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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
• 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
#3 Causation and 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.
#3 Causation and Damage
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.
#3 Causation and Damage
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
#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
#3 Psychiatric Illness/Nervous Shock
• 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.
#3 Psychiatric Illness/Nervous Shock
– 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
• 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
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
Defences to Negligence
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.
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