DAMAGES

a. Introduction
- Definition of damages (Ong Ah Loong case)
- Nature of damages:
1. Can only be claimed once (+ exceptions)
2. Restitutio in integrum
- Types of damages (exemplary, aggravated, nominal, contemptuous, special & general)

b. Personal Injury claim (S28A CLA 1956)

1. Special damages
(a) Loss of earnings
Calculation: (nett earnings) x (duration from accident to trial)
(b) Nursing care
(c) Medical Expenses
(d) Transport
(e) Conventional sum

2. General damages
(a) Loss of future earnings (note what are non-deductibles)
Calculation: multiplicand x multiplier
Multiplicand: annual sum of nett earning
Multiplier: below 30 = 16; above 30 = (60-age) ÷ 2
(b) Loss of earning capacity (can only claim either LFE or LEC, cannot claim both)
(c) Pain and suffering (conscious/not?)
(d) Loss of amenities (depends on lifestyle pre-accident)
(e) Loss of consortium (for husband claiming for wife only)

c. Fatal accident claim (S7 & S8)

Section 7: Dependency claims
- Who are dependents? s7(2)
- What is the limitation period? s7(5)
Special damages:
(a) Expenses
(b) Bereavement
(c) Loss of services
(d) Loss of financial support (Calculation: similar to LoE, but only the support sum)
General damages:
- Loss of future financial support (Calculation: similar to LFE, but support sum)

Section 8: Estate claim

- Special damages
Out-of-pocket expenses, loss of earnings, funeral expenses
- General damages:
Pain and suffering, loss of amenities

d. Damage to property
- Refer to cases: Liesbosch Dredger, Liew Choi Hung (f)
 e. Mitigation of damage: Yoong Leok Kee Corporation Sdn Bhd case

OCCUPIER’S LIABILITY
a. Introduction
- Definition
- What law does Malaysia follow? Common Law of England.
- 4 classes of entrants: contractual, invitee, licensee, trespasser

b. Whether occupier is liable towards W? (if W is a contractual entrant)

- Who is an occupier? What is the premise?
- What is a contractual entrant? Why is W a contractual entrant?
- Is W a main purpose or ancillary purpose entrant?
- What is the duty of occupier towards such entrant? Is the duty discharged?
- Is occupier liable towards W?

c. Whether occupier is liable towards X? (if X is an invitee)

- What is an invitee? Why is X an invitee?
- What is the duty of occupier towards invitee?
- What is unusual danger?
- Is occupier liable towards X?

d. Whether occupier is liable towards Y? (if Y is a licensee)

- What is a licensee? Why is Y a licensee?
- What is the duty of occupier towards licensee?
- What is concealed danger?
- Is occupier liable towards Y?

e. Whether occupier is liable towards Z? (If Z is a trespasser)

- What is a trespasser? Why is Z a trespasser?
- What is the duty of occupier towards trespasser?
- What is common humanity?
- Is occupier liable towards Z?

f. Whether occupier is liable towards Q? (If Q is a child)

- General principle: rules above apply equally to child, but there is judicial sympathy
for children & also judicial impatience with parents
- Duty of occupier towards children if:
a. Children as licensee: precaution for danger obvious to adult but concealed to a
child
b. Children as trespasser: mitigate substantial likelihood and allurements
- What constitutes allurement?
- What is the duty of the parents? Has it been discharged?
- Is occupier liable towards Q?
TRESPASS TO PERSON
- Definition of trespass (Letang v Cooper)
- 3 types of trespass: assault, battery, false imprisonment

1. Assault
- Definition
- Elements:
(1) Act consist of gesture/preparation to commit battery or body harm
Observe: do words constitute gesture/preparation?
(2) Reasonable fear of imminent harm
(3) Ability to carry out threat

2. Battery
- Definition
- Elements:
(1) Intentional act
(2) Direct force
(3) Without lawful justification

● Defences for assault and battery:

1. Consent
2. Self-defence
(if policemen, distinguish between Danning bin Laja & Mahmood case)

3. False imprisonment
- Definition
- Elements:
(1) Intentional restraint
(2) Restraint must be complete (no reasonable means to escape)
Note: knowledge of the pff of the imprisonment is not essential

● Defences for false imprisonment:

1. Reasonable condition
2. Lawful arrest 🡪 only for seizable offences
a. By private citizen: s27(1) of Criminal Procedure Code
b. By police officer: s23(1) of Criminal Procedure Code
Must produce warrant for arrest.
Duty of arrester: s26 of Criminal Procedure Code
● Additionally,
Case of Dato’ Seri Khalid ≠ false imprisonment because it was a consequence of a
judicial act by order of magistrate.
TRESPASS TO LAND
- Definition
- Objective
- Applicable law: English common law

Essential elements:
1. Whether person has relevant possession
- Types of possession:
a. Mere possession: cannot bring action
b. Possession in fact
c. Possession in law
- Possession in law > possession in fact
i.e. owner > tenant
- Squatters: no possession
- TOL holder: has possession when they are a holder

2. Intention
- Basely v Clarkson
- MBF Property Services case

3. Interference
- Forms of interference:
a. Trespass on highway
b. Trespass to subsoil
c. Trespass to airspace
d. Trespass ab initio
e. Lawful seizures
f. Continuing trespass

4. Land
- Section 5 of National Land Code defined land

● Defences for trespass to land:

a. License
Can be bare or contractual
b. Justification by law
c. Necessity

● Remedies:
a. Damages
b. Re-entry
c. Action for recovery of land
d. Mesne profits
TRESPASS TO GOODS
- Definition

1. Whether there is possession?

- At least possession in fact
- What about the case of finding?
Has possession, until

2. Whether there is interference?

- What is the action of pff?
Moving from one place to another, holding on to goods for > 1 day
- If it becomes more serious, it turns into conversion

3. Whether there is conversion?

- Treating the goods as if he is the owner

4. Whether there was an involuntary bailee?