Intro Tort Law PDF

INTRODUCTION TO THE LAW OF TORT Lecturer: Assoc Prof Dr Nadhratul Wardah Salman Faculty of Law, University Malaya Public & Private Law A. The meaning of Tort B. The (general) elements of Tort Law C. The aims of Tort Law D. The interests that Tort Law protects E. Sources of Tort...

INTRODUCTION TO THE LAW OF TORT Lecturer: Assoc Prof Dr Nadhratul Wardah Salman Faculty of Law, University Malaya Public & Private Law A. The meaning of Tort B. The (general) elements of Tort Law C. The aims of Tort Law D. The interests that Tort Law protects E. Sources of Tort Law in Malaysia  The law of tort = tort law = tort ‘tort’ = twisted = wrong (Latin word - tortus) ▪ It is a civil wrong independent of contract. ▪ If I do something wrong to you, I have committed a ‘tort’ against you. Definition by Winfield: “Tortious liability arises from the breach of a duty primarily fixed by law; such duty is towards persons generally, and its breach is redressable by an action for compensation in the form of *unliquidated damages.” *Unliquidated damages = the amount determined by the court What can be that something WRONG? Examples:  A national newspaper publishes a false and abusive story about Dato’ A, a respectable politician.  A student is walking on a pedestrian pavement and is injured by a car being driven negligently by the driver.  A policeman detains A without any lawful reason.  A car driver is severely injured as a result of a technical fault in his car.  A doctor prescribes the wrong medicine, resulting in seriously harmful effects on a patient. One party suffers harm/ damage/ injury/ loss because of the other party’s action. This harm can be:  Physical injury  Psychological (e.g. nervous shock, mental trauma.)  Financial loss  Damage to one’s reputation This is called wrongs or tort done by one party to the other. Three elements must co-exist for an act to amount to a wrong/ tort. If any of them is absent, it may not amount to an act of tort. 1. Wrongful act 2. Damage 3. Legal remedy 1. Wrongful Act Any act which is wrongful in the eyes of the law Examples:  Attacking or defaming someone is a wrongful act  Trespassing on someone's house/ land is also a wrongful act  Touching someone else and causing her fear is a breach of her right to personal safety. How do we know the act is wrongful?  The law tells us that the act is wrongful because it breaches legal rights.  Where the law does not recognise an act as wrongful, no remedy will be available. Breach of legal rights may also lead to infringement of the right in rem (Jus in Rem), which is a right against the whole world. Example:  You have the right not to be defamed by any newspaper worldwide.  You have the right not to be injured by any car driver.  You have the right not to be detained illegally by any policeman.  You have the right to have no one enter your house without your permission. What are those acts which the law does not recognise as wrongful? Example: You are walking on a roadside where there are puddles on the road. A car drives by over the puddles and splashes dirty water on you. The law says this is so trivial that the law should not recognise this act as wrongful. Therefore, no remedy is available to you in such circumstances. 2. Damage The wrongful act must result in ‘damage’. It does not have to be actual physical damage, injury or financial loss. It is ‘damage’ if it is recognised by law. Example:  In defamation cases, the plaintiff may not suffer from a ringgit loss, but it is still considered damage due to the loss of reputation.  Trespass to land (no actual damage). Someone enters your house and breaches your privacy – that is damage even if you do not suffer a physical injury or financial loss. Legal damage is presumed if an infringement of a right is recognised by the law. 3. Legal Remedy There must be some legal remedy available. Even though the act is wrongful, it may not amount to a tort if no remedy is provided. Example: Certain moral or religious wrongs are not covered. If someone lies to you daily and you suffer mental anguish, this may not amount to an act of tort. (Lie in commercial dealings may amount to fraud and may be actionable in contract). The wrong must fall under the cases for which the legal remedy lies in a civil action for damages. Other remedies are available, such as an injunction against a publisher of a news story to prevent defamatory words from continuing to circulate. 1. As a deterrence  The use of remedy as a threat to deter people from offending. 2. As a compensation  To put the victim in the same position as if tort did not occur. 1. Personal security ✓ Trespass actions e.g. asssault, battery ✓ Negligence e.g. medical negligence ✓ Psychiatric extension, e.g. nervous shock 2. Property ✓ Interests in land: protected by trespass, nuisance, strict liability ✓ Interest in goods: protected by trespass, conversion 3. Reputation ✓ Protected by law of defamation 4. Economic loss ✓ Financial damage suffered as the result of a negligent act ✓ Pure economic loss is difficult to claim, see MPAJ v Steven Phoa 1. English common law  S. 3, Civil Law Act 1956 2. Local judicial decision  Decisions made by the local courts (by incorporating English common law principles) 3. Local statute - Defamation Act 1957 (Revised 1983) The lecturer can be contacted at: wardah.um.edu.my 17