Torts law (Chap 1:Nuisance)

Distinguishing Nuisance

The purpose of nuisance is to provide comfort to persons who have

proprietary interests in land and to member of society generally, through
control of environmental conditions. The law of nuisance is concern with
the balancing of competing interests. Nuisance is bigger class compared
to trespass as it covers range of wide range of objectionable activities
such as noise, vibrations, odour and etc. In nuisance, one have to show
the interference to plaintiff’s interest over his property and it is not
required to show defendant’s entry but one must prove the special
damage occur. Meanwhile when it comes to trespass to land, the direct
entry onto the plaintiff’s land by the defendant must be shown and there
is no need to prove the damage. Rule in Rylands v Fletcher imposes
liability when something that is likely to cause mischief escapes from
defendant’s land onto Planitiff’s land which causes damages to the
plaintiff. When it comes to the distinction between nuisance and the rule
established in Rylands v Fletcher, nuisance required continuous
interference meanwhile one single action is sufficient to establish action
under the rule in Rylands v Fletcher.

Damage and remedies for nuisance

There are two types of damage under Nuisance which are damage
to property that is easily identifiable and there must be interference with
personal comfort. In nuisance, the damage must be proved and it must
be a kind that is reasonably foreseeable to arise from defendants
wrongful conduct. Among the remedies available for nuisance are
injunction ( suitable for continuing nuisance), damages (for physical
damage) and report to relevant authorities. The first case to be looked
upon for injunction is Pacific Engineering Ltd v Haji Ahmad Rice Mill Ltd. In
this case, the plaintiff had proved that they suffered personal discomfort
and injury to property thereby satisfying the requirement of “special
damage”. An injunction preventing the defendant from bruning rice
husks in compound of their premises was granted. The next case for
injunction to be looked upon is the case of Renal Link v Dr Harnam Singh
where the defendant operated a renal clinic where patients received
hemodialysis on the floor above the plaintiff’s clinic. The defendant was
found liable for emanating obnoxious fumes from the clinic which
escaped downwards into the plaintiff’s clinic and causes damages to the
plaintiff, his staff and the patients. The court grant injunction in this case.

The concept of reasonableness

When it comes to the concept of reasonableness, nuisance is
established only when the interference is deemed unreasonable.
Reasonableness does not mean whether the defendant has taken
adequate precautions to avoid risk of causing negligence and it is
measured by balancing of rights and interests of both parties. The
damaged suffered by the plaintiff is important to determine the
reasonableness of the interference. In the case of Syarikat Perniagaan
Selangor Sdn Bhd v Fahro Rozi Mohdi & Ors, the judge stated that almost
every one of us has to tolerate certain amount of interference from our
neighbour and we in turn have a right to make a certain amount of noise
in the enjoyment of our property. It was also established in this case that
ordinary use pf a residential property is not capable of amounting to
nuisance. The next case to be looked upon is the case of London Borough
of Southwark v Mills, Baxter v LB Camden where the plaintiffs were tenats
in council properties owned by the defendants. The plaintiffs complained
regarding the lack of soundproofing in the flats which meant they could
hear the day to day activities such as walking across the floor, using toilet
and watching television. The plaintiff brought action in nuisance and the
court held that there was no nuisance as nuisance is based on the
concept of reasonable user and the use of the flats were reasonable.
Another case to be looked upon is the case of Sampson v
Hodson-Pressinger where the plaintiff seriously disturbed in his living
room by the noise of people walking about the terrace as the tiles of the
terrace is not properly laid. The landlord was held guilty in this case.
The law of nuisance seeks to strike a balance between neighbouring
land usage and the undisturbed enjoyment of property in order to
determine what is reasonable and what is not. In the case of MBF
Property Services Sdn Bhd v Madhill Development Sdn BHd, it was
established that there is no universal or precise formula available but a
useful test for measuring the reasonableness of the defendant’s activity is
what is accepted as reasonable according to the ordinary usage of land of
others living in that particular society. There are factors to be taken into
consideration as well such as defendant’s conduct, location, time and etc.

Categories of Nuisance
There are two categories of nuisance which are public nuisance and
private nuisance. Some conduct may amount to both public and private
nuisance.
I)Public Nuisance
Public nuisance deals with the interference with the public rights.
Nuisance would only be created if despite knowing or having the means
of knowing its existence, the person allows it to continue for an
unreasonable time or in unreasonable circumstance. This can be seen in
the case of Lim Kar Bee v Abdul Latif Ismail where the cases establishes
the duty of care towards road users as it was dangerous and
unreasonable to leave long steel pipes with sharp edges by the side of a
highway for one or two years as it would create a danger to the users of
the highway. Another case to be looked upon is the case of Gillingham
Borough Council v Medway (chatham) Dock Co Ltd where the local
council granted permission to develop a commercial port, disregarding
the fact that this would impact the local residents. They authorised the
development works as there is many economical benefit. The plaintiff
sued the defendant behalf of its residents alleging that the defendant is
creating public nuisance. The court held that there is no public nuisance
as only an illegal act could count as public nuisance.
The definition of public nuisance can be seen in the case of Attorney
General v PYA Quarries Ltd where it was established in this case that a
public nuisance is a nuisance which is so widespread in its range or so
indiscriminate in its effect that it would not be reasonable to expect one
person to take proceedings on his own responsibility to put a stop to it
but that it should be taken on the responsibility of the community at
large. Meanwhile in the case of Majlis Perbandaran Pulau Pinang v Boey
Siew Than & Ors, it was established in this case that a nuisance is public
nuisance if it materially affects the reasonable comfort and convenience
of a class of the subjects of the state.
Public Nuisance is also a crime under s.268 of the Penal Code. There
are several person who can claim for nuisance. First is Public Prosecutor
on behalf of government through criminal proceedings. Second is person
who suffers special or particular damage through civil proceeding. In this
category the plaintiff doesn’t have to have an interest in land but must
suffer some special damage. There are several guidance to determine the
existence of special or particular damage which are the type or extent of
damage is more serious or the damage must be a direct consequence and
is substantial. This can be seen in the case of Uda Holdings Bhd v Koperasi
Pasaraya Malaysia Bhd where the deliberate act of 3 defendants causing
a closure of public road caused a supermarket’s business to be severely
affected that it had to close down. The such special knowledge was held
to be over and above that suffered by members of the public generally as
users of the road and customers of the supermarket. Third is no special
damage suffered by any particular individual but it can be tried through
the civil proceeding. According to s.8(1) of Government Proceedings Act
1956, one can institute a suit even tough no special damage has been
caused in circumstance of public nuisance. In the case of Koperasi
Pasaraya Malaysia BHd v Uda Holdings Sdn Bhd, it was held that in action
of public nuisance, consent must be first obtained from the A.G.

ii) Private Nuisance

Private Nuisance can be defined as an unlawful interference with a

person’s use comfort enjoyment and any interest that a person may have
over his land according to the case of Read v Lyons & Co Ltd. The
difference between Private Nuisance and Public Nuisance is laid down in
the case of MPP V Boey Siew Than where it was stated that the difference
between public and private nuisance is that, in regard to the former,
rights which are common to all subjects are infringed unlike the latter
and such rights are unconnected with the possession of or title to
immovable property.
When it comes to private nuisance, the plaintiff must prove
interference with the enjoyment of his land and must have interest in
land to be able to sue in private nuisance such as the landowner, tenant,
licensee and etc. It is not necessary in Private Nuisance for the plaintiff to
prove special or particular damage. There are several elements required
in order to establish when it comes to private nuisance. The first element
to look upon is the substantial interference where the focus is on the
interference with the use, comfort or enjoyment of land and material or
physical damage to land or property. The second element is
unreasonableness where it focus on things such as damage and location
of plaintiff’s and defendant’s premises, public benefit of defendant’s
activities, extraordinary sensitivity on plaintiff, interference must be
continuous, temporary interference and isolated incident and malice.

I) Interference with the use, comfort or enjoyment of land

When it comes to the interference with the use, comfort or
enjoyment of land, it is collectively known as amenity nuisance. This
usually arises when an individual feel discomfort or unable to live
peacefully. There are several cases to be looked upon. The first case is
Andrea v Selfridge & Co Ltd where the claimant complained about
building work going on next door where he lost one night’s of sleep due
to excessive noise. The court in this said that some building work is
inevitable as buildings need repair or maintenance or building. However
the building works must be reasonable and if there is too much dust or
noise, one may claim in nuisance. The next case to be looked upon is the
case of Thompson-Schwab v Costaki where in this case it was established
that the sight of prostitutes and their clients entering and leaving
neighbouring premises were held to amount to an actionable nuisance as
the activity was considered offensive in itself. There was no need to
demonstrate the activities were noisy. The third case to be looked upon is
the case of Laws v Florinplace Ltd where the defendants purchased a
shop in residential area and used it as sex shop. Residence claimed in
nuisance and sought an injunction and the court granted injunction. The
fourth case to be looked upon is the case of Khorasandijan v Bush where
it was established that harassing telephone can be restrained on the basis
that they can constitute to nuisance to the occupier. In the case of Woon
Tan Kan (Deceased) v Asian Rare Earth Sdn Bhd, the plaintiff residents of
Bukit Merah village sued the defendants, principally for an injunction to
restrain the company from operating. The plaintiff alleged that the
activities from the factory produced dangerous radioactive gases harmful
to the residents of Bukit Merah and the court held that private nuisance
is established. Then in the case of Dr.Harnam Singh v Renal Link Sdn Bhd,
the defendant operated a renal clinic where patients received
hemodialysis on the floor above the plaintiff’s clinic. The defendant was
found liable for emanating obnoxious fumes from the clinic which
escaped downwards into the plaintiff’s clinic and causes damages to the
plaintiff, his staff and the patients. The court grant injunction in this case.
Last case to be looked upon is the case of Bridlington Relay v Yorkshire
Electricity Board where the complainant in this case sued defendant for
interfering with his TV signal and the court held that this is not an
actionable nuisance.

2) Material or physical damage to land or property

The general rule is that actual physical damage to land occurs will
amount to substantial interference thus it is therefore recoverable. The
first case to be looked upon is the case of Goh Chat Ngee v Toh Yan
where in this case the soil structure of the land was disrupted because of
the defendant’s mining activity which resulted in resulted in flooding and
erosion at plaintiff’s land. The court deem it is a substantial interference
thus it is actionable under nuisance. Meanwhile in the case of Rapier v
London Tramways Coheld, the court establish that once the defendant’s
activity constitutes an actionable nuisance in law, it is no defence that the
defendant has taken all reasonable precautions to prevent it. In this case,
although the piling works were temporary, it didn’t exclude the
respondent right to an injunction as the physical damage to their
property constituted a substantial interference which was actionable.

3) Damage and location of the plaintiff’s and defendant’s premises

The first case to be looked upon is the case of St Helen’s Smelting Co

v Tipping where in this case the claimant bought a large amount of land
and that land was close to a copper smelting factory. The smelting factory
discharge noxious gases which damaged the trees and livestock in the
claimant’s land. The claimant sued in nuisance and the court allowed the
claim. The second case to be looked upon is the case of Chan Jet Chiat v
Allied Granite Marble Industries where the court establish that location is
an important factor when the interference is merely to the use, comfort
and enjoyment of land as opposed to physical damage to the property. In
the case of Bliss v Hall, the defendants managed a factory for 3 years and
during this time the smoke, smell and other remittances came from the
factory. The plaintiff moved into the house near the factory and charged
the defendant for nuisance which the plaintiff rebutted by saying they
had been there before the plaintiff. The court however held that the
plaintiff have right to clean air thus it constitute to nuisance. The next
case to be looked upon is Sturges v Bridgman where the defendant ran a
confectionery shop which operated a noisy pestle and mortar. The
defendant ran the business for more than 20 years and at that time he
doesn’t have any neighbors thus there was no complaint. The claimant
then built a consulting room near the defendant’s shop and was affected
by the noise. The claimant brought action against the defendant for
nuisance. The court held that the defendant is liable for nuisance.
Another case to be looked upon is the case of Gillingham Borough Council
v Medway (chatham) Dock Co Ltd where the local council granted
permission to develop a commercial port, disregarding the fact that this
would impact the local residents. They authorised the development
works as there is many economical benefit. The plaintiff sued the
defendant behalf of its residents alleging that the defendant is creating
public nuisance. The court held that there is no public nuisance as only an
illegal act could count as public nuisance

4) Public Benefit of the defendant’s activities

Even if the defendant’s activity benefits the public, he would still be

liable for nuisance if the activity causes damage to property or substantial
interference to the plaintiff’s enjoyment of his land. It was established in
the case of Kennaway v Thompson that even if the defendant’s activity
gives benefit to the society generally, it doesn’t justify substantial
interference to Plaintiff. If the Plaintiff suffers any physical damage, then
Plaintiff’s right to comfort and enjoyment overrides any public benefit
that may be derived from that activity.

5) Extraordinary sensitivity on the part of the plaintiff

The law of nuisance is not sympathetic to Plaintiff who is extra

sensitive, whether the sensitivity is related to the Plaintiff himself or to
his property. Sensitivity cannot be sued as a basis for claiming that
defendant’s conduct constitutes an unreasonable and substantial
interference but once unreasonable and substantial interference is
established then sensitivity will not deprive plaintiff from obtaining a
remedy. The first case to be looked upon is the case of McKinnon
Industries Ltd v Walker where the defendant’s factory emitted noxious
fumes which damaged Plaintiff’s commercially grown and delicate
orchids which is known for their particular sensitivity. Despite the
sensitive nature of the flowers, the court held that the defendant is liable
for nuisance. Another case to be looked upon is the case of Robinson v
Kilvert. In this case, the defendants operated a factory which made paper
boxes. This required the factory to be continually warm and dry to ensure
the paper boxes were in good condition. The claimant rented the ground
floor and used this area to store special brown paper. The heat from the
defendant’s factory damaged the brown paper due to its sensitivity but
the court held that the defendant is not liable.
 6) Interference must be continuous

In the case of Delaware Mansions Ltd v Westminster City Council,

the court establish that when there is a continuing nuisance, where
the defendant knows about and ought to know about, the claimant is
entitled to the reasonable costs of eliminating the nuisance if he has
given the notice of the problem to the defendant and reasonable
opportunity to deal with it. Basically in this case, the defendant
refused to remove a mature tree that was causing damage to a
building. The claimant carried out the underpinning works and
claimed the cost from the defendant. The court held that the
defendant is liable for that sum. Another case to be looked upon is
Spicer v Smee. In this case, a fire broke out on the defendant’s
property caused by the faulty wiring. The fire spread to the property
owned by the claimant. The claimant’s action for nuisance succeeded
in this case.

7) Temporary interference and isolated incident

The general principle is the more serious the interference, the
more likely the court will regard it as unreasonable. In the case of
MBF Property Services Sdn Bhd v Madhill Development Sdn Bhd, the
construction of road over the defendant’s land for the purpose of
connecting 2 pieces of the plaintiff’s land was held by the court as an
actionable nuisance asthe road was tarred and permanent in nature.
Mandatory injunction was granted to the defendant. m. Another case
to be looked upon is Spicer v Smee. In this case, a fire broke out on
the defendant’s property caused by the faulty wiring. The fire spread
to the property owned by the claimant. The claimant’s action for
nuisance succeeded in this case. In the case of Sedleigh-Denfield v
O’Callaghan, it was established by the court that a person can be
liable for nuisance that was created by the third party if the person
knew about it but continued to allow it.
 8) Malice
The existence of malice may cause defendant’s act to be
unreasonable. In the case of Christie v Davey, the claimant was music
teacher. The neighbour was disturbed of her playing music and asked her
to keep the noise down. She did not stop playing the music in her house
and in retaliation, the defendant start banging on the door and shouting.
The court held that the defendant is liable for nuisance as he acted by
malice. Therefore an injunction was granted. Another case to be looked
upon is the case of Bradford Corporation v Pickles. In this case, the
defendant deliberately prevented the flow of water on his land so that
the plaintiff’s land receive less water. The court held that the defendant’s
action constitute to malice and liable for nuisance.

Chap 2:Strict Liability (rules in Rylands v Fletcher)

Strict liability is a term used to describe liability which is imposed on

the defendant without any proof of fault on his part. It is irrelevant that
the defendant might have taken all reasonable precautions to avoid or
minimize risks arising from his activity and the mental state of the
defendant. Strict liability when it comes to nuisance is established in the
case of Rylands v Fletcher. In this case, the defendants employed
independent contractors to construct a reservoir on their land. The
constructors found disused mines when digging but failed to seal them
properly and filled the reservoir with water. As a result, the water flooded
through the mineshafts into the plaintiff’s mines on the adjoining
property. The court held that the defendant is liable. According to
Blackburn J, the person who for their own purposes brings on his lands
and collects and keeps there anything likely to do mischief and if that
escape, he is answerable for all the damage. Lord Cairns approved this
rule but further added that the rule is only applied where the defendant
use his land for a non-natural use. There are 5 elements required to
establish strict liability.
 The first element is dangerous things or things which likely to cause
damage if it escapes. Whether the thing is dangerous in that it may cause
damage if it escapes is determined through the ordinary experience of
mankind. The first case to be looked upon is the case of Ang Hock Tai v
Tan Sum Lee. In this case, the plaintiff rented a shop house and lived on
the first floor. The defendant stored petrol for the purpose of his
business is in his premise. One morning the defendant’s premise caught
fire and the fire spread to the first floor which killed both the plaintiff;s
wife and child. The court held that the defendant liable under the rule in
Rylands v Fletcher as the petrol was a dangerous object.
The second is element is intentional storage or accumulation. This
rules applies when the defendant purposely keeps and collect object or a
thing. In other words, the defendant will only be liable if he has
accumulated the object. It is applicable to anything that is naturally on
the land. It follows that when something that is naturally on the land
escapes and cause damage, the occupier will not be liable unless he
intentionally allows the escape to occur or that escape is foreseeable and
yet the defendant does nothing to prevent the probable escape. The first
case to be looked upon is Miles v Forest Rock Granite Co Ltd. In this
case,the defendant used some explosives to break some rock on his land.
Some of the rocks fell below the land and injured the plaintiff. The rocks
were not purposely collected or kept on the land but the explosives were
purposely collected and kept. Yet the defendant was held liable for
escape of the rocks because the way in which the injury was sustained
was through rock blasting, which was not a natural use of land.
The third element is the things must have escaped. The rule is
applicable only when there is an escape. 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 to a place where
the defendant has no control and authority.In Midwood & Co Ltd v Mayor,
Aldermen, and Citizens of Manchester the defendants were held liable
when an explosion on their property caused inflammable gas escape into
the plaintiff’s house and consequently set fire to the plaintiff’s property.
The meaning of escape has been extended to include a situation where
the use of the dangerous object causes or create an event from which
damage is sustained. However in the case of Pointing v Noakes, it was
held that it is not escape by the court when the plaintiff’s horse reached
its head into the defendant’s land and ate poisonous leaves. When it
comes to damage caused by the spread of fire, the common law
presumption is that a man is answerable for the damage that results from
a fire which began on his property. This can be seen in the case of Balfour
v Barty King where the defendant hired a contractor to unfreeze frozen
pipes and he sought to accomplish this by using a blowtorch. The torch
set fire and it spread to the plaintiff’s house. The court held that the
defendant is liable for the damage under Rylands v Fletcher. This
presumption doesn’t apply in Malaysia. In Malaysia, the plaintiff has to
prove either the defendant himself or a person for whose conduct he was
answerable has been negligent. This can be seen in the case of Lee Kee v
Gui See & Anor where the burning of rubbish in defendant’s land without
any precautions causes the fire to spread to the plaintiff’s land and
destroy the rubber trees there. The court held that the defendant is
liable.Liability will be excluded where the fire spread or occurred due to
an act of nature of the act of a stranger or trespasser over whom the
defendant has no control.
The fourth element to be looked upon is the non-natural use of
land.An ordinary or natural use of land would include erecting a house,
installing water, electric wiring and gas pipes. It also include doing
something ordinary and natural, through artificial, such as constructing a
fish pond. The meaning of non-natural use of land was explained in the
cases of Rickards v Lothian where the Lord Moulton stated: “It must be
some special bringing with it increased danger to other and must not
merely be the ordinary of the land or such a use as is proper for the
general benefit of the community.” Lord Porter in the case of Read v
Lyons & Co Ltd said that all factors such as time, location and the ordinary
activities of mankind must be taken into consideration, so what is
dangerous or constitutes a non-natural use of land may differ in different
circumstance. In Crowhurst v Amersham Burial Board the defendant
planted a yew tree on his land. The branches and leaves of the trees
extended into the plaintiff’s land. The leaves of the tree are in fact
poisonous to cows. The plaintiff’s horse ate the leaves and died. The
court held the defendant liable as planting a poisonous tree is not a
natural use of land. This decision may also be justified on the basic that
an ‘escape’ of the tree had occurred as the branches and leaves had
encroached onto plaintiff’s land. Can use Miles v Forest rock case as well.
 The fifth element is the the remoteness or the foreseeability of the
damage. A defendant will not be liable for all consequential damage that
results from an escape. Type of damage must be foreseeable in order to
constitute to strict liability. This can be seen in the case of Cambridge
Water Co Ltd v Eastern Counties Leather Plc where the defendant was
held not liable as it was unforeseeable that the spillage would spread and
cause damage to the Plaintiff.

Defences

There are several defences for nuisance to be looked upon. The first
defence is express or implied consent. The second defence is common
benefit where the dangerous thing allowed to exist for the common
benefit of the plaintiff and defendant. The third defence is act of the third
party and the test is whether the third person’s act is out of defendant’s
control. The fourth defence to be looked upon is act of god where the
escape of dangerous thing occurs thru natural causes which is
unforseeable and without human intervention. The fifth defence is the
plaintiff’s default where the Plaintiff wont be compensated if it is their
own action or wrongdoing. This contributory negligence is dealt under
s.12(1) of Civil Law Act 1956. The last defence is statutory authority. If a
statute confers power to defendant to conduct an activity, the defendant
will usually escape liability notwithstanding that the activity gives rise to
an interference. In the case of Goh Chat Ngee & 3 Ors v Toh Yan & Anor,
it was established that defendant need to prove that the interference
cannot be avoided even tough reasonable precautionary measures have
been taken.

Chap 3: Breach of statutory duty

Introduction (difference with the stautory duty and negligence)

The action of breach of statutory duty is different with the action for
the tort of negligence. It was established in the case of LPTB v Upson by
Lord Wright that the claim for damages for breach of a statutory duty
intended to protect a person in the position of the particular plaintiff is a
specific common law right which is not be confused in essence with a
claim for negligence. It was also established by the judge that the
statutory right has its own origin in the statute, but the particular remedy
of an action for damage is given by common law in order to make
effective, for the benefit of injured plaintiff, his right to the performance
by defendant of the defendant’s statutory duty. It was also established in
this case that If it is the same damage then the plaintiff can claim for
breach of statutory duty and negligence in alternative but if they are two
separate wrongs then the defendant will only be liable for negligence and
not on breach of statutory duty and vice versa. Meanwhile in the case of
Lim Thong Eng v Sungei Choh Rubber Co ltd, it was established that
contributory negligence will not defeat the claim for breach of statutory
duty but only reduce the amount of damages claimable. In this case, the
plaintiff hand was crushed in a machine while working. The relevant
statutory provision provided that the machine must be installed in a
specific manner to prevent the hands of the operator from being in close
proximity with the machine. The court held that the plaintiff clearly
belonged to the class of persons whose protection the statute was
enacted thus the defendant was in breach of statutory duty.
The accrual of a right of action in tort

(a) Development of law

The first thing to be looked upon is the development of law. Initially

the courts were of the opinion that whenever a breach of statutory duty
caused damage to a person, the person had a right of action in tort. This
can be seen in the case of Couch v Steel where a seaman of a merchant
ship was sued to recover damages for injuries sustained by him by reason
of the defendant, a shipowner, to provide proper medicines for the ship’s
company. The action was successful and the ruling in the case was
described as a liberal approach to the imposition of civil liability for
breach of a statutory duty.
A different view was taken in the first half of the nineteenth century
where a right of action in tort for damaged sustained as a result of breach
of statutory duty was no longer automatic, especially if the statute
provided for enforcement of the duty in specified manner. This was
established in the case of Doe d Bishop of Rochester (Murray) v Bridges
where the judge stated that “where an Act creates an obligation, and
enforces the performance in a specified manner, we take it to be a
general rule that performance cannot be enforced in any other manner”.
In the latter half of the nineteenth century, the automatic right of action
in tort for damage arising in breach of a statutory duty was rejected.
The current approach is to treat the breach of statutory duty on a
case by basis. The intention of Parliament in the enactment of statute will
be scrutinized in order to ascertain whether, on the construction of
particular statue, some other remedy, be it civil or criminal, should be the
only one available when damage occurs. This can be seen in the case of
Scally v Southern Health and Social Services Board where the plaintiffs
action for damages against his employer failed as the relevant statute
provided that recourse to an industrial tribunal was the only remedy
available. The most common sanction provided for breach of statutory
duty is a criminal penalty.
Whether a civil action for damages maybe be maintained depends
on the existence of two factors which have been laid down by Lord
Diplock in the case of Lonrho Ltd v Shell Petroleum Co Ltd. The first factor
is whether on the construction of the statute it is apparent that the
obligation or prohibition was imposed for the benefit or protection of
certain class of individuals. When it comes to the first factor, the case to
be looked upon is the case mentioned earlier which is Lonrho Ltd v Shell
Petroleum Co Ltd where the court establish that the right of action rests
on the purpose and intent of the parliament and the statute has to be
taken as whole. The second factor is whether the statute creates a right
for the public and the particular plaintiff suffers damage which direct and
substantial as well as different that suffered by the public large. The
second factor was applied in the case of Hu Sepang v Keong On Eng &
Ors.

(b) Other factors affecting the right of action in tort

The are several factors which affects the right of claiming damages
in tort. The first factor is claims against public authorities. In the past,
England has been reluctant to allow claims against public authority which
violates general statutory duty to provide public services. This can be
seen in the case of Watt v Kesteven County Council. In this case, a claim
made against Minister of Education for his failure to promote the
education of the people of England and Wales failed. Another case to be
looked upon is the case of Saunders v Holborn District Board of Works
where the plaintiff was injured when he slipped on icy pavement and
claimed damages. However the action against the local authority for
failing to clear the snow failed. Even in the case of X (minors) v
Bedfordshire County Council, it was established that a child in care has no
right to bring a private law against a local authority for failure to
discharge statutory duties under child care legislation. However the
reluctant of English courts to allow claims against public authorities was
swept away in the case of Barrett v Enfield London BC. In this case, the
claimant alleged that the defendant, who is a local authority, had failed in
its statutory duty to act as responsible parent which lead the claimant to
suffer from psychiatric illness. Initially the court of appeal dismissed the
claim but upon appeal to the House of Lords, the appeal was allowed and
it was held that acts which are done pursuant to the lawful exercise of
discretion may still be a subject of duty of care. This was followed in the
case of Phelps v Hillingdon London BC where a child had dyslexia and
educational psychologist failed to diagnose the dyslexia. Accordingly the
child was not given education appropriate to her condition. The court
held that the educational psychologists, education officers and teachers
may owe duty of care to a specific people, provided that sufficient
proximity exist between the pupil and teacher.
 When it comes to Malaysia’s position in claim against public
authority, it is statutorily provided that state authority, local authority
and public officer or employee of the local authority cannot be subjected
to any action, claim or liabilities arising out from any building or other
works carried out in accordance with the provisions of the Street,
Drainage and Building Act 1974. Thus if the authority concerned failed to
inspect any building, building works or material or the site of any
proposed building, no tortuous claim made against the authority
irrespective of the loss. Even if the authority fails to ensure that any
plans, certificates and notices submitted to it are accurate, consequential
damage arising from such failure us not actionable. In the case of Hu
Sepang v Keong on Eng & Ors, it was held by the court that if the
performance of statutory duty requires the exercise of the authority’s
discretion, then no action may be brought for the authority’s failure to
perform the duty unless the refusal is actuated by malice. However in the
case of Parimala a/p Muthusamy v Projek Lebuhraya Utara-Selatan, the
court allowed the claim against the defendant as there had been aclear
breach of relevant statutory duty. In this case, a driver was killed when he
hit a stray cow which had entered onto the highway through a hole in the
fence surrounding the highway. The defendant is a highway authority
who is statutorily responsible for the construction, maintenance,
management and safety of the highway thus the court held that there
had been a clear breach of relevant statutory duty.
The second factor is whether redress under the torts is sufficient.
Malaysian courts are much more lenient when it comes to this. Claims for
breach of statutory duty as well as for breach of duty under common law
principles of negligence are accepted and the defendant may be liable in
both torts. The third factor is the breach arises from the regulation under
the parent Act. The fourth factor is the statute is Silent. In the Yeo Kian
Ann case, it was held by the court that if the statute is silent regard the
defendant’s obligation towards members of the public, this would not
necessarily relieve him from the common law obligation to take care.

(c) Elements of Tort

 One of the most important case which have laid down several
principles relating to a cause of action based on breach of breach of
statutory duty is Hu Sepang v Keong On Eng & Ors. In this case, the court
stated that in order to establish civil liability for statutory duty, firstly the
plaintiff must show that the injury he has suffered is within the ambit of
the statute, the statutory duty imposes a liability to civil action, the
statutory duty is not fulfilled and the breach of statutory duty has caused
his injury. Secondly, if a statute imposes duty towards a person generally,
no question can arise whether the plaintiff is within the class protected.
Thirdly, where a statute confers a power coupled with a duty to exercise,
failure to do so is a breach of duty for which a remedy will lie. By contrast,
where a statute confers a power coupled with discretion to exercise it,
failure to exercise the power will not attract any liability. The plaintiff
however will still be entitled to compensation if the public authority
refusal to exercise its discretionary power is malicious. Fourthly, if a
statute creates a duty but does not provide for any remedy, be it civil or
criminal, the injured party will have right to civil action if the public
authority breach his statutory duty.
The first element needed to be fulfilled is the statute allows a cause
of action in tort. The most important question usually arises is whether
the statute had intended to give right of action in tort. If the intention is
clearly stated, then this element is fulfilled. Some statute clearly prohibit
the a separate right of action in tort such as the Occupational Safety and
Health Act 1994 and the Employees’ Social Security Act 1969. In the case
of Hu Speng, it was established that if the statute creates a duty but
imposes no civil or criminal liability for its breach, there is a presumption
that a person who is injured will have a right of civil action. If the statute
provides for an administrative remedy,the general rule seems to be that
this prevents any separate action in tort. Apart from that, if the statute
provides for a criminal penalty then the general rule is that there is no
separate cause of action in tort. This can be seen in the case of Tan Chye
Choo & Ors v Chong Kew where the plaintiff couldn’t obtain
compensation in civil action as the relevant statute already provided a
criminal penalty for its breach. Then in the case of Toh Muda Wahab v
Petherbridge, the defendant had the statutory duty to fence his mining
land which he failed to do it and that resulted in the plaintiff’s elephant to
fell into the unfenced mining pit. The plaintiff’s claim were denied and
the court held that no action could lie for injuries sustained through the
non-performance of a statutory duty, when penalties for
non-performance were provided for under the statute.
The second element is the defendant must be in breach of statutory
duty. This element are further divided into three separate factors. The
first factor is the breach is within the scope of the duty. Most statutes
define the sphere of their application and if the claim is outside the
defined sphere then the plaintiff’s actions will fail. Thus a claim that is
brought for damage arising from circumstances that are not covered by
statute cannot be a claim for breach of statutory duty. The second factor
is the duty imposed on the defendant must be a mandatory duty to act. A
mere conferral of a power to act is insufficient and there must be a
requirement of a positive obligation on the part of the defendant. This
obligation must be sought in the wording of the statutory provision or the
regulation itself. The third factor is there is a breach of an absolute duty.
The courts usually use the test of “reasonable foreseeability” in order to
construe the statutory duty to be absolute. If it is reasonably foreseeable
that the damage is likely to occur as a result of non-compliance with the
duty then the duty will be described as an absolute duty. The case to be
looked upon is the case of Abdul Ghani bin Hamid v Abdul Nasir bin Abdul
Jabbar & Anor. In this case, the defendants failed to display warning
notices via 'danger signs' at relevant places at an electric substation
owned by them. They had also failed to switch off the switch cable prior
to repair works, in contravention of certain regulations of the Electricity
Supply Regulations 1990. As a result of non-compliance with the relevant
regulations the plaintiff suffered severe burns due to an explosion which
occurred when he came into contact with the switch cable in order to
effect repair works. The court held that the statutory duty under the
regulations was absolute and once a plaintiff proves that such a duty has
not been complied with, the breach is actionable without the plaintiff
having to prove any lack of care or diligence on the part of the
defendants. The defendants in this case were liable for breach of their
statutory duty as well as negligence under the common law for failure to
ensure that the substation was safe.
The third element is a duty must be owed to the plaintiff. In order to
fulfill this element, the plaintiff must prove that he is a member of the
class of persons protected under the statute. In the case of Lim Thong
Eng v Sungei Choh Rubber Co Ltd, the plaintiff's hand was crushed in a
machine while he was working at the defendant's factory. The relevant
statutory provision provided that the machine must be installed in a
specific manner so as to prevent the hands of the operator being brought
into dangerous proximity to the point of contact with the machine. The
court held that the plaintiff clearly belonged to the class of persons for
whose protection the provision was enacted and his claim for breach of
statutory duty succeeded. However in the case of Knapp v Railway
Executive, a train driver who sustained injuries could not recover under
the statute as the protection under the relevant statute was conferred on
road users and the plaintiff as an engine driver on the railway was not
within the scope of the Act. Similarly in the case of Hartley v Mayoh & Co,
a fireman's widow was denied compensation under the relevant statute
as the protection was only extended to 'persons employed' which did not
include a fireman who came onto the premises.
The fourth element is the statutory breach must have caused the
damage. In order to fulfill this element, the plaintiff must prove that
the breach has caused the damage or it has materially contributed to
the damage. If the injuries sustained by the plaintiff is solely as a result
of his own act, his claim against the defendant will fail. Contributory
negligence of the plaintiff will not defeat the claim for breach of
statutory duty committed by the defendant but it may reduce the
amount of damages recoverable by the plaintiff. This can be seen in
the case of Wong Soon San v Malayan United Industrial Co Ltd where
the defendant employers were held to be in breach of their statutory
duty for failure to provide goggles or face shields to their machine
operators despite the plaintiff employee's injuries were also probably
due to his own act in adjusting the machine without consulting the
supervisor on duty. However in the case of Can Kim Thye v The Union
Omnibus Co Ltd, the plaintiff who is a bus conductor claim against his
employers for causing his stroke and subsequent paralysis on the
grounds that he was overworked, thus giving rise to a breach of
statutory duty on the part of his employers. The claim was rejected by
the court. In the case of Cinty v Belmont Building Supplies Ltd, the
relevant statute required that crawling boards should be used for work
done on fragile roofs. This provision was binding on both the plaintiff
employee and the defendant employer. The defendant supplied the
 boards but the plaintiff neglected to use them and he fell through a
roof and suffered injuries. The court rejected the plaintiff’s claim
against the defendant as the injury was caused by the plaintiff’s own
wrongdoing and he could not transfer responsibility to his employer
who had complied with the statutory provision in supplying the boards.
The fifth element is the injury or damage must be of the kind which
the statute is intended to prevent. The plaintiff’s action will fail if he
suffers injury or damage different in kind from what the statute
intends to prevent. In the case of Corn’s v Scott, the defendant who
is a shipowner was under a statutory duty to provide pens of a
specified size for the carriage of animals on his ship. The defendant
violated this order and the plaintiffs sheep were swept overboard as a
consequences of the breach. The plaintiff’s action failed as the court
held that the statute was intended to prevent the spread of disease,
and not prevent animals from drowning in the sea. Similarly in the case
of Straits Steamship Co Ltd v Ag, the relevant statute requires vessels
to be provided with certified officers but six vessels was exempted
from this requirement which caused damage to the plaintiff as the
exemption of the six vessels run at very low cost and competed unfairly
with their own ships. The court held that even though the
Government had clearly committed a breach of their statutory duty,
the statute was aimed at the regulation of merchant shipping and not
the protection of individuals from damage in their trade. Consequently
the damage suffered was not of a kind which the statute was intended
to prevent thus the plaintiffs action failed.

(d) Defences for breach of statutory duty

The three main defences which are relevant in the action of breach
of statutory duty are Volenti non fit injuria, contributory negligence and
delegation. When it comes to volenti non fit injuria, it is a common law
doctrine which states if someone willing place themselves in a position
where harm might result then they are not able to bring a claim against
other party in tort. In the case of Wheeler v New Merton Board Mills Ltd,
An employee who was eighteen years old was working at a cardboard
cutting tool. It had spinning knives. The machine cut his hand off while he
was gathering flakes. Since this tool was a dangerous one, there had to be
a kind of protective barrier around it. Otherwise, there had to be extra
protection according to the Factory Workshop Act 1901. But the
employer did not follow this regulation. It was stated that the worker
knew a cutting machine could be stopped with the help of a rod to gather
shavings to avoid danger. But for some reason, he did not use a safe
approach to work and consequently, did not act in this way. The
defendant raised the defence of volenti non fit injuria but it was held that
volenti non fit injuria was no defence to an action by an employee against
his employer for breach of the employer's statutory duties. This decision
was approved in Imperial Chemical Industries Ltd v Shatwell. In the case
of Mohamed Husin v Shun Yip Leong Rubber Works Ltd, the plaintiff
sustained serious injuries on his right hand when his co-worker
negligently brought down the machinery which function was to cut
rubber sheets into small pieces. The defendant had breached certain
regulations of the Machinery Regulations 1959, which required them to
provide or erect a guard to prevent an operator's fingers from reaching
the danger zone. The defendant try to raise the defence of volenti non fit
injuria but failed as the court held that the fundamental cause of the
accident was a breach of statutory duty by the employers.
The second defence is contributory negligence. The plaintiff’s
contributory negligence will serve to reduce the amount of damages he
may recover from the defendant. The third defence is delegation. There
are two types of delegation which are delegation of duty to plaintiff and
delegation of duty to a third party. Delegation will provide the defendant
with a defence if he can prove that the default was solely due to the
plaintiff's act or omission and therefore the plaintiff himself has been in
breach of the statutory duty. In the case of Paterson v Municipal
Commissioners, the plaintiffs horse was injured when one of the
bridges which was under the defendant's statutory duty to maintain and
repair, collapsed. Although the duty to repair was contracted out to a
third party, the defendant was held liable.
Chap 4: Interference with Contract or Business

(a) Interference with a subsisting contract

When it comes to interference with subsisting contract, A will be

deemed as committed a tort against C if he persuades B to break his
contract with C without lawful justification. A also commits the tort if he
uses some unlawful means to prevent the performance of B & C contract.
This interference can be divided into three categories which are inducing
breach of contract, interference with the performance of the contract
and the interference other than directly inducing the breach.

(a) (i) Inducing breach of contract

If A persuades B to break his contract with C without lawful
justification then it will fall under the category of inducing breach of
contract and A will be liable for committing a tort against C. This can be
seen in the case of Lumley v Gye where in this case, the plaintiff entered
into a contract with Miss Wagner to perform for the plaintiff. Under the
contract, Wagner was not permitted to sing or use her talents elsewhere.
The defendant knew of the contract and then entered into deal with
Wagner for her to sing at his theatre for money. The plaintiff sued and
asked the defendant to pay for damages for maliciously interfering with
his contract with Wagner. The court held that if a party maliciously
interferes in a contract performance, he is liable in damages for that
interference thus the defendant is liable in this case. In the case of Loh
Holdings Sdn Bhd v Peglin Development Sdn Bhd, the court defined the
tort of inducement as “the tort which is committed when a third person
deliberately interferes in the execution of a valid contract which has been
concluded between two or more other parties.”
There are several elements needed to be fulfilled in order for the
defendant to be liable for inducing breach of contract. The first element
is there must be Inducement where there must be persuasion directed at
a party of the contract. The case to be looked upon for the first element
is the case of JT Stratford & Co Ltd v Lindley where the court held the fact
that an inducement to break a contract is couched as an irresistible
embargo (embargo = seize/ban) rather than in terms of seduction does
not make it any the less an inducement. The second element is
knowledge and intent of the defendant. Recklessness is sufficient intent
and the exact nature of the breach need not be known in order to fulfill
this element. The first case to be looked upon is the case of Emerald
Construction Co Ltd v Lowthian. In this case, Lord Denning stated that
even if the defendants did not know the actual terms of the contract, but
had means of knowledge which they deliberately disregarded then that
would be sufficient to represent recklessness. Meanwhile in the case of
Mercur Island Corporation v Laughton, the court held that the tort of
indirect wrongful interference in contractual relations required an
intention on the part of the defendants to constitute the breach of
contract.
The third element is it results in breach of contract. The persuasion
must have produced a breach of contract. The case to be looked upon
is the case of Torquay Hotel Co v Cousins. In this case, the plaintiff
contracted to buy oil for his hotel from Esso. Members of the defendant
trades union blocked the deliveries of oil by Esso to the Hotel because of
a trade dispute they had with the management of the hotel. The hotel
sued for an injunction and damages on the ground that the actions of the
members of the Union constituted unlawful interference with the
performance of the contract between the hotel and Esso. The court held
that the meaning of “interference” is not confined to the actual
procurement or inducement of a breach of contract. Lord Denning
opined that it can also cover situations whereby the third person
prevents or hinders one party from performing his contract. The fourth
element is there must be resulting damage. Damages is the gist of the
action. However not in all situation damage have to be proven as seen in
the case of Goldsoll v Goldman where the court held that if the breach is
such as must in the ordinary course of business inflict damage on the P,
he may succeed without proof of any particular damage. The fifth
element to be looked upon is self interest defence of justification.
Self-interest or altruistic motives is not a justification. In the case of Edwin
Hill and Partners v First National Financial Corporation, the court held
that the defendant may interfere with another party’s contract to protect
an equal or superior right of its own. In the case of Brimelow v Casson,
the interference were justifiable as it is to protect the employee from
prostitution and it was the moral duty of the defendant to intervene.
The interference is also justifiable if the contract interfered with was
inconsistent with the a previous contract with the interferer according to
the case of Smithies v National Association of Operative Plasterers.

(a) (ii) Interference with the performance of contract and interference

other than directly inducing the breach

Interference with the performance of contract is the extension to

the principle established in the case of Lumley v Gyle where the
defendant deliberately and directly interfered with the execution of
contract without casing any breach. This is applicable when a 3rd party
prevents or hinders one party from performing his contract, even though
there is no breach.
When it comes to interference other than directly inducing breach,
A incurs liability in tort if he interferes in the performance of a contract
between B and C otherwise than by direct persuasion of B, provided he
uses unlawful means to strike at C. This can be seen in the case of DC
Thomson and Co Ltd v Deakin where the defendant Trades Union was
alleged to have indirectly prevented a supplier from performing its
contract to supply paper to the plaintiffs by inducing its members to
withdraw their services from the supplier. The court held that tort would
be committed if the following four elements are fulfilled which are the
trade union knew the existence of the contract and intends its breach,
the union did induce a breach of contract, the employees so persuaded
did indeed breach their contracts of employment and the breach of their
contracts of employment did cause the breach of the contract
complained of.

(b) Conspiracy
 Conspiracy is defined as the agreement between two or more
persons to do an unlawful act or a lawful act by unlawful means
according to the case of Mulcahy v R. According to the case of Crofter
Hand-Woven Harris Tweed Co Ltd v Veitch, the court stated that the
plaintiff must establish several elements in order to make out a case of
conspiracy which are an agreement between two persons, an agreement
for the purpose of injuring the plaintiff, the acts done in execution of that
agreement resulted in the damage to the plaintiff, and the acts done
which resulted in the damage must be without lawful justification or
excuse. Similar elements were also laid down in the case of Yap JH v Tan
Sri Loh Boon Siew & Ors. There are two types of conspiracy which are
conspiracy to injure and conspiracy by unlawful means.
Conspiracy to injure arises when a combination of two or more
persons agree to wilfully injure a man in his trade which result in damage
to him. Meanwhile conspiracy by unlawful means arises when there is an
agreement between two or more persons to carry out an unlawful act or
acts, or to carry out a lawful act by unlawful means. According to the case
of Lonrho v Fayed, the court held that conspiracy by unlawful means
doesn’t require predominant purpose to injure the plaintiff but still
requires an intention to injure.
There are three essential ingredients needed to be fulfilled in order
to constitute as conspiracy. The first element is there must be agreement
or combination between 2 or more persons. According to the case of
Seagate Technology Pte Ltd v Goh Han Kim,the essence of the tort of
conspiracy lies in there being an agreement between the defendant and
other third parties, to cause injury to the plaintiff. The second element to
be looked upon is purpose. The court must consider the predominant
purpose for which the act or acts are carried out and the purpose must
be to injure the plaintiff. If the predominant purpose is established then it
is irrelevant that the defendant also has a subsidiary purpose of
furthering his own interest. However if the predominant purpose is for
advancement of defendant’s business and injuring plaintiff is subsidiary
or when defendant is able to prove purpose behind his action is to
further his own interest then there is no conspiracy. According to the
case of Iskandar Gayo v Datuk Joseph Pairin Kitingan & Ors, the
predominant purpose must be to inure the plaintiff or cause damage to
the plaintiff. The third element is damage. Actual damage is an essential
ingredient in the tort of conspiracy.
(c) Passing off

Passing off is defined as making some false representation which is

likely to induce a person to believe that the goods or service are those of
another who had established business reputation and goodwill. The aim
of law of passing off is to protect the goodwill associated with a business.
In the case of Erven Warnink Bv v J Townsend & Sons (hull) Ltd, Lord
Diplock had established five elements to constitute passing off which are
there must be misrepresentation, made by a trader in the course of
trade, to a prospective customer of his or ultimate consumer of goods or
services supplied to him, which is calculated to injure the business or
goodwill of another trader and which causes actual damage to a business
or goodwill of the trader by whom the action is brought.
Th first element to be fulfilled in order to establish passing off is the
plaintiff has sufficient goodwill, reputation and presence in the trade
name in question. In the case of Erven Warnink Bv v J Townsend & Sons,
the plaintiff was one of the primary market producers of a dutch liquor
and it was sold under the name “Advocaat”. The defendant produced a
similar alcoholic drink and sold it under the name “Keeling’s Old English
Advoocat”. The court held that the defendant was passing off their goods
as those of plaintiff. The court establish that passing off include any
situation where goodwill is likely to be injured by misrepresentation.
Another case to be looked upon is Microsoft Corporation v Tokyo
Micro-Soft (M) Sdn Bhd. In this case, the plaintiff submitted that the
defendant’s use of the word “Micro-soft” in its business name had passed
off the defendant’s business as that of plaintiff. Since the plaintiff’s
trademark is distinctive and had acquired international reputation and
the defendant’s trademark were pronounced the same way, the court
held that thre is passing off. However in the case of Star Industrial Co Ltd
v Yap Kwee Kor, the plaintiff claim for passing off failed on the basis that
it no longer has goodwill in its toothbrush business in Singapore because
it had abandoned its business in Singapore.
 The second element is the actions of the defendant likely to cause or
has actually caused deception or confusion. The first case to be looked
upon is the case of Stannard v Reay. In this case, the plaintiff started a
business uner the name “Mr Chippy” which involves a mobile fish and
chips van in October 1966. In Novembr 1966, the defendant also used
the name “Mr Chippy”,trading with avan under similar business with
plaintiff. The plaintiff then sought for interlocutory injunction to stop the
defendant to trade under the same name. The court held that the
defendant was passing off and plaintiff had acquired goodwill despite he
only traded for 3 weeks when the defendant commenced the trading.
Another case to be looked upon is the case of Donone Biscuits
Manufacturing (M) Sdn Bhd v Hwa Tai Industries Sdn Bhd. In this case, the
plaintiff manufacture and sell chocolate chips under the trademark
“Chipsmore “. The defendant subsequently manufactured and sold
chocolate chip cookies bearing similar trademark called “Chipplus”. The
court found that the plaintiff had extensively and actively promoted the
“Chipsmore” chocolate chip cookies. The court also found that the
plaintiff’s trademark and get up were associated in the mind of the public
thus the plaintiff had goodwill in it’s chipsmore trademark and get up in
the form of product’s packaging. The court then made comparison
between the packaging and mark on whole of the plaintiff and defendant
and found that it is deceptively similar and may lead to confusion. The
court held that the defendant had passed off it’s product as the product
of the plaintiff. In the case of Syarikat Zamani Hj Tamin v Yong Sze Fun,
the plaintiff used the trademark “Tamin since 1951. The defandant
started using the same trademark in the year 1990. The court held that
there is passing off as plaintiff has used the trademark earlier and it was
an identifier to plaintiff’s trademark. The court further stated that the
usage of the trademark by the defendant would lead to confusion and
deception to the public and would affect the goodwill and reputation of
the plaintiff. However different decision was given in the case of Mun
Loong Co Sdn Bhd v Chai Tuck Kin. In this case, the plaintiff owned two
stores under the business nae of Mun Loong and the defendant operated
an optical goods business under the name of Mun Loong Optical Conduct
Lens Centre. The plaintiff sought injunction to restrain Defendant from
using the name Mun Loong but the Plaintiff’s claim failed as the plaintiff
failed to prove the Defendant was guilty for deception as both are totally
different fields of business activities.
The remedies for passing off are injunction, damages or account of
profits made by the defendant from the passing off.

(d) Breach of Confidence

Breach of confidence occur when the defendant disclose plaintiff’s

trade information without consent which result in plaintiff suffer from
losses or damages in respect of his business. In the case of Schmidt
Scientific Sdn Bhd v Ong Han Suan,the court held that the duty of good
faith or fidelity on an employee does not only require that the
employee refrain from misuse or disclosure of information while
under employment, but that there is also an implied duty that
prohibits the employee from using any confidential information
obtained during his employment, without the employer’s consent,
after the employment contract ends.

There are 2 ways of breach of confidence which are breach of

contractual obligation and breach of non-contractual obligation.
When it comes to breach of contractual agreement, plaintiff can rely
on the contractual agreement between himself and defendant,that
there is a duty of confidence on the part of defendant. This duty
could have been either expressly or impliedly imposed. Where the
court finds that there exists a confidential relationship between two
parties, the court can infer an implied contract arising out of that
confidential relationship. This type of breach usually involve employer
and employee. When it comes to breach of non-contractual
obligation,plaintiff can invoke the equitable jurisdiction of the court
to protect the obligation of confidence that defendant owes him. The
first case to be looked upon is the case of X Pte Ltd v CDE. In this
case, the plaintiff successfully restrained the defendant from
disclosing information evidencing the plaintiff’s adulterous
relationship contained in telephone bills and receipts, even though
those documents were not marked confidential. The second case to
be looked upon is the case of Tan Eng Seong v Malaysian Banking
Berhad. In this case, the plaintiff commenced an action against the
defendant bank for breach of the bank's duty of confidentiality and
for defamation when the bank disclosed information about his bank
account to his brother. The court held that the plaintiff could succeed
on the claim based on an implied duty of confidentiality between him
and the defendant bank. Unfortunately, the plaintiff did not give
evidence as to the harm that had been caused to him by the
disclosure and that the defendant bank had admitted and apologized
to the plaintiff. The plaintiff was only entitled for nominal damages.

The case of Coco v AN Clark (Engineers) Ltd had laid down

several elements required for breach of confidence which are the
information must have the necessary quality of confidence about
it(e.g trade secrets, lists and names of suppliers’ or the employers’
trading partners, formulae etc), the information must have been
imparted in circumstances importing an obligation of confidence and
there must be unauthorized use of the information to the detriment
of the party who originally communicated it (Plaintiff has suffered loss
as a result of the disclosure of such information).The law of
confidentiality in the context of a relationship between employer and
employee has been set out clearly in the case of Faccenda Chicken v
Fowler. In this case the first principle which had been laid out is
Information of trivial character or easy accessibility from public
resources cannot be regarded by reasonable persons or by the law as
confidential. The second principle is Information which the employee
must treat as confidential but which once learned necessarily remains
in the employee's head and becomes part of his own skill and
knowledge applied in the course of his employer's business cannot
be disclosed during the course of employment but when he is no
longer in the same service, the law allows him to use his full skill and
knowledge for his own benefit in competition with his former master.
Lastly, specific trade secrets so confidential that, even though may
necessarily have been learned by heart and even though the
employee may have left the service, cannot lawfully be used in order
to save the employer's benefit.

The remedies which employers could seek from Courts for

employees’ breach of confidence or disclosure of information which is
confidential in nature would be injunction and damages.In order to
obtain an injunction, employers must demonstrate irreparable injury
and that damages are an inadequate remedy.This can be seen in the
case of Schmidt Scientific Sdn Bhd v Ong Han Suan where the
plaintiff successfully applied for injunction to restrain defendants
from disclosing any confidential information or trade secrets of
Plaintiff and from dealing with Plaintiff’s suppliers. When it comes to
damages,the employer must prove that the employee gained gross
profits from the misuse/disclosure of the confidential information.

There are several additional cases to be looked upon. In the case

of Electro Cad Australia Pty Ltd v Mejati RCS Sdn Bhd, the plaintiffs
brought an action against the defendants for breach of confidential
information when the defendants produced a similar anti theft car
device manufactured by the plaintiff and it was held by the court that
information concerning the anti-theft car device were trade secrets
and the defendants had breached the confidence when they used the
information without the plaintiffs’ permission. In this case, the court
granted an injunction and awarded damages to the plaintiffs. In the
case of A v B,the court established that a duty of confidence arise
whenever defendant either knew or ought to have known that the
other person could reasonably expect his privacy(information) to be
protected. In R v Dept of Health, ex p Source Informaics Ltd, the court
established that in medical law, there is no breach of confidence
where the information disclose does not identify the person to whom
it relates. Lastly in the case of AG of Hong Kong v Zauyah Wan Chik &
Ors and another appeal, the court established that there is no duty of
confidence where the disclosure was made in obedience of the law.

Chap 5: Vicarious Liability

(a) Vicarious liability and its tests

“Vicarious Liability” signifies the liability which A may incur to C

for damage caused to C by the negligence or other tort of B. A should
stand in a particular relationship to B and that B’s tort should be
referable in a certain manner to that relationship. Example of such
relationship are master-servant, employer-employee, principal-agent,
partners. A master or employer can be held liable for the wrong
committed/done by his servant or employee. The first case to be
looked upon which dealt with vicarious liability is the case of Imperial
Chemical Industries Ltd v Shatwell. The claimants were qualified
shot firers and were working in a quarry. On a certain day they had to
test the electric wiring for explosive charges and though they were
aware of the company’s mandatory policy that such practices were
only allowed from a shelter, they carried out the explosion by using a
short length wire and were injured as a consequence. One of the
claimant sued the company on the basis that the company was
vicariously liable for the action of them. His claim failed as the House
of Lords held that the claimant knew of the risk and danger, and had
completely ignored the safety rules put in place by the company, and
had continued to take the risk. Therefore he was equally liable and
had deliberately taken the risk of injury and was not entitled to any
claim under vicarious liability.

There are 3 requirements needed to be proved in order to

establish vicarious liability. The first requirement is there must be
wrongful or tortious act.The offences that the tortfeasor had
committed must be a tort-related offences which are negligence,
nuisance, strict liability and etc. In the case of Pui Lai Ong v Kassim
bin Yunus & Anor, it was established by the court that in order to take
a cause of action towards the defendant, the act of tort must be
committed by the employee and the elements need to be
established.
 The second requirement that needed to be fulfilled is special
relationship. The defendant who takes the responsibility over the tort
that has been committed by the tortfeasor must have a special
relationship which is usually in the form of employer and an
employee.. It is important to established the special relationship
because if the court decided there is no nexus between the defendant
and the tortfeasor, the defendant will not be responsible towards the
tortfeasor’s act. There are many tests that have been established by
the court in order to know whether there is a special relationship or
not. The tests that are available are the control test, the organization
test and multiple test.

The first test that has been established by the court is the control
test. This test has been laid down in the case of Short v J & W
Henderson where Lord Thankerton who came up with this test, said
there were four factors to be considered in determining the existence
of a contract of service. Firstly, the power of selection by the
employer, secondly, the power in determining salary or other
remuneration, thirdly, the power or right of the employer to control
the method in which the work was done and fourthly, the power and
right of the employer to terminate the employee’s services.Based on
the factors given by Lord Thankerton, this test has been said to be
inaccurate to be used in the recent cases. This test was used in the
case of Collins v Hertfordshire. In this case, a hospital had in its
employ, a student who was employed full-time in the capacity of a
resident junior house surgeon, and also a surgeon. The surgeon was
preparing to perform a jaw operation on the plaintiff’s husband, and
instructed the junior house surgeon to collect certain materials, one
being that of procaine(a local anesthetic drug). The junior house
surgeon misheard the item as being cocaine. During the operation, a
lethal dosage of cocaine was injected into the husband which
resulted in his death. The plaintiff brought an action against the
hospital authority. On the issue of vicarious liability of the hospital
authority, they were held responsible for the acts of the junior house
surgeon, but not for those of the visiting surgeon, since in the case of
the junior surgeon they had the power to direct her on what to do
and how to do it, but in the case of the surgeon they did not have
that power. As time goes by, the element of control is not the exact
test to determine the existence of an employer – employee
relationship. This is because there are certain jobs that the employer
does not control the method in which the job is to be done.

The second test is the organization test which was laid down in
the case of Stevenson, Jordan and Harrison Ltd v Macdonald and
Evans. The test was given by Lord Denning in his judgment by saying
that in contract of service, a man is employed as part of the business
while under a contract for service, the work done by a man, although
it is done for the business, it is not integrated into it but is only an
accessory to it. This test was applied in the case of Lee Tin Sang v
Chung Chi-Keung. In this case,a mason worked for a sub-contractor
as an independant contractor. However every element of his
employment seemed to point to the fact that he is providing personal
services as an employee of the sub-contractor. The court in this case
held that If the worker is in business on his own account, then it is
more likely that he will not be deemed to be an employee.. In Mat
Jusoh bin Daud v Syarikat Jaya Seberang Takir Sdn Bhd,Salleh Abbas
FJ relied on the organization test in holding defendant as employer
because plaintiff’s work was an integral part of defendant’s business
and in addition to that the wages, the number of logs to be sawed
was determinable by the defendant.

The third test is the multiple test where this test is based on
common sense approach. This test has been laid down in the case of
Ready Mixed Concrete (South East) Ltd v Minister of Pensions and
National Insurance, there are three factors that need to be considered
under this test, which are, firstly is the consideration which is the
employee will use his own expertise and in return the employer will
pay him in monetary form or others. Secondly is subject to control
where the employee will be bound by the employer’s instructions
whether impliedly or expressly and lastly is the consistency of the
terms in the contract with the nature of the hob being a contract of
service. This test was applied in the case of Market Investigations Ltd
v Minister of Social Security. In this case, a woman was engaged by a
market research company to act as an interviewer on a part-time
basis. For each particular survey, she would conduct interviews in
exchange for payment. She was required to work for a certain
number of days at a time during each occasion, follow a
comprehensive ‘Interviewer’s Guide’ and comply with other
contractual terms. Issue arose on whether she can be deemed as
employee. The court held that the employee only receives the salary
as remuneration. The independent contractor receives payment or
charges, bears the profit or loss personally. Thus in this scenario the
court held that the woman was an employee of the company under a
‘contract of service.’ Malaysia favour this control test and this can be
seen in the case of Bata Shoe Co (Malaya) Ltd v Employees Provident
Fund Board. In this case,the plaintiff company appointed a manager
to manage the company. The company also required him to appoint
workers. The terms of the contract were to be decided upon by the
manager. The main question was whether there existed an
employer-employee relationship between the plaintiff company and
the workers appointed by the manager. The court decided no such
relationship existed. The manager was an employee of the company
as the plaintiff company had control over him. The others were in fact
employees of the manager and not the company. The court further
stated that Plaintiff was non-employee if defendant was not
responsible for the wages and control over his work.

(b) Grey Area

(b)(I) Hospital

Although the tests have been established by the court, there are
also grey areas in certain situations in determining whether the
employee is deemed to be an employee or otherwise. The situations
are basically in the case of hospital staff and when someone lends a
worker to the other.First of all, the issue arises in the case of hospital
staff, when the hospitals need to be vicariously liable for the
negligence of their staff. This is because there are expert staffs within
the hospitals and it can be said that the hospital cannot said to
control their means of work. So, the liability of a hospital for the
negligence of its health care professionals is dependent on whether
the professional is engaged in his own business or that of the
hospital, and only if the conduct of the medical officer is deemed to
be part of the hospital’s business will the hospital be found
vicariously liable.

There are several cases to be looked upon. The first case to be

looked upon is the case of Ellis v Wallsend District Hospital. In this
case, a patient sued a surgeon and the hospital at which he
performed surgery that left her a quadriplegic. After securing a
decision against the physician, she pursued a claim against the
hospital where he was allowed to operate on his private patients in
return for caring for the facility's public patients without charge. The
Court of Appeal ruled that the hospital was not responsible for the
actions of an independent specialist working on its premises.
However different decision was given in the case of Cassidy v Ministry
of Health. In this case, The claimant was a patient at a hospital run by
the defendant who required routine treatment to set the bones in his
wrist. Due to negligence on the part of one of the doctors, the
operation caused his fingers to become stiff. The claimant sued the
defendant in the tort of negligence on the basis of vicarious
liability.The Court of Appeal held that the defendant was vicariously
liable.The Court further stated that a person is a servant of the
defendant if he was chosen for the job by the defendant and is fully
integrated into the defendant’s organization. Similar decision was
given in the case of Roe v Minister of Health. In this case, the plaintiffs
sought damages after being severely paralyzed after what should
have been minor spinal anaesthetic procedures. The court held that
the hospital is vicariously liable for the negligence of those who
administer treatment in its hospital, regardless of their exact
employment status.If negligence occurs in a hospital, and the
tortfeasors cannot be identified, the hospital will be vicariously liable
for the negligence (even though the negligence is committed by a
part-time employee as they are still part of the organization).

There are exception which prevents hospital from being

vicariously liable. If the consultants or surgeon has a separate
contract with the patient that the hospital would not be vicariously
liable for any negligence committed by the consultant or surgeon.
This would mean that the treatment which is performed by the
consultant or surgeon is not on behalf of the hospital but is pursuant
to a direct engagement with the patient. However this law is
changing in Malaysia and this can be seen in several cases. The first
case is to be looked upon is the case of Chai Beng Hock v Sabah
Medical Centres Sdn Bhd & Ors. In this case, Abdul Rahman Sebli J.
stated that a medical institution has a duty to ensure that doctors
who practice at the hospital whether employed by them or otherwise
have the necessary skill and competency to treat patients. It is no
defence for the medical institution to say that it is not responsible for
the wrongdoings of its ‘independent contractors’. This decision was
the followed in the case of Dr Hari Krishna & Another v Megat Noor
Ishak bin Megat Ibrahim and Soo Cheng Lin v Dr Kok Choong Seng &
Anor & Another Appeal. In both appeals, the issue of whether
hospitals are vicariously liable for the negligence of the doctors arose
and in both cases it was answered in the affirmative based on the
principle of non-delegable duty of care.

(b)(ii) Lending Worker

When it comes to tort committed by lending worker, If B who is

the employee of A is ‘lent’ to C and B subsequently commits a tort,
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. The principle has been laid down in the case of Mersey Docks
and Harbour Board v Coggins and Griffiths (Liverpool) Ltd,where
although a worker has been lend by his employer to another person,
if the employer still control the means of work or paying his salary
after lending the employee and the employee committed a tortuous
act during his work at the other person’s place, the employer still can
be said to be vicariously liable.In this case, the appellants let out their
crane and driver to the respondent under a contract providing that
the driver shall be the servant of the respondent. The crane driver by
his negligence injured a person giving rise to the question as to who
was the master at the time of the accident for the purpose of
vicarious liability. All the Courts held that there was no transfer of the
servant and the appellants continued to be the master and were,
therefore, liable for the negligence of the servant. Meanwhile in the
case of Bhoomidas v Port of Singapore Authority, the court
established that in order to to shift the liability to the borrower
employer, the main employer must prove that the whole absolute
control on the employee has been transferred.

(c) Course of Employment

The last element that needed to be established is the tort has

been committed within the course of the employment. An employer
is only vicariously liable for the torts of his employee which occur in
the course of employment. There are few factors that can lighten the
understanding of what it means by “within the course of
employment”.

The first factor is the carelessness of the worker in the

performance of his job. The tortfeasor must do something he is
authorised and not something he is not employed to do in order for
the employer to be vicariously liable. There are several cases to be
looked upon. The first case is Century Insurance v Northern Ireland
Road Transport Board. In thi case, the defendant’s worker who was
the driver of an oil tanker, had stopped at P’s petrol station to
transfer petrol from the lorry to an underground tank at the garage.
He lit up a cigarette and threw the burning match on the floor. An
explosion ensued and the plaintiff’s property was destroyed. The
court held that the defendant is vicariously liable as the lighting of a
match to light a cigarette and throwing it on the floor while
transferring petrol from a lorry to a tank was held to be in the scope
of employment. The scond case to be looked upon is the case of
Mohd Yeanikutty v Far East Truck Inc Manufacturing (Pte) Ltd. In this
case, plaintiff was a mechanic at defendant’s shop. Plaintiff. together
with another worker, were sent to repair a machine at a lift factory.
Plaintiff hand was crushed due to their negligence. The defendant
stated that plaintiff was to be blamed for his own injury due to
disobedience of instructions. The court held that although plaintiff
was contributorily negligent but since other worker was partly
negligent, defendant as employer was vicariously liable. Meanwhile in
the case of Lim Ah Tong v Ang Yau Chee & Anor,the plaintiff’s son
was killed due to the careless of the first defendant, who was an
errand for his employer, the second defendant. The court held that
since the journey was undertaken for the benefit of the employers,
they were vicariously liable for the negligence of the first defendant.

The second factor is unauthorized manner of doing an

authorized act. If the employee or worker commits a mistake in the
course of performing his job, the employer will be liable. This mistake
is construed as doing something authorized in an unauthorized
manner. There are several cases to be looked upon for this factor. The
first case is Bayley v Manchester, Sheffield and Lincolnshire railway. In
this case, the plaintiff was a passenger on defendant’s train. One of
the porters of the defendants pulled him out of the carriage due to
mistaken belief that the plaintiff was traveling on a wrong train. The
plaintiff suffered severe injuries. The defendants were he;d liable and
the court stated tha tmaster will be liable even if the servant acts on
the belief that he is doing some lawful act which he is authorized to.
In the case of Lister v Hesley Hall Ltd, A school board employed staff
to manage a residential school for vulnerable children. The staff
committed sexual abuse of the children and the court held that the
school is vicariously liable. However in the case of Beard v London
General Omnibus, the court held that the transport company is not
liable when the conductor, instead of the driver, on his own initiative
turns a bus around at the terminal and negligently injures the third
party.

The third factor is tort committed in protection of employer’s

property. The general rule is that employer will be vicariously liable as
if the employee is impliedly authorized by the employer to do the act.
Employer can escape liability if the employee’s conduct is
excessive.However, in the case of Poland v Parr & Sons, the
defendant’s worker severely injured a boy who he believed have been
stealing sugar belong to his employer and the defendant was held
liable despite the worker’s act was excessive.

The fourth factor is worker delegating his authority. It is a general

rule that a servant has no power to delegate his job even in
emergency situation. In the case of Ilkiw v Samuels,the defendant’s
worker who is a lorry driver allowed a 3rd party to drive the lorry.
Then the 3rd party negligently caused an accident. The court held
that the defendant is liable, not for 3rd party’s negligence but
because of his employee’s negligence in the course of employment
by allowing 3rd party drive the lorry.

The fifth factor is the worker acting for his own benefits. There
are two cases to be looked upon when it comes to this factor. The
first case is Zakaria Che Soh v Chooi Kum Loong & Anor. In this case,
the plaintiff was a driver for a research institute in Ipoh. After sending
the director home, he drove home for lunch and an accident occurred
on the way. The court found the state government liable although the
purpose of that trip did not have anything to do with his employer
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. By contrast, in Samin bin Hassan v Government of
Malaysia, the plaintiff was knocked down by the defendant who was
driving a land rover which belonged to Telecom’s department. The
defendant had written down in log book that the purpose of bringing
the vehicle out was to test its brakes. The court held that at the time
of accident, the driver did not act as employee of Government. Thus,
government was held not liable.

The sixth factor is acting in express prohibition by the employer.

There are several cases to be looked upon under this factor. The first
case is Rand v Craig. In this case, the court held that employer will not
be liable if the employee did something which is impliedly forbidden.
In the case of Chuan Seng and CO Pinaple Factory v Idris and
Anor,the defendant employee gave a lift to two person in his lorry, an
accident occurred in which the two person died. The defendant was
found not vicariously liable. The court follow the dicta in Twine v
Beans Express LTD and stated that giving a lift was outside the scope
of employment as the driver was prohibit from giving lift to other
person. However in the case of Rose v Plenty, a worker, acting against
the instructions of his employer, employed a 13 year old boy to help
him deliver and collect milk bottles. The boy suffered injuries due to
the negligence of the worker and the employer was held vicariously
liable. In the case of Limpus v General Omnibus Co, the bus driver’s
employer was hed liable as driver was doing an authorised act which
is driving bus in an improper and unauthorised manner which is
racing other buses from rival bus companies which caused a collision
with plaintiff’s bus.

The seventh factor is employee acting ‘on a frolic of his own”. If

the If employee’s act is intended to benefit himself alone it will be
deemed as outside course of employment and the employer won’t be
held liable for it. It was established by the court in the case of Joel v
Morrison that if the employee was going on on a frolic of his own,
without being at all on his master’s business, then master will not be
liable. Meanwhile in the case of Rosahiree Abdul Wahab v Mejar
Mustafa Omar and Ors, the government was not liable for the act of
ragging by the second defendant unlike the first defendant since the
second defendant was not assigned any official duty towards the
plaintiff thus his act were independent.
 The eight factor is committing crime or fraud by the worker. The
employer will be vicariously liable if the commission of crime by the
employee is a way of performing his duty. For instance, an employer
an employer may be liable for the theft committed by his employee,
so long as the theft occurred within the course of employment. In the
case of Morris v CW Martin & Sons Ltd, the defendant’s employee
was sent to clean and she stole the plaintiff’s mink stole. The court
held that the defendant is liable as the employee was performing his
job in an unauthorized and unlawful manner. The employer may also
be vicariously liable for the fraud committed by the employee. This
can be seen in the case of Lloyd v Grace. In this case, the managing
clerk of a firm of solicitors fraudulently induced a client to transfer
two properties to him. The House of Lords held that, by allowing the
managing clerk to deal with clients, the firm had given him authority
to conduct certain types of business. The court further stated that
vicarious liability can extend to fraudulent acts or omissions if those
were carried out in the course of the employment or within the scope
of the apparent authority.

The last factor is time and its relevance in determining the course
of employment. The tortfeasor must act within the scope of
employment which is during the authorised period of work. It is not
necessary that tort must be committed on the premise of the
employer and it can even happen outside the premise. For instance,
negligence occur when travelling to and from work in a vehicle
operated by or on behalf of his employer. This is governed under
s.4(1) of Workmen’s Compensation Act (WCA) 1952 and s.24(1)(a)
Employees’ Social Security Act (SOCSO) 1969.

(d) Liability in respect of independent contractors

 An independent contractor is a person or firm engaged to do a
particular job of work, as opposed to a person under a contract of
service. In the case of Ready Mixed Concrete (South East) Ltd v
Ministry of Pensions and National Insurance, an independent
contractor is define as his own master, bound to do the job he has
contracted to do but having a discretion as to how to do it. Under

the vicarious liability, the general rule is an employer is not liable for
the tort committed by his independent contractor. However there are
certain exceptions to this general rule.An employer may only be liable
for the tort committed by his independent contractor if the employer
is deemed to have committed a tort himself in four following
situations discussed below.

Th first situation is employer authorizing the commission of

tort.A person who instigates, procures or authorises another to
commit a tort is deemed to have committed the tort himself. The case
to be looked upon is the case of Ellis v Sheffield Gas Consumers Co.
In this case, a gas company (defendant),directed their contractors to
open trenches despite they are not authorized to interfere with the
streets of Sheffield. The contractor servant, in doing so, left a heap of
stones over which the plaintiff fell and got injured. The court held that
the defendant is liable and further stated that employer becomes a
joint tortfeasor with the independent contractor if he has authorized
the latter to commit a tort This principle applies even tough the
authorization or ratification is made after the commission of tort
according to the case of Freeman v Rosher.

The second situation is tort which do not require intentional or

negligent conduct by the tortfeasor.In this situation, the liability does
not depend on either intentional or negligent conduct on the part of
the employer, employee or independent contractor. As long as the
requirements under each particular tort are fulfilled, the tort is
established and liability may be shifted over to the employer. This can
be seen in the case of Ryland v Fletcher.In this case, the defendants
employed independent contractors to construct a reservoir on their
land. The constructors found disused mines when digging but failed
to seal them properly and filled the reservoir with water. As a result,
the water flooded through the mineshafts into the plaintiff’s mines on
the adjoining property. The court held that the defendant is liable.
Another case to be looked upon is the case of Bower v Peate. In this
case,the defendant employed a contractor to demolish his house. The
adjoining house was damaged as a result of the work. The occupier
was held liable.

The third situation is negligence of the employer. If the damage

is caused by the incompetence of his independent contractors in
carrying out their duty then it will be deemed as employer’s personal
negligence for failure to appoint a competent and skilled contractor.
The first case to be looked upon is the case of Robinson v
Beaconsfield RDC. In this case, the defendants employed contractor
to clear out a pool in their district but no arrangements were made to
deposit the sewage in the pool. The contractors end up depositing
the sewage in the plaintiff’s land. The defendants were held liable for
their failure to take precautions to dispose of the sewage.

The fourth situation is non-delegable duties.“Non-delegable

duties” includes activities that are inherently dangerous so that the
employer cannot shift his duty of care to the independent
contractors. Examples of this type of activity would be work
transporting or handling explosive materials, blasting land to
construct roads or buildings, and dealing with wild animals. Due to
the increased likelihood for injury and the specialized nature of these
activities, an employer will be found liable for these types of acts even
if carried out by an independent contractor. This can be seen in the
case of Lee Kee v Gui See & Anor. In this case, the defendants were
held liable for the negligence of the independent contractor who set
fire to some unwanted branches and tree trunks on the defendant’s
land and then left the fire unattended which spread and destroyed
the plaintiff’s property. Then in the case of Tarry v Ashton, an
occupier of land adjoining a highway employed a contractor to repair
a dangerous lamp overhanging the highway. The occupier was held
liable when the lamp was allowed to fall and injure a passer-by.
Another case to be looked upon is the case of Holliday v National
Telephone Company. In this case,a passer-by on the highway was
injured through the negligence of an independent contractor and the
court held that the employer was liable.

(e) Non-liability in respect of independent contractors

There are several situations where the employer won’t be liable

for the tort committed by independent contractors. The first situation
to be looked upon is when the breach of duty is not on the part of
employer himself. If the employer is able to satisfy the court that he
has taken care in the selection of an independent contractor then the
employer will not be held liable for any breach of duty by that
contractor. This can be seen in the case of Phillips v Britannia Hygenic
Landry Co. In this case, the lorry owner was held not liable when
plaintiff’s vehicle was damaged due to the negligent repair of the
lorry by a garage proprietor.

The second situation to be looked upon is casual or collateral

damage. An employer is only liable for damage that results due to the
inherent danger in the work. If there is no such inherent danger and
that damage is not foreseeable as likely to occur as a result of the
work then the employer will not be held liable. The employer had to
ensure that they engaged a competent contractor to do the work in
order to prove that the damage is not foreseeable if it happens. This
can be seen in the case of Padbury v Holiday & Greenwood Ltd. In
this case, the defendant employed a subcontractor to fit casement
windows into a house the defendant were building. The
subcontractor’s worker negligently placed a tool on a window sill. The
wind blew the casement open and the tool was knocked off the sill
and injured a passer-by. The court held that the defendant is not
liable.

The third situation is liability in respect of agents. An employer

will be vicariously liable for the acts of his agents who are also his
employees, but not for the acts of his agents who are independent
contractors. In the case of Yeo Tin Sang v Lim Choo Kee, the court
established that if the injury or loss is caused to a third person by the
wrongful act of an agent who is acting within the scope of his
authority, the principal is liable jointly and severally with the agent.
There are two cases to be looked upon when it comes to liability for
agents in the sense of vehicle drivers. In the case of Adnan bin Haji
Mat Jidin & Anor v Irwan Wee bin Abdullah & Anor,second defendant
allowed the first defendant to use her car. The first defendant
collided with plaintiff and the court held that the second defendant
could not be vicariously liable merely for allowing someone else to
use the car. Moreover she had no interest in the purpose for which
the car was being used. Similar decision was given in the case of
Launchbury v Morgans. In this case, the court establishes that the
owner is not liable simply for permitting another to use the vehicle
for his own purposes. It must be shown that the driver was using it for
the owner’s purposes under delegation of some task or duty, and the
mere fact that the owner has an interest in the safety of the vehicle’s
occupants is not sufficient. An owner will be vicariously liable if he
had authorised or requested the driver to drive the car in order to
carry out a task delegated to him because the owner would be said to
be in control of the driver’s conduct.

Chap 6: Remedies

(a) Damages(intro)

The general rules of damages is that there is only one cause of

action for each tort and damages must be recovered once and for all
and must be awarded in a single lump sum.A claimant can bring only
one claim in respect of a single wrong and he cannot bring a second
action upon the same facts simply because his injury proves more
serious than was thought when the judgment was given. This can be
seen in the case of Fitter v Veal. In this case, the plaintiff recovered a
small sum of damages for an assault. Subsequently, as a result of the
assault, a small portion of his skull had to be removed. He was not
permitted to bring second action in this case. However there are two
exceptions to this general rule.

The first exception is violation of two separate rights.If

defendant’s single wrongful act challenges two or more different
rights of plaintiff or a series of defendant’s wrongful acts challenges
several rights of plaintiff, he may institute separate actions in respect
of each of his rights. In other words, If one and the same act violates
two rights which are accorded separate protection by the law of torts,
there are two separate causes of action, and the prosecution of one
will not bar proceedings in respect of the other. This can be seen in
the case of Malbai v Nawi where the court allowed separate cause of
action as there were separate and distinct assault towards the
plaintiff. In this case, the plaintiff was injured because of two different
people. Another case to be looked upon is the case of Brunsden v
Humphrey. In this case, the defendant negligently caused damage to
a cab driver and his vehicle in the same accident. The cab driver
obtained damages for the damage to his vehicle. The court held that
the can bring fresh proceedings for personal injury as they were two
causes of action. This case contradicts with the case of Henderson v
Henderson. In this case, a rule was established by the court and the
rule is aggrieved party must present their entire case during legal
proceedings and the party may not raise any claim in subsequent
litigation which they ought properly to have raised in previous action.

The second exception is continuing injury. If the damage is

continuous such as continuing trespass to land and continuing
nuisance then it gives rise to fresh cause of action from day to day.
Trespass is actionable per se and gives rise to a fresh cause of action
from day to day. This can be seen in the case of Holmes v Wilson. In
this case, the defendants build supports for a road on Plaintiff’s land.
The defendants paid damages for the trespass but were held liable
again in a further action for failing to remove the buttresses. In the
case of continuing nuisance a fresh cause of action arises upon
materialisation of further or subsequent damage. This can be seen in
the case of Darley Main Colliery Co v Mitchell. In this case, the owner
of the land whose land was affected by subsidence received
compensation from the defendant and he was allowed by the court
to bring a fresh action for compensation when further subsidence
took place which caused further injury. Damages could only be
recovered for any damage up to the day of the trial and plaintiff
cannot claim for any prospective damage. This can be seen in the
case of West Leigh Colliery Company Limited v Tunnicliffe and
Hampson Limited where the court held that in order to recover
damages, the owner is obliged to wait until the damage or injury
caused by subsidence has happened.

(b) Restitutio in intergrum

The principle of restitutio in intergrum is damages is to be

assessed on a compensatory basis, which is to restore P to his
position prior to the commission of the tort. According to the case of
Livingstone v Rawyards Coal Co, Lord Blackburn stated that
compensation should be ‘in the same position as he would have been
in if he had not suffered the wrong for which he is now getting his
compensation or reparation’. There are several limitation for this
principle.

The first limitation is mitigation of damage. The plaintiff has a

corresponding duty to minimize his loss that results from defendant’s
tort.Plaintiff will not be able to claim as damages, any loss that he has
incurred due to lack of reasonable steps on his part. What is
reasonable depends on the facts and circumstances in each case.

The second limitation is the final damage is caused by plaintiff’s

impecuniosity.If plaintiff cannot minimise his loss due to his
impecuniosity, defendant will be held to be fully liable, but where the
damage itself is a product of plaintiff’s impecuniosity, then it
becomes too remote according to the case of Dodd Properties (Kent)
Ltd v Canterbury City Council.

(c) Claims for personal injury

Claims for personal injury is dealt under s.28A(1) of Civil Law Act
1956. There are two types of damage where one can claim for
personal injury which are pecuniary damage and non-pecuniary
damage.

When it comes to pecuniary damage, the claim could be for loss of

earnings or loss of future earnings according to the case of Chang
Min Feng & Anor v Jackson Lim @ Jackson ak Bajut. According to the
case of Pang Ah Chee v Chong Kwee Seng, any expected expenses as
a result of the injury such as medical and nursing bills and domestic
help are also recoverable. Loss of earnings can be divided into two
category which are loss of future earnings and lost years. When it
comes to loss of future earnings, it is dealt under s.28(2)(c) of Civil
Law Act 1956. In order to claim under this section, there are several
criteria to be fulfilled. The criteria are good health, was receiving
earnings by his own labour and lawful activity, below 55 years old,
assessment at the date of injury, prospects of increment have to be
ignored, deduction can be made on account of living expenses. When
it comes to the calculation to determine the multiplier, the section
which should be referred is s.7(3)(iv)(d) of Civil Law Act 1956. In this
section, it was stated that if the person whom died is at the age of 30
years and below then the number of years purchase shall be 16
meanwhile if the person is at the range of 31 years till 54 years at the
time of his death then the number of years purchase shall be 55,
minus the age the person at the time of death and divide the
remainder with 2. In order to determine the loss of earnings, the
formula is (annual income - tax - annual personal expenses) x number of years
purchased (multiplier).

When it comes to lost of years, if plaintiff’s life expectancy has been

reduced as a result of his injuries, the question is whether he can be
compensated for the earnings he would have received between the
date of his expected death and the date he would have stopped
working if it had not been for the accident. There are two cases to be
looked upon. In the case of Oliver v Ashman, the court held that no
claim can be made for lost years and the plaintiff could only claim for
lost earnings. However in the case of Pickett v British Railway
Engineering Limited, the court held that plaintiff could recover
damages for the lost years.

When it comes to non-pecuniary damage, the claim could be for

the injury itself, pain and suffering, and loss of amenity or enjoyment
of life. Pain refers to physical hurt or discomfort attributable to the
injury itself or consequent upon it. Meanwhile suffering refers to
mental or emotional distress which the plaintiff may feel as a
consequence of the injury. Loss of amenities refers to inability to
continue in the lifestyle the plaintiff had before the injury. For
instance, loss of marriage prospects.

(d) Dependency claim

Dependency claim is a claim for loss of support suffered by the

dependants of the deceased as a result of the death of the deceased
caused by the negligence of another person. In order to make
dependency claim, the plaintiff must satisfy two requirements which
are he/she must be a dependant and he/she must have loss of
support. When it comes to first requirement, dependant includes wife,
husband, parent, and child according to s.7(2) & s.7(11) of Civil Law
Act 1956.

When it comes to second requirement, the person who can

benefit from loss of support is as per the s.7(2) & s.7(11) of Civil Law
Act 1956 as mentioned earlier. The formula to calculate the general
damages of loss of dependency is same with loss of earnings formula
mentioned earlier which is (annual income - tax - annual personal
expenses) x number of years purchased (multiplier). The case to be
looked upon is the case of Takong Tabari v Government of Sarawak.
In this case, The deceased in this case was killed in an explosion in
Miri, Sarawak. The deceased's widow brought an action against the
alleged tortfeasors claiming damages for loss of support for herself
and other dependants. In the High Court, the learned trial judge
assessed the multiplicand for the claim as RM2,500 per month. Since
the deceased was 37 years old at the time of his death the learned
judge determined the multiplier to be nine years based on the
formula provided in the new provision. After having determined the
multiplier as nine years and the multiplicand as RM2,500 per month,
his Lordship said:”Therefore the total general damages for loss of
dependency should be: RM2,500 x 12 x 9 = RM270,000”. In this case,
the damages of bereavement was allowed and RM 3000 as funeral
expenses was allowed as well. Under s.7(3B) of Civil Law Act 1956, the
claim of bereavement is allowed for the benefit of spouse of the
deceased and for parents where the deceased was a minor and never
married.

(e) Claim for damage to property

The general rule when it comes to claim for damage to property

is the defendant will be liable for all the damage or loss to the
plaintiff’s property as a result of his act. If the property is completely
destroyed then the measure of damages is the market value of the
property at the time of destruction. Where property is damaged but
not destroyed, the measure of damages is the diminution in value. If
the plaintiff intends to sell the property then the capital value of the
property in the undamaged state will be compared with its value in a
damaged state in order to determine the diminution in value. If
plaintiff intends to occupy the premises then reinstatement
assessment will be used instead.

(f) Type of damages

General damages are considered as the consequence of a tort.

Normally the amounts of damages are not fixed, which mean there is
possibility to change. The award for general damages such as
damages for pain, suffering, tort of liable and slander. In the case of
Ong Ah Long v Dr S Underwood, the court held that general damages
are simply compensation that will give the injured party reparation
for the wrongful act and for all the natural and direct consequences
of the wrongful act so far as money can compensate.

Meanwhile, special damages is not arise from the consequences

of a tort. In claiming for special damages, plaintiff must give full
details and notice in his pleadings. Plaintiff also needs to prove for
damages like in the circumstances tort of negligence, nuisance, and
slander. The amount of damages is fixed or in another word is
liquidated, which means that amount already calculated. In the case
of Rylands v Fletcher it was stated that special damages are
calculated from the date the tort occurred until the time the case is
brought to court. They consist of liquidated damages or an amount
which may be compute or determined financially.

Contemptuous damages are considered when court fells to

award the damages towards plaintiff when plaintiff do not have a
good claim.It is normally happen when courts do not support the
plaintiff claims and the amount of awards will usually be the smallest.
It is also based on morally of the courts to award the damages when
they consider that plaintiff deserved the damages in liable, assault,
trespass and false imprisonment. This can be seen in the case of
Dering v Uris and others where the jury awarded the
plaintiff contemptuous damages of one halfpenny, the smallest coin
in the currency. As a result, plaintiff became liable for the defendants'
legal costs.

Nominal damages were granted when plaintiff do not suffered

any loss or damages but he can proves that defendant had
committed tortious offences. It also happen when the amount is not
sufficient to prove but the damages had shown. Nominal damages
are only applied in tort of actionable per se, which is does not need
to prove any damages. The court in the case of Guan Soon Tin Mining
Co v Wong Fook Kum stated that when plaintiff did not suffered any
damage and liability of the defendant is established then plaintiff
only receive the nominal damages. The court will award nominal
damages when the plaintiff has suffered no loss. This can be seen in
the case of Tay Tuan Kiat v Pritam Singh Brar where the Case of
trespass to land was proved but did not result in any injury thus
nominal damages of RM500 was awarded to the plaintiff. However,
the awards need to be reasonable. The reason is for the court, so that
can order the defendant pay the plaintiff’s court costs. In this case,
usually claimant would get a very small amount of money and to
prove that he had won the case.

Exemplary damages also known as punitive damages. It can be

considered as damages that the court will awards when there is
unreasonable behaviour in the part of the defendant. An award of
exemplary damages would be recovered on the part of plaintiff.This
damage may be differentiating from aggravated damages. In this
damage, the intention of the courts is to give a lesson and punish the
wrongdoer. Besides, it can deter others that who might be do the
same thing. The award will be double in the kind of the award
compensatory damage. In the case of Rookes v Barnard 1964 it was
stated that damages of this type have a limitation. It will only be
awarded in specific cases and on exceptionally.17 Therefore, three
classes of cases were considered in the case of Rookes v Barnard by
Lord Delvin. First, where there have been servants of the government
behave in an oppressive, arbitrary or unconstitutional way. Police
misconduct and racial discrimination fall into this category. The
second category is where the conduct of the defendant was
calculated to make a profit in the matters of compensation payable
would be exceed. It not strictly in financial profit but also includes
other benefits. The third category is where the payment of exemplary
damages had expressly permitted by statutes. An example of case to
be looked upon for this category of damage is George v The
Metropolitan Commissioner of Police. The fact of the case is the
claimant was the mother of a young woman. The police needed to
question the young women. Some officers forced their way into her
house and searched it for a long period. Furthermore, they kicked
claimant and make a false statement to deceive the court. She was
awarded by the court for trespass, assault and for exemplary
damages, which is 6000 dollar for trespass and assault and 2000
dollar for exemplary damages.

Aggravated damages can be awarded if the court wishes to

express disapproval of the defendant’s behavior.The consequence is
the claimant has suffered more than reasonably be expected in the
situation.This damage usually awarded when the when plaintiff has
suffered injury or loss other than pecuniary loss, such as a smear on
his reputation, feeling of shame, pain, malicious falsehood and so
forth. In the case of Roshairee Abdul Wahab v Mejar Mustafa Omar &
Ors, the court awarded aggravated damage to the victim as he was
made to suffer humiliation, loss of pride and self-esteem. Another
case to be looked upon is the case of Bisney v Swanston. In this case,
the plaintiff was awarded 250 pounds for aggravated damages as the
act of the defendant who parked his trailer in front of the plaintiff’s
coffee shop caused the plaintiff’s business to be adversely affected.

Injunction is an order by the court enjoining a person to do or

continues to do an act or restraining the commission of some
wrongful omission.20 The injunction is an additional remedy where it
may be obtain if the damages alone is not sufficient remedy and
normally apply or been use in torts of nuisance. There are several
classification of injunctions which are perpetual and interlocutory
injunction, Mandatory and prohibitive injunction and Quia timet
injunction.Perpetual or permanent injunctions granted by the court
after the termination of the trial when the rights of the parties have
been determined provide under section 51(2) Specific Relief Act.
These injunctions are final in nature. There are also cases where
injustice may be caused to the plaintiff if he has to await the trial of
the case. Hence, by the virtue of section 51(1) states that the court
has authority to grant the plaintiff with interlocutory injunction also
known as temporary injunction continue until a specific time or
hearing of the case further order as was held in the case of Nicholas
& Ors v Gan Realty Sdn Bhd. However, an application for
interlocutory injunction must first have the cause of action. A
prohibitive injunction granted by the court which the defendant is
forbidden to commit or continue the commission a tort while a
mandatory injunction is where the defendant is ordered to undo the
mischief act that he had done. The next classification of injunction is
Quia timet injunction where an injunction is granted to prevent a
threatened.Injunction may be sought or granted in respect of the
trespass, nuisance, infringement of copyright, or any publication of a
defamatory matter. Almost certainly an injunction is applicable for
every tort except assault and battery, false imprisonment and
malicious prosecution.

Specific restitution of property is falls under equitable remedies

under judicial remedies. Specific restitution of property will be
granted in the situations which money would be an insufficient relief
in order to be just The remedy of specific restitution of property is to
recover the plaintiff’s property before his right’s was violated. It
normally involves of conversion which is an act of a person who use
the benefit of the property of the real owner and deprive the owner’s
rights from enjoying the property without the owner’s consent or
trespass to land.

Chapter 7: Defences
(a) Consent- Volenti non fit injuria

Volenti non fit injuria is defined as the willingness on the part of

plaintiff to run the risk of injury as a result of defendant’s
conduct.In the case of Lee Geok Theng v. Ngee Tai Hoo & Anor, the
Court held that volenti non fit injuria simply means that to which a
man consents cannot be considered an injury. When raising the
defence, the defendant must plead that that the facts of which was
fully appraised had gave rise to the injury, the plaintiff understood
the risk of injury and the plaintiff voluntarily undertook to be
responsible for the risk. There are few elements to be fulfilled in order
raise this defence.

The first element is consent or assumption of risk. If the plaintiff

has an agreement with the defendant that the latter will not be liable
if he is negligent then this agreement will allow the defendant to raise
this defence successfully. Consent may be given expressly or
impliedly, inferred from conduct.If plaintiff clearly consents, then the
defence of consent applies. If however, his consent is not clearly
expressed but by conduct he has reasonably led defendant to believe
that he consents, then volenti non fit injuria applies. It was decided in
the case Freeman v Home office that there will be complete defence
if claimant consented expressly or impliedly. In this case, A prisoner
serving a life term claimed that psychoactive drugs were administered
forcibly to him by officials and further stated that even if he had
consented, his consent was not legally adequate because he was not
told the nature of the treatment or the risks involved. The court
rejected the claim of coercion and ruled that the plaintiff had
consented to the adminstration of drugs, since he had been informed
in broad terms of the purpose of the treatment.

The second element is the consent or assumption of risk must be

voluntary. This element was discussed in the case of Bowater v
Rowley Regis Corporation. In this case, he plaintiff was a cart driver
who was asked by the defendant’s foreman to drive a horse which
they both knew was liable to bolt. The plaintiff protested but later
took out the horse in obedience to the order. The horse was bolted
and the plaintiff was injured thereby. It was held that the defence of
Volenti Non Fit Injuria can’t be applied as because the first it was
master-servant relationship where the master knew the and have
knowledge about the risk involved in the act, and also the cart driver
didn’t give consent freely as he has to follow his masters order and
therefore the plaintiff’s claim was granted, and the defence failed.

The third element is full knowledge. The defendant must have

full knowledge of the nature and extent of the risk of injury. Mere
knowledge does not imply consent. This can be seen in the case of
Smith v Baker & Sons. In this case, despite the claimant was aware of
the danger of the job and got injured eventually, the claimant was
entitled to recover damages despite the defendant raised the defence
of volenti non fit injuria since he had not consented to lack of care.
Similar decision was given in the case of Dann v Hamilton. In this
case, The Claimant was injured when she was a willing passenger in
the car driven by the Mr Hamilton. He had been drinking and the car
was involved in a serious crash. In a claim for damages,the defendant
raised the defence of volenti non fit injuria in that in accepting the lift
knowing of his drunken condition,she had voluntarily accepted the
risk. The defence was unsuccessful and the claimant was entitled for
damages in this case.

Consent is a significant issue in the area of medical treatment as

any physical contact with a patient without his consent may be
deemed as battery. There are few cases to be looked upon which
dealt with consent in relation to medical treatment. The first case to
be looked upon is the case of Mallette v Schulman. In this case,a
doctor who performed blood transfusion on plaintiff who had
refused such treatment was held liable in battery even though the
treatment was done in order to preserve her life. However different
decision was given in the case of F v West Berkshire Health Authority.
In this case, the defendant who sterilized a mentally incompetent
women without her consent was not held liable and the court further
stated that doctors may operate on patients incapable of giving
consent, so long as the operation is carried out to save a life, ensure
improvement, or prevent physical or mental deterioration. Meanwhile
in the case of Chatterson v Gerson, the plaintiff decided to have an
operation blocking her sensory nerve. Her doctor did not inform her
of the risk that the operation could result in losing sensation in her
limbs, which happened to one of her legs. The plaintiff sued the
doctor under the tort of battery but failed since the court held that
the claimant’s consent was valid because she had consented to the
broad nature of the procedure. The court further stated a case in
which physicians may be sued for battery is when the procedure
consented to was completely different from the procedure carried
out to the claimant. In conclusion, If the patient is unconscious, and
especially where the patient may not be of sound mind, the courts
have held that the doctors would not be liable if the purpose of the
intended treatment was to save life and was in the best interest of the
patient. However in Re T (adult:refusal of medical treatment), the
court establishes that If a competent adult patient refuses medical
treatment, even though the refusal may lead to his death, the doctor
must abide by his wishes. If the doctor proceeds to perform a surgery
and the patient subsequently sues the doctor, he cannot raise the
defence of necessity in that he was trying to save the patient’s life

(b) Contributory negligence

Contributory negligence means that Plaintiff fails to use

reasonable care for the safety of himself or his property, which then
gives rise to his damage. It serves to reduce the amount of
compensation payable to the P in proportion to his own contribution.
In common law, contributory negligence is a complete defence. In UK
(Law Reform (Contributory Negligence) Act 1945 and Malaysia
(s.12(1) & s.12(6) of Civil Law Act 1956) , it serves as a partial defence.
The elements needed to be fulfilled to raise this defence are the
plaintiff’s injury results from the risk to which Plaintiff’s negligence
exposed him, plaintiff’s negligence contributed to his injury and there
was a fault or negligence on plaintiff. The first case to be looked upon
is the case of Jayes v IMI (Kynoch) Ltd. The plaintiff, an experienced
workman, was cleaning a machine when his hand was pulled into the
machine and he lost the tip of a finger.The plaintiff was held to have
been 100 per cent contributorily negligent after he admitted that
what he had done had been extremely foolish. In the case of Revill v
Newberry, A allotment owner shot some vandals as they were trying
to break into his she and he was partially liable as damages were
reduced for contributory negligence.

(c) Inevitable accident

When it comes to inevitable accident, the defence rests on the

defendant proving that the accident occurred despite his having
taken reasonable precautions at the material time to avoid it.This
defence is no longer useful in England but in Malaysia it is still raised
particularly in negligence cases.In negligence, if it can be shown that
the accident could not have been avoided by the exercise of
reasonable care, then that amounts to a claim that the behaviour was
not negligence.

There are several cases to be looked upon. The first case is

Stanley v Powell. In this case, the the defendant fired at a pheasant
however one of his pellets glanced off a tree and accidentally
wounded the plaintiff. The jury held that the defendant had not been
negligent. The second case to be looked upon is the case of National
Coal Board v Evans. In this case, the plaintiffs placed an electric cable
under certain land. A firm of contractors employed by the landowners
to excavate a trench in the land caused damage to the cable.The
defendants were not held liable as they had no knowledge of the
cable and it was accident.
(d) Private defence

Private defence is a reasonable defence of oneself, of one’s

property, and of those whom one is bound to protect negatives any
liability in tort. Sometimes this regarded as a species of self-help.
Private defence is allowed “not for the redress of injuries but for their
prevention”. There are several types of private defence.

The first type of private defence is self defence. This defence is

relevant in a case on trespass to person such as assault, battery or
false imprisonment. When a person is being attacked, he must take
reasonable steps to defend himself, especially in situations where he
does not have the time or opportunity to get help. All persons have
the right to defend themselves against any violence that is prohibited
by law. The first case to be looked upon is the case of Anonymous
case. In this case, the court held that When a man strikes at another,
within a distance capable of the latter being struck, nature prompts
the party threatened to resist it and he is justified in using such a
degree of force as will prevent a repetition. The second case to be
looked upon is the case of Cockroft v Smith. In this case, a court clerk,
in a scuffle, ran his fingers towards the defendant’s eyes, who bit off
plaintiff’s forefinger. The court held that self defence must occur and
further stated that there must be both an honest belief and
reasonableness for self defence to be used.

The second type of defence is defence of another. This is an

extension of the scope of self defence. The general rule is a person
may act in order to defend his or her children, wife or husband and
other members of his or her family.A servant may act in the defence
of his master and vice versa .The use of force must be reasonable and
proportionate in the circumstances. It was established in the case of
Barfoot v Reynolds that in order to entitle a servant to justify the
defence of his master, he must show that his interference was
necessary.

The third type is defence of property. A person is justified in

using reasonable force in order to defend his property, be it land or
other goods.The defence may be raised by a person who has either
possession in fact or the right to immediate possession, as against a
trespasser. The first case to be looked upon is the case of Cresswell v
Sirl. In this case, the defendant shot and killed the plaintiff’s dog. The
plaintiff claimed damages for trespass to property, the property being
the dog. The defence was that the defendant was justified in killing
the dog because it was threatening his sheep. The court held that the
defendant’s action was justified since what he did was in protection
of his property

(e)Necessity

Necessity is relevant to all form of intentional torts. The basis of

necessity is it is a a mixture of charity, the maintenance of the public
good and self-protection and it is probably limited to cases involving
an urgent situation of imminent peril. There are two types of
necessity which are private necessity and public necessity.

When it comes to private necessity, the effect is that the

defendant’s intentional act of trespass to P is justified and necessary
to prevent greater damage to himself or to another.The defence
operates to completely absolve defendant from any liability
whatsoever on condition that the act was not as a result of D’s own
negligence. This can be seen in the case of F v West Berkshire Health
Authority. In this case, the defendant who sterilized a mentally
incompetent women without her consent was not held liable and the
court further stated that doctors may operate on patients incapable
of giving consent, so long as the operation is carried out to save a
life, ensure improvement, or prevent physical or mental deterioration.
Another case to be looked upon is the case of Leigh v Gladstone. In
this case, plaintiff was arrested and imprisoned. She went on a hunger
strike and in order to save her life, the prison wardens force-fed her.
Plaintiff claimed for battery but the court held that there is no battery.
Meanwhile in Re T (adult:refusal of medical treatment), the court
establishes that If a competent adult patient refuses medical
treatment, even though the refusal may lead to his death, the doctor
must abide by his wishes. If the doctor proceeds to perform a surgery
and the patient subsequently sues the doctor, he cannot raise the
defence of necessity in that he was trying to save the patient’s life.

Public necessity is used when the defendant act in defence of his

country or community. The defence of either private or public
necessity will only be allowed when there exists actual danger and D’s
action is reasonably necessary in the circumstances. This can be seen
in the case of Dewey v White. In this case, the defendant pulled down
a house in order to prevent fire from spreading to other property. The
owner of the house didn’t succeed in action for damages as it was
held the defendant was motivated by necessity.

(f) Other defences

(i) Discipline by schoolteachers

- Common Law perception is a headmaster and a school teacher had

the right to use reasonable force in order to discipline the pupils
under their tutelage. In Ryan v Fildes, a teacher hit a boy on his ear,
causing him to suffer some deafness. The court said the teacher's
action "exceeded reasonable and proper punishment"

(ii) Statutory authority

- A statute may absolve defendant’s liability subject to certain

requirements being fulfilled.
(iii) Ex turpi causa non oritur actio

The latin maxim ex turpi causa non oritur actio refers to the fact
that no action may be founded on illegal or immoral conduct.Where
the maxim of ex turpi causa is successfully applied it acts as a
complete bar on recovery. It is often referred to as the illegality
defence, although it extends beyond illegal conduct to immoral
conduct.One of the most glaring points of this defence is that it
allows the defendant to escape his liability even though he is guilty of
an unlawful act.

In the case of Holman v. Johnson,the judge stated that this

defence is applied to prevent the plaintiff from getting any benefit
from an illegal act. Thus this defence is not applied in favour of the
defendant but instead, it is applied to prevent such a plaintiff from
taking advantage of the illegal act committed by him. In the case of
Walsh v Trebilcock, the court held that ex turpi causa is a
well-founded legal principle and that the Court should not enforce an
illegal contract or any obligation which arises out of an illegal act.
Even if the defendant as not pleaded this defence but from the
evidence in the case it is clearly proved that the act of the plaintiff
was illegal then the court cannot allow the suit of the plaintiff to
succeed.

There are 2 essential elements in the defence of ex turpi causa

which are the suit is brought by the plaintiff for the damage caused
by the defendant and the defendant is fully responsible for such
damage and the actions of the plaintiff have to be in a specific course
of action which is illegal.