You are on page 1of 29

Faculty of Law and International Relations

 At the end of the lecture, the students are expected to


 What is a tort
 The purpose of law of tort
 The scope of law of tort
 The laws governing tort in Malaysia
 The relevant concepts in the law of tort
 The types of remedies under the law of tort
 Latin word ‘tortus’
= ‘twisted’ or ‘wrung’

 Tort is a wrong, which consists of :

 Wrongful act
 Omission
NOT authorised
by law
Eg: trespass to person
 A wrong recognised by law
 A wrong the victim of which is
entitled to redress
 A species of civil injury or wrong
Can you think of
some examples of
“a tort consists in some acts done
by a defendant whereby he has
without just cause or excuse cause
some form of harm to the
“Tortious liability arises from the
breach of a duty primarily fixed by
law; this duty is towards persons
generally and its breach is
redressible by an action for
unliquidated damages”
 Liability is based upon breach of duty
 Tortious liability arises by operation
of law, not by agreement of parties.
 A tort may consist of either a
wrongful act or omission, which is
not authorised by the law
 Liabilityor non liability of a
person in doing or not doing
 Seeking monetary compensation
and other redresses for injuries or
damage suffered
 Allocation of responsibility for losses-
seeking for redress for injuries or
damage suffered in terms of monetary
 Deterrent function
 Responsible for future actions
 Serves as reminder to other
 Person
 E.g.: assault, battery, false imprisonment,
negligence for causing personal injury
 Property
 E.g.: trespass to land, nuisance, interference with
 Financial
- E.g.: deceit, passing off
 Reputation
-E.g.: defamation, malicious prosecution
 Not all wrongs comes under tort law
 The wrong/omission must be a legal wrong

 Legal wrong can be

 Civil wrong
 Criminal wrong
B is drowning and called for help. A saw
B drowning but he did not do anything
to rescue B. B eventually died from
drowning. Would A’s omission be
considered as a tort?
a) A wrongful act or omission
b) The wrongful act or omission affects the interest or
rights of others
c) The injured party has a right to claim damages
d) the wrongful act / omission must be a legal one for
the victim to claim damages
a) English common law
 Section 3 of Civil Law Act 1956
 Malaysia can apply common law of England
and rules of equity before the cut-off-dates
 West Malaysia: 7th April 1956
 Sabah : 1st December 1951
 Sarawak: 12th December 1949
 Requirements : lacuna in law
: cut off dates
:local circumstances render it
 After the cut-off dates
 Development and changes of English common law
and rules of equity do not automatically become
the law of Malaysia
 Persuasive in nature (not binding)
 Gives regard to the requirements stated in
proviso of section 3 CLA1956
 The common law and rules of equity must not
contradict to any written law of Malaysia
 Can be applied if there is no statutory provisions
or judicial guidance
Dato' Abdul Hamid Bin Hj. Mohamed J:

“In applying s.3 of the Civil Law Act 1956 , the approach the Court
should take is first to determine whether there is any written law in
force in Malaysia. If there is none, then the Court should determine
what is the common law of, and the rules of equity as administered in
England on 7 April 1956. Having done that the Court should consider
whether "local circumstances" and "local inhabitants" permit its
application as such. If it is "permissible" the Court should apply it. If not,
the Court is free to reject it totally or adopt any part which is
"permissible", with or without qualification. Where the Court rejects it
totally or in part, then there being no written law in force in Malaysia,
the Court is free to formulate Malaysia's own common law. In so doing,
the Court is at liberty to look at any source of law, local or otherwise,
be it England after 7 April 1956, principles of common law in other
countries, Islamic law of common application or common customs of
the people of Malaysia. Under the provision of s.3 of the Civil Law Act
1956 , that is the way the Malaysian common law should develop.”
The approach:
(a) Written law?
(b) Common law or rules of equity as at the cut-off dates
- Court is to consider local circumstances and the
local inhabitants permit the application
- If it is permissible = court apply it
- If not permissible = court can reject in total or
partly apply the permissible part
- court can formulate Malaysian common law
- Other sources: English law after cut off date,
laws of other countries, Islamic law or common
custom of people
 Tort law is a creature of common law and not
 The principles of tort law can be found from the cases
decided by courts
 Incorporates English common law
 Mainly not codified in statutes
 Defamation Act 1957
(a) Tortious liability
 The liability that arises from tortious action
 Winfield & Jolowicz
“Tortious liability arises from the breach of
duty that has been sanctioned by the law,
owed to the public generally and the breach
may be reddressed by an action for
compensation in the form of unliquidated
 A state of mind of the tortfeasor

 Knowing the consequence/risk of the action

 presumed to have intended the natural and
consequences of the act

 Remoteness of damage – even have intention,

but if damage is too remote=cannot prove
 Motive and malice is not relevant
 Tort is not aimed at finding the bad intention of
tortfeasor = don’t have to prove mens rea as in
criminal law
 May be relevant in tort of nuisance, conspiracy,
 Case: Bradford Corporation v Pickles [1895] AC
587 – it is the act, not motive that must be
 Case: Allen v Flood [1989] AC 1- malice has 2
meanings- improper motive and intentional doing
of an act
 Damage is the harm done to the victim
 It can come in the form of:
 Physical injury
 Damage to property
 Damage to reputation
 Economic loss
 Some torts are actionable per se (does not
have to prove damage)
- e.g: tresspass to person/land,
interference to goods
 The monetary compensation
 Two categories
 Unliquidated damages- unquantifiable damage
 E.g.: damages for pain & suffering
 Liquidated damages – quantifiable damage
 E.g.: medical bills, lost of earnings
 Section 6 (1) (a) Limitation Act 1953
 6 years from the date the cause of action accrued
 Tort of actionable per se- from the date the tort is
 Tort that need proof for damage-when the damage occurs
 Fail to comply, absolute defence to the defendant
 If Defendant is the Government
 Section 2 (a) Public Authorities Protection Act 1948
 3 years
 Contract
 Crime
Tort Contract
 Lies on the duty that a  Lies on the agreement
person owes towards between two parties
another  Duties/obligations fixed
 Duties fixed by law by the agreement
 Aim: prevention or
 Aim: enforcing promises
compensation of harms
 To put the P in the
 To put D in the
position he would
position he would have
have been in had the been in had the
tort not been contract been
committed performed
 Tort and criminal overlap- assault, battery
 E.g:reckless driving causing injury/death to
another person
 A crime or a tort?
 Different procedure
 Different purpose
 Criminal prosecution in respect of a traffic
accident is likely to take place before the
trial of a civil action arising from it and a
conviction may be used as evidence of
negligence in the civil action