INTRODUCTION TO TORT...Tort-Introduction ! Wrongful acts/omissions ! Civil wrong independent of contract ! Liability arising from a breach of legal duty owed to person generally !

INTRODUCTION TO TORT

Dr. Che Khairil Izam Che Ibrahim

Ir. Dr. Syuhaida Ismail

Tort-Introduction !  Wrongful acts/omissions

!  Civil wrong independent of contract

!  Liability arising from a breach of legal duty owed to person generally

!  Breach of duty primarily fixed by law

!  Its breach is redressed (compensated) by an action for unliquidated damages - damages in a breach of contract case that is not predetermined by the party e.g. damages for pain and suffering

!  Elements of fault and damages must exist

Function

! Redress of wrongs or injuries by means of civil actions

! Redress may take in form of damages (monetary)

! To share the burden of victim’s loss

! Compensation to teach wrongdoer to be careful and responsible in future

Aims of Law of Torts

! Compensation - to compensate the victim of the wrong to the extent of the damage suffered

! Deterrence / prevention - to ensure that it does not happen again or, even, better, to prevent it from occurring at all

Tort-Features

! Must be a wrongful act

! The wrongful act affects the right of interest of others

! The victims or injured party has right to claim for damages

! An act without damages is not a torts

Tort-Elements

! Tortfeasor, or defendant, had a duty to act or behave in a certain way.

! Plaintiff must prove that the behavior demonstrated by the tortfeasor did not conform to the duty owed to the plaintiff.

! The plaintiff suffered an injury or loss as a result.

Important Concepts

!  Tortious liability !  Something not allowed or leaved something

required by law

!  Intention (a state of mind) in 2 ways: !  Knows the consequences, foreseeable to give

rise to some infringement (violation) to the victims and tested by the objective test

!  Presume to have probable consequences !  Motives/Malice

!  Evil motive

Important Concepts (Cont.) !  Damage

! Proof is required before defendant (tortfeasor) is held liable

! Forms: a)  Physical Injuries

b)  Damage to property

c)  Damage to reputation

d)  Economic Loss

! Types: a)  Unliquidated - Unquantifiable e.g. pain

b)  Liquidated – Specific damage (loss earning)

Legal case

Question

! Batty v. Metropolitan Realisations Ltd [1978]. A developer sold a house which is unsuitable for habitation to the plaintiff as it was built at the top of a potentially unstable slope. Who was held liable?

Legal Case (Cont)

!  The developer i.e Metropolitan Realisations was liable because:

a)  The developer did something not allowed by law

b)  There was an intention of presuming that the construction would have probable consequences

c)  Proof of damage d)  Effect the rights of buyer

Scope of Tort

Scope of Torts

Trespass

Person

Assault

Battery

False Imprisonment

Goods

Detinue

Conversion

Land

Negligence Nuisance Strict Liability Defamation/Slander

TRESPASS TO PERSON

Scope of Tort

Scope of Torts

Trespass

Person

Assault

Battery

False Imprisonment

Goods

Detinue

Conversion

Land


Categories of Trespass to Person

Trespass to Person

Assault - Direct act causing fear

Battery - Intentional and direct application

of force

False Imprisonment

- Restrict a person movement

Scope of Tort

Scope of Torts

Trespass

Person

Assault

Battery

False Imprisonment

Goods

Detinue

Conversion

Land


TRESPASS TO PERSON 1.  Assault !  Direct act that causes apprehension/fear !  Concerns with protection of a person’s

mental !  Elements of assault are:

- Mental state of the defendant - The effect on plaintiff - Capability to carry out the threat - Words

!  e.g. Roosevelt v. St George [1960]. Defendant pointed an unloaded gun at plaintiff

Scope of Tort

Scope of Torts

Trespass

Person

Assault

Battery

False Imprisonment

Goods

Detinue

Conversion

Land


TRESSPASS TO PERSON (Cont.)

2. Battery

!  Intentional and direct application of force

! Elements of battery are: !  The mental state of the defendant

!  The defendant’s act was under his control

!  Contact

!  Without plaintiff’s consent/permission

TRESPASS TO PERSON (cont.) E.g. Scott vs Shepherd (1773). A lighted squib was thrown by defendant into an open area. A picked it up and threw it upon B, who then picked it up and threw it away. Squib hit plaintiff and burst into flame. Defendant liable even though his initial gesture did not directly affect plaintiff as his act is under his control.

TRESSPASS TO PERSON (Cont.)

! Differences between assault and battery

ASSAULT BATTERY

Issue of consent/permission does not

arise

Defendant’ s act is done without

plaintiff’s consent

Plaintiff experiences reasonable

apprehension/ fearfulness of a force

upon his person

Physical contact between defendant

and plaintiff

Scope of Tort

Scope of Torts

Trespass

Person

Assault

Battery

False Imprisonment

Goods

Detinue

Conversion

Land


TRESPASS TO PERSON (Cont.) 3. False imprisonment

! Restriction of a person’s movement

!  Intention is prerequisite

! The restraint must be a direct consequences of the defendant’s act

! The restraint must be complete

TRESPASS TO PERSON (cont.) !  Harnett v Bond and Anor. (1924). Plaintiff lived in

an asylum run by D2. Plaintiff was given a 1 month’s leave but D2 was given discretion to call plaintiff back if D2 felt that plaintiff could not look after himself. On his 2nd day out, plaintiff went to visit a friend at an office. D1 who was there was of the opinion that the plaintiff acted strongly. D1 called D2 to ensure that plaintiff stayed at the asylum as D2 would send a car to fetch plaintiff. The car arrived 3 hours later and plaintiff was brought back to asylum. D2 found plaintiff insane and did not let him out. For 9 years thereafter, plaintiff was sent from 1 institution to another.

!  Finally, plaintiff was proven sane. Thus, D1 was liable for imprisonment during 3 hours restraint, and D2 for 9 years restraint.

TRESPASSS TO GOODS

Scope of Tort

Scope of Torts

Trespass

Person

Assault

Battery

False Imprisonment

Goods

Detinue

Conversion

Land


TRESPASS TO GOODS (cont.) !  Wrongful and direct interferences with

goods that are in possession of another !  Elements:

! Mental state of defendant – Has intention

!  Interference !  Causes immediate contact with plaintiff's property

! Must be voluntary

! Who can claim !  Person who has possession

!  Do not have possession but may claim as trustee i.e. on behalf of beneficiary, an executor or administrator and a person with a franchise

Scope of Tort

Scope of Torts

Trespass

Person

Assault

Battery

False Imprisonment

Goods

Detinue

Conversion

Land


TRESPASS TO GOODS (cont.)

! Detinue – Illegal possession of goods due to withdrawal consents by the owner

!  Goh Hock Guan & Associates v. Kanzen Bhd. Defendant i.e. the plaintiff’s firm claim for the wrongful retention of the passport for one of its representatives by defendant. No one had right to claim for the wrongful detention on behalf of the owner, except the owner himself.


!  Abdul Mutallib b. Hassan v. Maimoon bte Haji Abdul Wahid. Plaintiff operated a coffee-house which is rented from defendant. Defendant locked the premises and plaintiff claimed for trespass and for return of his possession remained in the shop which were being withheld by defendant. Defendant was liable as plaintiff had possession over premises.

Scope of Tort

Scope of Torts

Trespass

Person

Assault

Battery

False Imprisonment

Goods

Detinue

Conversion

Land


TRESPASS TO GOODS (Cont.) Classified into: !  Conversion

! Dealing with goods in manner inconsistent with the right of true owner

! e.g. Ashby v Tolhurst. Plaintiff left his car at defendant’s car park. When he came to collect, attendant told plaintiff someone who claimed to be plaintiff’s friend had driven the car out. Defendant was not liable as there was a disclaimer of liability at parking lot

TRESPASS TO GOODS (cont.) !  E.g. Hollins v Fowler (1874). Plaintiff

was an agent who owned bundles of cotton. T tricked plaintiff and obtained possession of some bundles. Defendant, a cotton broker bought some from T and sold it to the 3rd party. Defendant was liable for conversion because although he did not trick the plaintiff to obtain the cotton, he was on the possession of the fraudulent cotton, that is conversion.


CONVERSION DETINUE

Intentional dealing Negligence is sufficient

One wrongful act arises Continuous tort. Arises when defendant refuses to return goods until such time when goods are returned or when

judgment is given

Plaintiff must have either right to immediate possession

or actual possession

Plaintiff must have right to immediate possession

Involves denial of defendant’s right over the good

Must be a wrongful detention i.e. Must have a demand and

refusal


Conversion Detinue

Amount of damages is value of good at conversion occurs

Amount of damages is value of good at judgment date and

damages between refusal date and return/payment date of

the value of the goods

TRESPASS TO LAND

Scope of Tort

Scope of Torts

Trespass

Person

Assault

Battery

False Imprisonment

Goods

Detinue

Conversion

Land


TRESPASS TO LAND ! Elements of trespass to land are:

!  Intention

! Acts of entry done voluntary

!  Interference is foreseeable as due to defendant’s act

!  Interference must be direct

TRESPASS TO LAND (cont.) ! What is interference?

! Enter land which is the plaintiff’s possession - Wrongly entered

! Remain on the plaintiff’s land - Continuing the trespass (failure to remove)

! Enter or place an object on the plaintiff’s land

! Interference to airspace

!  Who may claim? ! Possession in fact and just tertii (third

party rights) – A defense where the third party who has better possession than the plaintiff, has better right to use and to exclude others

! Possession in accordance to law ! The right to continue possession ! Co-owners ! Possession under a TOL (Temporary

Occupation License)

TRESPASS TO LAND

! e.g. Basely v. Clarkson (1681). Defendant accidentally mowed plaintiff’s grass whilst he was mowing his own. Defendant was liable as the act of moving was a voluntary act and done with intention

TRESPASS TO LAND

!  e.g. League Against Cruel Sports Ltd V. Scott. Plaintiff owned a deer sanctuary. Hunting was prohibited on the ground. Hounds from local hunt (led by defendant) entered sanctuary and disturbed the deer. Defendant was not liable as the trespass was accidental and involuntary act on his part. However, if defendant had intended the hounds to enter plaintiff’s land and he knew there was probability of the hound to enter and yet he did not take precaution steps to prevent the foreseeable entry, he would be liable

TRESPASS TO LAND

! Kelsen v Imperial Tobacco Co [1957]. Defendant committed trespass by allowing an advertising board to project eight inches into the plaintiff’s property at ground level and another above ground level

TRESPASS TO LAND

Group Exercise

!  Within 20 minutes, discuss Stare Decisis of trespass cases related to construction industry. Your groups are randomly given the following scope of trespass. You are to present the case via role play in maximum 5 minutes.

Scope of Torts

Trespass

Person

Assault

Battery

False Imprisonment

Goods

Detinue

Conversion

Land


Documents

INTRODUCTION TO TORT...Tort-Introduction ! Wrongful acts/omissions ! Civil wrong independent of contract ! Liability arising from a breach of legal duty owed to person generally !