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A part of our civil liability system Principally concerned with imposition of legal liabilities and the consequent remedies

in respect of civil wrongs committed against recognizes entities The liability is not dependant on contractual agreement Deals with wide range of situation - providing remedies for various injuries. The word tort itself - French for wrong -now to mean a wrong recognized by law. Winfield - tort as a wrong the victim of which is entitled to redress / specific civil wrong or injury. Law of torts has two function:

- to determine when a person has to pay compensation for harm wrongly caused. - to determine what conduct may be stopped or regulated by the courts order.

Kinds of interest that law of torts protect against: a. person - assault, battery, personal injury b. property - trespass, nuisance, interference with goods c. financial - deceit, economic loss d. reputation - defamation, libel, malicious prosecution

A tort arises not simply out of the infliction of injury to the interest stated above but in the infliction of a legally recognized injury Liability in tort may arise: 1. Primary - where a person is liable for his own act or omission in breach of a legal duty 2. Vicarious- Where a person is liable for the act or omission of another with whom he stand in some special relationship

Negligence Vicarious Liability

Negligence as an independent tort is defined as the breach of a legal duty to take care - as a result of which -the plaintiff suffers damage. To succeed in an action for negligence plaintiff must prove ALL the elements of negligence: First element: Duty to take care Second element: Breach of the duty Third element: Breach that causes injury / damage

1. The Duty To Take Care


A defendant will only be liable if he owes the

plaintiff a duty to take care If there is no duty to take care, a negligent act has no legal consequence A duty of care exist in normal circumstances where if a person does not take the usual precautions, another person or his property may be injured/damaged To test the existence of duty of care - Donoghue v. Stevenson (1932) - The Neighborhood Principle

The Neighborhood Principle:


The rule that you are to love your neighbour becomes in law you must not injure your neighbour, ..you must take reasonable care to avoid acts or omission which you can reasonably foresee would be likely to injure your neighbour. And the lawyers question who is my neighbour..persons who are so closely and directly affected by my act that I ought reasonably to have them in my contemplation as being so affected when I am directing my mind to the acts or omission in questions

The neighborhood principle is an objective test in

the sense that the court will a hypothetical question; Would a reasonable man, who is in the same circumstances as the defendant, foresee that his conduct will adversely affect the plaintiff?
If the answer is YES, then the plaintiff is a neighbour of the defendant If the answer is NO, plaintiff not a neighbor, no duty to take care Palsgraf v. Long Island Railroad

2. Breach Of The Duty


Plaintiff must show not only that there is a duty to take care -

but that the duty have been breached i.e. the defendant does something below the minimum standard of care required
Standard of care to determine breach or not - that of a

reasonable man i.e. would a reasonable man have acted as the defendant has done if the reasonable man was faced with

the same circumstances?


Question: who is a reasonable man?

Factor to consider

Level of intelligence e.g. child defendant


Skill and expertise in a particular field e.g. professionals Level of experience e.g. learner driver

The standard of care too is largely dependant on the facts


of the case Several things to take into consideration in determining the degree of care:
Magnitude of the risk
Probability of the injury occurring
Bolton v. Stone case of cricket ball

Seriousness of the injury


Paris v. Stepney Borough Council

Importance of the object to be attained


Watt v. Hertfordshire

Practicality of precaution
See Government of Malaysia v. Jumat bin Mahmud compared with Mohamed Raihan bin Ibrahim v. Government of Malaysia See also Latimer v AEC closing of factory not practical compared to the risk

3. Causation and Damage


There must be some form of damage or injury as a result of the

breach - whether physical or to property


Exception - pure economic loss The question that arise: whether the defendants conduct has in

fact caused the plaintiff's damage?


This is known as the But For test The defendant would not be liable if damage or injury would

have occurred in any event without the defendants fault

Barnett v. Chelsea & Kensington Hospital


Plaintiff does not have to establish that the defendants breach of

duty was the main cause of the injury, as long as it materially contributed to the harm - McGhee v. National Coal Board

The damage or the injury was of the type which the law allows recovery that is - not too remote - must be foreseeable although the extent and method of the damage is irrelevant

Vacwell Engineering case bigger explosion than anticipated

Defendant too must accept the plaintiff as he is the egg-skull rule Smith v. Leech-Brain & Co injury causing lip cancer Intervening Acts Rouse v. Squires compared with Knightley v. Johns

1. Contributory Negligence

Where the plaintiff failed to take reasonable care of himself which contributes to his injury along with the defendants negligence. Contributory negligence is a partial defense it is the defendant who must plead contributory negligence See section 12 (1) of the Civil Law Act 1956

Where any person suffers damage as the result partly of his own

The damages will be apportioned / reduced depending upon the extent of the plaintiff share in the cause of injury See :
Jones v Livox Quarries Ramachandran a/l Mayandy v. Abdul Rahman bin Ambok

fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the Court thinks just and equitable having regard to the claimants share in the responsibility for the damage

2. Res Ipsa Loquitor


Where the thing speaks for itself When the plaintiff raises the maxim, he is asserting that based on

the evidence given, he has proven, prima facie, that the defendant is negligent The main purpose is to prevent injustice as otherwise the plaintiff would be required to prove details of the cause of the incident, which he may not know The maxim is not applicable when all the facts relevant to the cause of the accident are known Nevertheless - the accident wouldnt have happened if not for some negligence on the defendants part. Originated from the rule in Byrne V. Boadle Three requirements:
The thing that cause the damage must be under the defendants control The damage is something that will not happen if the defendant takes adequate precaution The cause of the accident is not known

See also Gee v. Metropolitan Railway, Cassidy v. Ministry of

Health

3. Psychiatric Illness / Nervous Shock

A positive psychiatric illness or physical damage as a result of physiological trauma experienced by the plaintiff due to the defendant's negligent act For the purpose of recovery of damages not necessary that the plaintiff shows direct impact or fear of immediate personal injury Claimant may recover damages arising from nervous shock resulting from injury to near relatives or fear for such injury The case of Alcock & Ors v. Chief Constable of South Yorkshire Police laid down the requirements that need to be proven to succeed in a claim for nervous shock:

It must be foreseeable that damage in the form of psychiatric illness would occur Foreseeability depends on the nature of relationship between the plaintiff and victim love and affection

The proximity between the plaintiff and the accident in time and space i.e. the plaintiff must either see, hear or be physically present at the scene of the accident immediately after the immediate aftermath test
The means by which the shock has been caused - the psychiatric harm must come through the claimant's own sight or hearing of the event or its immediate aftermath

Zainab Ismail v. Marimuthu

Court allowed the plaintiff's claim as a result of seeing her daughter knocked down by the defendants lorry The plaintiff's husband and her three children were involved in a road accident caused by the defendant's negligence. The plaintiff was informed about the accident two hours after the event, and she was taken to the hospital where she was told about the death of one of her children and saw the injuries to her family in distressing circumstances. The House of Lords was unanimous in holding that the plaintiff's claim for psychiatric illness should succeed A pregnant lady after alighting from a tramcar hear noise of collision and after the accident she went to the spot, saw blood spot and got shock. Court denied her claim because it was not reasonably foreseeable that someone not closely connected to the victim would suffer nervous shock.

McLoughlin v. OBrian

Bourhill v. Young

Vicarious Liability is an exception to the principle that a person should not be held liable in absence of fault of his own. Vicarious liability refers to situation where, for example Ali is liable to Chong for damage or injury suffered by Chong due to the negligence or other tort committed by Bobby.

Ali need not have done anything wrong and need not owe a duty of care to Chong.
Most important condition for imposing a liability on Ali is the nature of relationship between Ali and Bobby Under vicarious liability - employer liable for the negligent act of his servant/ employee. The reasons why an employer has to be liable for the negligence of the employee :

Employer employ the negligent worker Employer failed to control the employee Employer benefit from the employees work - set the whole thing in motion Employer has deeper pocket

Requirements of Vicarious Liability:


Wrongful act

The court will see whether a tort has been committed

The existence of a special relationship

The employer will only be liable if the tort is committed by his employee/ agent If the tort is committed by independent contractor, then the employer will not be liable Several tests to determine existence of contract of service: Control test Integration Test Multiple Test

The tort is committed by the employee during the

course of employment

Example of cases: Century Insurance Co. Ltd v. Northern Ireland Road Transport Board (1942) Rose v. Plenty (1976)

1. Volenti Non Fit Injuria Prevents the defendants wrongful conduct from being a breach There must be consent or assumption of risk by the plaintiff The consent or assumption of risk must be voluntary whether express or implied There must be full knowledge of the nature and extent of risk of injury Must be to the act complained of 2. Inevitable Accident Something which is not avoidable by any such precautions as a reasonable man could be expected to take Defendant must prove that what happened is beyond his control and could not be avoided by the exercise of skill and care e.g. latent defect in a vehicle