TORTIOUS

LIABILITY

Dr. Nur IzieAdiana binti Abidin

 • wrongful acts/omissions

• civil wrong independent of contract

• liability arising from a breach of legal duty owed to person

generally

What is • breach of a duty primarily fixed by law

• its breach is redressable by an action for unliquidated damages

Tort? • redress of wrongs or injuries by means of civil actions

Why? • redress may take in the form of damages (monetary)

• to share the burden of victim’s loss

• compensation to teach wrongdoer to be careful and

responsible in future
DEFINITION & SCOPE “TORT”

“TORT” is very similar to “WRONG”

Former term is not intended to include any

and all wrongful acts done by one person to
the detriment of another but only those for
which the victim may demand legal redress.

Tort may be committed intentionally or

unintentionally and with or without force.
 IMPORTANT OF TORT CONCEPTS
• tortious liability – something not allowed or leave
something required by law

• intention – knows the consequences, foreseeable

to give rise to some infringement to the victims &
tested by objective test

• motive – irrelevant

• damage and damages : physical injuries, damage

to property, damage to reputation and economic
loss
• unliquidated – unquantifiable (pain etc)
• liquidated – specific damage (loss earning)
 Torts

• Property torts - Include all injuries to

property, be it (realty or personality)

• Personal torts – embracing all harms

to the victim’s reputation, feelings or
physical well-being
• Injuries

• Criminal- ????
 Torts, crime and contract
Tort and Crime
• The same act may be both a tort and a crime.
• The distinction between Crime and Tort
• Serious wrongs are called crimes, and are punished by the State
• Lesser wrongs are called torts and are not punished by the State but the injured party must
sue in order to be paid damages by the offender

Tort and contract

• Where two parties contract with each other, it was once the law that this precluded a parallel
duty in tort.
• Later duties in tort could exist irrespective of what the parties had agreed.
• Case: Batty v Metropolitan Realisation Ltd(1978). A developer was held liable in breach of
contract for having sold a house, which is unsuitable for habitation to the plaintiff as it was
built at the top of a potentially unstable slope. Is the plaintiff entitled to have judgement
entered in tort?
Torts, crime and contract

Tort and contract

Answer from the case:

Lord Judge Megaw in his statement indicated
that:
‘ In my judgement, the plaintiffs were entitled to
have judgement entered in their favour on the
basis of tortious liability as well as on breach
of contract. I have no doubt that it was the duty
of care owed to the plaintiffs to examine with
reasonable care of the land, which in this case
would include adjoining land, in order to see
whether the site was one on which a house fit
for habitation could safely be built. It was a duty
owed to prospective buyers of the house’.
Torts, crime and contract

Tort and contract

Case: Greater Nottingham v Cementation

(1988)

A piling sub-contractor had caused damage to

an adjoining property, and this has resulted in
losses and claims as between the main
contractor and the employer. Could employer
claim losses against sub-contractor where
sub-contractor had been required to enter into
casual direct warranty covering design but not
for the execution of the work?

Court held: Court of Appeal held that the

contract made to exclude the existence of a
duty in tort.
 BUILDER’S ACTIVITIES
When a contractor takes possession of a site for the
purpose of carrying out his contract, he becomes the
legal occupier of the property in exactly the same way as
someone renting a house.

These responsibilities can be summarized as

owing any visitor
lawfully on the premises,
a duty to take reasonable care so that the visitor will be
reasonably safe in using the premises for the purpose for which
he is permitted or invited to be there.
Scope of Tort
1. Trespass
3. Nuisance
- Person (assault, battery and
false imprisonment)
- Goods
- Land 4. Strict Liability
ie: keeping wild animals, 5. Defamation
using explosives, or
2. Negligence making defective products
- Ordinary
- Professional
 TRESPASS ..
TRESPASS TO
PERSON
ASSAULT, BATTERY &
FALSE IMPRISONMENT

INTERFERENCE
ELEMENTS WITH GOODS
•A +VE ACT TRESPASS,
•A DIRECT ACT OF THE CONVERSION &
DEF DETINUE
•ACTIONABLE PER SE

TRESPASS
TO LAND

Actionable Per se: Actions that do not require the allegation or proof of additional facts to
constitute a cause of action nor any allegation or proof that damages were suffered. An
example, in libel or slander, is a statement that obviously damages a person’s reputation that
does not require any reference to circumstances or facts to understand its defamatory
meaning. In such actions, the plaintiff does not have to prove that he suffered any damages in
order to have a cause of action.
TRESPASS TO PERSON
 ASSAULT
• Direct act that cause
apprehension. It concerns
with protection of a person’s
mental

 BATTERY
• Intentional and direct
application of force

 FALSE IMPRISONMENT
– restriction of a person’s movement
ASSAULT an intentional and direct act of defendant which causes the
plaintiff reasonable apprehension of the immediate infliction of a force onto his
person

MENTAL STATE OF DEFENDANT

N
Y

THE EFFECT ON THE PLAINTIFF

N
Y

CAPABILITY OF CARRYING OUT THE THREAT NO ASSAULT

Y N

BODILY MOVEMENT
N
Y
WAIT A MINUTE..
WHAT ABOUT ASSAULT
WORDS?
BATTERY an intentional and direct application of force to
another person without that person’s consent

MENTAL STATE OF DEFENDANT

N
Y
THE DEF’S ACT WAS UNDER HIS CONTROL
N
Y
CONTACT NO BATTERY
N
Y
WITHOUT PLAINTIFF CONSENT
N
Y
BATTERY
Assault vs Battery
ELEMENTS
ASSAULT BATTERY

 mental state of the defendant • the mental state of the

defendant
 the effect on plaintiff • the def’s act was under his
 capability to carry out the control
threat • contact
 bodily movement • without plaintiff consent
 words?
DIFFERENCES
Assault
 The issue of consent does not
arise
 The plaintiff experiences
reasonable apprehension of a
force upon his person
 The tort protects one from the
threat of any physical violence,
as well as ‘maintain’ a person’s
well-being
Battery
 The defendant’s act is done
without the plaintiff’s consent
 There is physical contact
between the defendant and the
plaintiff
 The tort protects one from
physical contact, be it violent or
not as long as it is an
unnecessary and unauthorised
contact.
FALSE IMPRISONMENT
• intention is prerequisite
• the restraint must be a direct
consequences of the
defendant’s act
• the restraint must be complete
• what about arrest by
authority? – refer to Federal
Constitution article 5 (1), (3) &
(4)
FALSE IMPRISONMENT restriction of a person’s freedom of
movement

MENTAL STATE OF
DEFENDANT N

Y
THE RESTRAINT MUST BE A DIRECT N
CONSEQUENCES OF THE DEF’S ACT

Y NO FAL IMP

THE RESTRAINT MUST BE N

COMPLETE
Let me go!!! Let
me go..
Y
Inhumane
human!!!!!!!!!!
FALSE IMPRISONMENT
Wa.. Wa…
Lets solve the problem: Case 1
• Ali touches Aini’s hair during their first
date. Aini just sat quietly without any
complaints. They have been seeing
each other for several months. A few
months later Aini complaints that she
would like to take legal action against
Ali.

• How sort of action can be taken by

Aini?

• What can Ali do?

• Whether there is any ground for the

legal action?
TRESPASS/ INTEREFERENCE WITH
GOODS TRESPASS, CONVERSION AND DETINUE

•MENTAL STATE OF
CONVERSION- DEALING DEFENDANT
WITH GOODS IN A MANNER •INTERFERENCE MUST
INCONSISTENT WITH THE AMOUNT TO A DENIAL
RIGHT OF TRUE OWNER OR A DEPRIVATION OF
THE OWNERS’ RIGHT
•INTERFERENCE OR
INCONSISTENT
TRESPASS TO GOODS DEALING
•A WRONGFUL AND DIRECT
INTERFERENCE WITH GOODS -TAKING POSSESSION
THAT ARE IN THE POSSESSION -ABUSING POSSESSION
OF ANOTHER

DETINUE –ILLEGAL
POSSESSION OF
•MENTAL STATE
OF DEFENDANT GOODS DUE
•INTERFERENCE WITHDRAWAL
CONSENT

•DEMAND &
REFUSAL
•IMMEDIATE RIGHT
TO POSSESS
 TRESPASS TO GOODS
• wrongful and direct interferences with goods that
are possession of another
• conversion – dealing with goods in a manner
inconsistent with the right of true owner.
• detinue – illegal possession of goods due to
withdrawal consents by the owner.
 TRESPASS TO GOODS
Element for Conversion
a) Mental state of defendant: the act must be voluntary and therefore done intentionally
b) Interference or inconsistence dealing such as:
- Taking possession
- Abusing possession where defendant initially has possession of the goods but he subsequently does an
act that constitutes a conversion. ie: the car left as mechanic shop but been used to do improper
business or contrary to law.
- The interference or inconsistent dealing must amount to a denial of the owner’s right to have
possession.
TRESPASS TO GOODS
Elements of Detinue
a) Demand and refusal – the must be demand from the plaintiff for the good to be return.
Subsequent there should be refusal from defendant

Case PKNS v Teo Kai Huat Building Contractor. Defendant is PKNS, TKH is sub-contractor to Pribumi
(main cont to PKNS). Contract PKNS with main con and sub-con terminated. PKNS refuse the sub-con right
to remove machinery. After one and a half year, the machine could not be longer use. Court held detinue
exist. Plaintiff was entitles to obtain damages, the value of machinery and equipment, fall in value for the
period between the wrongful detention and the date of judgement and loss of hire at the market price.

b) Immediate right to possess

- The plaintiff must have an immediate right to possess the goods. In order to succeed in detinue, it is
essential for the plaintiff to show that he has the right to immediate possession at the time of commencing
action.
CONVERSION VS DETINUE
Conversion Detinue
1
There must be an intentional dealing Negligence is sufficient
2
Only one wrongful act arises The tort arises at the point where the
defendant refuses to return the goods
until such time when the goods are
returned or when the judgement is
given
3
The person who sues must have either the The person suing must have the right
right to immediate possession or actual to immediate possession
possession
4
The act involves the denial of the defendant’s There must be a wrongful detention.
right over the goods i.e. there must have been a demand
and refusal
5
The amount of damages is the value of the The amount of damages is the value of
goods at the time the conversion occurs the goods at the date of judgement and
together with any consequential damage any damages in respect of the
flowing from the conversion which is not too wrongful detention between the date of
remote. the refusal and the date of the actual
return or the date of payment of the
value of the goods.
TRESPASS
TO LAND
 TRESPASS TO LAND

• WHAT IS LAND? Sec 5 of National Land Code

• Right ? – Sec 44 (1)(a) of NLC –

Elements:
a. Intention, Acts of entry done voluntarily &
interference is foreseeable as due to defendant’s act
b. Interference must be direct.
 WHAT IS LAND??
As Gray & Symes (Real Property
and Real People, London:
Butterworths, 1981)

“Land is far more than merely

the physical soil – the ‘corporeal
hereditament’ – more than ‘the
physical clods of earth which
make up the surface layer of land,
mines and minerals beneath the
surface, and buildings or parts of
buildings erected on the surface’
Liability of Landowners/Occupier

The landowner must exercise reasonable care for

the protection of those who are lawfully in the
immediate vicinity (e.g. persons using a nearby
public highway)
The owner’s duty of care – vary with the
characterization of the visitor
Licensee
Invitee
Trespasser (Is this visitor?)
 LICENSEE
Is a tolerated intruder
Is distinguished from a trespasser by reason of the fact
that he has the owner’s permission to be on the premises.
E.g. the social guest in the home of his host
E.g. firemen and policemen who enter upon private
property in the discharge of their duty are typically
treated as licensees.
 INVITEE
Also known as business visitor
Is one who by invitation has entered
upon the premises for some business
purpose of mutual interest to him and
the owner.
E.g. the store customer affords an
everyday illustration;
the customer is nonetheless an invitee
though he buys nothing and indeed,
had no real intention of making a
purchase.
 TRESPASSER
One who comes upon another’s property without either :
1) the consent of the occupier or
2) the legal privilege to enter irrespective of the question of
express or implied
consent
3)The trespass occurs when there exists an intention to trespass,
the act of entry is done voluntarily and the interference to the
plaintiff’s land is foreseeable as a consequence of the defendant’s
act.
4) Entering or placing objects on the plaintiff’s land. Trespass
land is therefore completed once a person wrongfully entered onto
land in the possession of another even though no damage has
been done
5)Trespass – anyone who in some fashion interferes with your
possessory rights in property or enters upon your land without
permission or privilege commits a trespass and is potentially
liable for at least nominal damages even though his motive may
have been beyond reproach.
 TRESPASS TO LAND
ENTERING WITHOUT
PERMISSION/WRONGLY
ENTERED

ENTERING OR
REMAINING ON THE
PLACING AN TREPASS-LAND
OBJECT ON THE PLAINTIFF’S LAND
PLAINTIFF’S LAND

INTERFERENCE TO AIRSPACE

The trespass occurs when there exists an intention to trespass, the act of entry is
done voluntarily and the interference to the plaintiff’s land is foreseeable as a
consequence of the defendant’s act.
 TRESPASSER
Interference may occur in a variety of ways :

Remaining on the plaintiff’s land. The trespass applies only the failure to
remove things that have been wrongfully left on the land.

A licensee whose license has been terminated also becomes a

trespasser and is liable for damages if he continues to stay on the land.

Entering or placing objects on the plaintiff’s land (dumping rubbish)

Trespass land is therefore completed once a person wrongfully entered

onto land in the possession of another even though no damage has been
done
 Trespass to air space
• Trespass to air space is not
committed unless it is at a
height that interferes with
the claimant’s ordinary
use of property –
reasonable height
• Swinging crane across the
land is considered as
trespass (Anchor
Brewhouse Developments
Ltd)
• Civil Aviation Act – no
action for the flight of an
air craft..
• Trespass subject limited by
rules and regulation related to
mineral extraction in each
country
• Mining gold?.. Extracting by
hand..
• Is it permitted or not?
• Blocking highway
• Remaining stationary on it
for longer that it is
reasonable
• Interfere unlawfully with
the rights of the person
who owns the subsoil
beneath a highway
• Letting the animals
(chicken, cow) onto the
highway
 Who can claim..
• A person who has possession over the land may
institute an action for trespass.
Types of possession are :
Possession in fact and jus terti (Exists when plaintiff has a right to use
the land as well as the ability to exclude others. Failure to furnish proof of actual possession may
strengthen the claim of trespassing. (Senik v Hassan & Anor)

• Possession in accordance with the law (Allows the holder

to exclude all other claims, in his own name, and usually the holder is the landowner.
(Delaney v Smith)

The right to immediate possession (This means that the right

to continue having possession, or to have possession if the person does not have possession at that
time)

Possession under Temporary Occupation License

 Turner vs Thorne. A
package of material was
placed at the plaintiff’s land
due to wrong delivery.

Mc Donald vs Associated
Fuels. The defendant sprays
carbon monoxide into
SAMPLE OF plaintiff’s accommodation.

CASES – Southport Corporation vs

Esso Petroleum Ltd. The
TRESPASS TO disposal of oil to the sea by
the defendant and eventually
LAND the disposal of oil brought by
the wind and come into the
plaintiff’s area.

Westripp vs Baldock. The

defendant put debris against
the wall of the plaintiff’s house.
TRESPASS TO LAND – BUILDING
WORK

Trespass is one of the contractor’s civil

liabilities outside those embodied in his
building contract are mainly concerned
with the law of tort.
Trespass to land is the most commonly
understood especially during the building
work takes place.
It will arise by the execution of work. This
may take place:
On the surface of the land
Under the surface
In the air space above the surface
Common form of Trespass in
Construction
• Walking across the land of someone else, this must be avoided by the workmen engaged
on the building unless a prior agreement has been reached.
• This can easily arise where the new building is on or very near to the boundary and the
workman steps over the fence to gain access of his work.
There are a number of trespass to land which can occur when the building is on the
boundary.
• E.g. The strip foundations. The wall must be built along the centre line of a strip
foundation, but if the face of the wall is the boundary, the projecting part of the foundation
is over the boundary and is trespassing on to the adjoining land.
• Similarly, if the wall is finished with the projecting eaves or coping, this also would be a
trespass.
• Furthermore, if to build the wall, normal scaffolding is erected, this must be on the land of
the adjoining owner and would constitute a trespass unless it was with his agreement.
• Trespass into the air space above the land also occurs when a tower crane is carelessly
sited or used so that its rotating jib passes over another person’s air space
 Segar Restu (M) Sdn Bhd v Wong Kai Chuan & Anor, Wong Kai Chuan and the rest of the defendants
unlawfully erected a bungalow and a factory on a piece of land that belonged to Segar Restu (they even
planted 56 durian trees on it!). Segar Restu applied for summary judgment against them and the court
allowed the application, stating that based on the facts of the case, Wong Kai Chuan and the rest of the
defendants had no excuse to justify their action and was clearly committing a trespass onto Segar
Restu’s land.

In Wong See Kui v Hong Hin Tin Mining Co, Wong See Kui was granted a temporary occupation license
to operate a fish pond on a piece of land. The defendant, Hong Hin Tin Mining, was concurrently
granted a mining license on a nearby piece of land and one of the conditions of the license was that
the tailings from the land should be dump through/ on Wong See Kui’s land. Wong See Kui sued for
trespass, claiming that Hong Hin Tin Mining had committed trespass when they dump the tailing onto
his land, preventing him from enjoying the use of his land (i.e. growing fishes for commercial
purposes). While the court held that on face value the act of dumping the tailings is considered a
trespass, the court’s hand is nonetheless tied as Hong Hin Tin Mining was also granted a concurrent
use to Wong See Kui’s land by the Mining Department (the court, however, pointed out that Wong See
Kui can sue for damages under the Mining Enactment).

In Tenaga Nasional Bhd v Bukit Lenang Development Sdn Bhd, Bukit Lenang sued TNB for trespassing
when they install electric poles and meters for the squatters in their land. TNB argued that they are
obligated to do so under the Electricity Supply Act. The court held in favour of Bukit Lenang, argued
that TNB is only obligated to supply electricity to lawful occupants of the land.
Previously, photos and
videos of the two
individuals from the top
of the skyscraper went
viral on social media.

The Russian woman

involved was also said to
have revealed how she
trespassed into the
tower on social media.
For the third charge, the man
was charged with house-
trespass. The widower with a
child committed the offence at
the same house between Apr 17
and Apr 18 at 10pm and 9am.

The accused was charged under

Section 448 of the Penal Code
for house trespass which
carries a jail term of up to three
years or a fine up to RM5,000, or
both, upon conviction.
Overcome the Trespass

• The permanent offence caused by the incorrect design of

foundation eaves and other projections must be avoided at the
design stage.

• Aggravation caused by thoughtless trespass during the

construction period can easily be avoided by an advance meeting
with the adjoining owner to seek to obtain his agreement to the
proposed method of working. It does not impose any
responsibilities towards trespassers.

• although a special case would probably be made if a child

trespasser was injured due to the contractor’s negligence, but this
cannot be turned the other way round, permitting the builder to
leave parts of his site in a deliberately dangerous condition to deter
or trap trespassers.
 The Contractor should:

Display suitable notices such as :

Trespassers will be prosecuted
Warning – keep out, dangerous
Erect and maintain secure fences to deter possible trespassers
Eliminate dangerous situations or make them safe :
Immobilize plant & vehicles
Fence or cover excavations
Remove or plank up ladders
Do not leave dangerous structures unsupported
 Defences to Intentional tort
When a plaintiff succeeds in tort against a defendant, the defendant may raise a defense.

Self-defence
- Relevant to trespass to person, assault, battery or false imprisonment.
- The questions that may be answered are; whether it is reasonable for the defendant to use violence in
defending himself and the level of violence employed must be proportionate to the plaintiff’s act.
- A person may also react in order to resists an unlawful arrest, provided of course, that the violence used
in resistance is reasonable and proportionate to the circumstances. If excessive force is against the
plaintiff, intentional torts may be established.
- Case: Cresswell vs Sirl: Defendant shoots and kills the plaintiff’s sheep who tries to attack him. The
court held the defendant has the right to protect himself
- In construction, this rarely happens or never

Defence of Another
- This is related to trespass to person
- The general order is that people may act in order to defend his children, wife or other member of family.
The use of force thus may again reasonable and proportionate.
 Defences to Intentional tort
When a plaintiff succeeds in tort against a defendant, the defendant may raise a defence.

Defence of Property
- Reasonable force may be used to oust or prevent trespasser.
- In order to succeed the appeal under this ground, the defendant must show that a reasonable man
would have reacted in the same way, that there is no other way to save the situation.

Contributory Negligence
- Relevant to battery
- The victim contributes to some degree for the incident
- If a person was injured in part due to his/her own negligence (his/her negligence ‘contributed’ to the
accident), the injured party would not be entitled to collect any damages from another party
Defences to Intentional tort
When a plaintiff succeeds in tort against a defendant, the defendant may raise a defence.

Necessity

- They may only use the defence in an urgent situation of imminent peril.
- Private necessity: Leigh v Gladstone: the prisoner went on hunger strike, and was forced to fed her to
save her life by the prison warden. She sued for battery. The act of warden is a private necessity.
- Public necessity: it may use this when the defendant acts in the defence of his country or the public. It is
only allowed when there is actual danger and the defendant’s action is necessary.
- In construction: cutting a piece of machinery to remove a trapped worker, demolishing a building to avoid
a larger collapse

Incorrect facts-mistake
- The defendant’s actions were influenced by a wrong belief about facts, despite taking precautions.
- For example, a truck driver delivers rocks to the construction site of Rashid & Aziz Construction Sdn
Bhd. The rocks were mistakenly poured at a site near Rashid & Aziz because the lorry driver
misunderstood where they were supposed to be delivered.
- Rarely to happen in construction
 Defences to Intentional tort
When a plaintiff succeeds in tort against a defendant, the defendant may raise a defence.

Inevitable accident

- The defence rests on the defendant proving that the accident occurred despite his having taken reasonable
precautions to avoid it
- A nail fell from an upper floor in a construction site and hit a worker’s hanging wire, then bounced out of the site
and hit a car’s windshield on a nearby street. So of course the incident (broken car window) is an unavoidable
incident

Consent –volenti non-fit injuria

- The willingness of a plaintiff for a tort to be committed upon him or his property.
- Willingness on the part of the plaintiff to run the risk of injury as a result of the defendant’s conduct, which is
more relevant to negligence.
- Consent by the plaintiff must be given expressly or impliedly and must be given only after the plaintiff has been
fully informed of all the relevant risks.
- Example: watching a car race
- In construction: land owner (contractor) had allowed someone to enter into the site, if trespass happened, the
contractor could not claim for it
 Defences to Intentional tort
When a plaintiff succeeds in tort against a defendant, the defendant may raise a defence.

Discipline

- Discipline as a defence to an action raised in relation to children, and the defence may be raised by two
categories: by parent and schoolteachers

Lawful arrest
- Normally by parties involve in arresting wrongdoer.
- A private citizen would not be liable for false imprisonment if he detains a person who in his sight
commits non-bailable and seizable offences.

Statutory provision

- A statute may absolve the defendant’s liability subject to certain requirements being fulfilled
 Defences to International tort
When a plaintiff succeeds in tort against a defendant, the defendant may raise a defence.

Jus tertii

- This when the defendant contends that the plaintiff’s claim against him ought to fail on the ground that a
third party has a better right over the goods or land than the plaintiff himself.
- This is not applicable to trespasser.
- Right of a third party
- A tenant or bailee or another in possession of property, who pleads that the title is in some person other
than that person's landlord or bailor, is said to set up a jus tertii.

Force Majeure
For example, a big water storage tank was built and a powerful earthquake caused it to break, resulting in
the overflowing of the water used for testing its strength.

The defendant (contractor) cannot be blamed if there are plants or neighbouring properties near the
construction site that are damaged due to the overflow of water.
 Defences to International tort
When a plaintiff succeeds in tort against a defendant, the defendant may raise a defence.

Third party Act

negligence occurs not because of the fault or negligence of the defendant, but because of the actions of
another person (a third party) (whether he intended to commit treason or not), the defendant can defend
himself from the plaintiff's allegations by stating that the harm or negligence was caused by the actions of
the party third

Example: The defendant has made a water reservoir for his use. Then the water from the reservoir
overflowed and entered the groove used by the plaintiff. It was found that the water overflow occurred
because a third party had removed water from the water reservoir belonging to the third party and that
water entered the defendant’s reservoir. and this is what caused the overflow.
Thank you
https://www.youtube.com/
watch?v=XYk42M3JeIY