CHAPTER 3

THE APPLICATION OF
LAW OF TORTS IN THE
PROPERTY MARKET

(REM 119/AP 115)

 CONTENT
DEFINITION :TORT 3) NEGLIGENCE

1) TRESPASS TO PERSON 4) DEFAMATION

5) NUISANCE
▪ Assault

▪ Battery

▪ False Imprisonment

▪ Defences

2) TRESPASS TO LAND

▪ Elements of Trespass to Land

▪ Defences
(REM 119/AP 115)
 DEFINITION: TORT
Tort is an area that deals with wrongful acts that is done
into someone intentionally or unintentionally. The
person who suffers damage or injury resulting from the
intentionally or unintentionally act could claim for
damages or remedies.

Classification Of Torts Are As Follows

i. Trespass to Person
ii. Trespass to Land
iii. Negligence
iv. Defamation
v. Nuisance

(REM 119/AP 115)

 Torts are the wrongful acts
that causing injury to the
deprived person, the deprived
person can be remedied by
unliquidated damages.
Unliquidated damages is the
amount of damages that cannot
be foreseen or assessed by a
fixed formula.
 i) TRESSPASS TO PERSON
The definition of
trespass to person Three (3) types of
is the direct trespass to person:
invasion of a
protected a)Assault
interest. The b)Battery
examples of
trespass to person c)False Imprisonment
are burglar, thief,
abduction et
cetera.
 i) TRESSPASS TO PERSON
ASSAULT

Assault is the act of putting another person in

reasonable fear or apprehension. It is the
attempt or threat to commit a battery. To
file a successful assault suit, the plaintiff must
prove four elements of
ASSAULT;
i. The intention of the defendant to do harm
onto plaintiff,
ii. Effect on the plaintiff’s mind,
iii. Capability to do harm
iv. Bodily movement.
 i) TRESSPASS TO PERSON
ASSAULT
a) Intention of the defendant to do harm onto the
plaintiff
The defendant must have an intention to harm the
plaintiff. Mere words is said to have no intention. If
there is no intention, assault cannot be proven.

➢Refer to case Tuberville v Savage.

Savage had laid his hand upon his sword and said to the
plaintiff, “if it were not assize time, I would not take such
language”. Tuberville filed a lawsuit saying that Savage had
assaulted him. The court held that, words alone is not
an intention to do harm. The words prevented his
action from being construed to be an assault.
 i) TRESSPASS TO PERSON
ASSAULT
b) Effect on the plaintiff’s mind
The plaintiff must be in a reasonable fear due to the
defendant’s threat.

➢Refer to the case of R v Hamilton.

A conflict occurred between Hamilton and R. Suddenly,
Hamilton took out his gun and pointed it to R. R was
frightened and walked out, later he filed a lawsuit against
Hamilton. In trial, Hamilton claimed that the gun was
unloaded. However, the court held that, the gist of
assault lies in the apprehension of impending
contact. Thus, pointing a pistol for the purpose of
frightening, even though the gun was unloaded, the victim
was reasonable to be in fear.
 i) TRESSPASS TO PERSON
ASSAULT

c) Capability of the defendant’s to carry out

the threat
The defendant must be capable to inflict damage
to the plaintiff.

➢Refer to case Stephen v Myers.

The defendant advanced with clenched fist
upon the claimant, however stopped by
churchwarden. There is the capacity to carry
out the threat .
 i) TRESSPASS TO PERSON
ASSAULT
d) Bodily movement to carry out the threat
The must be bodily movement of the defendant to
put the plaintiff in a reasonable fear.

➢Refer to case Read v Coker.

In Read v Coker, the defendant gathered some of
his workmen and they clustered around the
plaintiff, tucking off their sleeves and
threatened to break his neck if he did not leave. The
court held that, the movement of the
defendant to put the plaintiff in a reasonable
fear was an assault.
 i) TRESSPASS TO PERSON
BATTERY

The elements of battery

Battery is the are;
application
of direct a)Intention of the defendant
force to to apply force,
another b)The act was under
person defendant’s control,
without the c) Contact or application of
person’s force
consent. d)Without plaintiff’s
consent.
 i) TRESSPASS TO PERSON
BATTERY

a) Intention of the defendant to apply

force

➢Refer Cole v Turner, the court held

that, touching a person without
consent has traditionally been regarded as
sufficient battery even though without
actual physical harm.
 i) TRESSPASS TO PERSON
BATTERY
b) The act was under the defendant’s control.

➢Refer Case: Wilson v Pringle,

The plaintiff and defendant were 13 years old. They
were classmates. While walking down the school
corridor, the plaintiff was in front and and the
defendant pulled the sports bag which the
plaintiff carried causing the plaintiff to fall and
suffered injury. The court held that, although
minor, the act was under defendant’s control,
thus the damage must be remedied by the
defendant.
 i) TRESSPASS TO PERSON
BATTERY
c)Contact or application of force occurs

➢Refer to case Collins v Willcock (1984).

A police officer grabbed the plaintiff’s arm firmly

to question her. The woman struggled and scratched
the police officer. She was charged with assaulting the
police officer in the course of his duty. The court held
that, the police had no authority to detain the
plaintiff. The woman had been entitled to resist as an
action of self-defense. Her conviction was
therefore quashed.
 i) TRESSPASS TO PERSON
BATTERY
d) Without plaintiff’s consent

➢Refer Case: In Nash v Sheen,

The plaintiff went to the saloon for permanent wave
but did not consent to the application of the
coloring matter. Without any notice, the
hairstylist dyed her hair in blonde. The hairstylist
was unaware that the plaintiff is allergic to hair
dye, thus resulted the plaintiff in pain. The court
held that, the dye was without plaintiff’s
consent, thus the hairstylist had committed a
battery.
 i) TRESSPASS TO PERSON
FALSE IMPRISONMENT

False
imprisonment is The Elements Of
the infliction of False Imprisonment
bodily are:
restraint which
is not expressly a) The act of restraint
or impliedly b) The restraint must
authorised by be complete
the law.
 i) TRESSPASS TO PERSON
FALSE IMPRISONMENT
a) The act of restraint
There is no need of actual imprisonment, it is enough if the
person is deprived of his liberty even for a short time.

➢Refer to case Harnett v Bond (1925).

Harnett, an inmate, was diagnosed as a lunatic. He was
granted a month’s leave by Dr Adam. On second day, Bond
detained Harnett in his office for 3hours as he
thought he was not fit to be at large. After 3 hours, Dr
Adam arrived and examined Harnett, he found that
Harnett was sane. The court held that, Bond had no
right to detain Harnett at his office for 3 hours and the
detention was a false imprisonment although he was
detained in his office.
 i) TRESSPASS TO PERSON
FALSE IMPRISONMENT
b) The restraint must be complete
There is no imprisonment if a reasonable escape
routes is available, but it must be convenience or no
risk of injury.

➢Refer to case Sayers v Harlow.

In Sayers v Harlow, the plaintiff became imprisoned
inside the defendant’s toilet because of the negligent
maintenance of the door lock. She yelled help for 15
minutes but no one was aware. Then, she climbed over
the door but fell to the ground and caused injury. The
court held that, Sayers was falsely imprisoned as
there was no safe escape routes available.
 i) TRESSPASS TO PERSON
DEFENCES
❑ Self Defence
❑ Sports
❑ Consent
❑ Legal Authority

❑Self defense
It is lawful for a person to use a reasonable degree
of force for the protection of himself against any
unlawful use of force.

➢Refer to case Collins v Willcock (as in Battery).

 i) TRESSPASS TO PERSON
DEFENCES
❑ Sports
Those who participated in sport is said to have consent to
reasonable conduct within the rules of game. However,
actions of assault or battery can be charged if the game
involves foul or unlawful acts.

➢ Refer to case Lane v Holloway (1968). The court held

that, one who challenges another for a fist fight does not
sanction an attack with a knife.

In Pallante v Stadiums, it was held that the boxers agree

to violent bodily contact of the sport nature, but not to
deliberate foul play.
 i) TRESSPASS TO PERSON
DEFENCES
❑ Consent
Consent must be genuine, not obtained by force
or threat.

➢Refer to case Latter v Braddell.

Mrs Braddell sent a doctor to examine the plaintiff
on a complaint that the plaintiff was pregnant. The
doctor told the plaintiff to undress for examination.
She protested and wept but forced to the
examination. She was not pregnant but still got
fired. She sued for trespass to person and the
defendant was liable.
 i) TRESSPASS TO PERSON
DEFENCES
❑ Legal Authority

For purpose of enforcement of

criminal law, authorized people or
private citizen have the right to make
arrests or interfere the rights of others
as provided under Article 5 of the
Federal Constitution and Criminal
Procedure Code.
 ii) TRESSPASS TO LAND

Trespass to land is
the unreasonable Elements of Trespass to
interference into Land
someone’s a) The intention of the
possession of defendant
land. The owner or b) The act of interference
lease holder of the
(wrongful entry, remain
land has the right
to take legal continuously on land or
actions against placing objects)
the trespasser.
 ii) TRESSPASS TO LAND
The intention of the
defendant
•The intention of the defendant
The defendant must intend to do the act of
alleged trespass or the act of voluntarily entering
someone’s land without consent.
Refer to case Basely v Clarkson (1682).
The defendant accidentally mowed the plaintiff’s
grass while he was mowing his own compound.
The court held that, the defendant was liable to
trespass to land as the act was voluntarily done.
 ii) TRESSPASS TO LAND
The act of interference
•The act of interference (wrongful entry, remain
continuously on land or placing objects)
i) Interference by wrongful entry means that
even the slightest crossing of the boundary is sufficient of
trespass to land. Refer to previous case, Basely v Clarkson.
However, if there is no intention to enter the land, then
there is no trespass.

Refer to case Smith v Stone (1647). The defendant

was carried by force onto plaintiff’s land. The court held
that, the trespasser was not Clarkson, but the persons who
carried the defendant upon the land.
 ii) TRESSPASS TO LAND
Next is the ii) interference by remaining continuously on
land. If a structure or object is placed on someone’s land,
he is said to commit two trespassing. The first is trespass of
wrongful entry and second is the failure to remove it
causes a continuing trespass.
Refer to case Cheah Kim Tong v Taro Kau (1989).
The defendant was a TOL holder for Lot 777 and 779.
Defendant built a temporary house but it encroached to Lot
781, his neighbour. The owner of the 781 negotiated with the
defendant for the removal of the part of the house that
encroached his land, however failed. The court held that, the
defendant had committed two trespassing, wrongful
entry and continuous trespass therefore the court ordered the
defendant to demolish the structure that was
trespassing.
 ii) TRESSPASS TO LAND

Last iii) interference is placing or projecting

objects. He who possesses the surface of the land
also possesses the strata and stratum. Any
entry on air or below the land ,if without
permission is actionable to trespass to land.
Refer to case Wilcox v Kettel. The court
held that, the intrusion of concrete beam by 20
inches was trespass. Thus Kettel was liable and
must demolish the structure that has entered the
plaintiff’s land.
 ii) TRESSPASS TO LAND
DEFENCES
• Statutory duty
A local authority or government officer may be
authorised to carry out works under a statute which may
give rise to liability in trespass to land.
Refer to case Azizah bte Zainal Abidin & Ors v
Dato’ Bandar Kuala Lumpur. To avoid flood, the
local authority had widened a river which ran along and
slightly inside the plaintiffs’ land. The court held that
the work was lawful under Street, Drainage and
Building Act 1974 as they were carrying the work under
statutory duty.
 ii) TRESSPASS TO LAND
DEFENCES
• Easement
An easement means any right granted by one
proprietor to another, such right being for the
beneficial enjoyment of the other land. The
criteria of easement are:
• There must be a dominant and servient land
• The easement must accommodate the
dominant land
• The owners of dominant and servient are
different owners
ii) TRESSPASS TO LAND
DEFENCES
•Acquiescence
Acquiescence means agreement or
consent. To raise this defence
successfully, the defendant must
show that the plaintiff had consented
him to enter his property.
 NEGLIGENCE

▪ Definition

▪ Elements To Prove

▪ Remedies

▪ Defences

(REM 119/AP 115)

 DEFINITION: NEGLIGENCE
Negligence is the careless conduct. It connotes the
complex concept of duty, breach of duty and damage,
thereby suffered by the person to whom the duty
was owing.

(REM 119/AP 115)

Tanner is texting while driving and his car hits Alexandra,
who is riding her bike. Alexandra's arm is broken.

Gary opens up his newly renovated shop and Reece is one of the
first customers through the door. Reece is injured when he is
pushed by the crowd into the edge of a shelf.

Is there negligence in the following

examples?
Sophia needs a heart transplant. Her doctor does not tell
her that there is a 1 per cent risk of severe permanent
brain damage. An operation does result in severe brain
damage.

Jasmine cuts her finger in the classroom and her teacher is

distracted while she attempts to comfort her. Marcus leaves the
room and finds a gate open. He walks out of the primary school and
onto the road, where a car swerves to avoid him and hits a pole. The
driver dies.
 NEGLIGENCE

Three (3) elements:

Three (3) 1.Duty of Care
elements must 2.Breach of Duty
be proven for
the plaintiff to be
3.Damage
successful on
negligence suit.
 ELEMENT OF NEGLIGENCE
1. Duty Of Care – Neighbours Principle

Duty of Care; the rule is a duty must be arise

out of some “relation” between the parties.

“There must be, and is some general conception

of relations giving rise to a duty of care…..”

The examples of neighbour principle/duty of care are

relationship between a manufacturer and
consumer, doctor and patient, mechanic and
client, teacher and student, police and offender
et cetera.
 ELEMENT OF NEGLIGENCE
1. Duty Of Care – Neighbours Principle
Everyone has duty of care all the time.
Defendant owed plaintiff duty of care (not to
injure/cause loss to other people and take
standard/reasonable care)

Duty of care is the amount of care that a reasonable

person would exercise under the circumstances. What
is a reasonable person?

Reasonable person is not any real person or even

the average person, but an imaginary prudent person who
takes the precautions necessary to avoid harming another
person or their property.
 ELEMENT OF NEGLIGENCE
1. Duty Of Care – Neighbours Principle

EXAMPLES OF DUTY OF CARE THAT EACH OF THE

FOLLOWING PEOPLE MUST EXERCISE?

1. An owner of an aggressive dog

2. A lifeguard at a pool
3. A site supervisor at construction site
4. A high school football coach
 ELEMENT OF NEGLIGENCE
1. Duty Of Care – Neighbours Principle
Duty of care is defined from the case of Donoughe Stevenson.

➢Refer to case Donoughe v. Stevenson;

Mrs. Donoughe claimed that a friend purchased
a bottle of ginger-beer for her a at a cafe. After
drinking most of it, P found a decomposed snail in the bottle and become ill.
The bottle was of dark opaque glass so that the snails presence could not
have been detected until most of the liquid has been consumed.
➢Court judgment: Manufacturer owed a “duty of care” to
consumer of the product.
Since the plaintiff had suffered as the result of the
manufacturer’s alleged lack of care I ensuring that the product
was fit for consumption, the manufacturer was liable to P in
negligence.
 ELEMENT OF NEGLIGENCE
1. Duty Of Care – Neighbours Principle
➢Refer to case Donoughe v. Stevenson;

A duty of arises whenever a person can reasonable foresee that

his acts or omission would injure or cause damage to another-
neighbour principle.

The rule that;

▪You are to love your neighbor
▪You must not injure your neighbour
▪You must take reasonable care to avoid acts or omission
which can you reasonably foreseen would be likely to
injure your neighbour?
▪Who is my neighbour? - “ Person who are closely and directly
affected by my act”
 ELEMENT OF NEGLIGENCE
1. Duty Of Care – Neighbours Principle
➢Dorset Yacht and Co. Ltd. V Home Office.

Issue: Duty of Care, the neighbour principle

Facts: Seven Borstal boys ran away when 3 officials-in-charge of

them were in bed. The boys boarded one of the many vessels in
the harbour, started it and later collided with the plaintiff’s
yacht.

Held: Home Office were liable to strangers for not protecting

them form the ravages of the Borstal boys. A close direct
relationship existed between the office and the owner of the
yacht. The officers should take reasonable care to prevent the
boys from interfering with yacht and damaging them.
 ELEMENT OF NEGLIGENCE
2. Breach of Duty of Care-Behave Carelessly
Breach of duty of care occurs when defendant does something that is
considered below the minimum of standard of care required of a reasonable
man.

Ordinary reasonable man test

-What a reasonable would do and not do.
- Reasonable man is expected to know that the law and regulate his conduct by it.

•Meet the standard of reasonable professional (certain level of skill and

competence).
•The question is what a reasonably competent practitioner would do, having
regard the standard normally adopted in his profession.
•If he acts in accordance with standards set by a body reasonably competent
members of particular profession- not negligent
• If the person is a dentist, he will be judged against the standards of the
reasonable dentist as long as the activity is one of that reasonable for a dentist to
attempt.
 ELEMENT OF NEGLIGENCE
2. Breach of Duty of Care-Behave Carelessly
There are two (2) types of ordinary reasonable man TEST;

1) An ordinary defendant

In Glasgow Corp v. Muir, Muir spilled hot tea on some children as he brought a big container of
tea through the corridor full of children. The court held that, Muir was not being reasonable
as the damage can be avoided.

2) A professional defendant

Refer Case: Roe v Minister of Health. Roe had the back pain and have to go into operation. The
doctor prepared 2 solutions in 2 different flagons which look alike. The first flagons have
invisible crack and it’s solution had been mixed into solution B. The doctor give the solution
B to Roe. Roe body becomes half paralyzed. The court held that Roe cannot take any
action the doctor as they couldn’t detect the small crack and lack in expertise and
technology.

Refer Case: Kow Nan Seng v. Nagamah. Nagamah, the doctor had applied a tight plaster on one
of Kow’s leg an it was painful to Kow. Nagama h ignored Kow complaint. In some time, the
leg had to be amputated due to blood circulated problem. The court held, to ignore patient’s
complaint of pain was not reasonable.The doctor shoukd attend reasonably thus,
unliquidated damages was compensated to Kow Nan Seng.
 ELEMENT OF NEGLIGENCE
3. Injury or Damages- Causation in Fact
The plaintiff’s must prove that the defendant’s
act caused the injury other wise the defendant
cannot be blame for the damage complained of.

There are two (2) types of injury /damage:

1) Causation in fact; and
2) Proximate Cause

1) Causation in fact
The causation of damage must be tested with sine qua non or
known as the “but for” test. But for test is a test in law linking the tort
and damages which are stated as “but for” the defendants negligent, the
plaintiff would not have been injured.
The “but for” test is pretty simple.
The question is, but for the defendant’s action would the injury have
occurred.??
Example: A hits B in the shin with a golf club. B’s shin would not have
been injured if A had not him in the shin with a golf club?
 ELEMENT OF NEGLIGENCE
3. Injury or Damages- Causation in Fact
➢ Refer to case :Barnet v Chelsea and Kensington
Hospital Management Committee (1960).

“But for test”

But for the defendants’ behaviour,
would the plaintiff have suffered the damage complained of?

The plaintiff’s must prove that the defendant’s act caused the injury
other wise the defendant cannot be blame for the damage complained of.
In this case, a doctor was negligent in falling to examine a patient who
complaining of feeling sick after drinking tea.
In fact, the patient was dying form arsenic poison.
Held that, even if correct medical treatment had been done, nothing
could save him.
So the doctor is not guilty because the doctor’s negligence did not
cause his death.
 ELEMENT OF NEGLIGENCE
3. Injury or Damages- Proximate Cause
There are two (2) types of injury /damage:
1) Causation in fact; and
2) Proximate Cause

Ultimately, it is more of a policy question than a legal question. The

issue is where the law wants to cut off liability for a negligent
actor.

Several theories exist regarding proximate cause:

- Foresee ability
- Direct Consequences.
 ELEMENT OF NEGLIGENCE
3. Injury or Damages- Proximate Cause
Foresee ability
➢ Refer to case The Wagon Mound.

Plaintiff is the owner of oil ship.

Defendant’s is the owner of the welding ship. Oil from plaintiff’s
ship spill the sea. The oil was moved by the wave of the ocean
to the defendant’s ship. The oil was incurred by flames by the
welding ship and causes burning happened at the ship. The
court held that defendant cannot take action towards plaintiff’s
because the oil was moved by the wave of the ocean.
Direct Consequences.
➢ Refer to case Scott v Shepherd. Shepherd threw a lighted bulb
squib into a market, it exploded and caused the plaintiff to lose
an eye. The court held that, the damage suffered was a sine
qua non.
 ELEMENT OF NEGLIGENCE
3. Injury or Damages- Proximate Cause

“ Direct Consequences”
Damages are TOO REMOTE
if they are not foresee
able by a reasonable man.

- The defendants is liable ONLY for damage that was the natural and
probable consequence of his wrongful act.
- In this case, workers of a ship called the Wagon Mound negligently
discharged oil into harbour.
- Some of the oil spread to another wharf owned by plaintiff where an
extensive fire was caused by (the oil ignite and catching fire due to
welding activity which was currently taking place on the plaintiff wharf.
- Held that: The Wagon Mound were held not liable.
- Although they owed a duty to take care in relation to the
plaintiff, and were in breach by negligently discharging the oil, the
damage they had caused was not reasonably foreseeable
consequence of their negligence.
 ELEMENT OF NEGLIGENCE
3. Injury or Damages- Proximate Cause
E.g.: A case involves a flaming barge floating down a river that set a
fire on the riverside and due to a strong wind, thirty (30) neighbouring
houses caught fire.

The court held that barge operator liable for the first house,
but not the other 29.

The theories on basic level, are:

(1) Whether the tortfeasor could have foreseen the consequences of his
or her action; if not no proximate cause.
(2)Whether the tortfeasor’s actions were the direct cause of the
consequence; if there was an intervening cause such as lightning
strike then no proximate cause.
(3)Similar to foresee ability, whether the harm was within the
range of harms that could be expected from the tortfeasor’s action.
 REMEDY: Quantum of Loss

A Plaintiff who has convinced on three (3)

elements above will have to prove the loss that
the defendants has caused.
Any case involving negligence will be an award of
damages.
Damage caused to the claimant must be a type
that is “reasonable foreseeable.

The court will assess the quantum of loss that

the plaintiff is entitled to an award an
appropriate amount to compensate the
plaintiff for the damage done by the defendant.
 NEGLIGENCE
✓ DEFENCES to Claim in Negligence

1) Assumptions of the risk (Volenti Non Fit Injuria )

– The plaintiff was fully aware of the risks; if
plaintiff’s are aware of the risks anyway.
2) Contributory negligence - defendant may not
have to pay, his negligence may only have been
part of the problem (some states)
3) Comparative negligence/ Mechanical – applies
when a plaintiff is partially at fault therefore the
defendants payments will be reduced (most states).
 NEGLIGENCE
✓ DEFENCES AVAILABLE
DEFENDANTS THAT ARE AVAILABLE FOR THE
NEGLIGENCE.

1) Assumptions of the risk (Volenti Non Fit Injuria ) –

The plaintiff was fully aware of the risks; if
plaintiff’s are aware of the risks anyway.

If the plaintiff has an agreement with the defendant that the

latter will not liable if he is negligent. This agreement will
allow the defendant to raise the defence of volenti non fit
injuria succesfully. If there is no such agreement, the courts
will examine the facts of the case and determined whether
there is an implied agreement.
 NEGLIGENCE
✓ DEFENCES AVAILABLE

The plaintiff has voluntarily assumed the risk of injury

generally.
➢ Refer to the case Nettleship v Weston. Nettleship was
teaching Weston how to drive, an accident occurred
and Nettleship suffered a broken knee-cap. The court
held that, the damage was reasonable as the plaintiff
was aaware of the risk of road accident drove by a
trainee. It was a calculated risk.
 NEGLIGENCE
✓ DEFENCES AVAILABLE
DEFENDANTS THAT ARE AVAILABLE FOR THE
NEGLIGENCE.

2) Contributory negligence - defendant may not

have to pay, his negligence may only have
been part of the problem (some states)

It is a contributory negligence if the damage was caused

by the ignorance of the plaintiff to put himself out of
danger. The plaintiff is required to act reasonably to
avoid damage.
 NEGLIGENCE
✓ DEFENCES AVAILABLE
2) Contributory negligence

If the plaintiff is found to have (or be partly responsible

for) his own injury, the damages recoverable by the
plaintiff are to reduced to such extent as the court
thinks fair and equitable; i.e. the plaintiff may not be
able to recover anything .

➢ Refer Case: Jones v Livox Quarries Ltd. [1952],

plaintiff ignore the site supervisor not to drive behind
the traxcavator. The accident happen due to
ignorance of plaintiff to put himself in danger.
 NEGLIGENCE
✓ DEFENCES AVAILABLE
DEFENDANTS THAT ARE AVAILABLE FOR THE
NEGLIGENCE.

3) Comparative negligence/ Mechanical Defects

– Applies when a plaintiff is partially at fault
therefore the defendants payments will be
reduced (most states).

If the damage is occurred after a proper inspection and

maintenance of the vehicle, the damage is considered
as unforeseeable therefore not a negligence.
 NEGLIGENCE
✓ DEFENCES AVAILABLE
3) Comparative negligence/ Mechanical Defects
➢ Refer case Che Jah bte Mohammad Ariff v C. C. Scott
(1952).

The plaintiff was a passenger in the

defendant’s car that crashed into a stationary car.
She suffered injury as a result of the accident. The
defendant gave evidence that ten (10) days prior to the
accident he had sent the car for service with particular
attention to the brake. The court held that , the brakes
was latent and as the defendant had employed skilled
labour, no negligence could be attributed to him.
DEFAMATION

(REM 119/AP 115)

 Defamation
False statements that injure a person’s
reputation or good name.
• Slander - spoken defamation
• libel - written or printed defamation

To be defamatory the statement must be:

1. False
2. Communicated to a 3rd party
3. The victim’s reputation is ruined or he/she faces ridicule
 Invasion of Privacy
Uninvited intrusion into an individual’s
personal relationships and activities.
 Types of Defamation
Libel
» Libel is defamation in a
permanent form and is
visible to the eye, such as
in written form, pictures,
statues or effigies.
» According to section 3 of
the Act, broadcasting of
words by means of radio
communication shall be
treated as publication in a
permanent form and
constitutes libel.
Slander
» Slander is defamation in a
temporary form i.e. spoken words
or gestures.
» Slander is not actionable per se.
The plaintiff needs to prove
actual or special damage to
succeed in his action.
» Actual damage refers to financial
loss or any loss that may be
measured in monetary terms. For
examples, loss of business or
employment or the chance to
attend a social function that may
be measured in monetary terms.
 Elements of Defamation
The words are defamatory
Estimation of the plaintiff in the
minds of right thinking
members of society, so that the
plaintiff is shunned, avoided
and ridiculed.
Word may be defamatory in
three ways:
» Natural and ordinary
meaning
» Innuendo
» Juxtaposition
Word refer to the plaintiff
The plaintiff must prove the
defendant’s words refer to him.
In Hulton & Co v. Jones
(1910) AC 20, the defendant
wrote a fiction concerning
Artemis Jones in Peckham.
There was in fact a real
Artemis Jones, a lawyer in that
town. His friends thought the
story was about him. The court
held defamation was
established.
 The words must be published
Publication means dissemination of the defamatory words or
materials to a third party, other than the plaintiff.

In Dr.Jenni Ibrahim v. S. Pakianathan (1988) 2 MLJ 173

The plaintif was a psychologist working on voluntary basis at a
Help Centre in Kg. Bercham, Perak. The defendant wrote two
letters indicating that the plaintiff had committed a breach of
trust amounting to RM70,000. Copies of one of these letters
were sent to the directors of the centre, the Director of Welfare
Services of Perak and the Registrar of Societies in Malaysia.
 Defences
Consent
• A plaintiff who gives his
consent for express or
implied publication, cannot
hold the defendant liable.
• A plaintiff who consent to
being interviewed and knows
the contents will be
published in a journal or
magazine.
Justification
• Justification or truth is an absolute
defence. Malice does not defeat the
defence of justification.
• In Abdul Rahman Talib v.
Seenivasagam (1965) 1 MLJ 142, the
defendant alleged that the plaintiff, a
government Minister had received
moneys and favours to his personel
advantage. The defendant could prove
the truth of the receipt of money. The
court held this particular allegation did
not injure the plaintiff’s reputation
having regard to the truth of the
allegation concerning receipts of favours.
The defence of justification was
successfully raised against the plaintiff.
 Defences
Fair Comment
» Four requirements needs to
be established :
a. Words must be in the
form of comment and
not a statement of facts.
b. Comment must be
based on true facts.
c. Comment is fair.
d. Comment concerns an
issue of public interest.
Privilege
» There two types of privilege,
qualified and absolute.
Qualified privilege is of two
kinds:-
i. Statutory Qualified
Privilege.
ii. Common Law Qualified
Privilege.
Unintentional Defamation
• When a person unintentional
and innocently publishes
defamatory material for
another person, he may plead
the defence of unintentional
defamation provided by
section 7 of the Act.
Innocent Dissemination
» A person who participates in
the publication of a defamatory
article is subject to suit. Mere
distributors or delivery boys
are entitled to the above
defence in Vizetelly v.
Mudie’s Select Library
Ltd(1900) 2 QB 170, the
defendant is entitled to the
defence if he is not the author,
printer or the first or main
publisher of the defamatory
article and he must prove
NUISANCE

(REM 119/AP 115)

NUISANCE
✓ An ‘unlawful interference’ / interference of environment by
neighbours in relation to land with damage resulting from such
interference.
✓ Ownership of property generally entitles the owner to enjoy the
land without interference by neighbours.
✓ If the activities of one party (neighbours) affect the enjoyment
of the other, legal action (nuisance) might be taken to prevent
further disturbance.
✓ Can be Public/ Private Nuisance

REQUIREMENTS OF NUISANCE (TORT)

- Nuisance is a tort connected with land (enjoyment of land)
- Nuisance is designed to protect an occupier’s right to the
enjoyment of his land (Physical damage on property and or
affects the reasonable comfort and convenience)
- Keywords: interference, enjoyment, land and damage
- Not actionable per se (must prove damage)
Trespass and Nuisance
(Both affect land,
but)
TRESPASS NUISANCE
1) Actionable per se 1) Not Actionable per se
2) Without the requirement to prove 2) Must prove damage / injuries occurred
damage/injuries occurred

1) Direct physical interference to land etc
2) Example: walking across the field /
placing rubbish on neighbouring land etc
1) Need not be direct interference to land
2) Example: allowing smoke to drift /
branches to encroach / bricks from
ruinous building to fall onto neighbouring
land

1) Wrongful entry of an object or person on 1) No entry necessary. The action can be

another’s land created on defendant’s own land

Negligence and Nuisance

NEGLIGENCE NUISANCE
1) Protection of personal rights 1) Protection of rights over land (proprietary)

1) General claim for negligence: damages 1) General claim for nuisance: injunctions
NUISANCE
Nuisance is an important factor in the construction industry
because of the rules in relation to:
1. Demolition and building (effect on neighbouring
land)
2. Building operations (Noise, vibration, dust, flood,
mosquito)
3. Planning new uses of land (EIA restrictions in
relation to nuisance)

Examples of Nuisance caused by construction activities:

✓ If contractors are not careful when carrying out their
works, the neighbours may find their living conditions are
being interfered with.
✓ If the neighbours can proof that they suffer discomfort, or
their property is damaged, the contractor can be made
liable for damages and injunction.
PUBLIC NUISANCE
✓ ‘unreasonable interference’ / ‘unlawful act’:
1. materially affects the reasonable comfort and convenience
of the public (in general or some section of it)
2. generating harm to the public at large (endangers lives and
safety)
3. it is a crime (common law) / statutory offences – not
actionable by the public generally (to avoid multiplicity of
actions)

✓ Common Examples of Public Nuisance:

1. Obstructing the highway
2. Polluting a public water supply / open burning
3. Selling food unfit for human consumption
4. Dust caused by quarrying operations
5. Factory that emits excessive smoke, fumes or dirt – cause
discomfort to the community
CASE :
In Majlis Perbandaran Plau Pinang v. Boey Siew Than
& Ors (1979) 2 MLJ 127, the local authority brought an
action for in unjuction restrain the defendents from using
their premises as a restaurant without having obtained a
licence for the plaintiff and for public nuisance. The Federal
Court held that the plaintiff commenced its action based on
Section 80 of the Local Goverment Act 1976, it can take action
for public nuisance without consent in writing from the
Attorney General and a nuisance is a public nuisance if it
materially affects the reasonable comfrot and convenience of a
class of the subjects of the state, even if no special damage has
been caused.
PRIVATE NUISANCE
✓ Unlawful / unreasonable interference by a
defendant with the use or enjoyment of a plaintiff’s
land
- Person suffering the harm is the owner or
occupier of the land.

✓ ‘unlawful interference’ (unreasonable and

substantial):
1. that affects his health, or (Physical damage)
2. that affects his comfort or convenience

✓ Common Examples of Private Nuisance:

1. Noise
2. Vibration
PRIVATE NUISANCE

✓ The interference may result in:

1. Damage to a persons’ enjoyment of an
easement (right of light, right of way etc)
2. Damage of property – vibrations,
emission of fumes which damage
another’s property
3. Causing an encroachment on another’s
land (overhanging trees, encroaching
tree roots)
4. Annoyance – obnoxious smells, fumes,
noise, dust, sewage and keeping animals
PRIVATE NUISANCE

✓ Who can sue (plaintiff):

1. The owner of the land
2. The occupier of the land
3. Tenant
✓ Who can be sued (defendant):
1. The creator of the nuisance
2. The occupier of the land
✓ In deciding what is unreasonable, the court will take
into account:
- The duration and nature of the interference
- The defendant’s conduct
- The effect of the interference on the plaintiff
CASES :
In Spicer v. Smee (1946) 1 All ER 498, the
plaintiff’s house was burnt down due to defective
wiring system in the defendent’s adjoining
house. The court found the defendent liable for
creating “ a dangerous state of affairs on his
premises.
Private nuisance arises out of a state of
things on one man’s property whereby his
neighbour’s property exposed to danger”.
 NUISANCE
✓ DEFENCES AVAILABLE

Could be use for Defenses;

➢ Consent
➢ Act of Good
➢ Act of Stranger
➢ Inevitable of accident
➢ Statutory Authority.
 REFERENCES
•Nuraisyah Chua Abdullah, Questions and Answers on
Malaysian Courts, Statutes, Cases, Contract, Tort, and
Criminal Law, 7th Edition, 2015.
•Norchaya Talib, Torts in Malaysia, 2nd Edition, 2003.
•Rogers, W.V.H., Winfield and Jolowicz on Tort, 16th Edition,
2002.
•Lee Mei Pheng, General Principles of Malaysian Law, 4th
Edition, 2001.