TORTS PART I : INTRODUCTION Chapter 1 A.

Definition of a tort The word ‘tort” originates from the latin word, tortus which means twisted or wrong. Tort may consist of either wrongful act or wrongful omission. Examples of wrongful acts are for instance A intentionally hits B without B’s consent or A illegally locks B up in a room. Examples of wrongful omission is where A deliberately omitted to brake his car when he had clearly seen that B was crossing the road, resulting B’s injury. C. General features of a tort Generally the features of a tort are:1. there must be a wrongful act or wrongful omission; and 2. that wrongful acts above affects the interests or rights of others; and 3. the injured party or victim has a right to claim for damages. Therefore, an act or omission which does not give rise to an action for damages is not a tort. PART II: INTENTIONAL TORTS Intentional torts include trespass to person AND trespass to land. One common link in all these torts is the mental state of the defendant, in that the defendant does the act that is purported to be tortuous, intentionally. In Fowler v Lanning (1959) 1 All ER 290, it was stated that a trespass required either intention or carelessness on the part of the defendant. In Letang v Cooper (1964) 2 All ER 929, it was held that in the tort of trespass there must exist intention at the time of the defendant does his act. If the defendant was careless, the cause of action would lie in negligence and not in trespass. Therefore, an important element in establishing trespass is that the defendant must be proven to have acted intentionally. The general elements of trespass are:1. a positive act, as opposed to an omission; and

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2. a direct act from the defendant to the plaintiff; and 3. the tort of trespass is proven without the plaintiff having to prove that he has suffered any injury or loss – described as actionable per se Chapter 2 Intentional Torts : Trespass to person Trespass to person is divided into three categories i.e. torts of assault, battery and false imprisonment. A. Assault Assault is defined as an intentional and direct act of the defendant which causes the plaintiff reasonable apprehension of immediate infliction of a force onto his person. The tort of assault functions to protect a person’s mental well-being against the unlawful act of another. 1. Elements of assault Assault is established when four elements are fulfilled, namely: a) the mental state of the defendant the defendant must have the intention to do his act. In Tuberville v Savage, the defendant told the plaintiff “if it were not assize-time, I would not take those words from you. It was held that, these words negatived the element of intention on the defendant’s part to injure the plaintiff and therefore assault was not established. b) the effect on the plaintiff the plaintiff must feel reasonable apprehension that a force will be inflicted upon him. Reasonable apprehension is measured through an objective test: “would a reasonable man, faced with the same situation that the plaintiff was in, feel apprehensive that a force would be committed upon him?” if the answer is yes, the element is fulfilled. Force means some form of violent contact that would put a reasonable man to be in reasonable fear of attack. In R v St George (1840) 9 C & P 483 it was held that pointing an unloaded gun at a person constituted an assault. However, in Blake v Barnard, it was held that the gun had to be loaded before assault could be eatablished (1840) 9 C C & P P 626. This case is widely criticized because the feeling of apprehension should not be discounted just because it is found out lated that the gun was not loaded.

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c) capability to carry out the threat this requirement is measured through the eyes of a reasonable plaintiff. The test is objective : would a reasonable man, who is in the plaintiff’s position, feel reasonable fear that there is a threat of immediate force upon himself? In other words, would the reasonable man belive that the defendant will realize his threat? The requirement is fulfilled, if the answer is “yes”. In Stephen v Myers (1830) 4 C & P 349, the defendant threatened to hit the plaintiff and he advanced with clenched fist upon the plaintiff. He was stopped by a third party just before he could reach the plaintiff. The court held that assault was established as there was a capability to carry out his threat, if he was not stopped by the third party a mere few seconds before he hit the plaintiff. d) bodily movement Even though assault involves no contact, some form of bodily movement is still necessary. Bodily movement means a positive act in the circumstances, indicating that the defendant will carry out his threat. Bodily movement per se is not adequate, the movement must corresponds with the probable infliction of unwanted force onto the plaintiff. In Innes v Wylie (1844) 1 C & K 257, a policeman, acting under an instruction, prevented the plaintiff from entering a room. The court held that if the policeman was entirely passive and simply obstructed the entrance of the plaintiff, it would be no assault. 2. Can words constitute an assault? In R v Wilson (1955) 1 All ER 744 it was held that the words “get out your knoves” constituted an assault. The words, must be seen in the context in which they were spoken. The tone of voice, facial expression and gesticulation have to be taken into account. B. BATTERY Battery defined as the intentional and direct application of force to another person without that person’s consent. The touching need not necessarily involve violence. The tort of battery protects individual from any interference onto his person, dignity as well as his reputation. 1. Elements of battery

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Any physical contact with the body of the plaintiff or his clothing I sufficient to constitute “force”. In Gibbons v Pepper [1695] 2 Salk 637. the defendant was liable for battery for scratching the plaintiff’s face and hitting the latter. there are touching where it is presumed implied consent exists. This however will depend on the facts and circumstances of each case. In Tiong Pik Hiong v Wong Siew Gieu [1964] 30 MLJ 181. Differences between assault and battery 44 . A and B reacted for their own safety. it will be no battery. causing the horse to bolt. c) contact there will be no battery if there is no contact on the plaintiff’s body or clothing. b) the defendant’s act was under his control the defendant’s act must be done voluntarily. d) without the plaintiff’s consent One cannot touch another person without his consent or without lawful justification However. it was stated that the least touching of another in anger is battery. a lighted squib was thrown by the defendant into an open market area. If two or more persons meet in a narrow passage. the court held that there must be hostile touching before it can be said to be a battery.Battery is established when the following four elements as fulfilled: a) the mental state of the defendant the defendant must have applied the force with intention. and in action against the defendant. Contact per se will not be construed as “contact” for the purpose of battery. In Cole v Turner [1704] 6 Mod Rep 149. 2. due to her jealousy of the plaintiff’s friendship with her husband. and so they did not have the required “intention” to commit battery. and without violence or design of harm. throwing water on the plaintiff may constitute a battery. E. the defendant was riding a horse when someone hit the horse from behind. The horse collided with the plaintiff. the one touches the other gently. such as tapping a person’s shoulder in order to get his attention.g. A picked the squid and threw it upon B. The court held that the defendant was liable for the tort of trespass to person. who then picked it up and threw it away. In Wilson v Pringle [1986] 2 All ER 440. In Scott v Shepherd [1773] 2 Wm BI 892. The squib hit the plaintiff whereupon the squib burst into flames. the court held that the defendant was not liable as the act of the horse bolting was outside his control. The contact must attached a transmission of force to the body of the plaintiff.

The tort of trespass to land is actionable per se regardless of whether the landowner can or cannot prove any damage. Section 44( 1 )(a) of the NLC provides: 45 . to recover damages. be it violent or not. The interest that is protected under this tort is to enable a person who has possession of land to be free from any physical interference. c) all vegetation and other natural products whether on or below the surface. d) all things attached to the earth or permanently fastened to anything attached to the earth. whether on or below the surface. thus the English saying "A man's home is his castle " This saying is partly true in Malaysia insofar as the man has a valid legal interest on the land on which his castle stands. as long as it is an unnecessary and an unauthorized contact The plaintiff experiences reasonable apprehension of a force upon him the tort protects one from the threat of any physical violence. The tort may be committed only against a person who has possession of the land on which the acts complained of are committed. as well as to maintain a person’s mental well-being INTENTIONAL TORT : Trespass to land Trespass to land may be defined as the unreasonable interference with another's possession of land. The interest is jealously guarded. b) the earth below the surface. Therefore a plaintiff in trespass is entitled. even though he has sustained no actual loss.Assault The issue of consent does not arise Battery the defendant’s act is done without the plaintiff’s consent there is physical contact between the defendant and the plaintiff the tort protects one from physical contact. Section 5 of the National Land Code 1964 (NLC) defines 'land' as : a) the surface of the earth and all substances forming that surface. e) land covered by water. Article 13(1) of the Federal Constitution provides that a person may not be deprived of his right over his property except as provided under the law.

Interference As with trespass to person. held the defendant is liable table as the act of mowing the grass was a voluntary act. The immediate act of the defendant must constitute the trespass. This intention may be the intention to trespass. or believes the entry is authorised. that trespass occurs when: (a) there exists an intention to trespass. or although there is no intention to trespass there must be a voluntary act in entering land that is in the possession of another. If however the defendant's entry onto the plaintiff’s land is without his consent and is involuntary. The court. but the person who brought him in was liable for trespass. A. or even honestly and reasonably believes that the land is his. and (b) the act of entry is done voluntarily.For instance in Smith v Stone (1647] Style 65 the defendant was brought onto the plaintiff’s land without his consent. 1. 2. In Basely v Clarkson [1682] 3 Lev 37 the accidentally mowed the plaintiff's grass whilst mowing his own grass. and therefore done with intention. In Conway v George Wimpey & Co. complained of. ELEMENTS OF TRESPASS TO LAND The plaintiff must-prove two elements before trespass to land is established and these elements are discussed below. or (c) the interference to the plaintiffs land is foreseeable as consequence of the defendant's act.a person has the right to the exclusive use and enjoyment of so much of the column of airspace above the surface of the land and so much of the land below that surface as is reasonably necessary to the lawful use and enjoyment of the said land. The court held that the defendant was not liable. In Gregory v Piper [1829] 9 B & C 591 the court held that where rubbish which was placed near the plaintiffs land. as opposed to a consequential act. the interference must be a direct. therefore.the element of intention is not fulfilled. It is not easy to distinguish between direct and consequential acts. It may be concluded. A mistaken action may be a voluntary action and therefore intentional. rolled onto 46 . The mental state of the defendant The defendant must intend to do the act alleged to be a trespass. An act done under a mistake is not necessarily an involuntary act. Ltd [1951] 2 QB 266 it was stated that a deliberate entry onto the land is sufficient and it is irrelevant that the defendant does not know that he is entering the plaintiffs land.

The court held that it was not her physical presence on the highway that constituted a trespass. which did not constitute a reasonable use of the highway. but in this case trespass was established due to the plaintiff using the highway to depasture chickens. he fenced the area and the defendants could not use the path any more. and does not require proof of damage. The court held that trespass to land is actionable per se. his title or his right. The defendants' action of pulling down the fence and continued use of the passage by driving their vehicles up and down the plaintiffs land amounted to a denial of the latter's indivisible right over his property. the defendant was liable in trespass as the trespass was a probable and foreseeable result of the defendant's act.the plaintiffs land upon drying. Section 41 of the Specific Relief Act I95018 states that any person entitled to any property may obtain a declaration against any person denying or interested to deny. The defendant disapproved of the plaintiff’s activities. In Tan Wee Choon v Ong Peck Seng & Anor [1986] 1 MLJ 322 the defendants had always used a path on the plaintiffs land as access to their house. to his property. There was a road across the plaintiffs land and the defendant used the road in order to spy on the plaintiffs horses. as a member of the public has a right of passage along the highway for the purpose of getting from one place to another which includes a right to do what is reasonably connected with that right of passage. and he entered the plaintiffs land and tried to get rid of the birds. In Government of Malaysia & Anor v Kong Ee Kim [1965] 31 MLJ 81 the plaintiff depastured her chickens on a public highway. When the plaintiff bought the land. 47 . In Harrison v Duke of Rutland [1893] 1 QB 142 a highway was built on the plaintiff’s land and he used his land to watch birds. In Janaki & Anor v Cheok Chuan Seng & Ors [1973] 2 MLJ 96 the defendants were liable in trespass when they. The court held that the defendant had interfered with the plaintiffs right to engage in a sport on his own land and the defendant had abused the use of the land. The court held that the defendant had committed trespass to land as he was not using the road for it purposes. in complete disregard of the plaintiffs' right of property. which was to cross over to the other side of the land. The defendants then brought the fence down. entered upon the latter's land to dredge existing canals and widened and deepened an existing drain on the land. A highway ought to be used for its usual purpose which included resting. Interference may occur in a variety of ways: (a) Entering land which is in the plaintiff's possession In Hickman v Maisey [1900] 1 QB 752 the plaintiff used his land to train horses. In their defence to an action against them for trespass. They further contended that they had used the same path for forty years and therefore had acquired an equitable right of way. the pasture consisting of white ants. the defendants claimed that the plaintiff must prove damage to establish trespass.

So where the trespass has caused damage to the land. A heavy rainfall caused the debris to be stuck and caused consequent damage to the property. Subsequently the land was divided into two lots and two separate titles were issued to Ngo and the respondent in their respective names in 1962.Trespass to land is therefore completed once a person wrongfully enters onto land in the possession of another even though no damage has been done. and said that it was a continuing trespass to fail to remove an object once permission has ceased. In Cheah Kim Tong v Taro Kau [1989] 3 MLJ 252 the defendant's house encroached onto the plaintiffs land. it does not 'continue' simply because the damage has not been repaired. and said that the previous 48 . or the removal of property. and the plaintiff can only bring one cause of action in trespass. The rationale is that there is no longer anything that remains on the land. even though the 'harm'. In Tay Tuan Kiat v Pritam Singh [1987] 1 MLJ 276 where the defendant built a wall that encroached onto the plaintiffs land. be it in the form of a hole that was dug. It does not extend to failing to restore the land to its original condition. The appellant's house was in fact situated on the boundary line separating the respondent's land from Ngo's land. continues to be suffered by the plaintiff. The defendant relied on estoppel and consent. The defendant had promised to clean the debris upon completing his job but he did not do so. In Konskier v Goodman Lld [1928] 1 KB 421 the plaintiff rented a house from a third party who had allowed the defendant builder to repair the roof and leave some debris on the rooftop. The court allowed the respondent's appeal and held that the appellant was a trespasser since 1959 as he was 'living' on the respondent's land without her permission. The defendant had paid compensation to the plaintiff but was held liable for not removing the buttresses. In Chanan Singh v Thiyagaletchmni [1965] 2 MLJ 158 the appellant was the occupying tenant since 1951 of a hut built on a portion of land belonging to one Ngo. the court held that there was continuing trespass as long as the wall was not demolished. and more commonly referred to as 'continuing trespass'. Ngo sold an undivided half share of the said land to the respondent in 1958. The court held the defendant liable for not cleaning up the debris. A continuing trespass therefore gives rise to a new cause of action from day to day as long as it lasts. In Holmes v Wilson [1839] 10 A&E 50 the defendant had built buttresses on the plaintiffs land for the purpose of supporting a road. Continuing trespass applies only to the failure to remove things (or people if the defendant remains in person) that have been wrongfully left on the land. The respondent then claimed against the appellant for repossession of that portion of the respondent's land occupied by the appellant. (b) Remaining on the plaintiff's land Remaining on land that is trespassed upon is by itself a trespass.

Between the plaintiffs land and the sea there was a strip of accretion land about one hundred feet by one hundred feet belonging to the State. The courts have held the following acts to constitute trespass: placing a ladder against another's wall. The defendant further contended that the plaintiff did not suffer any damage. Griffiths J held that there was no 49 . In Wandsworth Board of Works v United Telephone Co. firing a gun into the plaintiff’s soil. In Ooi York Choo v Lim Song Foundry [1963] 29 MLJ 87 the plaintiff owned a piece of land which was adjacent to the sea. removing the doors and windows belonging to the plaintiff’s and dumping soil onto the plaintiff’s land. before the plaintiff. (d) Interference to airspace Interference to land includes interference to the airspace above the land. In Kelsen v Imperial Tobacco Co Ltd. [1884] 13 QBD 904 an unauthorized telephone wire above the plaintiffs land constituted trespass to the airspace. In Lord Bernstein of Leigh v Skyviews and General Ltd [1977] 2 All ER 902 the defendant was in the business of taking pictures of property from the air. The plaintiff sued for trespass. prior to the consent given by the plaintiff. It was further held that the plaintiff need not prove damage as the action was actionable per se . The plaintiff claimed against the defendants for using the plaintiff’s land as a means of access to and from the accretion land. The court held that this was a case of continuing trespass and therefore a fresh cause of action arises from day to day. A licensee whose licence has been revoked or terminated also becomes a trespasser and is liable for damages if he continues to stay on the land – A tenant at will is also liable in trespass if he remains on the premises after a notice demanding possession has been served on him. In K Mahunaran v Osmond Chiang Siang Kuan [1996] 5 MLJ 293 it was held that demolishing an original party wall and building a new one in its place that reaches the ceiling of a car porch constitutes a trespass if it is done without the consent of the owner of the adjoining property. The court held that the defendants committed continuing trespass when they used the plaintiffs land as a means of access to the accretion land. and took a picture of the plaintiffs premises. 17 [1957]2QB 334 a mandatory injunction was issued to the plaintiff. had never complained. requiring him to remove his signboard which had only encroached eight inches into the defendant's airspace. even though approval has been obtained from a local authority.owner. driving nails into another's wall. The defendants were licensees of this accretion land and one of the conditions of the licence was that the licensee should seek permission for his own access to the land. (c) Entering or placing an object on the plaintiffs land It is a trespass if one throw things onto the other’s land or allow his cats to wander onto his neighbour’s land.

damages shall be recoverable from the owner of the aircraft in respect of such damage or loss WITHOUT proof of negligence or intention or other cause of action..or default. According to his Lordship: The problem is to balance the rights of an owner to enjoy the use of his land against the rights of the general public to take advantage of all that science now offers in the use of air space. The magnitude of the interference is not important. as long as there exists an interference. prayed for an interlocutory mandatory injunction against the defendant who was the landowner of an adjacent land. The right of a landowner to the airspace above his land is limited. except where damage or loss was caused by or contributed to by the negligence of the person by whom the same was suffered. The Federal Court affirmed the High Court decision and held that in the case of a trespass to land. neglect. The requirements of section 19 do not correspondwith the characteristics of trespass to land as section 19 requires the plaintiff to prove that he has sustained some damage. as though the same had been caused by his wilful act. In Karupannan s/o Chellapan v Balakrishnen s/o Subban [1994] 4 CLJ 479 the plaintiff landowner.. If interference to land is caused by an aircraft. which were protrusions to the sidewindows of the building owned by the defendant. This balance is . a person who has suffered damage to his land arising from the handling of an aircraft has the option of suing the owner of the aircraft either in trespass to land or under section 19. Section 19 provides: Where material damage or loss is caused by an aircraft in flight taking off or landing to any person or property on land or water. then a plaintiff may invoke the provision of section l9 of the Civil Aviation Act 1969. and declaring that above that height he has no greater rights in the airspace than any other member of the public. to remove protrusions and all other encroachments encroaching upon the former's land These protrusions.trespass. 50 . Therefore a Plaintiff who is claiming section 19 is not claiming for trespass to land Be that as it may. were built by the defendant's predecessorin-title. best struck by restricting the rights of an owner in the airspace above his land to such height as is necessary for the ordinary use and enjoyment of his land and the structures on it. and airspace committed by the owner of an adjacent property the aggrieved owner of the land upon which the trespass is committed is entitled to a mandatory injunction to have the trespass removed notwithstanding that the source of trespass had already been in existence before the new owner came to own the land and whether he knew or had notice of it or not. This section gives rise to strict liability.

A legal duty on the part of A towards B to exercise care in such conduct of A as falls within the scope of the duty. 562. Who. Breach of that duty. Consequential damage to B. DONOGHUE v. STEVENSON 119321 A. Stevenson which reads as follows: The rule that you are to love your neighbour becomes. in tort. to the plaintiff. 3. The retailer resold it to A who treated her friend to its contents. The general principle as regards the criterion of duty is that which was given by Lord Atkin in Donoghue v. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. The ingredients of negligence are: 1. DUTY OF CARE Not every careless act done by a person results in his being held responsible in law. He will only be liable in negligence if he is under a legal duty to take care. in law is my neighbour? The answer seems to be 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. you must not injure your neighbour. Although there was no contractual duty on the part of the manufacturer 51 . then. undesired by the defendant. It was held that. A’s friend alleged that she became seriously ill in consequence and sued the manufacturer for negligence. and the lawyer’s question. 2.C. Who is my neighbour? receives a restricted reply. in law. or may be owed by the professional to a client or to a third party.PART III : UNINTENTIONAL TORTS NEGLIGENCE ‘Negligence’ is defined as ‘the breach of a legal duty to take care which results in damage. 580 A manufacturer of ginger-beer had sold to a retailer ginger-beer in an opaque bottle. The duty of care may arise in contract. The ginger-beer bottle also contained the decomposed remains of a snail which had found its way into the bottle at the factory.

It is enough if the plaintiff is one of a class within the area of foreseeable injury.towards A’s friend. 52 . BREACH OF DUTY OF CARE The defendant must not only owe the plaintiff a duty of care. However. Birmingham Waterworks Co : Negligence is the omission to do something which a reasonable man. London Electricity Board the defendants excavated a trench in the street. the manufacturer owed her a duty to take care that the bottle did not contain noxious matter and he would be liable if that duty was broken. TEST 2 Whether the act or omission is something that a prudent and reasonable man would or would not do – Blyth v Birmingham Waterworks Co. who was blind. then you are said to be in breach of your duty of care Reasonable Man Who is a ‘reasonable man’? A reasonable man has been described as ‘the man on the omnibus’. It was held that the number of blind persons walking about the streets alone was sufficient to require the defendants to have them in contemplation and to take precautions appropriate to their condition. (1856) If a prudent and reasonable man would not do like what you did or omit. suffered injury because the precautions taken by the defendants were inadequate for him. in Blyth v. The test for the existence of a duty owed to the plaintiff is the ‘neighbour’ principle stated in Donoghue v. the plaintiff. guided upon those considerations which ordinarily regulate the conduct of human affairs. The test for deciding whether there has been a breach of duty is laid down in the dictum of Alderson B. would do. 2. the foresight of the reasonable man. In Haley v. They took precautions for the protection of passers-by which were sufficient for normal sighted persons. he must be in breach of it. i..e. TEST 1 : The test is whether the injury to the plaintiff was the reasonably foreseeable consequence of the defendant’s acts or omissions.Donoghue v Stevenson (1932) It does not require that the plaintiff must be identifiable by the defendant. Stevenson. or doing something which a prudent and reasonable man would not do.

’ 53 . in applying this standard. and what is ought to have been foreseen. Roe was a patient in a hospital.B. in the circumstances. The question is whether there is a breach of the duty of care or there is not. ROE v. a passer-by who renders emergency first aid after an accident is not required to show the skill of a qualified doctor. As a result Roe became permanently paralysed from the waist down. a lawyer or a plumber unless he is actually one. the reasonable man would have in contemplation. There must be a falling below the standard of care called for by the circumstances of the case. For example. an anaesthetist. Dr G had subjected the ampoule to a visual examination before administering the anaesthetic but he did not add a colouring agent to the phenol so that contamination of the anaesthetic could have been observed. Dr G. the standard of care is that of the reasonable man and. The anaesthetic was contained in a glass ampoule which had been kept before use in a solution of phenol. The case to illustrate this is Roe v. administered a spinal anaesthetic to him in preparation for a minor operation. Minister of Health. Dr G was not negligent in not causing the phenol to be coloured because the risk of invisible cracks had not been drawn to the attention of the profession until 1951 and ‘care has to be exercised to ensure that conduct in 1947 is only judged in the light of knowledge which then was or ought reasonably to have been possessed. It was held that. 66 In 1947. The reasonable foreseeability of a consequence is determined by the knowledge and experience which is to be attributed to the reasonable man in the circumstances. it is necessary to ask what. Unfortunately some of the phenol had made its way through an ‘invisible crack’ into the ampoule thus contaminating the anaesthetic. In this connection. Reasonably Forseeable The question of the foreseeability of an event will depend upon whether or not a particular item of knowledge is to be imputed to the reasonable man.In other words. the reasonable man would have foreseen. in the circumstances of the particular case. the then existing state of medical literature must be had in mind. In short. a ‘reasonable man’ means an ordinary man who is not expected to have any particular skill such as that possessed by a surgeon. It is for the judge to decide what. MINISTER OF HEALTH [1954] 2 Q.

An explosion occurred and the plaintiff injured. there was no pressure or coercion from the employer therefore the defence of volenti was allowed. the importance of the object to be obtained. in every case where a duty of care exists. the plaintiff will bear his own loss. and 3. Volenti non fit injuria is a voluntary agreement whether implied or express by the plaintiff. APPLICABILITY OF THE DEFENCE IN VARIOUS SITUATIONS The defence of volenti is relevant in four different situations and these are discussed below. Act Of God and Necessity. the plaintiff and his brother worked at the defendant’s mine. who has full knowledge of the nature and extent of the risk. the burden of proof lies on the defendant to negate liability for a particular tort. They used an explosive without taking the necessary precautions. the magnitude of the risk. The three factors the courts must consider are: 1. (a) Workers’ case In Imperial Chemical Industries Ltd v Shatwell. Defences which are usually raised in a negligence suit are volenti non fit injuria. a balance must be struck between the magnitude of the risk and the burden to the defendant in doing (or not doing) what is alleged he should (or should not) have done. In other words. the courts must consider whether the risk was sufficiently great to require of the defendant more than he has actually done. contributory negligence and mechanical defect. inevitable accident. They had agreed to disregard the employer’s instructions. It was held that.In deciding whether there was a breach of duty. 2. (b) Games and sports cases In Wooldridge v Sumner. He sustained some injuries when one of the horses skidded whilst turning 54 . the plaintiff was a spectator as well as the photographer in a horseracing competition. the practicability of precautions. VOLENTI NON FIT INJURIA This is a Latin maxim which means the plaintiff has voluntarily assumed the risk of injury. that if the defendant fails to take reasonable care. DEFENCES TO NEGLIGENCE As a general rule.

(c) Rescue cases In rescue cases it is almost as if the plaintiff deliberately exposed himself to the risk of injury. The plaintiff consequently suffered some injuries in an accident due to the defendant’s negligence. but the damages recoverable in respect thereof shall be reduced to such extent as the Courts thinks just and equitable having regard to the claimant’s share in the responsibility for the damage. the plaintiff was knocked down.a corner. However. The court accepted the defence of volenti as the defendant had taken reasonable precautions and had discharged his duty. In an action against the defendant. which consequently contributed or resulted in his injury. it was pleaded that the plaintiff was volenti. was injured when he tried to calm the horse down. The House of Lords held that the plaintiff was fifty percent contributorily negligent. “Warning. The plaintiff was held to be bound by the notice. In Fitzgerald v Lane. The owner or driver will not be liable for any loss of life. Section 12(1) of the Civil Law Act. personal injury or other losses howsoever caused. The court rejected the defence and held the defendant liable. This is because whenever a person carries out rescue work he is acting under a moral or social duty and thus he cannot be said to be acting completely voluntarily. It must be stressed that damage that occurs must be caused or contributed by. first by DI and then by D2. the rescuer is not considered as voluntarily assuming risks. in that he has failed to take reasonable care of himself or his property. the defendant had left his horse and carriage at the side of a busy street.and the remaining fifty percent was equally divided between the defendants. The plaintiff. a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage. CONTRIBUTORY NEGLIGENCE Contributory negligence means the plaintiff has breached a duty of care for his own safety. Passengers in this van bear their own risk. a police constable. (d) Passenger cases In Buckpitt v Oates. In Haynes v Harwood. If from the facts of the case the damage would not have occurred but for the plaintiffs 55 . reads as follows: Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons. Passengers are not insured”. The horse was alarmed by something and bolted onto the road. the plaintiff took a lift in the defendant’s van and before the journey the plaintiff saw a notice of exclusion. the plaintiff.

In Santhanaletchumy alp Subramaniam v Zainal bin Saad & Anor a twelve year old girl was held to be sufficiently matured and could have prevented or avoided the accident when the defendant lorry driver honked his lorry. and it will only avail a defendant who can prove through his record of service that the vehicle is free from defect. On the day before the accident the plaintiff and the defendant had gone to fetch the car where 56 .conduct. due to brake failure he had sent the car to a competent motor repair firm for repair and general overhaul with particular attention to the brakes. in trying to save himself takes the ‘wrong’ course of action. (b) Contributory negligence of children The main consideration is the age of the child. The defendant gave evidence that ten days previously. He or she is not to be found guilty unless he or she is blameworthy. The question is whether normal children of the plaintiffs age would have acted as the plaintiff has done. this means that the plaintiff is the cause of the damage and accordingly will be one hundred percent contributorily negligent. Lord Denning said. The coach did not overturn and in a claim against the defendant the court held that the plaintiff was not contributorily negligent as his reaction was reasonable in the circumstances. A very young child cannot be guilty of contributory negligence. and he jumped off the coach and broke a leg. the plaintiff is not deemed to be contributorily negligent and the defendant will still be wholly liable for the ensuing injury or damage. An older child may be. the plaintiff reasonably believed that the coach in which he was a passenger was about to overturn due to the negligent driving by the defendant. but it depends on the circumstances. A judge should only find a child guilty of contributory negligence if he or she is of such an age as reasonably to be expected to take precautions for his or her own safety. The focus is on the cause of the damage and not the cause of the accident. In Jones v Boyce. In Gough v Theme. the plaintiff was a passenger in the defendant’s car which crashed into a stationary car causing the plaintiff injuries. In Che Jah binte Mohamed Arff v CC Scott. She was found to have been contributorily negligent twenty percent and the defendant was negligent eighty percent. MECHANICAL DEFECT AND INEVITABLE ACCIDENT The defence of mechanical defect has been held to be related to the issue inspection and maintenance of vehicles. (a) The principle of dilemma I If the defendant’s negligence places the plaintiff in a dilemma and the plaintiff.

this is reasonableness in the tort of negligence. or to lodge a report to particular authorities. such as the Health Officer of a local authority. The standard of reasonableness of the defendant’s act is measured through the norms of the society in which the defendant is living in. namely damage to property and/or interference to personal comfort. In Pacific Engineering Ltd v Haji Ahmad Rice Mill Ltd it was stated: a person injured by a nuisance may bring an action and claim damages for the injury alone or together with a claim for an injunction. The court held that the defect in the brakes were a latent defect and as the defendant had employed skilled labour no negligence could be attributed to him. NUISANCE The law of nuisance aims to provide comfort to persons who have proprietary interests in and as well as to members of society generally. The damage must be of a kind that is reasonably foreseeable to arise from the defendant’s wrongful conduct. DAMAGES AND REMEDY FOR NUISANCE The damage that usually occurs in nuisance cases are of two types. C. whose function is to prevent the nuisance from continuing.the foreman of the firm tested the brakes again and found them in order. need not be established if the nuisance is caused by smell as the interference here is something that substantially affects the senses or the nerves. The remedy usually sought for the tort of nuisance is an injunction. Damage must be proved in an action for nuisance for otherwise the action will fail. Actual damage however. or monetary compensation. through control of environmental conditions. Reasonableness means the reasonableness of the defendant’s act and not whether the defendant has taken precautions to avoid the risk of accident .THE CONCEPT OF REASONABLENESS Reasonableness is important in nuisance cases because only when the conduct of the defendant is deemed unreasonable will nuisance be established. which is usually granted for damage to property. On the day of the accident but before the accident occurred the defendant had used his brakes several times and they acted properly. 57 .

D. a person allows it to continue for an unreasonable time or in unreasonable circumstances. location.The reasonableness of an act is measured by balancing the rights and interests of both parties. time. MinTat FJ stated that: Chan almost every one of us have to tolerate a certain amount of interference from our neighbours and we in turn have a right to make a certain amount of noise in the enjoyment of our property. degree of damage. Whether there is nuisance or not depends on factors. which is a crime as well as a tort. Nevertheless there are differences between the two as follows: PUBLIC NUISANCE Public nuisance arises when there is an interference towards the public’s rights such as the obstruction of public highways’ or selling contaminated food. CATEGORIES OF NUISANCE Nuisance is divided into two main categories: a) b) public nuisance. which is merely a tort. A person may use his property in a reasonable way but no one has the right to create intense noise just as no one should be asked to put up with such a high volume of noise which by any reasonable standard becomes a nuisance. The mere fact that an obstruction has occurred does not of itself turn it into a nuisance. it was stated that public nuisance arises when an act materially affects the reasonable comfort and convenience of life of a part of the society. whether it is continuous or in stages or intermittent. Definition In Attorney-General v PYA Quarries Ltd. 58 . It is possible for the same conduct to amount to both public and private nuisance. which is a process of compromise. knowing or having the means of knowing of its existence. such as the purpose of the defendant’s conduct. in which the interference occurs or motive and malice and the effect of the nuisance. In Syarikat Perniagaan Selangor Sdn Bhd v Fahro Rozi Mohdi & Ors.and private nuisance. the way. Nuisance would only be created if.

rights which are common to all subjects are infringed. The difference between public and private nuisance was laid down in the case of MPPP v Boey Siew Than where it was stated: A private nuisance . The difference between a public and a private nuisance is that. it was stated: it is clear that a nuisance is a public nuisance. ESTABLISHING PRIVATE NUISANCE Private nuisance is established in the following situations.. if. Persons who have an interest over land are the landowners. in regard to the former. The number of persons required to constitute “a class of the subjects of the State” is a question of fact in each case. comfort. In an action for private nuisance the plaintiff must prove interference with the enjoyment of his land and therefore a plaintiff must have an interest in land to be able to sue for private nuisance. PRIVATE NUISANCE Definition Private nuisance may be defined as an unlawful interference with a person’s use. is one which disturbs the interest of some private individual in the use and enjoyment of his property by interference with the usual enjoyment of property by causing or permitting the escape of deleterious substances or things such as smoke. 1) Substantial interference 59 . odours or noise.In the case of Majlis Perbandaran Pulau Pinang v Boey Siew Than & 0rs. enjoyment and any interest that a person may have over his land. Such rights are unconnected with the possession of or title to immovable property. it materially affects the reasonable comfort and convenience of a class of the subjects of the State. within its sphere. F. a tenant and a licensee who has been granted a licence to use the land for a particular purpose. which is the neighbourhood. It is not necessary that every single member of the society is affected.. G.

What constitutes substantial interference depends on the facts and circumstances in each case. In any case the most important requirement in establishing nuisance is the fact that the interference is substantial.The most important element is that the interference must be unreasonable and substantial as against the use and enjoyment of land. or otherwise. In Goh Chat Ngee & 3 Ors. 2) Interference must be continuous The interference must be something that is continuous or occurs very often. The courts have held that loss of one night’s sleep due to excessive noise. Substantial in turn. Due to the mining activities water had escaped and flooded the plaintiffs land. and factors that are deemed unreasonable are discussed below. for an injunction to restrain the defendant company (ARE) from operating and continuing to operate its factory. The defendant was found liable in nuisance for the unreasonable and unlawful interference with the use and enjoyment of his neighbour’s land. H. The following factors are usually used as guidelines by the courts in order to determine whether an interference is unreasonable (and therefore substantial). depends on unreasonableness. using adjoining premises for prostitution or as a sex shop and persistent telephone calls all constitute substantial interference. the plaintiff must prove the interference to be unreasonable. as generally a continuous activity will be a substantial interference. The High Court held that the tort of private nuisance was established. 60 . The defendantcarried on mining work on his land. UNREASONABLENESS In determining what constitutes ‘substantial’ interference. This requirement is not conclusive but it may be a factor in deciding whether the interference is substantial or otherwise. In Woon Tan Kan (Deceased) & 7 Ors v Asian Rare Earth Sdn Bhd the plaintiffs residents of Bukit Merah village sued the defendants. The factory produced dangerous radioactive gases harmful to the residents of Bukit Merah. A trivial interference does not give rise to nuisance. v Toh Yan & Anor.

In Syarikat Perniagaan Selangor Sdn Bhd v Fahro Rozi Mohdi & 0rs. but no one however. The court held that the level of interference must be balanced with surrounding circumstances. had caused considerable damage to the plaintiffs trees. For physical damage : In St Helen ‘s Smelting Co v Tipping. government hospitals and power stations. He also opened a discotheque. then the locality or surrounding circumstances is irrelevant. although giving rise to interference in the form of noise and dust to nearby residents. When the plaintiff claimed from the defendant. If however. The court held that the defence that an activity has been going on before an action is brought to halt such activity is inapplicable as the plaintiff too. a claim in nuisance for the building of schools. one of which is the right to clear air. 61 . then most probably the conduct will not be deemed unreasonable. factories. the appellant built an open stage and staged some shows. the smoke from the defendant’s factory.1) Damage and locality Actual damage to property does constitute unreasonable and substantial interference. the latter raised the defence that the factory had been there before the plaintiff. For non-physical damage : In Bliss v Hall the defendant managed a factory for three years and during this time smoke. Nevertheless. For example. the interference causes physical damage to property. The court held that people who lived in the urban area must be prepared to accept a lot of noise from their neighbours and they themselves may make noise. 2) Benefit from the defendant’s activities If the object of the defendant’s conduct benefits the society generally. would probably be denied on the basis of the utility derived from the construction of the facilities. has his rights. smell and other emissions came from the factory. has the right to create excessive noise and similarly a person is not required to tolerate an excessive level of noise which is unreasonable and is a nuisance. the defendant’s activity which benefits the public will still be a nuisance if the activity causes damage to property or substantial disturbance to the plaintiffs enjoyment of his land. The plaintiff then moved into a house near the factory. and the nature of the locality must be taken into account. A person cannot expect the air in an industrial area to be as fresh and clean as the air in the mountains.

The law of nuisance is not sympathetic to a plaintiff who is extra sensitive. sensitivity cannot be used as a basis to claim that the defendant’s conduct is an unreasonable and substantial interference.In Adams v Ursell. He claimed that his activity benefited the public. whether the sensitivity is related to the plaintiff himself or to his property. his claim will probably fail. but once there is unreasonable and substantial interference. If the only reason why a plaintiff complains of dust is because he has an unusually sensitive skin. The court did not accept this defence as the plaintiffs comfort and convenience also had to be considered. is irrelevant once unreasonable and substantial interference is proved. 62 . a) Temporary interference In cases of temporary interference. 4) Temporary interference and isolated incident It has been stated above that one of the requirements in establishing nuisance is that the interference must be continuous. The issue now is whether a temporary interference or an isolated incident may constitute nuisance. the courts are likely to be reluctant to grant an injunction except in extreme cases. Sensitivity however. which was particularly vulnerable to interference and his claim was denied. the defendant erected an electrical powerhouse in the same area causing interference to one of the television channels. especially the poor and therefore justified the smell produced by his trade. The court held that a person cannot hold his neighbour liable just because he (the plaintff) uses his property in a special way. sensitivity will not deprive the plaintiff from obtaining a remedy. In Bridlingion Relay v Yorkshire Electricity Board. the defendant was in the trade of selling salted fish. In short. 3) Extraordinary sensitivity on the part of the plaintiff. The plaintiff’s TV aerial was of a special kind. for instance where damages will not be an adequate remedy.

the defendant. The defendant also has to prove that the interference is something that is done as part of his right on the plaintiffs premises. the plaintiffs adjoining property was flooded. Prescription In England. A continuous private nuisance for the period of twenty years is a good defence. The defendant has to prove that the interference is an actionable nuisance for the whole period of the twenty years and the plaintiff has therefore allowed the interference to occur for twenty years. 63 . The court held that flooding on the plaintiffs land was foreseeable as a result of the state of affairs on the defendants’ land. 5. The court found that the defendant was malicious in his actions and an injunction was granted to the plaintiff.person has not caused or permitted to exist on his premises a source of danger which may give rise to material injury to the property of his neighbour. he cannot be liable in nuisance. if a . For isolated incident. Malice The existence of malice may cause the defendant’s act to be unreasonable. this defence is applicable to private nuisance. In Christie v Davey the plaintiff was a music teacher who conducted music classes at her house. banged on the adjoining walls. Her neighbour. K. did not like the sounds from the musical instruments and in turn shouted.b) Isolated incident In Sedleigh-Denfield v O’Callaghan the defendants were held liable in nuisance when as a result of allowing a culvert on their land to remain blocked. DEFENCES 1. and clashed pots and pans whilst the plaintiff was conducting her classes. which is usually an easement.

as it did not affect the enjoyment the plaintiff had over his property. then built a treatment room at the back of his house. An injunction was accordingly issued against the defendant. in that the defendant’s operations have been carried out before the plaintiff moved into the vicinity is not a good defence. 64 . Other defences The defences of necessity. consent or defence of property may be valid defences. Contributory negligence is also a valid defence applicable to nuisances based on negligent conduct. The court held that the defence of prescription was inapplicable as before the action was taken the interference did not constitute a nuisance. 2) Statutory authority If a statute confers power to the defendant to conduct a particular activity. The plaintiff who was a doctor. Section 284(l) of the NLC 1965 further provides: No right in the nature of an easement shall be capable of being acquired by prescription (that is to say. by any presumption of a grant from long and uninterrupted use). A plea by the defendant that the plaintiff comes to the nuisance. 3. It is submitted that an easement. The Local Government Act 1976 provides that. damage caused to a plaintiffs property arising from nuisance created by a local authority in pursuance of its statutory power will be compensated in the form of damages. Therefore prescription is not a good defence in Malaysia. The defendant must however prove that the interference cannot be avoided even though reasonable precautionary measures have been taken.In Sturges v Bridgman the defendant was a biscuit manufacturer and his machines produced a lot of noise and caused vibrations on the plaintiff’s premises. The plaintiff claimed for nuisance due to the noise and vibrations which interfered with the treatment of his patients. the defendant will usually escape liability. the defendant’s neighbour. This had occurred for more than twenty years. generally provides a good defence in Malaysia. Statutory authority will not be a good defence if the work causes substantial damage to neighbouring property. but not a prescription.

Blackburn J in the Court of Exchequer Chamber said:2 We think that the true rule of law is. that the person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes. through were a contracted mining with some v Fletcher’ where contractors to to the independent were build a reservoir. Strict liability is a term used to impose liability on the defendant without any fault on his part. This is known as the rule in Rylands v Fletcher. The defendants did not know of the existence of these shafts the contractors flooded negligent in the were held covering the shafts. plaintiff. must keep it in at his peril. The landmark case in this branch of tort law is Rylands the defendant that mill owners. is prima facie answerable for all the damage which is the natural consequence of its escape. Lord Cairns in the House of Lords concurred with this rule but based his judgment on the fact 65 .PART IV : TYPES OF LIABILITY 1. INTRODUCTION The tort of strict liability originated from the tort of nuisance but has developed today so that it has become quite distinct from the tort of nuisance. The learned judge went on to say that the person may escape liability if he can prove that the escape occurred due to the plaintiffs own fault or that it was caused by an Act of God. STRICT LIABILITY A. and. if he does not do so. filled neither the plaintiffs water. they the was when reservoir not of them negligent the liable was and to defendant liable of themselves for the Lords vicariously negligence independent contractors. Beneath this reservoir there were in fact some narrow iron shafts and mine The House went area not and which connected The with were but plaintiffs mine.

3. water. fire. 2. 1. sewage and slag heaps. then that object is a dangerous object and this element is fulfilled. non-natural use of land was added to the requirements needed in order to establish liability under the rule in Rylands v Fletcher. In applicable anything Giles v Walker the defendant was not liable under this rule when his crop flew onto the plaintiffs land. After this case and in all subsequent cases. The object or ‘thing’ therefore. Escape 66 . Once this is satisfied. but become dangerous if they escape. rule in Rylands v Fletcher as the petrol was a dangerous object.that the defendant had used his land for a non-natural use. In other words the defendant will only be liable if he has accumulated the object. ELEMENTS OF LIABILITY UNDER THE RULE IN RYLANDS v FLETCHER There are four elements required to establish liability under this rule. explosives. B. electricity. the scope of liability under the rule has become narrower and more restricted. Dangerous objects The object or ‘thing’ must be dangerous. need not be dangerous per se because there are objects which are safe if properly kept. In cases like this. and the word ‘dangerous’ has its own meaning under this tort. Intentional storage The rule only It is applies not to an object to or thing which that the is defendant naturally purposely on the keeps and collects. As a result of this requirement of non-natural use of land. and these are discussed below. The rule applies to anything that may cause damage if it escapes. This principle has been successfully applied to gas. liability may be sought under the tort of nuisance or negligence. What is dangerous is a question of fact. land. noxious fumes. What is important is that the object or ‘thing’ must be of a kind that may cause damage fit escapes.

The leaves of the tree are in fact poisonous to cows. The court held the defendant liable as planting a poisonous tree is not a natural use of land. The plaintiffs horse ate the leaves and died. electric wiring and gas pipes. installing water.The rule is applicable only when there is an escape. In Crowhurst v Amersham Burial Board the defendant planted a yew tree on his land. The meaning of escape has been extended to include a situation where the use of the dangerous object causes or creates an event from which damage is sustained. Consent of the plaintiff If the plaintiff either expressly or impliedly consents to the existence of the dangerous object and the defendant is not negligent in any way. 4. In Lee Kee v Gui See & Anor the defendant was found liable when a third party whom he had hired to burn some rubbish on his land did so without taking any precautions. Non-natural use of land An ordinary or natural use of land would include erecting a house. Escape means the object has escaped from a place where the defendant has control and authority to a place where the defendant has no control and authority. The meaning of non-natural use of land was explained in the case of Rickards v Lothian where Lord Moulton stated: 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. 67 . he must take reasonable steps to prevent the fire from spreading. the defendant will not be liable for any escape and resulting damage. The branches and leaves of the trees extended into the plaintiffs land. though artificial. destroying the latter’s rubber trees. DEFENSES 1. which resulted in the fire spreading onto the plaintiffs land. This duty is absolute and non-delegable. It also includes doing something ordinary and natural. The court held that if a person makes a fire on his land in order to burn something which is inflammable. such as constructing a fish pond.

The defendant’s workers or employees as well as any independent contractors employed by him will not be regarded as third parties. a fact known by the plaintiff. In Carstairs v Taylor the plaintiff rented the ground floor of a factory from the defendant. and from the box into some pipes and then into a drain. Rats had made holes in the box. The court found on the evidence that the plaintiff assented to or acquiesced in the use of the defendants’ premises as a bakery with an oven therein and therefore the defendants could not be liable under the rule in Rylands v Fletcher. It was held that since the sequence of events were not foreseeable and the defendant was not negligent. the defendant will not be held liable if it escapes and causes damage. In Box v Jubb the defendant’s reservoir overflowed and damaged the plaintiffs property. 68 . Generally trespassers and those who act on land that does not belong to the defendant are said to be third parties. 2. The defendants used their rented premises for the purpose f a bakery. A fire caused by the defendants’ negligence destroyed all eight houses. Act of a third party The test used to determine whether a person is a third party or otherwise is whether that person acts outside the defendant’s control. consent or acquiescence of the plaintiff to the defendants’ activity overrode the latter’s negligence. 3. who occupied the floor above. the defendant was not liable as the act was done for the common benefit of both parties.In SheikhAmin bin Salleh v Chop Hup Seng. the plaintiff owned a piece of Land on which eight terrace houses were built. is a good defence. The defendant was in no way negligent and the court found that even though the method in which water was disposed of was dangerous. In this case. The unforeseeable act of a third party who is not under the defendant’s control. the defendant was not liable. Water from the roof was collected through some drainpipes which then flowed into a box. Water dripped from it and damaged the plaintiffs property. The cause was the overflowing of the defendant’s neighbour’s reservoir which in turn flooded the defendant’s reservoir. four of the houses being rented by the defendants. Common benefit If the dangerous object is allowed to exist for the common benefit of both the plaintiff and the defendant.

The court held the defendant not liable as what had happened was not due to the negligence of the defendant. he will not be compensated. it was not reasonably foreseeable and was an Act of God. Vicarious liability refers to a situation where A is liable to C for damage or injury suffered due to the negligence or other tort committed by B. and this relationship is usually that of master and servant or employer and employee and as between a principal and his agent. A heavy rainfall caused the artificial embankments of a lake to collapse and water from the lake swept away four bridges in respect of which damage the action was brought. The plaintiff’s default If the damage is caused through the plaintiffs own action or wrongdoing. On the other hand if the statute only gives a power of discretion to the defendant. Statutory authority Liability will not be imposed on a defendant who acts under the authority of a statute which excludes liability for such acts. the defendant may still be held liable if that 2. . If the plaintiff contributes to the end damage he may be held to be contributorily negligent under the provision in section 12(l) of the Civil Law Act 1956 6. 69 . 5. the defendant will not be held liable. The condition for its use is when the escape occurs through natural means which is unforeseeable and without any interference of mankind. Act of God The use of this defence is very limited.4. If a statute imposes a duty on the defendant to do something which consequently causes damage to the plaintiff. In Nichols v Marsland the defendant owned many artificial lakes. nuisance and all the other torts. A need not have done anything wrongful and A further need not owe a duty of care to C. negligence. VICARIOUS LIABILITY The doctrine of vicarious liability applies to all forms of torts: intentional torts. he is found to be careless in exercising his discretionary power. The most important condition for imposing liability on A is the nature of the relationship between A and B.

or tortious act. secondly there is a special relationship that is recognised by the law. The doctrine maintaiils that liability even in respect of acts which the employers had expressly prohibited (see Canadian Pacfic Railway v Lockhart [194232 All ER 464) and even when the employers are guilty of no fault themselves (Staveley Iron & Chemical Co. It follows that they are liable for the torts of one servant against another. he should be made liable for any tortious conduct of the employee in the performance of his work and lastly because the master is in a better financial standing to compensate the third party. and thirdly the tort is committed within the course of employment. some of which are that a master is to be held liable for employing a negligent employee.A. The master having (presumably for his own benefit) employed the servant. 70 . This last reason ensures. that the third party will in fact receive compensation for his injuries and the doctrine therefore ‘guarantees’ actual compensation in the tort In Imperial Chemical Industries Ltd v Sharwell. Wrongful or tortious act. If a tort is committed on B’s premises but not by A’s employees or agents. B. between the person alleged to be vicariously liable and the tortfeasor. 2. The court will first and foremost decide whether a tort has been committed? Once a tort is established. that since the master derives benefit from the employee’s work. Ltdv Jones [1956] I All ER 403) . for failure to control the employee. Special relationship There must be a special relationship between A and B and such relationship usually exists between an employer and his employee.. is answerable to the world at large for all the torts committed by his servant within the scope of it. the nature of the relationship between the defendant and the tortfeasor will be examined. REQUIREMENTS OF VICARIOUS LIABILITY Three requirements must be satisfied in order for vicarious liability to arise:firstly a wrongful. Each requirement will be discussed in turn. if nothing else. A will not be vicariously liable for the tort. logical or legal principle but from social convenience and rough justice.. and being (presumably) better able to make good any damage which may occasionally result from the arrangement. 1. REASONS FOR VICARIOUS LIABILITY’ Many reasons have been put forward in justification of this doctrine. Lord Pearce said: The doctrine of vicarious liability has not grown from any very clear.

At the time of the accident C had control over which cargo was to be moved but he had no control over the method in which B was to handle the crane. Surgeons and consultants are experts in their own fields and it seems absurd to describe the hospital board as ‘controlling’ the work of these professionals. the general principle is that A will be vicariously liable for the tort committed by B unless A has divested himself of all possession and control. and was therefore vicariously liable to X. 3. when the employee does something that is authorised in an unauthorised manner or thirdly. (ii) Lending a worker If B.Sometimes it may be difficult to ascertain whether a worker is deemed to be an employee or otherwise and two particular situations in which this difficulty may arise are discussed below. This uncertainty was settled when a series of cases held that nurses. (i) Hospital staff Some of the dissatisfaction associated with the control test was the vicarious liability of hospitals for the negligence of their staff. the employee does something that ought or should be done in the course of doing the job. (a) Carelessness of worker The commission of a careless act may still be within the course of employment provided the 71 . The agreement between A and C stipulated that B would be working for C but A was to continue paying B’s wages as well as retaining the power to terminate B’s employment. to C. radiographers. who is the employee of ‘A’ is ‘lent’ to C and B subsequently commits a tort. and the tortfeasors cannot be identified. or secondly. An act is said to be within the course of employment if firstly. The House of Lords held that A was his permanent employer. B was negligent in the course of doing his job and injured X. The tort must occur within the course of employment An employer will only be vicariously liable for the torts of his employee if the tort occurs in the course of employment. who hired out the crane. together with B. In Cassidy v Ministry of Health’ and Roe v Minister of Health’9 the courts held that if negligence occurs in a hospital. This principle was laid down in Mersey Dockcs and Harbour Board v Coggins and Griffiths (Liverpool) Ltd. the hospital will be vicariously liable for the negligence. it is either expressly or impliedly allowed by the employer. Here B worked as a crane-driver for A.’ house-surgeons.’ and assistant medical officers’ were employees of the hospital for purposes of vicarious liability.

He lit up a cigarette and threw the burning match on the floor. a firm of solicitors employed an administrative clerk who was responsible for conveyancing matters. the employer would not be vicariously liable. this does not necessarily mean that he has acted outside the scope of his employment. The defendants. The leading case is Lloyd v Grace. The 72 . (b) Mistake of worker. So for instance if a driver had driven two hundred miles for one lunch. Liability was also based on the fact that the driver did what he was employed to do (which was to deliver the petrol) albeit in an unauthorised manner. Sheffield and Lincolnshire Rly the defendants were held liable when their porter pulled out a passenger from a train as the porter (mistakenly) thought that the train was heading elsewhere.worker is not “on a frolic of his own”. The court held the defendant liable for his worker’s negligence as the act was done in the course of his employment. He then disposed of the properties for his own benefit. even though the actual act of smoking did not benefit the employer. If the employee or worker commits a mistake in the course of performing his job. After sending the director home he drove home for lunch and an accident occurred on the way. The test is whether the conduct of the worker is reasonable. The court found the state government liable. where an explosion ensued and the plaintiffs property was destroyed. Even though the purpose of that trip did not have anything to do with his employer. This mistake will be construed as doing something authorised in an unauthorised manner. The plaintiff who had some difficulties in handling her property went to the defendants’ office and the clerk fraudulently transferred some of the properties into his own name. in that it is not too remote from the contemplation of both parties as to take the act out of the employment. His duties were not under the supervision of the defendants. Smith & Co. In Century Insurance Co Ltd v Northern Ireland Road Transport Board the defendant’s worker who was driving an oil tanker. but it was something that was expected to be done in the course of his employment and thus the accident occurred within the course of his employment. generally the courts will hold the employer liable. c) Worker deliberately commits a wrong If the worker does an act for his own benefit. in Zakaria b Che Soh v Chooi Kum Loong & Anor’ the plaintiff was a driver with a research institute in Ipoh. had stopped at the plaintiffs petrol station to transfer petrol from the lorry to an underground tank at the garage. (d) Fraud of the worker. In Bayley v Manchester.

Even though the employer was held to be vicariously liable in Lloyd’s case. 73 . Parke B in Joel v Morrison stated: if he was going out of his way. without being at all on his master’s business. d) Employee acting ‘on a frolic of his own. he will make his master liable.House of Lords held the defendants vicariously liable due to the position in which they had placed the clerk so as to enable him to do what he did. against his master’s implied commands when driving on his master’s business. but if he was going on a frolic of his own. His act was within the scope of apparent or ostensible authority which had been given to him by the defendants. the master will not be liable. that will be sufficient to prevent the tort from being within the course of his employment. the general principle remains that if the employee’s act is intended to benefit himself alone.