Tort

Question 2 of General Paper (GP) in CLP Examination: Based on Tort Liability

Overview

• Generally divided into three parts.

• The last part is always settling a Statement of Claim for the plaintiff.

• Focus is on the Statement of Claim; there is no current testing on Statement of Defense.

• Representing the plaintiff.

Question Breakdown

• Second Question: What is claimable and the remedies available.

• First Question: Comprehensively advise on possible causes of action.

Accident Scenarios

• Involves an accident leading to damages.

• Not limited to road or motor vehicle accidents; can be any type of accident.

• The task is to identify prospective defendants and possible defenses.

• Need to understand the facts to identify the causes of action arising from the accident.

Identifying Defenses

• Indicate any defenses available to potential defendants.

Key Causes of Action

• Liability in Negligence: Often related to motor vehicle accidents.

• Nuisance.

• Statutory Liability: Example: breaches of statutory duty in factory accidents.

• Strict Liabilities: Under Rylands v. Fletcher, Occupier's Liability.

• Vicarious Liability.

• Property Damage: E.g., a lorry damaging a building.

Plaintiff's Perspective

• Advise the plaintiff on potential causes of action arising from the accident.

Types of Claims

• Personal Injury Claim: For injuries suffered by the person.

  • Claim for losses due to the injury.

• Dependency and Estate Claim: When the victim dies due to the accident.

  • Dependency Claim:

    • Covers statutory dependents.

    • Governed by Section 7 of the Civil Law Act 1956.

    • For the benefit of the deceased's statutory dependents.

  • Estate Claim:

    • Governed by Section 8 of the Civil Law Act 1956.

    • For the benefit of the deceased's estate.

  • Civil Procedure knowledge is crucial (e.g., who is a Personal Representative).

  • Claims are brought by a Personal Representative (PR).

• Property Damage: Damage to property with no personal injury is involved.

  • Damage to items like watches, motorbikes, or buildings.

Identifying Prospective Defendants

• List all potential defendants based on the facts.

• Discuss the causes of action against each defendant.

Statement of Claim

• May be required against a specific defendant or for a particular injury type.

• Naming of Plaintiff and Defendant: Use Civil Procedure knowledge.

  • Consider Order 76 regarding infants or patients (mentally unsound persons).

Remedies

• Claimable Losses: Must be reasonable with a causal link.

Limitation Periods

• Personal Injury: Six years from the accident date.

• Dependency: Three years.

• Estate Claim: Six years.

  • If suing the estate of the deceased tortfeasor, action within six months after representation is taken out.

  • Action against public authority: 36 months (Specific examples like actions under PAPA).

Strategy for Identifying Causes of Action

• Decide on the courses of action available based on the facts.

• State the ingredients for each tort to show the action is available against the defendant.

• Discuss the facts against each defendant, considering attachments like sketch plans, police reports, and medical reports.

General Negligence

• Used to be at 90%, now around 70-75% of exams.

Elements

• Duty of Care:

  • Defendant owed a duty to the plaintiff.

  • Based on Donoghue v. Stevenson (Neighbor Principle).

  • Road users owe a duty of care to each other.

  • By act or omission, the other party can suffer damages.

  • Omission example: Failure to signal can lead to an accident.

• Breach of Duty:

  • Duty must be breached.

  • Test: Reasonable man's test (standard of care of a reasonable person).

  • In road accidents: reasonable, skilled driver (Nettleship case).

• Damage:

  • Must be damages caused to the plaintiff as a result of the breach.

  • Show proximity.

Duties

• Driving: Keeping a proper lookout, obeying road signs, driving with care within the permitted speed.

Evidence

• Police Sketch Plan: Helps determine liability in motor vehicle accidents.

Burden of Proof

• The plaintiff bears the burden of proving negligence elements.

Nuisance

• Need to look at elements to establish the cause of action.

Types

• Public Nuisance:

  • Elements:

    • Affects the reasonable comfort or convenience of a class of persons.

    • Creates a danger to a part of society.

    • Plaintiff must suffer special damage beyond that suffered by the public.

    • Defendant knows or is presumed to know the nuisance existed and allowed it to continue.

  • Cases: Parimala, Lim Kar Bee (pipes left at roadside for two years).

• Private Nuisance:

  • Unlawful interference with someone's comfort, use, or enjoyment of their land.

  • Courts use a balancing test: balancing the right to use one's land vs. undisturbed enjoyment of property.

  • Examples: Noise, dumping rubbish onto a neighbor's land.

• Case: Dr. Donald v. Vizma Punjab: Elements can be similar; the court can give what it is not pleaded if it arises out of same facts.

Rylands v. Fletcher

Establishing Liability

• Bring onto your land something dangerous.

  • Animal, object, or anything likely to cause mischief if it escapes.

• Defendant purposely brought the thing and accumulated the object.

• Non-natural use of land.

  • Example: Having hundreds of ferocious dogs may be non-natural.

• The thing escapes from the place the defendant keeps it to the place the defendant has no control or authority.

• It causes mischief or damage.

• Defendant liable for all natural consequences of the escape.

Defenses

• Plaintiff's Consent: Plaintiff agreed to the dangerous thing being brought onto the land.

• Common Benefit: Both parties benefit from the dangerous thing.

• Act of a Third Party: A third party caused the escape.

• Act of God: A natural event caused the escape (strong wind, earthquake, lightning).

• Plaintiff’s Own Default: Plaintiff's actions caused the escape.

• Statutory Authority: The law allows the defendant to keep the thing.

Breach of Statutory Duty

• Relates to a breach of an obligation imposed by the law, either by an act or a statute.

Plaintiff Must Prove

• The injury suffered falls within the ambit of the statute.

• The statute imposes a civil liability.

• The duty was not fulfilled.

• The claimant suffered injuries.

Overlap with Negligence

• There can be an overlap with negligence; discuss both if facts allow.

Relevant Statutes

• Occupational Safety and Health Act (OSHA): Duties to provide safety equipment.

• Machineries Act, Machineries Regulation.

Examples in Questions

• Overgrown trees near an apartment, regulations provided in the question.

Occupier's Liability

• Definition of Occupier: Defined in Wheat v. Lacon as a person with a sufficient degree of control over the premises.

• Duty: Keep the place safe and exercise due care to prevent injury to lawful visitors.

Categories of Entrants

• Contractual Entrant: Uses premises based on a contractual right; the highest standard of care required.

  • Examples: Leasing a warehouse, renting a property.

• Invitees: Come onto land with permission (meter readers, authorities).

  • Duty is to use reasonable care to prevent damage from unusual danger.

• Licensees: Come onto premises due to free permission (expressed or implied).

  • Duty is to take reasonable care not to create a trap or conceal danger.

• Trespassers: Owed the least duty; reasonable steps on the grounds of humanity to avoid danger, or at least give warning (BRB v. Harrington).

Defenses

• Notice.

• Contributory.

• Volunteer (volenti non fit injuria).

Vicarious Liability

Elements

• Master-Servant or Employer-Employee Relationship: Must exist.

• Employee is Negligent: Prove negligence (duty, breach, damage).

• Injury Caused in the Course of Employment: Must occur during working hours or in relation to work duties.

Key Issue: Employee vs. Independent Contractor

• Employer not liable if the act is done by an independent contractor.

• Issues of joint tortfeasors (MNI v. Inter Ocean case).

General Defenses

• Contributory Negligence: Section 12(1) of Civil Law Act 1956; reduces damages based on plaintiff's fault.

• Volenti non fit injuria (Voluntary Assumption of Risk): Plaintiff had full knowledge of the risk.

  • Example: Spectators at an air show know the risk of aircraft accidents.

• Latent Defect: Defendant did not know the defect and could not discover it with reasonable diligence.

• Agony of the Moment: Avoiding one danger leads to another.

  • Example: Swerving to avoid hitting kids and hitting a lamppost.

• Exclusion Clauses: Operators attempt to exclude liability; must be voluntarily consented to (against British Waterways Board).

• Act of God.

• Too Remote.

Remedies

• Divided into Personal Injury and Fatal Accidents.

Personal Injury

• Damages: Monetary compensation.

  • Special Damages.

  • General Damages.

• Plaintiff must prove particulars of loss or damages.

Types of Claims

• Expenses.

• Loss of Future Earnings.

• Loss of Earning Capacity.

• Loss of Amenities (includes pain and suffering).

• Irrelevant factors: What is given by law not to take into account.

Expenses: Expansion

• Reasonably claimable due to the defendant's tort.

• Plantiff has duty to mitigate his losses.

• Medical Expenses:

  • Government Hospital: Can claim where it is reasonable.

  • Private Hospital: Treatment must be justified.

  • Traditional Medicine: Must prove treatment was taken and is reasonable.

  • Artificial Limb, Wheelchair: Can claim.

    • During a pretrial period.

    • Cost of future care where it can be awarded as general damages in Trimalay v Lee Man Xiang

Other Expenses considerations

• Transportation: Plaintiff's, and family's to visit as outpatient in Chan Kim Hee where it was allowed.

• Special Diet: Requires sufficient medical evidence.

• Cost of Care (Nursing Care):

  • Plaintiff must prove nursing care is required.

  • Mere companionship not sufficient.

  • Can claim even if freely given.

  • Multiplier and Multiplicand calculation (Gratuituously also can claim if reasonable).

  • Case: Bujang Bin Mamat looking life expectancy.

  • Multiplicand: Amount paid for care; must be reasonable.

  • Multiplier: Plaintiff's life expectancy minus age at accident, minus one-third for contingency.

  • $(Life Expectancy - Age at Accident) * \frac{2}{3}$

    • Cases: Sithrama, Wong Leefat.

• Administrative Work - Expenses incurred for police report, doctor's reports, and whatever else you need.

Loss of Future Earnings

• Loss claimed by the plaintiff due to loss of earnings/job or earning less than before.

• Conditions to fulfill (Section 28A(2)(c)(1) of Civil Law Act):

  • Age:

    • Up to age 60

  • Earning:

    • Must be earning of your own gainful earning.

• Calculation: Multiplier and Multiplicand (Section 28A(2)(c)(2)).

• Taxable: Deduction of income tax required.

  • Multiplier Formula

    • Formula 1:

      • 30 years and below is 16

    • Formula 2:

      • For more than 30:

      • $\frac{60 - Current\ Age}{2}$ is the fixed multiplier.

• Multiplier and Multiplicand Formula

• $Multiplicand * Multiplier = Loss\ of\ Future\ Earnings$

Loss of Earning Capacity

• Applies where there is an actual risk the plaintiff can't work anymore or will lose their job before the end of their working life.

• Results in a disadvantage in securing another job.

Pain and Suffering and Loss of Amenities

• Claimable unless the person was unconscious at the point of the accident.

Irrelevant Factors in Calculating Damages Pursuant to Section 28 Civil Justice Act

• Assurance insurance, board.

• Donations.

Loss of Consortium

• Case: Mazmini Mohiwa.

• Courts actually awarded husband who had separate action for his loss.
  Other cases you can refer: - Housedrop against Bernard.

Fatal Accident

• Dependency Claim.

• Estate Claim.

• Claim by personal representative by the people that have passed away.

• Governed by Section 7 action is pursued. Seven for the benefit of the deceased statutory dependent's as stated.

• Estate Claim is under seven eleven and there are also clauses of this action that is stated in section 8.

Loss of Support

• Statutory independence.

• Defendants must prove the actual loss of support.

• They look at some cases Burgess against Florence Nightingale says Direct loss must be connected with the family connection.

• Calculation is the Multiplicand and multiplier so is a contribution by the diseased by to his family.
  So these are case base so please do read them and Minajji again Yusuf. You will need to apply, then this for that loss has to be there and has to claim that is what must be there. There have to be claimers involved and as such is there. If it is thirty years and it's between one so, the same general concept.

• Contribution
  \frac{60-\Age}{2}

• Loss of support in the form of services given that there converted into monetary term.

  • These can be claimed; however, a loss of consortium you may not put it there is no element of those damages.

• Bereavement the amount now in 30,000 and use to one time 10,000 must looked at the c a the civil liability there's been amendments to, and those will looked at where your the year is the test given that the year is from the that's going what need to be applied what it is you the. It is or after and the provision section seven, sub three, B is the one you need to refer can you look apply that to the case to claim damages. Look at the definition of your of claimers also.
  So therefore these actions you need to claim special damages and general damages.

• Funeral expenses, medical expenses. The general damages the pain and all those the.

• So one can only claim this after, if there's a lapse or what is it that has happened in between it otherwise it can be done. Then the defenses are pretty much the same and there is contact negligence those may claim.

• Therefore you look at the property images on that and which you can refer to on that on what that you can claim and apply.

• So as much as that you have those information look the for the main thing and may be in with some information on there to support.

• But then the most ultimate thing is I will be sending us the so call for the statement the claim that will be made going for the action.

Statement of Claim

• Format must be perfected.

In civil proceedings, understand the application, especially in vehicle-related cases where limited jurisdiction can be used (section 65 for claims between $\$100,000$ and $\$1,000,000$, and High Court for claims exceeding $\$1,000,000$). Ensure correct numbering and naming of parties. Use cautious and correct wording, especially for cases involving children. Practice enhances proficiency.

Ensure correct naming and terminology, understand tort law practices, differentiate tort types (intentional, negligent, strict liability), provide clear examples, document accurately, practice drafting, and stay updated on case law.

• Now the format there are about say around seven points there so so may there of one's that could may may give you a good the seven. Also with that in the the the application of whatever has been. The format itself will is given a quite significant number and that's why I that to be done to correctly and to what is intended.

• Ensure that legal terms are accurately defined and used.

• Familiarize yourself with the standard practices of tort law.

• Remember to differentiate clearly between types of torts: intentional, negligent, and strict liability.

• Use clear examples to illustrate complex concepts for better understanding.

• Reinforce the importance of accurate documentation in tort cases.

• Practice drafting claims and defenses to sharpen legal writing skills.

• Stay updated on relevant case law to provide the most current information.