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REMEDIES IN TORT

Lecture 4

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What is tort?
A violation where one person causes damage,
injury, or harm to another person that may result
from intentional actions, a breach of duty as in
negligence, or due to a violation of statutes.

The party that commits the tort is called the


tortfeasor that incurs tort liability, meaning that
they will have to reimburse the victim for the harm
that they caused them if found to be “liable” or
responsible for a person’s injuries in the form of
remedies such as damages. To put the claimant
into the position he would have been in had the
tort not been committed- remedies

The injury suffered by the plaintiff does not have to


actually be physical but may include emotional
distress or a violation of personal rights, loss of
liberty, inconvenience and discomfort.
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Tortious claims
Damages for personal injury caused by:
• Negligence
• Occupier’s Liability
• Breach of Statutory Duty
Arise from the specific duties imposed upon various usually
employers, with regard to safety and health in various places of work,
industrial processes and commercial premises.
Those duties are laid down in statute e.g Occupational Safety and
Health Act 1994
Livingstone v Rawyards Coal Co (1880) 5 App Cas 25, 39

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Types of Damages

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DAMAGES IN TORT
The need to establish liability
+To establish liability on the Defendant in order to recover
damages, the claimant must show:
• The elements of tort
• Causation
• Loss and damage*
• The question of remoteness

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Loss and damage
• The claimant must establish loss and damage in order to recover
damages.
• Does not have to establish the extent of his loss , so long he can prove it
exists , the court will then assess the damage.
• There are limitation in law as to the type of loss in respect of which
damages can be recovered, e.g pure economic loss in negligence is not
recoverable ( Junior Book Ltd v Veitchi & Co Ltd [1983] 1 AC 520).
• Exception, economic loss resulting from negligent misstatement and
negligence professional advice.
• However, this is limited only to cases of negligence.
• Pure economic loss is recoverable in such cases like misrepresentation,
deceit, procuring breach of contract, conspiracy, slander, conversion,
breach of copyright, patent infringement.

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Consequential economic loss
• Consequential economic loss can also be recovered.
• The claimant may recover damages for loss of its use until it is
replaced or being repaired.
• Include cost of hiring an alternative( so long this is reasonable).
• Lost of profit in the interim.

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Time and Mode of Assessment of
Damages
• Assessed at the date when damage occurs.
• This will not necessarily be the same as the date when the
cause of action arose.
• The court are also bound to take account of all events which
occur prior to trial, which suggests that damages should be
valued as at the date of trial.
(Dodd Properties (Kent) Ltd v. Canterbury City Council [1980] 1 ALL ER 928)

• Mode of assessment varies according to the tort committed


and the nature of loss.

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First Example : Negligent Valuation of Property
 In cases of negligent survey reports- claimant had bought the property
above the price contrary to what he would have paid if the report is
correct.
 Measure of damages: diminution in value, not cost of cure.
 The claimant can recover the difference between the price but not the
cost of repairs.

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Second Example : Interference with Property
• Occurs in the case of conversion, nuisance and trespass.
• If claimant has been permanently deprived of goods, damages will be
assessed as if it was destroyed.
• He will either recover the value of the goods lost or the cost of
replacing them and consequential damages for loss of use.

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Third Example : Land
• In trespass in land, damages are recoverable without proof of loss.
• If the claimant can show financial loss deriving from the loss of use of
the land, damages may be assessed on that basis.
• Otherwise, the assessment may be based on the fair rent for the land
or fair sum for granting an easement.
• If nuisance occurs on the land, damages are assessed on loss of
amenity basis.

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Reduction of Damages

1. Contributory Negligence
It is a partial defence for a
Defendant
A factor which reduces damages
in tort.
It is for the Defendant to raise
and prove. Once established ,
the court is obliged to apportion
responsibility in some way.
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Apportionment of Responsibility
• It is made within the court’s discretion and depends on the facts of
the case.
• Matters considered:
• i. negligence by claimant which cause the accident and injury or
exacerbated the injury.
• ii. Extent to which the claimant caused his own injury but extent
to which he is blameworthy.
• Measurement:
• The extent to which the claimant is responsible for his own or her
damage as opposed to anyone else.
• How it is Quantified: 50% or more.
• Fitzgerald v Lane [1989] AC 328
2 Ds and 1 claimant were found to be all three equally at fault, and
assessed damages on the basis of 1/3.
Contributory Negligence is always assessed as a percentage or
fraction or a round number e.g 20%, 25%, 40%, 10%.
Less than 10% is likely to be ignored by the court. 14
Apportionment of Responsibility
• Apportionment between 2 Defendants
• 2 Ds liable to claimant, the decision has to be made as
to what proportion of the claimant’s damages each
Defendant should pay.
• Liiability in tort is either joint or several. If either of
them could not pay, the 100% goes to the one who is
able to pay.
• If both of Ds are able to pay, the court will apportion
damages as it sees fit depending on degrees of fault,
blameworthiness and causation.

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Apportionment between Defendant and a claimant
• The proportion of contributory negligence must be
dealt with first and then the apportionment between
Ds can be made.
• E.g:Claimant is to be blamed for 10%.
Apportionment of liability (90% for both Ds):
i. 1/3 for D 1 (30% out of 90%)
ii. 2/3 to D 2. (60% out of 90%)

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Apportionment between 2 causes.
• Where the claimant’s injury is the result of more than one cause.
• A Defendant that can be liable for some of the injury.
• The court must make an apportionment to assess what proportion of
claimant’s injury the D can be said to be responsible for.

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Mitigation
The positive requirement
• The claimant has a duty to mitigate. However, he is not required to
minimise his loss at all cost, rather that he has to take all reasonable
steps to do so.
• If claimant fails to do so, damages will be assessed on the basis on what
the loss would have been had he taken reasonable steps.
• Any reasonable expense incurred in order to mitigate may be recovered
as damages, even if no mitigation is achieved.
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Mitigation
The negative requirement
• The claimant is under a duty not to do anything unreasonable
subsequent to the damage which might exacerbate it, and not to
incur any unreasonable expense which increases the extent of his
loss.
• The test is whether it was reasonable for the claimant to have
behaved as he did at the time.
• If claimant fails to do so, damages will be assessed on the basis on
what the loss would have been had he not taken action incurred that
expense.

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Mitigation
The test is subjective
 It is what is reasonably subjective.
 The question is whether it was reasonable for this claimant in all the
circumstances to have behaved as he did.
 Not whether a reasonable person would have behaved in that way.
 E.g: The court in a case of personal injury would hold that:
 It is reasonable for the parents of an injured child to stay at home to care for their child to give
up their jobs in order to stay at home to care for their child, even though their financial loss
would have been far less had they employed a nurse and a nanny.

The burden of proof


 Is on the Defendant to show that the claimant has failed to take reasonable
steps to mitigate, not on the claimant to show he has done so.

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Exemplary Damages
• Also known as punitive damages can be awarded in 3
circumstances (Rookes v Barnard [1964] AC 1129):
• i. Where there has been oppressive or unconstitutional action
by the servants of the government.
• ii. Where the D’s conduct has been calculated to make a profit
which may well exceed the compensation payable to the
claimant.
• iii. Such damages are expressly authorised by statute.

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• The quantum of exemplary damages is highly arbitrary and
within the discretion of the judge.
• However the Defendant’s means is normally taken into
account.
• Thompson v Commissioner of Police of the Metropolice [1997] 2
All Er 762
• Involving misconduct by police, the judge must give the jury guidance
as to quantum and indicate a range for exemplary damages of
£5,000 and £50,000.

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Aggravated Damages

• This damages can be


awarded in a case of
malicious falsehood.
• Such damages go beyond
compensating the claimant
for loss, but include an
element of damages for
injury to feelings/emotional
harm caused by the D’s
conduct and malicious
intent.
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INJUNCTIONS

• An injunction can only be granted in support of a legal right.


• Since a tort is a legal wrong, the claimant has a right to
prevent that legal wrong.
• Injunction is useful in tort to restrain trespass, nuisance,
defamation, inducing breach of contract an all torts involving
intellectual property.
• See Specific Relief Act 1950

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Prohibitory Injunctions
• The Primary Remedy
• Strictly, an injunction is granted when damages would not be an
adequate remedy.
• However, injunction has become the primary remedy unless:
• The injury to the claimant’s legal rights is small;
• The injury is assessable in money;
• A small money payment would be adequate compensation; and
• It would be oppressive to the D to grant an injunction.
• See Watson v Croft Promosport Ltd (2009) 3 All ER 249

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Appropriateness of an injunction
• Injunction becomes a right to which the claimant is entitled
unless there are special circumstances.
• Pride of Derby and Derbyshire Angling Association Ltd v British
Celanese Ltd (1953) Ch 419, read judgment by Denning LJ
• This is because an injunction is so obviously appropriate and
because damages will rarely be adequate.
• Damages can only compensate a claimant for past damage and
not to prevent future recurrence.

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Refusal of Injunctions
• Injunctions may be refused for the reasons mentioned before and/or it is
barred in equity by delay, acquiescence, or his or her own conduct.
• But in serious case, injunctions are rarely refused, even if considerable
hardship may be caused to the D or if the interest of the public at large is
overwhelmingly greater than the private interest of the claimant.
• See Redland v Bricks Ltd v Morris (1970) AC 652, Attorney General v
Birmingham Council (1858) 4 K&J 528

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Mandatory Injunctions
• Order to undo the wrong.
• Usually sought in the case of trespass.
• To require Defendant to remove something from the claimant’s land
or which causes a nuisance.
• It will not be made if hardship may be caused to the Defendant.
• It is refused not only when the serious hardship would be caused to
Defendant but simply where the hardship suffered would on balance
be greater than that suffered by the claimant if the order was
refused.
• Mandatory injunctions are much harder to obtain than prohibitory
injunctions.
• The grant is not automatic , damages in lieu will usually be regarded.
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Quia Timet Injunctions
• QuiaTimet (because he fears) injunctions may be
granted to restrain a tort before damage is done
• Usually in the case of nuisance.
• A high degree of proof is required.
• The claimant must show, on good evidence, that the
tort is highly likely to occur and to occur
imminently.There must, if no actual damage is proved,
be proof of imminent danger, and there must also be
proof that the apprehended damage will, if it comes,
be very substantial.
• See Fletcher v Bealey (1884) 28 Chd 688 , Vivamall Sdn
Bhd & 2 Ors v TDC Construction Sdn Bhd & 2 Ors (2013) 1
AMR 279, Lemos v Kennedy Leigh Development Co
(1961) 105 SJ 178 30
Interim injunction
s

• An interim injunction is often sought where the other party, if


unrestrained, might cause irreparable or immeasurable damage by
continuing the conduct which has led to the dispute.
• The principles whether or not to grant an interim injunction had been
established in a patent infringement case of American Cyanamid Co v
Ethicon Ltd [1975] 1 All ER 504; [1975] AC 396(‘American Cyanamid’)
• See Aventis Farma SA (m) Sdn Bhd v Rohibul Sabri bin Abbas @ Megat &
Anor [2008] 3 MLJ 451
• A court can make orders to restrain actual or threatened:

i. publication of obvious and defamatory lies;


ii. infringement of copyright, trademark or other intellectual property
rights;
iii. wrongful use of confidential information and trade secrets;
iv. ongoing breach of contract;
v. activities which constitute a nuisance; and
vi. dealings with particular customers or suppliers.
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RHAM MOHD NOOR)
By Ahmad Johari Mohd Ali - February 14, 2018 @ 7:57pm
PUTRAJAYA: The Court of Appeal today rejected an appeal by Tony Pua Kiam Wee to
lift an interim interparte injunction obtained by Datuk Seri Najib Razak against the
Petaling Jaya Utara Member of Parliament over a video clip which the Prime Minister
claimed was defamatory.
The three-man bench comprising Datuk Abang Iskandar Abang Hashim, Puan Sri
Zaleha Yusof and Datuk Yaacob Md Sam unanimously dismissed Pua's appeal to set
aside a High Court decision on Aug 4 last year, granting Najib the injunction order to
restrain Pua from repeating the alleged slanderous allegations.
The bench made the decision after finding that Pua's grounds of appeal had no basis,
did not have any merit and no excuse to interfere with the High Court's decision.
Yaacob, who delivered the court's judgment said the court found that Najib had
satisfied the necessary requirement for an interim injunction to be allowed.
He said there was also evidence of Pua's intention to repeat the alleged defamatory
statement.
Yaacob said the High Court judge did not commit any misdirection of law when granting
Najib the interim injunction.
He adds that the court took judicial notice that the Attorney-General had made a
decision that Najib had committed no wrongdoing in relation to 1MDB.
He said investigations were also carried out by the Malaysian Anti-Corruption
Commission (MACC), Royal Malaysia Police, Bank Negara and the Attorney-General’s
Chambers and the results which have been disclosed to the public by the Attorney-
General and the MACC cleared Najib of any criminal wrongdoing.
In the proceedings, Najib was represented by Datuk Mohd Hafarizam Harun while
Gobind Singh Deo acted on behalf of Pua.
The video clip in question was recorded by the law maker at the Parliament lobby and
was uploaded in the Faqcebook account, under the name of Tony Pua, entitled: 'BN
Govt abandons all Bills to give precedence to PAS RUU 355 Private Member's Bill'.
The Prime Minister claimed the video clip could be accessed widely and freely on the
internet.
Najib sued Pua in his personal capacity, alleging that Pua had made defamatory
statements against him on live video relating to the tabling of the bill.
On April 21, last year, the High Court allowed Najib’s application for an ex-parte
injunction to restrain Pua from further publishing similar or the same words.
On Jan 26, this year, the appellate court bench reserved decision in Pua's appeal after
hearing submissions from counsels.
The court subsequently, fixed today to deliver the verdict. 32
•THANK YOU….
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