Chapter 5 :

The Law of Tort

 Definition
• A ‘tort’ is a legal wrong, for which the law
provides a remedy.
• It is an act that injures someone in some way,
and for which the injured person may sue the
wrongdoer for damages.
• https://www.youtube.com/watch?v=y0ZycIk6
• https://www.youtube.com/watch?v=mnPakaCc-Ys

• Legally, torts are civil wrongs.

 Negligence
• Negligence is a form of tort which evolved
because some types of loss or damage
occur between parties that have no
contract between them, and therefore there
is nothing for one party to sue the other over.

• i.e. injured party cannot sue under the law of

contract
 
Elements of the tort of negligence

D owed a DOC

D breached the
DOC

Causation of
damage
 Duty of Care
• Donoghue v Stevenson (1932)

The test for the existence of a duty owed to the

P is the ‘neighbor principle’ stated by Lord
Atkin, i.e. the foresight of a reasonable man.
https://www.youtube.com/watch?v=evDCHCM
RAtc

https://www.youtube.com/watch?v=WgEYzgrN
vy0
• One therefore asks the question whether
the injury to the P was the reasonably
foreseeable consequence of the D’s act or
omission.

• One does not owe to everyone to act

reasonably. One owes the duty only to
those people who would be foreseeably
injured by ones action.
• The Atkinson test was applied in the
Malaysian courts.

-Wu Siew Ying v Gunung Tunggal

Quarry & Construction Sdn Bhd
(1999)

P - occupier of land – adjoining quarry –

P was clearly within category of
persons whom Lord Atkin described.
 On the other hand……
• - Lembaga Kemajuan Tanah
Persekutuan v Maniam (1984)
FELDA – didn’t know that contractor had sub
con the work – The sub-con was
unauthorised – so the sub con’s
employee-trespasser – FELDA didn’t owe
him DOC
Held : No DOC was owed to deceased.
 Statutory DOC
• Occupiers’ Liability law relates to such
liability as regards visitors and trespassers
of property.
• It refers to the fact that an occupier of a
property will owe a duty of care to the
persons who come on the premises and this
duty is basically to ensure that such persons
are not harmed by the state of the premises
or activity carried on to the premises.
• There is no law in Malaysia which is
equivalent to the United Kingdom
Occupiers' Liability Act, 1957. In such a
situation, common law principles in
United Kingdom will apply to Malaysian
law.
(Section 3(1) Civil Law Act 1956).

 
Occupiers’ Liability Act 1957
• The common duty of care is a duty to
take such care as in all the
circumstances of the case is
reasonable to see that the visitor will be
reasonably safe in using the premises for
the purposes for which he is invited or
permitted by the occupier to be there –
S2(1)and S2(2).
 Who is an occupier?
• Wheat v E Lacon & Co Ltd. [1966]
Paying guest fell down stairs – killed- no
handrail – unknown person had removed
lighting
Held : owners were responsible for keeping
the handrail safe and lighting system
maintained but NOT liable for P's death.
• The House of Lords defined the ‘occupier’
as a person who has sufficient control
over the premises to the extent that he
ought to realise that lack of care on his
part can cause damage to his lawful
visitors
 Who is a visitor?
• Somebody who is invited by the occupier to
be on the premises, either implied or
explicitly.

Lowery v Walker (1911)

Members of the public had used a shortcut
across the D’s field for some 35 years. The
D had attempted to prevent this but did not
take any legal proceedings to stop them
because many of them were his customers.
One day, he put a wild horse into the
field and P was attacked by it.

The defendant unofficially allowed

customers to use a shortcut around
the back of his land. The plaintiff
injured himself.
HOL held : P was not a trespasser.
Because of the long user by the public,
which was a fact known to the D, P
was regarded as licensee.
• Campbell v Shelbourne Hotel Co.
Ltd. (1939)

Held: The plaintiff was a visitor. It would

be expected that a guest would use the
lavatory at night and that a London
hotel would be expected to have its
corridors well lit. The defendants were
therefore liable in negligence towards
the plaintiff.
 BREACH OF DOC
• It is necessary to first establish the
standard of care expected of him.

Blyth v Birmingham Waterworks Co. Ltd

(1856)
Negligence is the omission to do something
which a reasonable man would do or
doing something which a prudent and
reasonable man would not do.
 Facts
• Plaintiff sued to recover for damages
sustained when a water plug installed by
the Defendants sprung a leak and doused
the Plaintiff’s house. The plug had been
installed 25 years prior to the incident,
which was caused by extraordinarily cold
weather. Prior to the incident, there had
been no problems with the plug.
 Held :
• The court found that the severe frost could
not have been in the contemplation of the
Water Works.
• They could only have been negligent if they
had failed to do what a reasonable person
would do in the circumstances. Birmingham
had not seen such cold in such a long time,
and it would be unreasonable for the Water
Works to anticipate such a rare occurrence.
Factors which are relevant in this determination include:

i) What is the likelihood of injury?

-Bolton v Stone (1951)
https://www.youtube.com/watch?v=GCExbIpb
WZE

https://www.youtube.com/watch?
v=bUcO_2fNzUE
• Cricket ball was hit out of the ground onto
highway- injuring the P
• Held : D was not liable
ii) The egg-shell skull rule –you must take
your victim as you find him
- Haley v London Electricity Board (1964)
Ds conducting excavation works, put up
adequate notice for sighted persons-
Haley was blind – feel into trench,
became deaf
HELD : Ds were liable for negligence –
because failed to take necessary
precautions for Haley who was blind,
and therefore breached the DOC
iii) The cost and practicability of
overcoming the risk of injury
-Latimer v AEC
P slipped on the floor which sawdust was
not applied- sued D as they should have
shut down factory

HELD : company had done everything

within cost & practicability of
overcoming risk of injury – to have it
shut down – losses for company
 CAUSATION OF DAMAGE
• Causation relates to the physical link
between the defendant’s negligence and
the claimant’s damage

• The basic test for establishing causation is

the ‘but for’ test, under which the
defendant will be liable only if the claimant’s
damage would not have occurred but for
his negligence .
 Barnett v Chelsea & Kensington
Hospital Management Committee (1969)
Held : the hospital was negligent when it
turned the patient away However, it was
not their negligence which had caused
the husband’s death because it was
found that at the point of death the level of
poisoning in the husband’s body was
already very high and he would have died
anyway, even if the doctor had treated
him.
 Remoteness of Damage
A plaintiff can recover only that loss which
a defendant could reasonably foresee
would ensue to the victim of the tort the test
we must apply is one of reasonable
foreseeability.

Overseas Tankship (U.K.) Ltd v Morts Dock

and Engineering Co Ltd  (The Wagon
Mound) (1961)
• Overseas Tankship had a ship, the Wagon Mound,
docked in Sydney Harbour in October 1951. The crew
had carelessly allowed furnace oil (also referred to as
Bunker oil) to leak from their ship. The oil drifted under a
wharf thickly coating the water and the shore where
other ships were being repaired. Hot metal produced by
welders using oxyacetylene torches on the respondent's
timber wharf (Mort's Dock) at Sheerlegs Wharf fell on
floating cotton waste which ignited the oil on the water.
The wharf and ships moored there sustained substantial
fire damage. In an action by Mort's Dock for damages
for negligence it was found as a fact that the defendants
did not know and could not reasonably have been
expected to know that the oil was capable of being set
alight when spread on water. The dock owners knew the
oil was there, and continued to use welders.
• The Privy Council found in favour of the defendant, in
spite of the furnace oil being innately flammable,
could not reasonably expect it to burn on water.
Viscount Simonds, in his delivery for the Privy
Council, said that the Counsel for Morts had
discredited their own position by arguing that it
couldn't have been bunkering oil because it wouldn't
burn on water. The Privy Council held that to find a
party liable for negligence the damage must be
reasonably foreseeable. The council found that even
though the crew were careless and breached their
duty of care, the resulting extensive damage by fire
was not foreseeable by a reasonable person,
although the minor damage of oil on metal on the
slipway would have been foreseeable.
• https://www.youtube.com/watch?v=lIO3Zk
kuWzE
(Wagon Mound)

The Privy Council[2] held that a party can be

held liable only for loss that was reasonably
foreseeable.
 Defences
Contributory
Negligence
• S12 Civil Law Act 1956
• Badger v Ministry of
Defence
Consent
• ICI v Shatwell
 Contributory Negligence
• failure of an injured party to act prudently,
considered to be a contributory factor in
the injury which they have suffered.
 Consent
• Where the P expressly or impliedly
accepts the risk of harm associated with
the D’s conduct
 Res Ipsa Loquitor
• Means “the thing speaks for itself”
• It applies in a situation where the fact and
nature of the injury itself "speaks,“ that is,
it affords proof of negligence, so as to
relieve the plaintiff of the initial
obligation to show negligence.

• https://www.youtube.com/watch?v=0MWI9
CPBwHI
(explanation)
Examples of res ipsa loquitur:

• Getting hit by a rock which flies off a

passing dump truck;
• A ship in motion collides with an
anchored ship
https://www.youtube.com/watch?v=V-CJMY
ZtS98
The doctrine is generally accepted as
having three elements....:-

1) When the thing that inflicted the

damage was under the
sole management and control of the
defendant, or someone for whom he is
responsible or whom he has a right to
control.

Scott v London and St Katherine Docks

(1865)
2) The occurrence is such that it would not
have happened without negligence.

Mahon v Osborne (1939)

3) There must be no evidence as to why or
how the occurrence took place.

Pearson v North Western Gas Board (1968)

• Where the three conditions are fulfilled,
RIL raises a prima facie presumption of
negligence against the D.

• if the defendant can explain how the

accident could have happened without
negligence, the defendant has rebutted
the prima facie presumption and the
claimant must try to prove the
defendant’s negligence according to the
normal rules of duty breach, causation
and remoteness.
Ng Chun Pui v Lee Chuen Tat (1988)
Ds were not liable. Claimant couldn’t rely on RIL.

Ward v Tesco Stores Ltd (1976)

It was held by a majority (Lawton LJ and
Megaw LJ) that even though it could not be
said exactly what happened, the pink yoghurt
being spilled spoke for itself as to who was to
blame. Tesco was required to pay
compensation. The plaintiff did not need to
prove how long the spill had been there,
because the burden of proof was on Tesco.