INTRODUCTION

What is tort?
INTRODUCTION TO LAW OF
TORTS Tort is a civil wrong. It is a
wrong done to other
What is Tort? person. Action is brought
Objectives/ Functions of Law of Torts by the person who is the
victim of wrongful conduct
Types of Torts
against the wrongdoer.
How is Tort Different from Contract and Crime?
Sources of Law of Torts

Dr. Noraiza Abdul Rahman 2

INTRODUCTION INTRODUCTION
What is tort? Functions of Law of Torts
Winfield defined tort as a wrong where the The law of torts has two functions:
victim is entitled to redress. Salmon defined To determine when a person has to pay compensation
tort as a species of civil injury or wrong. for harm wrongfully caused.
To determine what conduct may be stopped or
Thus, it is submitted that tortious duty arises
regulated by order of the Court.
from the breach of a duty primarily fixed by
law. This duty is towards persons generally
and its breach is redressable by an action for
unliquidated damages.

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INTRODUCTION INTRODUCTION
Functions of Law of Torts Types of Liability in Torts
Property (Trespass to There are THREE types:
land, interference
with goods)
Personal liability when a person is liable for his act or
omission in breach of a legal duty and has to pay for
damages.
The kinds on
Financial (Economic interest which Person (negligence Vicarious liability when a person is liable for the act
loss and negligent the law of torts and trespass to
misstatement) protect against person) or omission of another person with whom he stands in
infringement are:
some special relationship.
Strict liability when a person is strictly liable of any
Reputation
fault i.e. the defendant is liable for the act or omission
(Defamation and
malicious
done even though he acted innocently and was at no
prosecution)
fault.
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 INTRODUCTION INTRODUCTION
Types of Liability in Torts How is tort different from contract?
Actionable per se refers to tort where the A tort differs from a breach of contract mainly
defendant is liable without proof of actual
damage caused to the plaintiff. For in the liability in contract can come into
example, trespass to land.
existence only by agreement of the parties
concerned, whereas liability in tort is imposed
Not actionable per se means tort in
which the defendant is only liable if there by law (and not agreed between the parties).
is proof of actual damage to the plaintif.
For example, negligence. Second, the aim of tort is the prevention or
compensation of harms while the aim of
contract is to enforce certain promises.

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INTRODUCTION INTRODUCTION
How is tort different from crime? Sources of Law of Torts
A tort is a civil wrong against and individual or There are three main sources of the law of
a number of individuals whereas a crime is an torts in Malaysia, namely:
offence against the State. English Common Law by virtue of Section 3 of the
The object of tort is to compensate the Civil Law Act 1956 to the extent that
The written law permits and no further than in their
plaintiff via a civil proceeding while the object
view
of crime is to punish the offender via a In the absence of local statutory provisions or judicial
criminal proceeding. guidance
English law which are suited to local circumstances that
will be applied

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INTRODUCTION
Sources of Law of Torts
NEGLIGENCE
Local judicial decisions the Malaysian Courts
have followed and incorporated existing English
common law tort principles in deciding local Definition and Elements
cases. Duty to Take Care
Local statutes the only Malaysian law of tort that The Neighbour Principle
has been codified into statute is the law of The Situation in Malaysia
defamation, contained in the Defamation Act Foreseeable and Unforeseeable Plaintiffs
1957. Omission

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 NEGLIGENCE NEGLIGENCE
Definition and Elements Definition and Elements
Negligence as an independent tort is defined Thus, in order for a plaintiff to succeed in an
by Winfield as the breach of a legal duty to action for negligence, he must prove the four
take care which results in damage, undesired main ingredients in negligence:
by the defendant. 1. The defendant owes the plaintiff a duty of
Negligence in tort means care;
failure to take a proper 2. The defendant breached his duty of care;
amount of care against
3. As a result, the plaintiff suffered damage;
another person, namely the
plaintiff, which results in 4. The damage is not too remote.
injury or damage to the latter.

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NEGLIGENCE NEGLIGENCE
Definition and Elements Duty to Take Care
It is not every careless act that a man may be
Only when all the held responsible in law, nor every careless act
elements of
negligence have causes damage. A person will only be liable in
been proved, then negligence if he is under a legal duty to take
the plaintiff can care.
claim damages.

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NEGLIGENCE NEGLIGENCE
Duty to Take Care Duty to Take Care
There are many situations where the duty of
care have been established and easily
understood.
For example, the duties owed by drivers to
other road users, of employers in respect of
safety of their workers, of doctors to patients,
of an occupier of land to visitors.

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 NEGLIGENCE NEGLIGENCE
The Neighbour Principle The Neighbour Principle
Pre-Donoghue v Stevenson: NEIGHBOUR PRINCIPLE
The first attempt to formulate a general principle was Donoghue v Stevenson (1932) A.C. 562
made by Brett M.R. in Heaven v Pender (1883) 11 QBD
503 at 507. The test for the existence of a duty
This was how he puts it: owed to the plaintiff is the neighbour
whenever one person is by circumstances placed in such a principle stated by Lord Atkin i.e. the
position with regard to another that everyone of ordinary sense foresight of the reasonable man.
who did think would at once recognise that if he did not use
ordinary care and skill in his own conduct with regard to those
circumstances he would cause danger or injury to the person or
property of the other, a duty arises to use ordinary care and skill
to avoid such danger.

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NEGLIGENCE NEGLIGENCE
The Neighbour Principle The Neighbour Principle

Donoghue v Stevenson (1932) A.C. 562 The House of Lords held that although there
A manufacturer of a ginger beer had sold to a was no contractual duty on the part of the
retailer, ginger beer in an opaque bottle. The retailer manufacturer towards As friend, the
resold it to A who treated her friend to its contents.
manufacturer owed her a duty of care that the
The ginger beer bottle contained a decomposed
bottle should not contain noxious matter.
remains of a snail which had found its way into the
bottle at the factory. As friend alleged that she Therefore, the manufacturer was held liable.
became seriously ill in consequence and sued the
manufacturer for negligence.

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NEGLIGENCE NEGLIGENCE
The Neighbour Principle The Neighbour Principle

In Donoghues case, Lord Atkin acknowledged

However, for this principle to that:
apply, it is not required that the
plaintiff must be identified by The existence of the concept of duty of care in
the defendant. It is enough if the English Law
plaintiff is one of a class within That the duty arise due to a moral code, i.e. what
the area of foreseeable injury. is considered to be morally wrong. So the
wrongdoer must pay for his act.
There are limits to this. Not every morally wrong
act gives rise to liability.

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 NEGLIGENCE
The Neighbour Principle
Lord Atkin then established what is now called the
neighbour principle when he said that:
The rule that you are to love your neighbour becomes in law,
you must not injure your neighbour and the lawyers question:
who is my neighbour? receives a restricted question. You must
take reasonable care to avoid acts or omissions which you can
reasonably foresee would be likely to injure your neighbour.
Who, then, in law is my neighbour? The answer seems to be
persons who are so closely and directly affected by my act that I
ought reasonable to have them in contemplation as being so
affected when I am directing my mind to the acts or omissions
which are called in question.
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NEGLIGENCE
The Neighbour Principle
Post-Donoghue v Stevenson:
However, the House of Lords in the case of Home
Office v Dorset Yacht Co. Ltd (1970) AC 1004, Lord
Reid suggested that the time has come when we can
and should say that the neighbour principle ought to
apply unless there is some justification or valid
explanation for its exclusion.
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NEGLIGENCE
The Neighbour Principle
Second, if the first question is answered affirmatively, it is
necessary to consider whether there are policy
consideration which ought to negative or to reduce or limit
the scope of the duty or the class of persons to whom it is
owed or damages to which a breach of it may give rise.
The two stage approach in Anns case had no
longer represented the correct general approach
to the establishment of a duty of care.
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NEGLIGENCE
The Neighbour Principle
Analysis of Lord Atkins formula: In order to establish the
existence of a duty of care, it is highlighted that the
neighbour principle consists of two parts:
Foreseeability Test you must take reasonable care to
avoid acts or omissions which you can reasonably foresee
would be likely to injure your neighbour.
Proximity Test persons who are so closely and directly
affected by my act that I ought reasonable to have them in
contemplation as being so affected when I am directing my
mind to the acts or omissions which are called in question.
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NEGLIGENCE
The Neighbour Principle
This was taken up by the House of Lords in Anns v
Merton London Borough (1978) AC 728 where Lord
Wilberforce established a two step approach to the
question when a duty of care arise.
First, one has to ask whether as between the alleged
wrongdoer and the person who has suffered damage,
there is a sufficient relationship of proximity or
neighbourhood in which a prime facie duty arises.
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NEGLIGENCE
The Neighbour Principle
The Anns test received heavy criticism and in
Governors of the Peabody Donation Fund v Sir
Lindsay Parkinson & Co Ltd, the Court warned against
treating the Anns test as being definitive.
The court further stated that a relationship of
proximity or neighbourhood in accordance with the
principle established by Lord Atkin must be proved
before a duty of care is said to exist, rendering it to
be just and reasonable.
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 NEGLIGENCE
The Neighbour Principle
The final nail in the coffin of Anns was driven in the
case of Murphy v Brentwood District Council
(1990) 3 WLR 414 when the House of Lords,
consisting of seven members, unanimously held
that Anns was wrongly decided and should be
departed from.
It is preferable that the law should develop novel
categories of negligence incrementally and by
analogy with established categories rather than by
a massive extension of a prima facie duty of care.
Dr. Noraiza Abdul Rahman
NEGLIGENCE
The Situation in Malaysia
Application of the Neighbour Principle:
Lord Atkins principle has been extensively
applied by courts in Malaysia.
CASES:
Sathu v Hawthornden Rubber Estate Co Ltd (1961)
MLJ 318
Loh Kwan Moi & Ors v Ramli bin Jamil & Ors &
Government of Malaysia (1984) 1 MLJ 46
Dr. Noraiza Abdul Rahman
NEGLIGENCE
The Situation in Malaysia
Other CASES to consider:
Arab-Malaysian Finance Bhd v Steven Phoa
Cheng Loon & Ors (2003) 2 AMR 6, CA
Majlis Perbandaran Ampang Jaya v Steven
Phoa Cheng Loon & Ors (2006) 2 AMR 563, FC
Dr. Noraiza Abdul Rahman
NEGLIGENCE
The Neighbour Principle
The Caparo three-stage test:
In Caparo Industries v Dickman (1990) 1 All ER 568,
Lord Bridge acknowledged that in order to determine
whether there is a duty of care, there must be three
ingredients which are as follows:
The damage is reasonably foreseeable
There is a close and direct relationship of proximity
between the plaintiff and the defendant
The circumstances as a whole must be such that it is fair,
just and reasonable to impose a duty of care
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NEGLIGENCE
The Situation in Malaysia
Following the decision in Caparo, the Court in
Uniphone Sdn Bhd v Chin Boon Lit & Anor (1998) 6
MLJ 441 held that the test in determining duty of
care is no longer limited to the foreseeability of
damage alone, but it further requires a consideration
of proximity of relationship and whether it is fair, just
and reasonable to impose such duty.
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NEGLIGENCE
Public Policy Reason
The second stage of Lord Wilberforces test in
Anns case will rarely have to be applied.
If a case of negligence is made out on the
proximity basis, public policy may require that
there should be no liability.
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 NEGLIGENCE NEGLIGENCE
Public Policy Reason Public Policy Reason
One of the rare cases where that has been In Hill v the Chief
held to be so is Rondel v Worsley (1969) 1 AC Constable of West
Yorkshire (1988) QB 60, a
191 where it was decided that public policy 20-year old female
demands that a barrister should be immune student was murdered by
from liability for negligence in the conduct of the Yorkshire Ripper. He
proceedings in court in the interest of the had committed a number
of similar offences in the
administration of justice. area over a period of
years.
The mother of the
deceased sued the police
authorities for negligence
in the investigations into
the previous offences,
and had thereby failed to
prevent the murder of the
deceased.

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NEGLIGENCE NEGLIGENCE
Public Policy Reason Foreseeable and Unforeseeable Plaintiffs

The House of Lords reaffirmed the decision
made by the Court of Appeal and dismissed
the claim on the ground of no cause of action,
upon the principle that there was no
relationship of proximity between police and
the deceased.
The word foreseeability is often used
interchangeably with proximity.
A plaintiff who suffers harm as a result of the
defendants act might not be able to recover
because he is not a foreseeable victim.
Thus foreseeability includes proximity.

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NEGLIGENCE NEGLIGENCE
Foreseeable and Unforeseeable Plaintiffs Foreseeable and Unforeseeable Plaintiffs

It is necessary to establish on the particular
facts of the case that the defendant owes a
duty of care to the particular plaintiff,
eventhough no one would argue that whether a
car driver owes a duty of care towards a
pedestrian or not.
In the American case of Palsgraf v Long Island
Railroad Co. (1928) 284 NY 339, the
defendants servants negligently pushed X
who was attempting to board a moving train
and caused him to drop a package containing
fireworks. The resulting explosion knocked out
some scales, many feet away, which struck the
plaintiff, injuring her.

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 NEGLIGENCE NEGLIGENCE
Foreseeable and Unforeseeable Plaintiffs Foreseeable and Unforeseeable Plaintiffs

In Bourhill v Young (1943) AC 92, the Courts in

England followed the American majority view.
In that case, a motor-cyclist carelessly collided
with another motor vehicle. The plaintiff, a
The majority of the Court held that although the defendants servants pregnant woman, suffered nervous shock
were negligent with regard to the man carrying the package, he does not
owe a duty to the plaintiff because it was not in the contemplation of a when she heard but did not see the collision.
reasonable man that the package would contain a violent explosion. The
defendant does not owe a duty to the plaintiff to protect him against the
hazard. The minority dissented on the ground that the plaintiffs injuries
were the proximate result of the negligent act of the defendant.

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NEGLIGENCE NEGLIGENCE
Foreseeable and Unforeseeable Plaintiffs Foreseeable and Unforeseeable Plaintiffs

Her claim against the defendant fails as a duty

of care only arises towards those individuals Although the plaintiff must be
of whom it may reasonably anticipated that foreseeable, it is not necessary
they will be affected by the act which that he must be identified by
the defendant. He should be
constitutes the alleged breach. Here, the one of a class within the area
plaintiff was outside the area of foreseeable of foreseeable injury.
danger.

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NEGLIGENCE NEGLIGENCE
Foreseeable and Unforeseeable Plaintiffs Foreseeable and Unforeseeable Plaintiffs
Haley v London Electricity Board (1965) Held: The number of blind persons walking
The defendants excavated a trench in the about the streets alone was sufficient to
street. They took precautions for the require the defendants to have them in
protection of passers-by which were sufficient contemplation and to take precautions
for normal sighted persons. appropriate to their condition.
However, the plaintiff, who was blind, suffered
injury because the precautions taken by the
defendants were inadequate for him.

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 NEGLIGENCE
Foreseeable and Unforeseeable Plaintiffs
Other Malaysian cases:
Chong Kok Weng & Anor v Wing Wah Travel
Agency Sdn. Bhd. (2003) 5 CLJ 409
Zazlin Zahira Hj Kamarulzaman (Budak) Menuntut
Melalui Bapa dan Penjaganya Hj. Kamarulzaman
bin Mohd Ali lwn Louis Marie Neube Rt Ambrose
a/l J Ambrose & 2 lagi
Pendaftar dan Pemeriksa Kereta-Kereta Motor,
Melaka v KS South Motor Sdn Bhd [200] 2 AMR
1838
Dr. Noraiza Abdul Rahman
NEGLIGENCE
Omission - Exceptions
1. Where the omission is contrary to an
existing duty to act.
2. Where there exists a special relationship
between the plaintiff and the defendant.
3. Where an omission will give rise to a duty
of care.
Dr. Noraiza Abdul Rahman
TO BE CONTINUED
Dr. Noraiza Abdul Rahman
NEGLIGENCE
Omission - Exceptions
An act is a positive act of the defendant that
causes harm to the plaintiff.
Unlike an act, omission is defined as inaction
on part of the defendant that causes harm to
the plaintiff.
The general principle is that a person must not
harm others, but at the same time, he does
not owe a duty of care to do something for
the benefit of another.
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NEGLIGENCE
Omission
4. Where the defendant has control over land
or property on which there exists or might
exist, danger.
5. An omission is also actionable where the
defendant fails to perform an act that has
been promised to the plaintiff.
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