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3

The Law of Tort


OBJECTIVES

This chapter describes various areas of the law of


tort such as:
• negligence
• contributory negligence
• professional negligence
• conversion
• defamation and libel
• vicarious liability
• occupier’s liability

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PREVIEW

• Meaning of ‘Law of Tort’


• Negligence
• Trespass
• Conversion
• Detinue
• Defamation
• Nuisance
• Vicarious Liability
• Occupier’s Liability
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MEANING OF ‘LAW OF
TORT’

• tort – a civil wrong other than a claim for breach of


contract; and for which a right of civil action for
damages may arise
• ‘tortious liability arises from the breach of a duty
primarily fixed by the law; this duty is towards
persons generally and its breach is redressible by
an action for unliquidated damages’ – Winfield
• law of tort in Malaysia is largely derived from the
common law of England
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NEGLIGENCE

• the most important area of tort law


• modern version of negligence established in 1932 –
Donoghue v Stevenson
• ‘negligence’ is defined in Winfield and Jolowicz on Tort
as ‘the breach of a legal duty to take care which results
in damage, undesired by the defendant, to the plaintiff
• ingredients of negligence are:
– A legal duty on the part of A towards B to exercise care in such
conduct of A as falls within the scope of the duty
– Breach of that duty
– Consequential damage to B
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NEGLIGENCE (cont.)

1. Duty to Take Care


• the general principle was given by Lord Atkin in
Donoghue v Stevenson
• test for the existence of a duty owed to the plaintiff is the
‘neighbour’ principle stated by Lord Atkin in Donoghue v
Stevenson – the foresight of the reasonable man
• in deciding whether a duty of care is owed by a
defendant to a plaintiff in a given case, it is necessary to
consider the facts and circumstances of that case – see
Canadian National Railway Co v Norsk Pacific
Steamship Co
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NEGLIGENCE (cont.)

• however, for this principle to apply, it is not required


that the plaintiff must be identifiable by the
defendant; it is enough if the plaintiff is one of a
class within the area of foreseeable injury – see
Haley v London Electricity Board

3. Breach of Duty
• test for deciding whether there has been a breach of
duty – see Alderson B. in Blyth v Birmingham
Waterworks Co

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NEGLIGENCE (cont.)

• negligence is the omission to do something which a


reasonable man, guided upon those considerations
which ordinarily regulate the conduct of human affairs,
would do, or doing something which a prudent and
reasonable man would not do
• who is a ‘reasonable man’? – ‘the man on the omnibus’
• a ‘reasonable man’ means an ordinary man who is not
expected to have any particular skill such as that
possessed by a surgeon, a lawyer or a plumber unless
he is actually one – see Fardon v Harcourt-Rivington,
Bourhill v Young

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NEGLIGENCE (cont.)

• the reasonable foreseeability of a consequence is


determined by the knowledge and experience which is to
be attributed to the reasonable man in the circumstances
– see Roe v Minister of Health
• in every case where a duty of care exists, the courts
must consider whether the risk was sufficiently great to
require of the defendant more than he has actually done
• three factors the courts must consider are:
a) the magnitude of the risk
b) the importance of the object to be attained
c) the practicability of precautions
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NEGLIGENCE (cont.)

Magnitude of the Risk


• two elements which make up the magnitude of the risk:
1. Likelihood that injury will be incurred
2. Seriousness of the injury that is risked
• see Bolton v Stone, Hilder v Associated Portland Cement
Manufacturers Ltd
• in assessing the magnitude of the risk, the duty of care is
owed to the plaintiff; therefore if the plaintiff suffers from
some disability, that disability must be taken into account
— see Paris v Stepney Borough Council

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NEGLIGENCE (cont.)

The Importance of the Object to be Attained


• it is necessary to balance the risk against the consequences of
not taking it – see Daborn v Bath
• where the purpose to be served in taking the risk is sufficiently
important to justify the taking of that risk, the defendant is not
liable – see Watt v Hertfordshire County Council
The Practicability of Precautions
• the risk must be balanced against the measures necessary to
eliminate it, and the practical measures which the defendant
could have taken must be considered – see Latimer v A.E.C. Ltd

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NEGLIGENCE (cont.)

3. Remoteness of Damage
• the plaintiff’s damage must have been caused by the
defendant’s breach of duty and must not be too remote
a consequence of it – see Barnett v Chelsea and
Kensington Hospital Management Committee
• prior to the Re Polemis case in 1921, 2 tests for
remoteness of consequence:
1. Consequences are too remote if a reasonable man would not have
foreseen them — Rigby v Hewitt
2. If a reasonable man would have foreseen any damage to the plaintiff
as likely to result from his act, then he is liable for all the direct
consequences of it suffered by the plaintiff, whether a reasonable
man would have foreseen them or not – Weld–Blundell v Stephens
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NEGLIGENCE (cont.)

• the Court of Appeal in Re Polemis chose to apply the second


test
• but in The Wagon Mound case, the JCPC decided that Re
Polemis was wrong and applied the first test instead – that
consequences are too remote if a reasonable man would not
have foreseen them
• thus, whether a particular harm was reasonably foreseeable
is a question of fact that depends upon the peculiar facts of
each case — see Jolley v Sutton London Borough Council
• consequences which are intended are never too remote – see
Quinn v Leatham

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NEGLIGENCE (cont.)

• classifications of unintended consequences:


❖ Existing states of affairs, i.e.:
– Pecuniary amount of the damage
If by his act of negligence the defendant injures a high-
income earner or a valuable piece of property, he cannot
argue that he did not expect the loss to be so great.
– Extent of the damage
If the accident occurs in a foreseeable way, the
defendant will be liable even though the damage is much
greater in extent than would have been anticipated.
– The ‘egg-shell skull’ principle
The defendant must take his victim as he finds him.
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NEGLIGENCE (cont.)

– Plaintiff’s impecuniosity
If the plaintiff suffers more damages due to his own
financial disability, the court has held that such loss
is too remote as the plaintiff’s want of means was an
extraneous matter.

❖ Intervening acts or events, i.e.:


– Intervening natural event
When the loss is caused by a natural event which
occurs independently of the defendant’s breach of
duty but which would have caused the plaintiff no
damage if the breach of duty had not occurred, the
defendant is not liable for such loss.

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NEGLIGENCE (cont.)

– Intervening act of a third party


If the defendant’s breach of duty has done no more
than provide the occasion for an entirely
independent act by a third party and that act is the
immediate cause of the plaintiff’s damage, then it
will amount to a nova causa interveniens and the
defendant will not be liable.
– Intervening act of the plaintiff
Where it is the plaintiff’s own act or omission which,
in combination with the defendant’s breach of duty,
has brought about his damage, then the issue is that
of contributory negligence.
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NEGLIGENCE (cont.)

4. Contributory Negligence
• at common law, if the plaintiff’s injuries have been
caused partly by the negligence of the defendant and
partly by his own negligence, then, the plaintiff can
recover nothing
• it is clear that this rule is a harsh one and hardship is
caused especially where the plaintiff’s negligence was
not the major cause of the accident – section 12 of the
Civil Law Act 1956 (Revised 1972)
• however, if the act of the third party was not truly
independent, the defendant will be liable
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NEGLIGENCE (cont.)

5. Professional Negligence
• legal liability for professional negligence can only be
incurred when there has been a breach of duty of
care owed to some persons
Duty of Care
• the duty of a professional depends very much on what the
professional is employed to do
• what is the duty of care of professionals to their clients? See
Tindal C.J. in Lanphier v Phipos
• the duty of care on the part of professionals is sometimes not
only owed to clients who engaged them but also to third parties
– see Hedley Byrne & Co Ltd. v Heller & Partners Ltd

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NEGLIGENCE (cont.)

– elements necessary in order to establish professional


negligence:
1. The negligence shall have been committed in the ordinary
course of business or professional affairs
2. One person must seek information or advice from another.
That person seeking information need not necessarily be the
professional’s client
3. The person giving the information or advice is not under a
contractual or fiduciary obligation to give the information or
advice
4. The information or advice must be given in circumstances in
which a reasonable man so asked would know that he was
being trusted or that his skill or judgment was being relied on
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NEGLIGENCE (cont.)

5. The person asked for this information or advice chooses


to give that information or advice. There must be no
disclaimer or a clear qualification which shows that the
giver is not accepting responsibility

Breach of Duty and Damages


– the plaintiff complaining of a breach of duty must prove
that there was such a breach and damage is caused by
the breach of that duty

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TRESPASS

Trespass is a direct and intentional interference with


the person or property (goods or land) of another and
is actionable per se (without proof of damage).

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TRESPASS (cont.)

1. Trespass to the Person


• this is a direct interference with the person (or body) of the
plaintiff and is actionable per se
• the interference may be intentional or negligent, the onus
being on the defendant to prove the absence of both on the
part of the defendant
• the plaintiff does not have to prove any actual damage
• assault and battery are crimes as well as torts. A person
commits an assault if there is an intentional act by the
defendant and the plaintiff reasonably believes they are in
imminent danger of harmful or offensive contact
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TRESPASS (cont.)

➢ A person commits a battery when defendant


intentionally or intentionally or negligently does an
act which brings about immediate or direct harmful
or offensive contact to the plaintiff.
➢ Example, includes the wrongful taking of finger
prints or kissing or spitting on another person.
➢ normally an assault would precede a battery;
➢ But it is possible to have a battery on its own –
example, hitting a person from behind without
warning.

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TRESPASS (cont.)

• false imprisonment occurs where a person intentionally and


directly places a total restraint upon the liberty of another
• for false imprisonment to occur, the restraint must be total
and without lawful justification, depriving the plaintiff of their
liberty
• the remedies available to the plaintiff include the writ of
habeas corpus and damages
• nervous shock occurs where a person wilfully does an act
that is intended to cause physical injury to another, and that
does in fact cause a reasonably forseeable physical harm
to them
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TRESPASS (cont.)

• the test of liability in intentional shock is on


whether the defendant intends to cause a
nervous shock. This means that the truth or
falsity of the defendant’s statement or actions is
not relevant

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TRESPASS (cont.)

2. Trespass to Land
• there must be a direct and voluntary physical
interference with another person’s lawful possession
of land
• motive is irrelevant
• remedies available to the plaintiff will be in the form
of damages and/or an injunction. If the defendant
has possession of the land and the plaintiff wishes to
recover it, then it will be necessary to bring an action
in ejectment for recovery of the land. This may be
combined with an action for damages
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TRESPASS (cont.)

3. Torts to Goods (or Chattels)


• goods or chattels may be owned or possessed. It
is possible for the owner to be in possession of the
goods, but equally it is possible for ownership to be
in one person and possession in another
• 3 classifications for torts to goods:
– trespass based on a wrong (interference to goods)
– detinue based on possession in the defendant (used
to regain possession of goods)
– conversion based on a right to possession (used in
cases of deprivation and destruction of the goods)
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CONVERSION

• occurs when a person deals with another’s goods


in a manner that is inconsistent with the plaintiff’s
right to immediate possession
• a wrong committed by a dealing with the goods of
a person which constitutes an unjustifiable denial
of his rights in them or the assertion of rights
inconsistent therewith

Elements of Conversion
• conduct of the defendant which amounts to a denial
of the plaintiff’s rights or which amounts to an
assertion of inconsistent rights
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CONVERSION (cont.)

• plaintiff must be entitled to property or possession in


the chattel and there must be on the part of the
defendant:
1. An intentional act of dealing with the chattels on the part
of the defendant
2. A physical dealing with the goods. There must be both
the sale and the delivery for it to be conversion
• damages are the usual remedy for conversion. The
amount of damages that will be awarded is assessed
on the value of the goods and, upon payment,
ownership of the goods passes to the defendant
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DETINUE

• is based on a demand by the plaintiff for the immediate


return of goods and a subsequent refusal by the defendant
• to succeed in a claim in detinue it must be proven that :
– he is entitled to immediate possession of the goods
– a specific demand was made for their return, nominating a place/s for
their return
– the defendant unreasonably refused to return them after the plaintiff
demanded their return at a specific time and place
• where the defendant is still in possession of the goods, the
plaintiff can seek return of the goods or damages for their
detention, or be awarded the value of the goods and
damages for their detention

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DEFAMATION

• the publication of a statement which affects a


person’s reputation in that it tends to lower him in
the estimation of right-thinking members of society
generally by making them shun or avoid him
• covers:
1. Slander – defamation in a temporary or non-
permanent form
2. Libel – defamation in a permanent form
• libel – a defamatory statement or representation in
a permanent form
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DEFAMATION (cont.)

• elements of defamation:
1. the words must be defamatory
2. they must refer to the plaintiff
3. they must be ‘maliciously’ published

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DEFAMATION (cont.)

Defences to an Action for Defamation


• three defences in an action for defamation:
1. justification (or truth)
2. fair comment
3. privilege, which may be absolute or qualified
• if the defendant can establish justification by evidence,
he has good defence
• if the statement is a fair comment on a matter of public
interest, the defendant has a defence so long as:

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DEFAMATION (cont.)

1. the matter commented on is of public interest


2. it must be an expression of opinion and not an
assertion of fact
3. the comment must be ‘fair’
4. the comment must not be malicious (that is, with
an evil motive)
• privilege includes statements in parliament and
judicial proceedings
• absolute privilege is a statutory defence provided
under section 11(1) of the Defamation Act 1957
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DEFAMATION (cont.)

Effect of an Apology
• an apology for the defamatory statement by the
defendant may mitigate damages and its absence
may aggravate them – see Felding v Variety
Incorporated

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NUISANCE

• concerned with land


• may be either public or private
• consists of an unreasonable interference with the use and
enjoyment of land and is concerned with indirect harm
• if an interference created by a defendant constitutes a
nuisance, the defendant will be liable for the nuisance,
whether or not they failed to take reasonable care
Public Nuisance
• unlawful act or a failure to discharge a legal duty generally
related to land which interferes with the enjoyment of a right
available to the general public and may result in the offender
being prosecuted
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NUISANCE (cont.)

Private Nuisance
• can be distinguished from a public nuisance in that:
1. It is not a crime
2. It can be committed against an individual or a class of the
population
3. It must be committed against land
• the essential element is that it must interfere with the
enjoyment of the land by the person in occupation, either
as owner or tenant. It is relied upon when the
interference is indirect or where the invading ‘thing’ is
intangible – see Robinson v Kilvent
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NUISANCE (cont.)

• the creator of the nuisance need not be in


occupation of the land. In fact, the nuisance
does not even have to be committed from
private land – see Berstein v Skyviews

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VICARIOUS LIABILITY

• is always strict liability – which means, liability without


fault
• arises where a particular relationship exists between
the parties; such as the employer–employee
relationship and the principal-agent relationship
Scope of Liability
• it must be first determined whether the person causing
the injury is in fact an employee or servant. Employers
are not vicariously liable for torts or wrongs

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VICARIOUS LIABILITY
(cont.)
• committed by independent contractors
• when considering whether a person is an
employee or not, the court does not only consider
the control that the employer has over the
employee but other factors as well
• employers are also liable for the mistakes made
by their employees and for the wilful wrongdoings
of the employee
• employers may also be liable for theft by their
employees and the employee’s fraud
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VICARIOUS LIABILITY
(cont.)

• in cases where the employer is vicariously liable,


the employer may be entitled to recover
damages from the employee for some or all of
the damages he has had to pay on account of
the employee’s tort; that is, to recoup himself for
the damages he has had to pay

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OCCUPIER’S LIABILITY

• occupiers owe a duty of care, due to their control


over their premises, which in some cases is non-
delegable, to anyone (even trespassers) who
comes on to their property to ensure that they are
not exposed to danger and risk of injury
• occupier’s liability – the liability of an occupier of
premises for any damage suffered by visitors to
the premises – see Wheat v Lacon & Co Ltd

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OCCUPIER’S LIABILITY
(cont.)
• in order to establish a case of occupier’s liability, a
plaintiff must establish that:
1. The defendant has occupation or control of the land or
structure
2. The hazard was in the nature of a ‘trap’ and not obvious
3. The defendant was negligent in not putting some
protection in place or giving a warning

Duties of an ‘Occupier’
• highest degree of care is owed by the occupier to one
who has entered the premises in pursuance of a
contract with
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OCCUPIER’S LIABILITY
(cont.)
• a lower duty is owed to the ‘invitee’; that is, a person who,
without any contract, entered the premises on business of
interest both to himself and the occupier – see Indermaur
v Dames
• lower still is the duty to the ‘licensee’, a person who
entered with the occupier’s express or implied permission
but without any committing of interest with the occupier –
the occupier’s duty towards him is to warn him of any
concealed danger or trap of which he actually knew
• finally, there is the trespasser, to whom there is owed only
a duty to abstain from deliberate or reckless injury – see
Robert Addie & Sons (Collieries) Ltd. v Dumbreck
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REVIEW

• Meaning of ‘Law of Tort’


• Negligence
• Trespass
• Conversion
• Detinue
• Defamation
• Nuisance
• Vicarious Liability
• Occupier’s Liability
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