INTRODUCTION

TO TORT
Dr. Che Khairil Izam Che Ibrahim
Ir. Dr. Syuhaida Ismail
Tort-Introduction
! Wrongful acts/omissions
! Civil wrong independent of contract
! Liability arising from a breach of legal duty
owed to person generally
! Breach of duty primarily fixed by law
! Its breach is redressed (compensated) by an
action for unliquidated damages - damages
in a breach of contract case that is not
predetermined by the party e.g. damages
for pain and suffering
! Elements of fault and damages must exist
Function

! Redress
of wrongs or injuries by
means of civil actions
! Redress
may take in form of
damages (monetary)
! To share the burden of victims loss
! Compensation to teach wrongdoer to
be careful and responsible in future
Aims of Law of Torts

!Compensation - to compensate
the victim of the wrong to the
extent of the damage suffered
!Deterrence / prevention - to
ensure that it does not happen
again or, even, better, to
prevent it from occurring at all
Tort-Features

! Must be a wrongful act

! The wrongful act affects the right of
interest of others
! The victims or injured party has
right to claim for damages
! Anact without damages is not a
torts
Tort-Elements

! Tortfeasor,or defendant, had a duty

to act or behave in a certain way.
! Plaintiff
must prove that the
behavior demonstrated by the
tortfeasor did not conform to the
duty owed to the plaintiff.
! The plaintiff suffered an injury or
loss as a result.
Important Concepts

! Tortious liability
! Something not allowed or leaved something
required by law
! Intention (a state of mind) in 2 ways:
! Knows the consequences, foreseeable to give
rise to some infringement (violation) to the
victims and tested by the objective test
! Presume to have probable consequences
! Motives/Malice
! Evil motive
 Important Concepts (Cont.)
! Damage
! Proof is required before defendant
(tortfeasor) is held liable
! Forms:
a) Physical Injuries
b) Damage to property
c) Damage to reputation
d) Economic Loss
! Types:
a) Unliquidated - Unquantifiable e.g. pain
b) Liquidated Specific damage (loss earning)
Legal case

Question
! Battyv. Metropolitan Realisations
Ltd [1978]. A developer sold a house
which is unsuitable for habitation to
the plaintiff as it was built at the
top of a potentially unstable slope.
Who was held liable?
Legal Case (Cont)

! The developer i.e Metropolitan

Realisations was liable because:
a) The developer did something not
allowed by law
b) There was an intention of presuming
that the construction would have
probable consequences
c) Proof of damage
d) Effect the rights of buyer
 Scope of Tort

Scope of Torts

Defamation/
Trespass Negligence Nuisance Strict Liability
Slander

Person Goods Land

Assault Detinue

Battery Conversion

False
Imprisonment
TRESPASS TO
PERSON
 Scope of Tort

Scope of Torts

Defamation/
Trespass Negligence Nuisance Strict Liability
Slander

Person Goods Land

Assault Detinue

Battery Conversion

False
Imprisonment
Categories of Trespass to
Person

Trespass to Person

Battery False
Assault
- Intentional and Imprisonment
- Direct act
direct application - Restrict a person
causing fear
of force movement
 Scope of Tort

Scope of Torts

Defamation/
Trespass Negligence Nuisance Strict Liability
Slander

Person Goods Land

Assault Detinue

Battery Conversion

False
Imprisonment
 TRESPASS TO PERSON
1. Assault
! Direct act that causes apprehension/fear
! Concerns with protection of a persons
mental
! Elements of assault are:
- Mental state of the defendant
- The effect on plaintiff
- Capability to carry out the threat
- Words
! e.g. Roosevelt v. St George [1960].
Defendant pointed an unloaded gun at
plaintiff
 Scope of Tort

Scope of Torts

Defamation/
Trespass Negligence Nuisance Strict Liability
Slander

Person Goods Land

Assault Detinue

Battery Conversion

False
Imprisonment
TRESSPASS TO PERSON (Cont.)
2. Battery
! Intentional and direct application of
force
! Elements of battery are:
! The mental state of the defendant
! The defendants act was under his control
! Contact

! Without plaintiffs consent/permission

TRESPASS TO PERSON (cont.)
E.g. Scott vs Shepherd (1773). A
lighted squib was thrown by defendant
into an open area. A picked it up and
threw it upon B, who then picked it up
and threw it away. Squib hit plaintiff
and burst into flame. Defendant liable
even though his initial gesture did not
directly affect plaintiff as his act is
under his control.
 TRESSPASS TO PERSON (Cont.)
! Differences between assault and
battery

ASSAULT BATTERY
Issue of consent/ Defendant s act is
permission does not done without
arise plaintiffs consent
Plaintiff experiences Physical contact
reasonable between defendant
apprehension/ and plaintiff
fearfulness of a force
upon his person
 Scope of Tort

Scope of Torts

Defamation/
Trespass Negligence Nuisance Strict Liability
Slander

Person Goods Land

Assault Detinue

Battery Conversion

False
Imprisonment
TRESPASS TO PERSON (Cont.)
3. False imprisonment
! Restriction of a persons movement
! Intention is prerequisite
! Therestraint must be a direct
consequences of the defendants act
! The restraint must be complete
TRESPASS TO PERSON (cont.)
! Harnett v Bond and Anor. (1924). Plaintiff lived in
an asylum run by D2. Plaintiff was given a 1
months leave but D2 was given discretion to call
plaintiff back if D2 felt that plaintiff could not look
after himself. On his 2nd day out, plaintiff went to
visit a friend at an office. D1 who was there was of
the opinion that the plaintiff acted strongly. D1
called D2 to ensure that plaintiff stayed at the
asylum as D2 would send a car to fetch plaintiff.
The car arrived 3 hours later and plaintiff was
brought back to asylum. D2 found plaintiff insane
and did not let him out. For 9 years thereafter,
plaintiff was sent from 1 institution to another.
! Finally, plaintiff was proven sane. Thus, D1 was
liable for imprisonment during 3 hours restraint,
and D2 for 9 years restraint.
TRESPASSS TO
GOODS
 Scope of Tort

Scope of Torts

Defamation/
Trespass Negligence Nuisance Strict Liability
Slander

Person Goods Land

Assault Detinue

Battery Conversion

False
Imprisonment
TRESPASS TO GOODS (cont.)
! Wrongful and direct interferences with
goods that are in possession of another
! Elements:
! Mental state of defendant Has
intention
! Interference
! Causes immediate contact with plaintiff's property
! Must be voluntary
! Who can claim
! Person who has possession
! Do not have possession but may claim as trustee i.e. on
behalf of beneficiary, an executor or administrator and a
person with a franchise
 Scope of Tort

Scope of Torts

Defamation/
Trespass Negligence Nuisance Strict Liability
Slander

Person Goods Land

Assault Detinue

Battery Conversion

False
Imprisonment
TRESPASS TO GOODS (cont.)
! Detinue Illegal possession of goods
due to withdrawal consents by the
owner
! Goh Hock Guan & Associates v. Kanzen
Bhd. Defendant i.e. the plaintiffs firm
claim for the wrongful retention of the
passport for one of its representatives
by defendant. No one had right to
claim for the wrongful detention on
behalf of the owner, except the owner
himself.
TRESPASS TO GOODS (cont.)

! Abdul Mutallib b. Hassan v. Maimoon

bte Haji Abdul Wahid. Plaintiff
operated a coffee-house which is
rented from defendant. Defendant
locked the premises and plaintiff
claimed for trespass and for return of
his possession remained in the shop
which were being withheld by
defendant. Defendant was liable as
plaintiff had possession over premises.
 Scope of Tort

Scope of Torts

Defamation/
Trespass Negligence Nuisance Strict Liability
Slander

Person Goods Land

Assault Detinue

Battery Conversion

False
Imprisonment
TRESPASS TO GOODS (Cont.)
Classified into:
! Conversion
! Dealing with goods in manner
inconsistent with the right of true
owner
! e.g. Ashby v Tolhurst. Plaintiff left his
car at defendants car park. When he
came to collect, attendant told plaintiff
someone who claimed to be plaintiffs
friend had driven the car out.
Defendant was not liable as there was a
disclaimer of liability at parking lot
TRESPASS TO GOODS (cont.)
! E.g.Hollins v Fowler (1874). Plaintiff
was an agent who owned bundles of
cotton. T tricked plaintiff and obtained
possession of some bundles. Defendant,
a cotton broker bought some from T
and sold it to the 3rd party. Defendant
was liable for conversion because
although he did not trick the plaintiff
to obtain the cotton, he was on the
possession of the fraudulent cotton,
that is conversion.
TRESPASS TO GOODS (cont.)
CONVERSION
Intentional dealing
One wrongful act arises
Plaintiff must have either
right to immediate possession
or actual possession
Involves denial of defendants Must be a wrongful detention
right over the good
DETINUE
Negligence is sufficient
Continuous tort. Arises when
defendant refuses to return
goods until such time when
goods are returned or when
judgment is given
Plaintiff must have right to
immediate possession
i.e. Must have a demand and
refusal
TRESPASS TO GOODS (cont.)

Conversion Detinue

Amount of damages is value of Amount of damages is value of

good at conversion occurs good at judgment date and
damages between refusal date
and return/payment date of
the value of the goods
TRESPASS TO
LAND
 Scope of Tort

Scope of Torts

Defamation/
Trespass Negligence Nuisance Strict Liability
Slander

Person Goods Land

Assault Detinue

Battery Conversion

False
Imprisonment
TRESPASS TO LAND
! Elements of trespass to land are:
! Intention

! Acts of entry done voluntary

! Interferenceis foreseeable as due to
defendants act
! Interference must be direct
TRESPASS TO LAND (cont.)
! What is interference?
! Enter land which is the plaintiffs
possession - Wrongly entered
! Remain on the plaintiffs land -
Continuing the trespass (failure to
remove)
! Enter or place an object on the
plaintiffs land
! Interference to airspace
TRESPASS TO LAND
! Who may claim?
! Possession in fact and just tertii (third
party rights) A defense where the third
party who has better possession than the
plaintiff, has better right to use and to
exclude others
! Possession in accordance to law
! The right to continue possession
! Co-owners
! Possession under a TOL (Temporary
Occupation License)
TRESPASS TO LAND
! e.g.Basely v. Clarkson (1681).
Defendant accidentally mowed
plaintiffs grass whilst he was
mowing his own. Defendant was
liable as the act of moving was a
voluntary act and done with
intention
TRESPASS TO LAND
! e.g. League Against Cruel Sports Ltd V. Scott.
Plaintiff owned a deer sanctuary. Hunting
was prohibited on the ground. Hounds from
local hunt (led by defendant) entered
sanctuary and disturbed the deer. Defendant
was not liable as the trespass was accidental
and involuntary act on his part. However, if
defendant had intended the hounds to enter
plaintiffs land and he knew there was
probability of the hound to enter and yet he
did not take precaution steps to prevent the
foreseeable entry, he would be liable
TRESPASS TO LAND

! Kelsen v Imperial Tobacco Co

[1957]. Defendant committed
trespass by allowing an
advertising board to project
eight inches into the plaintiffs
property at ground level and
another above ground level
Group Exercise
! Within 20 minutes, discuss Stare Decisis of trespass cases
related to construction industry. Your groups are
randomly given the following scope of trespass. You are
to present the case via role play in maximum 5 minutes.
Scope of Torts

Defamation/
Trespass Negligence Nuisance Strict Liability Slander

Person Goods Land

Assault Detinue

Battery Conversion

False
Imprisonment