Tort Law in Malaysia

The word 'tort' originated from the Latin word, tortus, which means 'twisted' or 'wrung'1, signifying 'wrong'. Therefore, a 'tort' can be regard as a 'wrong' in its most untechnical sense. Different authors brought many different definitions of the word 'torts' to reader's attention. However, none of the definitions can be regarded as the best definition. The law of torts is one of the branches of the civil law. The scope of the law of torts is wide, including trespass to person, trespass to land, trespass to goods, negligence, defamation, nuisance and strict liability.

One of the better definitions defining tortious liability as liability arises from the breach of a duty primarily fixed by law where this duty is towards persons generally and its breach is redressable by an action for unliquidated damages, given by Winfield. There is considerable wisdom in the view of the learned authors of 'Cleark and Lindsell on Tort' that attempts to define a tort with precision, is a fruitless exercise. 2 To understand the law of torts, it is not the definition but the description of the aims of the law of torts that will be an accurate source.

Aims of tort law The law of tort serves a number of purposes. The primary function of the law of torts is compensation or loss distribution. It primarily concerned with the question of whether these loses are to be compensated for by the person responsible for the relevant activity or whether the lost must lie with the victim. 3 The law of torts seeks to compensate the innocent party for the loss sustained by the breach of the duty of the defendant.

According to Rogers, tort law is concerned with the redress of wrongs or injuries (other than breaches of contract) by means of a civil action brought by the victim. This redress most commonly takes the form of damages, that is to say, monetary compensation. 5 A claimant who manages to establish liability against another under the rules of tort shifted the loss to the person, the tortfeasor, who apparently brought such loss into being. In Khairul v.

Yesudass,6 Faiza Tamby Chik J held: "the general principle and the general approach in calculating monetary loss in a case such as the present is that an injured person should receive such an amount of money as will put him in the same position as he would have been in if he had not received the injuries … it is a clear principle that the purpose of damages is to put an injured party to the same position has had the tort not been committed, and recovery of damages is definitely not a mechanism for enriching the injured party.

" Almost all liability rules aims to be capable of deterring the conduct that would lead to the imposition of liability, so do the tort law. The law of torts serves a deterrent function as the tortfeasor has had to pay some compensation to the victim, and therefore he will be more responsible and careful in all his future activities since few people would wish to engage in conduct which they realise is likely to result in them having to pay another in respect of the harm which has been caused.

Besides, the remedy of an injunction can restrain a person from behaving in a manner that interferes with another's interests. Through the awards of damages, the law purports to discourage others from behaving in the same manner as the tortfeasor. However, it has been argued that deterrence plays only a subsidiary part, as it is inapplicable in many cases where the plaintiff's injury is the result of an error rather than blameworthiness. Therefore, it is clear that this aim serve tort law other than negligence. Tort aims to protect the interests of citizen.

The law protected a person from deliberately inflicted physical harm and restriction on freedom of movement, and the protection of interest in tangible property, especially the rights to non-interference of goods and land. 7 Later, it widens the scope of protection towards people and his property where the tortfeasor will be held liable even though the interference is not caused intentionally. Introducing the concept of negligence, nuisance and strict liability makes the aim of tort clearer in protecting citizen's rights.

Further development on tort law to serve this aim is the tort of the defamation where an individual's reputation is protected. All these clearly signified the interests in personal security become more salient nowadays. Tort can serves as a fair and just response to the wrongdoing. This is a traditional view where the tortfeasor must compensate the victim because this is what justice demand. Therefore, the defendant is forced to correct or rectify the situation in which he has brought about.

The principle is that justice may be more appropriately served by looking to the claimant's need for compensation rather than the defendant's moral turpitude8. The notion of justice may be in different forms besides compensation-based justice. For example, there is a rights-based justice where the plaintiff is entitled to protection against unjustifiable interferences with his civil rights. Other notion of justice is based on the rule in Rylands v. Fletcher 9 and the tort of private nuisance. However, the justice of providing compensation for a person who has sustained damage at the hands of a tortfeasor is ambiguous10.

The tort law also aimed to vindicate the rights of the victim. This is the action of declaration that is specifically designed to declare the rights of the parties when the question of rights appears. The principle is that being declared publicly to be in 'the right' by a court can vindicate a person who regards him or her as innocent in a dispute. This function is probably more important these days in others countries. In relation to the civil liberties torts, especially when feelings are injured and loss of dignity and respect occurred, the function of vindication would be over and above any compensatory function.

Another aim of tort is appeasement that is buying off the victim's instinct for revenge. In the early days of legal system, individual are given opportunity to make a claim in a civil court against the transgressor. This would prevent the victim from resorting to some form of self-redress which might result in a breakdown of law and order. 11 However, this may be regard as a primitive law and most probably would not suit the aims of tort nowadays. Tort law as a civil law aims to punish a tortfeasor for his or her wrongful act.

Although this is the main function of criminal law, it may also play a small part in the tort law. This is because of there is a certain symbolic moral value in requiring the wrongdoer to pay the victim. The punitive element is particularly obvious when exemplary damages are given for a tort. Even ordinary damages can be regarded as having a two-fold aspect; although in theory they are compensation to the plaintiff for what he has undergone, in fact they are also a punishment to the defendant for what he has done.

However, there has argument that this aim has been less valuable with the introduction of insurance. In order to see the aims of tort law, one must consider the facts that the law of torts has a long and very complex history, over that history, society's view of the aims of the practice could have changed while leaving in place more or less remarkable vestiges of earlier practice. New aims could arise and old ones pass away, or make way partially for new ones13. Therefore, it would be impossible to sum up the aims of tort in this brief work.