Law of Torts Overview

LAW 245
LAW OF TORTS
PREPARED BY:
MUHAMMAD FIKRI BIN OTHMAN
UITM SAMARAHAN II
MUHAMMAD FIKRI BIN OTHMAN-FUU 07/04/2022 1
INTRODUCTION
•The word “tort” originates from
the Latin word, tortus which
means “twisted” or “wrung”.
•Thus, a “tort” simply means
“wrong”.
A tort may consist of

either a wrongful act or
omission, which is not
authorised by the law.

Introduction…
•Even though a “tort” is a “wrong”,
this does not mean that all
“wrongs” come within the purview
of the law of torts.
•Not all wrongful acts or
omissions are legal wrongs.
•E.g: If B were drowning and he
called out to A for help, and A
failed to come to B’s rescue, A
would not have committed any
tort towards B. A’s behaviour
would be a moral wrong, but it is
not a tort, that is, a legal wrong.
Introduction…
•Legal wrongs fall into 2 main categories,

and they may either be civil or criminal
in nature.
•The law of torts is only one branch of the
civil law.
•Winfield and Jolowicz in the Law of Tort
(1994) states;
“tortious liberty” arises from breach
of a duty primarily fixed by law; this
duty towards persons generally and
its breach is redressible by an action
for unliquidated damages.

Introduction…
(a) a wrongful An act of tort (b) causing

act due to injury
breach of duty
consists of:-
(c) remedied
by
unliquidated
damages.

Introduction…
Trespass to
Person
Nuisance
Law of
Negligence
Torts
Defamation

TRESPASS
 Direct invasion of a protected interest was
actionable under trespass.
 The highwayman, the kidnapper, the burglar
and thief could be sued by the writ of trespass.
 In sanctioning these wrongdoers, the law was
protecting the citizen’s interest in bodily
safety, security from attack, liberty of
movement and possession of property.

Trespass…
 In Letang v Cooper [1964] 2 All ER 929, it
was held that in the tort of trespass there
must exist intention at the time the defendant
does his act. If the defendant was careless in
acting as he did, the cause of action would lie
in negligence and not in trespass. Therefore
an important element in establishing trespass
is that the defendant must be proven to have
acted intentionally.

TRESPASS TO PERSON
Trespass to Person Defences
Assault Self Defence
Battery Consent
False Legal
Imprisonment Authority

Trespass To Person…
 Trespass to person involves direct interference
with a person’s body or liberty.
3 Types of
Assault Trespass to Battery
Person
False
Imprisonment
ASSAULT
 Defined as an intentional and direct
act of the defendant which causes
the plaintiff reasonable
apprehension of the immediate
infliction of a force onto his person.
 The tort of assault is concerned with
the protection of person’s mental
well-being against the unlawful act
of another.

Assault…
Elements of assault:-
1) intention of the defendant to do harm

onto the plaintiff
2) effect on the plaintiff’s mind
3) capability of the defendant to carry

out the threat
4) bodily movement of the

defendant.
Assault…
(a) Intention of the Defendant to do Harm
 The defendant must have the intention to do his
act.
 In Tuberville v Savage (1669) 86 E.R. 684, the
defendant lay his hand upon his sword and told
the plaintiff “if it were not assize-time, I would
not take those words from you”. The court held
that these words negatived the element of
intention on the defendant’s part to injure the
plaintiff and therefore assault was not
established.
Assault…
(b) Effect on the Plaintiff’s Mind
 The plaintiff must feel reasonable
apprehension that a force will be inflicted
upon him.
 Reasonable apprehension is measured
through an objective test, that is, would a
reasonable man, faced with the same situation
that the plaintiff was in, feel apprehensive that
a force would be committed upon him?

Assault…
 Only when the answer is ‘yes’ will this element be
fulfilled.
 Force means some form of violent contact that
would put a reasonable man to be in reasonable
fear of attack.
 In R v St George [1840] 9 C & P 626, it was held
that pointing an unloaded gun at a person
constituted as assault.

Assault…
(c) Capability of the Defendant to Carry out the
Threat
 The requirement is measured through the eyes of
the reasonable plaintiff.
 The test is objective: would a reasonable man, who
is in the plaintiff’s position, feel reasonable fear
that there is a threat of immediate force upon
himself? In other words, would the reasonable man
believe that the defendant will realise his threat?
 This requirement will be fulfilled when the answer
is “yes”.
Assault…
 In Stephen v Myers [1830] 4 C & P 349, the
defendant threatened to hit the plaintiff and
he advanced with clenched fist upon the
plaintiff. He was stopped by a third party just
before he could reach the plaintiff. The court
held that assault was established as there was
capability to carry out his threat, if he was not
stopped by the third party a mere few seconds
before he hit the plaintiff.

Assault…
(d) Bodily Movement of the Defendant
 Even though assault involves no contact it is often said
that some bodily movement is necessary.
 Bodily movement means a positive act in the
circumstances, indicating that the defendant will carry
out his threat.
 So bodily movement per se would not be adequate, the
movement must be such that it correspond with the
probable infliction of unwanted force onto the plaintiff.
 There must be bodily movement to indicate the threat
would be carried out.

Assault…
 In Read v Coker (1853) 13 C.B. 850, the plaintiff was in a financial
difficulties and in arrears of his rent. The defendant purchased his
equipment and paid the rent under an agreement which secured to
the plaintiff a weekly allowance. One day, the defendant told the
plaintiff to leave the premises but he refused. The defendant
collected some of his workmen who clustered around the plaintiff,
tucking off their sleeves and threatened to break his neck if he did
not leave. The plaintiff left and brought an action of trespass for
assault.
 Held: the facts clearly showed the defendant was guilty of assault.
There was a threat of violence exhibiting an intention to assault and
there was also present an ability to carry the threat into execution.

Assault…
 Passive inaction or mere words are
insufficient.
 The plaintiff must apprehend imminent
physical contact.
 Words add colour to an act and words
however can also nullify an assault.

BATTERY
Defined as the intentional and direct
application of force to another person
without the person’s consent.
Battery is committed by intentionally
bringing about a harmful or offensive
contact with the person of another.
Purpose of the action is to afford

protection to the individual not only
against bodily harm but also against
any interference with his person
which is offensive to a reasonable
sense of honour and dignity.
Battery…
 Elements of battery are:-
(a)
t
h
(e
i
b
)n
c)(te
ch
n
o
eacti
n
o
w
tacasn
o
u
rn
o
a
fp
d
ert
p
licatth
e
h
o
ed
n
ef
d
efn
o
d
fn
a
fd
an
o
t
n
rcet’s
o
co
co
u
a
rsn
trp
p
o
ly
f
o
rce
(
d
)
w
i
t
h
o
u
t
p
l
a
i
n
t
i
f
f
’
s
c
o
n
s
e
n
t

Battery…
(a) Intention of the Defendant to Apply
Force
 Touching a person without consent has
traditionally been regarded as sufficient
battery even though without actual physical
harm.
 Case: Cole v Turner (1704) 87 E.R. 907, per
Holt C.J.
 “The least touching of a person in anger is a battery”

Battery…
 The defendant must have applied the force
with intention.
 Case: Scott v Shepherd [1773] 2 Wm Bl 892
 Here, a lighted squib was thrown by the defendant into
an open market area. A picked it up and threw it upon
B, who then picked it up and threw it away. The squib
hit the plaintiff whereupon it burst into flames.
 Court held: the defendant was liable for the tort of
trespass to person although his initial gesture did not
directly affect the plaintiff. According to the court A and
B reacted for their own safety, and so they did not have
the required ‘intention’ to commit the act.
Battery…
(b) The Act was under the Defendant’s
Control
 The defendant’s act must be done voluntarily.
 Case: Gibbons v pepper [1695] 2 Salk 637
 The defendant was riding a horse when someone hit the
horse from behind, causing the horse to bolt. The horse
collided with the plaintiff, and in an action against the
defendant, the court found the defendant not liable as
the incident of the horse bolting and colliding with the
plaintiff was outside his control.

Battery…
(c) Contact or Application of Force Occurs
 In battery there must be intentional touching or
hostile contact.
 There will be no battery if there is no contact or
application of force on the plaintiff’s body or clothing.

 Generally any physical contact with the body of the
plaintiff or his clothing would be sufficient to

constitute ‘force’ but it has been held that throwing
water on the plaintiff might not necessarily be battery.
This case has been interpreted to mean that contact
with things attached to the person will only amount to
a battery if there is a transmission of force to the body
of the plaintiff.

Battery…
 Case: Collins v Wilcock (1984) 3 All ER 374
Facts : A woman police officer suspecting that a woman
was soliciting contrary to the Street Offences Act 1959, the
police officer tried to question her but the woman walked
away. The police officer took her arm in order to restrain
her. The woman scratched the officer’s arm. The woman
was arrested and charged with assaulting an officer in the
execution of her duty and was convicted.
Held : Appeal was allowed, on the ground that the officer
had gone beyond the scope of her duty in detaining the
woman in circumstances short of arresting her. The
officer has committed battery.

Battery…
(d) Without Plaintiff’s Consent
 One cannot touch another person without his
consent or without lawful justification.
 However, there are touching where it is
presumed implied consent exists, such as
tapping a person’s shoulder in order to get his
attention, or touching that occurs while
queuing to go on a bus.

Battery…
 Case: Nash v Sheen [1953] CLY 3726
 The plaintiff went to a hairdressing salon where the
defendant used a tone-rinse without first obtaining the
plaintiff’s consent. The plaintiff unfortunately developed
some skin complications due to an adverse reaction to the
tone-rinse.
 Court held: the consent given by the plaintiff did not include
the tone-rinse and its consequences. Battery was established.
 Case: Tiong Pik Hiong v Wong Siew Gieu [1964]
MLJ 181
 The defendant was found liable in battery for scratching the
plaintiff’s face and hitting the latter, due to her jealousy of
the plaintiff’s friendship with her husband.
FALSE IMPRISONMENT
 In Termes de la Lay, false
imprisonment is defined as the
restriction of a person’s freedom of
movement.
 The person so restrained is
‘imprisoned’ so long as he cannot
move to another place in accordance
with his wishes.

d
)n
i
tr
False Imprisonment…
ti
eh
o
ce
n
t
 Elements of
ro false imprisonment are:
ce
fo
s
n
tt
sr
h
eae
q
i
u
n
d
ee
n
m
fc
u
e
esn
st
d
a
o
b
n
fe
t
(a) Intention of the Defendant
 There need be no actual imprisonment.
 It is enough if the person is deprived of his liberty
however short. He may be unlawfully arrest, or is
unlawfully prevented from leaving the place in
which he is.
 The defendant must have committed the restraint
intentionally.
 The defendant must intend to do an act which
directly results in the confinement of the plaintiff.

 In W Elphinstone v Lee Leng San [1938]
MLJ 130, it was held that false imprisonment
cannot be established through negligence.
Intention of the doer is a prerequisite.

(b) The Restrain Must Be a Direct
Consequences of the Defendant’s Act
 Only the person who directly causes the
confinement may be successfully sued for false
imprisonment.
 He may be liable either because he himself
confined or imprisoned the plaintiff of that he
had instigated another person to confine or
imprison the plaintiff.

 Case: Harnett v Bond [1925] AC 669
 The plaintiff live in asylum run by D2. the plaintiff was given a
month’s leave but D2 was given the discretion to call the plaintiff back
if he felt that the plaintiff could not look after himself during that one
month. On his second day out, the plaintiff went to an office to pay a
visit to some people. D1 who was there, was of the opinion that the
plaintiff was acting strangely. He called D2, who asked D1 to make
sure that the plaintiff stayed there, as D2 would send a car round to
fetch the plaintiff. The car arrived some three hours later and the
plaintiff was brought back to the asylum. D2 found the plaintiff to be
insane and did not let him out. For 9 years thereafter, the plaintiff was
sent from one institution to another. He was finally proven sane and
released. The jury was of the opinion that the plaintiff was sane 9
years previously at the time of committal to the institution.
 The Court of Appeal found the D1 liable for false imprisonment
during the 3 hours’ restrain, and D2 for the 9 years’ restrain.

(c) The Restrain Must Be Complete
 There is no false imprisonment if a reasonable
escape route is available to the plaintiff.
 The available means of escape must be
reasonable without the risk of injury or
serious inconvenience.
 A person locked by the defendant in a room
from which the only possibility of escape is by
dangerous climbing down a drain-pipe, is
considered to be falsely imprisoned.
 Case: Wright v Wilson [1699] 1 Ld Raym 739
 No false imprisonment arose when the plaintiff
could have escaped from his confinement,
although it meant he would have trespassed on
another’s land in order to regain his liberty.

 Knowledge of Restraint
 The plaintiff does not need to know that he has
been restrained in order to succeed in his action.
 Case: Meering v Graham White Aviation Ltd
(1919) 122 LT 44
 The plaintiff was being questioned at the defendant’s
factory in connection with certain thefts from the
defendant company. He did not know of the presence of 2
works police outside the room, who would have prevented
his leaving if necessary. The plaintiff succeeded in an action
of false imprisonment against the defendant.

DEFENCES
(i) Self-defence
› It is lawful for a person to use a reasonable degree of force
for the protection of himself or any person against any
unlawful use of force.
› The relationship of the parties to be protected may be
relevant to the reasonableness of force used e.g. to protect
his wife and children against terrorist.
› In Chaplain of Gray’s Inn’s (1400) YB 2 Hen. IV, fo. 8,

pl. 40, held that person on whom an assault is threatened
or committed is not bound to adopt an attitude of passive
defence. One should not wait to be punched by the
attacker.
Defences…
(ii) Consent
› Consent must be genuine, not obtained by force or threat.
› Case: Hegarty v Shine (1878) 14 Cox CC 145
 The plaintiff cohabited with the defendant for 2 years and
contracted venereal disease from him. She claimed he had been
assaulting her since her consent was vitiated by his failure to
disclose his ailment, which he was perfectly well aware. The trial
judges was of the view that “as a general rule, when the person
consented to the act, there was no assault; but if the consent was by
fraud of the party committed the act, the fraud vitiated the consent,
and the act became in view of the law an assault. Therefore, if the
defendant knowing that he had venereal disease and fraudulently
concealed from the plaintiff his condition, and induced her, and
communicated to her such venereal disease, he had committed
assault.” the defendant appealed, and the Court of Appeal ordered a
new trial.
Defences…
(iii) Sports
› Those who participated in sport consent to
reasonable conduct within the rules of the game.
› However, actions for assault and battery have
succeeded when the game has involved
considerable hostility and deliberate punches.
› In Pallante v Stadiums (No 1) (1976) VR 331, it
was held that the boxers agree to violent bodily
typical of the sport, but not to deliberate foul play.

Defences…
(iv) Legal Authority
› For purposes of enforcement of criminal law, police
and private citizens have the right to make arrests
and thereby interfere with the rights of others.
› It is preferable to obtain a warrant of arrest, but at
time there is a need for speedier action of
prevention.
› The powers to arrest and restraint by legal
authorities is provided under Article 5 of the FC.
› Power of arrest by private citizen and penghulu are
provided in the Criminal Procedure Code.

Defences…
 The police can arrest on grounds of “reasonable
suspicion” even though no offence had in fact
been committed.
 Suspicion can take into account matters which
could not be given in evidence at all. For example,
previous convictions or for mere interrogation.
 Case: Mohmood v Government of Malaysia
and Anor (1974) 1 MLJ 103
 Held: in effecting an arrest arising from reasonable
suspicions the police may first shots at a suspect if the
latter tries to escape from the scene of crime.


Law of Torts Overview

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Law of Torts Overview

Uploaded by

Copyright:

Available Formats

LAW 245

A tort may consist of

MUHAMMAD FIKRI BIN OTHMAN-FUU 07/04/2022 2

•Legal wrongs fall into 2 main categories,

MUHAMMAD FIKRI BIN OTHMAN-FUU 07/04/2022 4

(a) a wrongful An act of tort (b) causing

MUHAMMAD FIKRI BIN OTHMAN-FUU 07/04/2022 5

MUHAMMAD FIKRI BIN OTHMAN-FUU 07/04/2022 6

MUHAMMAD FIKRI BIN OTHMAN-FUU 07/04/2022 7

MUHAMMAD FIKRI BIN OTHMAN-FUU 07/04/2022 8

Assault Self Defence

MUHAMMAD FIKRI BIN OTHMAN-FUU 07/04/2022 9

MUHAMMAD FIKRI BIN OTHMAN-FUU 07/04/2022 11

1) intention of the defendant to do harm

2) effect on the plaintiff’s mind

3) capability of the defendant to carry

4) bodily movement of the

MUHAMMAD FIKRI BIN OTHMAN-FUU 07/04/2022 14

MUHAMMAD FIKRI BIN OTHMAN-FUU 07/04/2022 15

MUHAMMAD FIKRI BIN OTHMAN-FUU 07/04/2022 17

MUHAMMAD FIKRI BIN OTHMAN-FUU 07/04/2022 18

MUHAMMAD FIKRI BIN OTHMAN-FUU 07/04/2022 19

MUHAMMAD FIKRI BIN OTHMAN-FUU 07/04/2022 20

Purpose of the action is to afford

MUHAMMAD FIKRI BIN OTHMAN-FUU 07/04/2022 22

MUHAMMAD FIKRI BIN OTHMAN-FUU 07/04/2022 23

MUHAMMAD FIKRI BIN OTHMAN-FUU 07/04/2022 25

application of force on the plaintiff’s body or clothing.

plaintiff or his clothing would be sufficient to

MUHAMMAD FIKRI BIN OTHMAN-FUU 07/04/2022 26

MUHAMMAD FIKRI BIN OTHMAN-FUU 07/04/2022 27

MUHAMMAD FIKRI BIN OTHMAN-FUU 07/04/2022 28

MUHAMMAD FIKRI BIN OTHMAN-FUU 07/04/2022 30

MUHAMMAD FIKRI BIN OTHMAN-FUU 07/04/2022 32

MUHAMMAD FIKRI BIN OTHMAN-FUU 07/04/2022 33

MUHAMMAD FIKRI BIN OTHMAN-FUU 07/04/2022 34

MUHAMMAD FIKRI BIN OTHMAN-FUU 07/04/2022 35

MUHAMMAD FIKRI BIN OTHMAN-FUU 07/04/2022 37

MUHAMMAD FIKRI BIN OTHMAN-FUU 07/04/2022 38

› In Chaplain of Gray’s Inn’s (1400) YB 2 Hen. IV, fo. 8,

MUHAMMAD FIKRI BIN OTHMAN-FUU 07/04/2022 41

MUHAMMAD FIKRI BIN OTHMAN-FUU 07/04/2022 42

MUHAMMAD FIKRI BIN OTHMAN-FUU 07/04/2022 43

You might also like