Law of Torts - Defence For False Imprisonment

Reasonable Condition

1. Robinson v Balmain Ferry Co. Ltd - - The Plaintiff entered defendants premises under a contract which involved his departure through a particular exit on payment of a penny. When the P wanted to leave, D refuse unless P pay. It was held that it is not False Imprisonment because there is another way to out and the condition imposed is reasonable.

2. Herd v Weardale Steel Co Ltd - - A miner refused to do certain work in breach of the contract. He demanded to be taken out from mines 5 hours before hand but was not allowed to leave for 20 minutes. It was held by House of Lords that there is no False Imprisonment. Miner could sue for breach of contract.

Arrest

Lawful arrest is not False Imprisonment.

Arrest Without Warrant

Section 27(1) states that any private person may arrest any person in his view commits non bailable and seizable offence and person proclaimed under Section 44. Shall without delay brought to the nearest police station.

By A Constable

1. Section 23(1)(a) CPC - - any Police Officer/Penghulu may arrest without warrant and without order from Magistrate.

i. Whoever commit seizable offence in any part in Malaysia, or

ii. Against whom a reasonable complain or information receive suspected to commit seizable offence.

2. Burden of proof is on the Defendant that there is a reasonable suspicious concerning seizable offence.

Dallison v Caffery - - The test is objective test, whether a reasonable man would believe that there was reasonable and probable cause for arrest.

Ramly & Ors v Jaafar - - Police arrested the Plaintiff base on information from one Zakaria during interrogation. Trial judge held that the info was not reasonable and not credible but on appeal it was held the test should be objective test and it is reasonable.

Abd Rahman v Tan Jo Koh - - Federal Court held that since during the arrest the respondent was in possession of offensive weapon (seizable offence) therefore reasonable.

Information of Charge

1. Article 5(3) of Federal Constitution states that the ground of arrest must be told to the detainee as soon as may be. He should be given choice to consult and defended by lawyer of his choice.

2. Only the substance of the charge be informed is sufficient.

The Duty of the Arrester

Arrest made by penghulu or private citizen shall be brought to the nearest police officer or station.

Section 28 CPC - - the police officer will re-arrest and without delay within 24 hours brought to Magistrate to be remanded under Section 117 of CPC.

Article 5(4) of Federal Constitution provides there fundamental rights.

Remedies

1. Self Help

The P may use reasonable force to escape.

2. It is a remedy for the violation of personal liberty and illegal conficement.

See also textbooks. 

Law of Torts - Trespass to Person

There are 3 types of intentional trespass to person. They are Assault, Battery and False Imprisonment. Common elements among them is physical harm inflicted by direct means.

A. Assault

An act which causes reasonable apprehension of the infliction of battery on P.

Elements

1. There must be some act consisting of some gesture or preparation to commit battery.

(body movement is necessary)

Example : to throw water it is assault. Threat by telephone if normal no but if bomb – Yes.

2. Words can negative what would otherwise be an assault.

D laid his hand upon his sword and said ‘if it were not assize time, I would not take such language from you’. It is not assult because his word negative apprehension of immediate contact.

Please refer to the case of Tuberville v Savage.

3. Conditional threat can amount to assault.

‘If you pay RM10 I will break your neck’

Please refer to the case of Read v Coker

4. Reasonable Fear of Harm

i. Pointing loaded pistol is an assault.

ii. But if unloaded pistol, depends on the P, if there is apprehension of immediate infliction of battery – Yes.

5. Ability to Carry Out the Threat

Example : A in a moving train pointing his fist to B who is on the platform. Here no assault because D cannot carried his threat.

6. Interception of Blow

Even the actual blow is intercepted by third person still assault.

Stephen v Myers - - D advanced towards P in a first meeting by showing his Fist and intercepted by church warden and was held liable.

B. Battery

Intentional and direct infliction of force to another person

Elements
1. Force

i. Any physical contact with the P’s body is enough. No need infliction of hurt.

ii. It must be voluntary. Even D does not foreseen the injury he is still liable.

2. Hostile Intent

In the case Wilson v Pringle it was held that it was the act of touching the P which has to be intentionally and that touch had to be proved to be hostile touching. This is to distinguish with ordinary everyday contact which is part of life.

3. Without consent of P

Medical treatment there is implied consent. Unsound mind/child there is no consent except by Guardian.

* Defence For Battery

i. If P consented to the contact (doctor/lawful games)

ii. Self Defence – Reasonable force used.

iii. Some argued that there might be contributory negligence due to provocation by P.

C. False Imprisonment

The infliction of a bodily restraint which is not expressly/impliedly authorized by law. False means wrongful. Imprison means restraint of a man’s liberty from moving.

Elements

1. Knowledge of the P is not essential

It is immaterial whether P knows he was detained.

Meering v Graham White-Aviation Co. - - P was suspected of stealing some varnish from D’s factory. He was taken to D’s office and 2 company policemen remained close to him while he was questioned. In an action for False Imprisonment the D argued that P was unaware he was imprisoned. Court rejected this argument.

2. Restraint Must Be Complete

D is only liable if P’s liberty is totally restrained.

Bird v Jones - - D wrongfully enclosed part of the public foot way on Hammaersmith Bridge. He put seat for spectators asked P to pay but P refuse and insisted to go across. D objected to proceed. P sued for false imprisonment. It was held that since there was a free way to go back the way he come, D was not liable. It was because restrain was not complete.

* Means of Escape – If there is means of escape but P don’t know it, still liable for False Imprisonment unless a reasonable man would have realized it.

See further Bird v Jones case.

Law of Torts - Fatal Accidents

In Fatal Accidents, cases two consequences follows:-

A. Estate Claims (Section 8 Civil Law Act)

Where the victim himself fatally wounded and compensation can be claimed by the estate of the victim and distributed according to Intestacy.

Special Damages

1. Out of Pocket

Expenses:

Medical care, transportation, clothing damage to vehicle and other damage (eg watch jewel)

2. Loss of Earnings\This can be claimed from the date of the accident till death.

3. Funeral Expenses

Please refer to section 8(2)(c) of Civil Law Act

General Damages

1. Pain and Suffering

If the victim injured and was suffering from pain and then he died, the estate can claim this damages. Provided the victim must be conscious.

But if the victim died without regaining conscious, cannot claim.

Please refer to the case of Low Yoke Ying v Sim Kok Lee.

2.Loss of Expectation of Life – Previously was awarded but after the amendment Section 8(2)(a) of Civil Law Act abolished it.

Loss of Future Earning for ‘Loss Years’ – after the person’s death also not recoverable.

B. Dependant’s Claim

As a result of the victim’s death, his dependants who are deprived of financial supports can claim compensation.

Categories of Dependants (Section 7(2) of Civil Law Act)

1. Two types of Dependants

i. Dependant in Law (adopt)

ii. Dependant in Fact

2. Categories of Person as dependant:

i. Husband/Wife

ii. Child – son, grandson, daughter, granddaughter, stepson, stepdaughter, legally adopted child

iii. Parents both sides – father, mother, grandfather, grandmother

Special Damages

1. Section 7 (3) of Civil Law Act

Dependants can claim any Loss of support suffers or any expenses incurred :-

i. medical expenses

ii. cost of travelling to funeral service

iii. placing death announcement

2. Funeral Expenses – if incurred by dependant

3. Pre Trial Loss of Support

General Damages

1. Bereavement (Section 7(B) of Civil Law Act)

This can be claimed by

i. spouse of deceased

ii. parents of deceased

iii. minor & unmarried child

Section 3 (3D) of Civil Law Act - - Court can award RM10,000.00

2. Loss of Services or Consortium (Section 7(3)(iii) of Civil Law Act)

Parent cannot claim for deprived of the Loss of service by the Child. But the Court award Loss of Consortium to the parents.

Husband/Wife cannot claim for loss of consortium with wife.

3. Loss of Financial Support

The dependants can claim for Loss of earning (future earning)

Section 7(3)(iv)(a) of Civil Law Act - - In assessing Loss of Earning after the death court must consider :

i. if victim has attained 55 years old cannot claim

ii. whether deceased before the death was in good health but for the injury and was receiving earning by own labour or gainful activity before death.

iii. multiplicand is the annual loss and period of dependency in the multiplier.

iv. other factors considered:-

- expected working life of deceased

- period of support required by dependant

- whether dependant will receive other sources of income as a result of the breadwinners death.

Section 7(3)(i) - - Insurance payments, EPF, Pension and Gratuity/Compensation paid under written law in respect of the death are not considered.

Illegal sources of income must be excluded

Chua Kim Suan & Teoh Teik Nam v Govt of Malaysia - - Court must ignore propect of increase in earning.

Prospect of Promotion

Section 7(3)(iv)(c)

Must deduct Living Expenses of deceased

Section 7(3)(iv)(d) - - calculation are same (deceased age 30 years & below = 16 years.)

Law of Torts - Consent

Volenti Non Fit Injuria

If P succeeded in proving the ingredient of a particular torts, D cant refute it by the available defences. One of the defence is Volenti Non Fit Injuria.

If P consented to the act by P which causes him harm, then no remedy in torts ie lawful sport lawful operation.

This doctrine works in 2 ways

i. consent given before the conduct complained either expressly or implied. Here the duty was not broken by D.

ii. Consent that shows P had waived his right of action. This consent is given after the breach of duty.

However consent must fulfill certain qualification

i. Consent must voluntary and free. Mere knowledge of risk does not imply that P undertake the risk. Please refer to the case of Letang v Ottawa Electrical and Kanagasapathy v Narsingam.

ii. Consent of a child. In England child 16 years and above can give consent for surgical, medical and dental treatment if he knows nature of consequences and matured. But if under age must get consent of guardian.

iii. Consent by fraud. If P aware of the nature of act, consent is affective and court will not see qualify act. Please refer to the case of Megarty v Smine.

iv. Consent to medical treatment. Must explain in broad risk of treatments. If not explain then no consent. Please refer to the case of Chatterson v Gerson If emergency consent is implied. Please refer to the case of Mill v Potter.

Passengers Case

i. A PDL driver still owes duty of care to passenger. Please refer to the case of Wettleship v Weston.

ii. Drunken driver. If passenger knew high quantity of alcohol which might cause danger contributory negligence. Please refer to the case of Owens v Brimmel.

iii. Notice riding on own risk. D must bring to the knowledge of P about the notice. Please refer to the case of Teh Hwa Seong v Chop Lim Chin Moh & Anor and also Section 55 Commercial Vehicle Licensing Board.

Sport Spectators

D can plea volenti non fit injuria if acted in normal circumstance but if acted beyond reasonable standard of care D cannot plea volenti non fit injuria. Please refer to the case of Wooldridge v Sumner.

Public Policy Illegality

If P is a wrongdoer and the harm is a consequence of unlawful act – cannot plea volenti non fit injuria. Please refer to the case of Ashton v Turner. But if before the unlawful act can plea volenti non fit injuria.

Law of Torts - Breach of Duty

Once it is established that Defendant owes a duty of care to plaintiff, it must then prove that Defendant had breached that duty.

The test is standard of care of a reasonable man. What a reasonable man in such circumstances will do, or doing something which a prudent or reasonable will not do.
Please refer to the case of Blyth v Birmingham Waterworks Co.

However the standard of care various according to the circumstances.
Please refer to the case of Glasgow Corp v Muir.

Duty of Care for Professionals

Bolam Test

Where the situation is involved with use of some special skill/competencies, the standard is of an ordinary skilled man exercising or professing to have such skill. No need to prove standard of highest expert skill.

Please refer to the case of :-

i. Bolam v Friern Hospital Management Committee.

ii. Chim Keow v Govt of Malaysia & Anor - - doctor failed to inquire medical history before prescribe penicillin and patient died. Held liable.
 

iii. Elizabeth Choo v Govt. of Malaysia - - not negligence ig before follow general and approve practice in the situation which he faces.

In deciding the standard of care, the court will consider the following factors. What reasonable man will do in such a circumstances.

i. Whether defendant foresees the consequence cases (harm). This depends on particular time and the experience. Please refer to the case of ROC v Minister of Wealth.

ii. Magnitude of the risk. This involve the probability of injury case and seriousness of injury.

Bolton v Stone - - although D foresee but the risk was small. So not liable.

Miller v Jackson - - risk of injury to property and person is high held liable.

iii. Social utility. If the purpose is important then D is justified if he expose plaintiff to that risk. Please refer to the case of Watt v Merfordshire County Council.

iv. Practicability of precautions. Risk must be balance with cost and practicability of eliminating the risk. Please refer to Latimer’s case.