Tort Law I - Comprehensive Notes

Course Information

  • Course Title: Tort Law I (LAW60804)
  • Lecturer: Dr. Mogana Sunthari Subramaniam (Dr. Mohana)
  • Email: Mogana.Sunthari@taylors.edu.my
  • Educational Background:
    • PhD & Masters in International Public Policy (Osaka University, Japan)
    • LLM & LLB (Hons) (University Malaya, Malaysia)
  • Professional Membership: Advocate & Solicitor, High Court of Malaya (Non-Practising)
  • Designation: Senior Lecturer, Taylor's School of Law and Governance, Taylor's University

Course Syllabus Overview

  • Course Documents available on MyTimes.
  • Module Information: Topics for Tort I.
  • Coursework: Requirements/details of assignment & tutorials.
  • ESDL: Enhanced Self-Directed Learning.
  • Mindful Practice: FitBrain exercise.
  • General feedback on Course Syllabus with last semester Final Exam Overview.

Lecture and Tutorial Details

  • Lectures:
    • Face-to-face on campus.
    • Once a week for 12 weeks.
    • Week 13: Revision.
    • Week 14: Final Exam.
    • Thursday, 10:00 am - 12:00 noon.
    • Video (lecture capture) available after the lecture on MyTIMeS (Panopto).
  • Tutorials:
    • 6 sessions from Week 3 (starting 5th May 2023).
    • Weeks: 3, 5, 7, 9, 11, 13
    • Monday:
      • 9:30 - 11:00 (T4) on campus (replacement 2/6)
      • 11:00 - 12:30 (T3) on campus (replacement 2/6)
      • 1:30 - 3:00 pm (T2) on campus (replacement 2/6)
      • 3:00 - 4:30 pm (T5) on campus (replacement 2/6)
    • Tuesday:
      • 2:00 - 3:30 (T1) on campus
  • Replacement Tutorial for Public Holiday (PH): 2/6/2025 (Monday) Booked D3.06 (XS 30) for Wednesday, 04 June 2025, 12:00 to 18:00.

Attendance

  • Attendance taken via CAMS for all Tort I lectures and tutorials.
  • Email Mogana.Sunthari@taylors.edu.my if unable to attend classes and apply for leave via campus central portal.
  • Reminder for International students to have attendance recorded for visa renewal purposes.

Teaching and Assessment Methods

  • Language: English
  • Teaching Method:
    • Lecture: Once a week (2 hours) - 12 weeks
    • Tutorial: Once a fortnight (90 minutes) - 6 sessions
  • Assessment Method:
    • Continuous Assessment: 60%
      1. Assignment: Group Video Presentation (40%)
      2. Class Participation: Individual (20%)
        • Q1 - Section A - Answer One English Law Question
        • Q2 - Section B - Answer One Malaysian Law Question
    • Final Examination: 40% (Answer 2 Questions)

Group Assignment Details

  • Format: Video Presentation
  • Week 5: Release of questions - 19 May 2025
  • Week 9: Due date for submission - 16 June 2025
  • Week 13: Return of Feedback - by 18 July 2025

Industry Partner Guest Lecture

  • Topic: Medical Negligence
  • Guest Speaker: Ms. Marini Arumugam
  • Date: 22nd May 2025
  • Time: 10 am - 12 noon
  • Venue: LT20

Consultation

  • For consultation on lecture/tutorials/video presentation, email Mogana.Sunthari@taylors.edu.my.

Tort I Topics

  • Introduction to Tort
  • General Principles of Negligence
  • Negligence and Economic Loss
  • Negligence Statements
  • Vicarious Liability
  • Psychiatric Damage
  • Trespass To Person
  • Defences

Reference Materials

  • Main Textbooks:
    1. Christian Witting, Street on Torts, 16th Edition, Oxford University Press, 2021.
    2. Norchaya Talib, Torts in Malaysia, Sweet & Maxwell, 2021.
    3. Jenny Steele, Tort Law: Text, Cases and Materials, 5th Edition Oxford University Press, October 2022.
    4. Simon Deakin, Angus Johnston & Basil Markesinas, Markesinas & Deakin’s Tort Law, 8th edn, Oxford University Press, 2019.
    5. Mark Lunny & Ken Oliphant, Tort Law: Text and Materials, 6th edn, Oxford University Press, 2019.
    6. David Howarth & Janet O’Sullivan, Hepple, Howarth & Matthews Tort: Cases and Materials, 7th edn, Oxford University Press, 2016.
  • Other Reference Materials:
    1. Norchaya Talib, Prinsip-Prinsip Asas Tort, 2006, Sweet & Maxwell Asia, Petaling Jaya.
    2. Norchaya Talib, Law of Torts in Malaysia, 2nd ed, 2003, Sweet & Maxwell Asia, Petaling Jaya.
    3. Wan Azlan & Mohsin Hingun, Principles of the Law Of Tort in Malaysia, 1998, Malayan Law Journal
    4. WVH Rogers, Winfield & Jolowicz on Tort (16th ed.), 2002, London, Sweet & Maxwell
    5. Murphy J, Street on Torts (11th ed), 2003, London, Butterworths
    6. Jones, Michael A, Textbook on Torts, (8th ed), 2002, London, Oxford University Press.
  • E-store: Purchase books directly from http://www.sweetandmaxwellasia.com.my/promotions/buypromoitems.asp?PreferC=RM&local=1&WLA=0&countrycode=MLY&campcode=L39&g=x65t2&ec=MTGNSDUYQSKBEFKVXWRONWSCKAEDNNEYYTVNSSASBFKYSEIKYYFJEWQLGKHPY

Introduction to Tort Law

  • Definition: The word “tort” is derived from the Latin word “tortus,” meaning twisted or wrung.
  • General meaning: A civil wrong (not a breach of contract).
  • Tort liability: Arises when a person commits a wrongful act.
  • Courts award: Monetary compensation for injury suffered due to intentional or negligent wrongful conduct.

Basis of Law of Tort

  • Product of English “common law” developed through decisions of English courts.
  • Tort law is mainly derived from common law.
  • Common law is judge-made law, created by courts and found in court opinions - precedents.
  • Some torts are derived from statutes (laws enacted by legislatures).

Interests Protected by Tort Law

  • Provides remedies for invasion of protected interests.
  • Ensures the right to protection from certain kinds of conduct:
    • Safety from physical harm
    • Freedom of movement
    • Maintaining privacy
    • Protection from destruction of personal property

Tortfeasor

  • Definition: A person who commits a tort, injuring another person or their property.
  • Conduct is considered “tortious.”
  • Parties involved:
    • Plaintiff: The injured person
    • Defendant: The tortfeasor

Remedies in Tort

  • Relief awarded to the Plaintiff.
  • Damages: Monetary compensation
    • Liquidated damages: Specific damages the Plaintiff has suffered (e.g., loss of earnings, medical bills).
    • Unliquidated damages: Unquantifiable damages (e.g., general damages, pain and suffering).
  • Injunction: To restrain the Defendant from causing further damage to the Plaintiff.

Wrongful Act/Omission

  • Whether a tort has been committed is a factual determination based on whether the injury resulted from a wrongful act or omission.
  • Wrongful act: Doing something that you are not supposed to do.
    • Example: A hits B without consent (battery); A unlawfully locks up B (false imprisonment).
  • Omission: Failing to do something required of you.
    • Example: A carelessly omitted to brake his car, noticed B crossing the road, and B was injured (negligence).

Legal Wrong

  • Not all wrongful acts or omissions are legally wrong.
  • Example: If B is drowning and calls out to A for help, and A fails to rescue B, A did not commit a tort against B.
  • Question of legal vs. moral wrong.

Scope of Tort Law

  • Wide and continuously expanding and evolving.
  • Past: Trespass, negligence, defamation.
  • Recent: Interference with trade, product liability, privacy.
  • Future: Open to expansion.

General Features of a Tort

  1. There must be a wrongful act or omission.
  2. That wrongful act or omission affects the interests or rights of others.
  3. The injured party or victim has a right to a claim for damages.

Classification of Tort Law

  • Intentional Tort
  • Negligence
  • Strict Liability

Intentional Torts

  • Require an intentional state of mind (intent) to cause a harmful result from actions.
  • The tortfeasor either desires to bring about the consequences or knows with substantial certainty that the consequences will likely follow.
  • Examples: battery, assault, false imprisonment, defamation.

Negligence

  • Failure of the tortfeasor to exercise reasonable care, causing harm to a person or their property.
  • Turns on a breach of a duty of care.
  • A tortfeasor may not have intended to breach the duty of care.

Strict Liability

  • Tort liability imposed without regard to fault.
  • No intention and not negligent, but still liable because of the action per se.
  • Example: product liability cases.

The Reasonable Man

  • Definition: The ordinary man, the average man, or the man on the public bus.
  • Defendant will be liable if they fall below the standard of a reasonable man.
  • Objective test: What a reasonable man would have done in a similar situation.

Essential Elements of Torts

  • Each tort is defined by its essential elements.
  • These are component parts of a cause of action (legal theory).
  • Each essential element must be supported by facts of the case to state a cause of action for that tort.

Elements of a Tort - Example: Battery

  1. Intention of the Defendant (inferred from their action)
  2. Defendant’s act under their control
  3. Contact
  4. Without the Plaintiff’s consent

Tort vs. Human Rights

  • Human Rights Act 1998 applies to everyone in the UK (British citizens, foreigners, and refugees).
  • Compels courts, government, police, and city councils to treat everyone with dignity, fairness, and respect.
  • Incorporation of human rights into UK laws (Tort) in England.
  • No equivalent law in Malaysia.
  • Section 6 of Human Rights Act: Acts of public authorities.
    • It is unlawful for a public authority to act in a way incompatible with a Convention right.

Human Rights

  • The right to equality and freedom from discrimination.
  • The right to life, liberty, and personal security.
  • Freedom from torture and degrading treatment.
  • The right to equality before the law.
  • The right to a fair trial.
  • The right to privacy.
  • Freedom of belief and religion.
  • Freedom of opinion.

Key Cases and Articles

  • Cases:
    • D v East Berkshire Community NHS Trust [2005] UKHL 23
    • X v Bedfordshire CC [1995] 2 A.C
    • Lawrence v Pembrokeshire CC [2007] EWCA Civ 446, [2007] 1 WLR 2991
    • Smith v Chief Constable of Surrey Police [2008] UKHL 50, [2009] 1 AC 225
    • Jain v Trent Strategic HA [2009] UKHL 4, [2009] 1 AC 853.
    • Desmond v Chief Constable of Nottinghamshire [2011] EWCA Civ 3, [2011] 1 FLR 1361
    • Wainwright [2003] UKHL 53; [2003] 3 W.L.R. 1137
    • Dobson v Thames Water Utilities [2009] EWCA Civ 28, [2009] 3 All ER 319.
    • Hill v Chief Constable of West Yorshire [1989] AC 53
  • Articles:
    • Wright, ‘A Damp Squib? The Impact of Section 6 HRA on the Common Law: Horizontal Effect and Beyond’ [2014] Public Law 289
    • F Du Bois, ‘Human Rights and the Tort Liability of Public Authorities’ (2011) 127 Law Quarterly Review
    • D Nolan, ‘Negligence and Human Rights Law: The Case for Separate Development’ (2013) 76(2) Modern Law Review 286
    • Lady Justice Arden, ‘Human Rights and Civil Wrongs: Tort Law under the Spotlight’ [2010] Public Law 140

Tort vs. Contract

  • Contract Law: Deals with voluntarily undertaken obligations consented to by the parties.
  • Tort Law: Involves forced obligations placed on parties without their agreement because one has committed wrongful conduct against the other.

Tort vs. Crime

  • Although not all torts are crimes, most crimes are torts if they cause an injury to a person or property.
  • Tort law governs civil, rather than criminal, wrongs. Civil law deals with the enforcement of private or public rights of persons, for which remedies such as damages are sought.
  • Criminal law deals with wrongs committed against society as a whole, for which the government seeks to impose penalties.
  • Example: an injury caused by professional negligence, such as medical malpractice, would be a tort but would not be a crime.

Sources of Tort Law in Malaysia

  • English common law – s3(1) of Civil Law Act 1956 - as of 7/4/1956 – West Malaysia.
  • Local judicial decisions – Malaysian courts have followed existing English common law tort principles.
  • Local Statutes – law of defamation – Defamation Act 1957.

Defences in Tort

  • Defendant in an action for tort can raise one or more defense(s) to escape liability.
  • Each tort has its own line of defenses.
  • Students are required to know the elements of all the defenses.
  • Examples: self-defense, defense of another or property, consent, contributory negligence, statutory privilege.

Types of Defences

  • Self Defence
  • Defence of Another
  • Defence of Property
  • Consent
  • Necessity
  • Inevitable Accident
  • Lawful Arrest
  • Statutory Privilege
  • Contributory Negligence

Types of Damages

  1. Punitive damages: Meant to punish the wrongdoer and serve as a warning to the public.
  2. Compensatory damages: Intended to restore a victim to their status prior to the unlawful act, dependent on the measurable damage done (medical costs, loss of business, property damage).

Exam: Answering Style

  1. Problematic Question – ILAC
    • I – Issues/Questions
    • L - Law (Statute/Case Law)
    • A – Application (to the given facts)
    • C - Conclusion (with your opinion)
  2. Essay Question – all the decided cases and your opinion

Problematic Question – ILAC example

  1. I – Issues/Questions
    • Whether the Df is liable for battery?
  2. L - Law (Statute/Case Law)
    • Definition of Battery (Collins v Wilcock)
    • There are 4 elements – elements + cases
  3. A – Application (to the given facts)
    • Relate to the given facts in the question. Each line is important.
  4. C - Conclusion (with your opinion)
    • All 4 elements were proved therefore Df liable for battery.