LAW083 chap 2 (torts)

no provision

meaning of Torts

• tortus - wrong / twist

• winfield

  • tortuous liability when

  • breach of duty fixed by law to any person in general and are redressible by an action of unliquidated damages

general features of torts

1. wrongful / unauthorised act / ommision

2. affect interest / rights of others

3. injured party / victim hv the right to claim damages

NEGLIGENCE: meaning of negligence

1. winfield n jalowicz

   • breach of legal duty resulting to damage, undesired by the defendant to the plaintiff

2. [ blyth v. birminham waterworks ]

   • omission to do something a reasonable man .. would do or doing things that a reasonable man woudn’t.

NEGLIGENCE: cause of action

Bank Bumiputera Malaysia v. Tetuan Wan Marican

1. on date suffered

2. in case of damage latent, on the date of damage exist and not from the time damage discovered

NEGLIGENCE: elements of negligence

1. duty of care

   • the defendant under duty of care to the plaintiff

2. breach of duty

   • the defendant have breach the legal duty by the defendant

3. damages

   • as a result, the plaintiff has suffered damage

NEGLIGENCE: define duty of care

obligation and burden, imposed by law that requires a person to conform to a certain standard of conduct

NEGLIGENCE: explain the test for duty of care

the ‘neighbour principle’ from [Donghue v. Stevenson]

• ‘neighbour’ refers to those who are closely / directly affected'

fact of the case

• the defendant is a mnufacturer where a friend of the plaintiff bought ginger beer in an opacque bottle

• after drinking half, the plaintiff pour the other half into a glass and discovered a decomposed snail. later he fell ill.

held

• the manufacturer have a duty of care over the consumer. including making sure the product is safe for consumption.

• does not matter if the manufacturer does not know the plaintiff as long as he is in the classes within the foreseeable injury.

NEGLIGENCE: define breach of duty

happens when defendant does something happens to be below minimum standard of care, and are measured through the standard of a reasonable man.

[ blyth v. birmingham waterworks ]

• omission to do something a reasonable man .. would do or doing things that a reasonable man woudn’t.

NEGLIGENCE: what is the reasonable man test

asking “ what would a reasonable person have done in defendant’s situation? “

it is to see whether the act is below standard of care which are expected from a reasonable man.

NEGLIGENCE: state the case law for breach of duty

1. vaughan v. menlove

   • defendant’s conduct judged by standard duty of care

2. gov of msia & ors v, jumat bin mahmud & anor

3. mohamed raihan b ibrahim & anor v. gov of msia & ors.

NEGLIGENCE: explain the Jumat case

gov of msia & ors v. Jumat bin mahmud & anor

• the plaintiff had been pricked in the thigh by a pupil behind him, when he turns around, the pencil pricked his eyes resulting it to be removed

held

• the court (federal court) consider on 2 things

  1. whether the risk injury is reasonably foreseeable

  assuming it was, nest question is

  2. whether the next step taken by defendant is reasonable to protect the plaintiff against the risk

appeal was allowed as constant vigilant wouldn’t avoid the injury

NEGLIGENCE; explain the mohamed raihan case

held (federal court)

the plaintiff have been hurt by hoe wielded pupil. the defendant was alleged of failing to provide proper instruction on handling gardening tools

held

fc differentiate the case from jumat’s case

the defendant failed to take reasonable step to prevent the injury.

NEGLIGENCE: plaintiff suffered damage and how to determine

• plaintiff have to prove he suffered damage / loss from defendant’s breach of legal duty

• the caused of breach must be foreseeable and must not be remote.

how to determine the damage suffered?

1. the but for test

2. causation in law / remoteness of the damage

NEGLIGENCE: explain the but for test together with the case law

but for the defendaant’s breach of duty, would the pplaintiff suffered the damage or loss anyway?

yes - the defendant did no cause the damage ( no negligence)

no - the defendant cause plaintiff injury (there is negligence)

case

[bernett v. Chealsea & kensington hospital management commintee]

• the plaintiff’s husband started vomitting after drinking some tea in th early morning so the plaintiff brough him to defendant’s hospital

• the doctor instructed the nurse to tell them to go home and call his own doctor

• later in the afternoon the husband died from arsenic poisoning.

• plaintiff sued hospital for negligence

held:

• doctor did breach his duty of care buy the husband would have died anyway even if the doctor had treated him

• the but for test are not satisfied

NEGLIGENCE: damages: explain the i. causation in law / remoteness of the daamage with relevant case law

the defendant will be liable if it is reasonably foreseeable for the damage suffered by plaintiff.

foreseeable - yes the defendant is liable for negligent

not foreseeable - no the defendant is not liable for the negligent

case

[ The Wagon Mound ]

• the defendant’s worker spilled the oil onto the water due to negligence and the oil spread to the plaintiff’s wharf.

• manager ordered to stop the wielding work and call the c oil company if they could continue and they said yes.

• two days later the oil caught on fire and the plaintiff’s wharf was extremely damaged.

held

it was not foreseeable that the oil would caught on fire. hence the defendant does not held liable.

DEFAMATION: meaning and aim

ruining the reputation of a person or a group by saying or writing bad things about them that are not true

spreading false statement ab a person that ruins their reputation

aim of law of defamation is to protect one’s reputation [dato’ seri anwar case]

DEFAMATION: types of defamation and relevant provision

1. libel

   • in permanent form

     • written statement or visual representatives that re published - newspaper, or books

   • actionable per se

   • the damage is presumed

   • plaintiff do not need to demonstrated the damage suffered from the published statement

2. slander

   • not in permanent form

     • words that are spoken or gestures.

   • not actionable per se

   • plaintiff have to prove the damage suffered

section 2 of the defamation act 1957

• words includes — pictures, visual, images, gestures and other medias signifying it..

DEFAMATION: state three elements and relevant case law

[ dato sri dr mohamed salleh ]

1. the words are defamatory

2. the words referred to plaintiff

3. the words are published

DEFAMATION: 1. defamatory words together with relevant case law

the defamation act 1957 does not defined defamation but was constituted through case law

[ chok foo choo ]

• the judge says ( gopal Sri Ram )

• defamation can be determine by two questions

1. the words published in it’s natural meaning imply dishonorable conduct or motives or lack of integrity in the plaintiff

2. if the response is affirmative, then it is defamatory

DEFAMATION: explains the 2 steps in determining

[ Wong Yoke Kong ]

1. to consider the meaning of the words published to be interpretated / convey by an ordinary person

2. after establishing the meaning, whether a reasonable man find the natural meaning of the words defamatory

DEFAMATION: explain the case for defamatory words

[ Datuk Seri Utama ]

• the defendant published a blog with the visual of the plaintiff

• the defendant claimed that the words, directly or indirectly indicates / suggesting he is guilty of raping his indonesian maid and capable of murdering her as well as he is unfit to be public office as Minister in MPs

held

the words were defamatory

DEFAMATION: explain the second element of defamatory with relevant law citation

the words refer to to the plaintiff

1. [ institute of commercial ]

   • the defamatory words published must be of the plaintiff

2. [ christian liew ]

   • the plaintiff prove the defendants refered to her when he mentioned her name

not necessary to be referred by name

• can also be referred by caricuture, nicknames n drawing

  • [ Chong Swee Hwar ]

• [ Sandison v. Malayan Times ]

  • if the defamatory statement does not content plaintiff name but a reasonable man is able to be identified — action may be taken againsts the defendant

determining if the statement without name is defamatory to plaintiff

• [ Knupper ]

• held:

  • in the case the plaintiff is not named — the court will consider if the statement would lead the plaintiff acquaintance to recognized the words would refer to him

  • this principle is used in [ Tuanku Nurzahirah ]

• [ Tuanku Nurzahirah ]

  • the acquaintance recognized the article refer to the plaintiff from the photograph in the published statement.

  • even if the statement were not published of the plaintiff per se

DEFAMATION: explain the third elements with the relevant law

the words must be published

[ S Pakhianathan ]

• the words must be published to a third party other than the plaintiff himself.

• by publication, the words of defamatory matter bust be made known to others than the person whom was written.

• in this case,

  • even sending copies of letters with allegations of criminal breach of trust to those other than the plaintiff is sufficient publication of the libel by defendant

[ Wan Abdul Rashid v. S Siva.. ]

• the plaintiff have claimed that the defendant, a solicitor and advocte had defamed him.

• P claim the defendant had labelled him as corrupt in front of the court staff and public

held:

there is a publication by the defendant of the words said about the plaintiff.

TRESPASS TO PERSON: meaning

[ Letang ]

• torts in trespass must have intention when at the moment of the act

there must be intention of the defndant when threatening

a careless torts are considred as negligence.

hence,

the important element of trespass is that the defendant must be proven to have acted out intentionally

TRESPASS TO PERSON: assault: explain the meaning and elements

assault

• intentional or direct act

• that instill fear or reasonable apprehension upon the plaintiff

• of the immediate infliction onto his person

• protection over a person’s mental wellbeing

elements

1. intention / mental being of defendant

2. the effect on plaintiff

3. the capability to carry threat

4. the bodily movement of defendant

TRESPASS TO PERSON: Assault: explain the first element with relevant case law

intention / mental state of the defendant

• must have the intention to carry out the act

[ Tuberville v. Savage ]

• Savage insulted Tuberville when he grabbed the handle of his sword and he state “if it were not for the assize-time, i would not take such language from you”

• Savage respond with force causing tuberville to lose his eye.

• Tuberville file an action upon Savage for assault, battery and wounding

• Savage argued that Tuberville provoke him

held:

Tuberville won the case as the statement he gave does not have any intention of harm because he precisely express that he was not going to harm Savage bc of the presence of the justice of assize at the moment.

hence, no assault from Tuberville.

TRESPASS TO PERSON: Assault: explain the second elements with relevant case law

the effect on the plaintiff

• the plaintiff must feel reasonable apprehension that force will be inflicted upon him

test

would a reasonable man, faced the same situation as the plaintiff, feel reasonable apprehensive that a force would be inflicted upon him?

‘force’ - some form of violent contact that would cause the reasonable man feel fear over such an attack

[ R v. St George ]

• pointing and unloaded gun to a person constituted as an assault

TRESPASS TO PERSON: Assault: explain the third element with relevant case law

capability to carry out the threat

• measured through the eyes of reasonable plainiff

• would a reasonable man in the same situation the plaintiff was, feel reasonable apprehensive / fear that there is a threat of immediate force upon him?

[ Stephen v. Myers ]

• the defendant threatened to hit the plaintiff while clenching his fist.

• he was stopped by a third party before he could reach the plaintiff

held:

there was capability for the defendant to carry out his threat if it were not for the 3rd party stopping him before punching the plaintiff

[ Thomas v. Mineworker ]

• the picketing miners were threatening the miners that did not join the picketing.

• the picket was observed and controlled by the police officers

held:

there is no assault as there was no capability to carry out the threat or make contact withe the threatened miners

realising there was no threats of violence and abuse

TRESPASS TO PERSON: Assault: explain the fourth element with relevant case law

bodily movement of the defendant

• the defendant must be able to carry a positive act in the circumstance indicating the defendant was to carry out the threat

• bodily movement per se in not sufficient but — must correspond with probable infliction of unwanted force to the plaintiff

[ Innes v. Wylie ]

• the police officer under instruction prevented the plaintiff from entering a room

held:

• there is no assault as the police officer action are entirely passive and he simply obstructed the entrance of the plaintiff.

• there was no positive action obstructed by the policeman

TRESPASS TO PERSON: Assault: can word constitute to assault?

general rule

• cannot

[ r v. meade ]

• no words or singing equivalent to assault

[ r v. wilson ]

• the word “get your knives out” constituted to assault

depends of facial, tone and gesture

[ r v. ireland ]

• words that instill reasonable fear or unlawful and immediate physical violence do amount to assault

TRESPASS TO PERSON: Battery: explain the meaning

intentional / direct application of force to the person without the person’s consent

TRESPASS TO PERSON: Battery: state the elements of battery

1. intention / mental state of the defendant

2. the act was under the defendant’s control

3. there was physical contact or application of force

4. without plaintiff’s consent

TRESPASS TO PERSON: Battery: explain the first element with relevant case law

intention / mental state of the defendant

• must have the intention when applied the force

• no violence is necessary and any contact made with the person’s body or clothes are sufficient to constitute as ‘force’

• the general rule - intend relates — direct act of defendant

  • have been widen — in doctrine of transferred intent

  • extending possible liability of the defendant

[ Scott v. Shepherd ]

• the defendant throws a squib to open market area.

• picked up by A and throws to B

• B throws away and hit the plaintiff which the squib flames up

held:

• the defendant is liable even if the contact is not direct

• as the act of A n B are simply for their safety without the intention to commit the act

TRESPASS TO PERSON: Battery: explain the second element with relevant case law

the act was under defendant’s control

• the defendant act must be done voluntarily

[ Gibbon v. Pepper ]

• the defendant was riding his horse when someone hit the horse from behind causing it to bolt and collided with the plaintiff

held:

• not liable as the horse bolting was not under control of defendant

TRESPASS TO PERSON: Battery: explain the third element with relevant case law

there was physical contact

• must be some contact with the plaintiff’s body / clothes

[ Collins v. Wilcock ]

• the policemen held the women intending to temporarily detain her

held:

• the contact was hostile and did not have the authority to detain her

TRESPASS TO PERSON: Battery: explain the fourth element with relevant case law

without plaintiff’s consent

• one cannot touch another person without the person’s consent or lawful justification

[ Nash v. Sheen ]

• the hairdresser tone rinse the plaintiff hair without asking for consent first.

• later the plaintiff suffered from skin issues / complications

held:

• there is battery as the consent from the plaintiff did not include tone rinsing and its consequences

[ Tiong Pik Hiong ]

• liable for battery for scratching the face of plaintiff as she was jealous of the friendship between plaintiff and her husband

no battery if

• consent was given directly or impliedly

TRESPASS TO PERSON: False Imprisonment: explain the meaning

restricting a person’s freedom of movement not necessarily by forces for a period of time without legal justification

TRESPASS TO PERSON: False Imprisonment: state the elements

1. intention / mental state of the defendant

2. must be direct consequences of the defendants’s act

3. the restraint must be complete

TRESPASS TO PERSON: False Imprisonment: explain the first element with relevant case law

defendant’s intented to do an act that can cause confinement of the plaintiff

[ Warner v, Riddiford ]

the plaintiff was dismiss as residence manager and was restraint by the defendant from going upstairs to collect his things

held:

this constitute to false imprisonment

TRESPASS TO PERSON: False Imprisonment: explain the second element with relevant case law

[ Ansell v. Thomas ]

• the one who caused the confinement may be the one to successfully be sued

• he is liable when he did it himself or he instigate another person to do for him

TRESPASS TO PERSON: False Imprisonment: explain the third element with relevant case law

the restraint must be complete

• no false imprisonment — if the plaintiff have some other way to escape the confinement or restraint

• unless it dangers plaintiff’s life

[ Bird v. Jones ]

• the main block was closed for the boat race

• the plaintiff was restricted from entering as he did not paid the administration fee

• he then got in some other ways and was restricted from going further by the defendant and some other policemen

• the plaintiff was given the choice to stay there or to leave

held:

• the restraint was not complete as the plaintiff are still able to go back but choose to stay

VICARIOUS LIABILITY: explain the meaning

‘vicarius’ - latin word

• experienced through action of another

liable

• to be responsible / accountable for something

vicarious liability

• hold someone liable for the action of another

• a person is responsible for the damage caused by another person’s act

VICARIOUS LIABILITY: state the components

1. responsible for hiring and controlling the employee

   • ensuring proper care of employee

2. employer should bear responsibility for employee’s damages

   • because employer benefits from employees work

3. the employer is in better financial situation / standing

   • employer have greater fund to pay the damages

VICARIOUS LIABILITY: state the elements

[ Tan Eng Sew ]

1. the tortious / wrongful act

2. must exist special relationship between the person to be vicariously liable and tortfeasor

3. during within the course of the employment

VICARIOUS LIABILITY: explain the first element with relevant case law

there must be wrongful / tortious act

• the employer is liable if the employee have committed negligence

[ Lim Ah Tong ]

• the son was killed in an accident caused by the negligence of the motor-van driver (1st defendant)

held:

• the employer (2nd def) was vicariously liable for the 1st def negligence as he was authorised to drive the van in the interest of the former

VICARIOUS LIABILITY: explain the second element with relevant case law

the special relationship between the person to be vicariously liable and the tortfeasor

[ Lee Won Jeng ]

• the employer is vicariously liable for a tort committed by the employee in the course of his or her employment

this principle did not apply to independent contracter

• the employer have no control over the contractor as so the damage happen latter is not his liability

exceptions

[ Datuk Bandar ]

1. employer did exercised the care in selecting the contractor

2. the duty to care is said to be non-delegable (cannot be represented?)

VICARIOUS LIABILITY: explain the third element with relevant case law

act done during the course of employment

test

“closed connection”

[ GMP ]

• def is a company that provides personal bodyguard

• jaafar was appointed to the respondent

• jaafar carried a firearm provided by the appellant

• while carrying out his duty, jaafar discharged the firearm causing injury to the some people and the respondent

held:

• the employer was responsible for selecting jaafar as the respondent personal bodyguard.

• by allowing jaafar to carry the firearm and intentionally discharging it meaning he caused danger to the public

• even though the act was done without the supervision of the employer, it is closely connected to the employment so it is fair to hold the employer vicariously liable

if employer hold vicariously liable, he may seek compensation from the employee for negligence