Professional Documents
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Torts Law 2 Notes
Torts Law 2 Notes
Distinguishing Nuisance
There are two types of damage under Nuisance which are damage
to property that is easily identifiable and there must be interference with
personal comfort. In nuisance, the damage must be proved and it must
be a kind that is reasonably foreseeable to arise from defendants
wrongful conduct. Among the remedies available for nuisance are
injunction ( suitable for continuing nuisance), damages (for physical
damage) and report to relevant authorities. The first case to be looked
upon for injunction is Pacific Engineering Ltd v Haji Ahmad Rice Mill Ltd. In
this case, the plaintiff had proved that they suffered personal discomfort
and injury to property thereby satisfying the requirement of “special
damage”. An injunction preventing the defendant from bruning rice
husks in compound of their premises was granted. The next case for
injunction to be looked upon is the case of Renal Link v Dr Harnam Singh
where the defendant operated a renal clinic where patients received
hemodialysis on the floor above the plaintiff’s clinic. The defendant was
found liable for emanating obnoxious fumes from the clinic which
escaped downwards into the plaintiff’s clinic and causes damages to the
plaintiff, his staff and the patients. The court grant injunction in this case.
Categories of Nuisance
There are two categories of nuisance which are public nuisance and
private nuisance. Some conduct may amount to both public and private
nuisance.
I)Public Nuisance
Public nuisance deals with the interference with the public rights.
Nuisance would only be created if despite knowing or having the means
of knowing its existence, the person allows it to continue for an
unreasonable time or in unreasonable circumstance. This can be seen in
the case of Lim Kar Bee v Abdul Latif Ismail where the cases establishes
the duty of care towards road users as it was dangerous and
unreasonable to leave long steel pipes with sharp edges by the side of a
highway for one or two years as it would create a danger to the users of
the highway. Another case to be looked upon is the case of Gillingham
Borough Council v Medway (chatham) Dock Co Ltd where the local
council granted permission to develop a commercial port, disregarding
the fact that this would impact the local residents. They authorised the
development works as there is many economical benefit. The plaintiff
sued the defendant behalf of its residents alleging that the defendant is
creating public nuisance. The court held that there is no public nuisance
as only an illegal act could count as public nuisance.
The definition of public nuisance can be seen in the case of Attorney
General v PYA Quarries Ltd where it was established in this case that a
public nuisance is a nuisance which is so widespread in its range or so
indiscriminate in its effect that it would not be reasonable to expect one
person to take proceedings on his own responsibility to put a stop to it
but that it should be taken on the responsibility of the community at
large. Meanwhile in the case of Majlis Perbandaran Pulau Pinang v Boey
Siew Than & Ors, it was established in this case that a nuisance is public
nuisance if it materially affects the reasonable comfort and convenience
of a class of the subjects of the state.
Public Nuisance is also a crime under s.268 of the Penal Code. There
are several person who can claim for nuisance. First is Public Prosecutor
on behalf of government through criminal proceedings. Second is person
who suffers special or particular damage through civil proceeding. In this
category the plaintiff doesn’t have to have an interest in land but must
suffer some special damage. There are several guidance to determine the
existence of special or particular damage which are the type or extent of
damage is more serious or the damage must be a direct consequence and
is substantial. This can be seen in the case of Uda Holdings Bhd v Koperasi
Pasaraya Malaysia Bhd where the deliberate act of 3 defendants causing
a closure of public road caused a supermarket’s business to be severely
affected that it had to close down. The such special knowledge was held
to be over and above that suffered by members of the public generally as
users of the road and customers of the supermarket. Third is no special
damage suffered by any particular individual but it can be tried through
the civil proceeding. According to s.8(1) of Government Proceedings Act
1956, one can institute a suit even tough no special damage has been
caused in circumstance of public nuisance. In the case of Koperasi
Pasaraya Malaysia BHd v Uda Holdings Sdn Bhd, it was held that in action
of public nuisance, consent must be first obtained from the A.G.
The general rule is that actual physical damage to land occurs will
amount to substantial interference thus it is therefore recoverable. The
first case to be looked upon is the case of Goh Chat Ngee v Toh Yan
where in this case the soil structure of the land was disrupted because of
the defendant’s mining activity which resulted in resulted in flooding and
erosion at plaintiff’s land. The court deem it is a substantial interference
thus it is actionable under nuisance. Meanwhile in the case of Rapier v
London Tramways Coheld, the court establish that once the defendant’s
activity constitutes an actionable nuisance in law, it is no defence that the
defendant has taken all reasonable precautions to prevent it. In this case,
although the piling works were temporary, it didn’t exclude the
respondent right to an injunction as the physical damage to their
property constituted a substantial interference which was actionable.
Defences
There are several defences for nuisance to be looked upon. The first
defence is express or implied consent. The second defence is common
benefit where the dangerous thing allowed to exist for the common
benefit of the plaintiff and defendant. The third defence is act of the third
party and the test is whether the third person’s act is out of defendant’s
control. The fourth defence to be looked upon is act of god where the
escape of dangerous thing occurs thru natural causes which is
unforseeable and without human intervention. The fifth defence is the
plaintiff’s default where the Plaintiff wont be compensated if it is their
own action or wrongdoing. This contributory negligence is dealt under
s.12(1) of Civil Law Act 1956. The last defence is statutory authority. If a
statute confers power to defendant to conduct an activity, the defendant
will usually escape liability notwithstanding that the activity gives rise to
an interference. In the case of Goh Chat Ngee & 3 Ors v Toh Yan & Anor,
it was established that defendant need to prove that the interference
cannot be avoided even tough reasonable precautionary measures have
been taken.
The action of breach of statutory duty is different with the action for
the tort of negligence. It was established in the case of LPTB v Upson by
Lord Wright that the claim for damages for breach of a statutory duty
intended to protect a person in the position of the particular plaintiff is a
specific common law right which is not be confused in essence with a
claim for negligence. It was also established by the judge that the
statutory right has its own origin in the statute, but the particular remedy
of an action for damage is given by common law in order to make
effective, for the benefit of injured plaintiff, his right to the performance
by defendant of the defendant’s statutory duty. It was also established in
this case that If it is the same damage then the plaintiff can claim for
breach of statutory duty and negligence in alternative but if they are two
separate wrongs then the defendant will only be liable for negligence and
not on breach of statutory duty and vice versa. Meanwhile in the case of
Lim Thong Eng v Sungei Choh Rubber Co ltd, it was established that
contributory negligence will not defeat the claim for breach of statutory
duty but only reduce the amount of damages claimable. In this case, the
plaintiff hand was crushed in a machine while working. The relevant
statutory provision provided that the machine must be installed in a
specific manner to prevent the hands of the operator from being in close
proximity with the machine. The court held that the plaintiff clearly
belonged to the class of persons whose protection the statute was
enacted thus the defendant was in breach of statutory duty.
The accrual of a right of action in tort
The are several factors which affects the right of claiming damages
in tort. The first factor is claims against public authorities. In the past,
England has been reluctant to allow claims against public authority which
violates general statutory duty to provide public services. This can be
seen in the case of Watt v Kesteven County Council. In this case, a claim
made against Minister of Education for his failure to promote the
education of the people of England and Wales failed. Another case to be
looked upon is the case of Saunders v Holborn District Board of Works
where the plaintiff was injured when he slipped on icy pavement and
claimed damages. However the action against the local authority for
failing to clear the snow failed. Even in the case of X (minors) v
Bedfordshire County Council, it was established that a child in care has no
right to bring a private law against a local authority for failure to
discharge statutory duties under child care legislation. However the
reluctant of English courts to allow claims against public authorities was
swept away in the case of Barrett v Enfield London BC. In this case, the
claimant alleged that the defendant, who is a local authority, had failed in
its statutory duty to act as responsible parent which lead the claimant to
suffer from psychiatric illness. Initially the court of appeal dismissed the
claim but upon appeal to the House of Lords, the appeal was allowed and
it was held that acts which are done pursuant to the lawful exercise of
discretion may still be a subject of duty of care. This was followed in the
case of Phelps v Hillingdon London BC where a child had dyslexia and
educational psychologist failed to diagnose the dyslexia. Accordingly the
child was not given education appropriate to her condition. The court
held that the educational psychologists, education officers and teachers
may owe duty of care to a specific people, provided that sufficient
proximity exist between the pupil and teacher.
When it comes to Malaysia’s position in claim against public
authority, it is statutorily provided that state authority, local authority
and public officer or employee of the local authority cannot be subjected
to any action, claim or liabilities arising out from any building or other
works carried out in accordance with the provisions of the Street,
Drainage and Building Act 1974. Thus if the authority concerned failed to
inspect any building, building works or material or the site of any
proposed building, no tortuous claim made against the authority
irrespective of the loss. Even if the authority fails to ensure that any
plans, certificates and notices submitted to it are accurate, consequential
damage arising from such failure us not actionable. In the case of Hu
Sepang v Keong on Eng & Ors, it was held by the court that if the
performance of statutory duty requires the exercise of the authority’s
discretion, then no action may be brought for the authority’s failure to
perform the duty unless the refusal is actuated by malice. However in the
case of Parimala a/p Muthusamy v Projek Lebuhraya Utara-Selatan, the
court allowed the claim against the defendant as there had been aclear
breach of relevant statutory duty. In this case, a driver was killed when he
hit a stray cow which had entered onto the highway through a hole in the
fence surrounding the highway. The defendant is a highway authority
who is statutorily responsible for the construction, maintenance,
management and safety of the highway thus the court held that there
had been a clear breach of relevant statutory duty.
The second factor is whether redress under the torts is sufficient.
Malaysian courts are much more lenient when it comes to this. Claims for
breach of statutory duty as well as for breach of duty under common law
principles of negligence are accepted and the defendant may be liable in
both torts. The third factor is the breach arises from the regulation under
the parent Act. The fourth factor is the statute is Silent. In the Yeo Kian
Ann case, it was held by the court that if the statute is silent regard the
defendant’s obligation towards members of the public, this would not
necessarily relieve him from the common law obligation to take care.
The three main defences which are relevant in the action of breach
of statutory duty are Volenti non fit injuria, contributory negligence and
delegation. When it comes to volenti non fit injuria, it is a common law
doctrine which states if someone willing place themselves in a position
where harm might result then they are not able to bring a claim against
other party in tort. In the case of Wheeler v New Merton Board Mills Ltd,
An employee who was eighteen years old was working at a cardboard
cutting tool. It had spinning knives. The machine cut his hand off while he
was gathering flakes. Since this tool was a dangerous one, there had to be
a kind of protective barrier around it. Otherwise, there had to be extra
protection according to the Factory Workshop Act 1901. But the
employer did not follow this regulation. It was stated that the worker
knew a cutting machine could be stopped with the help of a rod to gather
shavings to avoid danger. But for some reason, he did not use a safe
approach to work and consequently, did not act in this way. The
defendant raised the defence of volenti non fit injuria but it was held that
volenti non fit injuria was no defence to an action by an employee against
his employer for breach of the employer's statutory duties. This decision
was approved in Imperial Chemical Industries Ltd v Shatwell. In the case
of Mohamed Husin v Shun Yip Leong Rubber Works Ltd, the plaintiff
sustained serious injuries on his right hand when his co-worker
negligently brought down the machinery which function was to cut
rubber sheets into small pieces. The defendant had breached certain
regulations of the Machinery Regulations 1959, which required them to
provide or erect a guard to prevent an operator's fingers from reaching
the danger zone. The defendant try to raise the defence of volenti non fit
injuria but failed as the court held that the fundamental cause of the
accident was a breach of statutory duty by the employers.
The second defence is contributory negligence. The plaintiff’s
contributory negligence will serve to reduce the amount of damages he
may recover from the defendant. The third defence is delegation. There
are two types of delegation which are delegation of duty to plaintiff and
delegation of duty to a third party. Delegation will provide the defendant
with a defence if he can prove that the default was solely due to the
plaintiff's act or omission and therefore the plaintiff himself has been in
breach of the statutory duty. In the case of Paterson v Municipal
Commissioners, the plaintiffs horse was injured when one of the
bridges which was under the defendant's statutory duty to maintain and
repair, collapsed. Although the duty to repair was contracted out to a
third party, the defendant was held liable.
Chap 4: Interference with Contract or Business
(b) Conspiracy
Conspiracy is defined as the agreement between two or more
persons to do an unlawful act or a lawful act by unlawful means
according to the case of Mulcahy v R. According to the case of Crofter
Hand-Woven Harris Tweed Co Ltd v Veitch, the court stated that the
plaintiff must establish several elements in order to make out a case of
conspiracy which are an agreement between two persons, an agreement
for the purpose of injuring the plaintiff, the acts done in execution of that
agreement resulted in the damage to the plaintiff, and the acts done
which resulted in the damage must be without lawful justification or
excuse. Similar elements were also laid down in the case of Yap JH v Tan
Sri Loh Boon Siew & Ors. There are two types of conspiracy which are
conspiracy to injure and conspiracy by unlawful means.
Conspiracy to injure arises when a combination of two or more
persons agree to wilfully injure a man in his trade which result in damage
to him. Meanwhile conspiracy by unlawful means arises when there is an
agreement between two or more persons to carry out an unlawful act or
acts, or to carry out a lawful act by unlawful means. According to the case
of Lonrho v Fayed, the court held that conspiracy by unlawful means
doesn’t require predominant purpose to injure the plaintiff but still
requires an intention to injure.
There are three essential ingredients needed to be fulfilled in order
to constitute as conspiracy. The first element is there must be agreement
or combination between 2 or more persons. According to the case of
Seagate Technology Pte Ltd v Goh Han Kim,the essence of the tort of
conspiracy lies in there being an agreement between the defendant and
other third parties, to cause injury to the plaintiff. The second element to
be looked upon is purpose. The court must consider the predominant
purpose for which the act or acts are carried out and the purpose must
be to injure the plaintiff. If the predominant purpose is established then it
is irrelevant that the defendant also has a subsidiary purpose of
furthering his own interest. However if the predominant purpose is for
advancement of defendant’s business and injuring plaintiff is subsidiary
or when defendant is able to prove purpose behind his action is to
further his own interest then there is no conspiracy. According to the
case of Iskandar Gayo v Datuk Joseph Pairin Kitingan & Ors, the
predominant purpose must be to inure the plaintiff or cause damage to
the plaintiff. The third element is damage. Actual damage is an essential
ingredient in the tort of conspiracy.
(c) Passing off
The first test that has been established by the court is the control
test. This test has been laid down in the case of Short v J & W
Henderson where Lord Thankerton who came up with this test, said
there were four factors to be considered in determining the existence
of a contract of service. Firstly, the power of selection by the
employer, secondly, the power in determining salary or other
remuneration, thirdly, the power or right of the employer to control
the method in which the work was done and fourthly, the power and
right of the employer to terminate the employee’s services.Based on
the factors given by Lord Thankerton, this test has been said to be
inaccurate to be used in the recent cases. This test was used in the
case of Collins v Hertfordshire. In this case, a hospital had in its
employ, a student who was employed full-time in the capacity of a
resident junior house surgeon, and also a surgeon. The surgeon was
preparing to perform a jaw operation on the plaintiff’s husband, and
instructed the junior house surgeon to collect certain materials, one
being that of procaine(a local anesthetic drug). The junior house
surgeon misheard the item as being cocaine. During the operation, a
lethal dosage of cocaine was injected into the husband which
resulted in his death. The plaintiff brought an action against the
hospital authority. On the issue of vicarious liability of the hospital
authority, they were held responsible for the acts of the junior house
surgeon, but not for those of the visiting surgeon, since in the case of
the junior surgeon they had the power to direct her on what to do
and how to do it, but in the case of the surgeon they did not have
that power. As time goes by, the element of control is not the exact
test to determine the existence of an employer – employee
relationship. This is because there are certain jobs that the employer
does not control the method in which the job is to be done.
The second test is the organization test which was laid down in
the case of Stevenson, Jordan and Harrison Ltd v Macdonald and
Evans. The test was given by Lord Denning in his judgment by saying
that in contract of service, a man is employed as part of the business
while under a contract for service, the work done by a man, although
it is done for the business, it is not integrated into it but is only an
accessory to it. This test was applied in the case of Lee Tin Sang v
Chung Chi-Keung. In this case,a mason worked for a sub-contractor
as an independant contractor. However every element of his
employment seemed to point to the fact that he is providing personal
services as an employee of the sub-contractor. The court in this case
held that If the worker is in business on his own account, then it is
more likely that he will not be deemed to be an employee.. In Mat
Jusoh bin Daud v Syarikat Jaya Seberang Takir Sdn Bhd,Salleh Abbas
FJ relied on the organization test in holding defendant as employer
because plaintiff’s work was an integral part of defendant’s business
and in addition to that the wages, the number of logs to be sawed
was determinable by the defendant.
The third test is the multiple test where this test is based on
common sense approach. This test has been laid down in the case of
Ready Mixed Concrete (South East) Ltd v Minister of Pensions and
National Insurance, there are three factors that need to be considered
under this test, which are, firstly is the consideration which is the
employee will use his own expertise and in return the employer will
pay him in monetary form or others. Secondly is subject to control
where the employee will be bound by the employer’s instructions
whether impliedly or expressly and lastly is the consistency of the
terms in the contract with the nature of the hob being a contract of
service. This test was applied in the case of Market Investigations Ltd
v Minister of Social Security. In this case, a woman was engaged by a
market research company to act as an interviewer on a part-time
basis. For each particular survey, she would conduct interviews in
exchange for payment. She was required to work for a certain
number of days at a time during each occasion, follow a
comprehensive ‘Interviewer’s Guide’ and comply with other
contractual terms. Issue arose on whether she can be deemed as
employee. The court held that the employee only receives the salary
as remuneration. The independent contractor receives payment or
charges, bears the profit or loss personally. Thus in this scenario the
court held that the woman was an employee of the company under a
‘contract of service.’ Malaysia favour this control test and this can be
seen in the case of Bata Shoe Co (Malaya) Ltd v Employees Provident
Fund Board. In this case,the plaintiff company appointed a manager
to manage the company. The company also required him to appoint
workers. The terms of the contract were to be decided upon by the
manager. The main question was whether there existed an
employer-employee relationship between the plaintiff company and
the workers appointed by the manager. The court decided no such
relationship existed. The manager was an employee of the company
as the plaintiff company had control over him. The others were in fact
employees of the manager and not the company. The court further
stated that Plaintiff was non-employee if defendant was not
responsible for the wages and control over his work.
(b)(I) Hospital
Although the tests have been established by the court, there are
also grey areas in certain situations in determining whether the
employee is deemed to be an employee or otherwise. The situations
are basically in the case of hospital staff and when someone lends a
worker to the other.First of all, the issue arises in the case of hospital
staff, when the hospitals need to be vicariously liable for the
negligence of their staff. This is because there are expert staffs within
the hospitals and it can be said that the hospital cannot said to
control their means of work. So, the liability of a hospital for the
negligence of its health care professionals is dependent on whether
the professional is engaged in his own business or that of the
hospital, and only if the conduct of the medical officer is deemed to
be part of the hospital’s business will the hospital be found
vicariously liable.
The fifth factor is the worker acting for his own benefits. There
are two cases to be looked upon when it comes to this factor. The
first case is Zakaria Che Soh v Chooi Kum Loong & Anor. In this case,
the plaintiff was a driver for a research institute in Ipoh. After sending
the director home, he drove home for lunch and an accident occurred
on the way. The court found the state government liable although the
purpose of that trip did not have anything to do with his employer
but it was something that was expected to be done in the course of
his employment and thus the accident occurred within the course of
his employment. By contrast, in Samin bin Hassan v Government of
Malaysia, the plaintiff was knocked down by the defendant who was
driving a land rover which belonged to Telecom’s department. The
defendant had written down in log book that the purpose of bringing
the vehicle out was to test its brakes. The court held that at the time
of accident, the driver did not act as employee of Government. Thus,
government was held not liable.
The last factor is time and its relevance in determining the course
of employment. The tortfeasor must act within the scope of
employment which is during the authorised period of work. It is not
necessary that tort must be committed on the premise of the
employer and it can even happen outside the premise. For instance,
negligence occur when travelling to and from work in a vehicle
operated by or on behalf of his employer. This is governed under
s.4(1) of Workmen’s Compensation Act (WCA) 1952 and s.24(1)(a)
Employees’ Social Security Act (SOCSO) 1969.
the vicarious liability, the general rule is an employer is not liable for
the tort committed by his independent contractor. However there are
certain exceptions to this general rule.An employer may only be liable
for the tort committed by his independent contractor if the employer
is deemed to have committed a tort himself in four following
situations discussed below.
Chap 6: Remedies
(a) Damages(intro)
Claims for personal injury is dealt under s.28A(1) of Civil Law Act
1956. There are two types of damage where one can claim for
personal injury which are pecuniary damage and non-pecuniary
damage.
Chapter 7: Defences
(a) Consent- Volenti non fit injuria
(e)Necessity
The latin maxim ex turpi causa non oritur actio refers to the fact
that no action may be founded on illegal or immoral conduct.Where
the maxim of ex turpi causa is successfully applied it acts as a
complete bar on recovery. It is often referred to as the illegality
defence, although it extends beyond illegal conduct to immoral
conduct.One of the most glaring points of this defence is that it
allows the defendant to escape his liability even though he is guilty of
an unlawful act.