Law of Torts - Passing Off

No one has the right to represent his goods or services of another

Elements
Sufficient goodwill in the trade in question & in local jurisdiction.
Goodwill is the benefit or advantage of good name rep of a business. Attractive force to bring in custody . Distinguishes an old established business from a new one.

COMPAGNIE GENERAL
Pt known internationally for 130 yrs. Present in Malaysia for 5 yrs. Goodwill was established.

DUN & BRADSTREET (S'PORE) v (Malaysia)
Provided info services to 31 companies in Malaysia. 3 yrs presence. Goodwill established.

ELECTRO CAR-AUST
Pt launched anti-theft device 'stopcard' with aggressive advertising. Def launched 'stopcar' 3 days later, 3-days ad established goodwill. Misrepresentation likely to cause/ has caused deception. Pt suffered/likely to suffer damage to business goodwill

Devices
Df uses pt's trade name

REVERTEX
Pt in latex business since '30s. Df registered as Slim Rivertex. Same business. Elements established.

Df uses name specifically associated with the program of part or region

BOLLINGER v COSTA WINE
'Champagne' distinctive of wine made in 'champagne'. Df's product called 'Spanish champagne'.
Df uses Pt's trademark

YORK PACIFIC
Pt's trade mark York Big D. Df adopted it. Dealing with same product. No ads by df. Pt suffered losses.

Df uses name specifically associated with pro. of a part, composition.

ERVEN WARNINK
Pt's drink 'Advocaat' made of eggs and spirit. Df's 'Keeling Old English Advocate' made of eggs and Cyprus wine. Imitation of get-up of pt's goods.

WHITE HUDSON
Cough sweet with red wrapper. Customers cannot read English. Df's made cough sweet with red wrapper called 'Pecto'.

BASKIN ROBBINS
CADBURY v PUB SQUASH

People were not deceived by get up.

Remedies
(1) Accounts of profit
(2) Injunction
(3) Damages
(4) Order for destruction of infringing articles

Law of Torts - Private Nuisance

INTRODUCTION

(1) Private Nuisance (Pr. N) is an unlawful interference with:

(i) a person's use or enjoyment of property

(ii) or some right over or in connection with it

(iii) state of affairs must be connection or recurrent

(2) Every slight annoyance is not actionable unless. However it depends on variety of consideration:

(i) character of defendant's conduct

(ii) balancing of conflicting interest

TYPES OF PRIVATE NUISANCE

(1) NUISANCE TO SERVITUDE AND RIPARIAN RIGHTS

This includes until Obstruction of right of ways. Once P has suffered a substantial degree of interference is enough. D cannot say that his activity benefits the community or he has taken care to avoid damage to P. His conduct is irrelevant.

Hiap Lee (Cheonq Leonq & Sons) Brickmakers v Weng Lok Mining

R built reservoir on their land and the water had escaped and caused damage to P's land. Held R is liable in negligence and nuisance but FC held no liability at all and confirmed by Privy Council.

Khan Mohamed v Katz Brothers

(Act of driving piles in river boundary to prevent erosion but which obstruct use of water held nuisance but P can claim damage)

Tovo Textiles Ind. v Lian Foong Housing Dev.

(P filed their land with soil higher than P's land at the common boundary causing natural blockage of a natural stream and cause large pool in P's land. Held D acted unreasonably and liable).

Interference with drainage system and cause flood on neighboring land may also be Private Nuisance.

No Cheng Kee & ors v Loh Penq Konaf

P constructed a new drainage on his land and cause water flooded P's paddy field. Held liable because causing substantial injury to P's captivation of paddy)

2) INDISCRIMINATE EXCAVATION

Wisma Punca Emas Sdn. Bhd v Dr Donal RO'Holohan

P and D were registered adjoining land in Seremban. As a result of developing works carried out by D caused the land sink. P sought injunction. Held the indiscriminate excavation and removal of earth stone and clay from D's land w/out taking sufficient precaution caused the sinking and D is liable for actionable nuisance.

(3) VIBRATION

Damage caused to neighboring building by vibration from piling works is actionable.

Asia Insurance Co, Ltd v Chan Wing & Sons Realty.

(D who caused structural damage to adjacement property were held liable to the owners of such property for nuisance.)

(4) RADIATION

Woon Tan Kan & ors v Asian Rare Earth Bhd.

(P seek injunction to stop ARE from collecting & storing radioactive substance which effect the health of the neighboring residents. Held:

(1) such radioactive substance is highly dangerous to human DMA cell

(2) ARE constituted substantial interference and discomfort of enjoyment of land to P and so caused annoyance, therefore injunction granted. But Supreme Court allow the appeal but ARE was closed by themselves)

(5) FALLEN TREE ON HIGHWAY

An estate owner growing rubber trees ad his land adjoining with highway is expected as a reasonable man to inspect the trees from time to time so that If trees fall on highway and caused danger to road user.

Len Omnibus Co. v North South Transport Sdn Bhd.

CONCEPT OF REASONABLENESS

Reasonableness is the central issue in case of NUISANCE. Whether the D conduct is according to the ordinary usages of mankind living in a particular society. Here the factors considered is the balancing between interest of D and the competing rights of neighbor , a process of compromise and rule of give and take.

Svarikat Perniagaan Selanqor Sdn Bhd. V Fahro Rozi Mohd

(Court will take into account all circumstances of particular case to determine whether or not defendants act is unreasonable to constitute nuisance.)

EXTENT OF THE HARM & NATURE OF THE LOCALITY

St. Helen's Smelthing Co. v Tipping (Leading case)

P owned a rubber estate which was situated in an industrial area. The smoke from the factory caused considerable damage to P's trees. Lord Westbury distinguishes the following:

(i) Sensible injury to the value of the property or material injury (Physical injury) Here the locality surrounding circumstance is irrelevant. No matter where the P is. he must be protected from physical damage,

(ii) injury in term of personal discomfort (non physical damage )Here the level of interference must be balanced with the surrounding circumstance and the locality must be taken into consideration. Court allows the claim.

Pacific Engineering Ltd. V Hi. Ahmad Rice Mill Ltd.

(HC: the P had produced sufficient evidence to show injury to property and Interference with personal comfort caused by smoke, husk, dust and ashes and It constituted Nuisance)

THE UTILITY OF THE DEFENDANT'S CONDUCT

Ct will look into the utility or the general benefit to the community arising from the defendant's conduct. Public is required to accept this. But if serious damage is caused than the issue of tolerance must be give way.

Bellew v Cement Co.

(Ireland's only cement factory which produced cement during war was ordered to be shut down because it causes serious harm to public.)

Miller v Jackson

(Ct held the social utility of the club in promoting games of cricket outweighed the P's interest.)

ABNORMAL SENSIVITY

Law does not take into account the abnormal sensitivity of person or property.

Heath v Major of Brighton

(P trustees of a church, sought an injunction to restrain noise from D's electrical power station Held: Refused to grant an injection because there was no proof that Pie noise affected the congregation except the incumbent he was not prevented for preaching or conducting his service).

Robinson v Kilvert

(D began manufacture paper boxes in the cellar of a house. His business required hot air and dry air and he heated the cellar accordingly occupied the premises above and stored brown paper there. The heat from cellar dried and diminished the value of brown paper. D is not liable.’ a man who carries on unexceptionally delicate trade cannot complain because it is Injured by his neighbor doing something lawful on his property, if it is something which would not injure anything but exceptionally delicate trade.)

TEMPORARY INJURY

If nuisance is temporary and occasional ct will not Grant injunction except in extreme cases. lt is because damages is enough in such cases.

Stone v Bolton
 

P while stand near highway cricket ball hit him from the adjacement cricket ground. Held that an isolated act of hitting a cricket ball into the road cannot amount to nuisance.

Leona Bee & Co. v Lina

Nam Rubber - fire broke out at early morning from D's building and burned down P's building. Federal Court dismiss the claim for nuisance or negligence. PC held no proof that D brought fire to his land.)

MALICE OR THE PURPOSE OF D's CONDUCT

Generally malice is not relevant factor in torts. H/ever in nuisance the ct take into account the main object of defendant's activities. lf main object is to injure his neighbor then his intention is highly relevant.

Christie v Dave

(P's frequent music lessons annoyed D and D deliberately retaliated by knocking the wall separating the premises. Ct granted injunction and held D's conduct maliciously to annoy P)

Hollywood Silver Farm v Emmett

D deliberately fired his gun during P breeding his silver fox at neighboring land. This is sensitive to the fox. Held intention of D is relevant and held liable).

See also textbooks.

Law of Torts - Interference with Goods

(A) Trespass to goods: Immediate & direct unauthorized interference In the possession of the goods of another person. *Must be deliberate & intentional

ACTIONABLE PER SE
(1) Intention: pt must prove df had Intention to deal with e goods

NCB v EVANS - No trepass coz interference was accidental.

WILSON v LOMBANK - Df took pt's car from workshop thinking it was his. Trespass established.

(2) Direct Interference:
 

KIRK v GREGORY - Def moved pt's belongings from one room to another without consent.

(3) Without lawful justification:

HJ AWALLUDIN V MRK ' - Local authority went into app's premises & removed his TV & cassette recorder because the assessment payment was overdue Section 148 of Local Government Act: can go to the premises and make seizure amounting to the payment app has not made.

(B) Conversion: Dealing by a person with goods in a way which is inconsistent with e right of e goods' owner where that person tends to ignore the right of the owner or, to claim a right which amounts to a denial of the owner's right over it * Action lies where goods are lost OR fundamental character altered.

(1) Intention to exercise dominion over the goods inconsistent with the owner's rights.

(2) Interference with possession: can be either by way of:

(i) taking and abusing possession.

(ii) denial of owner's rights.

JAG SHAKTI

Apps were receivers of e cargo of socks & Resp was the owner of jag shakti ship. App was to receive the shipment with bills of loading. Resp gave the shipment at another company without the doc.

A person who finds an object has a good title to it and can keep it and can bring an action against anyone except:

(i) the owner

(ii) the occupier of the land where the object was found where the finder was a trespasser,

(ill) when the object is underneath/attached to the land.

ARMORY v DELMAIRE

BRIDGES v HAWKESWORTH

PARKER v BRITISH AIRWAYS BOARD

DANIEL v LUHAT WAN

Law of Torts - Defences & Remedies To Trespass

Defences

(1) Licensee: is permission given to another enter the land.

Contractual licensee v Gratuitous licensee

Gratuitous licence can be revoked at will by the lecturer - LADANG V SUPPIAH

(2) Justification by law

(3) Necessity

Mistake NO defence

MDF PROP. v MADIHILLDEV

Pt wants a mandatory injunction for df to remove the barrier coz he said local authority approved it. Df argued stating trespass & nuisance and they're seeking a perpetual prohibiting Injunction. Held: Pt was e trespasser whether he knew it or not.

Remedies

(1) Damages

(2) Injunction: order by the ct compelling def to do or refrain from doing a certain act.

(3) Self help:

A person entitled to possession can enter or re-enter the

premises and may use necessary force.

Section 7 of Specific Relief Act provides for re-entry BUT must enter

the land using no more force than necessary

(4) Ejectment: A person dispossessed of his land can recover It by an action for

recovery of land.

Section 7 and 8 of Specific Relief Act:

Section 7 provides for self help but if it felt that more force is needed then it must resort to the law.

POH SWEE SIANG

Section 41 National Land Code: no limitation period to bring action for recovery of land,

Section 48 National Land Code: title of land can't be acquired by possession, unlawful occupation or occupation under any license for any period.

(5) Action for Mesne Profits

Law of Torts - Damages (continued)

RESTITUTIO IN INTEGRAM

Case Lim Poh Choo - Lord Scarman “as nearly as possible”

ONCE & FOR ALL

Case Fetter v Beale

Exception

(1) Good reason - Case Johnson v Gore Wood

(2) Continuing injury : for example continuing trespass - Case Darley Main

House of Lords :

1. Pt must wt for fresh damages

2. Can’t claim for damages

3. No damages for reduction of value. Based on future damages that might occur.

KIND OF DAMAGES

CONTEMPTUOUS : ct of e op pt has no good case

Case Pamplin v Xpress newspaper, Gutcharan

NOMINAL

Case Constantine v Imperial Hotel

EXEMPLARY
 

Case Rookes v Barnard

Situation where awarded

1. Oppressive, arbitrary, unconstitutional act of pub service - Case Fong v Insp Mohd Nasir

2. Df calculated profit more damages he must pay to pt - Case Marubeni

3. Defamation Df didn’t believe words true - Case Cassel v Broome

AGGRAVATED

Case Roshairee, TJanting Handigraft

GENERAL & SPECIAL

Case Dr Kader Ibramshah

PERSONAL INJURY SECTION 28A CIVIL LAW ACT

GENERAL DAMAGES

Pain & Suffering - Case Thangavellu Goh Chai Huat

Loss of amenities - Case Marappan

Mental anguish - Sec 28A (2)(a)(b)

Injury itself

Loss of consortium - Case bas mini

LOSS OF EARNING CAPACITY

In wht circumstances?

(1) There is a risk pt will lose job

(2) Can get another job with lower pay - Case Azizi Amran

(3) When it can’t be proved pt employed - Case DIRKJE

LOSS OF FUTURE LARNINGS MULTIPLIER APPROACH

Multiplier x multiplicand - Sec 28A(2)(c)(i)

Pt must be below 55 years of age

Must be in gainful employment - Cases DIRKJE

TAN KIMCHUAN -Must be in good health

Cases Osman

Lori HEE TUAN

MULTIPLICAND

Legal earning

Case CHUA KIM SUAN

Sec 28 A(2)(c)(ii)

Ct can’t speculate only real increment

Case CHANG MING FENG

Ct will – living expense/ income tax

Case CHANG CHONG FOO

MULTIPLIER

Sec 28 A(2)(d)

(i) Pt <30>

Multiplier = 16

(ii)3D : pt: 55

Multiplier =55-x/2

NON DEDUCTABLE SUMS

Sec 28A(1)

(i) Insurance - Case WARD V MAS

(ii) Pension

(iii) Benefit / compensation

SPECIAL DAMAGES

(1) Loss of earning (up to do trial)

(2) Out of pocket expense

Medical expense

CHAI YEE CHONG

1/3 Rule : exceptions

If treatment not available in General Hospital

If not available in reasonable time frame

If grossly inadequate

Nursing care

Housecroft v Bernett

Marappan v Siti Rahmah

Law of Torts - Damages

OBJECT OF DAMAGES

To put the P on the principle of restituition in integrum.

CAN CLAIM ONLY ONCE

P cannot bring second action on same facts just becox his injuries is serious Exception:

1. Where 2 distinct rights are violated Brunsdenv Humphrey

P suffers taxi damage and personal injuries. He claim taxi damages first and later second one. OK.

2. Where the injury is continuing one i.e. tresspass to land or continuing nuisance.

TYPES OF DAMAGES

CONTEMPTUOUS

1. Court award very low amount.

2. P may also lost his cost of action as well

NOMINAL

1.Damages awarded due torts of actional per se where only P's right has been violated and he don't suffers actual damage. Constantin v Imperial Hotels Ltd, (cricket teams)

EXEMPLARY / PUNITIVE

1. The object is to punish the defendant and to deter him from future behavior.

2. Now Exemplary Damages may be awarded only in two classes of cases:
i. Oppressive .arbitrary or unconstitution action by servants of Govt. Bradford City Metropolitant Council v Arora. A sikh woman applied for head of teaching but was rejected. Held there was discrmanation and awarded damages.

ii. Cases where D's conduct has been calculated by him to make a profit for himself which
may well exceed the compensation payable for P.

It is becox not to allow defendant to make a profit from his own deliberate wrongful act.

Alfred Templeton & Ors v Low Yat Holdings Sdn.Bhd. & Anor.

Critics:

i. It confuse purpose of civil and criminal law.

ii.Punishing civil wrong

iii.unmerited windfall for the P.

AGGRAVATED DAMAGES

1. Where the motive and conduct of D aggravated P's injury the court will increase the damages awarded.

2. This is a compensary due to P's feeling and dignity.

Henry Wong v John Lee

Libellious statement made by D trial ct awarded damages but FC reversed.

Law of Torts - Defences to Defamation

Justification: the words are true in substance &; in fact.

Onus on Df: ABDUL RAHMAN TALIB

Section 8 of Defamation Act

MIRZAN B MAHATIR

Damages multiply when justification falls: MGG v VINCENT

Fair comment:

RATUS MESRA: 4 elements

1. Words are fair comment

2. Must be based on true facts:

CHOK FOO CHOO: 2nd Df claimed words based on 1st df's statement. 1st df denied. Not based on true facts

3. Must be fair &; not malicious:

TJANTING HANDICRAFT

4. Must be on matter of public Interest.

MOHD AZWAN

Privilege

Defence by which of commission is justified without fear of action for defamation

Absolute

Common law:

for example parliamentary proceedings

TIMES v SIVADAS

Statutory:

Section 11 of Defamation Act: Fair & accurate reports of judicial proceedings in Malaysia.

WONG CHAN MEW: notice of substituted service of originating summons is a report of judicial proceedings

Law of Torts - Trespass (Continued)

Trespass to Person

Possession

Possession In Law: when a person has the Intention to exclude the world at large from interfering with the thing in question and he does so on his own account and name

Possession In Fact: when Pt has the right to use the land and the ability to exclude others.
 

Can bring action in trespass against anyone except:

(a) another person with Possession in Fact

(b) person who has Possession in Law SENIK v HASAN

(c) person with Immediate right to possession.

Immediate right to possession: is when a person has the lawful right to retain possession.

DOCTRINE of relation back: an heir's right to immediate possession arises from the moment his right to it accrues at the death of the deceased.

MARUBENI's case

JUIAIKA BIBI v MYDIN: Df was a trespasser from the moment the previous TOL was cancelled & new TOL issued to Pt.

Trespass to land: is the Intentional wrongful entry & unreasonable interference with another's ownership of his land.

Definition of 'Land'; Section 5 of National Land Code:

(a) Surface

(b) subsoil

(c) vegetation (natural or labored)

(d) Things attached to the earth

(e) land covered by water

Can only be committed against person in possession of land regardless of ownership.

Actionable per se

CHEAH KIM THONG: "the slightest intrusion of the boundary is sufficient."

(1) Intention

(2) Interference: is the term used to justify' action in trespass,

Wrongful entry; remaining beyond permission given; throwing, placing things on the land.

RIGBY v CC SOUTH YORKSHIRE

* Trespass on the highway: HICKMAN v MAISEY

* Trespass to subsoil & airspace

KARUPANAN BALAKRISHNAN

KELSEN v IMPERIAL HOTEL

S 19 of Civil Aviation Act

Interference with goods

Trespass ab initio: when a person enters lawfully but subsequently abuses his authority.

CINNAMON v BRITISH AIRPORTS AUTHORITY

6 minicab drivers allowed to enter airport upon condition they don't tout. Abused the authority given. Trespassers ab initio.

6 CARPENTERS' Case

6 carpenters entered restaurant. Drank & ate. Refused to pay. Not trespassers ab initio because no positive act of abuse.

AZIZAH V DATO' BANDAR

JEFFREY v BLACK

Df arrested for stealing a sandwich for a pub. Police searched his apartment for illegal drugs.

Criticisms of Doctrine of Trespass Ab Initio:

CHIC FASIONS (WEST WALES)

Lord Denning: Trespass Ab Initio 'a by-product of old forms of action. Now that they are burled it can be Interred with their bones.' Once an entry is lawful, it would be improper to hold It unlawful subsequently unless it falls under the circumstances of Cinnamon.

ELIAS v PASMORE

When a Police Officer enters a house by virtue of a search warrant, he can seize not only goods spec in the warrant but other goods which he believes could be material evidence. His entry doesn't become unlawful simply because he unjustifiably seizes other goods. He may be liable in trespass to goods. Not to land.

Law of Torts - Occupiers Liability

Occupier: 'A person who has sufficient control over the premises to the extent that he ought to realize that lack of care on his part can cause damage to his lawful visitors. The duty may be shared between several occupiers, who will be jointly and severally liable to the visitors if they both fall to exercise the due care, causing injury.' - Lord Denning, WHEAT v E. LACON

Entrants

Contractual entrant: Is a person who enters into the premises pursuant to a contractual agreement

(1) Main purpose entrant

(2) Ancillary purpose entrant

Duty is to ensure premises safe & adequate for the purpose. Must prepare for even foreseeable danger.

MACLENAN: pt injured while trying to escape from 2nd floor or df’s hotel when fire, broke out

GILMORE: pt fell during gym class because of floor slippery.

Invitee: is a person who enters the premises with the permission of the occupier for a common (usually economic) interest between them,

(1) Business visitors

(2) Legally authority entrants

Duty is to take reasonable care to prevent damage from unusual danger (Including concealed danger/trap) which he knows or ought to have known, -INDERMAUR v DAMES

LAD TIN SYE v YUSUF BN MOHAMAD: pt got down from tractor while blade still rotating. Usual Danger

TAKONG TABARI

Bank explosion (due to gas leak) killed 1 pt, injured other (invitees)

Licensee: person who enters premises with gratuitous perm with no shared interest with occupier,

(1) Entrant as of right

(2) Social visitor

(3) Entrant by implied permission

LOWERY v WALKER Pt had been using a path on df’s land without being restricted.

Duty is to not create/allow a concealed danger/trap to at least upon the premise, which is not apparent to entrants but ought to be known by e occupier.

YEAP CHENG HOCK geologist entered mine was injured by a defective buggy.

DATUK BANDAE v ONG KOK PENG

Pt badly injured when he fell down elevator shaft

"Licensee must take premises finds it, But duty upon occupier to not expose them to concealed danger at least warn them,"

Licensee: person who enters premises with gratuitous permision with no shared interest with

Duty to take reasonable & sufficient measures to prevent entry

ROBERT v DUMBREK

BRITISH RAILWAY v HERINGTON

LLM MALAYSIA v RAMAKRISHNA ' take reasonable steps of humanity & common sense to avoid danger*.

METROPLES v MASTANA

Children Entrants

(1) Lawful entrants GLASGOW CORP

(2) Trespassers SINURI BN TABUK
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