LAW 435 LAW OF Torts 1 PDF

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LAW 435 LAW OF TORTS 1INTRODUCTIONA. DEFINITION OF A TORTOriginates from Latin word “tortus” which means “twisted” or “wrung”. These 2 words signify “wrong”.Therefore, simply means a “wrong” in its most unethical sense.May consist of either a wrongful act or omission, which is not authorized by the ...

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LAW 435 LAW OF TORTS 1 INTRODUCTION A.

DEFINITION OF A TORT

Originates from Latin word “tortus” which means “twisted” or “wrung”. These 2 words signify “wrong”. Therefore, simply means a “wrong” in its most unethical sense. May consist of either a wrongful act or omission, which is not authorized by the law. Has the effect of encroaching onto another’s interest whether this encroachment results in actual damage or not, which entitles the other party to a remedy from which he or she will hopefully be restored to his or her previous position. Examples: Torts committed through wrongful acts; categorized under trespass to the person: - Tort of Battery. E.g.: A intentionally hits B without the latter’s consent. - Tort of False Imprisonment. E.g.: A without any lawful justification locks B up in a room. Torts committed through omission - Tort of negligence. E.g.: A carelessly omitted to brake his car when he had clearly noticed that B was crossing the road, with the result that B suffered injuries. B. THE SCOPE OF TORT LAW No accurate definition that readily explains the width or scope of the law of tort. Not all wrongful acts or omissions are legal wrongs. E.g.: If B were drowning & he called out to A for help, and A failed to rescue B, A would have committed any tort towards B. A’s behaviour would a moral wrong but it is not a tort, that is a legal wrong [Gautret v Egerton (1867)]. Categories of Legal Wrongs: i. Civil Law; or ii. Criminal Law. Well established torts: i. Trespass to person (Assault, Battery & False Imprisonment); ii. Interference to goods (Trespass to goods, Conversion & Detinue); iii. Trespass to land; iv. Negligence;

v. Defamation; vi. Nuisance; and vii. Strict liability. Tortious liability has slowly expanded, inter alia, interference with trade, passing off and product liability. C. GENERAL FEATURES OF A TORT Generally: 1. There must be a wrongful or unauthorised act or omission; and 2. That wrongful or unauthorised act or omission affects the interests or rights of others; and 3. The injured party or victim has a right to claim for damages. D. TORT DISTINGUISHED FROM OTHER BRANCHES OF LAW It is necessary to consider the differences between: a. Tort & Crime; b. Tort & Contract; c. Tort & Trust; and d. Tort & Restitution. Although may overlap. TORT & CRIME Tort – civil wrong against individual or number of individuals whereas Crime – an offence against the State. Tort – civil proceeding instituted by the injured party/tort victim whereas Crime – criminal proceeding is brought by the State through office of Public Prosecutor/ Police. Tort – governed by civil procedure as opposed to Crime – governed by criminal procedure. Remedy Tort – Compensation usually in the form of damages (monetary) whereas Crime – criminal law strives to control & regulates human conduct and done by punishing the accused (through the imposition of a fine or by imprisonment or both.) Terminology Tort – Parties to a tort action referred ‘plaintiff’. The “defendant” is sued by the plaintiff. As result the defendant may be found liable or not liable. Crime – In a criminal proceeding, the “accused” is prosecuted by the State, the Public Prosecutor & the accused will either be found guilty or not guilty. Overlap

Historically tort had its roots in criminal procedure. The crime of theft, for instance is also the tort of conversion. Public nuisance is both a crime and a tort. Not accurate to speak of the law of tort as being wholly compensatory in nature, for the award of exemplary damages is an instance of the punitive element in the law of tort.[Rookes v Barnard (1964)]. TORT & CONTRACT Like a tort, a breach of contract is also a civil wrong which give rise to an action for damages. Salmond & Heuston: Tort – the duties are primarily fixed by the law whereas Contract – duties fixed by the parties themselves. Duty Tort – towards persons generally whereas Contract – Towards a specific person(s). Purpose / Object of the Remedy Given. Tort – To restore the plaintiff, as far as possible to the position he was in before the commission of the tort. Principle of restoring him to his original position is known as restitutio in integrum. Contract – Awards damages to the plaintiff to compensate him for what he would have obtained if the contract had been performed. Overlap In the same wrong may be both a breach of contract & also breach of duty which constitutes a tort. Edwards v Mallan (1903) – There may be a contract between a doctor & his patient for the former to treat the latter. This agreement also gives rise to a duty of care on the part of the doctor, so that if the patient suffers an injury the doctor would be in breach of the contract as well as be liable for the tort of negligence. The plaintiff patient may sue for either breach of contract or negligence or both, but he cannot recover damages twice over. TORT & TRUST Both is a civil wrong. Tort – child of the common law; principles of tort law are derived judicial decisions. Trust – has developed from the jurisdiction of the courts of equity. Obligations Tort – Arising from principles of law.

Trust – More limited in scope, applying the trustees only & to people generally. Arises from the special relationship created by the trust itself. Purpose / Object of the Remedy Given. Tort – Gives rise to an action for damages. Trust – Gives rise to an action for restitution whereby the defendant trustee is required to reimburse the plaintiff beneficiary of any improper gains or profits that he had made through the trust. TORT & RESTITUTION Tort – Tortious claim where the plaintiff must prove that the defendant’s act or omission is a wrong recognised by the law. Restitution – The law of restitution (Unjust Enrichment) is based on the idea that if A has been unjustly enriched vat the expense of B, then A must make restitution. It includes: - the recovery of an advance payment made under a contract which is subsequently not performed; - the recovery of money paid by mistake; or - the recovery of goods, land, services or some other benefit. The plaintiff in a restitutionary action is not required to prove that there has been wrong committed by the defendant. Damages Restitution – The plaintiff in a restitutionary claim cannot recover damages based on injury or loss or expectancy. Tort – 3 grounds may each be a reason for receiving compensation in a tortious claim. E. SOURCES OF TORT LAW IN MALAYSIA 3 main sources of the law of torts in Malaysia: 1. English Common Law; 2. Local Judicial Decisions; and 3. Common Law Principles which have been codified into local statutes. ENGLISH COMMON LAW (“CL”) The application of principles of English tort law in Malaysia is based on the provisions of Section 3 of the Civil Law Act 1956 which came into force on 1st April 1972. Section 3(1) provides: (1) Save so far as other provision has been made or may hereafter be made by any written law in force in Malaysia, the Court shall – (a) In West Malaysia or any part thereof, apply the common law of England and the rules of

equity as administered in England on the 7 th day of April 1956; (b) In Sabah, apply the common law of England and the rules of equity, together with statutes of general application as administered or in force in England on the 1st day of December 1951; (c) In Sarawak, apply the common law of England and the rules of equity, together with statutes of general application as administered or in force in England on the 12th day of December 1949, subject however to subsection (3)(ii): Provided always that the said common law, rules of equity and statutes of general application shall be applied so far only as the circumstances of the States of Malaysia and their respective inhabitants permit and subject to such qualifications as local circumstances render necessary. Therefore, the above are applicable in West Malaysia, Sabah & Sarawak (7th April 1956, 1st December 1956 & 12th December 1949) respectively. Any developments or changes in English CL & equity after the stated dates do not automatically become law in Malaysia.

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First, determine whether there is any written law pertaining to the subject matter of the trial, which is in force in Malaysia; If none, to determine what is the common law of, and the rules of equity as administered in England on 7th April 1956; Having done that the court should consider whether local circumstances & local inhabitants would permit its application; If it is permissible, the court should apply it. If not, the court is free to reject it totally or adopt any part which is permissible with or without qualification; Where the court rejects it totally or in part, then there being no written law in force in Malaysia, the court is free to formulate Malaysia’s own common law. The court is at liberty to look at any source of law, local or otherwise, be it England after 7th April 1956, principles of CL in other countries, Islamic law of common application or the common customs of the people of Malaysia.

LOCAL JUDICIAL DECISIONS Tort law is a creature of the CL & is mostly not codified. Principles of law found in judicial decisions form a major source of tort law.

They are only persuasive authority, in the sense that Malaysia courts may choose to either adopt or reject these new developments of changes Lee Kee Chong v Empat Nombor Ekor (NS) Sdn Bhd (1976).

In most branches of tort, Malaysian courts have followed & incorporated existing English CL tort principles in deciding local cases.

In determining whether to accept the principles arising from English cases, the courts must have regard to the circumstances of the States of Malaysia and ought to be careful in applying them only to the extent that the written law permits and no further than in their view it is just to do so Jamil bin Harun v Yang Kamsiah & Anor (1984).

LOCAL STATUTES The only branch of Malaysian tort law that has been codified into statute is the law of defamation contained in the Defamation Act 1957. Many English CL principles are followed with regard to the meaning of defamation & the elements constituting the tort of defamation.

English CL & rules of equity to be adopted only in the absence of local statutory provisions or judicial guidance. English authorities are persuasive but are not binding. The proviso to Section 3(1) of the Civil Law Act 1956 limits the wholesale application of English law. Local law takes precedence over English Law and it is only those parts of the English Law which are suited to local circumstances that will be applied. In Nepline Sdn Bhd v Jones Lang Wootton (1995) it was held that in applying Section 3 of the Civil Law Act 1956 the approach ought to be taken by the courts is:

F. FUNCTIONS AND AIMS OF THE LAW OF TORT Most important function is compensation or loss distribution. According to Rogers: “The law of torts is concerned with the redress of wrongs or injuries (other than breaches of contract) by means of a civil action brought by the victim. This redress most commonly takes the form of damages, that is to say monetary compensation.” Defendant (Tortfeasor – person alleged to have committed the tort), through the monetary compensation that he pays out the tort victim, in effect shares the burden of the victim’s loss.

Deterrent function or purpose: - The tortfeasor has had to pay some compensation to the victim; he will be more responsible & careful in all his future activities, so as not to adversely affect anyone. - Through award of damages, also purports to discourage other individuals in the society from behaving in a way similar to the tortfeasor. G. SEVERAL IMPORTANT CONCEPTS IN THE LAW OF TORT 1. Tortious Liability 2. Intention 3. Motive & Malice 4. Damage 5. Damages TORTIOUS LIABILITY Liability arises – a person does something that is not allowed or does not do something that is required by the law. Winfield defines tortious liability: “Arising from the breach of duty that has been sanctioned by the law. This duty is owed towards the public generally, the breach of which may be redressed by an action for compensation in the form of unliquidated damages.” INTENTION Is a state of mind & may be deduced from a person’s conduct into 2 ways: 1. Where a person knows the consequences of his actions, and wishes for those consequences to befall the plaintiff; or where a person realises that there is a risk that his act or acts will result in some harm, but that the occurrences of the harm is only a possibility & undesired by him. 2. A man is presumed to have intended the natural & probable consequences of his act. So, a defendant whose conduct is foreseeable to give rise to some infringement of the plaintiff’s interest is said to have the intention to commit the act in question. Intention remains relevant in all intentional torts. However, the intention is no longer as important now especially in the realm of negligence, which utilises the objective test in determining liability. The concept of remoteness of damage has also played a role, because even if the defendant had the required intention initially due to the remoteness of the damage that occurs, he may not be liable in the end.

MOTIVE & MALICE In general, tort is not concerned with a person’s motive, be it good or bad, altruistic or selfish. This means that motive is usually irrelevant in determining the defendant’s liability. In Bradford Corporation v Pickles (1895) Lord MacNaghten stated: “It is the act, not the motive for the act, that must be regarded. If the act apart from motive, gives rise merely to damage without legal remedy or right, the motive however reprehensible it may be, will not supply that element.” Improper / evil motive, spite / ill-will, otherwise known as malice may be relevant in certain torts. In Allen v Flood (1989) stated that: “Malice has 2 meanings; i. An improper motive and ii. It is intentional doing of a wrongful act.” Malice relevant in the torts of nuisance & conspiracy and defeats the defences of fair comment and qualified privilege in the tort of defamation. DAMAGE Negligence, nuisance, strict liability & defamation require proof of damage / harm before the defendant is held liable. In the form of physical injuries, damage to property, damage to reputation or economic loss (“Pure Economic Loss if the loss is solely pecuniary in nature”). Not all forms of damage / harm are actionable in tort. Not all torts require proof of damage because a tort may be actionable per se, for example the intentional torts of trespass to person, land and interference to goods. DAMAGES Means the monetary compensation that defendant is ordered to pay to the plaintiff.

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2 Categories: Unliquidated Damages – refers to unquantifiable damage includes general damages for pain & suffering; and Liquidated Damages – specific damage that the plaintiff has suffered for instance loss of earnings & medical earnings.

H. LIMITATION Plaintiff needs to commence his actions within the limitation period prescribed by law. Failure to comply with the limitation period would be fatal to the plaintiff’s case as limitation operates as an absolute defence for the defendant. General Limitation Period – 6 years for plaintiff who is suing in tort (Section 6(1)(a) of the Limitation Act 1953). However, if the party sued is the Government of Malaysia the limitation period is 3 years (Section 2(a) of the Public Authorities Protection Act 1948)....