To clearly marking out the territory of tort law, it is traditional to compare tort liability with the types of liability that has a close connection. Tort law has more in common with the law of contract, but there are connections and overlaps with criminal law, actions for breach of trust and the more recently recognised law of restitution14. Tort and contract may overlap where the same wrong may be both a breach of duty, which constitutes a tort, and also a breach of contract.
A person, who owes a duty to another to exercise reasonable care and skill in some activity, breached that duty, gave him a rise to a claim in tort despite the fact that the activity is the subject-matter of a contract with another. However, distinction can be made as the contract law was concerned with the obligation to fulfill undertakings voluntarily made but the obligation underlying torts is one to refrain from violating other's legally recognized rights and interest. Besides, the purpose or object of the remedy given under torts and contract law are different.
Torts give award of damages to restore the plaintiff whereas the law of contract awards damages to compensate the plaintiff for what he would have obtained if the contract had been carried out. A tort is a civil wrong against an individual or a number of individuals; a crime is an offence against the State. The remedy for a tort is compensation, where the primarily purpose is to restore the victim to his/her original stage had the tort did not occur. However, the criminal law intends to punish the offender. Further, in tort, the defendant 'sued' by the plaintiff/claimant, and the defendant may be found 'liable' or 'not liable'.
In criminal proceeding, the 'accused' is 'prosecuted' by the public prosecutor and might be found 'guilty' or 'not guilty'. A breach of trust and a tort are both civil wrongs but difference. A tort gives rise to an action for damages; a breach of trust gives rise to an action for restitution. The law of trusts is more limited in scope as it applies to trustees only. The trustee's obligation arises from the special relationship created by the trust itself as opposed to arising from principles of law. 15 In order to distinguish a tort from a breach of trust, the test of an action for unliquidated damages can be used.
The law of restitution and tort seem to have a same function that is for the victims to recover for their loss. However, they can be distinguished, as under the law of restitution, the plaintiff does not need to prove the wrongfulness of the other party. Restitution can be claimed for recovery of an advance payment made under a contract that had not performed, the recovery of money paid by mistake, or the recovery of goods, land, services or some other 'benefits' not including damages based on injury or loss or expectancy.
In contrast, to claim under tort, the plaintiff have to prove that the defendant act illegally. The plaintiff can claim to recover damages based on injury, loss or expectancy under tort law. In reality, the law of tort and other laws although distinguishable in certain aspect cannot be differentiating as a whole. However, as per Lord Roskill in Junior Books Ltd. v. Veitchi Co. Ltd. : 'today the proper control lies not in asking whether the proper remedy should lie in contract… or tort, not in somewhat capricious judicial determination whether a particular case falls on one side of the line or the other…
but in the first instance in establishing the relevant principles and then in deciding whether the particular case falls within or without those principles. '16 Therefore, it is clear that the courts are putting their effort on minimizing the differences between tort and other laws. Aims of tort in Malaysia & Its Current Position Tort law exists with certain aims, however, in many cases, the aims of tort hardly achieved. Although the main aim of tort is compensation, in many instances it is inefficient on giving compensation. Courts by way of granting damages, trying to compensate the victim.
Although there are many kinds of damages, it is frequently difficult to prove fault in those torts, and therefore compensation would not be granted. In the case of Chan Wey Siong v. Ketua Inspektor17 the court held that plaintiff need to prove the loss he suffered in order to seek for exemplary damages. As the plaintiff failed to establish that he suffered any loss, the court did not grant any damages to him. In addition, in certain cases, even though damages are granted, it could not be said that the aim of the tort law to compensate the victim has met.
This clearly demonstrates in Tenaga Nasional Bhd. v. Dolomite Industrial Park Sdn. Bhd. 18 In this case, the appellant had trespassed on the respondent's land by erecting a pylon on the land. Here the court set aside the mandatory and prohibitory orders of the High Court and substituted with an order for damages. The notion of tort as a deterrent is espoused by some of the writers but most recognize that the law of tort has little deterrent effect. The main deterrent value of tort lies in its ability to grant injunctions to restrain wrongful acts.
19 However, in certain cases, the courts fail to uphold this aims. In the case of Dato Hamzah v. Dr. Muhammed Ali20, the court held that in order for an application for an injunction to succeed, the appellant must determine to the satisfaction of the court, the identities of the person responsible for publishing the said letters. The court must make sure that no innocent party was subjected to such an injunction order. The court further held that as the banners had now been removed, there was no purpose in issuing the injunctive order in respect of the removal of the banners against the defendants.
In Dato Hamzah's case, the court not only fails to deter the wrongful act, but also fails to protect the plaintiff's interest. The court having regard to the plaintiffs' prayer that the defendants be restrained 'from further publishing the words complained of' held that there being nothing further to be removed, therefore the claim dismissed. In viewing the decision of the court, the court denied plaintiff's interest on reputation as the defendants may further publish those defamatory words. Notwithstanding the aims of tort to protect individual's interest, the court will be more willing in upholding the public welfare.
In Tenaga Nasional case, because of a mandatory injunction applied by the respondent would have resulted in the disruption of electricity supply in Peninsula Malaysia, the court therefore held that in an application for an injunction, whether prohibitory or mandatory against the acts of a public authority, public interest is a relevant consideration. Besides, the rules of tort and the legal system itself do not always enable the plaintiff to achieve vindication by allowing the plaintiff his or her 'day in court'.
In Malaysia, the outcome of so many cases is uncertain. As a result, majority prefers to settle their claims out of court or dropped at a fairly early stage. Further, in libel cases, people are afforded the opportunity to have a public airing of their grievances but as there is no legal aid for those proceedings only the very rich can take advantage of this. 21 There are some cases where the liability of the defendant may extinct by way of waiver, release, accord and satisfaction, judgment, limitation, and death of a party.
Should not be denied that extinguishing the liability of the defendant in certain circumstances is required for the justice to both parties, but in certain situation it's worked contradicts. For instance, a final judgment may terminate the original cause of action. The principle is that the plaintiff may not claim again for the same tort for the reason that the injury that he suffers is more serious than at the date judgment was given22. Even though there are two exceptions in this principle, it may be in some circumstances, as in Wain v. F Sherwood Ltd. 23 became unjust to the plaintiff.
( In Wain's case, the plaintiff failed in bringing a second action in respect of his back injury failed. ) Besides, the S. 6(1)(a) of Limitation Act 1953 stated that actions found on tort must be brought before the expiration of six years from the date on which the cause of action accrues otherwise a defendant may plead limitation as a defence to the action against him. This section would fail the aims of tort in some cases if the action brought to court only after six years time. Yet, the aims of tort law do meet in some cases. With the introduction of insurances, it serves and meet the compensation objective of torts.
The insurance company protects the victims, ensuring that a judgment for damages against the insured will be satisfied24. In modern time, the courts regularly grant compensation to the victims, which sometimes run into a very high amount where an individual and even a company would not be able to pay for. There are arguably in meeting the aims of tort. The damages in two-fold aspects will be now remained as one where the aims of deterrent and punishment would not meet.
Recently in the case of Hotel Continental Sdn. Bhd. v. Cheong Fatt Tze Mansion Sdn. Bhd.25, the court held that there was a prima facie case of nuisance against the appellants and it was no defence for them to raise that they had taken all reasonable precautions to avert the interference. The injunction was not lifted, as damages would not be an adequate remedy here considering that the mansion was a heritage building. The appellant appeal was dismissed. In Tay Tuan Kiat v. Pritam Singh26, the defendant built a retaining wall on the plaintiff's land and subsequently sued by plaintiff for trespass to land. The court held that the trespass to land did not result in any injury to the plaintiff.
However, due to his rights is infringed; he was awarded for nominal damages amounting to RM500. Subramaniam v. Malaysian Airlines System Bhd. 27 showed us how the aim for justice meets. Court held that in awarding damages, the guiding principles were that the damages awarded should put the plaintiffs in the same position as they would have been if they had not sustained the wrong and that the plaintiffs should not be allowed to profit from the damages awarded. The court further held that: 'They did, as I said, suffer some discomfort and inconvenience, albeit for a short duration of only two hours.
As trivial and small as they may appear, nevertheless the plaintiffs are entitled to have them assessed. ' It would be difficult for us to come to a conclusion on whether the aims of tort met in Malaysia. In certain cases, it is; in certain cases, it is not. Further, there are some cases where it met with one or two aims but at the same time do not met with the others. Therefore, as long as the court decides as fair and as just it could be, taking into account the facts in each case, it should not be a 'must to' to meet all the aims of tort.
Conclusion Tort law changes very fast. In Malaysia, courts are putting effort on to develop our own tort law. One can clearly identify this situation where in the pass few years, not all the changes in England have been reflected in Malaysia. Despite the significant development of tort law, it reveals the difficulties of tort law in order to serve the society. One of the difficulties in tort law is that there is too much uncertainty in the law of tort because of the operation of judicial policy.
Although it is possible for the law of tort to be adapted by judges to meet changing social needs and circumstances, this can also mean that it is difficult too for lawyers predict the outcome of individual cases in order to advise their clients. 28 In addition, courts regularly meet with problems in order to grant remedies to the parties to the dispute. For instance, A's activity may be regarded as socially or economically valuable, and B's damage an unfortunate but unavoidable consequence. In such situation, the court might found difficult to come into decision. This clearly demonstrated in Tenaga Nasional case.
Besides, in many cases, the court will found themselves facing problems in striking a balance between competing claims and values. As in many disputes, it will certainly involve both parties' rights and interests. For example, strict rules on defamation will limit freedom of speech; by contrast, will defeat the aim in protecting reputation. However, despite some defects, tort law is a good law. Tort plays an important role on encouraging careful conduct and risk management. This prevents injury to individuals and their property, reduces the spread of disease and the manufactures of the dangerous products.
Tort also has a symbolic moral value. The focus in legal actions is always on the wrongful act and loss distribution is a consequential list factor.
1. Dias, RWM & Markesinis, BS. , Tort Law, Oxford: Clarendon Press, 1984. 2. Gerald J Postema (ed. ), Philosophy and the Law of Torts. United Kingdom: Cambridge University Press, 2001. 3. Harpwood V. , Principles of Tort Law (3rd Ed. ) London, Sydney: Cavendish Publishing Limited, 1996. 4. Hedley, Steve, 'What is Tort' Tort. London: Butterworths, 1998.