TORTS PART I : INTRODUCTION Chapter 1 A.

Definition of a tort The word tort originates from the latin word, tortus which means twisted or wrong. Tort may consist of either wrongful act or wrongful omission. Examples of wrongful acts are for instance A intentionally hits B without Bs consent or A illegally locks B up in a room. Examples of wrongful omission is where A deliberately omitted to brake his car when he had clearly seen that B was crossing the road, resulting Bs injury. C. General features of a tort Generally the features of a tort are:1. there must be a wrongful act or wrongful omission; and 2. that wrongful acts above affects the interests or rights of others; and 3. the injured party or victim has a right to claim for damages. Therefore, an act or omission which does not give rise to an action for damages is not a tort. PART II: INTENTIONAL TORTS Intentional torts include trespass to person AND trespass to land. One common link in all these torts is the mental state of the defendant, in that the defendant does the act that is purported to be tortuous, intentionally. In Fowler v Lanning (1959) 1 All ER 290, it was stated that a trespass required either intention or carelessness on the part of the defendant. In Letang v Cooper (1964) 2 All ER 929, it was held that in the tort of trespass there must exist intention at the time of the defendant does his act. If the defendant was careless, the cause of action would lie in negligence and not in trespass. Therefore, an important element in establishing trespass is that the defendant must be proven to have acted intentionally. The general elements of trespass are:1. a positive act, as opposed to an omission; and

41

2. a direct act from the defendant to the plaintiff; and 3. the tort of trespass is proven without the plaintiff having to prove that he has suffered any injury or loss described as actionable per se Chapter 2 Intentional Torts : Trespass to person Trespass to person is divided into three categories i.e. torts of assault, battery and false imprisonment. A. Assault Assault is defined as an intentional and direct act of the defendant which causes the plaintiff reasonable apprehension of immediate infliction of a force onto his person. The tort of assault functions to protect a persons mental well-being against the unlawful act of another. 1. Elements of assault Assault is established when four elements are fulfilled, namely: a) the mental state of the defendant the defendant must have the intention to do his act. In Tuberville v Savage, the defendant told the plaintiff if it were not assize-time, I would not take those words from you. It was held that, these words negatived the element of intention on the defendants part to injure the plaintiff and therefore assault was not established. b) the effect on the plaintiff the plaintiff must feel reasonable apprehension that a force will be inflicted upon him. Reasonable apprehension is measured through an objective test: would a reasonable man, faced with the same situation that the plaintiff was in, feel apprehensive that a force would be committed upon him? if the answer is yes, the element is fulfilled. Force means some form of violent contact that would put a reasonable man to be in reasonable fear of attack. In R v St George (1840) 9 C & P 483 it was held that pointing an unloaded gun at a person constituted an assault. However, in Blake v Barnard, it was held that the gun had to be loaded before assault could be eatablished (1840) 9 C C & P P 626. This case is widely criticized because the feeling of apprehension should not be discounted just because it is found out lated that the gun was not loaded.

42

c) capability to carry out the threat this requirement is measured through the eyes of a reasonable plaintiff. The test is objective : would a reasonable man, who is in the plaintiffs position, feel reasonable fear that there is a threat of immediate force upon himself? In other words, would the reasonable man belive that the defendant will realize his threat? The requirement is fulfilled, if the answer is yes. In Stephen v Myers (1830) 4 C & P 349, the defendant threatened to hit the plaintiff and he advanced with clenched fist upon the plaintiff. He was stopped by a third party just before he could reach the plaintiff. The court held that assault was established as there was a capability to carry out his threat, if he was not stopped by the third party a mere few seconds before he hit the plaintiff. d) bodily movement Even though assault involves no contact, some form of bodily movement is still necessary. Bodily movement means a positive act in the circumstances, indicating that the defendant will carry out his threat. Bodily movement per se is not adequate, the movement must corresponds with the probable infliction of unwanted force onto the plaintiff. In Innes v Wylie (1844) 1 C & K 257, a policeman, acting under an instruction, prevented the plaintiff from entering a room. The court held that if the policeman was entirely passive and simply obstructed the entrance of the plaintiff, it would be no assault. 2. Can words constitute an assault? In R v Wilson (1955) 1 All ER 744 it was held that the words get out your knoves constituted an assault. The words, must be seen in the context in which they were spoken. The tone of voice, facial expression and gesticulation have to be taken into account. B. BATTERY Battery defined as the intentional and direct application of force to another person without that persons consent. The touching need not necessarily involve violence. The tort of battery protects individual from any interference onto his person, dignity as well as his reputation. 1. Elements of battery

43

Battery is established when the following four elements as fulfilled: a) the mental state of the defendant the defendant must have applied the force with intention. Any physical contact with the body of the plaintiff or his clothing I sufficient to constitute force. In Scott v Shepherd [1773] 2 Wm BI 892, a lighted squib was thrown by the defendant into an open market area. A picked the squid and threw it upon B, who then picked it up and threw it away. The squib hit the plaintiff whereupon the squib burst into flames. The court held that the defendant was liable for the tort of trespass to person. A and B reacted for their own safety, and so they did not have the required intention to commit battery. b) the defendants act was under his control the defendants act must be done voluntarily. In Gibbons v Pepper [1695] 2 Salk 637, the defendant was riding a horse when someone hit the horse from behind, causing the horse to bolt. The horse collided with the plaintiff, and in action against the defendant, the court held that the defendant was not liable as the act of the horse bolting was outside his control. c) contact there will be no battery if there is no contact on the plaintiffs body or clothing. Contact per se will not be construed as contact for the purpose of battery. The contact must attached a transmission of force to the body of the plaintiff. E.g. throwing water on the plaintiff may constitute a battery. In Cole v Turner [1704] 6 Mod Rep 149, it was stated that the least touching of another in anger is battery. If two or more persons meet in a narrow passage, and without violence or design of harm, the one touches the other gently, it will be no battery. In Wilson v Pringle [1986] 2 All ER 440, the court held that there must be hostile touching before it can be said to be a battery. This however will depend on the facts and circumstances of each case. d) without the plaintiffs consent One cannot touch another person without his consent or without lawful justification However, there are touching where it is presumed implied consent exists, such as tapping a persons shoulder in order to get his attention. In Tiong Pik Hiong v Wong Siew Gieu [1964] 30 MLJ 181, the defendant was liable for battery for scratching the plaintiffs face and hitting the latter, due to her jealousy of the plaintiffs friendship with her husband. 2. Differences between assault and battery

44

Assault The issue of consent does not arise

Battery the defendants act is done without the plaintiffs consent there is physical contact between the defendant and the plaintiff the tort protects one from physical contact, be it violent or not, as long as it is an unnecessary and an unauthorized contact

The plaintiff experiences reasonable apprehension of a force upon him the tort protects one from the threat of any physical violence, as well as to maintain a persons mental well-being

INTENTIONAL TORT : Trespass to land Trespass to land may be defined as the unreasonable interference with another's possession of land. The tort may be committed only against a person who has possession of the land on which the acts complained of are committed. The tort of trespass to land is actionable per se regardless of whether the landowner can or cannot prove any damage. Therefore a plaintiff in trespass is entitled, even though he has sustained no actual loss, to recover damages. Article 13(1) of the Federal Constitution provides that a person may not be deprived of his right over his property except as provided under the law. Section 5 of the National Land Code 1964 (NLC) defines 'land' as : a) the surface of the earth and all substances forming that surface; b) the earth below the surface; c) all vegetation and other natural products whether on or below the surface; d) all things attached to the earth or permanently fastened to anything attached to the earth, whether on or below the surface; e) land covered by water. The interest that is protected under this tort is to enable a person who has possession of land to be free from any physical interference. The interest is jealously guarded; thus the English saying "A man's home is his castle " This saying is partly true in Malaysia insofar as the man has a valid legal interest on the land on which his castle stands. Section 44( 1 )(a) of the NLC provides:

45

a person has the right to the exclusive use and enjoyment of so much of the column of airspace above the surface of the land and so much of the land below that surface as is reasonably necessary to the lawful use and enjoyment of the said land.
A. ELEMENTS OF TRESPASS TO LAND The plaintiff must-prove two elements before trespass to land is established and these elements are discussed below. 1. The mental state of the defendant The defendant must intend to do the act alleged to be a trespass. This intention may be the intention to trespass, or although there is no intention to trespass there must be a voluntary act in entering land that is in the possession of another. In Basely v Clarkson [1682] 3 Lev 37 the accidentally mowed the plaintiff's grass whilst mowing his own grass. The court. held the defendant is liable table as the act of mowing the grass was a voluntary act, and therefore done with intention. An act done under a mistake is not necessarily an involuntary act. A mistaken action may be a voluntary action and therefore intentional. In Conway v George Wimpey & Co. Ltd [1951] 2 QB 266 it was stated that a deliberate entry onto the land is sufficient and it is irrelevant that the defendant does not know that he is entering the plaintiffs land, or believes the entry is authorised, or even honestly and reasonably believes that the land is his. If however the defendant's entry onto the plaintiffs land is without his consent and is involuntary.the element of intention is not fulfilled.For instance in Smith v Stone (1647] Style 65 the defendant was brought onto the plaintiffs land without his consent. The court held that the defendant was not liable, but the person who brought him in was liable for trespass. It may be concluded, therefore, that trespass occurs when: (a) there exists an intention to trespass, and (b) the act of entry is done voluntarily, or (c) the interference to the plaintiffs land is foreseeable as consequence of the defendant's act. 2. Interference As with trespass to person, the interference must be a direct, as opposed to a consequential act. The immediate act of the defendant must constitute the trespass, complained of. It is not easy to distinguish between direct and consequential acts. In Gregory v Piper [1829] 9 B & C 591 the court held that where rubbish which was placed near the plaintiffs land, rolled onto

46

the plaintiffs land upon drying, the defendant was liable in trespass as the trespass was a probable and foreseeable result of the defendant's act. Interference may occur in a variety of ways: (a) Entering land which is in the plaintiff's possession In Hickman v Maisey [1900] 1 QB 752 the plaintiff used his land to train horses. There was a road across the plaintiffs land and the defendant used the road in order to spy on the plaintiffs horses. The court held that the defendant had committed trespass to land as he was not using the road for it purposes, which was to cross over to the other side of the land. In Harrison v Duke of Rutland [1893] 1 QB 142 a highway was built on the plaintiffs land and he used his land to watch birds. The defendant disapproved of the plaintiffs activities, and he entered the plaintiffs land and tried to get rid of the birds. The court held that the defendant had interfered with the plaintiffs right to engage in a sport on his own land and the defendant had abused the use of the land. A highway ought to be used for its usual purpose which included resting. In Government of Malaysia & Anor v Kong Ee Kim [1965] 31 MLJ 81 the plaintiff depastured her chickens on a public highway, the pasture consisting of white ants. The court held that it was not her physical presence on the highway that constituted a trespass, as a member of the public has a right of passage along the highway for the purpose of getting from one place to another which includes a right to do what is reasonably connected with that right of passage, but in this case trespass was established due to the plaintiff using the highway to depasture chickens, which did not constitute a reasonable use of the highway. In Janaki & Anor v Cheok Chuan Seng & Ors [1973] 2 MLJ 96 the defendants were liable in trespass when they, in complete disregard of the plaintiffs' right of property, entered upon the latter's land to dredge existing canals and widened and deepened an existing drain on the land. In Tan Wee Choon v Ong Peck Seng & Anor [1986] 1 MLJ 322 the defendants had always used a path on the plaintiffs land as access to their house. When the plaintiff bought the land, he fenced the area and the defendants could not use the path any more. The defendants then brought the fence down. In their defence to an action against them for trespass, the defendants claimed that the plaintiff must prove damage to establish trespass. They further contended that they had used the same path for forty years and therefore had acquired an equitable right of way. The court held that trespass to land is actionable per se, and does not require proof of damage. Section 41 of the Specific Relief Act I95018 states that any person entitled to any property may obtain a declaration against any person denying or interested to deny, his title or his right, to his property. The defendants' action of pulling down the fence and continued use of the passage by driving their vehicles up and down the plaintiffs land amounted to a denial of the latter's indivisible right over his property.

47

Trespass to land is therefore completed once a person wrongfully enters onto land in the possession of another even though no damage has been done. In Chanan Singh v Thiyagaletchmni [1965] 2 MLJ 158 the appellant was the occupying tenant since 1951 of a hut built on a portion of land belonging to one Ngo. Ngo sold an undivided half share of the said land to the respondent in 1958. Subsequently the land was divided into two lots and two separate titles were issued to Ngo and the respondent in their respective names in 1962. The respondent then claimed against the appellant for repossession of that portion of the respondent's land occupied by the appellant. The appellant's house was in fact situated on the boundary line separating the respondent's land from Ngo's land. The court allowed the respondent's appeal and held that the appellant was a trespasser since 1959 as he was 'living' on the respondent's land without her permission. (b) Remaining on the plaintiff's land Remaining on land that is trespassed upon is by itself a trespass, and more commonly referred to as 'continuing trespass'. In Holmes v Wilson [1839] 10 A&E 50 the defendant had built buttresses on the plaintiffs land for the purpose of supporting a road. The defendant had paid compensation to the plaintiff but was held liable for not removing the buttresses. A continuing trespass therefore gives rise to a new cause of action from day to day as long as it lasts. In Konskier v Goodman Lld [1928] 1 KB 421 the plaintiff rented a house from a third party who had allowed the defendant builder to repair the roof and leave some debris on the rooftop. The defendant had promised to clean the debris upon completing his job but he did not do so. A heavy rainfall caused the debris to be stuck and caused consequent damage to the property. The court held the defendant liable for not cleaning up the debris, and said that it was a continuing trespass to fail to remove an object once permission has ceased. Continuing trespass applies only to the failure to remove things (or people if the defendant remains in person) that have been wrongfully left on the land. It does not extend to failing to restore the land to its original condition. So where the trespass has caused damage to the land, it does not 'continue' simply because the damage has not been repaired, and the plaintiff can only bring one cause of action in trespass. The rationale is that there is no longer anything that remains on the land, even though the 'harm', be it in the form of a hole that was dug, or the removal of property, continues to be suffered by the plaintiff. In Tay Tuan Kiat v Pritam Singh [1987] 1 MLJ 276 where the defendant built a wall that encroached onto the plaintiffs land, the court held that there was continuing trespass as long as the wall was not demolished. In Cheah Kim Tong v Taro Kau [1989] 3 MLJ 252 the defendant's house encroached onto the plaintiffs land. The defendant relied on estoppel and consent, and said that the previous

48

owner, before the plaintiff, had never complained. The defendant further contended that the plaintiff did not suffer any damage. The court held that this was a case of continuing trespass and therefore a fresh cause of action arises from day to day. It was further held that the plaintiff need not prove damage as the action was actionable per se . In Ooi York Choo v Lim Song Foundry [1963] 29 MLJ 87 the plaintiff owned a piece of land which was adjacent to the sea. Between the plaintiffs land and the sea there was a strip of accretion land about one hundred feet by one hundred feet belonging to the State. The defendants were licensees of this accretion land and one of the conditions of the licence was that the licensee should seek permission for his own access to the land. The plaintiff claimed against the defendants for using the plaintiffs land as a means of access to and from the accretion land. The court held that the defendants committed continuing trespass when they used the plaintiffs land as a means of access to the accretion land, prior to the consent given by the plaintiff. A licensee whose licence has been revoked or terminated also becomes a trespasser and is liable for damages if he continues to stay on the land A tenant at will is also liable in trespass if he remains on the premises after a notice demanding possession has been served on him. (c) Entering or placing an object on the plaintiffs land It is a trespass if one throw things onto the others land or allow his cats to wander onto his neighbours land. The courts have held the following acts to constitute trespass: placing a ladder against another's wall, driving nails into another's wall, firing a gun into the plaintiffs soil, removing the doors and windows belonging to the plaintiffs and dumping soil onto the plaintiffs land. In K Mahunaran v Osmond Chiang Siang Kuan [1996] 5 MLJ 293 it was held that demolishing an original party wall and building a new one in its place that reaches the ceiling of a car porch constitutes a trespass if it is done without the consent of the owner of the adjoining property, even though approval has been obtained from a local authority. (d) Interference to airspace Interference to land includes interference to the airspace above the land. In Kelsen v Imperial Tobacco Co Ltd. 17 [1957]2QB 334 a mandatory injunction was issued to the plaintiff, requiring him to remove his signboard which had only encroached eight inches into the defendant's airspace. In Wandsworth Board of Works v United Telephone Co. [1884] 13 QBD 904 an unauthorized telephone wire above the plaintiffs land constituted trespass to the airspace. In Lord Bernstein of Leigh v Skyviews and General Ltd [1977] 2 All ER 902 the defendant was in the business of taking pictures of property from the air, and took a picture of the plaintiffs premises. The plaintiff sued for trespass. Griffiths J held that there was no

49

trespass. The right of a landowner to the airspace above his land is limited. According to his Lordship:

The problem is to balance the rights of an owner to enjoy the use of his land against the rights of the general public to take advantage of all that science now offers in the use of air space. This balance is ... best struck by restricting the rights of an owner in the airspace above his land to such height as is necessary for the ordinary use and enjoyment of his land and the structures on it, and declaring that above that height he has no greater rights in the airspace than any other member of the public.
The magnitude of the interference is not important, as long as there exists an interference. In Karupannan s/o Chellapan v Balakrishnen s/o Subban [1994] 4 CLJ 479 the plaintiff landowner. prayed for an interlocutory mandatory injunction against the defendant who was the landowner of an adjacent land, to remove protrusions and all other encroachments encroaching upon the former's land These protrusions, which were protrusions to the sidewindows of the building owned by the defendant, were built by the defendant's predecessorin-title. The Federal Court affirmed the High Court decision and held that in the case of a trespass to land, and airspace committed by the owner of an adjacent property the aggrieved owner of the land upon which the trespass is committed is entitled to a mandatory injunction to have the trespass removed notwithstanding that the source of trespass had already been in existence before the new owner came to own the land and whether he knew or had notice of it or not. If interference to land is caused by an aircraft, then a plaintiff may invoke the provision of section l9 of the Civil Aviation Act 1969. Section 19 provides:

Where material damage or loss is caused by an aircraft in flight taking off or landing to any person or property on land or water, damages shall be recoverable from the owner of the aircraft in respect of such damage or loss WITHOUT proof of negligence or intention or other cause of action, as though the same had been caused by his wilful act, neglect.or default, except where damage or loss was caused by or contributed to by the negligence of the person by whom the same was suffered.
This section gives rise to strict liability. The requirements of section 19 do not correspondwith the characteristics of trespass to land as section 19 requires the plaintiff to prove that he has sustained some damage. Therefore a Plaintiff who is claiming section 19 is not claiming for trespass to land Be that as it may, a person who has suffered damage to his land arising from the handling of an aircraft has the option of suing the owner of the aircraft either in trespass to land or under section 19.

50

PART III : UNINTENTIONAL TORTS NEGLIGENCE Negligence is defined as the breach of a legal duty to take care which results in damage, undesired by the defendant, to the plaintiff. The ingredients of negligence are:

1. A legal duty on the part of A towards B to exercise care in such conduct of A as falls
within the scope of the duty. 2. Breach of that duty. 3. Consequential damage to B.

DUTY OF CARE Not every careless act done by a person results in his being held responsible in law. He will only be liable in negligence if he is under a legal duty to take care. The duty of care may arise in contract, in tort, or may be owed by the professional to a client or to a third party. The general principle as regards the criterion of duty is that which was given by Lord Atkin in Donoghue v. Stevenson which reads as follows:

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 reply. 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 reasonably 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.
DONOGHUE v. STEVENSON 119321 A.C. 562, 580 A manufacturer of ginger-beer had sold to a retailer ginger-beer in an opaque bottle. The retailer resold it to A who treated her friend to its contents. The ginger-beer bottle also contained the decomposed remains of a snail which had found its way into the bottle at the factory. As friend alleged that she became seriously ill in consequence and sued the manufacturer for negligence.

It was held that, Although there was no contractual duty on the part of the manufacturer

51

towards As friend, the manufacturer owed her a duty to take care that the bottle did not contain noxious matter and he would be liable if that duty was broken. The test for the existence of a duty owed to the plaintiff is the neighbour principle stated in Donoghue v. Stevenson, i.e. the foresight of the reasonable man. TEST 1 : The test is whether the injury to the plaintiff was the reasonably foreseeable consequence of the defendants acts or omissions.- Donoghue v Stevenson (1932) It does not require that the plaintiff must be identifiable by the defendant. It is enough if the plaintiff is one of a class within the area of foreseeable injury. In Haley v. London Electricity Board the defendants excavated a trench in the street. They took precautions for the protection of passers-by which were sufficient for normal sighted persons. However, the plaintiff, who was blind, suffered injury because the precautions taken by the defendants were inadequate for him. It was held that the number of blind persons walking about the streets alone was sufficient to require the defendants to have them in contemplation and to take precautions appropriate to their condition.

2. BREACH OF DUTY OF CARE The defendant must not only owe the plaintiff a duty of care, he must be in breach of it. The test for deciding whether there has been a breach of duty is laid down in the dictum of Alderson B. in Blyth v. Birmingham Waterworks Co :

Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.
TEST 2 Whether the act or omission is something that a prudent and reasonable man would or would not do Blyth v Birmingham Waterworks Co. (1856) If a prudent and reasonable man would not do like what you did or omit, then you are said to be in breach of your duty of care Reasonable Man Who is a reasonable man? A reasonable man has been described as the man on the omnibus.

52

In other words, a reasonable man means an ordinary man who is not expected to have any particular skill such as that possessed by a surgeon, a lawyer or a plumber unless he is actually one. For example, a passer-by who renders emergency first aid after an accident is not required to show the skill of a qualified doctor. It is for the judge to decide what, in the circumstances of the particular case, the reasonable man would have in contemplation, and what is ought to have been foreseen. The question is whether there is a breach of the duty of care or there is not. There must be a falling below the standard of care called for by the circumstances of the case. In short, the standard of care is that of the reasonable man and, in applying this standard, it is necessary to ask what, in the circumstances, the reasonable man would have foreseen. Reasonably Forseeable The question of the foreseeability of an event will depend upon whether or not a particular item of knowledge is to be imputed to the reasonable man. The reasonable foreseeability of a consequence is determined by the knowledge and experience which is to be attributed to the reasonable man in the circumstances. The case to illustrate this is Roe v. Minister of Health. ROE v. MINISTER OF HEALTH [1954] 2 Q.B. 66 In 1947, Roe was a patient in a hospital. Dr G, an anaesthetist, administered a spinal anaesthetic to him in preparation for a minor operation. The anaesthetic was contained in a glass ampoule which had been kept before use in a solution of phenol. Unfortunately some of the phenol had made its way through an invisible crack into the ampoule thus contaminating the anaesthetic. As a result Roe became permanently paralysed from the waist down. Dr G had subjected the ampoule to a visual examination before administering the anaesthetic but he did not add a colouring agent to the phenol so that contamination of the anaesthetic could have been observed. It was held that, Dr G was not negligent in not causing the phenol to be coloured because the risk of invisible cracks had not been drawn to the attention of the profession until 1951 and care has to be exercised to ensure that conduct in 1947 is only judged in the light of knowledge which then was or ought reasonably to have been possessed. In this connection, the then existing state of medical literature must be had in mind.

53

In deciding whether there was a breach of duty, a balance must be struck between the magnitude of the risk and the burden to the defendant in doing (or not doing) what is alleged he should (or should not) have done. In other words, in every case where a duty of care exists, the courts must consider whether the risk was sufficiently great to require of the defendant more than he has actually done. The three factors the courts must consider are:

1. the magnitude of the risk; 2. the importance of the object to be obtained; and 3. the practicability of precautions.

DEFENCES TO NEGLIGENCE As a general rule, the burden of proof lies on the defendant to negate liability for a particular tort. Defences which are usually raised in a negligence suit are volenti non fit injuria, contributory negligence and mechanical defect, inevitable accident, Act Of God and Necessity.

VOLENTI NON FIT INJURIA This is a Latin maxim which means the plaintiff has voluntarily assumed the risk of injury. Volenti non fit injuria is a voluntary agreement whether implied or express by the plaintiff, who has full knowledge of the nature and extent of the risk, that if the defendant fails to take reasonable care, the plaintiff will bear his own loss. APPLICABILITY OF THE DEFENCE IN VARIOUS SITUATIONS The defence of volenti is relevant in four different situations and these are discussed below. (a) Workers case In Imperial Chemical Industries Ltd v Shatwell, the plaintiff and his brother worked at the defendants mine. They had agreed to disregard the employers instructions. They used an explosive without taking the necessary precautions. An explosion occurred and the plaintiff injured. It was held that, there was no pressure or coercion from the employer therefore the defence of volenti was allowed. (b) Games and sports cases In Wooldridge v Sumner, the plaintiff was a spectator as well as the photographer in a horseracing competition. He sustained some injuries when one of the horses skidded whilst turning

54

a corner. The court accepted the defence of volenti as the defendant had taken reasonable precautions and had discharged his duty. (c) Rescue cases In rescue cases it is almost as if the plaintiff deliberately exposed himself to the risk of injury. However, the rescuer is not considered as voluntarily assuming risks. This is because whenever a person carries out rescue work he is acting under a moral or social duty and thus he cannot be said to be acting completely voluntarily. In Haynes v Harwood, the defendant had left his horse and carriage at the side of a busy street. The horse was alarmed by something and bolted onto the road. The plaintiff, a police constable, was injured when he tried to calm the horse down. In an action against the defendant, it was pleaded that the plaintiff was volenti. The court rejected the defence and held the defendant liable. (d) Passenger cases

In Buckpitt v Oates, the plaintiff took a lift in the defendants van and before the journey the plaintiff saw a notice of exclusion, Warning. Passengers in this van bear their own risk. The owner or driver will not be liable for any loss of life, personal injury or other losses howsoever caused. Passengers are not insured. The plaintiff consequently suffered some injuries in an accident due to the defendants negligence. The plaintiff was held to be bound by the notice. CONTRIBUTORY NEGLIGENCE Contributory negligence means the plaintiff has breached a duty of care for his own safety, in that he has failed to take reasonable care of himself or his property, which consequently contributed or resulted in his injury. Section 12(1) of the Civil Law Act, reads as follows:

Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the Courts thinks just and equitable having regard to the claimants share in the responsibility for the damage.
In Fitzgerald v Lane, the plaintiff was knocked down, first by DI and then by D2. The House of Lords held that the plaintiff was fifty percent contributorily negligent,and the remaining fifty percent was equally divided between the defendants. It must be stressed that damage that occurs must be caused or contributed by, the plaintiff. If from the facts of the case the damage would not have occurred but for the plaintiffs

55

conduct, this means that the plaintiff is the cause of the damage and accordingly will be one hundred percent contributorily negligent. The focus is on the cause of the damage and not the cause of the accident. (a) The principle of dilemma I If the defendants negligence places the plaintiff in a dilemma and the plaintiff, in trying to save himself takes the wrong course of action, the plaintiff is not deemed to be contributorily negligent and the defendant will still be wholly liable for the ensuing injury or damage. In Jones v Boyce, the plaintiff reasonably believed that the coach in which he was a passenger was about to overturn due to the negligent driving by the defendant, and he jumped off the coach and broke a leg. The coach did not overturn and in a claim against the defendant the court held that the plaintiff was not contributorily negligent as his reaction was reasonable in the circumstances. (b) Contributory negligence of children The main consideration is the age of the child. The question is whether normal children of the plaintiffs age would have acted as the plaintiff has done. In Gough v Theme, Lord Denning said,

A very young child cannot be guilty of contributory negligence. An older child may be; but it depends on the circumstances. A judge should only find a child guilty of contributory negligence if he or she is of such an age as reasonably to be expected to take precautions for his or her own safety. He or she is not to be found guilty unless he or she is blameworthy.
In Santhanaletchumy alp Subramaniam v Zainal bin Saad & Anor a twelve year old girl was held to be sufficiently matured and could have prevented or avoided the accident when the defendant lorry driver honked his lorry. She was found to have been contributorily negligent twenty percent and the defendant was negligent eighty percent. MECHANICAL DEFECT AND INEVITABLE ACCIDENT The defence of mechanical defect has been held to be related to the issue inspection and maintenance of vehicles, and it will only avail a defendant who can prove through his record of service that the vehicle is free from defect. In Che Jah binte Mohamed Arff v CC Scott, the plaintiff was a passenger in the defendants car which crashed into a stationary car causing the plaintiff injuries. The defendant gave evidence that ten days previously, due to brake failure he had sent the car to a competent motor repair firm for repair and general overhaul with particular attention to the brakes. On the day before the accident the plaintiff and the defendant had gone to fetch the car where

56

the foreman of the firm tested the brakes again and found them in order. On the day of the accident but before the accident occurred the defendant had used his brakes several times and they acted properly. The court held that the defect in the brakes were a latent defect and as the defendant had employed skilled labour no negligence could be attributed to him.

NUISANCE The law of nuisance aims to provide comfort to persons who have proprietary interests in and as well as to members of society generally, through control of environmental conditions. DAMAGES AND REMEDY FOR NUISANCE The damage that usually occurs in nuisance cases are of two types, namely damage to property and/or interference to personal comfort. The remedy usually sought for the tort of nuisance is an injunction, whose function is to prevent the nuisance from continuing, or monetary compensation, which is usually granted for damage to property, or to lodge a report to particular authorities, such as the Health Officer of a local authority. In Pacific Engineering Ltd v Haji Ahmad Rice Mill Ltd it was stated: a person injured by a nuisance may bring an action and claim damages for the injury alone or together with a claim for an injunction. Damage must be proved in an action for nuisance for otherwise the action will fail. The damage must be of a kind that is reasonably foreseeable to arise from the defendants wrongful conduct. Actual damage however, need not be established if the nuisance is caused by smell as the interference here is something that substantially affects the senses or the nerves.

C.THE CONCEPT OF REASONABLENESS Reasonableness is important in nuisance cases because only when the conduct of the defendant is deemed unreasonable will nuisance be established. The standard of reasonableness of the defendants act is measured through the norms of the society in which the defendant is living in. Reasonableness means the reasonableness of the defendants act and not whether the defendant has taken precautions to avoid the risk of accident - this is reasonableness in the tort of negligence.

57

The reasonableness of an act is measured by balancing the rights and interests of both parties, which is a process of compromise. In Syarikat Perniagaan Selangor Sdn Bhd v Fahro Rozi Mohdi & Ors, MinTat FJ stated that: Chan

almost every one of us have to tolerate a certain amount of interference from our neighbours and we in turn have a right to make a certain amount of noise in the enjoyment of our property. A person may use his property in a reasonable way but no one has the right to create intense noise just as no one should be asked to put up with such a high volume of noise which by any reasonable standard becomes a nuisance.
Whether there is nuisance or not depends on factors, such as the purpose of the defendants conduct, location, time, degree of damage, the way, in which the interference occurs or motive and malice and the effect of the nuisance, whether it is continuous or in stages or intermittent. D. CATEGORIES OF NUISANCE Nuisance is divided into two main categories:

a) b)

public nuisance, which is a crime as well as a tort;and private nuisance, which is merely a tort.

It is possible for the same conduct to amount to both public and private nuisance. Nevertheless there are differences between the two as follows: PUBLIC NUISANCE Public nuisance arises when there is an interference towards the publics rights such as the obstruction of public highways or selling contaminated food. The mere fact that an obstruction has occurred does not of itself turn it into a nuisance. Nuisance would only be created if, knowing or having the means of knowing of its existence, a person allows it to continue for an unreasonable time or in unreasonable circumstances. Definition In Attorney-General v PYA Quarries Ltd, it was stated that public nuisance arises when an act materially affects the reasonable comfort and convenience of life of a part of the society.

58

In the case of Majlis Perbandaran Pulau Pinang v Boey Siew Than & 0rs, it was stated:

it is clear that a nuisance is a public nuisance, if, within its sphere, which is the neighbourhood, it materially affects the reasonable comfort and convenience of a class of the subjects of the State.
The number of persons required to constitute a class of the subjects of the State is a question of fact in each case. It is not necessary that every single member of the society is affected.

F. PRIVATE NUISANCE Definition Private nuisance may be defined as an unlawful interference with a persons use, comfort, enjoyment and any interest that a person may have over his land. In an action for private nuisance the plaintiff must prove interference with the enjoyment of his land and therefore a plaintiff must have an interest in land to be able to sue for private nuisance. The difference between public and private nuisance was laid down in the case of MPPP v Boey Siew Than where it was stated:

A private nuisance ... is one which disturbs the interest of some private individual in the use and enjoyment of his property by interference with the usual enjoyment of property by causing or permitting the escape of deleterious substances or things such as smoke, odours or noise. The difference between a public and a private nuisance is that, in regard to the former, rights which are common to all subjects are infringed. Such rights are unconnected with the possession of or title to immovable property.
Persons who have an interest over land are the landowners, a tenant and a licensee who has been granted a licence to use the land for a particular purpose. G. ESTABLISHING PRIVATE NUISANCE Private nuisance is established in the following situations. 1) Substantial interference

59

The most important element is that the interference must be unreasonable and substantial as against the use and enjoyment of land. In Goh Chat Ngee & 3 Ors. v Toh Yan & Anor, The defendantcarried on mining work on his land. Due to the mining activities water had escaped and flooded the plaintiffs land. The defendant was found liable in nuisance for the unreasonable and unlawful interference with the use and enjoyment of his neighbours land.

A trivial interference does not give rise to nuisance. What constitutes substantial interference depends on the facts and circumstances in each case.

The courts have held that loss of one nights sleep due to excessive noise, using adjoining premises for prostitution or as a sex shop and persistent telephone calls all constitute substantial interference. In Woon Tan Kan (Deceased) & 7 Ors v Asian Rare Earth Sdn Bhd the plaintiffs residents of Bukit Merah village sued the defendants, for an injunction to restrain the defendant company (ARE) from operating and continuing to operate its factory. The factory produced dangerous radioactive gases harmful to the residents of Bukit Merah. The High Court held that the tort of private nuisance was established. 2) Interference must be continuous

The interference must be something that is continuous or occurs very often, as generally a continuous activity will be a substantial interference. This requirement is not conclusive but it may be a factor in deciding whether the interference is substantial or otherwise.

In any case the most important requirement in establishing nuisance is the fact that the interference is substantial. Substantial in turn, depends on unreasonableness, and factors that are deemed unreasonable are discussed below.
H. UNREASONABLENESS In determining what constitutes substantial interference, the plaintiff must prove the interference to be unreasonable. The following factors are usually used as guidelines by the courts in order to determine whether an interference is unreasonable (and therefore substantial), or otherwise.

60

1)

Damage and locality

Actual damage to property does constitute unreasonable and substantial interference. For physical damage : In St Helen s Smelting Co v Tipping, the smoke from the defendants factory, had caused considerable damage to the plaintiffs trees. The court held that the level of interference must be balanced with surrounding circumstances, and the nature of the locality must be taken into account. A person cannot expect the air in an industrial area to be as fresh and clean as the air in the mountains. If however, the interference causes physical damage to property, then the locality or surrounding circumstances is irrelevant. For non-physical damage : In Bliss v Hall the defendant managed a factory for three years and during this time smoke, smell and other emissions came from the factory. The plaintiff then moved into a house near the factory. When the plaintiff claimed from the defendant, the latter raised the defence that the factory had been there before the plaintiff. The court held that the defence that an activity has been going on before an action is brought to halt such activity is inapplicable as the plaintiff too, has his rights; one of which is the right to clear air. In Syarikat Perniagaan Selangor Sdn Bhd v Fahro Rozi Mohdi & 0rs, the appellant built an open stage and staged some shows. He also opened a discotheque. The court held that people who lived in the urban area must be prepared to accept a lot of noise from their neighbours and they themselves may make noise; but no one however, has the right to create excessive noise and similarly a person is not required to tolerate an excessive level of noise which is unreasonable and is a nuisance.

2)

Benefit from the defendants activities

If the object of the defendants conduct benefits the society generally, then most probably the conduct will not be deemed unreasonable. Nevertheless, the defendants activity which benefits the public will still be a nuisance if the activity causes damage to property or substantial disturbance to the plaintiffs enjoyment of his land. For example, a claim in nuisance for the building of schools, factories, government hospitals and power stations, although giving rise to interference in the form of noise and dust to nearby residents, would probably be denied on the basis of the utility derived from the construction of the facilities.

61

In Adams v Ursell. the defendant was in the trade of selling salted fish. He claimed that his activity benefited the public, especially the poor and therefore justified the smell produced by his trade. The court did not accept this defence as the plaintiffs comfort and convenience also had to be considered. 3) Extraordinary sensitivity on the part of the plaintiff.

The law of nuisance is not sympathetic to a plaintiff who is extra sensitive, whether the sensitivity is related to the plaintiff himself or to his property. If the only reason why a plaintiff complains of dust is because he has an unusually sensitive skin, his claim will probably fail. Sensitivity however, is irrelevant once unreasonable and substantial interference is proved. In short, sensitivity cannot be used as a basis to claim that the defendants conduct is an unreasonable and substantial interference, but once there is unreasonable and substantial interference, sensitivity will not deprive the plaintiff from obtaining a remedy. In Bridlingion Relay v Yorkshire Electricity Board, the defendant erected an electrical powerhouse in the same area causing interference to one of the television channels. The court held that a person cannot hold his neighbour liable just because he (the plaintff) uses his property in a special way. The plaintiffs TV aerial was of a special kind, which was particularly vulnerable to interference and his claim was denied.

4)

Temporary interference and isolated incident

It has been stated above that one of the requirements in establishing nuisance is that the interference must be continuous. The issue now is whether a temporary interference or an isolated incident may constitute nuisance.

a)

Temporary interference

In cases of temporary interference, the courts are likely to be reluctant to grant an injunction except in extreme cases, for instance where damages will not be an adequate remedy.

62

b)

Isolated incident

In Sedleigh-Denfield v OCallaghan the defendants were held liable in nuisance when as a result of allowing a culvert on their land to remain blocked, the plaintiffs adjoining property was flooded. The court held that flooding on the plaintiffs land was foreseeable as a result of the state of affairs on the defendants land.

For isolated incident, if a .person has not caused or permitted to exist on his premises a source of danger which may give rise to material injury to the property of his neighbour, he cannot be liable in nuisance.
5. Malice

The existence of malice may cause the defendants act to be unreasonable. In Christie v Davey the plaintiff was a music teacher who conducted music classes at her house. Her neighbour, the defendant, did not like the sounds from the musical instruments and in turn shouted, banged on the adjoining walls, and clashed pots and pans whilst the plaintiff was conducting her classes. The court found that the defendant was malicious in his actions and an injunction was granted to the plaintiff.

K. DEFENCES 1. Prescription

In England, this defence is applicable to private nuisance. A continuous private nuisance for the period of twenty years is a good defence. The defendant has to prove that the interference is an actionable nuisance for the whole period of the twenty years and the plaintiff has therefore allowed the interference to occur for twenty years. The defendant also has to prove that the interference is something that is done as part of his right on the plaintiffs premises, which is usually an easement.

63

In Sturges v Bridgman the defendant was a biscuit manufacturer and his machines produced a lot of noise and caused vibrations on the plaintiffs premises, the defendants neighbour. This had occurred for more than twenty years. The plaintiff who was a doctor, then built a treatment room at the back of his house. The plaintiff claimed for nuisance due to the noise and vibrations which interfered with the treatment of his patients. The court held that the defence of prescription was inapplicable as before the action was taken the interference did not constitute a nuisance, as it did not affect the enjoyment the plaintiff had over his property. An injunction was accordingly issued against the defendant. Section 284(l) of the NLC 1965 further provides: No right in the nature of an easement shall be capable of being acquired by prescription (that is to say, by any presumption of a grant from long and uninterrupted use). Therefore prescription is not a good defence in Malaysia. It is submitted that an easement, but not a prescription, generally provides a good defence in Malaysia. 2) Statutory authority If a statute confers power to the defendant to conduct a particular activity, the defendant will usually escape liability. The defendant must however prove that the interference cannot be avoided even though reasonable precautionary measures have been taken. Statutory authority will not be a good defence if the work causes substantial damage to neighbouring property.

The Local Government Act 1976 provides that, damage caused to a plaintiffs property arising from nuisance created by a local authority in pursuance of its statutory power will be compensated in the form of damages. 3. Other defences The defences of necessity, consent or defence of property may be valid defences. Contributory negligence is also a valid defence applicable to nuisances based on negligent conduct. A plea by the defendant that the plaintiff comes to the nuisance, in that the defendants operations have been carried out before the plaintiff moved into the vicinity is not a good defence.

64

PART IV : TYPES OF LIABILITY 1. STRICT LIABILITY A. INTRODUCTION The tort of strict liability originated from the tort of nuisance but has developed today so that it has become quite distinct from the tort of nuisance. Strict liability is a term used to impose liability on the defendant without any fault on his part. The landmark case in this branch of tort law is Rylands the defendant that mill owners, through were a contracted mining with some v

Fletcher where
contractors to to the

independent were

build a reservoir. Beneath this reservoir there were in fact some narrow iron shafts and mine The House went area not and which connected The with were but plaintiffs mine. The defendants did not know of the existence of these shafts the contractors flooded negligent in the were held covering the shafts. filled neither the plaintiffs water. they the was when reservoir not of them negligent the liable was and to

defendant liable of

themselves for the Lords

vicariously

negligence

independent

contractors,

plaintiff.

Blackburn J in the Court of Exchequer Chamber said:2

We think that the true rule of law is, that the person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape.

This is known as the rule in Rylands v Fletcher. The learned judge went on to say that the person may escape liability if he can prove that the escape occurred due to the plaintiffs own fault or that it was caused by an Act of God. Lord Cairns in the House of Lords concurred with this rule but based his judgment on the fact

65

that the defendant had used his land for a non-natural use. After this case and in all subsequent cases, non-natural use of land was added to the requirements needed in order to establish liability under the rule in Rylands v Fletcher. As a result of this requirement of non-natural use of land, the scope of liability under the rule has become narrower and more restricted. B. ELEMENTS OF LIABILITY UNDER THE RULE IN RYLANDS v FLETCHER There are four elements required to establish liability under this rule, and these are discussed below. 1. Dangerous objects

The object or thing must be dangerous, and the word dangerous has its own meaning under this tort. What is dangerous is a question of fact. The rule applies to anything that may cause damage if it escapes. What is important is that the object or thing must be of a kind that

may cause damage fit escapes. Once this is satisfied, then that object is a dangerous object
and this element is fulfilled. The object or thing therefore, need not be dangerous per se because there are objects which are safe if properly kept, but become dangerous if they escape. This principle has been successfully applied to gas, noxious fumes, explosives, fire, electricity, water, sewage and slag heaps. rule in Rylands v Fletcher as the petrol was a dangerous object. 2. Intentional storage The rule only It is applies not to an object to or thing which that the is defendant naturally purposely on the

keeps and collects. In other words the defendant will only be liable if he has accumulated the object. land. In applicable anything

Giles

Walker the

defendant

was

not

liable

under

this

rule

when

his

crop flew onto the plaintiffs land. In cases like this, liability may be sought under the tort of nuisance or negligence.

3. Escape

66

The rule is applicable only when there is an escape. Escape means the object has escaped from a place where the defendant has control and authority to a place where the defendant has no control and authority. The meaning of escape has been extended to include a situation where the use of the dangerous object causes or creates an event from which damage is sustained. In Lee Kee v Gui See & Anor the defendant was found liable when a third party whom he had hired to burn some rubbish on his land did so without taking any precautions, which resulted in the fire spreading onto the plaintiffs land, destroying the latters rubber trees. The court held that if a person makes a fire on his land in order to burn something which is inflammable, he must take reasonable steps to prevent the fire from spreading. This duty is absolute and non-delegable. 4. Non-natural use of land An ordinary or natural use of land would include erecting a house, installing water, electric wiring and gas pipes. It also includes doing something ordinary and natural, though artificial, such as constructing a fish pond. The meaning of non-natural use of land was explained in the case of Rickards v Lothian where Lord Moulton stated:

It must be some special use bringing with it increased danger to others and must not merely be the ordinary use of the land or such a use as is proper for the general benefit of the community.
In

Crowhurst

Amersham

Burial

Board the

defendant

planted

yew

tree

on his land. The branches and leaves of the trees extended into the plaintiffs land. The leaves of the tree are in fact poisonous to cows. The plaintiffs horse ate the leaves and died. The court held the defendant liable as planting a poisonous tree is not a natural use of land. DEFENSES 1. Consent of the plaintiff If the plaintiff either expressly or impliedly consents to the existence of the dangerous object and the defendant is not negligent in any way, the defendant will not be liable for any escape and resulting damage.

67

In SheikhAmin bin Salleh v Chop Hup Seng, the plaintiff owned a piece of Land on which eight terrace houses were built, four of the houses being rented by the defendants. The defendants used their rented premises for the purpose f a bakery, a fact known by the plaintiff. A fire caused by the defendants negligence destroyed all eight houses. The court found on the evidence that the plaintiff assented to or acquiesced in the use of the defendants premises as a bakery with an oven therein and therefore the defendants could not be liable under the rule in Rylands v Fletcher. In this case, consent or acquiescence of the plaintiff to the defendants activity overrode the latters negligence. 2. Common benefit If the dangerous object is allowed to exist for the common benefit of both the plaintiff and the defendant, the defendant will not be held liable if it escapes and causes damage. In Carstairs v Taylor the plaintiff rented the ground floor of a factory from the defendant, who occupied the floor above. Water from the roof was collected through some drainpipes which then flowed into a box, and from the box into some pipes and then into a drain. Rats had made holes in the box. Water dripped from it and damaged the plaintiffs property. The defendant was in no way

negligent and the court found that even though the method in which water was disposed of was dangerous, the defendant was not liable as the act was done for the common benefit of both parties. 3. Act of a third party The test used to determine whether a person is a third party or otherwise is whether that person acts outside the defendants control. Generally trespassers and those who act on land that does not belong to the defendant are said to be third parties. The defendants workers or employees as well as any independent contractors employed by him will not be regarded as third parties. The unforeseeable act of a third party who is not under the defendants control, is a good defence. In Box v Jubb the defendants reservoir overflowed and damaged the plaintiffs property. The cause was the overflowing of the defendants neighbours reservoir which in turn flooded the defendants reservoir. It was held that since the sequence of events were not foreseeable and the defendant was not negligent, the defendant was not liable.

68

4. Act of God The use of this defence is very limited. The condition for its use is when the escape occurs through natural means which is unforeseeable and without any interference of mankind. In Nichols v Marsland the defendant owned many artificial lakes. A heavy rainfall caused the artificial embankments of a lake to collapse and water from the lake swept away four bridges in respect of which damage the action was brought. The court held the defendant not liable as what had happened was not due to the negligence of the defendant; it was not reasonably foreseeable and was an Act of God. 5. The plaintiffs default If the damage is caused through the plaintiffs own action or wrongdoing, he will not be compensated. If the plaintiff contributes to the end damage he may be held to be contributorily negligent under the provision in section 12(l) of the Civil Law Act 1956 6. Statutory authority Liability will not be imposed on a defendant who acts under the authority of a statute which excludes liability for such acts. If a statute imposes a duty on the defendant to do something which consequently causes damage to the plaintiff, the defendant will not be held liable. On the other hand if the statute only gives a power of discretion to the defendant, , he is found to be careless in exercising his discretionary power. the defendant may still be held liable if that

2. VICARIOUS LIABILITY The doctrine of vicarious liability applies to all forms of torts: intentional torts, negligence, nuisance and all the other torts. Vicarious liability refers to a situation where A is liable to C for damage or injury suffered due to the negligence or other tort committed by B. A need not have done anything wrongful and A further need not owe a duty of care to C. The most important condition for imposing liability on A is the nature of the relationship between A and B, and this relationship is usually that of master and servant or employer and employee and as between a principal and his agent.

69

A. REASONS FOR VICARIOUS LIABILITY Many reasons have been put forward in justification of this doctrine, some of which are that a master is to be held liable for employing a negligent employee; for failure to control the employee; that since the master derives benefit from the employees work, he should be made liable for any tortious conduct of the employee in the performance of his work and lastly because the master is in a better financial standing to compensate the third party. This last reason ensures, if nothing else, that the third party will in fact receive compensation for his injuries and the doctrine therefore guarantees actual compensation in the tort In Imperial Chemical Industries Ltd v Sharwell, Lord Pearce said: The doctrine of vicarious liability has not grown from any very clear, logical or legal principle but from social convenience and rough justice. The master having (presumably for his own benefit) employed the servant, and being (presumably) better able to make good any damage which may occasionally result from the arrangement, is answerable to the world at large for all the torts committed by his servant within the scope of it. The doctrine maintaiils that liability even in respect of acts which the employers had expressly prohibited (see Canadian Pacfic Railway v Lockhart [194232 All ER 464) and even when the employers are guilty of no fault themselves (Staveley Iron & Chemical Co. Ltdv Jones [1956] I All ER 403) ... It follows that they are liable for the torts of one servant against another. B. REQUIREMENTS OF VICARIOUS LIABILITY Three requirements must be satisfied in order for vicarious liability to arise:firstly a wrongful, or tortious act; secondly there is a special relationship that is recognised by the law, between the person alleged to be vicariously liable and the tortfeasor, and thirdly the tort is committed within the course of employment. Each requirement will be discussed in turn. 1. Wrongful or tortious act.

The court will first and foremost decide whether a tort has been committed? Once a tort is established, the nature of the relationship between the defendant and the tortfeasor will be examined. 2. Special relationship

There must be a special relationship between A and B and such relationship usually exists between an employer and his employee. If a tort is committed on Bs premises but not by As employees or agents, A will not be vicariously liable for the tort.

70

Sometimes it may be difficult to ascertain whether a worker is deemed to be an employee or otherwise and two particular situations in which this difficulty may arise are discussed below. (i) Hospital staff Some of the dissatisfaction associated with the control test was the vicarious liability of hospitals for the negligence of their staff. Surgeons and consultants are experts in their own fields and it seems absurd to describe the hospital board as controlling the work of these professionals. This uncertainty was settled when a series of cases held that nurses, radiographers, house-surgeons, and assistant medical officers were employees of the hospital for purposes of vicarious liability. In Cassidy v Ministry of Health and Roe v Minister of Health9 the courts held that if negligence occurs in a hospital, and the tortfeasors cannot be identified, the hospital will be vicariously liable for the negligence. (ii) Lending a worker If B, who is the employee of A is lent to C and B subsequently commits a tort, the general principle is that A will be vicariously liable for the tort committed by B unless A has divested himself of all possession and control. This principle was laid down in Mersey Dockcs and Harbour Board v Coggins and Griffiths (Liverpool) Ltd. Here B worked as a crane-driver for A, who hired out the crane, together with B, to C. The agreement between A and C stipulated that B would be working for C but A was to continue paying Bs wages as well as retaining the power to terminate Bs employment. B was negligent in the course of doing his job and injured X. At the time of the accident C had control over which cargo was to be moved but he had no control over the method in which B was to handle the crane. The House of Lords held that A was his permanent employer, and was therefore vicariously liable to X. 3. The tort must occur within the course of employment

An employer will only be vicariously liable for the torts of his employee if the tort occurs in the course of employment. An act is said to be within the course of employment if firstly, it is either expressly or impliedly allowed by the employer, or secondly, when the employee does something that is authorised in an unauthorised manner or thirdly, the employee does something that ought or should be done in the course of doing the job.

(a) Carelessness of worker The commission of a careless act may still be within the course of employment provided the

71

worker is not on a frolic of his own. In Century Insurance Co Ltd v Northern Ireland Road Transport Board the defendants worker who was driving an oil tanker, had stopped at the plaintiffs petrol station to transfer petrol from the lorry to an underground tank at the garage. He lit up a cigarette and threw the burning match on the floor, where an explosion ensued and the plaintiffs property was destroyed. The court held the defendant liable for his workers negligence as the act was done in the course of his employment, even though the actual act of smoking did not benefit the employer. Liability was also based on the fact that the driver did what he was employed to do (which was to deliver the petrol) albeit in an unauthorised manner. (b) Mistake of worker. If the employee or worker commits a mistake in the course of performing his job, generally the courts will hold the employer liable. This mistake will be construed as doing something authorised in an unauthorised manner. In Bayley v Manchester, Sheffield and Lincolnshire Rly the defendants were held liable when their porter pulled out a passenger from a train as the porter (mistakenly) thought that the train was heading elsewhere.

c)

Worker deliberately commits a wrong

If the worker does an act for his own benefit, this does not necessarily mean that he has acted outside the scope of his employment, in Zakaria b Che Soh v Chooi Kum Loong & Anor the plaintiff was a driver with a research institute in Ipoh. After sending the director home he drove home for lunch and an accident occurred on the way. The court found the state government liable. Even though the purpose of that trip did not have anything to do with his employer, but it was something that was expected to be done in the course of his employment and thus the accident occurred within the course of his employment. The test is whether the conduct of the worker is reasonable; in that it is not too remote from the contemplation of both parties as to take the act out of the employment. So for instance if a driver had driven two hundred miles for one lunch, the employer would not be vicariously liable. (d) Fraud of the worker. The leading case is Lloyd v Grace, Smith & Co. The defendants, a firm of solicitors employed an administrative clerk who was responsible for conveyancing matters. His duties were not under the supervision of the defendants. The plaintiff who had some difficulties in handling her property went to the defendants office and the clerk fraudulently transferred some of the properties into his own name. He then disposed of the properties for his own benefit. The

72

House of Lords held the defendants vicariously liable due to the position in which they had placed the clerk so as to enable him to do what he did. His act was within the scope of apparent or ostensible authority which had been given to him by the defendants.

d)

Employee acting on a frolic of his own.

Even though the employer was held to be vicariously liable in Lloyds case, the general principle remains that if the employees act is intended to benefit himself alone, that will be sufficient to prevent the tort from being within the course of his employment. Parke B in Joel v Morrison stated: if he was going out of his way, against his masters implied commands when driving on his masters business, he will make his master liable; but if he was going on a frolic of his own, without being at all on his masters business, the master will not be liable.

73