NATURE OF LAW OF TORTS

Introductory Lecture
Dr. Sonny Zulhuda

Outline
Definition
Elements of Tort
Legal Wrong
Legal Damage
Legal Remedy

Aims and Objectives of Tort

Interests protected by Tort
Forms of Liability
Modes of Liability

Introduction

The objective of law of tort is to ensure those who suffer wrongs can be
compensated and future incidents can be prevented through civil
legal mechanism, i.e. civil law.
It does not include non-civil law such as administrative law and criminal
law.

Introduction

If this LIMIT is BREACHED, a RIGHT has been WRONGED, and it

amounts to INJURIES or LOSS or DAMAGE.
Damage: in the forms of monetary/financial, property, reputation or
bodily injury.
Those who are responsible in causing this DAMAGE, would therefore
be LIABLE to compensate the losses to those who suffer personally.
This is governed by LAW OF TORTS.

Breaching the Limit = Wrong =

Tort

Definition
Literally: wrong
Technically:
A wrongful act or omission by a person, not authorized by law
Such act/omission encroaches to others interest which is
protected by law i.e. legal injury
Such encroachment may/may not result in actual or physical
damage
The person wronged is entitled to a legal remedy

Tort as law: a branch of private law that deals with the

types of tortious acts and the matters incidental thereto
such as the remedies.

Elements of the
Wrongdoing

Elements
Important maxims:
Ubi jus ibi remedium where there is right
there is remedy
Injuria sine damno; wrong without damage
see: Ashby v White (1703)

Damnum sine Injuria; damage without

wrong
see: Bradford Corporation v Pickles [1895]

Objectives of torts law

The law of torts is concerned with the
redress of wrongs or injuries by means of a
civil action brought by the victim. (Rogers)

ALLOCATION of
LOSSES

PREVENTION
of LOSSES

Interests protected in Torts

law
Four kinds of interests protected against infringement under
law of torts:
1.
2.
3.
4.

Person
Property
Financial
Reputation

COMPARE: The five necessities (dharuriyyat khams) under

the Islamic jurisprudences maqasid syariah!
1.
2.
3.
4.
5.

hifdz
hifdz
hifdz
hifdz
hifdz

ad-din
an-nafs
al-aql
an-nasl
al-mal

Forms and Modes of Liability

Forms
Primary liability
Vicarious liability

Modes
Negligence
Intentional
Strict liability
Statutory liability

Is Intention required to prove torts?

Yes, eg.
Trespass
Defamation

No, eg.
Tort of Negligence
Tort under the Rule of
Rylands v Fletcher
(i.e. Strict liability)

Sources of Law of Torts in

Malaysia
Statutes (Acts of Parliament)

Parties to tort

Individual (natural person)

Corporation (artificial person)
State/Government
Spouses
Minors

Suit by and against Government?

Statutory requirements under the Government Proceeding Act
1956
Basically the Govt may sue or be sued upon circumstances
provided in the Act
Govts liability in tort can be found in s. 5 of the Act; equaling
Govt-officer like Principal-agent. However the suit must also
have been brought against the officer personally.

Between
Spouses?
Section 4A of the Married
Women (Amendment) Act
1994 on the Capacity of
husband and wife to sue each
other for personal injuries.

A husband or a wife shall be

entitled to sue each other in tort
for damages in respect of injuries
to his or her person, as the case
may be, in the like manner as any
other two separate individuals.

Minors?
Minors?
In Malaysia: below 18 yrs
(sec 2, the Age of Majority
Act 1971)
Minors liability in tort is
like Adults liability but
must sue or be sued by the
guardian ad litem.
Different situation for
minors liability in contract

Differences between WRONG under

different branches of law
MATTER

TORTS LAW

CONTRACT
LAW

CRIMINAL
LAW

Objectives?
Disputing
Parties?
Courts and
Procedure?
Sanctions?
Types of
Damages?
Sources of
Law?

D
N
A
E
R
A
P
COM TRAST!
CON

Syariah Perspectives
Torts Law in Syariah perspective:
Explore from the Quran and Hadith
of Prophet!