BLT2614 Law of Torts I Introduction

Dr. Dennis W. K. Khong wkkhong@mmu.edu.my June 2012

Textbooks

1. Norchaya Talib. (2010). Law of Torts in Malaysia, 3rd ed. Kuala Lumpur: Sweet & Maxwell Asia. 2. Rogers, W.V.H. (2010). Wineld and Jolowicz on Tort, 18th ed. London: Sweet & Maxwell.

Statutes

3. Civil Law Act 1956 4. Defamation Act 1957

Texts to Read

5. Norchaya. chap. 1. 6. Wineld and Jolowicz, chaps. 13.

The Scope of Tort Law

7. Tort is a civil matter. 8. The features of a tort are: (a) there must be a wrongful or unauthorised act or omission; and (b) that wrongful or unauthorised act or omission affects the interests or rights of others; and (c) the injured party or victim has a right to claim for damages. 1

9. Tort is to be distinguished from other branches of the law: Contract: In tort, the relationship and duties of parties are dened by tort law; in contract, the duties are dened principally by the contract. Also, the principle for remedies in tort is restitutio in integrum, while the principle for remedies in contract is to compensate the non-defaulting party such that as if the contract has been performed. Trusts: To enforce a trust against another, there must exist a special relationship of trust. The duty owed in tort, however, is applicable to the public at large. Restitution: Restitution can be described as a legal theory for preventing an unjust enrichment of the defendant at the expense of the plaintiff. It is not necessarily compensatory in nature. Property law: There is no separate body of law in English common law called property law. Ownership rights in property is largely governed by tort law. The exception is with regards to real property and chose in action. 10. The source of law of torts in Malaysia is section 3(1) of the Civil Law Act 1956: Save so far as other provision has been made or may hereafter be made by any written law in force in Malaysia, the Court shall (a) in Peninsular Malaysia or any part thereof, apply the common law of England and the rules of equity as administered in England on the 7 April 1956; (b) in Sabah, apply the common law of England and the rules of equity, together with statutes of general application, as administered or in force in England on 1 December 1951; (c) in Sarawak, apply the common law of England and the rules of equity, together with statues of general application, as administered or in force in England on 12 December 1949, subject however to subparagraph 3(ii); Provided always that the said common law, rules of equity and statutes of general application shall be applied so far as the circumstances of the States of Malaysia and their respective inhabitants permit and subject to such qualications as local circumstances render necessary. 11. The only branch of tort law which has been codied in Malaysia is the law of defamation, in the Defamation Act 1957. Even so, English common law principles are applied when interpreting the Defamation Act. 12. Topics covered in BLT2614 Law of Torts I are: (a) Negligence (b) Occupiers liability (c) Trespass to person (d) Trespass to land (e) Trespass to goods (f) Defamation 2

13. In BLT2624 Law of Torts II, we will cover: Nuisance The rule in Rylands v. Fletchter Breach of statutory duty Liability for false statements Product liability Interference with contract or business Malicious prosecution Vicarious liability Remedies 14. The function of tort law is said to be as such: The law of torts is concerned with the redress of wrongs or injuries (other than breaches of contract) by means of a civil action brought by the victim. This redress most commonly takes the form of damages, that is to say, monetary compensation. 15. More specically, tort law plays the following functions: (a) Compensation (b) Prevention of continuous harm, by way of an injunction (c) Deterring unreasonable or undesirable behaviour.

5
5.1

Important Concepts in Tort Law

Tortious Liability

16. Liability in tort arises when a person does something that is not allowed (an act), or does not do something that is required (an omission), by the law.

5.2

Intention

17. Intention is relevant in all intentional torts: trespass to person, trespass to land, trespass to goods and defamation. 18. Intention is not relevant in negligence, as an objective test is used to determine liability.

5.3

Motive and malice

19. Motive generally is irrelevant in tort liability. 20. Malice, i.e. evil or improper motive, may be relevant in the tort of nuisance, conspiracy and defamation. 3

5.4

Damage

21. Torts such as negligence, nuisance, strict liability and defamation require proof of damage or harm before the defendant is held liable. 22. Damage or harm may be one or more for four kinds: (i) physical injury, (ii) damage to property, (iii) damage to reputation, (iv) economic loss. 23. No all form of damage or harm are actionable in tort. 24. A tort is actionable per se when proof of damage is not required, e.g. for intentional torts such as trespass to person, trespass to land and trespass to goods.

5.5

Damages

25. Damages is the monetary compensation that the defendant has to pay to the plaintiff. 26. Damages fall into two broad categories: (i) Unliquidated damages: Unquantieable damage which includes general damages for pain and suffering, (ii) Liquidated damages: Specic damage the plaintiff has suffered, e.g. loss of earnings and medical bills.

Limitation

27. A plaintiff needs to commence his action within the limitation period prescribed by the Limitation Act 1953. Failure to do so will render the plaintiffs action unsuccessful. 28. Section 6(1)(a) of the Limitation Act 1953 provides for a general limitation of six years for an action in tort. 29. However, where the defendant is the Government of Malaysia, section 2(a) of the Public Authorities Protection Act 1948 provides a limitation period of three years.

Administrative Advice to Students

30. Given the high number of courses taken in each trimester, studying law at MMU is a very intense and time-pressured endeavour. As such, every minute of your wakeful time is valuable. 31. The beauty of tort law can only be properly appreciated by reading the actual cases. Therefore, please read the actual cases. 4

32. Since time is very limited, I would like to offer two two time-saving suggests that you can consider taking: (a) By a portable doc/pdf reading device, i.e. either an iPad or an Android tablet, a dedicated ebook reader such as Sonys PRS, or a netbook (do check them out rst to see which suits you best). That way, you can have lots of documents to read on the go between classes or while waiting for your lecture or tutorial to start. (b) Work in groups and share the downloaded cases among yourselves. 33. To fully benet from my tutorials, I expect all students to read the relevant chapters and the cases before coming to class. My tutorials are not mini-lectures, and I do not intend to deliver one. 34. Read the tutorial questions before hand and prepare a draft answer. 35. Keep your attendance perfect. Whether you get an A or a B might ultimately depend on your 10% class participation marks. Also, I will not hesitate to bar students with a poor attendance record from taking the nal exam.