INTRODUCTION:

Conflicts and injuries have been increased with the increase in population, technology, transportation and different kinds of sophisticated appliances, these elements caused an increase in the human activities as a result laws are also increased to tackle the wrongs of almost all kinds through court. Law of tort is one of these laws. In many cases function of law of tort is very much important that is compensating the loss in addition to prevention from repetition of harm.

WHAT IS TORT?
The word "Tort" is derived from Latin word "Tortum", to twist and implies the conduct which is twisted or tortuous. It corresponds to the roman word "Delict" and English word "wrong"

HISTORY AND ORIGIN:

The sense of justice reached the masses with the passage of time, but its main source is the first written law on earth, when Allah Almighty awarded humans with a written code. The purpose was to make justice appear in land, to destroy the evil, in order that stronger might not oppress the weak. This sense, is believed to have passed to Palestine thence to Greeks Romans Continental Europe English Hindustan (in India and Pakistan)

The legal evaluation proceeding in an unbroken and continuous development with each race is passing on something of achievement to its successors.

DEFINITION:
"Tort is one of the wrongs recognized by the law. It's a civil wrong different from criminal wrong" It arises an important point that what is the difference between tort and criminal wrong? Difference between tort and criminal wrong: A crime is a wrong arising from a violation of a public duty, whereas a tort is a wrong arising from private duty. Tort is widely different from crime: 1. A tort is an infringement of the private or civil rights belonging to individuals; whereas a crime is a breach of public rights and duties which affect the whole community. 2. In tort, wrong-doer has to compensate the injured party: whereas, in crime, he is punished by the state in the interest of society. 3. In tort, the action is brought by the injured party, in crime, the proceedings are conducted in the name of state and the guilty person is punished by the state.

KINDS OF TORT Torts which are actionable on proof of actual damage

Torts actionable per se

Non-feasance

Misfeasance

Malfeasance

Torts actionable per se Here the defendant is held liable merely because he does a particular ac, even though the plaintiff has suffered not the slightest harm

TORTS WHICH ARE ACTIONABLE ON PROOF OF ACTUAL DAMAGE:

Here the defendant is held liable only if, in consequence of his act, damage is inflicted on the plaintiff. In most cases, is not actionable without proof of special damage. Non-Feasance: omission of some act which a person is by law bound to do. Misfeasance: being the improper performance of some lawful act. Malfeasance: being commission of some act which is in itself unlawful.

FELONIOUS TORTS:
The same wrongful act may sometimes constitute both a tort and a crime. In all such cases there are two different kinds of remedies-civil and criminal. The defendant may be punished criminally and also compelled in a civil action to pay damages to the plaintiff.

CLASSIFICATION OF TORTS

TORTS MAY EFFECT

PERSONAL WRONGS

WRONGS TO PROPERTY

WRONGS TO PERSON, ESTATE AND PROPERTY

BODY

REPUT ATION

FREED OM AND REPUT ATION

DOMES TIC RIGHTS

IMMO VABLE PROPE RTY

MOVA BLE PROPE RTY

IMMO VABLE OR MOVA BLE PROPE RTY

INTERC ORPORI AL PERSON AL PROPER TY

NEGLIGENCE

FRAUD

ELEMENTS IN TORTS
Every tort there must be a wrongful act, and legal damage or injury: and that every injury imports demage.It is not every damage that is damage in the eye of the law. There are five elements in torts in UK: 1. Voluntary Act 2. Intent 3. Motive 4. Causal Relationship 5. Liability for tort of child 1Voluntary Act

The defendant must be guilty of a voluntary act or omission. Acts committed or omitted by one who is confronted with a sudden peril caused by another are considered involuntary acts. 2Intent

Whether intent to do an unlawful act or intent to cause harm is required as a basis for tort liability depends upon the nature of the tort involved .Liability is imposed for some torts acted without any intent to do wrong. In other torts, the intent of the actor is an essential element. Thus in the case of slander and interference with contracts, it is necessary for the plaintiff to show that the defendant intended to cause harm or at least had the intent to do an act which a reasonable person would anticipate was likely to cause harm. 3Motive

As a general rele, motive is immaterial except as it may be evidence to show the existence of intent, IN most instances, a legal right may be exercised even with bad motives, and an act that is unlawful is not made lawful by good motives. 4Causal Relationship

In order to put legal responsibility upon one as a wrongdoer, it is necessary to show that there was a relationship of cause and effect between the wrongful act and the harm sustained by the
5

plaintiff. In many states, however, the requirement of casual connection has been relaxed so that it is sufficient that the defendants act or omission substantially contributes to the harm rather than being the sole and proximate cause. In many instances, the courts define casual relationship in terms of foresee ability, That is , if it was reasonably foreseeable that the conduct of the defendant could cause harm to the plaintiff there is a sufficient causal relationship between the defendants conduct and the plaintiffs harm. 5-Liability for Tort of Child A person may be innocent of wrong but yet be held liable for the tort committed by another person, As will be discussed later in the chapters on agency, the tort of an employee or agent may in some cases impose liability upon the employer or principal. A parent is ordinarily not liable for the tort committed by a child. That is, the mere fact that the person sued is the parent of the child committing the wrong does not impose liability on the parent. Example: If the child is a reckless driver and the parent allows the child to use the parents car, the parent is liable on the theory that the parent was negligent in entrusting the car to the child.

ELEMENTS IN TORTS
There are four elements in torts in Pakistan. 1- Damage. 2- Malice. 3- Intention 4- Motive Damage and Damages: Damage and damages are not equivalent terms damages are the compensation, in the form of sum of money, which the Court awards for every injury but the damages which every injury imports is that which is supposed to be compensated by award of damages.

Malice: Malice in common acceptation means ill-will against a person, but in its legal sense it means a wrongful act, done intentionally without just cause or excuse. Example: If I maim cattle without knowing whose they are I do it of malice because it is a wrongful act and done intentionally.

MALICE IS THUS OF TWO KINDS:

Express malice: - Express malice is an act done with ill-will towards an individual. Malice in Law or Implied malice: - Means an act done wrongfully without reasonable cause or an act dictated by angry feelings.

INTENTION OR MOTIVE:
When the doer of an act adverse to a consequence of his act and desires it to follow, he is said to intent that consequence. The obligation to make reparation for the damage cussed by the wrongful act against right or law arises from the fault and not from the intention. It is not defence to an action in tort for the wrong doer to plead that he did not intend to cause damage, if damage has resulted owing to an act or omission on his part which is actively or passively the effect of his violation. Bodily injury, though the consequence of a lawful act or a mere mischance, may be a tort; and the existence of an evil intention in the mind of wrongdoer is not essential.

DEFENSES OF TOTS IN PAKISTAN

1-Judicial Acts 2-Executive Acts 3-Quasi-Parental Authorities 4-Works of necessity
7

5-Private Defence 6-Acts causing slight harm 1Judicial Acts:

The second defence to an action in tort is that the act done by the defendant was judicial act. No action will lie against a Judge for any acts done or words spoken in his judicial capacity in a Court of Justice. judges should be at liberty to exercise their function with independence and without fear of consequences .In Pakistan, the principle of immunity has been applied by judicial Officers Protection Act,1850, but no distinction has been maintained in person, actiong judicially, shall be liable to be sued in any Civil Court for within limits of his jurisdiction. 2Executive Acts

Valid orders of a public authority form a good defence to a tort committed by its officers in execution them, e.g, orders of a Court of Justice, But if an officer purposely or maliciously arrests a person or takes his goods he will be liable. In Pakistan, the Judicial Officers Protection Act protects officers of Court as well, Police officers are protected in the performance to their executive duties by express legislative enactments like the various Police Acts. 3Quasi-parental authority

The authority of a schoolmaster is , while it exists, the same as that of a parent. A parent, when, he places his child with a school master, delegates to him all his authority, so far as it is necessary for the welfare of the child. The master can, therefore, inflict a moderate chastisement on his pupil or apprentice. 4Works of necessity

There are many cases in which individuals sustain in injury for which the law gives no action as where private houses are pulled down to stop a fire. A persons property, liberty and life, shall be placed in jeopardy or even sacrificed for the public good.

5-

Private defence

It is human instinct to repel force by force, and this instinct is allowed, even approved, by law as a natural right. Every person has a right to defend his own person, property or possession against an unlawful harm. This may even be done for a wife or husband, a parent or child, a master or servant. The force employed must not be out of proportion to the apparent urgency of the occasion. The necessity must be proved. 6Acts causing slight harm

The law does not take account of triflesde minims non cural lex. Nothing is a wrong of which a person of ordinary sense and temper would not complain. This principle is also recognized in S.95, Pakistan Penal Code. But the maxim does not apply where there is an infringement of a legal right.

PROBLEM:
A is driving along a dusty road at furious speed and the wheels of his motor car throw a little dust on the clothes of B, a pedestrian, which does him no harm.

ANSWER
A is not liable. This is a case of de minims non cural lex.

DAMAGES
In law, damages is an award of money to be paid to, a person as compensation for loss or injury

COMPENSATORY DAMAGES
Compensatory damages, also called actual damages, are paid to compensate the claimant for loss, injury, or harm suffered by another's breach of duty.

QUANTUM/MEASURE OF DAMAGES Breach of Contract Duty Parties may contract for liquidated damages to be paid upon a breach of the contract by one of the parties Breach of tort duty Damages in tort are generally awarded to place the claimant in the position he/she would have been had the tort not taken place. Damages in tort are quantified under two headings: general damages and special damages.

GENERAL DAMAGES
General damages, sometimes styled hedonic damages, compensate the claimant for the nonmonetary aspects of the specific harm suffered. This is usually termed 'pain, suffering and loss of amenity'. Examples of this include physical or emotional pain and suffering, loss of companionship, loss of consortium, disfigurement, loss of reputation, loss or impairment of mental or physical capacity, loss of enjoyment of life, etc. This is not easily quantifiable, and depends on the individual circumstances of the claimant. Judges in the United Kingdom base the award on damages awarded General damages are generally awarded only in claims brought by individuals, when they have suffered personal harm. Examples would be personal injury (following the tort of negligence by the defendant), or the tort of defamation.

SPECIAL DAMAGES
Special damages compensate the claimant for the quantifiable monetary losses suffered by the plaintiff. For example, extra costs, repair or replacement of damaged property, lost earnings (both historically and in the future), loss of irreplaceable items, additional domestic costs, etc. They are seen in both personal and commercial actions. Special damages can include direct losses (such as amounts the claimant had to spend to try to mitigate problems) and consequential or economic losses resulting from lost profits in a business. Special damages basically include the compensatory and punitive damages for the tort committed in lieu of the injury or harm to the plaintiff

10

STATUTORY DAMAGES Statutory damages are laid down in law. Mere violation of the law can entitle the victim to a statutory award, even if no actual injury occurred. These are similar to, but different from, nominal damages (see below) in which no written sum is specified. For example, the possible remedies for misrepresentation in the United Kingdom are codified in the Misrepresentations Act

NOMINAL DAMAGES Nominal damages are very small damages awarded to show that the loss or harm suffered was technical rather than actual. Many times a party that has been wronged but is not able to prove significant damages will sue for nominal damages. This is particularly common in cases involving alleged violations of constitutional rights, such as freedom of speech.

PUNITIVE DAMAGES (NON-COMPENSATORY) Generally, punitive damages, which are also termed exemplary damages in the United Kingdom, are not awarded in order to compensate the plaintiff, but in order to reform or deter the defendant and similar persons from pursuing a course of action such as that which damaged the plaintiff. Punitive damages are awarded only in special cases where conduct was egregiously invidious and are over and above the amount of compensatory damages, Punitive damages awarded in a US case would be difficult to get recognition for in a European court, where punitive damages are most likely to be considered to violate order public.

RESTITUTIONARY OR DISGORGEMENT DAMAGES In certain areas of the law another head of damages has long been available, whereby the defendant is made to give up the profits made through the civil wrong in restitution. The plaintiff thereby gains damages which are not measured by reference to any loss sustained. In
11

some

areas

of

the

law

this

heading

of

damages

is

uncontroversial;

most

particularly intellectual property rights and breach of fiduciary relationship. .The basis for restitutionary damages is much debated, but is usually seen as based on denying a wrongdoer any profit from his wrongdoing. The really difficult question, and one which is currently unanswered, relates to what wrongs should allow this remedy.

LEGAL COSTS In addition to damages, the successful party is entitled to be awarded his reasonable legal costs that he spent during the case. This is the rule in most countries other than the United States. In the United States, a party generally is not entitled to its attorneys' fees or for hardships undergone during trial

REMEDIES
Account of profits: An account of profits (sometimes referred to as an accounting for profits or simply an accounting) is a type of equitable remedy most commonly used in cases of breach of fiduciary duty. It is an action taken against a defendant to recover the profits taken as a result of the breach of duty, in order to prevent unjust enrichment Historically an account was not an equitable remedy, but was an action at common law, and is therefore technically an instrument of law, though it arose at a time before the distinction between law and equity was marked. Co-owners in concurrent estates also have the right to an accounting of profits, in order to properly apportion income from the use or leasing of the property Specific Performance: An order of specific performance is an order of the court which requires a party to perform a specific act, usually what is stated in a contract. It is commonly used in the form of injunctive

12

relief concerning confidential information or real property. While specific performance can be in the form of any type of forced action Orders of specific performance are granted when damages are not an adequate remedy, and in some specific cases such as land sale. Such orders are discretionary, as with all equitable remedies, so the availability of this remedy will depend on whether it is appropriate in the circumstances of the case. There are certain circumstances where an order of specific performance would not be granted. Such circumstances include: 1. Specific performance would cause severe hardship to the defendant 2. The contract was unconscionable 3. The claimant has misbehaved (no clean hands) 4. Specific performance is impossible 5. Performance consists of a personal service 6. The contract is too vague 7. Contracts terminable at will 8. Contracts requiring constant supervision 9. Contract lacking mutuality. 10. Contract made for no consideration. Constructive Trust: A constructive trust is an equitable remedy resembling a trust imposed by a court to benefit a party that has been wrongfully deprived of its rights due to either a person obtaining or holding legal right to property which they should not possess due to unjust enrichment or interference A constructive trust is not a trust, in the true meaning of the word, in which the trustee is to have duties of administration over a period of time, but rather it is a passive, temporary arrangement, in which the trustee's sole duty is to transfer the title and possession to the beneficiary

13

INJUNCTION:
An injunction is an equitable remedy in the form of a court order, whereby a party is required to do, or to refrain from doing, certain acts. The party that fails to adhere to the injunction faces civil or criminal penalties and may have to pay damages or accept sanctions for failing to follow the court's order. In some cases, breaches of injunctions are considered serious criminal offenses that merit arrest and possible prison sentences

TRESPASS:
In it there is no authority to do a thing or enter in but person inter in or do the work In it there is assault and battery. Assault: it is physical attack crime .striking a person with or with out weapon .Present a gun or pistols loses or unloaded. Battery: It is mantel attack crime.

FALSE IMPRESSMENTS:
It is restrained of a person liberty. Keeping officially place with or with out persons consent. It may take the extreme form of a kidnapping. Detention: Keep in place and prevent from living. Stone walls are not required to make a false imprisonment. If a bank robber holds a bank teller at gun point for the purpose of preventing the teller from attacking the other robbers or form escaping, there is sufficient detention. Consent and Privilege: It is a special role of right. There is no false imprisonment

14

TRESPASS TO LAND
A trespass to land consist of any unpermitted entry below, on , across, or above land.

TRESPASS TO PERSONAL PROPERTY An illegal invasion of property right with respect to property other than land constitutes a trespass to personal property whether done intentionally or negligently as when one car hits another. Negligent damage to personal property imposes liability for harm done.

CONVERSION A conversion occurs when personal property is taken by wrongdoer and kept from its true owners or prior possessor. An innocent buyer of stolen goods is liable for damages for converting them.

NEGLIGENCE: Negligence is a type of tort (also known as a civil wrong). "Negligence" is not the same as "carelessness", because someone might be exercising as much care as they are capable of, yet still fall below the level of competence expected of them. It is the opposite of "diligence". It can be generally defined as conduct that is culpable because it falls short of what a reasonable person would do to protect another individual from foreseeable risks of harm. In the words of Lord Blackburn, "Those who go personally or bring property where they know that they or it may come into collision with the persons or property of others have by law a duty cast upon them to use reasonable care and skill to avoid such a collision Through civil litigation, if an injured person proves that another person acted negligently to cause his injury, he can recover damages to compensate for his harm. Proving a case for negligence can potentially entitle the injured plaintiff to compensation for harm to their body, property, mental well-being, financial status, or intimate relationships. However, because negligence cases are very fact-specific, this general definition does not fully explain the
15

concept of when the law will require one person to compensate another for losses caused by accidental injury. Further, the law of negligence at common law is only one aspect of the law of liability. Although resulting damages must be proven in order to recover compensation in a negligence action, the nature and extent of those damages are not the primary focus of negligence cases.

DEFENCES OF NEGLIGENCE: Contributory Negligence: Contributory negligence is a common law defense to a claim based on negligence, an action in tort. It applies to cases where a plaintiff has, through his own negligence, contributed to the harm he suffered. For example, a pedestrian crosses a road negligently and is hit by a driver who was driving negligently. Contributory negligence differs from contribution, which is a claim brought by one tortfeasor against another to recover some or all of the money damages awarded to the plaintiff. Exclusion Clause: A clause may be inserted into a contract which aims to exclude or limit one party's liability for breach of contract or negligence. However, the party may only rely on such a clause if (a) it has been incorporated into the contract, and if, (b) as a matter of interpretation, it extends to the loss in question. Its validity will then be tested under (c) the Unfair Contract Terms Act 1977 and (d) the Unfair Terms in Consumer Contracts Regulations 1999. Volenti Non Fit Injuria: Volenti Non Fit Injuria is a defense in tort that means where a person engages in an event accepting and aware of the risks inherent in that event, and then they cannot later complain of, or seek compensation for an injury suffered during the event. This is used often to defend against tort actions as a result of a sports injury. The same rules are applicable in Pakistan also.

16

Tort of Passing off: Passing off is a tort that protects unregistered trade marks. Essentially, a trader must not sell their own goods under the pretence that they are the goods of another trader. Passing off is a tort of strict liability: the intention of the person passing itself off as another trader is irrelevant. When a business misleads prospective buyers into believing that his goods are those of another business, and that misrepresentation causes damage to the actual owner of the goodwill or trade reputation, the damaged business will be able to prevent that conduct by injunction and claim damages for "passing off" its business as that of the owner of the goodwill. It does not matter whether the trader intended to mislead the public. So passing off protects the relationship of a business with its public. Goodwill may exist in a business name, packaging, branding, in a fictional characters name, someones name (image rights) and is accrued by trading activity, advertising and marketing activity. Passing off is a catch area all area of law that entitles a business to prevent other businesses from unfairly using its goodwill. Goodwill is the attractive force that brings in customers and is the essence of what passing off protects. Otherwise known as the law of unregistered trade marks, passing off protects against all activities of other businesses that may lead the public into believing that they are the trader that actually owns the goodwill. Passing off is a flexible and adaptable area of law, and often claimed in conjunction with trade mark infringement, where 1. A registered trade mark exists and 2. There is doubt about the claim for infringement.

TORT OF PASSING OFF IN PAKISTAN:

Definition of copyright under the laws of Pakistan: Copyright is a form of protection provided to the authors of "original works of authorship," including literary, dramatic, musical, artistic, and certain other intellectual works. This protection is available to both published and unpublished Registration Procedure of Copyrights in Pakistan:

17

REGISTRATION PROCEDURE OF COPYRIGHTS IN PAKISTAN:

Who is authorized to claim copyright in Pakistan? Copyright as a work of authorship immediately becomes the property of the author who created the work. Only the author or those deriving their rights through the author can rightfully claim copyrights. In the case of a work prepared by an employee within the scope of his or her employment; the employer and not the employee is considered to be the author, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. The authors of a joint work are co-owners of the copyrights in the work, unless there is an agreement to the contrary. What works are copyrightable in Pakistan? Copyrightable works include the following categories: 1. 2. 3. 4. 5. 6. 7. Literary works Musical works, including any accompanying words Dramatic works, including any accompanying music Pictorial, graphic, and sculptural works Motion pictures and other audiovisual works Sound recordings Architectural works

Is registration of copyrights in Pakistan a compulsory requirement for protection of copyrightable works? Registration of a copyright is Pakistan is not a compulsory requirement for protection of such copyrightable works in Pakistan. Copyright is secured automatically when the work is created, and a work is "created" when it is fixed in a copy or phono-record for the first time. There are, however, certain definite advantages to registration. Registration, however, establishes prima facie evidence in a Court of Law of the validity of the copyrights and of the facts stated in the certificate.

18

PROTECTION OF INTERNATIONAL & WELL KNOWN TRADE MARKS IN PAKISTAN: A Trade Mark is entitled to limited protection in Pakistan, even if it is not registered in Pakistan, provided that it is considered a well known Trade Marks under the Paris Convention. The relevant law in respect of Trade Marks, unfair competition, registration & protection of Trade Mark is the Trade Marks Ordinance 2001 (the Ordinance), which Ordinance extends to the whole of Pakistan. The term Trade Mark is defined under Section 2 Clause 37 as any mark which is capable of being represented graphically and which is capable of distinguishing goods or services of one undertaking from those of another undertaking. Further, the term mark is defined under Clause 24 of Section 2 of the Ordinance as including a devise, brand, heading, label, ticket, name including person name, signature, word, letter, numeral, figurative elements, colour, sound or combination thereof. Whereas the term Paris Convention is defined under Section 85 Clause (a) of the Ordinance as the Paris Convention for the Protection of the Industrial Property of the 20th March 1883 as revised or amended from time to time. Generally speaking, a Trade Mark is not protected in Pakistan until and unless it is registered in Pakistan, meaning thereby that no infringement proceedings under the Ordinance may be initiated in Pakistan in respect of a Trade Mark which is not registered in Pakistan. Having said that, there are three circumstances, mentioned in the Ordinance itself, in which an International Trade Mark may be protected or given priority in Pakistan. Firstly, under Section 25 of the Ordinance where a person has duly made a Convention application in respect of a Trade Mark and within six months from the date of such a Convention application that person or his successor in title applies to the Registrar in Pakistan for the registration of the same Trade Mark under the Ordinance in respect of some or all of the same goods or services (or both) in respect of which registration was sought in the Convention Country. In such a case the person or his successor in title may claim priority for the registration of the Trade Mark in Pakistan. The effect of such priority is that the relevant date for the purpose of establishing precedence of right is the date of filing of the first Convention application and the register ability of the Trade Mark shall not be affected by any use of the mark in Pakistan for period between the date of first application in Convention Country and the date of application for registration in Pakistan. Hence, where a person has duly filed an application in a Convention Country and he intends to register the same Trade Mark in Pakistan in respect of same goods or services he can claim priority in Pakistan within six months of the filing of that application in the Convention Country. One important point to
19

note here is that Trade Mark applied for in a Convention Country is not automatically protected in Pakistan and such Trade Mark merely enjoys a right of priority of six months. The second circumstance is provided under Section 86 of the Ordinance. Under this provision a Trade Mark which is entitled to protection under the Paris Convention, as a well known Trade Mark, and which is a well known Trade Mark in Pakistan is protected in Pakistan subject to the following conditions enumerated in the said Section: 1. 2. It is a Trade Mark of a national of a Convention Country or, It is a Trade Mark of someone domiciled in or has a real and effective industrial or commercial establishment in a Convention Country.

CONCLUSIONS: Pakistan is a common law country like England, India and many others. Our social conditions are different from the social conditions of other countries. It may sometimes difficult to follow the England law blindly. In Pakistan; the rule of strict liability is not practically followed. The main approach in Pakistan is based on fault liability. The law of contributory negligence has a role to play in all tort cases. The main problem in the minimal development of tort law is the Pakistan penal code Other that death being treated as tort under the Fetal Accidents Act all torts in one form or another are crimes more than torts. In Pakistan the law of torts is less utilized due to many reasons one of them being the shape of law as a text book, unmodified. The purpose of law of tort is to protect certain rights which relates to person, property and reputation and to provide compensation for any wrong which infringe them. But the law will not come to action until there is violation of legal right that the act is legally wrongful as regards the party complaining because it has prejudicially affected him in some legal right.

20