Law of Torts
Tort law in Pakistan is common-law based, with no comprehensive code; the exam tests negligence, nuisance, defamation, vicarious and strict liability, and remedies.
Negligence
The elements are duty of care, breach, causation and damage. Duty is tested by the neighbour principle from Donoghue v Stevenson: reasonable foreseeability of harm to persons closely and directly affected. Breach is judged against the reasonable person. Res ipsa loquitur applies where the thing causing harm was under the defendant's control and the accident would not ordinarily occur without negligence; it calls for explanation and shifts the evidential burden, not the legal burden. Damage must be caused in fact and not too remote.
Other torts
- Private nuisance: unreasonable and substantial interference with use and enjoyment of land; factors include duration, locality, sensitivity and malice.
- Trespass: to land, goods or the person (assault, battery, false imprisonment).
- Defamation: libel in permanent form, slander in transient form; requires defamatory meaning and publication. Defences include truth, fair comment and privilege (absolute or qualified).
- Vicarious liability: an employer is liable for an employee's torts in the course of employment; independent contractors are generally outside this.
- Strict liability: Rylands v Fletcher covers escape of a dangerous thing from a non-natural use of land.
Defences and remedies
Contributory negligence reduces damages; volenti non fit injuria is a complete defence. Remedies include damages (special, general, aggravated, exemplary) and injunctions.
Worked example
A factory emits fumes that destroy a neighbour's orchard. This is private nuisance: the interference is substantial and continuing, and locality does not excuse a serious invasion. Defences of statutory authority or twenty years' prescription may be raised. The court may award damages and, where appropriate, an injunction.
Traps
Treating res ipsa loquitur as reversing the burden of proof; forgetting special damage in slander unless actionable per se; holding an employer liable for an independent contractor.