SEMESTER: JAN-JUN 2023

LAW OF TORTS

Answer all the questions.

QUESTION 1

(a) Explain THREE (3) differences between assault and battery. (10 marks)

The first difference between assault and battery is the consent of both parties. In assault, the
issue of consent does not arise meanwhile the defendant’s act is done without the plaintiff’s
consent in tort of battery.

Next, in the element of assault, the plaintiff will experience reasonable apprehension of a force
upon his person. The reasonable apprehension of a force can be determined by the objective
test when the plaintiff feels that the force would be inflicted upon him. While in the element of
battery, there will be a physical contact between the defendant and the plaintiff.There must be
some physical contact between the defendant and the plaintiff such as their body or clothes

The last difference between assault and battery is assault is concerned with the protection of a
person’s mental well-being against the unlawful act of another meanwhile battery protects one
from physical contact, be it violent or not, as long as it is an unnecessary and unauthorized act

Direct Question

Intro
Def. trespass to person

Law

1) def.
2) aim
3) consent

Conclusion

State- paragraph
Explain- essay
 (b) Vee went to Tasty Restaurant and bought a cheeseburger. She opened the wrapper of the
cheeseburger and took a bite of it. As she was putting the cheeseburger on her plate, she saw a
dead cockroach inside the cheeseburger. She immediately left the restaurant. Soon after that,
Vee fell ill and had vomiting and diarrhea.

Advise Vee on her legal action against Tasty Restaurant under the law of tort. (20 marks)

Issue

Whether Vee can take legal action against the Tasty Restaurant under tort of negligence

Law

Negligence is breach of legal duty to take care which results in damage, undesired by the
Defendant to Plaintiff. There are three elements required to establish tort of negligence which
are the defendant is under a legal duty of care to the plaintiff, there has been a breach of duty to
take care by the defendant and the plaintiff has suffered damages.

The test that can be used to determine whether the defendant has a duty of care is by using the
Neighbour Principle. This can be clearly seen in the case of Donoghue v Stevenson [1932]. The
defendant, a ginger-beer manufacturer, had sold ginger-beer in opaque bottles to a retailer. A
friend of the plaintiff had purchased the ginger-beer from the retailer. The plaintiff consumed half
and poured the remainder into a glass and found a decomposed snail in it. As the bottle was
opaque, the plaintiff could not see the snail earlier. As a result, the plaintiff becomes ill. The
court held that the defendant as the manufacturer of the ginger-beer owned a duty of care to the
plaintiff as the customer. The duty included ensuring that the drink did not contain any noxious
substances, which was likely to cause injury to anyone drinking it. It is not important that the
defendant did not know the plaintiff, as long as the plaintiff belonged to one of the classes within
the area of foreseeable injury.

There will be no negligence if the defendant did not breach his duty of care to the plaintiff.
Breach occurs when the defendant does something that is perceived to be below the minimum
standard of care required of him, which is measured through the standard of a reasonable man.
The test to determine whether there has been a breach is the Reasonable Man Test. The
conduct of a reasonable man is subject to the concept of risk. This concept is determined by
looking at four factors which are magnitude of risk, practicability or cost of the object to be
attained and general an approved practice. This can be seen in the case of Government of
Malaysia & Ors v Jumat bin Mahmud & Anor [1977]. The Federal Court held that in considering
whether the defendants were in breach of their duty of care it was necessary to consider
whether the risks of the injury to the plaintiff was reasonably foreseeable.

Assuming that it was, the next question was whether the defendants had taken reasonable
steps to protect the plaintiff against those risks.Then, even though the defendant had breached
his duty of care, the plaintiff can only claim negligence if he can prove that he had suffered
damages because of that breach. But-For Test & Causation in Law

Based on the current case, Tasty Restaurant has a duty of care towards Vee because based on
the Neighbour Principle, Tasty Restaurant is the seller and Vee is the customer. Tasty
Restaurant need to make sure the food served by them is in a good condition and do not
contain any unwanted insects to make sure the customer does not get food poisoning. Tasty
Restaurant had breach their duty of care because the cheseeburger served by them contained
dead cockroach. Vee had suffered damages because of the breached as she fell ill and had
vomiting and diarrhoea.

Therefore, Vee can take legal action against Tasty Restaurant because Tasty Restaurant is
reliable for negligence as it fulfill all of the elements

PBQ

Identify area of law

Issue
Whether Vee can claim legal action against Tasty Restaurant under tort of negligence