LAW OF TORTS

(LAW 222) Fall Semester, 2010-2011 Instructor: Course Timings: Office Hours: Contact: Maryam Khan Mondays & Wednesdays, 4.00 5.50 pm Tuesdays, 11 am 5 pm maryamk@lums.edu.pk ; ext. 2277

Course Objectives The emphasis of this 4-unit course is on the Law of Tort as it has developed and continues to evolve in South Asia though as the progenitor of the common law, the English jurisdiction figures prominently in areas that are characterized by a vacuum in Pakistani and Indian law. The broader objective of this course is two-fold: to survey and examine the doctrinal elements surrounding each tort and, more importantly, to critically analyze the sociological issues and developments surrounding tort liability in the Pakistani legal milieu through a comparative lens. The course is divided into two parts. The first lays down a historical and theoretical framework, leading up to a closer look at the familiar paradigm of underdevelopment of the Law of Tort in South Asia. This prologue helps to frame the critical dimension of the course which runs through the second part on substantive law. Teaching Methodology & Grading The course content is demanding and rigorous, and primarily case-based as far as substantive law is concerned. The objective is to accustom students to engage with primary legal sources and to apply their critical insights to the socio-legal context of Pakistan. To this end, classes will be structured to allow as much interactive dialogue as possible. Students are thus expected to come to class prepared. Attendance will be strictly enforced: (a) any student who is more than 10 minutes late to class will be marked absent and may, at the instructors discretion, be barred from sitting in that class; and (b) more than 3 absences will lead to a grade reduction unless the absence has been approved by the instructor in her discretion prior to the class in question (absences for extracurricular activities will not be excused). The final grade for the course will comprise of the aggregate of the following grading instruments: Class Participation Midterm Quiz Final Paper 20% 20% 20% 40%

Further guidelines for the above will be provided in class in due course.

COURSE SYLLABUS Syllabus Key o Statutory laws PART I Cases/judgments Theory, History & Sociology of Tort Law

1.

Introduction No readings.

2.

Nature & Functions of Tort Theories of Tort Law: Jules Coleman, Theories of Tort Law, Stanford Encyclopedia of Philosophy, 2003. Available at http://plato.stanford.edu/entries/tort-theories/ Islam and Crim-Torts?: Mohammad Masum Billah, Quantum of Damages in Takaful (Islamic Insurance): A Reappraisal of the Possibility of Adopting the Doctrines of AlDiyah and Al-Daman, Arab Law Quarterly, Vol. 14, No. 4 (1999), pp. 339-347. JSTOR

3.

Colonial Backdrop Anglo-Indian Developments: Courtenay Ilbert, Application of European Law to Natives of India, Journal of the Society of Comparative Legislation, Vol. 1 (1896-1897), pp. 212-226. JSTOR. To Codify or Not to Codify?:

(i) Sir Frederick Pollock, The Law of Torts: A Treatise on the Principles of Obligations arising from Civil Wrongs in the Common Law, to which is added the Draft of a Civil Wrongs Bill, Prepared for the Government of India, (4th ed.), 1886, pp. 536-539, 561-566. Available at http://files.libertyfund.org/files/2123/Pollock_1428_Bk.pdf (ii) Sir Henry Maine, Minutes. Excerpts. 2

4. Contemporary Systems in Comparison The Progenitor and Its Progeny: P. S. Atiyah, Tort Law and the Alternatives: Some Anglo-American Comparisons, Duke Law Journal, Vol. 1987, No. 6 (Dec. 1987), 1002-1006, 1016-1044. JSTOR (i) (ii) Tort Law in the South Asian Context B. M. Gandhi, Law of Tort, 1987. Excerpts from Introduction. Abraham and Abraham, The Bhopal Case and the Development of Environmental Law in India, International and Comparative Law Quarterly, Vol. 40, No.2 (Apr. 1991), pp. 350-355. JSTOR Jehangir Services v. Rukhsana Begum, PLD 1995 Karachi 329 (an example of crim-torts).

5.

Torts, Legal Evolution & Social Change (i) Sir Henry S. Maine, Ancient Law, Chapter X: The Early History of Delict and Crime, 1861. Excerpts. Available at http://www.efm.bris.ac.uk/het/maine/chap10 Michael Clarke, Durkheims Sociology of Law, British Journal of Law & Society, Vol. 3, No. 2 (Winter 1976), pp. 246-255. JSTOR

(ii)

6.

The Post-Colonial Paradigm of Underdevelopment (i) Ananyo Basu, Torts in India: Dharmic Resignation, Colonial Subjugation, or Underdevelopment? South Atlantic Quarterly, Vol. 100, No. 4, Fall 2001, pp. 1053-1070. Available at http://muse.jhu.edu/journals/south_atlantic_quarterly/v100/100.4basu.pdf (ii) Marc Galanter, Indias Tort Deficit: Sketch for a Historical Portrait, in Fault Lines: Tort Law as Cultural Practice (David M. Engel & Michael McCann, eds.), Stanford, 2010, pp. 47-65. (iii) Timothy J. ONeill, Through A Glass Darkly: Western Tort Law From a South and East Asian Perspective, 11 Rutgers Race and L. Rev. 1, 2009, pp. 130. LEXIS-NEXIS

PART II

Law of Tort: A Comparative Approach

7.

Trespass to the Person I: Assault & Battery

The protection of the person from deliberately and intentionally inflicted physical harm and restriction on freedom of movement, and the protection of interests in tangible property, especially the right to non-interference with land and goods, were historically the most important concerns of the Law of Torts. The relevant torts include trespass in its various forms, including trespass to the person, trespass to land, and interference with goods. (i) Consilio, Review: Tort Assault and Battery, 2000.

Letang v. Cooper, [1965] 1 QB 232. Collins v. Wilcock, [1984] 3 All ER 374. Wilson v. Pringle, [1986] 2 All ER 440. (ii) International Environmental Law Research Centre, Tort Law in India, Annual Survey of Indian Law 2001 (2002), pp. 1-6. 8. Trespass to the Person II: False Imprisonment 9. Murray v. Ministry of Defence, [1988] 2 All ER 521. Govt. of Pakistan v. Sardar Muhd. Ali, PLD 1965 Karachi 1. Mazharuddin v. The State, 1998 P Cr. LJ 1035. Riaz Ahmed v. I.G. of Police, 2006 MLD 1093.

Trespass to Land & Interference with Moveable Property Trespass to Land

(i) Possession of land Street v. Mountford, 1985 1 AC 809. (ii) What constitutes land? Bernstein v. Skyviews, 1978 QB 479. Anchor Brewhouse v. Berkley House, 1987 284 E.G. 625. (iii) What constitutes direct interference? Abdul Gafur Mia v. Abdul Gafur, PLD 1961 Dacca 174. (iv)Distinguish civil from criminal trespass o Pakistan Penal Code, 1860: ss. 441-443, 447. o Illegal Dispossession Act, 2005. Interference with Moveable Property 4

10.

Provincial Govt. NWFP v. Afzal Khan, PLD 1959 (W.P.) Peshawar 34. Negligence Duty of Care

The law of negligence is the backbone of the Law of Torts, since it extends over the whole sphere of human activity and is not confined, as most other torts are, to particular types of conduct or activity. It concerns the way in which activities are carried out, and not any particular activity, and it protects a variety of interests. The tort of negligence consists of 3 essential elements: (a) duty to take reasonable care, (b) breach of that duty, and (c) damage resulting or caused by that breach of duty. (i) The Neighbor Principle Donoghue v. Stevenson, [1932] AC 562. Karim Buksh v. KESC, 1997 CLC 507. (ii) Omission to Act Hill v. Chief Constable of West Yorkshire, [1989] 1 AC 53. (iii) An Intentional Tort of Negligence? Sexual Harassment and Blurring of the Trespass/Negligence Boundary: Joanne Conaghan, Harassment and the Law of Torts: Khorasandjian v. Bush, Case Notes, Feminist Legal Studies, Vol. I, No. 2, 1993, pp. 189-197. Available at http://www.springerlink.com/content/v421160g12213u35/fulltext.pdf

11.

Negligence Special Cases Pure Economic Loss Spartan Steel v. Martin, [1972] 3 All ER 557. Murphy v. Brentwood, [1990] 2 All ER 908.

Nervous Shock (i) Consilio, Review: Tort Nervous Shock, 2000. 12. Alcock v. Chief Const. of South Yorkshire Police, [1991] 4 All ER 907. Page v. Smith, [1996] 1 AC 155. Muhd. Ishaque v. Metropolitan Corp., PLD 1996 SC 737. PIA v. Ali Raza Rizvi, 1996 CLC 627.

Professional Negligence Negligent Statements Hedley Byrne v. Heller, [1963] 2 All ER 575. Caparo v. Dickman, [1990] 2 AC 617. Victor Electronics Appliances v. Habib Bank, 2005 CLD 1383.

13.

Lawyers Negligence Veerappa v. Evelyn Sequeira, AIR 1988 SC 506. Arthur Hall v. Simons, [2000] 3 All ER 673. Breach of Duty (i) Reasonable Man Standard Blyth v. Birmingham Waterworks, (1856) 11 Ex. 781. Glasgow Corporation v. Muir, [1943] AC 448. (ii) Res ipsa Loquitor Hayat Services v. Kandan, 1989 CLC 2153. (iii) Degree of Care Wagon Mound No. 2, [1967] 1 AC 617. Nettleship v. Weston, [1971] 2 QB 691. (iv) Professionals Roe v. Ministry of Health, [1954] 2 QB 66. Bolam v. Friern Hospital, [1957] 2 All ER 118. Alia Tareen v. Amanullah Khan, PLD 2005 SC 99.

14.

Causation Causation in fact the but for test Barnett v. Chelsea, [1969] 1 QB 428. McGhee v. National Coal Board, [1972] 3 All ER 1008. Jobling v. Associated Dairies, [1982] AC 794. Wilsher v. Essex, [1988] 1 All ER 871. Causation in law (i) Foreseeability of damage The Wagon Mound No. 1, [1961] 1 All ER 404. Hughes v. Lord Advocate, [1963] All ER 705. (ii) Intervening acts and events McKew v. Holland, [1969] 3 All ER 1621. Lamb v. London Borough, [1981] 2 All ER 408.

15.

Negligence General Defences Contributory Negligence Froom v. Butcher, [1975] 3 All ER 520. Harrison v. British Railways, [1981] 3 All ER 679. Voluntary Assumption of Risk Smith v. Baker, [1891] AC 325. Condon v. Basi, [1985] 2 All ER 453. Ghulam Qadir v. Azim Bakhsh, PLD 1969 B J 20. 6

Public Policy Pitts v. Hunt, [1991] 1 QB 24.

16. 17.

Necessity Rigby v. Chief Constable of Northamptonshire, [1985] 2 All ER 985. MIDTERM (tentative) Occupiers Liability o Occupiers Liability Act, 1957 (UK), extracts.

(i) Who is an occupier? Wheat v. Lacon, [1966] 1 All ER 582. (ii) Reasonable Care Haseldine v. Daw, [1941] 2 KB 343. Federation of Pakistan v. Ali Ihsan, PLD 1967 SC 249. (iii) Reasonable safety Phipps v. Rochester, [1955] 1 QB 450. (iv) Non-visitors and Trespassers Javed Iqbal v. Province of West Pakistan, 1992 CLC 2369. Revill v. Newbery, [1996] 1 All ER 291. 18. Employers Liability o o Wilsons & Clyde v. English, [1938] AC 57. Paris v. Stepney, [1951] AC 367. General Cleaning v. Christmas, [1953] AC 180. Bux v. Slough, [1974] 1 All ER 262. Hatton v. Sutherland, [2002] 2 All ER 1.

Employers Liability Act, 1938 PIA v. Ursulina DLima, PLD 1966 (W.P.) Karachi 580. Workmens Compensation Act, 1923: ss. 1-4, 22-A Nathey Khan v. Govt. of Pakistan, 1980 SCMR 485.

19.

Vicarious Liability and Joint Liability Vicarious Liability Mersey Docks v. Coggins, [1947] AC 1. 7

Sitaram v. Motilal v. Bhatt, AIR 1966 SC 1697. Ready Mixed Concrete v. Minister of Pensions, [1968] 2 QB 497. Rose v. Plenty, [1976] 1 All ER 97. Smith v. Stages, [1989] 1 AC 928. Mukhtiar Begum v. Karachi Transport Corp., 1992 MLD 1711.

20.

Joint Liability and Contribution between Tortfeasors Khushro Gandhi v. Guzder, AIR 1970 SC 1468. Private Nuisance

Certain torts exist in relation to the protection of personal and proprietary interests against conduct which is not necessarily, or cannot be proved to be, either intentional or negligent. These include torts of ancient origin such as nuisance (private and public) and the strict liability rule in Rylands v. Fletcher, which highlight the importance vested in the landowners interest in enjoyment of property. Actions strict liability for injuries and property damage caused by defective goods, have emerged in response to the need for improving standards of public health and personal safety. (i) Proprietary Interest in Land Hunter v. Canary Wharf, [1997] AC 655. (ii) Unlawful Interference Robinson v. Kilvert, 41 Ch D 88. Hollywood Silver Fox Farm v. Emmett, [1936] 2 KB 468. Halsey v. Esso Petroleum, [1961] 2 All ER 145. Miller v. Jackson, [1977] QB 966. Faridul Hassan v. Muhammad Ayub, 1986 MLD 371. 21. Public Nuisance and Strict Liability Public Nuisance o o Code of Civil Procedure, 1908: s. 91. Pakistan Penal Code, 1860: s. 268.

Naz Shaukat v. Yasmin Minhas, 1992 CLC 2540. Islamuddin v. Ghulam Muhammad, PLD 2004 SC 633. Khurshida Shorish v. Province of Punjab, PLD 2004 Lahore 744. Strict Liability & Foundations of Environmental Law Rylands v. Fletcher, [1861-73] All ER Rep 1. Cambridge Water v. Eastern Counties, [1994] 1 All ER 53. M. C. Mehta v. Union of India, AIR 2004 SC 4016. Farzana Parveen v. KESC, 2005 MLD 1556. 8

22. (i)

Product Liability and Consumer Protection

A. Salman Humayun, Consumers Versus Corporate Sector: Judicatures Role in Balancing the Equation, undated manuscript, pp. 1-17. Available at http://www.supremecourt.gov.pk/web/subsites/scp50/Articles/18/1.pdf Consumer Rights Commission of Pakistan, Model Consumer Protection Act 2000, 2000, extracts. Available at http://www.crcp.org.pk/PDF%20Files/mcp_act_2000.PDF o Punjab Consumer Protection Act, 2005. Available at http://punjablaws.gov.pk/laws/477.html Consumer Rights Commission of Pakistan, General Elections 2008: Policy Commitments of Political Parties, Consumer Protection. Available at http://www.crcp.org.pk/PDF%20Files/Elections_CPL_Dec27.07.pdf Journalistic sources (a) Rana Tanveer, Consumer Court Gaining Popularity, Daily Times, Monday, April 13, 2009. (b) Jamaluddin Jamali, Consumer Courts in Dilemma over Consumer Definition, The Nation, November 25, 2009. (c) See generally Special Report on Consumer Protection, The News, at
http://www.jang.com.pk/thenews/sep2007-weekly/nos-02-09-2007/spr.htm

(ii)

(iii)

Shamshad Hussain Syed v. District Consumer Court, Lahore, PLD 2010 Lahore 214. Chief Executive, FESCO v. Nayab Hussain, PLD 2010 Lahore 95. 23. Damages for Property Damage and Personal Injury Property Damage Muhammad Reaz Janjua v. Mirpur Development Authority, PLD 2005 AJK. Personal Injury Lim v. Camden, [1980] AC 174. Picket v. British Rail, [1980] AC 136. Smith v. Manchester, 17 KIR 1. Nazar Ali Siddiqui v. Pakistan, 1986 CLC 1370. Naseem Rashid Mirza v. Municipal Committee, 1998 MLD 167. Rahat Ali v. Dr. Saeeda Rehman, 2002 CLC 96. 24. Damages for Death Death as Creating Liability 9

o Fatal Accidents Act, 1855: ss. 1-4. Kerala State Road Transport v. Susamma, AIR 1994 SC 1631. Manmatha v. Muhammad Rehman, PLD 1969 SC 565. Subhan Bano v. Sultan Khan, 1988 CLC 830. Punjab Road v. Zahida Afzal, 2006 SCMR 207. Feroza Wajid v. Govt. of Sindh, 2006 MLD 786.

25.

Death as Extinguishing Liability o Legal representatives Suits Act, 1855: ss. 1-2. o Succession Act, 1925: ss. 305-306. Mercantile Co-operative Bank v. Habib, PLD 1967 Karachi 755. Defamation

The Law of Tort has long protected individuals interest in their reputation. The law of defamation, like many other branches of torts, provides for balancing of interests. The interest which a person has in her reputation has to be balanced with the interest which every person has in freedom of speech. The tort of defamation protects reputation, and the defences to this tort protect the freedom of speech. Similarly, the torts of malicious prosecution and frivolous litigation, apart from discouraging the perversion of the machinery of justice and abuse of the judicial process, also have a role to play in the protection of reputation. o Defamation Ordinance, 2002.

(i) Defamatory Statements Sim v. Stretch, [1936] 2 All ER 1237. Charleston v. News Group Newspapers, [1995] 2 All ER 313. Botham v. Khan, July 1996. (ii) Reference to Claimant Morgan v. Odhams Press, [1971] 2 All ER 1156. Hasan Razaqi v. Mehrun Visa Mehr, PLD 1971 Karachi 266. (iii) Defamation & Freedom of Speech New York Times v. Sullivan, 376 U.S. 254 (1964). Majid Nizami v. Muhammad Rashid, PLD 1996 Lahore 410. (iv) 26. Distinguish from Defamation as a Criminal Offense o Pakistan Penal Code, 1860: ss. 499-500. Malicious Tort Actions Malicious Prosecution (i) Prosecution Martin v. Watson, [1996] 1 AC 74. 10

(ii) Lack of reasonable and probable cause, and malice Glinski v. McIver, [1962] AC 726. Abdur Rashid v. State Bank of Pakistan, PLD 1970 Karachi 344. Abdul Rauf v. Abdul Razzak, PLD 1994 SC 476. Niaz v. Abdul Sattar, PLD 2006 SC 432. Malicious Civil Proceedings (frivolous litigation) Muhammad Akram v. Farman Bi, PLD 1990 SC 28. Zahra Zaidi v. Anwar Ghauri, 2004 CLC 223. Malicious Arrest/Process Muhammad Mantazuddin v. Shamsur Rahman, PLD 1964 Dacca 618 27. Tortious Liability of the State: A Pakistani Case Study

This is a special session devoted to tortuous liability of the state in general and torts that are closely related to the liability of the state and public/statutory functionaries, such as breach of statutory duty and misfeasance in public office. (i) Maryam Khan & Osama Siddique, The 2005 South Asian Earthquake: Natural Calamity or Failure of State? State Liability and Remedies for Victims of Defective Construction in Pakistan, (2007) 9 Asian Law, pp. 187-233. Access to Justice Program, Public Servant Immunity & Tort Law, undated manuscript.

(ii)

28.

QUIZ

11