NATURE AND SCOPE OF TORT LAW

NATURE OF LAW OF TORTSIntroductory LectureDr. Sonny ZulhudaOutlineDefinitionElements of TortLegal WrongLegal DamageLegal RemedyAims and Objectives of TortInterests protected by TortForms of LiabilityModes of Liability

Introduction The objective of law of tort is to ensure those who suffer wrongs can be compensated and future incidents can be prevented through civil legal mechanism, i.e. civil law.

It does not include non-civil law such as administrative law and criminal law.

Introduction If this LIMIT is BREACHED, a RIGHT has been WRONGED, and it amounts to INJURIES or LOSS or DAMAGE. Damage: in the forms of monetary/financial, property, reputation or bodily injury.

Those who are responsible in causing this DAMAGE, would therefore be LIABLE to compensate the losses to those who suffer personally. This is governed by LAW OF TORTS.Breaching the Limit = Wrong = Tort

DefinitionLiterally: wrong

Technically:A wrongful act or omission by a person, not authorized by lawSuch act/omission encroaches to others interest which is protected by law i.e. legal injurySuch encroachment may/may not result in actual or physical damageThe person wronged is entitled to a legal remedy

Tort as law: a branch of private law that deals with the types of tortious acts and the matters incidental thereto such as the remedies.Elements of the WrongdoingElementsImportant maxims:Ubi jus ibi remedium where there is right there is remedy

Injuria sine damno; wrong without damagesee: Ashby v White (1703)

Damnum sine Injuria; damage without wrongsee: Bradford Corporation v Pickles [1895]

Objectives of torts lawThe law of torts is concerned with the redress of wrongs or injuries by means of a civil action brought by the victim. (Rogers)

ALLOCATION of LOSSESPREVENTION of LOSSESInterests protected in Torts lawFour kinds of interests protected against infringement under law of torts:PersonPropertyFinancial Reputation

COMPARE: The five necessities (dharuriyyat khams) under the Islamic jurisprudences maqasid syariah!hifdz ad-dinhifdz an-nafshifdz al-aqlhifdz an-naslhifdz al-mal

Forms and Modes of LiabilityFormsPrimary liabilityVicarious liability

ModesNegligenceIntentionalStrict liabilityStatutory liabilityIs Intention required to prove torts?Yes, eg.TrespassDefamationNo, eg.Tort of NegligenceTort under the Rule of Rylands v Fletcher (i.e. Strict liability)Sources of Law of Torts in Malaysia

Parties to tortIndividual (natural person)Corporation (artificial person)State/GovernmentSpousesMinorsSuit by and against Government?Statutory requirements under the Government Proceeding Act 1956

Basically the Govt may sue or be sued upon circumstances provided in the Act

Govts liability in tort can be found in s. 5 of the Act; equaling Govt-officer like Principal-agent. However the suit must also have been brought against the officer personally.

Between Spouses?Section 4A of the Married Women (Amendment) Act 1994 on the Capacity of husband and wife to sue each other for personal injuries.

A husband or a wife shall be entitled to sue each other in tort for damages in respect of injuries to his or her person, as the case may be, in the like manner as any other two separate individuals.

Minors?Minors?In Malaysia: below 18 yrs (sec 2, the Age of Majority Act 1971)Minors liability in tort is like Adults liability but must sue or be sued by the guardian ad litem.Different situation for minors liability in contract

Differences between WRONG under different branches of lawMATTERTORTS LAWCONTRACT LAWCRIMINAL LAWObjectives?Disputing Parties?Courts and Procedure?Sanctions? Types of Damages?Sources of Law?COMPARE AND CONTRAST!Syariah PerspectivesTorts Law in Syariah perspective: Explore from the Quran and Hadith of Prophet!