chapter 2: law of tort

Chapter 2: Law of Tort

Introduction

2

Introduction

• A part of our civil liability system

• Principally concerned with imposition of legal

liabilities and the consequent remedies in respect

of civil wrongs committed against recognizes

entities

• The liability is not dependent on contractual

agreement

• Deals with wide range of situation - providing

remedies for various injuries.

Introduction

• The word ‘ tort’ itself - French for ‘wrong’ -now to

mean a wrong recognized by law.

• Winfield - tort as a wrong the victim of which is

entitled to redress / specific civil wrong or injury.

• Law of torts has two function:

- to determine when a person has to pay

compensation for harm wrongly caused.

- to determine what conduct may be stopped or

regulated by the court’s order.

Introduction

• Kinds of interest that law of torts protect against:

a. person - assault, battery, personal injury

b. property - trespass, nuisance, interference with

goods

c. financial - deceit, economic loss

d. reputation - defamation, libel, malicious

prosecution

Introduction

• A tort arises not simply out of the infliction of injury

to the interest stated above but in the infliction of

a legally recognized injury

• Liability in tort may arise:

1. Primary - where a person is liable for his own

act or omission in breach of a legal duty

2. Vicarious - Where a person is liable for the act

or omission of another with whom he stand in

some special relationship

Negligence

7

Negligence

• Negligence as an independent tort is defined as the breach of a legal duty to take care - as a result of which -the plaintiff suffers damage.

• To succeed in an action for negligence - plaintiff must prove ALL the elements of negligence:

1•DUTY TO TAKE CARE

2• BREACH OF THE DUTY

3• THE BREACH CAUSES THE INJURY

#1 The Duty to Take Care

• A defendant will only be liable if he owes the plaintiff a duty to take care

• If there is no duty to take care, a negligent act has no legal consequence

• A duty of care exist in normal circumstances where if a person does not take the usual precautions, another person or his property may be injured/damaged

• To test the existence of duty of care - Donoghue v. Stevenson (1932) - The Neighborhood Principle

The Neighborhood Principle:

‘The rule that you are to love your neighbour becomes in law you must not injure your neighbour, …..you must take reasonable care to avoid acts or omission which you can reasonably foresee would be likely to injure your neighbour. And the lawyer’s question “who is my neighbour…..persons who are so closely and directly affected by my act that I ought reasonably to have them in my contemplation as being so affected when I am directing my mind to the acts or omission in questions’

#1 The Duty to Take Care

• The neighborhood principle is an objective test in the sense that the court will a hypothetical question;

• “Would a reasonable man, who is in the same circumstances as the defendant, foresee that his conduct will adversely affect the plaintiff?”

• If the answer is YES, then the plaintiff is a neighbour of the defendant

• If the answer is NO, plaintiff not a neighbor, no duty to take care

• Palsgraf v. Long Island Railroad

#2 Breach of the Duty

• Plaintiff must show not only that there is a duty to take care - but that the duty have been breached i.e. the defendant does something below the minimum standard of care required

• Standard of care to determine breach or not -that of a reasonable man i.e. would a reasonable man have acted as the defendant has done if the reasonable man was faced with the same circumstances?

Question: who is a reasonable man?

• Reasonable man – someone who is neither careless nor overly careful

• It is an objective test

#2 Breach of the Duty• The standard of care - dependent on the facts of

the case

• Several things to take into consideration in

determining the degree of care:

MAGNITUDE OF RISK

IMPORTANCE OF OBJECT

PRACTICALITY OF PRECAUTION

• Probability of the injury occurring – BOLTON v STONE

• Seriousness of injury – PARIS v STEPNEY BOROUGH COUNCIL

• Watt v. Hertfordshire

•See Government of Malaysia v. Jumat bin Mahmud compared with Mohamed Raihan bin Ibrahim v. Government of Malaysia

Degree

Of Care

#3 Causation and Damage

• There must be some form of damage or injury as a

result of the breach - whether physical or to property

• The question that arise: “whether the defendant’s

conduct has in fact caused the plaintiff's damage?”

• This is known as the ‘But For’ test

If the damage would not have happened but for a particular fault, then that fault is the

cause of the damage. If it would have happened just the same, fault or no fault, then

the fault is not the cause of the damage


• The defendant would not be liable if damage or

injury would have occurred in any event without

the defendant’s fault

• Barnett v. Chelsea & Kensington Hospital

• JEB Fasteners Ltd. v Marks Bloom & Co

• Plaintiff does not have to establish that the

defendant’s breach of duty was the main cause

of the injury, as long as it materially contributed to

the harm - McGhee v. National Coal Board

• Defendant too must accept the plaintiff as he is –

the egg-skull rule - Smith v. Leech-Brain & Co –

injury causing lip cancer.


Intervening Acts

• Novus actus interveniens - Where there is a new

intervening act this may break the chain of

causation removing liability from the defendant.

The legal test applicable will depend upon

whether the new act was that of a third party or

an act of the claimant.


Intervening Acts

• Where the new act is of a third party, the test is

whether the act was foreseeable. If the act of the

third party was foreseeable, the defendant

remains liable and the chain of causation remains

in-tact. If the act of a third party is not foreseeable

this will break the chain of causation and the

defendant is not liable for the actions of the third

party:

• Rouse v. Squires compared with Knightley v. Johns

Types of Negligence

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#1 Contributory Negligence

• Where the plaintiff failed to take reasonable care

of himself which contributes to his injury along with

the defendant’s negligence.

• Contributory negligence is a partial defense – it is

the defendant who must plead contributory

negligence.

Contributory Negligence

See section 12 (1) of the Civil Law Act 1956

• Where any person suffers damage as the result

partly of his own fault and partly of the fault of any

other person or persons, a claim in respect of that

damage shall not be defeated by reason of the

fault of the person suffering the damage, but the

damages recoverable in respect thereof shall be

reduced to such extent as the Court thinks just and

equitable having regard to the claimant’s share in

the responsibility for the damage.

Contributory Negligence

• The damages will be apportioned / reduced

depending upon the extent of the plaintiff share in

the cause of injury

See :

• Jones v Livox Quarries

• Ramachandran a/l Mayandy v. Abdul Rahman

bin Ambok

#2 Res Ipsa Loquitor

• Where the thing speaks for itself.

• When the plaintiff raises the maxim, he is asserting

that based on the evidence given, he has proven,

prima facie, that the defendant is negligent.

• The main purpose is to prevent injustice as otherwise

the plaintiff would be required to prove details of the

cause of the incident, which he may not know.

• The maxim is not applicable when all the facts

relevant to the cause of the accident are known

• Nevertheless - the accident wouldn’t have

happened if not for some negligence on the

defendant’s part.

Originated from the rule in Byrne V. Boadle

#2 Res Ipsa Loquitor

Three requirements:

1. The thing that cause the damage must be under

the defendant’s control

2. The damage is something that will not happen if

the defendant takes adequate precaution

3. The cause of the accident is not known

See also – Gee v. Metropolitan Railway, Cassidy v.

Ministry of Health

#3 Psychiatric Illness/Nervous Shock

• A positive psychiatric illness or physical damage as

a result of physiological trauma experienced by

the plaintiff due to the defendant's negligent act

• For the purpose of recovery of damages – not

necessary that the plaintiff shows direct impact or

fear of immediate personal injury

• Claimant may recover damages arising from

nervous shock resulting from injury to near relatives

or fear for such injury


• The case of Alcock & Ors v. Chief Constable of

South Yorkshire Police laid down the requirements

that need to be proven to succeed in a claim for

nervous shock:

– It must be foreseeable that damage in the form

of psychiatric illness would occur

– Foresee ability depends on the nature of

relationship between the plaintiff and victim –

love and affection.


– The proximity between the plaintiff and the

accident in time and space i.e. the plaintiff

must either see, hear or be physically present at

the scene of the accident immediately after –

the’ immediate aftermath test’

– The means by which the shock has been

caused - the psychiatric harm must come

through the claimant's own sight or hearing of

the event or its immediate aftermath

Cases on Nervous Shock

Zainab Ismail v. Marimuthu

• Court allowed the plaintiff's claim as a result of seeing

her daughter knocked down by the defendant’s lorry.

McLoughlin v. O’Brian

• The plaintiff's husband and her three children were

involved in a road accident caused by the

defendant's negligence. The plaintiff was informed

about the accident two hours after the event, and she

was taken to the hospital where she was told about

the death of one of her children and saw the injuries to

her family in distressing circumstances. The House of

Lords was unanimous in holding that the plaintiff's claim

for psychiatric illness should succeed.

Cases on Nervous Shock

Bourhill v. Young

• A pregnant lady after alighting from a tramcar

hear noise of collision and after the accident she

went to the spot, saw blood spot and got shock.

Court denied her claim because it was not

reasonably foreseeable that someone not closely

connected to the victim would suffer nervous

shock.

Vicarious Liability

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Vicarious Liability

• Vicarious Liability is an exception to the principle

that a person should not be held liable in absence

of fault of his own.

• Vicarious liability refers to situation where, for

example Ali is liable to Chong for damage or injury

suffered by Chong due to the negligence or other

tort committed by Bobby.

• Ali need not have done anything wrong and need

not owe a duty of care to Chong.

Vicarious Liability

• Most important condition for imposing a liability on Ali is

the nature of relationship between Ali and Bobby

• Under vicarious liability - employer liable for the

negligent act of his servant/ employee.

• The reasons why an employer has to be liable for the

negligence of the employee :

– Employer employ the negligent worker

– Employer failed to control the employee

– Employer benefit from the employee’s work - set the

whole thing in motion

– Employer has deeper pocket.

Vicarious Liability

However, before you sue the employer for the

wrongdoings of his employee, make sure these

requirements are fulfilled.

Vicarious Liability#1 Wrongful act

• The court will see whether a tort has been committed

#2 The existence of a special relationship

• The employer will only be liable if the tort is committed

by his employee/ agent

• If the tort is committed by independent contractor, then

the employer will not be liable

• Several tests to determine existence of contract of

service:

– Control test

– Integration Test

– Multiple Test

#3 The tort is committed by the employee during the course of employment.

Defences to Negligence

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1. Volenti Non Fit Injuria

– Prevents the defendant’s wrongful conduct

from being a breach

– There must be consent or assumption of risk by

the plaintiff

– The consent or assumption of risk must be

voluntary – whether express or implied

– There must be full knowledge of the nature and

extent of risk of injury

– Must be to the act complained of


2. Inevitable Accident

– Something which is not avoidable by any such

precautions as a reasonable man could be

expected to take

– Defendant must prove that what happened is

beyond his control and could not be avoided

by the exercise of skill and care – e.g. latent

defect in a vehicle.

End of Slides

chapter 2: law of tort

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