Tort Law in Malaysia

Tort Law is one of my sweets back in my law degree and i enjoyed reading judgement of some
utmost respected judges. Regretfully, one of whom has departed recently - Lord Bingham the
Cornhill who crafted the controversial 'Fairchild case'.If i am being asked to state three pillars
of the the laws, Tort Law has such a weight that i would definitely name it on the list.

I could go on explaining how the law of tort comes about and what is it called, 'tort' and so
forth. Instead, i have chosen to share the substantive points of it and share the background of it
at another dawn.

* THINK : What are the differences between illegality and liability having considered the picture
below ? *

Why ' Tort' * I STILL THINK I HAVE TO SHARE THIS ,SORRY I LIED*

The memories still appear vividly. Thankfully, I am pleased for being taught by a mind-opening
lecturer. He inspired me and gave me an insight as to the method of studying law.The origins of
Tort Law is almost a total stranger in the law examination. Nevertheless he purported to explain it
to us which was precious to young mind like me. He fed every single curiousity that i owned that
time which i feel much appreciate till now.

To my understanding, the Law of Torts is an area of law which aimed to educate us to be always
reminded on our duties in the society. Hence the famous Lord Atkin judgement in Donoghue v
Stevenson that, one shall not injure your neighbour who is so closely and directly affected.

Donoughue(or M'Alister) v Stevenson [1932] ALL ER Rep 1 , Lord Atkin :" ..The rule that you are
to love your neighbour becomes in law..."

It is particularly remarkable that Tort Law owes its genesis to a word 'tortus' in Latin(' Tortum' in
medieval latin). 'Tortus' means 'twisted'. It is indicating that the state of an object has changed and
different from it's original state. For instance, as shown the the picture above,a car was initially in
one piece but after the act of the wrongful party it has been 'twisted' and damaged.( 'Object is
being used as an illustration because a tort could be committed against property and persons)

Surprisingly,it is observed that there has been little publication on this issue i reckon, being the
central part of the understandings in Tort Law. However, i managed to trace them in these articles.
 Paul Balen, p196, 'Group actions, aims, aspirations and alternatives: a historical global
perspective' Journal of Personal Injury Litigation 1995
 Wenzel Pross, 'Keeping Rights Straight' UCL Juris. Rev. 2005, 12, 1-12

DEFINITION OF TORT

This area of law is an unique one, an elusive one amongst most of the laws. Donoghue v
Stevenson is the classic example of it. The invention of tort is aimed to protect the injured party
who seeks no remedies under other laws. Malaysian was one of the commonwealth countries and
adopt common law principles.

 Winfield's Definition: Tortious Liability arises from the breach of duty primarily fixed by
law ; this duty is towards persons generally and its breach is redressible by an action for
unliquidated damages'

 Damnum sine injuria' : DAMNUM (damage suffered )SINE (without), INJURIA ( injury in
the violation of legal right). Therefore the phrase “ damnum sine injuria means” damage
suffered without violation of the legal right.

 UBI JUS IBI REMEDIUM : There should be remedy for every legal rights. Therefore, every
loss suffered should be compensated. However, there shouldnt be any unjust
enrichements.

 Lord Steyn in McFarlane v Tayside Health Board[2000] 2 AC 59 ( at p83 para 24-15): "
The truth is that tort law is a mosaic in which the principles of corrective justice and
distributive justice are interwoven. And in situations of uncertainty and difficulty a choice
sometimes has to be made between the two approaches."

 In French, a tort simply means a wrong.

The Authors of 'Tort -Winfield & Jolowicz 'creatively categorised this area of law as the dustbin of
the law of obligations. However, it is a truism to a certain extent. If not the paucity of protection of
contract law, the tort of negligence may not be created in the history of English law.

Perhaps, Scottish Law is more accurare in addressing this area of law being the Law of Reparation
is a better name for it. It is a tool provides for reparation of what the plaintiff has suffered.

COMPARATIVE STUDY OF TORT

 TORT VS CONTRACT
 Invariably, there is always overlapping between these two areas of laws. There could be
simultaneous of both tort and contract claims. As aforementioned, several claims doesnt not justify
unjust enrichment or betterment resulted from remedies.
 Lord Goff :" The result may be untidy...I do not find it objectionable that claimant may be
entitled to take advantage of the remedy which is more advantageous to him"
 Contract Law is developed by common laws,precedents and statutes which dictated the
constitution of a contract and consent/agreement is the crux of the law. However, Tort Law is
different in a sense that it is a deeemed duty that if no written law expressed so, it doesnt mean
there is no duty. In contrast, the duties in tort law is an amalgam of principles from times to times.
There could be a duty in this era eventhough it wasnt last time, vice versa.
 Contract Law is being manipulated by the contract agreed. Tort Law is however governed by a a
written law itself for example, Occupiers Liability Act 1957(UK).
 With regards to damages, Contract Law aims for what is the entitlement of the parties whereas
Tort law is to compensate the plaintiff to a position as if the tort has never been committed.

 TORT VS LAW OF RESTITUTION

 TORT- Normally an action for unliquidated damages
 QUASI-CONTRACTUAL - Normally where there is a liquidated sum.

 TORT VS EQUITABLE LIABILITY

 Where there is misappropriation of trust fund, there is certainly a duty however not a duty under
tort per se, but a duty of fiduciary, loyalty and altruism which consists of duties of care. Where there
is a trust action, a tort action is unnecessary.

TORT OF NEGLIGENCE
It must be stressed that the Tort of Negligence could be regarded as the most important part in the
law of tort in which it indicates that a duty of care being breached that caused the injury that is not
too remote (Caparo Industries v Dickman)

 Burden of Proof
 Hassaina Rani Naina v Ahmad Nadzri Kamaruddin and Anor - The onus of proving negligence will
be bestowed on the shoulder of the plaintiff.
 Balance of Probabilities
 Udhaya Kumar a/l Karuppusamy and Anor v Penguasa Hospital Daerah Pontianand Ors) -

As a tool of convenience, it will be divided into few branches.

1. DUTY OF CARE ( Donoghue v Stevenson - Neighbourhood Principle)
 Who then in law is your neighbour, those who closely and directly affected - Lord Atkin
 Traditional Categories ( Where the case laws has established such duty)
 Chai Phin Chong - Driver has duty to keep proper look out, anticipate the presence of other and
be able to stop within the range of his permitted vision.
 Chu Kim Seng and Anor v Abd Razak Amin- No automatic negligence if no driving licence + No
helmet + No Road Tax /Insurance
 Lim Kar Bee v Abdul Latif bin Ismail - Duty to road users while doing road work.
 Three stage test ( Use in the case which not fallen under traditional categories)
1. Foreseeability - Bourhill v Young - Act/Omission
2. Proximity - Page v Smith
 Material Physical Injury (Wainwright v Home Office )
 Economic Loss ( Spartan Steele v Martin - Unquantifiable - cant claim)
 Pure Economic Loss ( Hedly Bryne v Heller - Negligent Mistatement )
 Special relationship ( Mutual Life v Evatt)
 Reliance - Actual (Smith v Eric Bush - surveyor of mortgagee) or Reasonable (Vowles v
Evans, White v Jones- lawyer, Neptine Sdn Bhd v Jones Lang Wootton- real estate agent )
 Defendant knows plaintiff will believe
 Foreseeable Loss ( Goreham v British Telecoms)
 Negligent act that caused economic loss
 Majlis Perbandaran Ampang v Steven Phoa - can claim if foreseeable
 Property Damage
 Abdul Hamid and Anor v Tan Chu Kin - Awarded only rm150 to repari as repairer was absent.
Exaggerate amount.
 Motor & General Insurance Sdn Bhd v Pok Siong Kok - Car is destroyed, prove the market value
 Chip Fong Sdn Bhd v Guardian Royal Exchange Assurance (M) Sdn Bhd - Cost of resinstatement
, consider depreciation and betterment
 Lim Seong Choon v R. Rayaratnam - Can Recover special damages for diminution in the value of
car
 Parvathy & Ors v Liew Yoke Khoon - Loss of Jewellery & others
 Psychiatric Injury (Hinz v Berry )
 Primary Victim - Dulieu v White & Son
 Secondary Victim - Alcock v Chief Constable of South Yorkshire
3. Just Fair & Reasonable

 It must be just, fair and reasonable to impose such a duty on the defendant. For an example, if
such an action would cause floodgate in litigation, then it may not be just, fair and reasonable to
do so.

2. BREACH OF DUTY
- What standard of breach does the defendant carry ?
Reasonable man standard
Special Skill
- Has the defendant reached the standard of breach ?