TORT

 A tort is a civil wrong that is committed against an individual or an

entity (e.g. a company)

 Tort law is used to give a remedy to whom has been affected,

INTRODUCTI injured or loss due to act of other people
ON
 For Professionals – liability may be in contract and tort of
negligence

Tort 2
  A tort may consist of either a wrongful act or omission, which is
not authorized by the law

 In most cases, the act or omission which does not give rise to an
INTRODUCTI action for damages is not a tort
ON
 However, some tort like trespass are actionable per se i.e. action
will succeed even without any damage or injury suffered

Tort 3
  It is concerned with the imposition of legal liabilities and the
consequent remedies in respect of civil wrongs committed against
recognized entities

 It is a liability which is not dependent on contractual agreement

INTRODUCTI
ON  The breach of a tortious liability is usually re-dressible by an action
for unliquidated damages

 It is unliquidated because no one knows exactly how much the

judge will award

Tort 4
  The difference:

 Liability on contract - limited only to the contracting parties. The

duties are fixed by agreement of parties
CONTRACT vs
TORT  Liability in tort - wider in that any person who has suffered
damage as a consequence of the negligence may have a cause of
action against him. Duties imposed by civil law irrespective of
parties’ consent

Tort 5
  Contract law aims to enforce promises

 Tort law is to compensate for harm suffered

CONTRACT vs
TORT  A person may make a claim under both tort and contract because
if one claim fails, he can rely on contract. However, if both claims
succeed, the court will grant damages under one claim only to
avoid double compensation

Tort 6
  Tort may be categorized as follows:

 Negligence - most important tort

 Defamation
LAW OF TORT
 Occupier’s liability

 Vicarious liability

Tort 7
  Trespass to persons, land and goods

 Nuisance

 Strict Liability - Ryland v Fletcher

LAW OF TORT
 Professional Liability

 Breach of statutory duty

Tort 8
  Negligence is a breach of a legal duty to take care, which results in
damage, undesired by the defendant, to the plaintiff

 The elements of negligence:

TORT OF  The defendant owed a duty of care to the claimant

NEGLIGENCE
 The defendant must breach that duty of care

 The claimant has suffered relevant damage as a foreseeable

consequence of or caused by the breach

Tort 9
  The court will assess whether the defendant owed a duty of care
to the plaintiff
Duty of care
 The test for the existence of duty owed to the plaintiff is laid down
by the “neighbour principle” in Donoghue v Stevenson (1932)

Tort 10
  Mrs Donoghue drinking a bottle of ginger beer bought by her
friend. A dead snail was in the bottle

 She fell ill, and she sued the ginger beer manufacturer, Mr
Stevenson

Duty of care  The House of Lords held that the manufacturer owed a duty of
care to her, which was breached, because it was reasonably
foreseeable that failure to ensure the product's safety would lead
to harm of consumers

Tort 11
 Lord Atkin on the duty of care:

 “You must take reasonable care to avoid acts or omissions which

you can reasonably foresee would be likely to injure your
neighbour”

Duty of care
Who is your neighbour?
 “Persons who are so closely and directly affected by my act that I
ought reasonably to have them in contemplation as being affected
when I am directing my mind to the acts or omissions which are
called in question”

Tort 12
  How to identify the neighbour?
 By identifying the class of people to whom a duty may be owed in
that particular scenario

Duty of care  This includes:

 Those close enough to be directly affected by the allegedly
negligent act
 Those close enough that the alleged tortfeasor should have had
their interests in contemplation when acting as he or she did

Tort 13
 Issue under sale contract:
 It was Mrs Donoghue’s friend that purchased the ginger beer that
caused her injury. Hence, only her friend had a right to sue the
retailer under the contract of sale (privity of contract)

Duty of care  The House of Lords solved this problem by imposing liability in
negligence on the owner of the cafe

 It would be possible where a duty of care could be found to lie

between the owner (the tortfeasor) and the victim (Mrs
Donoghue)

Tort 14
 Next is to assess is whether the duty of care was breached

 The test whether the defendant is in breach is to ask if he behaved

as a reasonable man would have behaved in the circumstances

Breach of duty  Baron Alderson in Blyth v Birmingham Waterworks Co (1856) laid

down the test:
of care
 “Negligence is the omission to do something which a reasonable
man, guided upon those considerations which ordinarily regulate
the conduct of human affairs, would do, or doing something which
a prudent and reasonable man would not do”

Tort 15
 Who is the “reasonable man”?

 An ordinary man or lay person on the street who should rightly be

of prudent or reasonable mentality or reasoning

Breach of duty
 The standard of care is that of a ordinary reasonable person
of care expected in the situation

 The standard of care required of the defendant would affect

whether he has breached that standard

Tort 16
  If it is in a professional capacity, the standard of care required is
that of as expected of a reasonable professional in the defendant’s
discipline in the situation

Breach of duty  Example: A professional designer who undertakes the work of a

of care designer is expected to have the standards of a professionally
qualified designer

Tort 17
 Is there negligence?
 The claimant was a driving instructor and the defendant his pupil

 On her 3rd lesson, she drove into a lamp post and the claimant
was injured.

Breach of duty
 Held: She was required to come up to the standard of the average
of care person competent driver, and anything less amounted to
negligence

 It was reasonably foreseeable that the injury would occur

Tort 18
  Next is to determine whether the breach of duty can be
conclusively shown to have caused a consequential damage to the
plaintiff

Damage as a  The test is ‘but for’ test whether the damage would have occurred
result of but for the breach of duty
breach
 The damage must not be too remote from the breach of the duty
of care

Tort 19
 Barnett v Chelsea & Kensington Hospital [1969]
 Barnett’s husband felt sick after drinking tea at work and went to
the hospital. The nurse on duty telephoned the casualty doctor
who refused to examine the man and advised him to go home. If
he still felt unwell in the morning, then only consult a doctor
Damage as a
result of  The doctor was at home and would not have been able to first see
breach the man. Barnett subsequently died at about 1:30pm. Barnett’s
husband died from arsenic poisoning

 Barnett sued the hospital for negligence

Tort 20
  “But for” test - was the defendant’s negligence the cause of the
Damage as a death, or would it have inevitably happened anyway?

result of
 The suit failed. The court accepted that the defendants owed a
breach duty of care and they had breached that duty by failing to examine
him. However, the breach did not caused his death

Tort 21
  Based on the evidence, if Barnett had been admitted to the
Damage as a hospital upon his arrival, he would likely have died anyway and
there was nothing defendant could do to save him
result of
breach  Thus, it could not be said - Barnett would not have died but for the
hospital’s negligence

Tort 22
  The damage must not be too remote. If it is too remote and
unforeseeable, plaintiff is not entitled for compensation

 Remoteness of damage means the breach of duty must be

Damage as a primary cause of the damage

result of
 E.g. if Andy throws some firecrackers intending it as a joke and
breach Belle’s eye is injured as a result, Andy would be liable

Tort 23
  The claim was for negligence in the handling of the UPSR
examination papers. 480,000 Year Six pupils had to retake Science,
English, Mathematics & Tamil papers

 Ananda, from SK Taman Tun Dr Ismail (2), who has dyslexia, filed
Is there the suit (through his mother) in October 2014 against the
Malaysian Examinations Syndicate and Putrajaya
negligence?
 Ananda claimed he had suffered from emotional and mental
stress as a result of the examination fiasco. He said he lacked the
will to repeat the entire process of preparation to retake the UPSR
papers

Tort 24
  In his statement of claim, Ananda said he was more depressed
than the other pupils over the resit because of his disability

 Dyslexia is a learning disorder characterized by difficulties with

Is there accurate word recognition, decoding and spelling
negligence?
 He said the syndicate, its employees and their agents were
negligent, which resulted in the leak of the 4 papers

Tort 25
  The High Court struck out a suit. The action against the
defendants was not sustainable. “The suit has failed to pass the
test of reasonable foreseeability and close proximity”

 The judge said the Malaysian Examinations Syndicate’s (first

Is there defendant) Director may be responsible for the overall supervision
and overseeing the UPSR but it would not be fair, just and
negligence? reasonable to impose a duty of care on her in respect of each and
every student

 She also ordered costs of RM3,000 to be paid to the defendants

Tort 26
  Wan Hailmey was warded at Selangor Specialist Hospital Sdn Bhd
for 5 days from 18 May 2015 to treat his cervical disc disorders

 He said he was served with lunch on 20 May 2015 where he found

his vegetable portion contained a cockroach

Is there  He said he had eaten the “head and leg” part of the cockroach that
negligence? day, causing him to suffer dizziness, vomiting, loss of appetite,
stomach pain and fever

 He said he called several nurses at his ward to show them the

cockroach. He claimed some of them had also taken photograph
of the insect

Tort 27
  In the suit filed on 6 August 2015 asking for damages, Wan
Hailmey said he was later traumatized to eat rice again and that
the incident had affected him emotionally

 He also claimed that Selangor Specialist Hospital Sdn Bhd, named

as the sole defendant, was negligent in its duty of care to ensure
Is there food provided to patients was safe and clean from any dirt and
negligence? insect pest

 Wan Hailmey said he had on 1 June 2015 lodged a complaint to the

Health Ministry's Food Safety and Quality division over the
incident

Tort 28
  In defence, the defendant said the plaintiff had only created the
story and that he did not complain over his symptoms for stomach
pain, vomiting and fever

 The defendant denied the negligence allegations, saying that the

claim by the plaintiff that he had eaten the cockroach in his lunch
Is there while being warded at the hospital could not be trusted
negligence?
 The plaintiff and his doctor who treated him for his stomach pain
had testified for him while two other witnesses, including a
housekeeper leader, had given evidence for the defendant on 5
Feb 2016

Tort 29
  Sessions Court judge G. Ramesh held that Wan Hailmey had
proven his case after hearing evidence from witnesses from both
parties

Is there  It was held that the specialist hospital was found negligent for
serving him vegetables containing a cockroach for lunch
negligence?
 In allowing the negligence claim with costs, the judge ordered
Selangor Specialist Hospital Sdn Bhd to pay the plaintiff RM7,000
over his abdominal pain and diarrhoea for five days, and another
RM60,000 in exemplary damages

Tort 30
  A plaintiff who has convinced the court on elements above will
have to prove the loss that the defendant has caused

Quantum of
 The court will assess the quantum of loss that the plaintiff is
Loss entitled to and award an appropriate amount to compensate the
plaintiff for the damage done by defendant

Tort 31
 Some of defences to a negligence claim:

 Contributory negligence
 Mitigation of loss
DEFENCES  Volenti Non Fit Injuria
 Inevitable accident
 Act of God
 Limitation period

Tort 32
  This is where the plaintiff’s injury have been caused by negligence
of the defendant and partly by his own negligence

Contributory  The plaintiff may recover nothing, or

negligence
 The damages recoverable by the plaintiff may be reduced to such
extent as the court thinks fair and equitable

Tort 33
  A car driver or passenger who does not wear a seat belt. Not
wearing the seat belt does not cause the accident, but it
contributes to the damage or the injury

 If this claim is valid, any damages awarded to the plaintiff may be

Contributory reduced by an amount that represents the portion of the blame
negligence assumed

 If a claimant is found to have contributed by 20%, that same 20%

will be deducted from the compensation received

Tort 34
  Not entirely a defence, but it may reduce the amount of damages
payable to the plaintiff

 Whether the plaintiff is guilty of contributory negligence or not,

there is a duty to take reasonable steps to mitigate the loss. i.e. to
Mitigation of cut down or reduce the loss instead of doing nothing and letting
the loss get larger
loss
 If the plaintiff fails to mitigate, the court would reduce the amount
of damages to the extent that the loss is attributable to such
failure

Tort 35
  Based on the notion that if a person voluntarily assumes risk, he
cannot be heard to complain

Volenti Non Fit  Limited application i.e. concerning injuries sustained in dangerous
sports like rugby and boxing
Injuria
 It has not been allowed as a defence to a claim for injuries
sustained whilst engaged in dangerous occupation

Tort 36
  This is general defence i.e. the accident could not be reasonably
foreseeable or prevented by exercise of ordinary care, caution and
skill
Inevitable
accident  Meaning, the accident is too remote

Tort 37
  Defendant may pleads “Act of God” when the damage to the
plaintiff is caused by natural forces

 E.g. Lightning, earthquake

Act of God
 This is where human foresight or prudence could not have
prevented the damage

Tort 38
  Actions are time-barred after

 The Limitation Act 1953 – general tort actions must commence

within a period of 6 years
Limitation
period  Where a claim is made for personal injuries, the period is 3 years

 The period is from the date when the cause of action accrued or
when the plaintiff knew or ought to have known the material facts
of the case

Tort 39
  The defendant says or writes something which lowers the
plaintiff’s reputation in the eyes of right-thinking members of the
society generally

There are two forms of defamation:

DEFAMATION  Libel – defamation in a permanent form such as writing, printing
and painting

 Slander – defamation in the form of oral statement

Tort 40
 3 elements to prove defamation:

1. The words are defamatory

DEFAMATION 2. The words are referred to the plaintiff

3. The words have been published

Tort 41
  Ciara is suing her ex-boyfriend, Future for USD15 million

 The lawsuit claims Future’s tweets on his personal account about

Ciara and their son, Future Jr. constitute libel

Libel
 Future tweeted many times that Ciara was making it difficult for
him to see his son

 He wrote, “This xxxxxx got control problems...”. The tweet has

been deleted

Tort 42
  Slander is defamation in the form of oral statement

 The statements can be made anywhere and to anyone, as long as

it's to a 3rd party
Slander
 Example: If you tell your best friend something defamatory about
your ex-girlfriend, she could sue you for defamation if she could
prove that she was affected/damaged as a result of your
statement

Tort 43
 General examples:

 Telling someone that a certain person has a sexually transmitted

disease
 Relating to someone that a husband is cheating on his wife
DEFAMATION
 Saying a doctor has fake diplomas on his wall
 Stating that a severed finger was found in the soup at a restaurant
 Saying your lecturer had an affair with the boss to get a promotion

Tort 44
 Robin Williams

 Robin Williams sued his celebrity look-alike who was pretending to

be the actual Robin Williams
DEFAMATION
 Under false pretense, the look-alike was cheating charities under
Robin Williams’ name and causing serious damage to his
reputation

Tort 45
  “I think Peter stole RM500 from me last week”

 Is this defamation? A mere opinion or a statement of fact?

 This seems more like an opinion than a statement of fact

DEFAMATION
 An opinion can’t be defamatory. After all, this statement is
qualified by saying “I think that” Peter stole the money

Tort 46
  Defamatory statements must be statements of fact
 However, just saying or writing “I think” doesn’t automatically
convert a statement of fact into a statement of opinion

 But, if you are talking to people who trust and believe you, and
DEFAMATION who know that you don’t joke around, they are very likely to
believe you

 Hence, they would believe that Peter stole money from you. Thus,
if Peter did not steal any money from you, you have slandered
Peter

Tort 47
  Liability of the owners of the premises for any damage suffered by
visitors to the premises

 Occupier’s liability will arise in a situation where the premises are

not as safe it should reasonably be and this defective state, which
OCCUPIER’S includes activities carried out on the premises causes injury or
damage to the plaintiff
LIABILITY
 Premises include all forms of buildings, land spaces, vehicles
which are used for carrying persons including tractor’s and
structures such as scaffolding, ladders, walls and other

Tort 48
  An occupier of premises owes the same duty to all his visitors to
ensure that they are reasonably safe in using the premises for the
purposes for which they are invited (or permitted by the occupier)
to be there

OCCUPIER’S  E.g. if you invite your friend into your house and she slides down
the banisters due to wet floor, you may be liable
LIABILITY
 To avoid this, occupier may restrict his duty of care by putting up
warning signs or exclusion clauses. E.g. ‘keep out’, ‘staff only’,
‘private’, ’park at your own risk’…

Tort 49
  Vicarious liability means employers are liable for the torts of their
employees, committed during the course of employment

 Refers to a situation where Andy (employer) is liable to Coco for

damage or injury suffered by Coco due to the negligence or other
VICARIOUS tort committed by Belle (employee)

LIABILITY
 E.g. Belle was driving her employer’s van (belongs to Andy) to
transport some goods to a supplier when she negligently struck
Coco’s car. Belle’s employer (Ali) would be liable to pay for Coco’s
damages

Tort 50
  Employers are not vicariously liable for torts committed by
independent contractors under the contract for services

 However, the employer is still liable for damages caused by his

VICARIOUS independent contractor if the employer is in breach of certain duty
which he owes to the plaintiff
LIABILITY
 E.g. where the employer has failed to select a competent
contractor to carry out the work

Tort 51
 It is important to determine whether a person is an employee or
independent contractor. Why?

 Because employers will only be liable for the torts of their

employees
VICARIOUS
LIABILITY  Employers usually are not liable for the torts of their independent
contractors

 The intention of the parties is not necessarily conclusive

Tort 52
 The test:

1. Was a tort committed?

VICARIOUS
LIABILITY 2. Was the tortfeasor an employee?

3. Was the employee acting in the course of employment when

the tort was committed?

Tort 53
 The control test

 The distinction between a contract of services and a contract for

service

VICARIOUS  Contract of service - he can, not only order or require what is to be

done, but how it shall be done
LIABILITY
 Contract for service – the master can order or require what is to be
done

Tort 54
 The accepted views of an employee:

 An employee is a person whose mode and method of work is

VICARIOUS controlled by the employer, especially when and where the job is
done
LIABILITY
 People who have a ‘contract of service’ i.e. an employment
contract are employees

Tort 55
 The accepted views of an independent contractor:

VICARIOUS  An independent contractor is one who exercises control over the

way and manner he does his job
LIABILITY
 People who have a “contract for services” i.e. a service contract
are independent contractors

Tort 56
  An employer is liable for the torts of the employee but he is not
liable for the torts of the independent contractor

 The degree of control exercised by an employer over the way and

VICARIOUS manner a person’s job is to be done usually determines the status
whether the person is an employee or independent contractor
LIABILITY
 However, in certain circumstances, control solely will not be the
determining factor

Tort 57
 The “integral part of the business” test

 Lord Denning in Stevenson, Jordan and Harrison Ltd v McDonald

VICARIOUS and Evans [1952]

LIABILITY
 “It is often easy to recognize a contract of service when you see it,
but difficult to say wherein the difference lies…”

Tort 58
  “...A ship’s master, a chauffeur, and a reporter on the staff of a
newspaper are all employed under a contract of service; but a
ship's pilot, a taxi-man, and a newspaper contributor are
employed under a contract for services
VICARIOUS
LIABILITY  One feature which seems to run through the instances is that,
under a contract of service, a man is employed as part of the
business; whereas, under a contract for services, his work,
although done for the business, is not integrated into it but is only
accessory to it.”

Tort 59
 It may be divided into 3 different torts:

1. Assault
2. Battery
3. False imprisonment
TRESSPASS
TO PERSONS  Direct interference with the person or body of the plaintiff
 May be intentional or negligent
 The onus of prove is on defendant to prove the absence of both
 A civil wrong as well as a criminal act

Tort 60
  Assault is an intentional and direct act of the defendant which
causes the plaintiff to fear for his safety

 It is an act that consists of a threat of harm with the ability to carry

out the threat

Assault
 Example: Andy threaten to hit Belle and he advanced with
clenched fist. He was stopped by Coco before he could hit Belle

Tort 61
 Elements of assault

 The mental state of the defendant – must have the intention to do

his act
 The effect on the plaintiff – must feel reasonable apprehension
that a force will be inflicted
Assault  Capability to carry out the threat – would a reasonable man
believe that the defendant will realize his threat
 Bodily movement – Some bodily movement is necessary even
though assaults involve no contact

Tort 62
  A battery is the actual touching or striking of another person

 It is an intentional and direct application (physically touch) of the

Battery defendant to plaintiff (by force) and without his consent

Tort 63
 Elements of battery

 The mental state of the defendant – must have applied the force
with intention

Battery  The defendant’s act was under his control – defendant must act
voluntarily
 Contact – there must be “unwanted” contact. Not necessarily
violent
 Without plaintiff’s consent – some consent may be implied e.g.
tapping someone’s shoulder to get attention

Tort 64
  Assault  Battery
 The issue of consent does not arise
 The plaintiff experience reasonable apprehension of an
Assault vs  The
immediate infliction of force issue
upon of consent does not arise
his person
Battery Thethreat
 The tort protects one from the plaintiff experience
of any physicalreasonable
apprehension
violence, as well as to maintain a person’sofmental
an immediate infliction of
well being
force upon his person
 The tort protects one from the threat of
any physical violence, as well as to
maintain a person’s mental well being

Tort 65
 Kanye West
 Danny Ramos, a paparazzi sued Kanye West after they tangled at
the airport, alleging assault and battery

 Danny who was standing about 10 feet away from Kanye, called
out to him and asked, “Kanye, can we talk to you, Kanye?” He then
Is this asked “What's going on? Why can’t we talk to you? I mean, why?”

trespass?
 Kanye then tried to wrestle Danny's camera away, but the
paparazzi held onto the camera and fell down onto his knees

 He sustained injuries to his right hip and had to be transported in

an ambulance to a hospital

Tort 66
  The plaintiff is unlawfully detained, against his will, by the
defendant

 It is unlawful violation of the personal liberty of another

False  “The idea that they were imprisoned and forced to fly on private
Imprisonment jets to Florida, to socialize with celebrities such as Chris Tucker is
absurd on its face”. Is this false imprisonment?

 False imprisonment is an intentional and directly places the

plaintiff a total restraint upon his liberty (unlawfully detained
against his will) by the defendant

Tort 67
  Direct and voluntary physical interference with another person’s
lawful possession of land or premises

It covers:
TRESSPASS  Unauthorized entry into or use of someone’s land intentionally or
negligently
TO LAND
 Remaining after permission given has expired

 Leaving things on land without permission

Tort 68
  Trespass to land is completed once a person wrongfully enters
onto land in the possession of another even though no damage
was done

TRESSPASS Example:
TO LAND  Andy entered Belle’s land under duress

 Andy put up an advertising board to project 10cm into Belle's

property at ground level

Tort 69
  A wrongful and direct interference with goods in any way that is
inconsistent with the rights of the owner of those goods

TRESSPASS 2 types:

TO GOODS
 Detinue
 Conversion

Tort 70
  Wrongful retention of goods

Example:
Detinue
 Lucy borrowed Belle’s dress to go to a party but later she refused
to return it to Belle

Tort 71
  Dealing with another person’s goods in a manner which is
inconsistent with the rights of the true owner

Conversion
Example:
 Lucy now sells Belle’s dress to Coco

Tort 72
  A nuisance may be either ‘public’ or ‘private’

 Public nuisance – the defendant unreasonably interferes with the

comfort of the society in general. E.g. smoke, fumes, noise

NUISANCE
Example:
 Obstruction of public highways
 Pollution of streams with trade refuse within a local authority area

Tort 73
  Private nuisance - the defendant unreasonably interferes with the
comfort of the plaintiff’s lawful use or enjoyment of his land

Example:
NUISANCE  Activities from a factory that produced harmful gases caused skin
diseases
 Loud noise from the neighbour who holds party every night

Tort 74
  Strict liability principle is known as the “Rylands v Fletcher Rule”
from the 1868 case

STRICT  The injured party is only required to prove that he was harmed in
specific way
LIABILITY
 No need to prove the defendant’s fault, negligence or intention.
Meaning even if one is not at fault, he can be held liable for tort

Tort 75
  Rylands and Fletcher were neighbour. Rylands owned a mill

 He constructed an artificial water reservoir on his land for energy

requirement
STRICT
LIABILITY  The mineshafts broken and led the water into the mine owned by
Fletcher. This resulted in a flood and damaged Fletcher’s operation

 Fletcher sued Rylands

Tort 76
  The defendant (Rylands) is responsible for any damage caused by
something collected on his land due to non-natural use of the
land. The defendant’s use of the land was unreasonable, engaged
in without proper caution, and resulted in harm to the plaintiff
(Fletcher)
STRICT
LIABILITY  The rule in Rylands v Fletcher stipulates that where a person for
his own purpose brings in and keeps in his land anything likely to
do mischief, if it escapes, he keeps it at his own peril; if he fails to
do so, he is liable for all damage which is the natural consequence
of its escape. This principle applies to beasts, water, fire, etc.

Tort 77
  Strict liability principle is common in activities that are inherently
dangerous

Example:
STRICT  Blasting works
LIABILITY  Demolition projects
 Keeping wild animals
 Transporting, storing or using hazardous materials
 Emitting toxic fumes

Tort 78
  The professional man often relates with their negligent conduct,
PROFESSION thus, the terms “professional” and “negligence” remains
inseparable and crucial
AL
NEGLIGENCE  It can be described as liability of professional advisers to provide
advice of a certain standard

Tort 79
  The duty of professional depends very much on what the
professional is employed to do

 Hedley Byrne & Co. Ltd v. Heller & Partners Ltd (1964) – The
PROFESSION professional owes a duty of care to both the Client and the 3rd
AL party. When the 3rd party suffers financial loss due to professional
negligence, he may claim damages
NEGLIGENCE
 The negligence must be committed in the ordinary course of
business or professional affairs

Tort 80
  An architect is one who possess, with due regard to aesthetic as
well as practical considerations, adequate skill and knowledge to
enable (i) to originate (ii) to design and plan (iii) to arrange for and
PROFESSION supervise the erection of such buildings other works calling for
skill in design and planning as he might
AL
NEGLIGENCE  E.g. Steven Phoa Cheng Loon & Ors v Highland Properties Sdn
Bhd & Ors (Malaysia)

Tort 81
  Another example is in preparing the report for investigation of
site. Invariably, the reports are regularly produced to record the
particular details of the projects

 Normally, an engineer may produce a report on the ground

PROFESSION conditions on a particular site or a surveyor may produce a report
AL outlining the likely expenditure to be anticipated in connection
with a particular project
NEGLIGENCE
 When, however, it is inaccurate, the professional who produced
the report may be liable for client and the third party who reads
the report and rely upon it to their financial disadvantages

Tort 82
  The defendant commits an act or omission that is breach of a duty
imposed on the defendant by a statute or Act of Parliament

BREACH OF
 E.g. under the Occupational Safety & Health 1994, the duty of
STATUTORY employers is to ensure, as far as practicable, the safety, health and
DUTY welfare at work of all his employees, including the provision of
necessary instruction, training and supervision to employees; and
the maintenance of a safe, healthy and risk-free environment in
the work place

Tort 83
  Remedies are aim to compensate the claimant based on the fault
of the defendant

REMEDY The main remedy:

 Damages
 Restitution
 Injunctions

Tort 84
 Types of damages:

 General damages

Damages  Special damages

 Exemplary (Punitive) damages

Tort 85
  Determined by the court as they are not capable of being precisely
calculated at the time of trial. i.e. Damages for pain and suffering

 Must be stated but no precise figure can be placed on them

General
Damages  Strictly described as damages which are presumed to flow from
torts which are actionable per se (without the need to prove loss
or damage)

Tort 86
  A claim for actual loss and must be specifically pleaded

 It is damages which the claimant can prove as part of their action

i.e. medical or hospital bills

Special  Losses which can be precisely calculated from the date the tort
occurred until the time the case is brought to court
Damages
 Must be presented in the form of a calculation (liquidated)
damages

Tort 87
  If it is particularly difficult to assess the damages that should be
awarded to a claimant, in monetary terms, then the courts can
Exemplary impose exemplary or punitive damages
(Punitive)
Damages  The courts use these damages to punish the defendant and to act
as a deterrence to others, so can award high sums in extreme
cases

Tort 88
  Restitution remedies are available to trespass to goods,
conversion or detinue

 Restitution means the act of restoration or returning to the proper

Restitution owner property or the monetary value of loss (damages)

 Required to restore the plaintiff to the position he or she held prior

to the commission of the tort

Tort 89
  The principle “restitutio in integrum” means putting the claimant
in the same position they would have been if the tort had not been
committed

Restitution
 However, the court will not normally order a restitution of
property if damages would be an adequate remedy

Tort 90
  Injunction is an additional remedy in addition to damages when
damages alone are not an appropriate or sufficient remedy

Injunction Types of Injunction:

 Prohibitory
 Mandatory

Tort 91
  A court order requiring defendant to cease committing a
continuing tort i.e. nuisance or trespass

 The courts will sometimes grant injunction even where harm is

merely threatened
Prohibitory
Injunction  Effect: restraining the continuance or threat of harm

 Negative in nature requires defendant not to do not or cease to do

something

Tort 92
  Defendant to undertake some positive act i.e. removing an
obstruction that he has caused to claimant’s right of way
Mandatory
Injunction  Court can make an order for specific performance to ensure that
the defendant carries out their legal obligations, especially in
relation to nuisance matters

Tort 93
  A set of facts may only give to rise to one action

 A claimant may not return to court with another claim, if their

The one action injury worsens

rule
 The damages awarded must be for past, present and future losses
in a single lump sum

Tort 94
 Example:

 Belle already recovered damages from Andy for assault and

The one action battery. A few years later, she discovered her injuries were much
more serious than she had first thought. Belle brought 2nd action
rule against Andy for additional damages

 Belle can only claim once for a single tort

Tort 95
 Exceptions to the one action rule:

A claimant may bring more than once action if:

 Violation of two rights - the wrongful act has violated two distinct
and separate rights
The one action
rule Example
 Andy’s taxi collided with Belle’s car due to her negligence. Andy
already received damages for the damage to his taxi. He later
brought a 2nd claim for personal injuries sustained in the collision

Tort 96
 Exceptions to the one action rule:

A claimant may bring more than once action if:

 Continuing tort - there is a continuing tort
The one action
rule Example
 This arises most often in the torts of nuisance or continuing
trespass to land

Tort 97
 Exceptions to the one action rule:

A claimant may bring more than once action if:

 Torts actionable only on proof of damage - one wrongdoing
The one action produces separate, successive and distinct damage
rule
 In negligence, where it is necessary to prove that the damage was
caused by the defendant, a separate cause of action will arise for
each damage suffered

Tort 98