Moazzan Qureshi and Faisal Khan speak about Tort Law Development in Pakistan

Our Associate Advocates, Barrister Moazzan Qureshi and Barrister Faisal Khan were invited as guest speakers at a roundtable discussion on “Citizens vs. State: Tort Law Development in Pakistan” organized by The Network for Consumer Protection on 24th June 2005 at the Best Western Hotel, Islamabad.

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The half-day event was chaired by Justice (R) Nasir Aslam Zahid, ex-Judge of the Supreme Court of Pakistan and a former Chief Justice of the High Court of Sindh, and was attended by eminent lawyers, academics and representatives of various non-governmental organizations in Islamabad. Besides Barristers Moazzan Qureshi and Faisal Khan, Senior Advocates Mr. Afnan Karim Kundi and Mian Shafaqat Jan of KUNDI & KUNDI Advocates & Legal Consultants also attended the roundtable.

Whilst addressing the roundtable, Barrister Moazzan Qureshi provided an insight into the concepts and fundamental principles underlying the law of torts, with a particular emphasis on its application and development as part of the common law of England.

He started off by describing the link between the law of torts and the acceptable norms of behavior of any given society. He gave an insight into how the law of torts is that set of duties imposed upon members of society, by the society as whole, based on the relationship of the members of society inter se.

Speaking on the law of negligence, Barrister Moazzan Qureshi explained that this was the most significant branch of the law of torts and, as a generic tort, covered a wide variety of actions and interests. He outlined the essential factors for establishing a cause of action in negligence and discussed the concept of duty of care, the breach of duty and the role of causation of harm i.e. the causal link between the breach of duty and the actual harm suffered.

He concluded his discussion by mentioning that the law of torts was an area of law that has been linked with the development of society and is one in which there is constant change. He said that the norms of socially acceptable behavior may change from time to time, thus, necessitating changes in the law too. Since the law of torts is one that is constantly evolving, there are strong considerations for not codifying the law of torts but, rather, developing it through judicial pronouncements of acceptable behavior in society.

In the second session of the roundtable discussion, Barrister Faisal Khan spoke on the liability of Public Bodies in the law of torts and the role of public policy considerations in this area.

He began by outlining the purpose of the law of tort, as part of private law, and discussed the remedies available generally to a victim of a tort. He, however, went on to explain that the position of public authorities was different from that of private parties/individuals. He explained that, in contrast to private persons, the main function of public authorities was to exercise statutory powers and duties in the public interest and to provide services for the welfare of society. While trying to fulfill their public functions, public authorities occasionally caused damage, which could be attributed to erroneous or careless behaviour on their side. Therefore, in most cases, public officials and authorities were not totally exempt from the rules of private law. The extent to which they can be held liable depends on where and how each legal system has struck the balance between the protection of the interests of the adversely affected individual and the patronage of public authorities for the public benefit.

Barrister Faisal Khan elaborated the notion of equal treatment of public authorities and private persons regarding their accountability for wrongful acts and, in this context, dilated upon the concept of “rule of law”, as formulated by A.V. Dicey.

Whilst discussing the statutory duties of public authorities, Barrister Faisal Khan gave an outline of the tort of breach of statutory duty and explained that when an action for breach of statutory duty did not lie, for one reason or another, the law of negligence could very much apply in the same way to the performance of a duty, as to the exercise of a power, of a public authority.

He said that it is settled law that a public body can, in principle, owe a duty of care even in the performance of statutory functions. However, he explained the varying approaches of the House of Lords in applying a duty of care to public authorities and discussed the role of public policy arguments in House of Lord decisions.

Barrister Faisal Khan concluded his talk by discussing whether English law granted public bodies any immunity from tortuous liability. In this regard, he stated that general and complete immunities from liability were hardly ever found in English law and the only exceptions were based on strong public-interest considerations.

A question and answer session followed the discussion and the roundtable was then concluded with a vote of thanks to the participants.