CHAPTER 15 THE LAW OF TORT

15.1 Nature of the Law of TORT

15.1.1 What is Tort?
Numerous attempts have been made to define a tort or tortious liability but there is no one single
definition that is complete enough to describe it accurately. The word tort was derived from the Latin word
tortus which means twisted or wrong and the Norman French word tort which signifies wrong.

Professor P.H.Winfield defined tortious liability as tortious liability arises from the breach of a duty primarily
fixed by law; this duty is towards person generally and its breach is redressible by an action for unliquidated
damages.

Salmon in the book Law of Trusts defined tort as a civil wrong for which the remedy is a common law
action for unliquidated damages, and which is not exclusively the breach of a contract or the breach of trust
or other merely equitable obligation.

To understand the definition of tort better, one has to appreciate the varied situations whereby one incur
tortious liabilities:
i.

A carelessly running B down at the street;

ii.

C calling D a thief;

iii. E giving bad investment advice to F;

iv. G selling Hs car while he has no authority to do so; or
v.

J assaults K and causing injury to him.

It can be seen that tortious liability may arise in different situations and therefore it is difficult to have a
common definition to encompass all the possible scenarios. Generally a tort is a wrong that involves a
breach of civil duty owed to others. It is to be differentiated from criminal wrongdoing which involves a
breach of duty owed to society or nation.

15.1.2 Features of a Tort

A tort may consist of either a wrongful act or omission. Generally the features of a tort are:
i.

there must be a wrongful or unauthorized act or omission;

ii.

that wrongful or unauthorized act or omission affects the interests or rights of others; and

iii. the injured party or victim has a right to a claim for damages.

The key feature of a tort is that there must be a wrongful act or omission. So, what is a wrongful act or
omission? Law of tort generally defines what are the acts or omissions which are wrong or not authorized,
for example, one must not hurt another when he is driving a car.

The law of tort in Malaysia is largely derived from the common law of England.
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15.1.3 The Law of Tort and Criminal Law

Crime and tort overlap. Many torts are also crimes for example an assault is both a crime and a tort (in the
form of trespass to person). A tort allows a person usually the victim, to obtain a remedy that serves their
own specific purposes. The remedy sought normally is in the form of monetary damages for example
payment of damages to a person injured in a car accident. Criminal actions, on the other hand, are pursued
not to obtain remedies to compensate a person but to remove the liberty by imprisonment on behalf of the
state.

The more severe penalties imposed in criminal law also means it requires a higher standard of proof to be
discharged than the related tort. The burden of proof for criminal liability is beyond reasonable doubt while
for tort, the burden is only on balance of probability. For example, in the O.J.Simpson murder trial, the jury
was not convinced beyond reasonable doubt that he had committed the crime of murder against his ex-wife
and her lover but in a later civil trial, the jury in that case felt that there was sufficient evidence to conclude
that he has committed a tortious wrong. The court awarded USD33.5 million to the victims families as
compensatory and punitive damages.

15.1.4 Tort and Contract

What is the relationship between a tortious duty and a contractual duty? Can one sue another for breach of
contract under tort also?

Firstly we must recognize that there may be a considerable overlap in any factual situation between the law
of contract and law of tort. For example, a claim for damages arising from a defective product may involve a
complex web of issues under the Sale of Goods Act 1959, the law of misrepresentation and collateral
warranty, the tort of negligence, the Consumer Protection Act 1999 and a claim of contractual indemnities
among retailer, middleman and manufacturer.

It has long been a trite law that a defendant may be liable in the same facts in contract to A and in tort to B.
It is also clearly established that there may be concurrent contractual and tortious liability to the same plaintiff
though he may not of course recover damages twice over. Thus contractual and tortious duties may co-exist
on the same facts. This legal principle was firmly established in Henderson v Merrett Syndicates Ltd (1995)
2 AC 145 where it was held that Names at Lloyds might sue members agents (with whom they had a
contract) for negligence as well as for breach of contract in the management of underwriting business so as
to gain the advantage of the longer time limit under the Englishs Latent Damage Act 1986. The court also
held that the plaintiff may be entitled to take advantage of the remedy which is more advantageous to him.

15.2 Types of Tort

The law of tort can be divided generally as intentional torts and unintentional torts and they can be further
sub-divided as follows:
i.

Intentional Tort

a. Trespass to person
b. Trespass to land
c.

Trespass to goods

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d. Defamation
e. Liability for defective products
f.
ii.

Liability for negligent misstatement

Unintentional Tort

a. Negligence
b. Nuisance
c.

Strict Liability (Rule in Rylands v Fletcher)

d. Breach of statutory duty

15.3 Negligence
15.3.1 Elements of Negligence
Negligence is defined in Winfield and Jolowicz as a breach of a legal duty to take care which results in
damage to the claimant (plaintiff). Lord Wright in Lochgelly Iron and Coal Co. v McMullan (1934) AC 1
defined negligence as:
Negligence means more than heedless or careless conduct; it properly connotes the complex
concept of duty, breach and damage hereby suffered by the person to whom the duty was showing.

Therefore in order to establish liability under tort of negligence, the plaintiff must prove following 3 elements:
a) A legal duty on the part of the defendant (D) towards the plaintiff (P) to exercise care in Ds conduct;
b) Breach of that duty, i.e. failure to come up to the standard required by law; and
c) Consequential damages to P which can be attributed by Ds conduct.

15.3.2 Duty of Care

15.3.2.1 Legal Duty
It is not for every careless act that a person may be held responsible in tort of negligence or even for every
careless act that cause damage. One will only be liable in negligence if one is under a legal duty to take
care; i.e. a duty that is imposed by law. Thus there can be no liability in respect of loss caused by incorrect
evidence in court and there is no general liability for failing to assist or protect others. Similarly the breach of
a moral or social duty generally does not give rise to liability in negligence.

15.3.2.2 Test for existence of a duty of care

The primary test or principle used in determining the existence of a duty of care is known as the neighbour
principle pronounced in the classic case of Donoghue v Stevenson (1932) AC 562. Lord Atkin defined the
duty of care in the following terms:
you must take reasonable care to avoid acts or omissions which you can reasonably foresee
would be likely to injure your neighbour

In that case, a manufacturer of ginger beer sold to a retailer ginger beer in an opaque bottle. The retailer
resold it to A, who treated a young woman of her acquaintance with its contents. It was alleged that the beer
contained remains of a snail. The young woman alleged that she became seriously ill in consequence and
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sued the manufacturer for negligence. The House of Lords held that the manufacturer owed her a duty to
take care that the bottle did not contain noxious matter and that he would be liable in tort if that duty was
broken.

Therefore, under the definition, everyone has a duty to take reasonable care to ensure that their neighbour
is not injured. Lord Atkin went on to define neighbour as 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 . This is known as reasonable foreseeability
test.

This is an objective test whereby the court will ask the hypothetical question: would a reasonable man, who
in the same circumstances as the defendant, foresee that his conduct would adversely affect the plaintiff. If
the answer is yes the plaintiff is a neighbour of the defendant and the latter owes the former a duty of care.

The concept of foreseeability is the foundation of the neighbour principle, for only when damage to the
plaintiff is foreseeable that a duty of care arises on the part of the defendant. However foreseeability does
not depend on physical closeness. Two people may be physically close and yet there is no duty of care as
they may not expect the presence of the other at the material time. In Bourhill v Young (1943) AC 92, the
plaintiff, a pregnant woman, suffered nervous shock when she heard but did not see, a collision between the
defendant and another road user. The Court held that the defendant did not owe a duty of care to the
plaintiff. The presence of the plaintiff was not foreseeable.

15.3.2.3 Present Law

The neighbour principle was doubted by some and a revised two-stage test was proposed by the House of
Lords in Anns v Merton London Borough (1978) AC 728. However this two-stage test was doubted also and
the leading case is now the decisions of the House of Lords in Caparo Industries Plc v Dickman (1990) 2 AC
605. This case concerned the liability of an auditor for financial loss suffered by investors.

There are now three separate steps in the duty of care inquiry:
i.

First, it must be reasonable foreseeable that the conduct of the defendant will cause damage to
the plaintiff;

ii.

Secondly there must be sufficient proximity between the parties; and

iii. Thirdly the situation must be one in which the court considers it fair, just and reasonable that the
law should impose a duty of care of a given scope on the one party for the benefit of the other.

Therefore, besides satisfying the neighbour principle, the court has to consider an additional issue-whether it
is fair, just and reasonable that the law should impose a duty of a given scope on the party for the benefit of
the other. This is purely a public policy matter for a court to decide.

15.3.2.4 Situation in Malaysia

The Atkinian test was applied by the Malaysian courts in Lim Kar Bee v Abdul Latif bin Ismail (1978) 1 MLJ
109, Wu Siew Ying v Gunung Tunggal Quarry & Construction Sdn Bhd (1999) 4 CLJ 339, Arab Malaysian
Finance Bhd v Steven Phoa Cheng Loon (2003) 1 CLJ 585 etc.
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The test laid down in Caparo Industries was applied by the Federal Court in Majlis Perbandaran Ampang
Jaya v Steven Phoa Cheng Loon & 81 others (2006) 2 MLJ 389 (The Highland Tower case). The court cited
Caparo Industries held that MPAJ is not liable and said:

The question then is, considering the public policy and local circumstances, is it fair, just and
reasonable to impose a liability on MPAJ, a local authority, for pure economic loss to the plaintiff for
its failure (so far) to come up with and implement the promised drainage master plan or to stabilize
the hill slop on Arab Malaysia land to ensure that no accident of the kind that caused the collapse of
Block 1 would occur to Block 2 and 3?

A local council is established with a host of duties to perform, from providing and maintaining
recreational areas and collecting garbage to providing public transport, homes for squatters,
temporary homes in case of disasters, natural or otherwise, and so on. Indeed the list is endless.
With limited resources and manpower local councils would have their priorities. In my view, the
provision of basic necessities for the general public has priority over compensation for pure
economic loss of some individuals who are clearly better off than the majority of the residents in the
local council area.

Indeed the large sum required to pay for the economic loss, even if a local council has the means to
pay, will certainly deplete whatever resources a local council has for the provision of basic services
and infrastructure. Projects will stall; more claims for economic loss will follow Out of necessity or
convenience, the judgment for the full amount may be enforced against the local council. The local
council may go bust. Even if it does not, is it fair, just and reasonable that the tax payers money be
utilized to pay for the debts of such people? In my view, the answer is No.

The above case was later affirmed by the Federal Court again in the Co-operation Central Bank Ltd v KGV &
Associates Sdn Bhd (2008) 2 CLJ 545.

15.3.3 Breach of duty

15.3.3.1 Reasonable Man Test
The defendant must not only owe the plaintiff a duty of care, he must be in breach of it in order to establish a
tortious liability. The test to be applied for deciding whether there has been a breach of duty is laid down in
the dictum of Alderson B in Blyth v Birmingham Waterworks Co (1856) 11 Ex 781. 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 is prudent and reasonable man
would not do.

Who is then a reasonable man? A reasonable man has been described as the man on the omnibus. In
other words, a reasonable man means an ordinary man who is not expected to have any particular skill such
as that possessed by a surgeon, a lawyer or a plumber unless he is actually one. Since he is an abstract
person, the standard of reference he provides can be applied to particular cases only by the intuition of the
court. The test is objective and the standard is impersonal in the sense that it is left to the judge to decide
what, in the circumstances of the particular case, the reasonable man would have in contemplation, and
what, accordingly, the party sought to be made liable ought to have foreseen. See Glasgow Corporation v
Muir (1943) AC 448, as per Lord Macmillan.
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Therefore a passer-by who renders emergency first aid to the victims of an accident is not required to show
that he possesses the skill of a qualified doctor, unless he himself is a doctor. The question that should be
asked is did he come up to the standard of the reasonable man? Whether the care test has been taken is
or is not reasonable varies with the circumstances. In the case of Nettleship v Weston (1971) 2 QB 691, the
lower court held that the defendant, a learner-driver was not liable for the injury she caused to the plaintiff as
she had tried to control the car to the best of her ability. However, on appeal, the Court of Appeal held that
the standard of care of learner-driver was the same as other experienced drivers. The defendants lack of
experience was irrelevant as the way in which she drove did not meet the required standard of care; hence
she was liable.

So it is clear that the general standard of care is objective and the question is not did the defendant do his
best? but did he come up to the standard of a reasonable man?

15.3.3.2 Professional and Industry Standards

What is the standard of care for professional such as engineer, doctor or lawyer?

When one practises a profession or is engaged in a transaction in which he holds himself out as having
professional skill, the law expects him to show the amount of competence associated with the proper
discharge of the duties of that profession, trade or calling, and if he falls short of that and injures someone in
consequence, he is not behaving reasonably. However, a junior member of a profession could not be
expected to show the skill of a consultant, but subject to that, no allowance would be made for the
inexperience of the individual. In addition, a general practitioner (whether in medical, engineering, law or
any other profession) cannot be expected to have the expertise of a specialist but he should possess a
sense of professionalism when it is necessary to take appropriate specialist advice. For example, a civil
engineer who practices general civil engineering is not expected to have the expertise of foundation work. It
follows that a specialist will be held to the higher standard of those practicing within that specialist field.

Bolam Test

The test for standard of care of a professional is explained in the case of Bolam v Friern Hospital
Management Committee (1957) 1 WLR 582 (known as Bolam Test). According to the Bolam Test, a doctor
is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible
body of medical man skilled in that particular art.

The test for the standard of care is the standard of the ordinary skilled man exercising and professing to
have that special skill-he does not have to be the best doctor. In practice, this has been taken to mean that
the court will not find a doctor negligent as long as there is a body of medical opinion that supports his
actions. Often therefore, the burden is discharged by calling expert evidence to show what other doctors, of
similar standing and exercising that particular skill, would have done for the patient, in that situation.

What if there are two schools of thought within that profession as to what should be the practice? The law
here is clear that the defendant is not negligent if he acts in accordance with a practice accepted at the time
as proper by a responsible body of professional opinion skilled in that particular type of activity; even though
there is a body of competent professional opinion which might adopt a different technique (Bolam v Friern
Hospital Management Committee (1957) 1 WLR 582).

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It must be noted that Bolam test is not a test which applies only to doctors, it applies to all professionals such
as lawyers, engineers and accountants.

Legal Development

There have been questions raised as a result of some recent cases as to whether courts are increasingly
beginning to impose their own judgment and opinion on the matter; and be less reliant on the expert witness
who comes to court to say what he would have done in a similar situation.

In Bolitho v City and Hackney Health Authority (1997) 4 All ER 771, a two year old boy suffered brain
damage as a result of the bronchial air passages becoming blocked leading to cardiac arrest. It was agreed
that the only course of action to prevent the damage was to have the boy intubated (to insert a tube into his
mouth). The boy, after admission, had difficulty breathing in two occasions. On both occasions, doctors
were paged to attend to the patient but none of the doctors attended to him even though they said they
would. The doctor who negligently failed to attend to the boy said that she would not have intubated had she
attended.

There was evidence from one expert witness that he would not have intubated whereas five other experts
said they would have done so. The House of Lords held that a judge is entitled to choose between two
bodies of expert opinion and to reject an opinion which is logically indefensible. This is also taken to mean
that a court may reject a body of professional opinion where it can be shown that the opinion in question is
not logically supported at all. This approach has been interpreted as being a situation where the court sets
the law and not the profession.

Commonwealth jurisdictions have also declined to follow the Bolam test. One such case is the Australian
case of Rogers v Whitaker (1992) 175 CLR 479 which was concerned with negligent medical advice. The
High Court in this case held that:
Even in the sphere of diagnosis and treatment, the heartland of the skilled medical practitioner,
the Bolam principle has not always been applied. Further, and more importantly, particularly in the
field of non-disclosure of risk and the provision of advice and information, the Bolam principle has
been discarded and instead, the courts have adopted the principle that, while evidence of acceptable
medical practice is a useful guide for the courts, it is for the courts to adjudicate on what is the
appropriate standard of care after giving weight to the paramount consideration that a person is
entitled to make his own decision about his life.

This approach was later applied in another High Court case of Naxakis v Western General Hospital &
Another (1999) HCA 221 which concerned negligent diagnosis.

Bolam test was applied extensively by Malaysian courts for many years until 1992. Following the decision of
the Rogers case, conflicting judgments have been delivered over the preference and application of the
Rogers v Whitaker test to the Bolam test. Rogers test was applied in Kamalam a/p Raman v Eastern
Plantation Agency (1997) 5 CLJ 250 and Tan Ah Kau v The Government of Malaysia (1997) 2 CLJ 168.

Bolam test was finally rejected by the Federal Court in Foo Fio Na v Dr Soo Fook Mun (2007) 1 CLJ 229
instead the Court adopted the test laid down in Rogers. Siti Norma Yaakob FCJ opined that:

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 We are of the view that the Rogers v Whitaker test would be a more appropriate and a viable test
of this millennium than the Bolam test.

15.3.3.3 Factors of the Objective Standard

The standard of reasonable care is set by law but its application in a particular case is a question of fact in
the sense that propositions of good sense which are applied by one judge in one case should not be
regarded thereafter as propositions of law. See Qualcast (Wolverhampton) Ltd v Haynes (1959) AC 743.
On the other hand, situations do tend to repeat themselves and it is permissible to look at decisions of the
courts to see how the standard of the reasonable man should be applied.

The result is that in each case a balance must be struck between the magnitude of the risk and the burden to
the defendant in doing (or not doing) what it is alleged he should (or should not) have done. In some cases,
where there is only a remote possibility of injury, no precautions need be taken for one must guard against
reasonable probabilities, not fantastic possibilities, but this means no more than that if the risk is very slight,
the defendant may have behaved reasonably though he did nothing to prevent the harm. Therefore in every
case where a duty of care exists the courts must consider whether the risk was sufficiently great to require
the defendant more than he has actually done. The court will have to consider three factors:
i)

The magnitude of the risk;

ii)

The importance of the object to be attained; and

iii) Practicality of precautions.

Magnitude of the Risk

The defendant is not required as a matter of law, to guard against every conceivable consequence of his
negligent actions. However the law does require him to take into account two factors that may make up the
magnitude of the risk: the likelihood that injury will be incurred and the seriousness of the injury.

In Bolton v Stone (1951) AC 850, the plaintiff was standing on the highway in a road adjoining a cricket
ground when she was struck by a ball which a batsman had hit out of the ground. Such an event was
foreseeable, but taking into consideration such factors as the distance from the pitch to the edge of the
ground, the presence of a seven foot fence and the upward slope of the ground in the direction in which the
ball was struck, the House of Lords considered that the likelihood of injury to a person in the plaintiffs
position was so slight that the cricket club was not negligent in allowing cricket to be played without having to
take additional precautions such as increasing the height of the fence.

On the other hand, in Hilder v Associated Portland Cement Manufacturers Ltd (1961)1 WLR 1434, the
plaintiffs husband was riding his motor-cycle along a road outside a piece of open land, occupied by the
defendants, where children were permitted to play football; when a ball was kicked into the road and caused
him to have an accident. The conditions were such that the likelihood of injury to passers-by was much
greater than in Bolton case and accordingly the defendants were held liable.

The relevance of the seriousness of the injury was recognized by the House of Lords in Paris v Steprey
Borough Council (1951) AC 367. The plaintiff, a one-eyed man employed by the defendants, was working in
conditions involving some risks of eye injury, but the likelihood of injury was not sufficient to call upon the
defendants to provide goggles to a normal two-eyed workman. The Court held that in assessing the
magnitude of the risk, it is important to notice that the duty of care is owed to the plaintiff himself and
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therefore if he suffers from some disability which increases the magnitude of the risk to him that disability
must be taken into account so long as it is or should be known to the defendant.

The importance of the Object to be attained

Sometimes it is necessary to balance the risk against the consequences of not taking the risk. In some
cases, the purpose to be served, if sufficiently important, justifies the assumption of abnormal risk. For
example if all the trains in this country were restricted to a speed of 10km per hour, there would be fewer
accidents but our national life would be intolerably slow down. See Watt v Hertfordshire County Council
(1963) 1 WLR 835.
Practicability of Precautions

The risk must be balanced against the cost and practicability of the measure necessary to eliminate that risk.
All precautions undertaken by the defendant will be taken into account in determining the reasonableness of
the defendants conduct.

In Latimer v A.E.C. (1953) AC 643, a factory floor became slippery after a flood. The owners spread
sawdust over the floor and a workman slipped on the part which was not covered by sawdust. The House of
Lords held that the defendant was not liable as the risks of injury created by the slippery floor was not so
great as to justify an onerous precaution of closing down the factory.

15.3.4 Consequent Damage

15.3.4.1 Two Factors
The third ingredient of the tort of negligence is that the plaintiffs damage must have been caused by the
defendants breach of duty and must not be too remote a consequence to it.

15.3.4.2 Causation
In order to satisfy the third ingredient, the plaintiff must show a causal link between the loss he has suffered
and the defendants tortious action; and if the plaintiff has contributed to the occurrence of that loss his
damages may be reduced (or even extinguished). This is also known as causation in fact.

As a first step it must be decided whether the defendants breach of duty was, as a matter of fact, a cause of
the damage. If there is no connection between the defendants act and the plaintiffs loss, then the law will
not require the defendant to be responsible for the loss.

The test commonly used in determining whether there is a causation link between the defendants act and
the plaintiffs loss is known as but for test which was laid down in Barnett v Chelsea & Kensington Hospital
Management Committee (1969)1 QB 428. The question to be asked is but for the defendants breach of
duty, would the plaintiff has suffered any injury or damage?. If the result would not have happened but for a
certain event then that event is a cause, contrariwise, if it would have happened anyway, the event is not a
cause.

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The court in Cork v Kirby Maclean Ltd (1952) 2 All EX 402 explained this succinctly:

Subject to the question of remoteness, causation is a question of fact. If the damage would not
have happened but for the particular fault then that fault is a cause of the damage; if it would have
happened just the same, fault or no fault, the fault is not cause of the damage. It is decided by the
ordinary plain common sense of the business.

It has been said in many cases that the question of whether the defendants act was an effective cause for
this purpose has been said to be a matter of common sense, but common sense can differ from one judge
to another. There is no specific guideline and the final decision is in the hands of the individual judge.

In Barnett v Chelsea and Kensington Hospital Management Committee (1969) 1 QB 428, the plaintiffs
husband, a night watchman, complained of vomiting after drinking tea. He was told to go home and consult
his own doctor later, which amounted to a breach of the hospitals duty of care. Later that day the plaintiffs
husband died of arsenical poisoning and the coroners verdict was of murder by person unknown. The
hospitals breach of duty was held not to be a cause of the death because 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
by the time he arrived at the hospital. The plaintiffs claim therefore failed.

15.3.4.3 Remoteness of Damages

a)

Reasonable Foreseeability Test

Even if a causal link is established, the defendant will only be responsible for damages which are not too
remote. Otherwise the plaintiff would be over compensated.

The test used to determine remoteness of damages is propounded by the Privy Council in the case of The
Wagon Mound (1961) AC 388. The test is sometimes known as reasonable foreseeability test which
stipulates that consequences are too remote if a reasonable man would not have foreseen them.

The test of foreseeability involves the assessment of facts against a legal standard. Lord Denning MR in
Stewart v West African Terminals Ltd (1964) 2 Lloyds Rep 371 explained:
It is not necessary that the precise concatenation of circumstances should be envisaged. If the
consequence was one which was within the general range which any reasonable person might
foresee (and was not of an entirely different kind which no one would anticipate) then it is within the
rule that a person who has been guilty of negligence is liable for the consequence.

In the Wagon Mound (1961) AC 388, OT were charterers of the Wagon Mound, an oil-burning vessel which
was moored at COs wharf in Sydney harbour for the purpose of taking on fuel oil. Owing to the
carelessness of OTs workers a large quantity of fuel oil was spilt on to the water, and after a few hours this
had spread to MDs wharf which was about 600 feet away where another ship was under repair. Welding
operations were being carried out on that ship but when MDs manager became aware of the presence of
the oil he stopped the welding operations and inquired of the CO whether they might safely continue. The
result of this inquiry, coupled with his own belief as to the non-inflammability of fuel oil in the open, led him to
give instructions for the welding operations to continue, though with all precautions to prevent inflammable
material from falling into the oil. Two days later the oil caught fire and extensive damage was done to MDs
wharf. The court held that it was unforeseeable that fuel oil spread on water would catch fire.
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In Hughes v Lord Advocate (1963) AC 837, employees of the post office opened a manhole in the street and
in the evening left the open manhole covered by a canvas shelter, unattended and surrounding by warning
paraffin lamps. A boy, aged eight, took one of the lamps into the shelter and was playing with it there when
he stumbled over it and fell into the manhole. A violent explosion followed and the boy fell into the hole,
sustaining terrible injuries from the burns. The court held that although it was unforeseeable that a lamp
might explode, it is foreseeable that someone might take a lamp into a shelter and that, if the lamp fell and
broke, they might suffer serious injury from burning. The defendant is held to be liable for the injury caused
to the boy.

In Jolly v Sutton London Borough (2000) 1 WLR 1082, the defendants had failed to take steps to remove an
old, abandoned boat from their land to which the public had easy access. The obvious risk was that a child
might suffer injury from climbing on the boat and falling through the rotten planking. The plaintiff and a friend
tried to restore the boat and, while he was working underneath it, it fell on him, breaking his back. The
House of Lords held that the injury was within the range of what was foreseeable, giving the ingenuity of
children in finding unexpected ways of doing mischief to themselves and others.

b)

Intended Consequence

If the defendant intends a specific consequence, such as to injure the plaintiff intentionally, the general rule is
that intended consequences are never too remote.

Lord Lindley in Quinn v Leatham (1901) AC 495 held that the intention to injure the plaintiff disposes of
any question of remoteness of damage. Therefore if a man throws some fire crackers intending it as a joke
and the plaintiffs eye is injured as a result, he would be liable. The issue of foreseeability does not arise at
all.

c)

Unintended Consequence

For consequences unintended, the situation is more complex and the court has to consider following factors
and principles in order to determine whether the damages are too remote:
i)

Extent of damages;

ii)

Egg-shell skull rule;

iii) Plaintiffs impecuniosities; and

iv) Intervening acts or events

i)

Extent of Damages

The liability for negligence is wide and a defendant will be liable for any type of damage which is reasonably
foreseeable as likely to happen, even in the most unusual case, unless the risk is so small that a reasonable
man would in the whole circumstances feel justified in neglecting it.

In determining range of damages, following principles will be applicable:

a) The defendant is not relieved of liability because the damage is more extensive than might have
been foreseen or anticipated by him;

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b) Foreseeability is not required of the pecuniary amount of the damage. So if the defendant injures a
high income earner, he cannot argue that he had no reason to expect the amount of the loss to be
so great; or
c) The defendant takes the victim as he finds him, including weaknesses which exacerbate the
damages in an unforeseeable way; also known as egg-shell skull rule.

ii)

Egg-shell Skull Rule

Under this rule, if a person negligently injured someone, he will be liable for all damages irrespectively
whether that is partly or substantially due to the plaintiffs unusually thin skull or an usually weak heart.
Therefore a motorist who was responsible for a minor collision was held liable to the other driver for long
term unemployment caused by a psychiatric condition which was dormant but which was revived by the
accident [Page v Smith (1996) AC 155].

iii) Plaintiffs Impecuniosities

If the plaintiff suffers more damages due to his own financial disability, the court has held that such loss is
too remote as the plaintiffs want of means was extraneous matter.

In Liesbosch Dredger v Edison SS (1933) AC 448, the Edison, by negligent navigation, fouled and sank the
dredger Liesbosch, whose owners were under contract with a third party to complete a piece of work within a
given time. They incurred a lot of expenses in fulfilling the contract because they were too poor to buy a
substitute for the dredger. The House of Lords held that they could recover as damages the market price of
a dredger comparable to Liesbosch and compensation for loss in carrying out the contract between the date
of the sinking and the date on which the substituted dredger could reasonably have been available for work.
However the claim for extra expenses due to poverty was rejected because the plaintiffs want of means was
an extraneous matter which made this special loss too remote.

iv) Intervening Acts or Events

A consequence is too remote if it follows a break in the chain of causation or is due to a nova causa
interveniens. This means that although the defendants breach of duty is a cause of the plaintiffs damage in
the sense that it satisfies the but for test of causation in fact, nevertheless in the eyes of the law some other
intervening event is regarded as the sole cause of that damage. In such a case, the defendant will not be
liable to the damages.

Three classes of cases are to be considered:

(1) Intervening Natural Event
When the loss is caused by a natural event which occurs independently of the defendants breach of
duty but which would have caused the plaintiff as damage if the breach of duty had not occurred, the
defendant is not liable for such loss. Such natural forces will be held to have broken the link of causation
and becomes the main cause of the injury. No reasonable man will say that such damage caused by the
natural event is within the foreseeable risk created by the defendants negligent.
(2) Intervening Act of Third Party
If the defendants breach of duty has done no more than provide the occasion for an entirely
independent act by a third party and that act is the immediate cause of the plaintiffs damage, then it will
amount to a nova causa interveniens and the defendant will not be liable
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In Wright v Lodge (1993) 4 All ER 299, D1s vehicle broke down and she negligently failed to take steps
to remove it from the highway. D2 drove recklessly and collided with the car. P2 and P3 then collided
with D2s vehicle which had come to rest after the collision. D1 was held not liable to P2 and P3 as the
recklessness of D2 broke the chain of causation
(3) Intervening Act of the Plaintiff
Where it is the plaintiffs own act or omission which in combination with the defendants breach of duty
has brought about his damage, then the problem is generally seen as one of contributory negligence. In
some instances, the plaintiffs own act or omission may break the chain of causation in that the plaintiffs
own conduct or lack of care has been one of the causes of his damage.

In McKew v Holland & Hannen & Cubitts (Scotland) Ltd (1969) 3 All ER 1621, the plaintiff was injured in
an accident caused by the defendant and as a result he occasionally lost control of his left leg. A few
years later after this accident, he went to inspect a flat which has steep stairs without handrails. When
he descended the stairs, suddenly he lost control of his left leg and jumped so as to land in an upright
position instead of falling down the stairs. As a result he sustained a severe fracture of his ankle. The
House of Lords held that the causation chain was broken as the plaintiff could have descended the stair
slowly and carefully by himself.

15.3.4.4 Malaysian Cases

The reasonably foreseeability test has been applied by the Malaysian courts in many cases, such as
Government of Malaysia v Jumat bin Mohamed (1977) 2 MLJ 103; Jaswant Singh v Central Electricity Board
(1967) 1 MLJ 272; Sivakumaran v Yu Pan (1961) AC 388 and lately by the Court of Appeal in Sukatuo v Lee
Seng Kee (2009) 4 CLJ 171.

15.3.5 Contributory Negligence

At common law, if the plaintiffs injuries have been caused partly by the negligence of the defendant and
partly by his own negligence the plaintiff can recover nothing. It is obvious that this rule is very harsh and
hardship could have been caused to the plaintiff especially where the plaintiffs negligence was not the main
cause of the accident.

th

The concept of contributory negligence was introduced in the UK at the beginning of the 19 century and it
was later codified in the Law Reform (Contributory Negligence) Act 1945.

To invoke the doctrine of contributory negligence, the defendant needs to prove that the plaintiff has failed to
take reasonable care for his own safety. Thus there may be a reduction where a motor cyclist fails to wear a
crash helmet, where a passenger in a car does not wear his seat belt or rides with a driver whom he knows
to have taken substantial quantities of alcohol.

It is however, essential that the plaintiffs lack of care should be a contributory factor to his damage and this
means not only that his fault should be a cause of his loss but that the loss is within the broad scope of the
risk created by his fault.

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In Malaysia, the doctrine of contributory negligence is codified in s 12 of the Civil Law Act 1956. Pursuant to
s 12, the damages recoverable by the plaintiff are to be reduced to such extent as the court thinks just and
equitable having regard to the plaintiffs share in the responsibility for the damage. The matter is thus one of
the discretion of the court.

15.3.6 Professional Negligence

The duty of care of a professional may arise in contract (such as consultancy agreement with a client), in tort
or by reason of a statute and may be owed to a third party.

The law imposes an implied duty of care on professional because the public views the professionals as
having special skills and it is a representation or undertaking to everyone that any person in that profession
possesses the requisite ability and skill. Thus a professional must use reasonable care and skill.

The duty of care on the part of professionals is sometimes not only owed to clients who engaged them but
also to third parties. For instance, when giving skilled advice knowing that it will be passed on to a third party
who will rely upon it, the professional owes a duty of care to both the client and the third party.

In Hedley Byrne & Co v Heller & Partners Ltd (1964) AC 465, HB is an advertising firm and intended to
check the credit-worthiness of a client, E. They wrote to Es banker HP who replied that E is considered
good for its ordinary business engagement. E later went into liquidation and HB sued HP for providing the
information negligently. The court held that the relationship between the parties was sufficiently proximate
as to create a duty of care. It was reasonable for them to have known that the information that they had
given would likely have been relied upon for entering into a contract or some sort. This would give rise to a
special relationship in which the defendant would have to take sufficient care in giving advice to avoid
negligence liability.

The court also laid down some general principles in order to establish professional negligence on
misstatement:
a) The negligence shall have been committed in the ordinary course of business or professional affairs.
Casual conversation over dinner will not suffice;
b) The information must be given in circumstances in which a reasonable man would know that he was
being trusted or his advice was being relied upon; and
c) There must be no disclaimer clause.

15.3.7 Malaysian Cases on Negligence of Engineers

i) Highland Tower Case
The duty of care owed by developers, architects and engineers were examined in Steven Phoa Cheng Loon
v Highland Properties Sdn Bhd (2000) 4 MLJ 200, another case arising from the collapse of the Highland
Tower. In this case, the cause of action relied on by the plaintiffs against the defendants were negligence,
nuisance and the liability under Rylands v Fletcher.

Highland Tower consisted of three blocks of apartments which were built between 1975 and 1978. Behind
the 3 blocks was a steep slope. On 11/12/1993, after a 10-day continuous rainfall, a landslide occurred
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resulting in the collapse of Block 1. The other 2 blocks were later declared to be unsafe and abandoned.
73 owners of Block 2 and 3 brought an action against 10 defendants and it includes the architect and the
engineer.

The engineer was engaged by the developer to design structural work for the building, retaining walls and
drainage system of the site. The Plaintiffs claimed that the engineer was negligent for the following reasons:
i)

Designing unsuitable foundations;

ii)

Lack of care and concern of the hill and slope; and

iii) Issuance of a notice to the authorities confirming the drainage works was completed when only a
fraction of it was done.

The High Court held that the developer, architect, engineer, Majlis Perbandaran Ampang Jaya (MPAJ) and
the 3 developers of the land directly at the rear of Highland Tower to be liable in the following proportion:
Developer

- 15%

Architect

- 10%

Engineer

- 10%

MPAJ

- 15%

3 Developers

- 50%

For the engineer, the court opined that he owed a duty of care to the plaintiffs to ensure the safety of the
buildings he designed and built.

ii) Dr Abdul Hamid Case

In the case of Lim Teck Kong v Dr Abdul Hamid Abdul Rashid (2006) 3 MLJ 213, the Plaintiff engaged a civil
1
and structural consulting firm to design a double-storey bungalow in Ulu Klang, KL. About 3 /2 years after
the house was constructed, it began to collapse due to landslide and the plaintiff was forced to evacuate and
abandon the house. They then brought an action in tort of negligence against, among others, the
engineering consultants, the local authority and the contractor engaged in erecting a house in the
neighbouring land.

The court held that the engineer and the consulting firm have breached a duty of care in failing to take into
serious consideration the stability of the slope on which the house was built as the slope is steep with a river
of swift flowing water. The engineer and his firm were liable for 60% of the damages. The court further held
that the contractor had artificially accumulated the rainwater with the excavation which was an alteration to
the nature of the land and had breached their duty of care in respect of negligence and liable in part under
the rule of Rylands v Fletcher. They are responsible for 40% of the damages.

iii) Lembaga Jurutera Malaysia v Leong Pui Kun (2008) 6 CLJ 93

On 16/09/1995, a 32-metre span of partly constructed steel truss linkway bridge at the Matsushita Television
Co. Sdn Bhd factory in Shah Alam, collapsed whereby one person was killed and five persons were injured.
Soon after the accident, the Director of Jabatan Kerja Raya Selangor set up a 4-member Technical SubCommittee to inquire into the accident. The findings of the Sub-Committee indicate, inter alia, underdesign
of the linkway bridge to support the given loads during construction, ineffective lateral restraints and
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weakness in the current system of construction supervision and enforcement as the root causes of the
collapse.

The Board of Engineers Malaysia (BEM) set up a 3-member Ad Hoc Committee to investigate this incident
and the investigation report highlighted the deficiency of the design in terms of the effective length, lateral
buckling, slenderness of the beam etc.

The Project Director Ir. Leong explained that the linkway bridge design was prepared by a Graduate
Engineer who has less than one year design experience. Under normal circumstances, Ir. Leong himself will
check the design and the design will again be counter-checked by 2 engineers from Kajima Design Asia.
However in this particular case, somebody must have missed this part of the design process and this
eventually resulted in the collapse. He stated that the overloading is critical and agreed with the comment
that if the linkway was properly designed, the overloading would not affect it and cause the collapse. Being a
project director, Ir. Leong signed for the calculation and the drawing.

BEM completed the investigation and held that Ir. Leong was negligent and his registration with BEM was
cancelled. Ir. Leong filed a suit in the High Court for judicial review seeking for re-instatement and the court
allowed his application. On appeal, the Court of Appeal affirmed the decision of the High Court. On further
appeal, this decision was reversed by the Federal Court which held that the cancellation of registration was
valid.

iv) Choy Meng Heng v Immediate Strategy Sdn Bhd & Anor (2010) 7 CLJ 1000
The Plaintiff (P) purchased 1 unit of 3-storey shop house in 1997 from the first defendant, Immediate
Strategy Sdn Bhd (D1) for RM495,000. TP Tay Jurutera Perunding (D2) was the consulting engineer for the
project and was responsible for the civil, structural and building design. Kaz Akitek (D3) was the consultant
architect for the project and they certified that the shop house was completed on 23/01/1998. After the
Plaintiff took delivery of the shop house, he discovered defects in the building and complained to D2. D2
investigated the complaint and concluded that the defects were due to poor workmanship, insufficient lend
length, too far apart of lend reinforcement, insufficient reinforcement and lack of supervision. D1 engaged an
independent engineer to investigate the complaint and it was concluded that the inherent defect in the
internal beams and slabs is too substantial probably due to their much longer span and that it would be more
feasible to demolish and reconstruct the internal beams and slabs for the first and second level.

On 23/12/1999, the Plaintiff and D1 entered into an agreement whereby D1 agreed to carry out remedial
works on the shop house. D1 failed to complete the remedial work and the shop house is now in a state of
disrepair. P sued D1, D2 and D3 for breach of contract or alternatively in the tort of negligence. The High
Court held that:
i)

D2 and D3 owed a duty of care to P by applying the 3-stage test in Caparo Industries v Dickman (1990)
2 AC 605; that:
1) Damage is foreseeable;
2) The relationship between D2, D3 and P is sufficiently proximate; and
3) It is fair and reasonable to impose a duty of care.

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ii)

D2 is under a duty of care not only to ensure that the engineering design and drawings are adequate
and safe but also under a duty to supervise the structural works so as to ensure that they are carried out
in accordance with said engineering design and drawings

iii) D2 had breached the duty of care as he failed to supervise the structural work
iv) D2 is wholly liable for the damages for loss of use and costs of rectification works.

15.4 Strict Liability

15.4.1 General Rule
Strict liability occurs when a liability is imposed on the defendant without any fault on his part. Unlike the
rules for negligence, where the defendant is only liable when he is negligent, defendant under strict liability
rule is always liable, whether he is negligent or not, so long as it can be proved that he caused the damage
or injury.

There are many types of strict liability and the common ones are product liability and the rules in Rylands v
Fletcher.

15.4.2 Product Liability

Recently, the doctrine of strict liability is extended significantly and includes defects in all types of products
including appliances, food, furniture etc. The application of strict liability to these items is called strict product
liability and similar to strict liability, it imposes liability on the seller and manufacturer of a defective product
although they violated no duty and did nothing wrong.

A product is defective if it is designed or manufacturer improperly or if it contains inadequate warning of

danger, if any. For example, a chef buys a rice cooker for a restaurant and when he plugs it and turns it on,
it explodes, causing injury. The store that sold the rice cooker is strictly liable. The chef does not have to
prove that the cooker is negligently manufactured.

15.4.3 Rule in Rylands v Fletcher

15.4.3.1 The Rule
The doctrine of strict liability can be found also in the famous case of Rylands v Fletcher (1865) 3 H&C 774.
In this case, B, a mill owner employed independent contractors to construct reservoir on his land to provide
water for his mill. In the course of the work the contractors came upon some old shafts which appeared to
be filled with earth on Bs land. They communicated with the mines of A, a neighbour of B. The contractors
did not block them up and when the reservoir was filled with water it burst through the old shafts and flooded
As mines. It was found as a matter of fact that B had not been negligent, although the contractor had been.
A sued B and the House of Lords held B liable. Blackburn J held:
We think that the true of law is that the person who for his own purpose brings on his lands and
collects and keep there anything likely to do mischief if it escapes, must keep it in at his peril, and, if
he does not do so, is prima facie answerable for all the damage which is the natural consequence of
its escape.

The above rule is now regarded as the rule in Rylands v Fletcher.

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15.4.3.2 Elements
The necessary elements of the rule in Rylands v Fletcher are:
i)

Dangerous Things

The things that the defendant keeps or collects must be dangerous in nature. It has been held that they
include variety of things such as fire, gas, blasting and munitions, electricity, oil, noxious fumes, colliery spoil,
rusty wire from a decayed fence, vibrations, poisonous vegetation, a flag pole and a chair-o-plane in fair
ground.
ii)

Escape

The dangerous things must escape and cause damages in order to establish legal liability. Escape was
defined by Viscount Simon in Rylands as escape from a place where the defendant has occupation or
control over land to a place which is outside his occupation or control.
In Read v J Lyons & Co Ltd (1947) AC 167, the plaintiff was employed as an inspector of munitions in the
defendants munitions factory and was injured by the explosion of a shell that was being manufactured. The
House of Lords held that the defendant is not liable as there had been no escape of the thing that inflicted
the injury.
iii) Non-natural Use of Land

Lord Moulton in Richards v Lothian (1913) QC 263 explained non-natural use of land as it must be some
special use bringing with it increased danger to others and must not merely be the ordinary use of the land or
such a use as is proper for the general benefit of the community.

As a general rule, bulk storage of chemicals is regarded as non-natural use of land. However minor or
common uses of things which have some potential for danger are generally not considered as non-natural
use of land. These include water installations in a house or office, the main water supply to a block of flat, a
fire in a domestic grate, electric wiring, gas pipes in a house or shop and burning stubble in the normal
course of agriculture.

15.4.4 Malaysian Cases

In Hoon Wee Thim v Pacific Tin Consolidated Corp (1957) 2 WLR 186, Gill J held that the rule in Rylands v
Fletcher is a part of the law in Malaysia by virtue of s 3 of the Civil Law Act 1956.

In Abdul Rahman bin Che Ngah v Putra bin Samat, the defendant (a contractor) was engaged to clear an
irrigation canal which went through the plaintiffs rubber land. The defendant cleared the bushes, weeds etc
from the canal and burned them on the land. The fire spread to the plaintiffs land and destroyed the rubber
trees on it. The court held that the defendant was liable for negligence under rule in Rylands v Fletcher as
the escape of the fire resulted from an unnatural use of the land.

Other cases where the rule in Rylands v Fletcher was applied are Arab-Malaysian Finance Bhd v Steven
Phoa Cheng Loon (2003) 1 MLJ 567 (Highland Tower); Lim Teck Kong v Dr. Abdul Hamid Abdul Rashid
(2006) 3 MLJ 213 and Milik Perusahaan Sdn Bhd v Kembang Masyur Sdn Bhd (2003) 1 MLJ 6.

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15.5 Breach of Statutory Duty

15.5.1 General Rule
If a person suffers damages due to the breach of a statutory duty by the defendant he may be able to bring
an action for breach of statutory duty simpliciter. The most common area of the operation of this type of tort
is that concerned with industry safety. Thus an employer will be liable to the employee if he fails to provide
safety gears as required under a statute and the employee is injured due to insufficient safety precautions.
Lord Tenterden CJ in Doe d Bishop of Rochester v Bridges (1831) 1 B & Ad 847 laid down the general rule
that where an Act creates an obligation and enforces the performance in a specified manner that
performance cannot be enforced in any other manner.

15.5.2 Elements of the Tort

In order to establish liability for breach of statutory duty, following elements need to be satisfied:
a) Statutes intended to create civil liability
b) Duty must be owed to the plaintiff
c) Statute imposed duty on the defendant
d) Defendant in breach of the duty
e) Injury must be of the kind which the statute is intended to prevent
f)

Plaintiff suffered damages

15.5.3 Statutes intended to create Civil Liability

Some statutes expressly create a right of action for breach of their terms whereas others expressly exclude a
civil action for breach of statutory duty. In most cases however, a statute will not indicate whether
contravention will be actionable or not. In such case the courts attempt to discover the intentions of
Parliament using the rules of statutory interpretation.

15.5.4 Duty owed to the Plaintiff

Some statutory duties are so expressed as to limit the classes of person (for example construction workers)
for whose benefit they exist. If the plaintiff is not a member of this particular class, then his action for breach
of statutory duty cannot succeed. See Hewett v Alf Browns Transport Ltd (1992) 1 CR 530; Hartley v Mayoh
& Co (1954) 1 QB 383 and PRP Architects v Reid (2006) EWCA Civ 1119.

15.5.5 Statute imposed the duty on the Defendant

To establish liability, the statute must impose the duty on the particular defendant. See Majrowski v Guys
and St. Thomas NHS Trust (2006) UKHL 34.

15.5.6 Defendant in breach of Duty

The defendant must be guilty of a breach of his statutory obligation in order to be liable. However the
measure of the defendants obligation in every case must be found in the statute itself. In some cases the
statute imposes an unqualified obligation i.e. an absolute duty, which in certain state of affairs shall exist.
Sometimes a duty is imposed so far as is reasonably practicable, which is very similar to the standard of
common law negligence, save that the burden is on the defendant to show that the thing was not reasonably
practicable. See Nimmo v Alexander Cowan & Sons Ltd (1968) AC 107.
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15.5.7 Injury intended to prevent

If the object of the statute was to prevent mischief of a particular kind, one who suffers from its nonobservance loss of a different kind cannot twist its remedy into an action for his own recoupment. See Gorris
v Scott (1874) 9 Exch 125.
The modern tendency is however, not to apply this too strictly, in Donaghey v Boulton & Paul Ltd (1968) AL 1,
Lord Reid held that if the plaintiffs injury is of the kind that the statute was designed to prevent then it does
not matter that it occurred in a way not contemplated by the statute.

15.5.8 Plaintiff suffered Damages

In action for breach of statutory duty, as in the action for common law negligence, the plaintiff bears the
burden of proving the casual connection between the breach of duty and the damage. See Bonnington
Castings Ltd v Wardlaw (1956) AC 613.

If some fault is to be attributed to the plaintiff for example the workers fail to use the safety gear provided by
the employer, then the damages to be awarded may be substantially reduced on account of his contributory
negligence.

15.5.9 Malaysian Cases

In UDA Holdings Bhd v Koperasi Pasaraya Malaya Bhd (2009) 1 CLJ 329, the plaintiff (P) bought a claim
against UDA Holdings Bhd (UDA), Dato Bandar Kuala Lumpur (DBKL) and Government of Malaysia
(Government) for damages on account of losses sustained by its supermarket as a result of the closure of a
section of the road next to the supermarket by DBKL.
The closure of the road is to enable UDA to construct on the road a temporary building comprising 76 stalls.
The High Court found that the closure of the road was the joint action of UDA, DBKL and the Government,
that it caused public nuisance especially to P and that the collapse of its supermarket business was entirely
due to the closure.
The Court of Appeal upheld the High Court finding of liability for public nuisance against the 3 defendants
and held that DBKLs failure to exercise his power under s 46(3)(a) of the Street, Drainage and Building Act
1974 (the Act) to remove the obstruction was a breach of statutory duty which caused the collapse of the
supermarket business. They also found DBKL liable for breaches of statutory duty by contravening s 12 and
s 46 of the Act.
1

Upon appeal, the Federal Court held that UDA is liable to /3 of the total economic loss but DBKL and the
Government were not liable for pure economic loss by virtue of Majlis Perbandaran Ampang Jaya v Steven
Phoa Cheng Loon (2006) 2 MLJ 389.

15.6 Trespass
15.6.1 What is Trespass?
Trespass is one of the ancient forms of wrong that arose under the common law of England as early as the
thirteenth century. In modern law the word trespass is used most commonly to describe the intentional and
wrongful invasion of anothers interest in his person, land or goods.

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Trespass can be broadly divided into 3 groups:

a) Trespass to land
b) Trespass to goods
c) Trespass to person

15.6.2 Trespass to Land

15.6.2.1 General Rule
Trespass to land is a form of trespass which is constituted by unjustified interference with the possession of
land. Trespass is actionable per se whether or not the plaintiff has suffered any loss. Thus every unlawful
entry into anothers property is trespass, even if no harm is done to the property.

15.6.2.2 Strict Liability

An entry upon anothers land is tortious whether or not the entrant knows that he is trespassing. (See
Conway v George Wimpey & Co Ltd (1951) 2 KB 266). Thus it is no defence that the only reason for his
entry was that he had lost his way or even that he genuinely but erroneously believed that the land was his.
In reality, great majority of trespass to land are self-evidently intentional. However if the trespassers entry
was involuntary, for example where he is thrown or pushed onto the land, then he is not liable for trespass
simply because there is no act on his part (See Smith v Stone (1647) Style 65).

15.6.2.3 Interference
Interference with the possession of land sufficient to amount to trespass may occur in many ways. The most
obvious example is unauthorized walking upon it or going into the building upon it, but it is equally trespass if
one throw things onto anothers land or allow ones cattle to stray onto it from anothers land.

A person who has a right to come onto the land may become a trespasser by committing wrongful acts after
entry. And if one has been given a permission to enter a land and acts in excess of the permission or remain
on the land after it has expired, he has become a trespasser.

15.6.3 Trespass to Goods

15.6.3.1 The Rule
Trespass to goods is a wrongful interference such as removing or damaging the goods. It has been defined
as an intentional interference with the possession of personal property. It may take innumerable forms,
such as scratching the panel of a vehicle, removing a tyre from a car or the vehicle itself from a garage, or in
the case of animals, beating or killing them.

15.6.3.2 Elements
Generally trespass to goods consists of 3 elements:

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a)

Lack of Consent

The interference with the property must be non consensual. Thus a claim does not lie if, in acquiring the
property the defendant consents contractually to certain access to the goods by the plaintiff. However any
use of the goods exceeding the limit of consent authorized by the contract gives rise to a course of action.
b)

Intention

The interference must be intentional. If someone unintentionally removes or damage a handphone, he will
be liable under conversion or negligence and not trespass to goods.
c)

Actual Damage

The interference with the property must result in some damage or asportation [See Everitt v Martin (1953)
NZLR 29]. Therefore no action will lie by mere touching of objects like waxworks or exhibits in a gallery or
museum.

In the modern law of trespass to goods, the action is confined to intentional interference and that negligent
interference is remediable by the tort of negligence. However if one takes anothers goods in the mistaken
belief that he is entitled to do so, he will be liable for trespass to goods as the act is intentional towards the
goods. In Wilson v Lombank Ltd (1963) 1 WLR 1294, the plaintiff had purchased a car from a person who
had no title to it and had sent to a garage for repair. The defendant, believing, wrongly that the car was his,
removed it from the garage. It was held that the defendant was liable in trespass.

15.6.4 Trespass to Person

15.6.4.1 General Rule
Trespass to person involves direct interference with a persons body or liberty such as beating or hurting
someone.

This tort consists of 2 basic elements:

a)

Intention

The plaintiff must prove that the injury was inflicted intentionally by the defendant [Letang v Cooper (1965) 1
QB 232]. When the injury is inflicted negligently, the cause of action is negligence and not trespass to
person.
b)

Direct Means

The wrong must be committed by direct means for example throwing a log and hitting a passer-by.

Acts of trespass to person are generally crimes as well as torts. Due to different standard of proof, one who
has been acquitted by a criminal court may be liable in a civil suit. The classical example is the OJ Simpson
case in which he was acquitted for murder of his wife and her friend but was found liable for all damages
suffered by the deceaseds family in the subsequent civil suit.

There are 3 main forms of trespass to person:

a) Assault
b) Battery
c) False Imprisonment
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15.6.4.2 Assault
Assault is both a crime and a tort. Generally a person commits criminal assault if he places another in fear
of imminent serious bodily injury. A person commits tortious assault when he engages in any act of such a
nature as to excite an apprehension of battery or bodily injury.
Thus there must be some act consisting of some gesture or preparation to commit battery. For example
throwing water on a person is an assault but if any drop of that water falls on that person it becomes a
battery, driving a car at a person is an assault but driving it against him is a battery. Pulling away a chair as
a joke, from one who is about to sit on it is probably an assault until he reaches the floor. When he comes in
contact with the floor, it is a battery. Pointing a gun to someone whether loaded or unloaded is an assault.
In Stephen v Meyers (1830) 172 ER 735, it was held that the defendants action by advancing towards the
plaintiff during a meeting saying that he would pull him from the chair is an assault even though he was
stopped by another person.

In R v Ireland (1998) AC 147, the House of Lords held that threats on the telephone may be an assault
provided the plaintiff has reason to believe that they may be carried out in sufficiently near future. The court
further held that silence, given certain conditions, may constitute an assault as well, such as a malicious
silent telephone call. The defendants purpose of such a silent call was to convey a message to the victim
just as surely as if he had spoken to her.

15.6.4.3 Battery
Battery is the intentional and direct application of force to another person, either hostile or against his will.
The elements of battery are:
a)

Intentional

The defendant must act intentionally or voluntarily bringing about the contact with the plaintiff. One does not
commit battery against another if another person seizes his arm and uses it like a club-here that person is
liable. But the act needs to be intentional only as to the contact whereas the intention to bring about the
harmful consequence is not required. If A pushes B into a swimming pool and injury occurs, then A is liable
even though it was not his intention to cause any injury.
b)

Directness

The act must be applied directly to the plaintiff. The tendency now seems to be to give a broad meaning to
directness. In Haystead v Chief Constable of Derbyshire (2000) 2 Cr App R 339, the defendant struck W in
the face with the result that the baby she was holding fell onto the floor. The court held that he was liable for
battery.
c)

Force

If there is a forcible contact, no damage is necessary for trespass is actionable per se. Any physical contact
with the body of the plaintiff (or his clothing) is sufficient to amount to force. Whether the infliction of such
things as heat or light or blowing smoke on a person could be battery is uncertain though the answer is
probably no.
d)

Hostility

The body contact must be brought about with hostility and without consent. However in practice, it is difficult
to distinguish between battery and legally unobjectionable contact. In Collins v Wilcock (1984) 1 WLR 1172,
Robert Goff LJ said that bodily contact was not actionable if it was generally acceptable in the ordinary
conduct of everyday life. Therefore touching another in the course of conversation or to gain his attention is
not a battery.
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e)

Consent

Where there is consent to the contact there is no battery and the same is true where the plaintiff, though not
in fact consenting, so conducts himself as to lead the defendant reasonably to believe that consent exists. A
person has an absolute right to the inviolability of his body and therefore has an absolute right to choose
whether or not to consent to medical treatment even if the treatment is necessary to save his life. Similarly a
person has the right to choose whether to eat or not even if the refusal is tantamount to suicide. As in the
case of hunger strike, he cannot be compelled to eat or forcibly fed. [See B v Croydon HA (1995) Fam. 133]

15.6.4.4 False Imprisonment

False imprisonment is the restriction of a persons freedom of movement and may be defined as unlawful
obstruction or deprivation of freedom from restraint of movement. The person so restrained is imprisoned
so long he cannot move to another place in accordance with his wishes.

Neither physical contact nor anything resembling a prison is necessary to constitute false imprisonment. If a
lecturer locks his students in the lecture room after the usual time for dismissal has arrived, that is false
imprisonment; so too, if a person is restrained from leaving his own house or any part of it. Or be forcibly
detained in the public street. In Warner v Riddiford (1858) 4 CBNS 180, the defendant, after dismissing the
plaintiff as resident manager of a beer-house, prevented him from going upstairs to collect his belongings. It
was held this amounted to false imprisonment.

There is no false imprisonment where the plaintiff consents to the defendants order, but he is not to be taken
as consenting simply because he does not resist by force.

The tort is not committed unless motion be restrained in every direction i.e. the restraint must be complete.
What will amount to a complete restraint is a question of degree. A person would plainly be imprisoned if
lock inside a large building even though he had full freedom to roam around inside it.

15.7 Remedies
15.7.1 Aims of the law of Tort
It is not possible to assign any one aim to the law of tort as it encompasses different varied situation as
stated in 15.1.1. Generally we may say that tort is concerned with the allocation of prevention of losses
which are bound to occur in our society. It is obvious that in any society of people living together numerous
conflicts of interest will arise and that the actions of one person will from time to time cause damages to
others. This damage may take different forms injury to the person, damage to the physical property,
damage to financial interest, injury to reputation etc. Therefore the aim of law of tort can be described as to
compensate the victims for all damages arising from the acts of the wrongdoer.

15.7.2 Types of Remedies

Common remedies available to a victim of a tort are:
a) Damages
b) Injunction

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15.7.3 Damages
Ordinary an award of damages is made in order to compensate the plaintiff for his injury and the assessment
of compensatory damages is subjected to remoteness test and the courts, had over the years, established
some principles in its assessment.
Damages to be awarded for personal injury can be classified into pecuniary and non-pecuniary damages.
Pecuniary damages can be sub-divided further into general and special damages while non-pecuniary
losses include pain, suffering and loss of amenity.
In Malaysia, the guidelines for the assessment of damages for personal injury are laid down in the Civil Law
Act 1956.

a)

General and Special Damages

Special damages are types of damages that a plaintiff needs to prove such as hospital bills and property
damage. General damages are damages to be assessed by the court based on some established legal
principles and statutory loss of earning capacity, loss of support, future care expenses and loss of
consortium.
b)

Pain, Suffering and Loss of Amenity

The court will award some monetary damages to the plaintiff who endures pain and suffering due to the
injury. Pain and suffering includes the suffering attributable to any consequential medical treatment and
worry about the effects of the injury upon the plaintiffs way of life and prospects.
If the plaintiff, due to the injury, is deprived of some enjoyment, for example, if an amateur footballer loses a
leg, then he is entitled to damages due to loss of amenity.

15.7.4 Injunction
An injunction is an order of the court restraining the commission of continuance of some wrongful act or the
continuance of some wrongful omission.
Injunctions are generally sought against such torts as nuisance, continuing or repeated trespass, passing off
or interference with contract. For example, a landowner is entitled to an injunction to restrain trespass by the
defendant in parking his vehicle on the land or running dogs across it or swinging a crane jib through the air
above it.

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