RES 419 LAW OF PROPERTY 1

1. Introduction of Law of Torts

2. Laws of Torts
a. Trespass to Person
b. Negligence
c. Defamation
d. Nuisance
▪ The word ‘tort’ originates from the Latin word, tortus which means ‘twisted’.
▪ Salmond & Heuston on the Law of Torts states that ‘A tort is a species of civil
injury or wrong’.
▪ Thus, ‘tort’ = ‘wrong’
▪ A tort may consist of either a wrongful act or omission which is not
authorised by the law.
▪ Legal wrongs fall into 2 main categories; either civil or criminal.
▪ The law of torts is only one branch of the civil law.
An act of tort consists of:

A wrongful act due to breach of

duty

Causing injury

Remedied by unliquidated damages

Laws of Torts

Trespass to Trespass to
Negligence Defamation Nuisance
person land
TRESPASS TO PERSON
▪ Definition:
▪ an unlawful intrusion that interfere with a person’s body or property.

▪ The highwayman, the kidnapper, the burglar and thief could be sued by the
writ of trespass
▪ 3 types of trespass to person:

False
imprisonment
Battery

Assault

Writ of trespass - formal written in document

 DEFINITION
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 protection of person’s mental well-being

against the unlawful act of another.
▪ Elements of assault

Intention of
Capability of
the defendant Effect on the Bodily
the defendant
to do harm plaintiff’s movement of
to carry out
onto the mind the defendant
the threat
plaintiff
ELEMENTS OF ASSAULT
1. INTENTION OF THE DEFENDANT TO DO HARM
▪ The defendant must have the intention to do his act.
▪ Example case: Tuberville v Savage (1669) 86 E.R.

2. EFFECT ON THE PLAINTIFF’S MIND

▪ The plaintiff must feel reasonable apprehension that a force will be inflicted upon
him.
▪ Reasonable apprehension- 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?
▪ Only when the answer is ‘yes’ will this element be fulfilled
▪ Example case: R v George (1840) 9 C & P 626
ELEMENTS OF ASSAULT
3. CAPABILITY OF THE DEFENDANT TO CARRY OUT THE THREAT
▪ The requirement is measured through the eyes of the reasonable plaintiff.
▪ The test is objective:
▪ That is would a reasonable man
▪ Who is the plaintiff’s position
▪ Feel reasonable fear that there is a threat of immediate force upon himself?
▪ Only when the answer is ‘yes’ will this element be fulfilled
▪ Example case: Stephen v Myers (1830) 4 C & P 349
ELEMENTS OF ASSAULT
4. BODILY MOVEMENT OF THE DEFENDANT
▪ Even though assault involves no contact it is often said that some bodily movement
is necessary.
▪ Bodily movement – a positive act in the circumstances, indicating that the
defendant will carry out his threat.
▪ There must be bodily movement to indicate the threat would be carried out.
▪ Example case: Read v Coker (1853) 13 C.B. 850
 DEFINITION
The intentional and direct application of force to another person without the
person’s consent.

▪ Battery is committed by intentionally bringing about harmful or offensive

contact with the person of another.
▪ The touching need not necessarily involve violence.
▪ Elements of battery
Intention of
The act was Contact or
the Without
under the application
defendant plaintiff’s
defendant’s force
to apply consent
control occurs
force
ELEMENTS OF BATTERY
1. 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.
▪ Example case: Scott v Shepherd (1773) 2 Wm BI 892

2. THE ACT WAS UNDER THE DEFENDANT’S CONTROL

▪ The defendant’s act must be done voluntarily
▪ Example case: Gibbons v pepper (1695) 2 Salk 637
ELEMENTS OF BATTERY
3. 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.
▪ Example case: Collins v Wilcock (1984) 3 All ER 374

4. WITHOUT PLANTIFF’S CONSENT

▪ One cannot touch another person without his consent or without lawful
justification.
▪ However, there are touching where it is presumed implied condition such as
▪ Tapping a person’s shoulder in order to get his intention
▪ Touching that occurs while queuing to go on a bus.
▪ Example case: Nash v Sheen (1953) CLY 3726
ASSAULT BATTERY

1. The issue of consent does not 1. The defendant’s act is done

arise without the plaintiff’s consent
2. The plaintiff experiences 2. There is physical contact
reasonable apprehension of a between the defendant and the
force upon him plaintiff
3. The tort protects one from the 3. The tort protects one from
threat of any physical violence, physical contact be it violent or
as well as to maintain person’s not, as long as it is an
mental well-being unnecessary and unauthorized
contact.
 DEFINITION
The restriction of a person’s freedom of movement

▪ False imprisonment is the unlawful imposition of constraint/restraint upon

another’s freedom of movement from a particular place.
▪ False imprisonment is the infliction of bodily restraint which is not expressly
or impliedly authorized by law.
▪ Elements of false imprisonment
The restrain
must be a
The restrain
Intention of direct
must be
the defendant consequences
complete
of the
defendant’s act
ELEMENTS OF FALSE IMPRISONMENT
1. INTENTION OF THE DEFENDANT
▪ There are 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.
▪ Example case: W Elphinstone v Lee Leng San (1938) MLJ 130

2. 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.
▪ Example case: Harnett v Bond (1925) AC 669
ELEMENTS OF FALSE IMPRISONMENT
3. THE RESTRAIN MUST BE COMPLETE
▪ There are 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.
▪ Example case: Wright v Wilson (1699) 1 Ld Raym 739
NEGLIGENCE
▪ Definition:
▪ As the breach of a legal duty to take care which results in damage to the plaintiff,
undesired by the defendant.
▪ Elements of negligence:

Consequential
damage to
Breach of the plaintiff
duty of care
A duty of by the
care owed by defendant
the defendant
to the plaintiff
 DEFINITION
An obligation recognised by law to avoid conduct fraught with unreasonable
risk of danger to others

▪ Not every careless act done by a person results in him being held responsible
in law. He will only be liable in negligence if he is under a legal duty to take
care.
▪ The duty must arise out of some relation or some proximity between the
parties such as:
▪ Driver and road user
▪ Manufacturer and consumer
▪ Builder and buyer and etc.
▪ The principle used to determine the existence of a duty of care is the famous
“NEIGHBOUR PRINCIPLE”
▪ Example case: Donoghue v Stevenson (1932)

“NEIGHBOUR PRINCIPLE” was formulated by Lord Atkin:

“the rule that you are to love your neighbour becomes, in law, you must not
injure your neighbour”

▪ Who is my neighbour?
▪ Must take reasonable care to avoid acts or omissions, which you can reasonably foresee
would be likely to injure your neighbour.
▪ Once it is established that the defendant owes the plaintiff a duty of care, the
next step is to consider whether the defendant has breached that duty.
▪ Breach occurs when the defendant does something that is perceived to be
below the minimum standard of care required of him, which is measured
through the standard of a reasonable man
▪ The test for deciding whether there has been a breach of duty is laid down in
the dictum of Alderson B. in
▪ Example case: Blyth v The Company of Proprietors of the Birmingham Waterworks
(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”

▪ Who is reasonable man?

▪ A reasonable man has been described as ‘the man on the omnibus’.
▪ In other words, it means an ordinary man who is not expected to have any particular skill
such as that possessed by a surgeon, a lawyer or a plumber unless he is actually one.
▪ For example: a passerby who renders emergency first aid after an accident is not required
to show the skill of a qualified doctor.
▪ This negligence must be proved by the plaintiff is damage or injury mush
have been caused by the defendant’s breach of duty
▪ Plaintiff’s damage must not be too remote a consequence of it
▪ This means that one has to ask whether the breach of duty was the primary
cause of the damage
▪ The test used is to but for test (if not for/kalau tak kerana)
▪ The question is:
▪ But-for the defendant’s breach of duty, would the plaintiff have suffered any injury
or damage?
▪ If the answer is YES: the defendant’s breach did not cause the plaintiff’s injury
▪ Example case: Barnett v Chelsea and Kensington Hospital Management Committee
▪ If the answer is NO: then the next test is: The Remoteness of Damages
▪ Whether a reasonable man in exchange of position would foresee the damage that has
occurred
▪ If the answer is YES: then the damage is not remote. As a result you are liable for
negligence
▪ If the answer is NO: then the damage is too remote and you are not liable to the lost
▪ Example case: The Wagon Mound (1961)
▪ Legal liability for professional negligence can only be incurred when there has
been a breach of duty of care owed to some persons.
▪ The duty of care may arise in contract, in tort or by reason of a statute and
may be owed by the professional to a client or to a third party.
▪ The duty of a professional depends very much on what the professional is
employed to do
▪ For example: an accountant may be engaged merely to see that the books of a client
adequately and correctly summarize returns to be made to the head office of the
client
▪ In these circumstances, the accountant is not liable for failure to detect fraud as he
was not retained to do an audit.
▪ Example case: Hedley Byrne & Co. Ltd v Heller & Partners Ltd.
DEFAMATION
▪ Definition:
▪ The interest that is protected by this tort is a person’s good name and reputation
▪ Mere feelings of hurt however are insufficient for the award of damages under the
tort of defamation.
▪ Types of defamation:

• Written
Libel • Permanent form
• Actionable per se

• Spoken/gestures
Slander • Not lasting
• Proof of special damages
▪ Defamation in a permanent form and is visible to the eye such as written
form, picture, statue
▪ Libel is actionable per se (i.e. plaintiff need not prove any damage)
▪ This is because the law presume that when a person’s reputation is assailed, some
damage must result.
▪ Example: a bank commits the tort of defamation if it wrongfully prints the words ‘Account
Closed’ on a cheque that it is in fact bound to honour.
▪ Defamation in a temporary form (i.e. spoken words or gesture)
▪ Slander is not actionable per se. the plaintiff needs to prove actual or
special damage in order to succeed in his action
▪ Actual damage refers to financial loss or any loss that may be measured in
monetary terms.
▪ For example: loss of business or employment or the chance to attend a social
function that may be measured in monetary terms.
▪ The actual loss must be proved
▪ The damage must further be a direct result of the defendant’s words.
▪ Elements of defamation:

The words
must be
The words published
refer to the
The words plaintiff
are
defamatory
ELEMENTS OF DEFAMATION
1. WORDS ARE DEFAMATORY
▪ The words have a tendency to lower the estimation of the plaintiff in the minds of right-
thinking members of society generally, so that the plaintiff is exposed to hatred, avoided,
shunned or ridiculed
▪ Example case: Lewis v Daily Telegraph

2. WORDS REFER TO THE PLAINTIFF

▪ The plaintiff must prove the defendant’s words are referring to him.
▪ Example case: Atip bin Ali v Josephine Doris Nunis & Anor

3. WORDS MUST BE PUBLISHED

▪ Publication means dissemination of the defamatory words or materials to a third party,
other than plaintiff
▪ Communicated at least one person other than the plaintiff. In practice the statement is
always in the form of words but it can take any from which conveys meaning, for
example a picture, cartoon or a statue
▪ Example case: Dr Jenni Ibrahim v S. Pakianathan
NUISANCE
▪ Branch of law of tort that concern with protection of private right in the
enjoyment of land
▪ Nuisance actions generally related to obstruction of the highway, pollution by
oil or noxious fumes, interference with leisure activities, offensive smells from
promises use for keeping animals or noise from industrial installations
▪ Types on nuisance:

• Crime
Public • Tort

• Tort only
Private
▪ Consists of any interference of public rights such as obstruction of the public
highway or selling of contaminated food.
▪ Nuisance would only be created if, a person knowing that its existence, allows
it to continue for an unreasonable time or in unreasonable circumtances
▪ It annoys the whole community in general and not merely some particular
person
▪ Example case: Attorney General v PYA Quarries Ltd (1957) 2 QB 169
▪ Defines as an unlawful interference with a person’s use, comfort, enjoyment
and interest over his land.
▪ In an action for private nuisance, the plaintiff must prove interference with
the enjoyment of his land. The plaintiff must have an interest in land to
entitle him to sure for private nuisance
▪ Persons with an interest in land are the landowner, tenants and licenses
▪ Third parties related to land maybe servants or employees and independent
contractors
▪ Example case: Spicer v Smee (1946) 1 All ER 498
▪ Elements in establishing private nuisance: Continuous
interference
Substantial
interference
SUBSTANTIAL INTERFERENCE
▪ The most important element is that the interference must be unreasonable
and substantial as against the use and enjoyment of land
▪ The court will generally consider the following factors to determine
‘substantial’ or ‘unreasonable’ interference.

Benefits of the Extraordinary

Damage and
defendant’s sensitivity of the
locality
activities plaintiff

Temporary
interference or Malice
isolated incident
SUBSTANTIAL INTERFERENCE
1. DAMAGE AND LOCALITY
▪ Actual damage to the plaintiff’s property will constitute unreasonable and
substantial interference
▪ For instance, a person cannot expect the air in an industrial area to be as fresh and
clean as the air in the mountains, then the locality or surrounding circumstances is
irrelevant
▪ Example case: St Helen Smelting Co. v Tipping (1895) 11 HL 642

2. BENEFIT OF THE DEFENDANT’S ACTIVITIES

▪ If the object of the defendant’s conduct benefits the society generally, it is more
likely that the conduct will not be deemed unreasonable
▪ Example case: Perbadanan Pengurusan Taman Bukit Jambul v Kerajaan Malaysia
(2000) 1 AMR 228
SUBSTANTIAL INTERFERENCE
3. EXTRAORDINARY SENSITIVITY ON THE PART OF THE PLAINTIFF
▪ The law of nuisance is not sympathetic to a plaintiff who is extra sensitive, whether
the sensitivity is related to the plaintiff himself or to his property
▪ If the only reason why a plaintiff complains of dust is because he has an unusually
sensitive skin, his claim will probably fail
▪ Example case: McKinnon Industries Ltd v Walker (1951) 3 DLR 577

4. TEMPORARY INTERFERENCE AND ISOLATED INCIDENT

▪ This factor is not conclusive and that a temporary interference or an isolated
incident may constitute nuisance
▪ The general principle is that the more serious the interference, the more likely the
court will regard it as unreasonable
▪ Example case: MBF Property Services Sdn Bhd v Madihill Development Sdn Bhd
(No.2) (1998) 4 CLJ 136
SUBSTANTIAL INTERFERENCE
5. MALICE
▪ The existence of malice may cause the defendant’s act to be unreasonable. This is
not a certainty in all cases and the facts of each case have to be considered.
▪ Example case: Christie v Davey (1893) 1 Ch 316
CONTINUOUS INTERFERENCE
▪ The interference must occur often or be continuous
▪ A temporary interference has been held to be a nuisance
▪ Example case: Surges v Bridgman (1879) 11 Ch. D 852