INTRODUCTION TO TORT - Universiti Teknologi Malaysia

INTRODUCTIONTO TORTDr. Che Khairil Izam Che IbrahimIr. Dr. Syuhaida Ismail

Tort-Introduction!Wrongful acts/omissions!Civil wrong independent of contract!Liability arising from a breach of legal dutyowed to person generally!Breach of duty primarily fixed by law!Its breach is redressed (compensated) by anaction for unliquidated damages - damagesin a breach of contract case that is notpredetermined by the party e.g. damagesfor pain and suffering!Elements of fault and damages must exist

Function!Redress of wrongs or injuries bymeans of civil actions!Redress may take in form ofdamages (monetary)!To share the burden of victim’s loss!Compensation to teach wrongdoer tobe careful and responsible in future

Aims of Law of Torts! Compensation- to compensatethe victim of the wrong to theextent of the damage suffered! Deterrence / prevention - toensure that it does not happenagain or, even, better, toprevent it from occurring at all

Tort-Features!Must be a wrongful act!The wrongful act affects the right ofinterest of others!The victims or injured party hasright to claim for damages!An act without damages is not atorts

Tort-Elements!Tortfeasor, or defendant, had a dutyto act or behave in a certain way.!Plaintiff must prove that thebehavior demonstrated by thetortfeasor did not conform to theduty owed to the plaintiff.!The plaintiff suffered an injury orloss as a result.

Important Concepts!Tortious liability!!Something not allowed or leaved somethingrequired by lawIntention (a state of mind) in 2 ways:!Knows the consequences, foreseeable to giverise to some infringement (violation) to thevictims and tested by the objective testPresume to have probable consequencesMotives/Malice!!!Evil motive

Important Concepts (Cont.)!Damage! Proofis required before defendant(tortfeasor) is held liable! Forms:a)Physical Injuriesb)Damage to propertyc)Damage to reputationd)Economic Loss! Types:a)Unliquidated - Unquantifiable e.g. painb)Liquidated – Specific damage (loss earning)

Legal caseQuestion!Batty v. Metropolitan RealisationsLtd [1978]. A developer sold a housewhich is unsuitable for habitation tothe plaintiff as it was built at thetop of a potentially unstable slope.Who was held liable?

Legal Case (Cont)The developer i.e MetropolitanRealisations was liable because:a) The developer did something notallowed by lawb) There was an intention of presumingthat the construction would haveprobable consequencesc) Proof of damaged) Effect the rights of buyer!

Scope of TortScope of ueBatteryConversionFalseImprisonmentNuisanceStrict LiabilityDefamation/Slander

TRESPASS TOPERSON

Scope of TortScope of ueBatteryConversionFalseImprisonmentNuisanceStrict LiabilityDefamation/Slander

Categories of Trespass toPersonTrespass to PersonAssault- Direct actcausing fearBattery- Intentional anddirect applicationof forceFalseImprisonment- Restrict a personmovement

Scope of TortScope of ueBatteryConversionFalseImprisonmentNuisanceStrict LiabilityDefamation/Slander

TRESPASS TO PERSON1.!!!!AssaultDirect act that causes apprehension/fearConcerns with protection of a person’smentalElements of assault are:- Mental state of the defendant- The effect on plaintiff- Capability to carry out the threat- Wordse.g. Roosevelt v. St George [1960].Defendant pointed an unloaded gun atplaintiff

Scope of TortScope of ueBatteryConversionFalseImprisonmentNuisanceStrict LiabilityDefamation/Slander

TRESSPASS TO PERSON (Cont.)2. Battery!Intentional and direct application offorce!Elements of battery are:!The mental state of the defendant!The defendant’s act was under his control!Contact!Without plaintiff’s consent/permission

TRESPASS TO PERSON (cont.)E.g. Scott vs Shepherd (1773). Alighted squib was thrown by defendantinto an open area. A picked it up andthrew it upon B, who then picked it upand threw it away. Squib hit plaintiffand burst into flame. Defendant liableeven though his initial gesture did notdirectly affect plaintiff as his act isunder his control.

TRESSPASS TO PERSON (Cont.)!Differences between assault andbatteryASSAULTBATTERYIssue of consent/permission does notariseDefendant’ s act isdone withoutplaintiff’s consentPlaintiff experiencesPhysical contactreasonablebetween defendantapprehension/and plaintifffearfulness of a forceupon his person

Scope of TortScope of ueBatteryConversionFalseImprisonmentNuisanceStrict LiabilityDefamation/Slander

TRESPASS TO PERSON (Cont.)3. False imprisonment!Restriction of a person’s movement!Intention is prerequisite!The restraint must be a directconsequences of the defendant’s act!The restraint must be complete

TRESPASS TO PERSON (cont.)!!Harnett v Bond and Anor. (1924). Plaintiff lived inan asylum run by D2. Plaintiff was given a 1month’s leave but D2 was given discretion to callplaintiff back if D2 felt that plaintiff could not lookafter himself. On his 2nd day out, plaintiff went tovisit a friend at an office. D1 who was there was ofthe opinion that the plaintiff acted strongly. D1called D2 to ensure that plaintiff stayed at theasylum as D2 would send a car to fetch plaintiff.The car arrived 3 hours later and plaintiff wasbrought back to asylum. D2 found plaintiff insaneand did not let him out. For 9 years thereafter,plaintiff was sent from 1 institution to another.Finally, plaintiff was proven sane. Thus, D1 wasliable for imprisonment during 3 hours restraint,and D2 for 9 years restraint.

TRESPASSS TOGOODS

Scope of TortScope of ueBatteryConversionFalseImprisonmentNuisanceStrict LiabilityDefamation/Slander

TRESPASS TO GOODS (cont.)!!Wrongful and direct interferences withgoods that are in possession of anotherElements:! Mentalstate of defendant – Hasintention! Interference!Causes immediate contact with plaintiff's property!Must be voluntary! Whocan claim!Person who has possession!Do not have possession but may claim as trustee i.e. onbehalf of beneficiary, an executor or administrator and aperson with a franchise

Scope of TortScope of ueBatteryConversionFalseImprisonmentNuisanceStrict LiabilityDefamation/Slander

TRESPASS TO GOODS (cont.)!Detinue – Illegal possession of goodsdue to withdrawal consents by theowner!Goh Hock Guan & Associates v. KanzenBhd. Defendant i.e. the plaintiff’s firmclaim for the wrongful retention of thepassport for one of its representativesby defendant. No one had right toclaim for the wrongful detention onbehalf of the owner, except the ownerhimself.

TRESPASS TO GOODS (cont.)!Abdul Mutallib b. Hassan v. Maimoonbte Haji Abdul Wahid. Plaintiffoperated a coffee-house which isrented from defendant. Defendantlocked the premises and plaintiffclaimed for trespass and for return ofhis possession remained in the shopwhich were being withheld bydefendant. Defendant was liable asplaintiff had possession over premises.

Scope of TortScope of ueBatteryConversionFalseImprisonmentNuisanceStrict LiabilityDefamation/Slander

TRESPASS TO GOODS (Cont.)Classified into:! Conversion! Dealingwith goods in mannerinconsistent with the right of trueowner! e.g. Ashby v Tolhurst. Plaintiff left hiscar at defendant’s car park. When hecame to collect, attendant told plaintiffsomeone who claimed to be plaintiff’sfriend had driven the car out.Defendant was not liable as there was adisclaimer of liability at parking lot

TRESPASS TO GOODS (cont.)!E.g. Hollins v Fowler (1874). Plaintiffwas an agent who owned bundles ofcotton. T tricked plaintiff and obtainedpossession of some bundles. Defendant,a cotton broker bought some from Tand sold it to the 3rd party. Defendantwas liable for conversion becausealthough he did not trick the plaintiffto obtain the cotton, he was on thepossession of the fraudulent cotton,that is conversion.

TRESPASS TO GOODS (cont.)CONVERSIONDETINUEIntentional dealingNegligence is sufficientOne wrongful act arisesContinuous tort. Arises whendefendant refuses to returngoods until such time whengoods are returned or whenjudgment is givenPlaintiff must have eitherright to immediate possessionor actual possessionPlaintiff must have right toimmediate possessionInvolves denial of defendant’sright over the goodMust be a wrongful detentioni.e. Must have a demand andrefusal

TRESPASS TO GOODS (cont.)ConversionDetinueAmount of damages is value ofgood at conversion occursAmount of damages is value ofgood at judgment date anddamages between refusal dateand return/payment date ofthe value of the goods

TRESPASS TOLAND

Scope of TortScope of ueBatteryConversionFalseImprisonmentNuisanceStrict LiabilityDefamation/Slander

TRESPASS TO LAND!Elements of trespass to land are:! Intention! Actsof entry done voluntary! Interferenceis foreseeable as due todefendant’s act! Interferencemust be direct

TRESPASS TO LAND (cont.)!What is interference?! Enterland which is the plaintiff’spossession - Wrongly entered! Remain on the plaintiff’s land Continuing the trespass (failure toremove)! Enter or place an object on theplaintiff’s land! Interference to airspace

TRESPASS TO LAND!Who may claim?! Possessionin fact and just tertii (thirdparty rights) – A defense where the thirdparty who has better possession than theplaintiff, has better right to use and toexclude others! Possession in accordance to law! Theright to continue possession! Co-owners! Possession under a TOL (TemporaryOccupation License)

TRESPASS TO LAND!e.g. Basely v. Clarkson (1681).Defendant accidentally mowedplaintiff’s grass whilst he wasmowing his own. Defendant wasliable as the act of moving was avoluntary act and done withintention

TRESPASS TO LAND!e.g. League Against Cruel Sports Ltd V. Scott.Plaintiff owned a deer sanctuary. Huntingwas prohibited on the ground. Hounds fromlocal hunt (led by defendant) enteredsanctuary and disturbed the deer. Defendantwas not liable as the trespass was accidentaland involuntary act on his part. However, ifdefendant had intended the hounds to enterplaintiff’s land and he knew there wasprobability of the hound to enter and yet hedid not take precaution steps to prevent theforeseeable entry, he would be liable

TRESPASS TO LAND! Kelsenv Imperial Tobacco Co[1957]. Defendant committedtrespass by allowing anadvertising board to projecteight inches into the plaintiff’sproperty at ground level andanother above ground level

Group Exercise!Within 20 minutes, discuss Stare Decisis of trespass casesrelated to construction industry. Your groups arerandomly given the following scope of trespass. You areto present the case via role play in maximum 5 minutes.Scope of ueBatteryConversionFalseImprisonmentNuisanceStrict LiabilityDefamation/Slander

Tort-Introduction ! Wrongful acts/omissions ! Civil wrong independent of contract ! Liability arising from a breach of legal duty owed to person generally ! Breach of duty primarily fixed by law ! Its breach is redressed (compensated) by an action for unliquidated damages - damages in a breach of contract case that is not