LAW OF TORT

INTRODUCTION
THIS CHAPTER EXPOSE TO STUDENTS TO THE PRINCIPLE
IN THE LAW OF TORT RELATES TO THE RIGHT OF PERSON
AGAINST THE OTHER.

THERE ARE SO MANY BRANCHES IN LAW OF TORT.

HOWEVER THE DISCUSSION HERE IS MORE ON THE
PRINCIPLE OF THE LAW OF TORT, DUTY OF CARE,
NEGLIGENCE, TRESPASS TO PERSON, TO LAND AND
TRESPASS TO GOODS.
 Definition of Tort

 Tort is a civil wrong or wrongdoing as against someone else. The word tort is derived from a latin word
which means “wrong”.

 The wrongdoing is done as against the other’s right or interest. Example : an assault, battery, trespass and
etc.

 According to Windfield “Tortious liability arises from the breach of a duty primarily fixed by law, this
duty is towards persons generally and its breach is redressible by an action for unliquidated damages.
(Windfield and Jolowicz on Tort, 13th Edition p3).

 Tort law, a suit where the purpose of a legal action is to obtain a private civil remedy such as damages,
may be compared to criminal law that are punishable by the state.

 Successful claimants must show that they have suffered foreseeable loss or harm as a direct result of the 
breach of duty. The law of tort is hard to explain in a very specific explanation. It is including such diverse
claims as those of a passenger injured in a road accident, a patient injured by a negligent doctor, a pop
star libelled by a newspaper, a citizen wrongfully arrested by the police, and a landowner whose land has
been trespassed on. As a result, it is difficult to define a definition of a tort but in broad terms, a tort
happen where there is breach of a general duty fixed by civil law. The person who commits the act is called
a tortfeasor.
 TORT AND CONTRACT

TORT CONTRACT

 Duties of the parties are fixed by  Duties of parties are based on the
law. agreement fixed by the parties.

 The purpose of the remedy for  The damages are to compensate

instance damages is to restore the the Plaintiff as if the contract
position of the Plaintiff to the would have been implemented.
position before the commission of
tort.
 TORT AND CRIME

TORT CRIME

 Civil wrong. Means wrongful act  Criminal offences. Means wrongful

done by civilian or civilians against act as against the state where the
the other. criminal is prosecuted.

 Liable to pay damages.  Punishable upon conviction.

 Burden of proof is balance of  Burden of proof is beyond

probabilities. reasonable doubt.

 Term used is Plaintiff and  Term used is Prosecutor and

Defendant. Accused Person.
 Negligence

 Negligence is one of the most important area of tort law.

 Negligence define in Windfield and Jolowicz on Tort as “ the breach of a legal duty to take
care which result in damage, undesired by the Defendant, to the Plaintiff”.

 Negligence is a tort which arises from the breach of the duty of care owed by one person to
another from the perspective of a reasonable person. Negligence is a failure to exercised
amongst specified circumstances. The law on negligence may be assessed in general terms
according to a five-part model which include the assessment of duty, breach, actual cause,
proximate cause and damages.

 The ingredients of negligence:

 1. 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.
 2. Breach of that duty
 3. Consequential damage to B.
 Elements of Negligence

Duty of care
Not all act done carelessly by the person will compel the person be
responsible in law. The person only liable in negligence if he is under a legal
duty to take care.
How to determine the duty of care?
Case: Donoghue v. Stevenson
According to Lord Atkin in this case; “The rule that you are to love your
neighbour becomes, in law, you must not injure your neighbour; and the
lawyer’s question, Who is my neighbour? Receives a restricted reply. You
must take reasonable care to avoid acts or omission which you can
reasonable foresee would be likely to injure your neighbour. Who, then, in
law is my neighbour? The answer seems to be-persons who are so closely
and directly affected by my act that I ought reasonably to have them in
contemplation as being so affected when I am directing my mind to the acts
or omissions which are called in question.”
 Duty of Care

In this case, a manufacturer of ginger beer had sold to a retailer ginger beer
in an opaque bottle. The retailer resold it to A who treated her friend to its
contents. The ginger beer bottle also contained the decomposed remains of
a snail. A’s friend alleged that she become seriously ill in consequence and
sued the manufacturer for negligence.
The court held: Although there was no contractual duty on the part of the
manufacturer towards A’s friend, the manufacturer owed the duty of care
to A’s friend that the bottle do not contain noxious matter and he would be
liable if that duty was broken. Thus the Plaintiff was entitled to recover
damages against the manufacturer in negligence. Any person who
manufacturers product in such a way that there is no reasonable possibility
of intermediate examination before they reach the ultimate consumer, and
who knows that the absence of reasonable care on their part will result in
an injury to the consumer’s life or property, owes a duty to the consumer to
take reasonable care.
 Breach of Duty

Once there is a duty of care on part of the Defendant, that duty of care must be
in breach of it.
According to Alderson B. in the case of Blyth v. Birmingham
Waterworks Co. “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?
A reasonable man has been described as the man on the omnibus. Means an
ordinary man who is not expected t0 have any particulars skill such as that
possessed by a surgeon, a lawyer, an engineer or doctor unless he is actually
one.
Case: REO v. Minister of Health [1954] 2 QB 66
Hay (or Bourhill) v. Young [1943] AC 92
 Remoteness of Damage

The damage must be caused by the Defendant’s breach of

duty and must not be too remote a consequence of it.
Case: Barnett v. Chelsea and Kensington Hospital
Management Committee [1969] 1QB 428. The court
held that the failure of a doctor in examining the deceased
is not a negligence since even if the deceased had been
examined and treated with proper care, the probability was
that it would have been impossible to save his life.
Whether a particular harm was reasonably foreseeable is a
question of fact that depends upon the peculiar facts of
each case.
 Contributory Negligence

Section 12 of the Civil Law Act 1956 (Revised 1972) read as

follows:
Where any person suffers damage as the result partly of his own
fault and partly of the fault of any other person or persons, a
claim in respect of that damage shall not be defeated by reason of
the fault of the person suffering the damage, but the damages
recoverable in respect thereof shall be reduced to such extent as
the Court thinks just and equitable having regard to the
claimant’s share in the responsibility for the damage.
In apportioning damages, the court is directed to do what is “just
and equitable”. Normally the will look the extent of the Plaintiff’s
lack of care for his own safety as a major factor in considering
contributory negligence.
TRESPASS TO PERSON, ASSAULT AND BATTERY,AND TRESPASS TO
LAND

 ASSAULT
- Act of the Defendant which cause the Plaintiff a reasonable apprehension of an
immediate infliction of force on him.

Essential Elements:
(1) Some gesture or preparation to commit battery (the threat
must be of immediate force).
(2) Reasonable fear of harm, and
(3) Ability to carry out the threat.

 BATTERY
- A direct act of the Defendant which has the effect of causing contact with the body of
the Plaintiff without the latter’s consent.
 TRESPASS TO GOODS

 Elements
1) Hostile intent.
2) Force.
3) The act must be done by the Defendant voluntarily.

TRESPASS TO GOODS

Define as a wrongful and direct interference with goods that are in the possession of another.

Elements
1) Mental state od Defendant.
2) Interference.
 TRESPASS TO LAND

TRESPASS TO LAND
-Unjustifiable intrusion by a person upon the land in the possession of another. In addition,
living in another’s land without permission, refusing to leave after permission has been
withdrawn or placing an object upon the land without permission can constitute trespassing.

In this context, land includes premises like house, shop lots, occupied or vacant land.
Case: Conway v. George Wimpey & Co. [1951] 2KB 266, 273.
Court held that this tort may take place in movable transports like cars, buses and etc.

This type of tort is actionable per se. Meaning that it is not necessary for the Plaintiff to prove
that he has suffered actual damage on his land due to the Defendant’s act.

A slight entry upon another’s land without permission is sufficient to prove trespass. What is
needed is to prove the intention of the act done. Therefore, lack of knowledge of entering
another’s land without permission or ignorance of the law cannot be a defense in trespass.
 Case
 MBF Property Services Sdn Bhd v. Madihill Development Sdn Bhd [No 2] [1998] 4
CLJ 136.
 Held: The trespasser is liable whether he knows that he is trespassing or does not know that he has
no right in law to be there.

 The Concept of Possession and Trespass

Merriam-Webster Dictionary defines possession as the act of having or taking control
without regard to ownership.

TOL – Temporary Occupation License. With regard to TOL, a tenant has an exclusive
possession of a premise though he is not a landlord.

Case
Julaika Bibi v Mydin [1961] 27 MLJ 310. The court in this case recognize the
entitlement of a fresh TOL holder to bring an action of ejectment against the tenant of the
previous TOL holder that had been withdrawn his license.
 COMMON TYPES OF TRESPASS

 Trespass to Highway
Hickman v. Maisey [1900] 1 QB 752
A racing tout held by the court as a trespasser when had been walking up and down a 15 yard stretch of
the highway to watch and take notes of the trials of racehorses going on in the Plaintiff land.

 Trespass to Sub-Soil
Karuppanan v. Balakrishnan [1994] 3 MLJ 584
Federal Court held that in case of a serious trespass to land and airspace, the owner entitled to an
interlocutory mandatory injunction to remove the source of the trespass. It does not matter that the
source of the trespass had already been in existence before the new owner came to own the land and
whether or not he knew or had notice of it. In this case the appellant bought a hotel whose sewerage
system, manholes and septic tanks encroached on respondent’s land.

 Trespass to Airspace
Section 44(1) (a) of the Malaysian National Land Code 1965- owner of the land exclusive use of so much of
airspace as is reasonably necessary to the lawful use and enjoyment of land.
Kelsen v. Imperial Tobacco Co. [1957] 2 QB 334.
The court held that an advertising sign erected by the defendants on their own property, which projected
into their airspace above the Plaintiff’s shop, created a trespass. The Plaintiff can bring an action for an
injunction even if he suffers no damage at all.
 DEFENCES

(1) Enforcement
Section 16(1) of the Malaysian Criminal Procedure Code gives power to any person acting
under warrant of arrest or any police officer or penghulu (official headman) having authority to
arrest, the authority to search a place entered by a person they intend to arrest.

Section 16 (2), such person may enter by breaking open an outer or inner door or window of any
place so as to prevent a person to be arrested the opportunity of escaping.

A bailiff (an official of the court) who enters private premises on civil process, for example , to seize
property in execution, commits no trespass provided that he does not gain entry by breaking. He
may enter by opening an unlocked door but may not break open a locked one.

(2) License
A license is a permission given by a licensor to a licensee to enter or stay in a land for a period of
time. This can be made expressly through a contract or impliedly by the conduct of the parties.
Example the TOL holder is given a license to live in a portion of land for a certain period of time.
Upon its expiry, the government has the right to repossess the land. If the licensee exceeds the time
given, he is considered as a trespasser.
 REMEDIES

(1) Damages
 Damages is a monetary compensation for the loss or injury incurred by the Plaintiff. The
quantum of damages will contingent on the actual damage.
 For example, if the trespass is not so serious, the amount granted may be nominal relatively
compared to when the damage is done to the Plaintiff’s land, some aggravated or exemplary
damages will be granted by the court.

 Case
 Drane v. Evangelou [1978] 1 WLR 455. The court held that 1000 pound for exemplary
damages was too high. There is no standard of scale in determining the sum award in
exemplary damages. The judge has the discretion to fix the amount as he thinks proper to do
so.

(2) Injunction
Where the act of trespassing is recurring and continuing in nature or the trespass has been
threatened but not yet committed then the Plaintiff may seek an injunction to restrain any further
trespass. The general rule is that the Plaintiff is prima facie entitled to an injunction in the case of
a continuing trespass.
 Injunction

 Case : Anchor Brewhouse Developments Ltd v. Berkley House (Docklands

Developments) Ltd [1987] 2 EGLR 173 the court granted an injunction as the
Defendant’s crane which passes its boom over the Plaintiff’s airspace on a regular basis
during the construction. The injunction is granted to prevent any further trespass in the
future.

 ** Injunction is a prohibitory order from the court**

 Conclusion
 Every single person in this country is guaranteed to be protected by the law. No one is free
to cause injury to the other nor can touch the property of the other without the consent of
its owner. This is the purpose of the law of tort, to bring the society respecting the other’s
rights.