LAW OF TORT

Revision Pack
Kong H. Tan LLM
Advocate & Solicitor
 Law of Tort

Fatal Injury
Cause of Action Personal Injury 1.Dependancy 2.Estate Others

Negligence Expenses Property Damage

Vicarious Liability Earning Pure Economic Loss

Occupier Liability Pain & Suffering

Loss of Amenities

Before 1/9/2019
Nuisance 10k for spouse and
Deductions
Ryland v Fletcher parents of unmarried
minor child
Defences

Statutory Duty Claim by Others Bereavement

After 1/9/2019
30k for spouse, parent
Road Transport Act Loss of Consortium (Bas Mini)
and child
Housework (Inthra Devi)
 Duty of Care Breach of Duty Damages

• Tenaga Nasional • Reasonable Man Test • Causation in Fact:- But

Law of Malaysia v Batu

Kemas Industri Sdn
Bhd [2018] 6 CLJ 683
eg Reasonably
Competent Driver (KR
Taxi)
For Test (Barnett) v
Material Contribution
Test (McGhee)

Negligence (FC). Caparo test is

the correct test for
Duty of Care in
• Medical standard –
Zulhanismar
• Professional adviser –
• Causation in Law:-
Damages must be
reasonably foreseeable
Manchester Building (Wagon Mound)
Malaysia
Society v Grant • Extent of Damages
• damage was
Thornton [2021] UKSC can be unforeseeable
foreseeable (scope of duty depends as long as the kind of
• relationship has on purpose of duty) damage is forseeable
proximity • Can take risk when the (Hughes v Lord
• fair, just and risk is low (Bolton v Advocate)
Evidential Issue • Egg-Shell Skull Rule
reasonable to Stone) vs risk is high
• Bingham Table can be admissible (Takong Tabari) (Smith v Leech Brain)
impose the duty
(Tabarani) • Can take higher risk for
• Sketch Plan can be admissible (Mustapah) social benefit (Daborn v
• Conflicting evidence, court will accept Bath Tranways)
which is inherently more probable • Only need reasonable
(Tabarani) mitigation (Latimer)
 •1. Employer – Employee Relationship
• Control Test – Mariasusai v Nam Hong Trading [1975] 2 MLJ 271
• Organization Test (Mat Jusoh v Syarikat Jaya [1982] 2 MLJ 71
• Multi-Factorial Test (Ready Mixed Concrete v Minister of Pensions)
• Gig Workers?

Vicarious
• UKSC in Aslam held that they are employees
• Diego Franco v Deliveroo Australia Pty Ltd [2021] held they are employees
• Loh Guet Ching v MyTeksi Sdn Bhd (Malaysia). According to report HC

Liability considered Aslam and rejected. Held Not Employee.

•2.Course of Employment
• What if the employee finished his work and was on the way home and then
cause an accident? Held still in the course of employment – Zakaria v Chooi
Kum Loong [1986] 1 MLJ 324

•Alternative is to rely on Non-delegable Duty

• Decided by the UK Supreme Court in Woodland v Essex County Council.
Approved in Malaysia FC in the case of Dr Kok Choon Seng v Soo Cheng Lin
[2017] 6 AMR 609 and Dr Hari Krishnan & Anor v Megat Noor Ishak bin Megat
Ibrahim & Anor and another appeal [2018] 3 CLJ 427
 • Is there a premise? Lau Tin Sye v Yusuf bin
Muhammad defines premise as “all forms of
buildings, land spaces, vehicles to carry persons
including tractors, any structures, e.g. scaffolding,
ladders, walls, pylons, grandstand”

Occupier’
• Who is the occupier?
• Sufficient degree of control (Wheat v Lacon)
• Duties owed depends on categories of entrant
• Contractual – as per the express or implied term

s Liability of contract that the premise is safe (Maclenan v

Segar)
• Invitee – unusual danger which occupier knows or
ought to know but invitee does not (Takong
Tabari)
• Licensee – only hidden trap known (DBKL v Ong
Kok Peng)
• Trespasser – duty to warn (LLN v Ramakrishnan)
Nuisance
Test of unreasonableness is what is
reasonable according to ordinary usages of
Public Nuisance Private Nuisance
mankind living in unreasonableness
Test of a particular societyis- Federal
what
• there is an • there is an interference Court decision of Au Kean
is reasonable Hoe v to
according Persatuan
interference with the with the enjoyment of Penduduk D’villa usages
ordinary Equestrian [2015] living
of mankind 4 MLJ
enjoyment of his life his property; 204 FC. However see High
in a particular Court
society case of
- Federal
in society; • that such an Parkville Court
v MBPJ, localof
authority can decide
decision Au Kean Hoe v
• that such an interference was not to allow the resident association
interference was unreasonable; and Persatuan Penduduk D’villafrom
unreasonable; and imposing Equestrian
such rule [2015] 4 MLJ 204 FC
• that the interference
• that the interference had caused him
had caused him damage.
special damage
compared to others
 •Yung Kong Co Bhd V. HHH Tyre
Retreading Sdn Bhd [2009] 4 CLJ 424

Ryland
(spark from welding escape and cause
fire)
• Accumulation of things like to cause

v damage if they escape

• Non-natural use of land
• The thing escaped and cause

Fletcher damages
• Damages must be reasonably
foreseeable (Cambridge Water
Company)
 Hu Sepang v Inspector Keong
•Injury is within ambit of statute
• Plaintiff must be in the category of people that the statute intends to protect
•Statutory Duty imposes a liability to civil action
• Eg Occupational Safety and Health Act s59;
• Street Drainage and Building Act s95 – Stephen Phoa, court diallowed claim against local
authority

Statutory
• Ouster clause found unconstitutional in Semenyih Jaya, now held valid in Maria Chin
Abdullah
•Statutory duty was not fulfilled

Duty
• Must be mandatory and absolute duty not discretionary
•Breach of Duty caused the Plaintiff’s injury

Examples of Statutory Duty

• Factory and Machinery Act 1967
• Government Proceeding Act 1956 – s7 maintenance of road and public building - Raymond Cheah
Choon Sing v. Jurutera Daerah, Jabatan Kerja Raya Seberang Perai Tengah & ors [2017] 9 CLJ 543
– Motorcyclist falling into pothole, government found liable
• Local Government Act – s101 maintenance of trees and street lighting - KPS-HCM Sdn Bhd v.
Shahrul Izewan Mat Husin [2018] 6 CLJ 772 - Local Authority liable for trees falling on a
motorcyclist
• Highway Authority (Malaysia) Incorporation Act 1980 - Parimala a/p Muthusamy & Ors v Projek
Lebuhraya Utara Selatan PLUS found liable for stray cows
Road Transport Act 1987
• Mandatory third party insurance – s90 RTA
• S96 RTA impose liability on the insurer provided 3 conditions are fulfilled:-
• Judgment against insured
• Notice given to insurer before or within 7 days after the
commencement of the proceedings against the insured
• Policy of insurance was in force at the time of the accident
• To avoid liability, insurer will normally commence proceeding under s96(3)
to obtain a declaration that the insurance is void.
• That the death or injury is someone in the employment of the insured
against s91(1)(aa), see Federal Court decision in Malaysian Motor
Insurance Pool v Tirumeniyar a/l Singara [2019] 7 AMR 385
• That the insured causing the death or injury was committing a crime
Pacific & Orient Insurance v Kamacheh Karuppen (CA)
Defenses
Limitation Period
• 6 years for tort under Limitation Act; 36 mths (s38 GPA and PAPA); 3 years for dependency claim

Volenti
• Lee Geok Theng v Ngee Tai Hoo –fully aware and took the risk voluntarily

Contributory Negligence
• S12(4) Veronica Joseph - -only apply to estate claim and not dependency claim. To apply CA, estate must be made
a party. Veronica Joseph followed in Balachandran but not in Lim Chai Oon.
• Froom v Butcher, English CA held only it is only contributory negligence not to wear seatbelt/helmet, if it could
be proven that wearing it could completely avoid the damage sustained by the Plaintiff
• Divian Michael v Mohd Falil [2013] 7 MLJ 313. Not CN in an emergency situation
• Wong Li Fatt William (infant no CA)
• Chu Kim Sing (not CN if Plaintiff’s vehicle has no road tax and insurance)
• Ahmad Zulfendi v Mohd Shahril (lack of license, road tax etc should not be a factor to increase liability)

Novus Actus Interveniens

• Plaintiff own conduct (McKew)
• Third Party (Haynes v Harwood)

Act of God
• Heavy rain not Act of God (Hoon Wee Thim v Pacific Tin)

Latent Defect
• Evidence of maintenance and that the defect was unknown (Tan Chye Choo)
Expenses • Costs that have been incurred and supported by receipt
Dependent • Note for fatality, claim by either dependency or estate
Injured Estate
s • Hospitalization – Public hospital allowed, private hospital with
justification (Yaakub Foong)
Hospital Hospital Hospital • Overseas treatment (Dharam Singh); Traditional Medicine
(Seah Yit Chen); Special Diet (Yeap Cheong Hock);
Traditional
Medicine / Funeral Funeral Transportation (Chan Kim Hee): can be allowed with
Special Diet
justification
Medical
• Medical apparatus – best that money can buy (Appalasamy)
Cost of Probate Cost of Probate
Apparatus • Housekeeper:- Injury (Manogharan v Fauziah [2005] 5 MLJ
34), Dependency (Neo Kim Soon)
Housekeeper Housekeeper
Cost of Care
Multiplier – actual duration or
Transportation Transportation
1.statutory (Marappan)
2.statutory not followed (Wong Li Fatt)
Cost of Care 3.statutory plus contingency (Asainar)
4.life expectancy (Bujang bin Mat)

Multiplicand – 1.professional cost or 2.working caregiver, lost wages

(Donnelly) or 3.non-working caregiver, market rate (Housecroft)
Earnings Preconditions S7(3)(iv) & S28A(2)(c)
Pre-Amendment
Before 1 Sept 2019
• Plaintiff must be below 55
• Earning legal income
• In good health
After Amendment
1 Sept 2019 onwards
• Plaintiff must be below 60
• Earning legal income
Must be earning
Dirkje (sabbatical), Tan Kim Chuan (schoolboy) -
cannot claim
Marappan (teacher training allowance); Nagarajan
(allowance by employer) – can claim
Earning must be legal
Lee Seng Kee v Sukatno [2008] 4 AMR 405 –
Indonesian Illegal worker, cannot claim not a case
of expired work permit, Putri Ayu v Raulammah
Nooraiah (illegal school van cannot claim); if can
legitimized then can claim eg Tan Lye Seng, TP
Safeer
For Dependency Claim
• Must be statutory dependant
• Dependant must have suffered actual loss after
Deceased death Yap Ami, Lim Chai Oon
 Claims for Earnings
Multiplier Multiplicand
Pre-Amendment Before 1/9/2019 Earning Method (both Injury and Death)
Income – Tax (Yaakub Foong) + EPF (Noor Azhar) – Personal
• 30 and below - 16 Living Expenses (Tey Chan – expenses related to work. Chang
• Above 30 – 55 minus Age divide by 2 Chong Foo, Noor Famiza, Rebecca Matthews - deducted personal
expenses. Gan Chai Giok – s7 & s28A same meaning)
After Amendment 1/9/2019 onwards
Contribution Method (only for Death)
• 30 and below - 16 Total Contribution minus Expenses solely for Deceased (Minachi)
• Above 30 – 60 minus Age divide by 2
Proof of Earning
Lee Thiam v. Fatimah Bte Salleh (FC) followed in Lim Kang Seng v
One-third contingency deduction rule Rani Marimuthu (HC), Pantai Medical Centre v Fareed Reezal
There is no hard and fast rule that a person's income has to be
Chan Chin Ming v Lim Yok Eng (SC) – statutory multiplier reduced to 7 due to contingency
of subsequent marriage of such unmarried child, strong dissenting judgment.
proved by documentary evidence only.

Takong Tabari (CA) - to deduct a sum for contingencies, or other vicissitudes of life and Prospect of Increase (both Injury and Death)
accelerated payment at common law Cannot take into account
Chang Feng – can take increment into account if increment
Ibrahim bin Ismail (CA) overruled Chan Chin Ming as they are same level with Chan Chin already confirmed
Ming when it comes to accident cases as Chan Chin Ming was decided before Court of
Appeal was set up.
Contribution for services rendered while alive (only for Death)
Ibrahim bin Ismail followed in Noraini v Rohani [2006] 3 AMR 185 but not in Esah v Subject to s7(3)(iii) & Hum Peng Sing
Kerajaan Malaysia [2006] 6 MLJ 1
Claims for lost of earning for “lost years”
Lee Cheng Yee v Tiu Soon Siang [2004] 1 AMR 1
LOST OF
Loss of Earning Capacity

•Dirkje – awarded
EARNING
CAPACITY •Tan Kim Chuan – not awarded

•Sumarni v Yow Bing Kwong (CA) [2008] 1 AMR 259 –

Indonesian maid awarded RM20k

•Tengku Rosli v Tahir [1983] 2 MLJ 287 – not awarded to 11year

old boy

•Cassell v Riverside Health Authority – one day old who

suffered brain damage awarded loss of earning capacity.

•Azizi v Hizzam (CA) – awarded for shortening of legs

Pain & Suffering and Loss of Amenities

Injured Estate
P&S only if conscious and
P&S only if conscious - didn’t die instantly -
Yang Salbiah Maimunah v Abu Bakar
[1964] MLJ 223

LOA can be claimed if

LOA can be claimed if
didn’t die instantly -
unconscious - Yang
Maimunah v Abu Bakar
Salbiah
[1964] MLJ 223

Can claim LOA for lost of

marriage prospect
Wong Kuan Kay v
Rohaizad [2015] 4 CLJ
902

No Claim for Loss of

Expectation of Life but
can claim for P&S of
knowing it – S28A(2)(b)
 DEDUCTIONS

No YES
YES
DEATH

• s28A / s7(3)(i) Employer Contractual Payment Deceased Savings

• Insurance Soo Cheng Lin Brown v War Office Lim Ah Moy
(both personal accident &
hospital insurance)
• Pension/Gratuity/EPF
• Payment under Written Law

• Employer Gratuitous Payment

Lim Kiat Boon

• Donations Parry v Cleaver

 Property Damage
If totally destroyed then market value of car at time of accident (Motor and General Insurance v
Pok Siong Kok)
Cost of Repair (Abdul Hamid v Tan Chu Kin)

Reinstatement is subject to principle of depreciation or betterment (Chip Fong v Guardian Royal

Exchange)
Can claim for diminution in value (Lim Seong Choon v Rayaratnam)

Cannot claim for damages to illegal property (Muhamad Saleh v Percon)

Can claim for items lost during the accident (Parvathy)

When is Pure •For Negligent Mistatement, there must be
assumption of responsibility like a Hedley v
Economic Loss Bryne situation

allowed in •For Defective Premises, it must be

Malaysia? reasonably foreseeable, and it is fair just
and equitable to impose such a duty -
Majlis Perbandaran Ampang v Steven Phoa
(FC)