mental torture on account of conduct and behaviour of
defendants.

PLD 2002 Supreme Court 723

—Suit for damages–Plaintiff, a Government servant, for almost five months was made to face
hardship due to unreasonable, .unjustified and sadistic attitude of the District Accounts Officer
by not passing his pay bills against the Rules–Plaintiff brought a suit for damages for Rs.
10,00,000 which was decreed to the extent of Rs. 50,000 by the First Appellate Court as well
as the High Court–Validity–Documentary evidence on record was more than sufficient to
prove the high-handedness of the judgment-debtor who in his capacity as District Accounts
Officer should have refrained from being adamant when policy letter on the subject was
brought to his notice and he had no authority to raise objection challenging the very authority
of the competent officer–Two Courts below having rightly arrived at the conclusion about the
quantum of damages which was a question of fact. Supreme Court, in circumstances,
declined interference and dismissed the petition for leave to appeal against the judgment of
High Court–Supreme Court observed that the Government officials dealing with the rights of
the people and other Government officials were not supposed to have a negative and sadistic
attitude merely to satisfy their false egos–Supreme Court deprecated, the conduct of the
judgment-debtor on account of which a Government servant drawing small salary was forced
to face monetary loss as well as mental torture–Civic sense of the aggrieved civil servant who
did not feel contented upon the sanction of the bill and initiated to ask for damages was
appreciated by the Supreme Court with the remarks that it was healthy sign to make others
realise the consequences of their omissions to perform an act which they were legally as well
as morally bound to perform.

2004 YLR 999

Disconnection of telephone without notice–Suit for damages filed by licensee/subscriber

against Pakistan Telecommunication Corporation was decreed by Trial Court and upheld by
the Appellate Court–Validity–Corporation had not placed on record any document showing
that such disconnection was after notice to the plaintiff–Courts below had given concurrent
finings of fact that Corporation had disconnected the telephone of plaintiff without any notice–
14 Order of disconnection was in violation of judgment of Supreme Court–Civil Court had
jurisdiction to take cognizance under S. 9, C. P. C. –Courts below had rightly awarded
meagre damages to plaintiff–High Court dismissed revision petition.
Damages–Public functionaries taking law in their own hands and not proceeding in terms of
law–Awarding damages to aggrieved person is the need of day–Such process can only save
the nation and people of Pakistan from destruction–if the Law of tort is established in the
country, public functionaries and other authorities would run the country smoothly.

2005 YLR 2520

law of torts
Malicious tort–Suit for damages–Vicarious liability–Malfeasance–Misfeasance–Joint
tortfeasors–Rule of thumb–Appreciation of evidence–Plaintiff filed suit for damages alleging
that he filed application for electricity connection in 1987 and defendants issued demand
notice in 1988 which was paid–Meter was not installed according to demand notice–Plaintiff
filed application before Federal Ombudsman who directed the defendants to install the meter
mentioned in the demand notice–Defendants obeyed the order in 1991–Plaintiff filed suit for
damages which was concurrently dismissed–Validity–Defendant’s acts of malfeasance and
misfeasance, caused agony to the plaintiff–Defendants had taken false pleas–Plaintiff had
made specific and unambiguous complaint– Employer being fully responsible and liable for
the tortious acts of its employees, tortfeasors were jointly and severally liable and all of them,
each or any of them could be sued–Judgments and decrees of both the Courts below were
set aside–Quantum of damages were assessed by application of thumb rule and suit was
decreed in the sum of Rs.10, 000 in circumstances.

(2)

NO YARDSTICK EXISTED TO MEASURE OR ASSESS ACTUAL QUANTUM OF

DAMAGES IN RESPECT OF MENTAL TORTURE SUSTAINED BY PLAINTIFF

2004 CLC 223

No yardstick existed to measure or assess actual quantum of damages in respect of mental

torture sustained by plaintiff while facing agonies of a frivolous litigation against her–In order
to prove the expenditure incurred on such litigation, a party could place on record details of
such expenditure, but in the present case no specific evidence was available on that point–
Even if plaintiff failed to prove actual quantum of damages, her suit was not to be dismissed
on that ground as Court itself was competent in circumstances to ascertain quantum of
damages–Keeping in view the facts and circumstances which had given rise to the present
suit, particularly the fact that plaintiff who was a Pardanashin lady belonging to a respectable
family, was dragged by defendant’ and she had to face the agony of such frivolous litigation
for a number of years before various Courts in order to vindicate and safeguard her right of
property, family prestige and reputation, Court concluded that ends of justice would meet if
suit of plaintiff be decreed and she be awarded an amount of Rs. 10,00,000 as damages to
be paid by defendant to her– Suit was decreed accordingly.

2007 CLD 376 15

 Unlawful conversion–Suit for damages–Measure of damages–Pledge of book-entry
securities–Unlawful sate of pledged shares from the plaintiff s account by Stock Exchange
and Central Depository Company acting against the law and in breach of the duty of care
owed by it to the plaintiff-Such circumstances could legitimately be factored into the measure
of damages–Principles. In IBL V. Coussens [1991] 2 All ER 133 which is a case decided by
the Court of appeal in England. Of the three learned judges on the Bench, two have given
separate reasons for the Court’s decision. Both have relied on the dictum of Brandon LJ in
law of torts

the case of Godshrnidt & Co. Ltd. V. Western Transport Ltd. where he said: “– I cannot see
why there should be any universally applicable rule for assessing damages for wrongful
detention of goods, whether it be the rule contended for by the plaintiffs or any other rule.
Damages in tort are awarded by of monetary compensation for a loss or losses which a
plaintiff has actually sustained, and the measure of damages awarded on this basis may vary
infinitely according to the individual circumstances of any particular case.”

PLD 2008 Karachi 558

Statement on oath of plaintiff had gone unchallenged and remained un-rebutted–Allegations

in constitutional petition filed by defendant were defamatory in nature and had been levelled
to lower reputation of plaintiff in estimation of others and could be treated as malicious

False and malicious allegations had caused loss of reputation, mental torture and financial
losses to plaintiff–Court was itself competent to ascertain question of damages keeping in
view the circumstances of the case–High Court awarded a sum of Rs. 15,00,000 as
compensation to plaintiff for malicious prosecution–Suit was decreed accordingly.

Plaintiff had been defamed on account of issuance of such legal notice and publication of
summons of Banking Court in newspapers-Allegations levelled against plaintiff in recover suit
by Bank were serious in nature also containing threat to initiate criminal proceedings against
him–Such allegations had lowered reputation of plaintiff in estimation of others and could be
treated as malicious–Plaintiff had suffered immense legal injury for contesting false and
malicious previous suit–Plaintiff was entitled to damages claimed by him in plaint–Suit was
decreed in circumstances.

PLD 1957 (W.P)Lah. 284

Damages–suit for–could not be dismissed solely on the ground that exact amount of
damages not prove.

PLD 1965 (W.P.) Kar. 2002

A Court itself is competent in circumstances, to ascertain quantum of damages.

16 In the reported case of Muhammad Sharif v. Nawab Din PLD 1957 W.P. Lah. 283 a Learned
Single Bench was held as under: –
“……………. If we are to access damages only if the exact amount is proved, no damages
can ever be decreed. Damages have so many times to be awarded by the rule of thumb but
the fact that the exact amount is not determinable can be no reason for dismissal of a suit
………..”

The other judgment with regard to the assessment of damages for mental torture, nervous

law of torts
shock and injuries of like nature arising out of breach of duties or a wrongful negligent act of
defendant was reported as Suf Muhammad Ishaque v. The Metropolitan Corporation Lahore
PLD 1996 SC 737 it was held as under: –

“………… There can be no yardstick or definite principle for assessing damages in such
cases. The damages are meant to compensate a party who suffers an inquiry. It may be
bodily injury loss of reputation, business and also mental shock and suffering …….”

Regarding the question of damages, the Court is itself competent to ascertain the question of
damages keeping in view the circumstances of the case as held in the reported case of
Pakistan Industrial Development Corporation v. Aziz Qureshi PLD 1965 (W.P) Karachi 202.

It was held by the Balochistan High Court in a case titled “Haji Salman Ali v. The Province of
Balochistan and others” PLD 1994 Quetta 13, that according to law of Tort, compensation by
way of damages, is generally categorized as special and general damages.

As the special damages are concerned, these are required to be proved item-wise to the
extent of the damages sustained by the claimant and the second kind of category pertains to
the general damages as measured by applying “rule of thumb” and the Court has discretion
to calculate the damages according to the circumstances of the case. General damages are
normally awarded where the plaintiff has suffered mental torture, agony etc. I would like to
reproduce the relevant portion of the aforesaid report PLD 1994 Quetta 13 (relevant page 18)
which reads as under:–

“According to the law of Tort, compensation by way of damages is generally categorized as

Special and General Damages. As far as former category is concerned it requires to be
proved item-wise to the extent of the damages allegedly sustained by the claimant and later
category of damages is measured by applying the “rule of thumb” and the Court seized with
the matter has discretion to calculate the damages in view of the given circumstances of the
case. It is to be noted that General damages are claimed normally in the matters where, on
account of injurious acts of the defendants, plaintiff has suffered agony, mental torture,
defamation etc. Since in the case in hand, appellant is claiming the damages on account of
specific losses allegedly sustained by him, due to the cancellation of the contract work by the
Department, therefore, it was a legal obligation upon him to prove each item separately. ”

2006 CLC 440

17
Art. 14–Defamation–Suit for damages and injunction–Assessment of fair compensation–
Factors to be kept in view–Discretion of Court– Scope–Held, usually it was difficult to assess
 fair compensation and in those circumstances it was the discretion of the Judge who might,
on the facts of the case, determine the amount to be awarded to a person who suffered such
a damage–Other factor was that conscience of the Court should be satisfied that the damage
awarded, would, if not completely, satisfactorily compensate the aggrieved party–Article 14 of
the Constitution provided that dignity of man was inviolable and it was legitimate right of
plaintiff to defend his good name and the defendant had no right to defame him–Where the
evidence available on record showed that the defendant had caused defamation, mental
law of torts

agony and physical discomfort to the plaintiff and defamed him in his business circle, by
damaging the good name of the plaintiff the defendant exposed himself to the
consequences–Plaintiff having proved that the defendant had defamed him in the family and
in his business circle, he was liable to compensate the plaintiff and the plaintiff was entitled to
general damages and relief of permanent injunction to the extent that the defendant had no
right to damage the reputation of the plaintiff in public in general and in the circle of plaintiff’s
friends and relations in particular–Relief that defendant may be restrained from claiming
anything in the shape and kind could not be granted and the defendant had every right to
recover legal dues if he could prove the same, before a competent legal forum.

2008 MLD 12

—-Suit for–Award of damages by Court–Principles.

The damages can be granted by the Court keeping in view the circumstances ‘and merits of
each case–While granting damages, the Court has to satisfy itself that the damages awarded
if not completely satisfactory does compensate the plaintiff.

Suit for–General damages, award of–Criteria–Amount of damages assessed by Court must

not appear to be punitive or exemplary– Principles.

There is no hard and fast rule for grant of general damages and there is also no yardstick to
measure the damages caused to a person and then to determine the compensation–Amount
assessed must not appear to be punitive in nature or exemplary

2003 YLR 136

It is true that loss arising out of injury to reputation of a person cannot be compensated in
terms of money and other non-pecuniary losses may not be accurately calculated in terms of
coins, but for this reason alone, Courts do not decline to grant compensation and still the
Courts have formulated certain parameters and devised principles for evaluation of
assessment of such general damages. Ordinarily in such cases just, fair and reasonable
compensation is assessed and awarded to victim. There is no yardstick or definite principle
for assessing damages in such cases and it becomes difficult to assess a fair compensation.
In these circumstances, it is the discretion of Court, who may on facts of each case and
18 considering how far society would deem it to be a fair sum, determine the amount to be
awarded to a person, who has suffered such a damage. The general damages are those,
which law will imply in every violation of a legal rights. They need not be proved by strict
evidence as they arise by inference of law, even though no actual pecuniary loss has been or
can be shown. The vital canon followed by judicial mind in such cases is that the conscience
of Court should be satisfied that damages awarded would, if not completely, satisfactorily
compensate aggrieved party. However, adequate care should be taken in this regard while
dilating on the quantum of awards. Courts should be vigilant to see that claim is not fanciful or
remote, the award should never rise to be reflective of lavish generosity and must also

law of torts
obviously not dwindle down to be air indicator of abstemious parsimony, but Courts should
give aggrieved party what it consider in all the circumstances a fait and reasonable
compensation for his loss.

2009 CLD 665

There is no hard and fast rule to grant general damages and there is also no yardstick to
measure the same. The rule of award of general damages is that in the case of defamation,
the conscience of Court should be satisfied that the damages awarded would, not completely
and satisfactorily compensate the aggrieved party; and that the amount assessed must be
compensatory in nature and not to appear punitive or exemplary.

The Court is itself competent to ascertain the question of damages keeping in view the
circumstances of the case.

PLD 2002 Karachi 20

Maqasid-ul-Sharah–Types–There are six Maqasid-ul-Sharah, which are to be protected and

they are Hifzul Din (protection of faith), Hifzul Nafs (protection of life), Hifzul Mal (protection of
property), Hifzul Aql (protection of intellect), Hifzul Irz (protection of dignity) lnd Hifzul Nasb
(protection of paternity).

An earlier judgment of his Lordship Mr. Justice Kaikaus (as Judge of High Court, as his
lordship then was), in the case of Sharif v. Nawab Din PLD 1957 Lah. 283, has been cited
with approval. In this judgment it has been observed as follows:

“If damages are to be assessed only if the exact amount is proved, no damages can ever be
decreed. Damages have so many time to be awarded by the rule of thumb but the fact that
the exact amount is not determinable can be no reason for dismissal of suit.”

2006 CLC 440

This is a case of slander. The slander is defined the case of Sir Edward Senlson, K.B.E. and
Secretary to the Government of Pakistan, Ministry of Law V. the Judges of the High Court of
West Pakistan, Lahore and others PLD 1961 SC 237, which reads as under :

“Slander is defamation by words or in some transitory or fugitive form. It is actionable where

19
the matter calculated to F disparage to plaintiff in regard to his office, profession, etc. without
proof of special damage.”
 The principle for assessment of general damages in a case of libel also applies to the case of
slander and the damages have to be assessed keeping in view the circumstances of the
case.

Regarding the determination of quantum in a case of frivolous litigation it was held in Mrs.
Zahra Zaidi V. M. Anwar Khan Ghauri 2004 CLC 223 which reads as under: —
law of torts

“No Yardstick existed to measure or assess actual quantum nof damages in respect of
mental torture sustained by plaintiff while facing agonies of a frivolous litigation against her–In
order to prove the expenditure incurred on such litigation, a party could place on record
details of such expenditures, but in the present case no specific evidence was available on
that point–Even if plaintiff failed to prove quantum of damages, her suit was not to be
dismissed on that ground as Court itself was competent in circumstances to ascertain
quantum of damages.”

In another judgment relating to assessment of damages arising out of an accident on account

of mental torture and nervous shock reported as Abdul Qadir V. S.K. Abbas Hussain and 2
others PLD 1997 Kar. 566 it was held as under: –

“–Fair Compensation would be difficult to assess in such cases–Court would have discretion
to determine on basis of evidence, fair sum to be awarded to affected person–Concience of
Court must be satisfied that damages awarded would not completely, at least satisfactorily
compensate aggrieved party person who suffered mental torture and nervous was thus,
entitled to recover damages.”

The other judgment with regard to assessment of damages for mental torture, the nervous
shock and injuries of like nature arising out of breach of duties or a wrongful negligent act of
defendant reported as “Sufi Muhammad Ishaque V. The Metropolitan Corporation Lahore
through Mayor PLD 1996 SC 737 it was held as under:-

“There can be no yardstick or definite principle for assessing damages in such cases. The
damages are meant to compensate a party who suffers injure. It may be bodily injury loss of
reputation, business and also metal shock and suffering.’.

(3)

“REASONABLE AND PROBABLE CAUSE”

PLD 2005 SC 432

(f) Tort–

–Malicious prosecution–Proof of existence of malice itself is not enough in suit for malicious
20 prosecution but it should be accompanied by poof of absence of reasonable and probable
cause.
(g) Tort–

–Malicious prosecution–“Reasonable and probable cause”–Meaning–“Reasonable and

probable cause” means that it is an honest belief in the guilt of accused based upon full
conviction, based on reasonable grounds, of the existence of a state of circumstances, which,
assuming them to be true, would reasonably lead any ordinary prudent man to come to the

law of torts
conclusion that the person charged was probably guilty of crime imputed–If reasonable and
probable cause is established, then question of malice becomes irrelevant.

(h) Words and phrases–

–“Reasonable” and probable cause”–Connotation.

(i) Constitution of Pakistan (1973)–

–Arts. 4 & 14–Tort–Malicious prosecution–Suit for damages–Held, it would be more in

consonance with the genesis of the Constitution, Arts.4 & 14 in particular, to say that the
foundation of the action for damages for malicious prosecution lies not in the abuse of the
process of Court, but in the abuse in process of law–Principal–Supreme Court urged the Bar
Associations and the Bar Councils to educate the people and to file suit for damages against
the offenders apart from the criminal proceedings.

By Article 4 of the Constitution, it is the inalienable right of every citizen to enjoy the
protection of law and to be treated in accordance with law and in particular no action
detrimental to the life, and, liberty, body, reputation of property of any person shall be taken
except in accordance with law. Article 14 of the Constitution also guarantees the dignity of
man and subject to law, the privacy of home. In the context of the Constitution, if is no more
necessary to hedge in an action for damages for malicious prosecution by the condition that
the action was an abuse of the “process of the Court”. It will be more in consonance with the
gensis of the constitution, Articles 4 and 14 in particular, to say that the foundation of the
action for damages for malicious prosecution lies, not in the abuse of the process of Court,
but in the abuse in process of law. For, one has to bear in mind the ground realities of life
existing in the country, it should appear plainly that proceedings before the police afford a
stronger ground for an action for malicious prosecution than proceedings in a Court of law, for
it is an unfortunate fact that, as things are, human dignity suffers or is likely to suffer more at
the hands of the police than in a Court of Law. One of the modes to achieve this goal is to file
a suit for damages against the offenders by the aggrieved persons. It is the duty of the
members of the Bar associations and Bar Council to educate the people and to file suits for
damages against the offenders apart from the. criminal proceedings.

It is a high time to put the nation on a right path to promote the law of torts. In case citizens
and the Courts and conscious to save the nation from the agony of telling lies or involving
innocent persons in criminal cases, then the only solution to stop this frivolous litigation for 21
the purpose of taking revenge from the other side is to file suits for damages as and when the
 competent forum has declared the accused persons as innocent acquitted/discharge by the
competent Court so that prosecution must lodge genuine cases.

It is also well settled principle of law that a prosecution may not be entirely mala fide but the
continuance of such prosecution after it was discovered that the facts upon which it was
based are not true may give rise to claim for damages for malicious prosecution. This
doctrine is based on the dictum of Cockburn, CJ in Fetzjohn v. ‘Mackinder (30 LJCP 257). It
law of torts

is also settled law that in suits for malicious prosecution proof of the existence of malice itself
is not enough but should be accompanies by proof of absence of reasonable and probable
cause. See as follows:-

(i) United Bank Vs. Raja Ghulam Hussain (1999 SCMR 343)

(ii) Abul Rauf V. Abdul Razaq and another (PLD 1994 SC 476)

(iii) Muhammad Akram Vs. Mst. Farman Bi (PLD 1990 SC 28)

(iv) Raja Braja Sunder Deb V. Bandeb Das (AIR 1944 P.C. 1)

(v) Balbabaddar Singh V. Badari Sah (AIR 1926 P.C. 46)

(vi) Abdul Shakoor Vs. Lipton (AIR 1924 Lah. 1)

(vii) Noor Khan V. Fiwandas (AIR 1927 Lah. 120)

8. The maxim “The reasonable and probable cause” means that it is an honest belief in the
guilt of the accused based upon full conviction, based on reasonable grounds, of the
existence of a state of circumstances, which, assuming them to be true would reasonabley
lead any ordinary prudent man to the conclusion that the person charged was probably guilty
of crime imputed . See (1881) 8 QBD 167 Hicks Vs. Faulkner. It is also a settled principle of
law that if reasonable and probable case is established, then question of malice becomes
irrelevant as observed by Denning L.J. in Tempest Vs. Snowden (1952) 1 K.B. 130 H It is
pertinent to mention here that judgments of both the Courts below are in consonance with the
law laid down by this Court in following judgments keeping in view the conduct of the
petitioners:

(i) Muhammad Bashir V. The State (PLD 1982 SC 139)

(ii) Muhammad Yousaf Vs. Syed Ghayyur Hussain Shah and others (NLR 1993 SCJ 462)

One of modes to achieve this goal is to file a suit for damages against the offenders by the
aggrieved person. It is the duty of the members of the Bar Associations and Bar Council to
educate the people and to file suits for damages against the offenders apart from the criminal
22 proceedings.

(b) Abdul Wahab Abbas V. Gul Muhamamd Hajano PLD 2008 Karachi 558
(c) Abdul Ghafoor V. Riaz Ahmed 2007 YLR 3089

(d) United Bank Ltd. V. Mian Ahmed Hassan 2006 CLD 255

(e) Muzammil Shah V. The State 2006 YLR 1431

law of torts
(f) Mian Nazeer Ahmed V. WAPDA 2006 YLR 816

(g) Riaz Ahmad V. I.G. of Police and others 2006 MLD 1093

(h) Azizullah v. Jawaid A. Bajwa 2005 SCMR 1950

(i) Munir Ahmed V. Mst. Fazlan and others 2005 MLD 690

(j) Alia Khattak V. Muslim Commercial Bank 2005 CLD 99

(k) Shah Wali V. Muhammad Iqbal, PLD 2005 Lah. 214

(1) Akbar Khan V. Mausam Khan, 2004 CLC 1244

(m) Malik Khadim Hussain V. Haq Nawaz, 2004 CLC 184

(n) Muhammad Hanif V. Muhammad Yasin and others, 2004 YLR 173

(o) Mian Muhammad Anwer Khurshid V. Muhammad Yasin and another, 2003 MLD 1485

(p) WAPDA V. Muhammad Yaqoob, 2003 MLD 1145.

(q) Ameer ud Din V. Fazal Ur Rahman 2003 YLR 136.

(r) Khursheed Iqbal V. Allied Bank PLD 2003 AJK 1.

2004 YLR 173

Plaintiff, in circumstances, had reasonable and probable cause to sue the

defendant/complainant for malicious prosecution–Trial Court according to status of plaintiff
had rightly determined the amount and rightly decreed the suit rejecting his excess claim as
plaintiff did not deserve more amount as damages than the decretal amount.

PLD 2005 Azad J&K 15

—-Damages–Right to receive or recover compensation by way of damages–Nature, object

and scope–Natural Law (Jura Naturalia) gives basic right for satisfaction from injury–Such
fundamental right is of universal nature based on natural reasons and natural justice–Such
natural right is essential for growth of well-being of society and primitive law of retaliation is
not calculated to promote its tranquility and advancement–Every violation of a right confers a 23
right on injured party to recover compensation–Damages are pecuniary compensation
recoverable by process of law by a person, who has sustained an injury through certain act or
 omission of another–Basic object of damages is to compensate plaintiff for loss sustained by
him due to fault of other party–Right of injured persons to recover damages under various
heads illustrated by examples.

Damages–General and special damages–Proof–Special damages are required to be proved

item-wise to the extent of damages sustained by claiment– General damages are measured
by applying the “rule of thumb” and Court has discretion to calculate damages according to
law of torts

circumstances of case.

The right to recover compensation is a primary right conferred by the law of nature. This
fundamental right is of a universal nature. It is based on the natural reasons and natural
justice. Justinian in his institutes says “Natural Law (Jura Naturalia)” which is observed
equally, in all Nations established by divine providence remains forever settled and
immutable.

Blackstone in his commentary in book second Chapter 29, page 438, says that the basic right
for the satisfaction from the injury was given by the law of nature and the right to receive
satisfaction is based on the sanctity of individual right, which humanity has always been, from
its infancy, jealously protecting from being wantonly violated. This natural right is essential for
the growth of well-being of society and during the successive stages of civilizations, various
means were devised for enforcing the same. The right to receive compensation is a natural
right. It is regulated by a number of maxims which are condensed for the good sense of
Nations.

Harbert Brown says that the authority of the maxims rests entirely upon the general
receptions and usages and the only method of proving that this maxim or that maxim is a rule
of common law, is by ‘showing that it has been always the custom to observe it.

Broom says that it would indeed be highly interesting to trace from a remote period though
successive stages, the gradual development of these principles to observe their primitive and
more obvious meanings and to show how they have been applied “by the living oracles” of
the law to meet the increasing exigency of society and those complicated facts which are the
result of commerce, civilization and reinforcement. Human society has gone through a period
by no means short of strife and tribulations. It must have recognized that primitive law of
retaliation is not calculated to promote for its tranquility and advancement. The basic and
elementary principle is evolved out of this idea, therefore, has been embodied in the
elementary maxim “ubi jus ibi remedium” which means that where there is a right, there is a
remedy. In simple words, it can be said that there is no wrong without a remedy. If a man has
a right, he must have sources and means to vindicate and enforce it. The maxim “lex semper
dabat remedium” means that law will always provide remedy.

Every violation or infringement of a right confers a right on the injured party to recover
24 compensation. This right is called by the Jurist Salmond as a sanctioning right which is of two
kinds, i.e.:-
(i) The right to receive pecuniary penalty;

(ii) The right to exact and receive the damages or other pecuniary compensation.

The British and Indian Laws are unfamiliar with the former kind. The later form of right is most
important and relief with this form of right is remedial in its nature. Awarding of compensation

law of torts
to injured party against the wrong-doer is punished by giving penal redress to the injured or
simple compensation is given. In either case, the law simply awards compensation to the
sufferer. This compensation ‘is awarded in the shape of damages which is awarded
according to certain rules which are known as, measures of damages.

Damages are defined as pecuniary compensation recoverable by the process of law by a

person who has sustained an injury through the certain act or omission of another. Lexstone
in his commentary defined damages as “spices of property i.e. acquired and lost by suit and
judgment at law”. The injured party has unquestionably a vague and indeterminate right to
some damages. The damages may also be defined.

As disadvantage suffered by a person as a result of the act or default of another. The basic
object of the damages is to compensate the plaintiff for the loss sustained by him. Its main
object is to compensate the plaintiff, for all the loss he has suffered so far again as money
can do it.

It is to be noted that while considering the topic of damages, two questions arise for
determination:–

(i) The question of liability i.e. whether damages are due at all or in other words whether the
person against whom the complaint was lodged is liable or not for the damages;

(ii) The question as to quantum of damages;

The basic object of the damages is to compensate the plaintiff for all the loss suffered due to
the fault of other party. There are two kinds of damages:–

(1) General and

(2) Special.

General damages pertain to non-pecuniary losses which could not be calculated in the terms
of money. Such non-pecuniary losses are thus:–

(a) in respect of pain suffering and shock suffered by the plaintiff by the assault;

(b) losses of amenities of life such as the plaintiff suffers by reducing enjoyments of life due to
the damages caused by the assault which may apart from any material or pecuniary losses of 25
attendant upon the loss of amenities;

(c) loss of expectation of life;

 (d) inconvenience and discomfort; and

(e) exemplary damages whether the conduct of the defendant has been so outrageous or
scandalous for which more punitive damages are required.

On the other hand, special damages are such damages which could be computed in the
terms of money, Halsbury calls “special damages” which could be laid and proved in the
law of torts

terms of figure.

While on the other hand, the general damages are defined as which could not be computed
in the terms of money. The Court while awarding the compensation has to consider various
kinds of damages. An injured person can recover the damages in respect of various heads.
For example, reasonable expenses incurred for medical treatment, nursing, medical
appliances and other incidental expenses. The injured person is, however, entitled to
damages for loss of earning where he has lost his earning capacity due to the injury. He is
also entitled to the general damages in respect of pain and suffering which he has undergone
till the M date of trial and which he is likely to undergo thereafter. The damages could also be
awarded in respect of the happiness which a person might expect to have enjoyed in the
years of life or which he has been deprived under the head of “loss of expectations of life”.

(4)

MENTAL AGONY

2005 MLD 690

Plaintiff had suffered damages as protracted litigation initiated by defendant against plaintiff
not only caused plaintiff financial loss in shape of engaging counsel to pursue his case, but
also had caused him mental agony and torture..

1995 CLC 1246

Suit for damages by Advocate on basis of article published in a monthly digest by defendant–
Plaintiff s assertion in plaint was that the article was aimed at to deliberately and maliciously
damage his integrity and character and to demolish his reputation as a leading lawyer of the
country and as a person of honour and high social status.

Damages–Quantification of–Paramount consideration in suits for damages would be to see

whether in case of a publication (giving rise to suit for damages) certain imputation harmful to
the reputation of a person was contained or not –Determination of exact amount of damages
was not possible and was in fact not a mandatory prerequisite before filing of such suit.

PLD 1996 Lahore 50

26
Suit for damages–Imputation of a criminal offence — Imputation of criminal offence is
actionable per se in the probability of social ostracism of the plaintiff — Plaintiff, even in
imputation of a criminal offence punishable with imprisonment, can recover damages for
malicious prosecution and for injury to his reputation.

(5)

DOCUMENT IF AVAILABLE ON RECORD COULD BE LOOKED INTO

law of torts
1992 CLC 2193

Maxim that a person can tell lies but a document cannot” was fully attracted to the facts and
circumstances of the case–Agreement to sell was not proved in circumstances.

1993 CLC 185

Document although not properly produced in evidence, but if available on record, could be
looked into.–[Practice and procedure].

PLD 1975 Lahore 1170 and 1175 rel.

(6)

ACTION PERDONALIS MORITUR CUM PERSONA -MAXIM – APPLICATION OF ENTIRE

FAMILY SUFFERS

KLR 1991 CIVIL CASES LAHORE 72

False and malicious prosecution/damages claim for

Article 4 Good Reputation or fair name is a basic right of a citizen in Islam.

Article 4 & 14–The foundation of the action for damages for malicious prosecution lies not in
the abuse of the process of the Court but in the process of law.

It is common knowledge that if man is subjected to false and malicious persecution the object
is to prosecute and harass not only that man but his dependents and family members also.
The resulting damage not confined to that man: the entire family suffers–The objects of
actions for damages for malicious prosecution being to discourage the perversion of the
machinery of justice for an improper purpose.

(7)

SUIT FOR DAMAGES AGAINST JUDICIAL OFFICER

2008 YLR 900

27
Suit for damages against judicial officer for his malafide act–Maintainability Judicial Officer
after passing order of return of plaint in a previous suit, kept its file with him for two months
which order was ultimately set aside and suit was decreed–Plaintiffs plea in subsequent suit
 for damages was that Judicial Officer (Defendant) had retained file of his previous suit with
malafide intention in order to cause him prejudice–Trial Court rejected plaint to the extent of
Judicial Officer– No Protection was available under law, for such action–High Court accepted
revision petitioner and set aside impugned order with direction to Trial Court to decide case
after inviting written statements from defendants, framing issues and conducting trial.
law of torts

CONCLUSION
At the conclusion, we may have found the critical areas in the Tort Litigation which need
focused attention by the advocates, for example in the case of abuse of power by the public
functionaries, the issue of “in good faith” either explicitly mentioned in the statutes, or
considered as deeming clause, negligence and specially the problem of medical negligence,
increasing by the day in Pakistan. Law of Tort litigation can prove to be a major avenue for
the social change in Pakistan, and the lawyers can play the role of the standard bearers of
this change. By remote connection the Law of Tort also plays a vital role in the developing a
functional and effective Rule of Law in Pakistan.

28
1
REFERENCES

https://www.merriam-webster.com/dictionary/tort
2
Ibid
3
S. Markesinis; tort, Encyclopedia Britannica; Encyclopedia Britannica Inc,
https://www.britannica.com/topic/tort
Accessed on: 18/10/17
4
Ibid
5
Rashid Jalali; Hamdard School of Law; COURTING THE LAW, courting the law.com; July 27 th 2017;
http://courtingthelaw.com/2017/07/27/commentary/frustration-of-the-law-of-torts-in-pakistan/
Accessed on: 18/10/17
6
https://prezi.com/kftx1opmhdb6/law-of-torts-and-pakistani-companies/
7
Ibid
8
Ibid
9
Ibid
10
Ibid
11
Ibid
12
Ibid
13
Ibid
14
http://lawgovpol.com/case-study-donoghue-v-stevenson-1932/
15
Ibid
16
Ibid
17
Ibid
18
Ibid
19
http://swarb.co.uk/mayor-of-bradford-v-pickles-hl-29-jul-1895/
20
https://www.casebriefs.com/blog/law/torts/torts-keyed-to-prosser/civil-rights/ashby-v-white/
21
Ibid
22
Ibid
See also https://en.wikipedia.org/wiki/Ashby_v_White
23
Ibid
24
Ibid
25
Ibid
26
Ibid
27
Ibid
28
Ibid
29
Ibid
30
http://e-lawresources.co.uk/Rylands-v-Fletcher.php
31
Ibid
32
Ibid
33
http://technolawgyx.blogspot.com/p/battery.html
34
http://swarb.co.uk/abrath-v-north-eastern-railway-co-hl-1886/
35
Ibid
36
Ibid
37
Law of Tort; Distinguish between Law of Tort, Contract and Criminal Law
38
Ibid
39
Ibid
40
Ibid
41
ZAFAR & ASSOCIATES LLP.; Personal Injury and the law of negligence in Pakistan;
http://zallp.com/personal_injury.html
42
Ibid
43
Ibid