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What is a tort
The purpose of law of tort
The scope of law of tort
The laws governing tort in Malaysia
The relevant concepts in the law of tort
The types of remedies under the law of tort
Latin word ‘tortus’
= ‘twisted’ or ‘wrung’
Wrongful act
Omission
NOT authorised
by law
Eg: trespass to person
A wrong recognised by law
A wrong the victim of which is
entitled to redress
A species of civil injury or wrong
Can you think of
some examples of
tort?
“a tort consists in some acts done
by a defendant whereby he has
without just cause or excuse cause
some form of harm to the
plaintiff”
“Tortious liability arises from the
breach of a duty primarily fixed by
law; this duty is towards persons
generally and its breach is
redressible by an action for
unliquidated damages”
Liability is based upon breach of duty
Tortious liability arises by operation
of law, not by agreement of parties.
A tort may consist of either a
wrongful act or omission, which is
not authorised by the law
Liabilityor non liability of a
person in doing or not doing
something
Seeking monetary compensation
and other redresses for injuries or
damage suffered
Allocation of responsibility for losses-
seeking for redress for injuries or
damage suffered in terms of monetary
compensation
Deterrent function
Responsible for future actions
Serves as reminder to other
persons
Person
E.g.: assault, battery, false imprisonment,
negligence for causing personal injury
Property
E.g.: trespass to land, nuisance, interference with
goods
Financial
- E.g.: deceit, passing off
Reputation
-E.g.: defamation, malicious prosecution
Not all wrongs comes under tort law
The wrong/omission must be a legal wrong
“In applying s.3 of the Civil Law Act 1956 , the approach the Court
should take is first to determine whether there is any written law in
force in Malaysia. If there is none, then the Court should determine
what is the common law of, and the rules of equity as administered in
England on 7 April 1956. Having done that the Court should consider
whether "local circumstances" and "local inhabitants" permit its
application as such. If it is "permissible" the Court should apply it. If not,
the Court is free to reject it totally or adopt any part which is
"permissible", with or without qualification. Where the Court rejects it
totally or in part, then there being no written law in force in Malaysia,
the Court is free to formulate Malaysia's own common law. In so doing,
the Court is at liberty to look at any source of law, local or otherwise,
be it England after 7 April 1956, principles of common law in other
countries, Islamic law of common application or common customs of
the people of Malaysia. Under the provision of s.3 of the Civil Law Act
1956 , that is the way the Malaysian common law should develop.”
The approach:
(a) Written law?
(b) Common law or rules of equity as at the cut-off dates
- Court is to consider local circumstances and the
local inhabitants permit the application
- If it is permissible = court apply it
- If not permissible = court can reject in total or
partly apply the permissible part
- court can formulate Malaysian common law
- Other sources: English law after cut off date,
laws of other countries, Islamic law or common
custom of people
Tort law is a creature of common law and not
codified
The principles of tort law can be found from the cases
decided by courts
Incorporates English common law
Mainly not codified in statutes
Defamation Act 1957
(a) Tortious liability
The liability that arises from tortious action
Winfield & Jolowicz
“Tortious liability arises from the breach of
duty that has been sanctioned by the law,
owed to the public generally and the breach
may be reddressed by an action for
compensation in the form of unliquidated
damages”
A state of mind of the tortfeasor