Torts Notes for Final PDF

OCCUPIER’S LIABILITY - Definition & Test - Lawful Visitors - Special Visitors - Warnings - Independent Contractors - Trespassers - Defences VICARIOUS LIABILITY - Definition - Requirements - Establishing a Tort...

OCCUPIER’S LIABILITY - Definition & Test - Lawful Visitors - Special Visitors - Warnings - Independent Contractors - Trespassers - Defences VICARIOUS LIABILITY - Definition - Requirements - Establishing a Tortious Act - Relationship of Control - Employee vs Independent Contractor & COS vs CFS - The Control Test - Organisation Test - Economic Reality Test - Tortious Act Must Be In The Course of Employment STRICT LIABILITY - Definition - Elements - Dangerous Things Likely to Cause Damage If It Escapes - Intentional Storage/Accumulation by Defendant - The Thing Escape (And Caused Damage to The Plaintiff) - Non-Natural Use of The Land - The Damage is Foreseeable - Position In Malaysia - Defences - Consent of The Plaintiff - Common Benefit - Act of A Third Party  - Act of God - The Plaintiff’s Default - Statutory Authority NUISANCE - Private Nuisance - Definition - Elements - Substantial Interference - Unreasonableness - Location of Plaintiff’s Premise And Defendant Premise - Public Benefit of The Defendant’s Activities - Interference Must Be Continuous - Extraordinary Sensitivity of The Plaintiff - Malice - Bad Intention of The Defendant - Public Nuisance - Definition - Difference Between Public and Private Nuisance REMEDY - Definition - Judicial Remedies - Damages - Contemptuous Damages - Nominal Damages - Aggravated Damages - Exemplary Damages - Injunction - Interim Injunction - Interlocutory Injunction - Permanent Injunction - Mandatory Injunction - Prohibitory Injunction - Mareva Injunction  - Anton Piller Injunction - Further Injunction Sub-types - Specific Restitution of Property - Extra-Judicial Remedies - Expulsion of Trespasser - Re-Entry of Land - Re-Caption of Goods - Abatement - Distress Damage Feasant  OCCUPIER’S LIABILITY DEFINITION & TEST Occupier’s Duty And Liability: Duty owed by occupiers of land or premises towards visitors, whether invited or uninvited, whose presence is lawful or unlawful, who suffer injury during the course of their visit. Occupier: A person who is in control of land or property must conduct themselves in a certain manner, in order to avoid injuring others. Test: Test of Occupational Control over Premises. (to see who is the party who exercises an element of control over premises. Wheat v E Lacon & Co Ltd (1966) Facts: The claimant was on holiday and stayed in a pub with attached guest rooms. The pub was owned by the defendant company, who hired a manager-in-residence to manage both the guest rooms and the front-of-house. In order to access his room, the claimant had to climb a steep, narrow staircase. The handrail stopped two steps short of the bottom, and there was no bulb in the light fitting, leaving it dark. The claimant was fatally injured whilst descending these stairs. Issues: Who was the proper party to the suit? Held: The court held that both the owners and the manager were occupiers, applying a test of control. The owners retained both property rights, and the right to repair the premises as they saw fit, and hence had sufficient control over the premises to be an occupier. The manager was too an occupier – he was licensed to deal with the day-to-day running of the premises, and additionally physically lived on the first floor of the pub. Whilst both were occupiers, only the manager was held liable – the lack of lighting was held to be the key breach of duty, and that was the manager’s purview. Harris v Birkenhead (1976) Facts: The defendant council had served a compulsory purchase on a rented property, and the current tenant moved out. They gave the owner/landlord 14 days’ notice of their intention to take possession, but didn’t actually take physical possession of the property (i.e. send an agent to it) once the 14 days had passed. The claimant, a four-year-old girl, wandered off from a nearby playpark with a friend. The house was unsecured (unknown vandals had broken in), and the claimant entered the open front door, went upstairs, and was seriously injured when she fell from a window. Held:The council was held liable – although they had not physically occupied the property, they had legal ownership at the point the accident occurred. This legal control was enough to establish occupier status. Premises: Land and buildings; Temporary and mobile structures are included under this definition, such as scaffolding and ladders Wheeler v Copas (1981) Facts: The claimant was a builder working on the defendant’s property when he used a ladder which the defendant had lent to him. The ladder was too flimsy, and broke, injuring the claimant. Held: The court noted that the ladder came under the definition of premises. LAWFUL VISITORS 1) Express Permission - Those who are expressly invited onto premises by some means (so, a written invite or a simple beckoning by the occupier - Occupiers can limit the extent of an express invite in terms of place, behaviour or time.  E.g: someone who is invited to a dinner party can attend with express permission, but they cannot refuse to leave at the end, smash the host’s windows and then climb up onto the roof. Someone who deviates from such instructions will be considered a trespasser The Carlgarth (1927) Facts: The claimant’s ship filled with water and sank whilst travelling down the defendant’s channel of water. Whilst the ship was invited to use the channel, it had navigated in an irregular manner (causing the sinking.) Held: Thus, because the ship was acting in a manner other than that which it had permission to, the occupier of the channel could not be held liable. Scrutton LJ at 97: “When you invite a person into your house to use the staircase, you do not invite him to slide down the bannisters, you invite him to use the staircase in the ordinary way in which it is used.” 2) Implied Permission - those who lack express permission but whose presence is assumed to be unobjectionable to the occupier. E.g: Resident and Postman : Impliedly for a postman to use the front entrance. Natural limitation which will apply for many forms of implied permission – so a postman will likely be considered to have implied permission to access the front of a property, but this permission will not extend to the postman going round the back of the property and playing on the owner’s swing-set for an hour. Again, a visitor who exceeds the limitations of implied permission will be considered a trespasser. Lowery v Walker (1911) Facts: A path running across the defendant’s field was used as a shortcut by several people to get to a nearby railway station. The defendant knew about this, and objected to it, but had not taken any steps to stop it from occurring. One day, he put a wild horse in the field, which attacked and injured the claimant. Held: The courts held that since the defendant knew about the trespassers, but did nothing about it, this amounted to implied permission. The defendant was, thus, held liable.  - *Implied permission can come into being if an occupier knows that their land is being used by trespassers, but does nothing to prevent their activities 3) Lawful Right of Entry - those who maintain a right to enter land or property regardless of the occupier’s wishes Example: police officers (with a warrant or chasing a fugitive), firefighters attending a fire, and public utilities employees attending to read meters etc. - Those who enter property in accordance with a valid contract are held to be a lawful visitor under the act, and notably, if the relevant contract provides for a higher standard of care it will apply. So if a landowner hires builders, and agrees to being held strictly liable for any accidents that occur, then that duty of care will apply Occupiers’ Duty of Care ➔ Duty of care owed by occupiers to categories of visitors – the standard of care since being an occupier normally gives rise to the foreseeability of damage to a visitor ➔ The duty is based around preventing injury in visitors, rather than ensuring that premises are objectively safe. ➔ Injury suffered by the visitor usually resulted from some defect in the static condition of the premises rather than from any activity taking place there. ➔ Thus, whilst a deep pit presents an objective hazard, the occupiers duty is based on ensuring nobody is injured by it (for example, by putting up warning signs or fencing it off. Special Visitors Children - can be expected to be less careful than adults, and, by implication, that a greater level of care might be required to keep them from harm. *- The common law has sought to strike a balance between the responsibilities of parents and occupiers to prevent harm from befalling children. Phipps v Rochester Corporation (1955) Facts: A 5-year-old was walking, with his 7-year-old sister, across some land owned by the defendant, which was under development. The 5-year-old fell into a trench dug for such purposes, and was injured. Held: The court ruled that the occupying council was not liable – just as an assumption could be made that children would be less careful, an equal assumption could be made that young children would not be allowed to wander unsupervised onto unsafe land. Thus, to avoid shifting parental responsibility to landowners, the claim was denied. Glasgow Corporation v Taylor (1922) Facts: A seven-year-old died after eating poisonous berries which were in a public park. Whilst the plants were fenced off, there were no notices warning that the berries were poisonous. Held: The court held that the defendant council was liable. The plants did not present an obvious danger, and so the council should have taken sufficient measures to draw attention to the concealed danger. It was also noted that an occupier who is aware that something on his land might act as an allurement to children (for instance, berries that look edible) should take greater care to prevent that risk from manifesting. Titchener v British Railway Board (1983) Facts: The claimant, a 15-year-old girl, was walking with her 16-year-old boyfriend. They took a shortcut across a railway line and were both struck by a train, severely injuring the claimant and killing her boyfriend. They had accessed the railway through a gap in the fence, and there was a pathway worn up to the gap, suggesting that this was a point of repeated trespass. It was established that the defendant either knew of the gap, or would have known of it upon reasonable inspection. The defendant denied liability on the basis that it did not owe a duty of care towards a 15-year-old, who would have been aware of the risks they were running. Held: This argument was successful – indeed upon cross-examination the claimant noted her knowledge of the risk and her choice to take the chance. Skilled Visitors - Occupiers can assume that such visitors will have a greater awareness of risks and the relevant precautions that they should take This increased competence will only apply to risks whose nature matches the skill of the visitor. So an electrician will be owed a lesser duty of care by an occupier – but only in relation to risks of electric shock and similar. General Cleaning Contractors Ltd v Christmas (1953) Facts: The claimant was cleaning windows on the defendant’s building. He had climbed up onto a wall, and was using an open sash window for support. The top half of the window closed on his fingers, he lost his balance and fell, injuring himself. Held: His action against the occupiers failed – it was held that as a professional, he should have known how to mitigate the risk he was running. Salmon v Seafarer Restaurants Ltd (1983) Facts: A fireman was injured in an explosion whilst attending a chip shop fire. The defendant occupier argued that, with regard to a fireman attending a fire, his duty only existed to protect him against a special or additional risk above those he might ordinarily encounter as a result of his job. Held: This argument was rejected – whilst the firefighter’s skills were relevant to determining the applicable duty of care, where it was foreseeable that he might be injured through the exercise of those skills, the occupier would remain liable. The claim therefore succeeded. WARNINGS Whether putting up a warning sign releases the occupier’s liability? - The duty of care is based on protecting visitors, rather than removing hazards altogether. This means that the humble warning sign forms a key element of fulfilling the duty. However, the addition of a warning to a hazard will not absolve an occupier of liability.  - A specific hazard will require a specific warning – so if the hazard is an electric fence, then an appropriate warning would be: ‘Caution: Electric Fence’, rather than just ‘Caution’. Visitors shouldn’t have to play ‘guess the hazard’ whenever they see a warning. Hidden dangers will require greater attention to be drawn to them. Staples v West Dorset District Council (1995) Facts: The claimant was badly injured when, crouched on a harbour wall to take a photo, he slipped and fell off of the wall, some 20 feet high. The harbour wall was covered in algae, and thus very slippery when wet. He brought an action against the defendant council, arguing that no warning signs were present regarding the danger of slipping. Held: The claim failed – the dangers of slipping on algae on a harbour wall were obvious, and the claimant was aware of them. The defendant thus had no duty to warn. * Staples demonstrates how claimants will be expected to use their own common sense to self-warn of a hazard. INDEPENDENT CONTRACTORS Situations in which an occupier will be held liable for a harm caused by an independent contractor: 1) where it was unreasonable to entrust the work to an independent contractor in the first place. This is to prevent an occupier from hiring independent contractors to deal with all aspects of their premises in order to avoid liability. 2) where the occupier failed to take reasonable steps to ensure the independent contractor was competent – for example, a landlord who hires an independent engineer to do gas safety checks will be expected to check that he is qualified. 3) where the occupier has failed to take reasonable steps to check the work of an independent contractor. If a school hires an independent contractor to clear ice off of steps, they will be expected to check that it has been done ( See Woodward v Mayor of Hastings KB 174. ). An occupier will not be expected to check overly technical work, as long as they have taken the proactive measure of ensuring their contractor is reputable (See Haseldine v Daw & Son Ltd 2 KB 343.) TRESPASSERS Robert Addie & Sons (Collieries) Ltd v Dumbreck AC 358 : “someone who goes on the land without invitation of any sort and whose presence is either unknown to the proprietor or, if known, is practically objected to.” Young v Kent County Council EWHC 1342: Facts: The claimant, a 12-year-old boy, climbed up onto the roof of a school (via a ventilation flu) to fetch a ball. He then fell through a skylight and was injured. The defendant occupier was aware that the skylight was brittle, and that it represented a hazard. They were also aware that the roof was used as a meeting place by children – the fact that the roof could be accessed via the ventilation flu by children was even noted in a HSE report. Finally, the brittle skylight was a hazard which could have easily been protected against. Held: The claim therefore succeeded, albeit with the claimant’s damages reduced by 50% on the basis of contributory negligence. DEFENCES Volenti non fit injuria: White v Blackmore & Ors Facts: The plaintiff claimed damages for breach of section 2 of the Occupiers' Liability Act 19571 and/or negligence in respect of the death of her husband who was fatally injured while watching old car ("jalopy") racing organised by the defendants. The deceased, a member of a jalopy club, had taken his jalopy to the field where the races were to be held and was signed on as a competitor. He left his jalopy and returned home. Later he took his family to the racing. Notices warning the public of the danger of motor racing were displayed which stated that it was a condition of admission that the organisers were absolved from all liabilities from accidents "howsoever caused" to spectators. The deceased paid for the admission of his family and was allowed in free himself as a competitor. He was given programmes with a warning in small print on an inside page. The deceased left his family in the spectators' enclosure and took part in a race. Afterwards he joined his family while another race took place. He stood just outside the spectators' rope close to a master stake to which the spectators' rope and two safety ropes were tied. The wheel of a car got entangled in a safety rope some way away. The master stake and ropes were winched from the ground. The deceased was catapulted some 20 feet and died from his injuries. Held: It was held by the judge that: In order that the maxim volenti non fit injuria may apply there must be knowledge of the very risk which causes the injury and of the facts giving rise to that risk. There must be knowledge of the risk and agreement to bear it. It is crucial that one should know the very risk. The risk may be accepted on the basis that all reasonable precautions have been taken.  Contributory negligence: Campbell (a protected party who proceeds by his father and litigation friend) v Advantage Insurance Co Ltd Facts: The claimant, who had been a passenger in the deceased's (DB's) car, had sustained serious injuries after DB had driven his car, while drunk, directly into an articulated lorry after a night out. The claimant brought a claim for damages. The defendant insurer admitted primary liability, but alleged contributory negligence. Held: The Queen's Bench Division held that the claimant, who had also been drinking at the relevant time, had had capacity to consent to a change of position in the car, that he had also had capacity to consent to being driven in it and that he had chosen not to wear a seat belt. Accordingly, the court held that it had to make a finding of contributory negligence against the claimant and that appropriate degree of contributory fault was 20%. Exclusion of occupier’s liability – Ashdown v Williams and Sons (1957) Facts: The first defendant leased to the second defendant a part of a dock estate. The plaintiff was the second defendant’s employee. She was shown a safe long route where she saw warning notices. The plaintiff proceeded to work using the short route where flyshunting operations were carried out by the first defendant’s employees. The shunters caused a truck to injure her. The plaintiff appealed against the findings that the first defendant was not liable, but that the second defendant was liable to her for failure to warn her of the dangers of the short route. Held: The Court of Appeal, dismissing the plaintiff's appeal, held that the conditions on the short route were sufficiently brought to the plaintiff’s notice, and she was bound by the terms of that notice although she did not read the whole of it. The second defendant was not liable because she was provided with a safe route. It was not shown that the breach of the second defendant’s duty to warn her contributed to her injuries.  VICARIOUS LIABILITY DEFINITION Vicarious liability is legal liability that is imposed upon one person for torts (and is some circumstances crimes) committed by another. REQUIREMENTS 1. Establishing a Tortious Act A tort must have been committed/alleged to have been committed to commence an action. Zulhasnimar bt Hasan Basri v Dr Kuppu Velumani Held: As there was no tort established, the sixth Defendant cannot be held vicariously liable. Broom v Morgan Facts: The claimant was employed alongside her husband to run a pub. She was injured in an act of negligence by her husband. At the time, husbands and wives could not sue each other in tort and so the defendant denied vicarious liability (since the husband could not be sued by his wife, primary liability did not exist, and so the employer argued secondary liability could not exist.) Held: The courts rejected this argument, holding that the spousal immunity was from being sued, rather than being held responsible for a tort. Since the husband was not the one being sued, the immunity did not apply. 2. Relationship of Control (to Establish Special Relationship) The courts will first look for a sufficiently close relationship between tortfeasor and third party- the nature of the relationship. Dr Kok Choong Seng & Anor v Soo Cheng Lin (And Another Appeal) Held: The court must be satisfied for the cases where the relationship is analogous or akin to employment that there are policy reasons that would make it fair to impose vicarious liability on the ‘employer’. The considerations are multiple and include: (i) Employer is financially able or insured; (ii) Tort was a result of an activity done on employer’s behalf; (iii) It is part of the business activity of the employer; (iv) Risk of the tort was created by the activity; (v) Employee is under control of the employer EMPLOYEE vs INDEPENDENT CONTRACTOR Employees: Employees tend to work in one place, on a formal basis. They can often be easily identified because they will have contracts with their employers formalising their working arrangements (pay, hours etc.) Independent Contractor: Independent contractors often have multiple employers, and often have less formalised working arrangements, often being paid per job, rather than per hour. Prime examples include gardeners, electricians and private tutors. CONTRACT OF SERVICE vs CONTRACT FOR SERVICE Contract of Service: An agreement (whether orally or in writing) binding on parties who are commonly referred to as “employer” and “employee”. Contract for Service: An agreement (whether orally or in writing) binding on parties who are commonly referred to as “employer” and “employee”. TESTS TO DISTINGUISH BETWEEN EMPLOYEE AND INDEPENDENT CONTRACTORS 1. The Control Test Employees tend to have the nature of their task dictated specifically by their employer (independent contractors tend to have more personal control). Yewen v Noakes Held: The courts held that the occupier was not an employee, since he was not ‘a person who is subject to the command of his master as to the manner in which he shall do his work.’ Zedtee Sdn Bhd v Maduraya Sdn Bhd Held: The court held the defendant who engaged the independent contractor (B) was not vicariously liable for trespass and conversion as the defendant, though he prescribed the job, he left the manner of executing the job to the independent contractor. Kee Boon Suan And 2 Others V Adventist Hospital & Clinical Services (M) And 3 Others, And 3 Other Appeals COA Held: The High Court erred in holding that the hospital was vicariously liable for the alleged negligence of the doctors. The contract between the parties showed that Dr Cheok and Dr Patrick were independent contractors and not agents or employees of the hospital. They operated independent businesses free from control, interference and/or obstruction from the hospital’s management. Both Dr Cheok and Dr Patrick had specifically pleaded that they were independent contractors. Dr Wong was not an employee of the hospital at all but was brought in, with the hospital’s approval, by Dr Cheok to help in the surgery. The hospital could also not be made liable for not providing the SCM facilities as Dr Cheok and Dr Wong had never requested for them in the first place. In any case, there was no causal link or causation proved by Jun Hui and her parents against the hospital. Causation was only pleaded against the three doctors and not against the hospital.  2. Organisation/Integration Test Distinguishes between people who sign contracts of service and those who contract for service (i.e. contract to provide services). Employees tend to do work which is integral to the business’s operations, whilst independent contractors tend to do work which is ancillary to the main functions of the business. Stevenson, Jordan & Harrison Ltd v MacDonald and Evans Facts: An accountant wrote a book based on the skills and knowledge he gained during his employment by a firm. He died before the book was published. The question then arose as to who was the owner of the copyright – the accountant’s estate or his former employer. Whilst authors are the primary owners of the copyright for things they write, if something is written under a contract of employment and the work is done in the course of employment, then copyright belongs to the employer. Held: Lord Denning opted to draw a distinction between the content of the book which came directly from the firm’s employment of the accountant and that content which was merely associated with the accountant’s work. The former content belonged to the firm since it was essentially a product of the accountant’s employment, but the latter belonged to the accountant’s estate since it could be regarded as a mere accessory to the accountant’s work. This principle can also be applied to the employer versus contractor distinction. Mat Jusoh bin Daud v Syarikat Jaya Seberang Takir Sdn Bhd Facts: The plaintiff who worked as a sawyer at the defendants’ sawmill sustained injuries while carrying a log with co-worker and was consequently refused further employment at the defendant’s sawmill. In an action for damages against the defendants, liability was denied by the latter who contended that the plaintiff was not their employee but an employee of X, who was the contractor of the defendant. Held: The court held that since wages and the number of logs to be sawn were determinable by the defendants, the plaintiff work was an integral part of the defendants’ business and defendants pleaded that even if the plaintiff was held to be their employee, the accident was solely due to the negligence of the plaintiff. The court held that an employer must take reasonable care so as not to subject the persons employed to unnecessary risks, which is a duty not to subject the employee to any risk which the employer can reasonably foresee and which he can guard against. 3. The Economic Reality Test It involves examining the characteristics of the subject’s work arrangements against a checklist of signs of conventional employment. Ready Mixed Concrete Ltd v Minister of Pensions Facts: The claimant hired a number of drivers to deliver concrete, paying the drivers a fixed rate per mile. These drivers were named in their contracts as independent contractors. The drivers used vehicles which they had purchased from the claimant in order to do this. The vehicles had to be painted in the claimant’s company colours, had to bear the company’s logo, and was obliged to present their accounts in a special manner dictated by the claimant. The drivers also had to wear the company’s uniform. The drivers were responsible for maintaining the vehicles and had flexible working arrangements – they could even, if they so wished, employ a competent driver themselves to carry out the work on their behalf. The question arose as to whether the drivers were employees of the claimant or not. Held: The court ruled that the drivers were not employees. The court identified three criterias which had to be met before employee status can be granted: i) the individual must provide work or skill for the employer in return for payment or other remuneration. ii) the individual must have agreed (either expressly or impliedly) that they will work under the control of the employer. iii) the other circumstances of the individual’s working arrangements must be consistent with those of an employee, i.e., acc to their contract of service.( Look at working hours, tax, payment, equipment, independence) The court also mentioned risk as a method of determining employment status. Market Investigations Ltd v Minister of Social Security Facts: The claimant – a market research company – employed a number of individuals to carry out surveys on their behalf on a part-time basis. These part-time employees worked on a job-by-job basis, could work for other firms, received neither sick pay nor holiday, and both parties signed contracts for services (as opposed to ‘of service’.) As in Ready Mixed Concrete, a question arose as to who was responsible for the part-timers’ National Insurance contributions. Held: In a somewhat eccentric result, the High Court ruled that the part-timers were employees, on the basis that the part-time employees could not be considered as working on their own account, but rather were carrying out the functions of the claimant company. 3. Tortious Act Must Be In The Course of Employment An employer is not responsible for all of the acts one of their employees carries out. It would be absurd if an employer was held liable for a car crash one of their employees caused on their day off. Poland v Parr & Sons (implied authority) Facts: The defendant’s employee believed that some children were stealing the defendant company’s property. He struck one of the children, seriously injuring him. Held: It was held that although this was an unreasonable act, it was still done under his employer’s implied authority. The court noted that in general employees have an implied authority, in an emergency, to protect their employer’s property (although the bench also noted that there was a limit if, for example, the employee had shot at the boy, this would be beyond implied authority.) The claim, therefore, succeeded. Century Insurance v Northern Ireland Road Transport Board (authorised acts in an unauthorised/careless manner) Facts: A driver was employed by the defendant company to deliver petrol. Part of this task involved transferring the petrol from his lorry to a storage tank at the destination. Whilst doing this, the employee lit a cigarette, threw the match to the ground, and caused an explosion. Held: The defendant was held vicariously liable for this conduct. Although the employee’s conduct was clearly careless, he was nonetheless in the process of carrying out an authorised act – delivering petrol. Beard v London Omnibus Co (distinction with the Century Insurance) Facts: A bus conductor (i.e. not a driver) was at the bus depot, and realised that a bus was urgently needed for its next journey. He could not find the driver, and so decided to drive the bus around to the front of the depot, so that it was ready to go. In doing so, he injured a mechanic working in the depot. A claim was made against the employer bus company. Held: The courts rejected vicarious liability – the conductor was acting outside of the course of his employment. LONDON COUNTY COUNCIL V CATERMOLES (GARAGES) LTD (explicitly prohibited acts) Facts: A garage worker was instructed to remove vehicles in the garage, but was expressly prohibited from driving them. He drove a van out of the garage onto the road to make room for another vehicle. On the road, he collided with the plaintiff. Held: The employers were held to be vicariously liable as the act was done in the course of employment – the act was related to the job – was done for the benefit of the employer. Lister v Heyley Hall Ltd Employer school was found vicariously liable for their warden’s acts of sexual abuse on boys in a boarding school.  STRICT LIABILITY DEFINITION Rylands v Fletcher Facts: Defendant was a mill owner and employed independent contractors to build a reservoir on his land for the usage of his factory. There were iron shafts beneath the reservoir. The shafts went through a mining area connected to the plaintiff’s mine. The independent contractors were negligent for not blocking the shafts that were no longer in use. The defendant did not know about the shafts. Because of that, the plaintiff’s mine was flooded when the reservoir was filled with water. Held: Though the defendant was not negligent, neither they were vicariously liable for the negligence of the independent contractors, HOL held that the defendant was liable. ELEMENTS OF STRICT LIABILITY 1. Dangerous things likely to cause damage if it escapes Ang Hock Tai v Tan Sum Lee Facts: Plaintiff rented a shophouse, where he and his family lived on the first floor. He sublet the ground floor to the defendant who operated a tire shop. The defendant kept petrol for his usage in the shop. One day, the shop caught fire and the petrol caused the fire to widespread to the first floor killing the plaintiff’s family. Held: Defendant was found liable under the rule of Rylands v Fletcher as petrol was a dangerous thing. Miles v Forest Rock Granite Co (Leicestershire) Ltd Facts: Defendant used some explosives to blast rock on his land and some rocks ‘escaped’ his land and injured the plaintiff. Defendant was held liable for the deliberate accumulation of the explosives that resulted into the plaintiff’ injuries. Held: The rock-blasting was held to be a non-natural use of land. SMITH v KENRICK(1849) Facts: Water had flowed from the defendant’s mine into the plaintiff’s mine. The defendant had merely dug holes in the ordinary course of mining and the water flowed into the other mine by gravitation. Held: He was not liable. 2. Intentional storage/accumulation by defendant Rainham Chemical Works v Belvedere Fish Guano Facts: X and Y set up a company with Z Ltd, operating as a factory. The function of Z Ltd was to perform a contract entered into by X and Y, with another party, to manufacture explosives. So, Z was a licensee. A catastrophic explosion occurred and damaged neighbouring properties and killed many. Held: HOL found Z liable as the licensee accumulated the thing. X and Y were also liable, as they had common intention as described in the contract entered. Giles v Walker Facts: Defendant ploughed his land and left it unattended. Thistles escaped and grew on the plaintiff's land. Held: Thistles are natural growth; defendant was not liable. Court observed the correct action should be private nuisance, not SL. An occupier of a land cannot be held liable for damage caused by things that grow naturally and after that, escaped naturally (or even act of god) from his land, (ex: wind, earthquake etc) or escape was not caused by his act. 3. The things escape (and caused damage to the plaintiff) - Escape to a place where the defendant has no control and authority (the plaintiff’s place). Weng Lok Mining Co Ltd v Hiap Lee Brickmakers Ltd Court observed that escape must be proven before rule under Rylands’ case can be applied. Ponting v Noakes Facts: The plaintiff’s horse reached its head into the defendant’s land and ate the poisonous leaves of a yew tree which was planted on the defendant’s land. Held: No liability on the defendant as the tree and its leaves did not escape the defendant’s land. Milik Perusahaan Sdn Bhd v Kembang Masyhur Sdn Bhd Held: Defendant was found liable as their earthwork activities resulted into mudslide and soil deposits on the plaintiff’s adjoining land situated at the lower-level. Abdul Aziz bin Awang @ Muhammad & 99 ors v Tenaga Nasional Berhad Facts: The defendant owned a dam and operated it. The defendant’s workers released water from the dam in October 2013, caused massive flood and destroyed the plaintiff’s properties (plaintiffs were residents, business owners, farmers) in Bertam Valley, Cameron Highland and caused loss of 4 lives. Read v. Lyons & Co Facts: Where an employee suffered an injury due to an explosion in a shell manufacturing company owned by the defendant. Held: It was held such could not be covered under strict liability principle as nothing escaped from the defendant’s premises. * Caused damage to the plaintiff’s place/land - There must be damage suffered by the plaintiff as a direct consequence of the dangerous thing that escaped. Musgrove v Pandelis Held: The court set up 3 conditions to prove damage caused by spread of fire: i. Defendant has brought onto their land things that could cause fire and kept them in such a way that if it ignites, fire would spread to plaintiff’s land; ii. Defendant had brought things onto his land in the course of some non-natural use of land; iii. The things ignited and fire spread.  4. Non-natural use of the land “Non- natural use” was explained by Lord Moulton in Rickards v Lothian : “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” Rainham Chemical Works V Belvedere Fish Guano(1921) Non-natural use of land – to manufacture weapons for WW1. Cambridge Water Co. V Eastern Counties Leather(1994) Storing of chemicals in a substantial quantity was held to be a non-natural use of land even in an industrial complex. Pontardawe RDC v MooreGwyn(1929) Facts: Rocks from defendant’s land fell on plaintiff’s land due to change in the weather. Held: Defendant not liable because he did not accumulate the rocks – rocks were on the land naturally; escape was not due to defendant’s act. Crowhurst v Amersham Burial Board(1878) Facts: Defendant planted a yew tree, a poisonous tree. The branch and leaves went inside the plaintiff's land and the horse ate it. Horse died. Held: Defendant liable because such poisonous tree was not a natural grown – accumulated by defendant unnaturally on his land and escape, basically by not taking precaution that it could escape and cause damage. Transco plc v Stockport Metropoliton Borough Council Facts: The court observed only where the defendant’s use is shown to be extraordinary and unusual the rule in Rylands v Fletcher applies – the argument for the general benefit of the community alone is insufficient. Held: The presence of water in a pipe, though in a large quantity, was a routine function and that it did not raise any special hazard. Water in a pipe was not a dangerous thing and was not unusual or was not non-natural use. Petronas Gas Bhd v DWZ Industries (Johor) Sdn Bhd Held: The collection of highly acidic industrial effluent in the inside sump amounted accumulation on defendant’s land that if it escaped, it could cause damage. Defendant opted not to treat it, rather let it escaped to inland waters through the construction of the fitting on the plaintiff’s land which was indeed a non-natural use of land. 5. The damage is foreseeable Cambridge Water Co. Ltd. V Eastern Countries Leather (1994) Facts: The gradual spill of chemical in the defendant’s leather factory. It seeped to 50 metres below the ground then spread to the plaintiff’s water supply. Plaintiff had to spend about £1 million to find and operate another borehole. Plaintiff sued the defendant. Held: The High Court dismissed the claims for negligence as it was unforeseeable that the spillage would accumulate underground and damaged plaintiff’s water supply. On SL, the court held that defendant’s activity was not non-natural by considering the public benefit in the form of employment. As well, the damage could not be foreseen. The COA reversed the decision and found defendant was liable for nuisance, not SL. HOL affirmed the decision of the High Court as both torts of SL and nuisance require foreseeability of damage. If damage is not foreseeable, defendant cannot be held liable. Thus, although the use of the land was natural, defendant was not liable because the damage was not foreseeable. STRICT LIABILITY FOR PERSONAL INJURY Hale v Jennings Brothers Facts: Plaintiff was a tenant of a stall in a fest. He got injured as a result of an escape of the defendant’s “chair-o-plane.” Held: Plaintiff was awarded damages under the rule of R v F. - Claims for personal injury can succeed under rule R v F only. Some other cases, like Cambridge Water and Read v Lyon, personal injury in SL action might not be recoverable. POSITION IN MALAYSIA - Upholds rule of R v Fletcher. DEFENCES 1. Consent of The Plaintiff AG v Cory Brothers Ltd It was observed that if the plaintiff either expressly or impliedly consents to the existence of the dangerous thing, the defendant is not negligent in any way, the defendant will not be liable for any escape and resulting damage. *The dangerous thing was a mass of rubbish with some 500,000 tons of mineral waste – later on there was a landslide (‘rubbish’ slide). Peters v Prince of Wales Theatre Facts: The claimant leased a shop adjacent to a theatre from the defendant, the owner of the theatre. The claimant’s shop sustained flood damage when pipes from the theatre’s sprinkler system burst due to icy weather conditions. The claimant brought an action based on liability under Rylands v Fletcher. Held: The defendant was not liable. The sprinkler system was equally for the benefit of the claimant and the claimant was deemed to have consented to the use of the sprinkler system since it had been installed prior to him obtaining the lease. Sheikh Amin b. Salleh v Chong Hup Seng Facts: Plaintiff owned 8 terrace houses, four were rented by the defendant. The plaintiff knew that defendants were using the houses to operate his bakery, one day, a fire broke out due to the defendants’ negligence and destroyed all the houses. Held: Plaintiff consented to the activity of the defendants and thus, rule R v F could not apply. Comment – since the defendant was negligent, should the plaintiff’s consent have been irrelevant to the issue of his liability? Implied consent – is where defendant could raise the defence on the fact that nobody (neighbour/businesses/ residence etc) complains about his use of land/premise/place.  2. Common Benefit Carstairs v Taylor Facts: Plaintiff rented the ground floor of a factory from the defendant. Defendant occupied the above floor. Water from the roof was collected through gutters which were connected to a box to some pipes and released to the drains. Rats made holes in the box. As a result, water dripped from it and destroyed plaintiff’s property. Held: Defendant was not liable because the way how the water was channeled out benefitted both parties. 3. Act of a Third Party ‘Whether that person acts outside the defendant’s control?’ if yes, then the person is a third party. But, if defendant could foresee the act of the third party, defendant may still be held liable. Rickards v Lothian(1913) Facts: A third party deliberately blocked the waste-pipe of a lavatory basin in the defendant’s premises and then turned the water tap. Water overflowed and damaged the plaintiff’s property situated in the floor below. Held: Defendant was not liable. Box v Jubb Defendant’s reservoir overflowed and damaged plaintiff’s property. The cause of the overflow was the defendant’s neighbour’s reservoir which flooded the defendant’s then damaged to plaintiff’s property. 4. Act of God Nichols v Marsland (1876) Facts: Defendant owned many artificial lakes. Heavy rain caused artificial embankment of the lake to collapse and water from the lake swept away four bridges in the nearby area. Held: Defendant not liable as he was not negligent; it was not reasonably foreseeable and was an act of God. Greenock Corporation v Caledonian Railway Co Facts: An extraordinary heavy rainfall caused the defendant’s pool to flood, then water escaped to the highway, then to the plaintiff’s land and destroyed their property. Held: Court rejected the defence of act of God because the defendant had been messing with the course of a stream for the purpose of collecting and damming up water. For doing so, the defendant had the duty to ensure the safety of people staying on lower ground. The defendant ought to have substituted the channel to carry off water brought down even from a heavy rainfall, which they did not. Hoon Wee Thim v Pacific Tin (1966) Heavy rainfall in a tropical country, such as Malaysia does not qualify the use of such defence, because of frequent occurrence. 5. The Plaintiff’s Default If the damage was caused by the plaintiff’s own action or wrongdoing, his claim will fail. If he contributes to the damage, he may be held to contributorily negligence. The defence may also be raised in the event where the damage was due to the sensitivity of the plaintiff’s property or its sensitive nature. 6. Statutory Authority Liability will not be imposed on the defendant if the defendant was acting under authority of a statute. If a statute imposes a duty on the defendant to do something and consequently caused damage to the plaintiff, the defendant is not liable. Example: power of a local authority under s. 72(1)(a)- (j) Local Government Act 1976.  NUISANCE PRIVATE NUISANCE DEFINITION Private nuisance consists of unlawful, substantial and unreasonable interference with the plaintiff's use, comfort or enjoyment of land, or of some right over or in connection with it. Categories of Private Nuisance: 1. Nuisance by interference with neighbour's quiet enjoyment of his land. Ex.: Defendant putting on radio on high volume in the middle of the night disturbing plaintiff’s sleep routine 2. Nuisance by direct physical injury to a neighbours' land Ex.: dust from defendant’s quarry factory that caused plaintiff to suffer from severe coughs. 3. Nuisance by encroachment on a neighbour’s land – caused physical damage. Ex.: a tree branch or tree root from defendant’s land entered into plaintiff’s land and damaged plaintiff’s fencing/damaged plaintiff’s house etc. ELEMENTS TO ESTABLISH PRIVATE NUISANCE 1. SUBSTANTIAL INTERFERENCE - whether an interference is substantial or not, it is a question of fact – Hotel Continental Sdn. Bhd. V Cheong Fatt Tze Mansion (2002) Court decided that the piling works on defendant’s land was a substantial interference as it caused cracks on plaintiff’s building – among other things.  2. UNREASONABLENESS Plaintiff needs to prove that the nuisance is unreasonable. It is a question fact. There are some factors that need to be considered: i) Location of plaintiff’s premise and defendant premise. St. Helen’s Smelting Co. v Tipping (1865) Facts: Plaintiff owned a rubber estate situated in an industrial area. Smoke from defendant’s factory damaged plaintiff’s trees. Held: The court considered the location/locality. But in deciding this case, the court held that when there is physical damage, locality is IRRELEVANT because a land-owner must be protected from physical damage no matter where he is. The claim was allowed. Syarikat Perniagaan Selangor Sdn. Bhd. V Fahro Razi, Mohdi & ors(1981) “People who lived in the urban area must be prepared to accept noise, but no one, however, has the right to create excessive noise which is unreasonable and is a nuisance.” ii) Public benefit of the defendant’s activities. Miller v Jackson (1977) Although throws of the cricket ball frequently entered plaintiff’s land was a nuisance, the appeal court refused to allow injunction as applied because the game activity benefited the public. The benefit derived from the activity superseded plaintiff’s right. Perbadanan Pengurusan Taman Bukit Jambul v Kerajaan M’sia (2001) Defendant renovated units in a flat (managed by the plaintiff) to set up a government clinic – not unreasonable as it benefitted the public – not a nuisance. iii) Interference must be continuous Motherwell v Motherwell Held: A legal owner can obtain an injunction to restrain persistent harassment by unwanted telephone calls to his home on the ground that the calls constituted a private nuisance. Spicer v Smee (1946) Facts: Plaintiff’s house was burnt down due to defective wiring system in defendant’s house Held: Court decided it was a nuisance as there was a dangerous state of affairs on his premises. Sedleigh-Denfield v O’Callaghan Held: Defendants were held liable for allowing a culvert on their land to remain blocked and flooded the plaintiff’s land. iv) Extraordinary sensitivity of the plaintiff. Robinson v Kilbert (1889) Facts: Defendant operated a business producing paper boxes and the process involved using hot air. Plaintiff in the floor above operated business of selling special paper which was sold according to weight. Plaintiff argued that the hot air from defendant’s place caused his special paper to dry (became lighter in weight, thus cheaper). Held: the hot air did not cause inconvenience to the plaintiff’s workers and that it would not affect ordinary paper – claim was denied as plaintiff’s property (paper) was extra sensitive. v) Malice - bad intention of the defendant Christie v Davey Facts: Plaintiff was a music teacher and conducted her music classes from her house. The defendant, the neighbour, did not like the sound from the musical instruments and made noises such as shouting, banged on the adjoining walls, clashed pots and pans when plaintiff was conducting her classes. Held: Defendant was malicious in his actions and granted injunction for the plaintiff. PUBLIC NUISANCE DEFINITION UDA Holdings Bhd v Koperasi Pasaraya Malaysia Bhd Public nuisance is an act or omission which inflicts damage, injury or inconvenience on subjects of the State or on members of a class or a neighbourhood, and it might affect some members to a greater extent than others. Attorney-General v PYA Quarries Ltd Court held that public nuisance arises when the act materially affects the reasonable comfort or convenience of a class/group/category of people. DIFFERENCE BETWEEN PUBLIC AND PRIVATE NUISANCE Public Nuisance Private Nuisance An act or omission which inflicts Consists of unlawful, substantial damage, injury or inconvenience on and unreasonable interference subjects of the State or on members DEFINITION with the plaintiff's use, comfort or of a class or a neighbourhood, and it enjoyment of land, or of some might affect some members to a right over or in connection with it. greater extent than others. The claimants in a public nuisance The claimants in a private case are generally the community CLAIMANTS nuisance case are individuals or or the public (ex: Public specific groups of people whose Prosecutor).However, individuals use or enjoyment of their property may sue if they can show that they is directly impacted by the have suffered special damage over nuisance. and above what the general public has suffered. Kinds: Private nuisances typically involve: Kinds: Public nuisances can take Physical damage to property (e.g., various forms such as: flooding caused by a neighbor’s Obstructing a public highway faulty drainage) Polluting a river used by the public Interference with comfort or NUISANCE convenience (e.g., noise, smell, or Operating an unlicensed hazardous vibrations) activity in a residential area Encroachment on property (e.g., Nature: The focus is on the broader overhanging branches or roots) impact on the community or public rights. Nature: The focus is on the specific impact on an individual's use and enjoyment of their land. Tort: Public nuisance can be pursued as a tort when individuals or the community seek compensation or injunctions for the Tort: Private nuisance remains harm caused. strictly a tort. The affected LEGAL NATURE individuals can seek remedies Crime: Public nuisance can also be such as damages or injunctions to prosecuted as a criminal offense, stop the nuisance. especially when the nuisance poses a significant threat to public safety or order.  REMEDY DEFINITION It refers to when a troubled party is seeking to obtain some relief for the harm caused by the actions or negligence of another party. Remedies aim to compensate the injured party for their losses and restore them, as much as possible, to the position they were in before the unlawful act occurred. Lim Poh Choo v Camden and Islington Area Health Authority Lord Scarman: Compensation should nearly as possible put the party who has suffered in the same position as he would have been in if he had not sustained the wrong. JUDICIAL REMEDIES DAMAGES 1. CONTEMPTUOUS DAMAGES The amount of money awarded by the court, in this case, is very low, as to show the court’s disapproval, that is when the plaintiff himself is at some fault and cannot wholly be said to be ‘aggrieved’. Reynolds v Times Newspapers Held: The first two courts awarded the claimant 1 penny of damages (and the third ultimately found for the defendants). It should be noted that the issue of costs can mean the defendants still have to pay more than the single penny, but at the same time a court that believes a claim to be frivolous is likely to be equally harsh on the claimant when making their costs decision. 2. NOMINAL DAMAGES The compensation awarded is a recognition by the court that the plaintiff’s rights have been violated. This compensation is usually given when the plaintiff has not suffered any injury or damage as a result of the defendant's actions such as in the case of trespassing on land that does not involve any damage. The amount of damages is only small. Constantine v Imperial Hotels Ltd (1944) Held: The defendant committed a breach of duty as innkeeper because the defendant’s refusal to provide accommodation to the plaintiff was considered inappropriate. The plaintiff was awarded damages of 5 guineas (+RM2). Tay Tuan Kiat V Pritam Singh Thean J : On the Q of damages, there is no evidence that the plaintiffs have suffered any damage or loss as a result of the trespass…I therefore award to the plaintiffs only nominal damages in a sum of RM500. *look for Fell v Knight 3. AGGRAVATED DAMAGES This compensation is awarded when the court finds that the plaintiff suffered not only physical injury or financial loss such as loss of job, loss of contract but the plaintiff also felt shame, emotional pain as a result of the defendant's actions. M.G.G Pillai v Tan Sri Dato' Vincent Tan Chee Yioun The Court of Appeal has awarded damages amounting to RM10 million to the respondent/plaintiff. Gopal Sri Ram HMR: Damage to a person’s reputation, compared to physical injury, may cause him just as much, if not more, harm. As such, this Court must record its strong disapproval of any judicial policy that tends towards giving small damages for defamation. And no one, especially a journalist, should be relieved to think that a person's reputation can be arbitrarily damaged for the sake of only paying a few thousand ringgit in damages. The time has come for this Court to send a strong and clear signal that defamation is not a cheap act. 4. EXEMPLARY DAMAGES These are the highest in amount. Punitive damages are awarded when the defendant has excessively been ignorant of the plaintiff’s rights and great damage has been caused to the defendant. The objective here is to create a public example and make people cautious of not repeating something similar. Rookes v Barnard (1964) Lord Devlin: Exemplary damages can be awarded in three categories as follows: (i) Oppressive, arbitrary, unconstitutional actions done by servants of the government. “…in the case of the government it is different, for the servants of the government are also the servants of the people and the use of their power must always be subordinate to their duty of service”. (ii) The defendant’s act has been done ‘with guilty knowledge, for the motive to the chances of economic advantage outweigh or exceed the chance of economic or perhaps physical penalty’. (iii) Statute allowed. Quantum Petroleum (M) Sdn Bhd & Anor v Manimaran Periasamy & Ors The court may exercise its discretion to award aggravated damages in defamation cases as explained in Sistem Televisyen Malaysia, at pg 33, as follows: “In most defamation cases, aggravated damages are often claimed together with exemplary damages. But then it is not the same and must be differentiated from the punitive purpose of exemplary damages; in that aggravated damages is still compensatory in nature. Thus, the court awarded the aggravated damages (ganti rugi meruncing) based on the following facts: The Plaintiffs did not plead in this case that the Counterclaimants had stolen the 1st Plaintiff’s “technology” and yet, the 2nd Plaintiff testified regarding such an averment during his cross-examination; (2) the publication of the Defamatory Imputations was moved by the 2nd Plaintiff’s hatred for the 1st Defendant; etc. Goh Sze Ching v Pizza Hut Restaurant (2011) Facts: The plaintiff eat a pizza that have cockroaches’ legs in it and suffered stomach ache. Held: The court granted exemplary damages because of three reasons: (i) To give lessons to the offender (pizza hut) (ii) Punish the offender (iii) To protect the public interest (health) INJUNCTION Injunction is an equitable remedy available in torts, granted at the discretion of the court. An equitable remedy is one in which the court, instead of compensating the aggrieved party, asks the other party to perform his part of the promises. So, when a court asks a person to not continue to do something, or to do something positive so as to recover the damage of the aggrieved party, the court is granting an injunction. Interim Injunction An interim injunction is a temporary order of the court directing a party to do any act or abstain from those acts. The purpose of an interim injunction is to secure quick relief from the court, pending a fuller inquiry into the situation. As a result, only one party usually asks for an interim injunction in the absence of another (on an ex parte basis) and only when the need is urgent. Interlocutory Injunction Interlocutory injunctions aim to preserve the status quo in a lawsuit by ordering a party to do something or stop doing something pending the end of the matter. A party that requests an interlocutory injunction must give the other party a chance to respond to their allegations. Permanent Injunction The court orders a permanent injunction as part of its judgement after deciding a case. The injunction orders a person or entity to carry out an act or desist from those acts in perpetuity (forever) or until a named period. Mandatory Injunction Injunctions of this nature compel an action. The court issues them when a party wants another to do something that they believe will cause them harm or loss if it doesn’t get done. Eg: to compel to move the wall or fence etc. Redland Bricks Ltd v Morris Facts: The claimants (Morris) and defendants (Redland Bricks) were neighbouring landowners. The defendants ran a quarry, and their activities caused subsidence in the claimants’ land, which was used for market gardening. It was predicted that this subsidence would continue, making the claimant’s land unsuitable for gardening. The trial judge granted a mandatory injunction against the defendants, ordering them to take action to remedy the subsidence problem. The defendant then appealed this injunction. Held: The court allowed the appeal against the injunction - the cost of dealing with the subsidence was £35,000, and part of the claimant’s land that required protection was only worth £1500. Damages were applied instead. The court identified four criteria which should be satisfied before a mandatory injunction would be granted. Tay Tuan Kiat v Pritam Singh Facts: In this case, the plaintiff requested that the court grant a mandatory injunction for the defendant to destroy and move the retaining wall and build a new wall within the defendant's area. Held: The court order that the defendant to move the chain-link fence located above the retaining wall and build it along the common border without entering the plaintiff area. The defendant will also have to remove the structure included in the plaintiff's area. Prohibitory Injunction These are the opposite of mandatory injunctions. The court issues them to command a party to stop doing acts, usually to arrest continuing harm to the applicant. For instance, if the police wrongly detained you, a prohibitory injunction can stop the police from ever detaining you again over the same issue. Eg: the defendants’ crane regularly trespassed. Wollerton and Wilson Ltd v Costain Ltd Facts: The defendants’ crane regularly trespassed onto the claimant’s land. There was little actual harm, and so an award of damages would be so low that the defendant could pay them and then carry on with their trespass behaviour. Instead, an injunction was used to prevent the behaviour from reoccurring. Held: The courts won’t always grant an injunction if the tortious behaviour is trivial, or if the defendant is not at fault. Armstrong v Sheppard and Short Ltd Facts: The defendant came to the claimant and asked his permission to build a sewer and manhole cover at the rear of the claimant’s property. The claimant thought the land belonged to the defendant, and granted permission. When he discovered that he actually owned the land, he came to the court for an injunction prohibiting the trespass onto his land, despite it causing no inconvenience to him. Held: The court rejected the application for an injunction. The interference was trivial (useless), and the claimant had effectively consented to the trespass, meaning that the defendant could not be described as being at fault. Mareva Injunction This is one of the special injunctions. A party may ask for a Mareva injunction when they believe the defendant wants to preempt the court’s decision and frustrate any potential order by moving their assets out of jurisdiction. The order stops the defendant from transferring or selling assets until the case is concluded and the applicant can enforce judgment. Anton Piller Injunction Anton Piller injunctions are also special injunctions. They apply where an applicant alleges that someone has violated their right and remains in possession of the evidence. The injunction gives the applicant power to enter any premises under the defendant's control and seize any related evidence or infringing material there, then bring it before the court. Quia Timet (‘because he fears’) Injunction Used when the claimant fears a tortious action will occur, but it has not yet taken place. They are often seen in situations in which the tortious action will do irredeemable damage if it occurs, such as defamation and privacy cases (once the information is out there, the genie cannot be put back into the bottle.) The prerequisites which must be fulfilled before they are granted were also mentioned in Redland Bricks: there must be evidence that the defendant is intending to take an act; that act must be one which will cause significant irreparable damage to the claimant; and there must be evidence that the defendant will not desist unless a quia timet injunction is granted. Final Injunctions Those which are granted after a tort has been committed, but where it is likely that the tort will reoccur. This might be an order to stop holding noisy warehouse parties, or an order to stop a series of threating phone-calls. Interim (or Interlocutory) Injunctions Apply whilst the tortious activity is ongoing (or else where there is a high chance of it reoccurring in the near future). They are used primarily as a means of stopping a defendant from acting in a certain way whilst the matter is resolved by the courts, especially where the behaviour would we highly detrimental if it were allowed to go ahead (see privacy, defamation). By definition, they are temporary. Their use is particularly restrained, since they are essentially a remedy which is applied before a case has been properly heard. The criteria for an interim injunction are found in American Cyanamid v Ethicon. American Cyanamid v Ethicon Facts: American Cyanamid claimed that this surgical suture was in breach of their patent. At the first instance, American Cyanamid was granted an interim injunction against Ethicon, preventing Ethicon from using the type of surgical suture at issue until the trial of the patent infringement. Both the claimant and defendant companies manufactured surgical sutures. The claimants alleged that the defendants were breaching a patent that they held, and thus came to the court for an interim injunction whilst the patent dispute was resolved. Held: The court laid down a two-part test to be met before an interim injunction could be granted. [i] The first part of the test involved the claimant showing that the issue at hand was serious enough to warrant an interim injunction - so interim injunctions will not be granted in trivial (useless) situations. [ii] The second part of the test involves the claimant demonstrating that, on the ‘balance of convenience’, it would essentially be more sensible for the court to grant the interim injunction. The claimant will be arguing that the damage they will incur whilst waiting for the proper trial to be completed cannot be easily remedied with damages if their case is successful. The defendant will be arguing that this is not the case, and that the court shouldn’t risk applying an injunction to the behaviour of a possibly innocent party. If the court regards both sides’ arguments as being balanced, they will opt in favour of the status quo (i.e. the defendant will be able to carry on). SPECIFIC RESTITUTION OF PROPERTY The third judicial remedy available in the Law of Torts is that of Specific Restitution of Property. Restitution means restoration of goods back to the owner of the goods. When a person is wrongfully dispossessed of his property or goods, he is entitled to the restoration of his property. EXTRA-JUDICIAL REMEDIES When a person can lawfully avoid or remedy himself without the intervention of courts, the remedies are called extra-judicial remedies. In this, the parties take the law in their own hands. EXPULSION OF TRESPASSER A person can use a reasonable amount of force to expel a trespasser from his property. The two requirements are: The person should be entitled to immediate possession of his property. The force used by the owner should be reasonable according to the circumstances. Illustration: A trespasses into B’s property. B has the right to use reasonable force to remove him from his property and re-enter himself. RE-ENTRY ON LAND The owner of a property can remove the trespasser and re-enter his property, again by using a reasonable amount of force only. RE-CAPTION OF GOODS The owner of goods is entitled to recapture his/her goods from any person whose unlawful possession they are in. Re-caption of goods is different from specific restitution in that it is an extra-judicial remedy, in which the person need not ask the court for assistance, instead, takes the law in his own hands. Illustration: If A wrongfully acquires the possession of B’s goods, B is entitled to use reasonable force to get them back from A. ABATEMENT In case of nuisance, be it private or public, a person (the injured party) is entitled to remove the object causing nuisance. Illustration: A and B are neighbours. Branches of a tree growing on A’s plot enter B’s apartment from over the wall. After giving due notice to A, B can himself cut or remove the branches if they’re causing him a nuisance. DISTRESS DAMAGE FEASANT Where a person’s cattle/other beasts move to another’s property and spoil his crops, the owner of the property is entitled to take possession of the beasts until he is compensated for the loss suffered by him.