A) Define tort of Battery and discuss FOUR (4) of its elements (10 M)

INTRODUCTION

Battery is one of trespass to person which mean intentional torts by the defendant. In Letang v Cooper,
it was held that tort of trespass there must be intention at the time defendant does his act. Battery can
be defined as intentional and direct application of force to another person without person consent.
There are four elements of Battery.

BODY

First element of battery is defendant mental state. Defendant must apply force with intention. There is
no violence necessary, contact made by defendant towards body or cloth of plaintiff is sufficient to
establish tort of battery. This can be illustrated in case of Scott v Shepherd. A lighted squib was thrown
by the defendant into an open market area. Person A picked it up and threw it to Person B, who then
picked it up and threw it away. The squib hit the plaintiff, whereupon it bursts into flames. Court held
that defendant was liable even though his gesture didn’t directly affect the plaintiff. Person A and B
reacted for their safety and so they did not have intention to commit act.

Second element for battery is defendant act is under his control. The act of defendant must be
voluntarily done by defendant. This can be illustrated in case of Gibbons v Pepper. Defendant was riding
a horse when someone hit the horse from behind which causing the horse to bolt. Later, the horse
collided with plaintiff. It was held that the defendant was not liable as the act of horse bolting was
outside his control

Third element of battery is physical contact. There must need some touch or contact which can be
considered as hostile touching with body or cloth of plaintiff. This can be seen in case of Collins v
Wilcock. A police officer held a woman with intention of temporarily detaining her. Court held that the
contact was hostile as the police officer did not have the authority to detain her.

Fourth element of battery is without plaintiff consent. One cannot touch others without consent or any
unlawful justification. This can be Nash v Sheen. Plaintiff went to a hairdressing salon where defendant
used a tone rinse without obtaining the plaintiff consent first. Plaintiff unfortunately developed some
skin complications de to an adverse reaction to the tone rinse. Court held that consent given by plaintiff
doesn’t include tone rinse and its consequences. Therefore, battery was established.

CONCLUSION
Thus ,purpose of tort of battery is to protect plaintiff physical wellbeing.
During the school holidays, Zarul and Fahyoungie brought their children for a vacation in Balik
Pulau, Penang. They stayed at Batu Keras Hotel for three (3) days and two (2) nights. Their
children, Khai and Nana visited the swimming pool several times during their stay there. Upon
their return from the vacation, Khai and Nana were admitted to the hospital due to water
infection. Further investigation revealed that the maintenance staff at the hotel had failed to
apply the right amount of chemicals in the swimming pool, which resulted to a fungi infestation.
Zarul and Fahyoungie wish to take a legal action against Batu Keras Hotel for their staffs
negligence. Advise Zarul and Fahyoungie. (20 M)

INTRODUCTION

According to Winfield and Jolowicz, negligence is breach of duty to take care which result in damages
undesired by defendant to plaintiff. In the case of Bank Bumiputra Malaysia Bhd v Tetuan Wan Marican
Hamzah & Shaik & Lain-lain stated that cause of action for negligence arise on the date the loss is
suffered or damage exist. There are 3 element of negligence.

BODY

First element of negligence is duty of care. A person only liable for negligence if he is under a legal duty
to take care. Duty of care is an obligation or burden, imposed by law which requires a person to conform
to a certain standard of conduct. Test used to confirm whether defendant have duty of care towards
plaintiff is neighbour principle. Lord Atkin in the case of Donoghue and Stevenson, neighbour can be
defined as a person that closely and directly affected by an act. This can be illustrated in the case of
Donoghue v Stevenson, which defendant is a ginger beer manufacturer that sold his ginger beer in
opaque bottles to retailer. A friend of plaintiff had purchased ginger beer from retailer. Plaintiff consume
half of and pour remainder into glass and found decomposed snail. As the bottle was opaque , plaintiff
cant see the snail earlier which lead to illness suffered by plaintiff. Court held that defendant have the
duty to make sure drink do not contain any noxious substance.

Second element is breach duty of care. There is no negligence if defendant did not breach duty of care
to plaintiff. Breach occurs when defendant does something that perceived to be below minimum
standard of care required. Test to determine whether there has been a breach duty of care is reasonable
man test. Reasonable man is ordinary person which not expected to have any particular skill. Conduct or
reasonable subject into the concept of risk. This concept is determined by looking into 4 factor which is
magnitude of risk, cost of precaution, important of the object to be attained and general and approved
practice. In case of Muhammad Raihan bin Ibrahim & Anor v Government of Malaysia & Ors, the plaintiff
was injured by a hoe wielded by fellow pupils during a practical gardening class. Plaintiff alleged the
defendant have failed to give adequate supervision and instructions regarding the use of gardening tool.
Federal court distinguished this case from Jumat’s case and held the defendants negligent as they had
failed to take reasonable steps to prevent injury to the plaintiff who was under their care.

Third element is damages. Whether plaintiff suffered damages. Even though defendant has breached
duty of care, plaintiff can only claim for negligence if he can proved he suffered damages due to breach
of duty of care. Damage cause breach must be foreseeable or can be anticipated. It must not be remote.
2 test use to determine whether the damage suffered by plaintiff is the result of the defendant breach
duty of care. First is but for test. Question must be asked "but for the defendant action , would Plaintiff
have suffered injury or damage anyway? If the answer is "YES", then it can be concluded that the
Defendant's breach of duty did not cause the Plaintiff's injury. Therefore, the Defendant is not negligent.
If the answer is "NO", then it can be concluded that Defendant's action did cause Plaintiff's injury.
Therefore, Defendant is negligent. In case of Barnett v Chelsea & Kensington Hospital Management
Committee. The plaintiff's husband went to the defendant's hospital when he started vomiting after
drinking some tea in the early morning. The nurse on duty telephoned the doctor who instructed the
nurse to tell the plaintiff's husband to go home and call his own doctor. Later that afternoon the
plaintiff's husband died of arsenic poisoning and the plaintiff sued the hospital for negligence for its
failure to treat her husband. The doctor had clearly breached his duty of care to the plaintiff's husband.
However, his breach did not cause the death because even if the doctor had treated him with proper
care, he still could not have been saved. Second test is Remoteness of Damage. This is the next test to
be used if the defendant failed the But-For Test. The defendant will only be liable if it is reasonably
foreseeable that his conduct will cause some degree of damage to the plaintiff. So, if a reasonable man
would not have foreseen any damage as the result of his action, then the defendant is not negligent.
However, if a reasonable man would have foreseen any damage as the result of his action, then the
defendant is liable for negligent. In the case of The Wagon Mound, the defendant chartered the ship
named The Wagon Mound which was anchored at C Oil Company for re-fueling. Due to the negligence
of the defendant's workers, some oil had spilt onto the water and the oil spread to the plaintiff's wharf
which was about 600 feet away. 2 ships were anchored at the plaintiff's wharf for welding works.
Manager of the plaintiff's wharf upon seeing the oil ordered the welding work to stop. He inquired with
C Oil Company whether it was safe to continue with the welding work. C Oil Company advised him that it
was safe to do so. The manager himself believed that oil on the water's surface was not dangerous but
he reminded the workers not to drop any flammable material into the water. Two (2) days later the oil
caught fire and the plaintiff's wharf was extensively damaged. Important findings of facts at trial:
According to expert evidence it was unforeseeable that fuel on the surface of the water would catch
fire. It was foreseeable that damage by way of oil seeping into various parts of the wharf and affecting
usage of those parts would occur. The court held that the test should be whether a reasonable man in
the defendant's position would foresee the damage that has occurred. In this case since it was not
foreseeable that the defendant's breach of duty would cause a fire, therefore the defendant was held
not liable.

APPLICATION

To apply in case of Zarul and Fahyoungie , the maintenance hotel staff have duty of care upon Zarul and
Fahyoungie kids , Khai and Nana. This can be proven in neighbour test. Khai and Nana are closely and
directly affected with maintenance hotel staff act. Negligence by maintenance by hotel staff causing Khai
and Nana affected by water infection. Thus, maintenance staff is liable upon Khai and Nana on duty of
care.

Next is maintenance has breach duty of care upon Khai and Nana. This can be proven by running the
reasonable man test. In this case, maintenance staff conduct fell below standard of care. This is because
maintenance hotel staff do the work regularly. Thus, maintenance hotel staff is liable because breach
duty of care upon Khai and Nana.

Last but not least, Plaintiff has suffered damages. In this case, Khai and Nana were admitted due to
water infection. This can be proven under But for test. The question being asked in this test is “ But for
the defendant action/ breach duty of care, would Plaintiff have suffered the injury or damage
anyway?” . To imply this question in this case it will be “ But for the maintenance staff hotel
action/breach duty of care, would Khai and Nana suffered the injury or damage anyway?”. The answer
will be yes because Khai and Nana were admitted due to water infection. Thus , maintenance staff is
liable upon Khai and Nana , and Khai and Nana do suffer damage by breach duty of care by maintenance
staff.

CONCLUSION
Maintenance hotel staff fulfil the element of negligence to proven liable on Zarul and Fayhoungie
children.
One day, William was walking to the hospital to visit his friend. On his way to the hospital, he
suddenly saw a big cloud of black smoke filled the sky. Without wasting time, William rushed towards
the smoke. When he arrived at the place, he was surprised to find that a house was burning in the
fire. Later on, he saw through a window, an old man trapped in the house shouting for help. Worrying
about the old man's safety, William hurried to the house to rescue the man. However, William could
not enter as the door was locked. He then broke down the door and entered the house. William
immediately helped the man and dragged him away from the house. The old man was later sent to a
hospital for medical treatment. Five minutes later, the firefighters arrived at the scene. They managed
to extinguish the fire completely within 15 minutes and save some parts of the house. Unknown to
William, the house was owned by Michael and the old man was merely the tenant. After examining
the closed-circuit television (CCTV) footage, Michael was furious when he found that William broke
down the house door which was custom made and imported from Italy. Michael then lodged a police
report and William was subsequently charged under section 425 of the Penal Code for destroying the
door.

Based on the above facts, answer the following questions:

a) In order to charge William for the offence, explain the basic elements which must be proved by the
prosecution. (20 marks)

INTRODUCTION

According to Halsbury Law England crimes is an unlawful act or default which an offence against public
and renders the person guilty of act or default which liable to legal punishment. Crimes have 2 element
that need to be fulfill in order to consider an act as crime.

LAW

First element that need to be proved by the prosecution is actus reus. Actus reus means a guilty act.
Words act doesn’t mean only act but also an omission. Omission is failure of a person to perform duty
imposed by law. Section 32 of Penal Code states that words which refer to act done extend also to illegal
omission. An act can be defined as bodily movement which a person has done something which
prohibited by law. For instance ,offence of House Trespass which fall under Section 448 of Penal Code.
This can be illustrated in case of Rahanny Rojela v PP. Accused was charged under section 302 Penal
Code for stabbing Teto Chang to death. Court of Appeal agree with the findings of trial court that
accused was guilty of murder because elements of offence was successfully proven. In terms of actus
reus, It was proven by evidence given by Prosecution Witness 6 (PW6) which he witnessed that accused
come and sit on the top of the deceased, stabbing him a few time in deceased chest. This evidence was
proven by postmortem report prepared by doctor that caused of death was stabs wound on the chest.

Second element that need to be proved by prosecution is mens rea. Mens rea means guilty or
blameworthy mind. Mens rea can be refer as mental element necessary for a crime. Offence that consist
word such as intention, knowledge, recklessness and maliciousness indicate requirements of mens rea.
Example of offence that consist words of mens rea is murder that fall under section 302 of Penal Code
and mens rea for this offence is intention or knowledge. This can be illustrated in case of Norol Rojik Jun
v PP. The accused was charged under Section 302 of the Penal Code for murdering his neighbour . The
deceased had rented a room on the second floor of the Hup Seng Building. The accused and his in-laws
were staying as chief tenants and were collecting rent on behalf of the landlord. The two families had a
strained relationship due to the deceased’s inconsistency in monthly rent payment and was allegedly
involved in drug addiction and petty theft. A disagreement ensued on 11 November 2011 between the
two families, resulting in the accused’s family vacating the premises. The following day at around 6 am,
the accused forced his way into the deceased’s room armed with a parang (machete) and attacked the
deceased and his wife in their bed. The deceased was pronounced dead by the police after arriving at
the scene, sustaining slash wounds on the feet, legs, abdomen, forearm, neck and the back of the chest.
The accused was subsequently found guilty. Aggrieved with the decision, he appealed his case to the
Court of Appeal on the grounds that he had no intention to kill the deceased. The Court of Appeal
dismissed the accused’s appeal and affirmed the findings of the High Court. The court was satisfied and
found that the accused had an intention to kill, which was inferred through the degree of the deceased’s
injuries, type of weapon deployed and was brought together by the accused who did not cease the
attack despite the pleas by the deceased’s wife to stop the attack.

APPLICATION

In virtue of the case of Rahanny Rojela v. Public Prosecutor, William's action of breaking down the door
amounts to a guilty act as he unlawfully entered into the old man's house. Thus, there is an actus reus
present. However, by virtue of the case of Norol Rojik Jun v. Public Prosecutor, William did not have any
criminal intention to break in and enter the house, rather he had to save the old man's life. Therefore, a
mens rea is not present.

CONCLUSION

In conclusion, William has fulfilled not all the necessary elements of criminal liability because although
he did commit a guilty act or actus reus of by broke down the door of the old man house , there was no
guilty mind or mens rea as he did not intend to broke down the door and just wanted to save the old
man.
b) Advise William on the most suitable defence that he can raise with reference to the
relevant statutory provision and decided cases.
(20 marks)

INTRODUCTION

General defences may be pleaded by the accused to defend accused against the charge. Chapter IV of
Penal Code in sections 76 to106 contained general defence or general exceptions. Successful plea will
resulting into a complete acquittal.

LAW

Necessity is acknowledge as a defence under section 81 of the Penal Code. Section 81 of Penal Code
stated nothing is consider as offence merely by reason of its being done with the knowledge that it is
likely to cause harm, if it be done without any criminal intention to cause harm and in good faith for the
purpose of preventing or avoiding other harm to person or property. In this section it implies that where
a person needs to make a choice in emergency situation, he may be justified in causing harm in order to
avoid greater injury or damages to person or property. It have several condition to make it a successful
plea. Firstly, accused must have no intention to cause harm. Secondly, harm sought to be prevented or
avoided must be imminent ask to justify the risk of doing the act as succinctly put in the Explanation of
section 84 of Penal code. Thirdly, a close reading of two illustrations (a) and (b) of section 81 of Penal
Code indicates that the harm sought to be prevented should be greater than the harm committed. The
defence was successfully pleaded in the case of Public Prosecutor v Ali bin Umar and Ors. The accused
had been charged under Section 49(1) of the Customs Act 1967 for carrying tin ore in a local craft
without the permission of the Director-General of Customs. The defence of the accused was that their
boat had a broken rudder and it had drifted in distress into Malaysian waters, therefore, the defence
raised was out of necessity. The court ruled that out of necessity, it justified the accused to enter the
Malaysian waters on specific reasons that the boat in which they were travelling was in distress due to
the fact that the rudder of the boat was broken in international waters. In those circumstances, it would
be necessary for the accused to seek shelter for the safety of the boat and to preserve the lives of the
crew during such distress.

APPLICATION

In virtue of the case of Public Prosecutor v Ali bin Umar and Ors , William's action of breaking down the
door amounts to necessity in order to rescue the old man . If he not broke the door, it will cause death
of the old man.

CONCLUSION

To conclude, William fulfill to use general defence of necessity as action taken by William is to prevent
greater injury to person.