Tort

TORT LAW

Overview

People commonly mistaken tort law same as criminal law. A tort is a civil wrong against an individual or a number of individuals whereas a crime is an offence against the State. A civil proceeding is brought by the injured party whereas criminal action is brought by the state through Public Prosecutor. The biggest difference is under tort law, the remedy is compensation while criminal gives out punishment such as fine and life sentence.

In Malaysia, there is no statutory Act which specially governs tort law. The sources of tort law are:

  1. English common law which is codified into Malaysia law by Civil Law Act 1956. What it means are the law applicable in English before year of April 1956 will be applicable in Malaysia as long as it suits local circumstances;
  2. Defamation Act 1957 which only regulates the law of defamation.

Common scenarios faced by You

In a situation involving adjoining land with different owners, the boundaries between lands are not clear, especially in agricultural land or empty land. It is unlike industrial and residential buildings where the marks between both lands are laid out. The problem arises when an owner intentionally/ mistakenly cross the boundary to the other land. The question is, what constitutes a trespass to land?

The law of negligence not only evolve around the field of professionals but also among citizens. The question is whether individual can take action against the wrongdoer for negligence as they are uncertain what makes up tort of negligence?

Solutions for You

There are 3 requirement to constitute a valid trespass to land as follow:

  1. act of the trespasser entering the land which is in possession of another. (what it means is the wrongdoer entering the land of the other owner without his consent);
  2. After entering the land, the trespasser must continue to remain on the land;
  3. Thirdly, the trespasser placed object on the plaintiff’s land

For the trespasser, the common defence raised is the owner’s acquiescence to the trespassing. Acquiescence means consent. To succeed in this defence, the trespasser must show that the plaintiff(owner) had knowledge of the affairs of land and agreed to such state of affairs.

For anyone to succeed in action for negligence, there are 3 elements that must be satisfied namely:

  1. Duty of care exists between the parties. In case of Caparo v Dickman [1990], the court laid down 3 requirements which all must be satisfied to make up duty of care:
    1. damage is reasonably foreseeable;
    2. there is close relationship of proximity between the parties;
    3. It is fair and reasonable to impose the duty
  2. breach of duty;
  3. damage is caused.