TORT II [remedy notes]

Information about TORT II [remedy notes]

Published on June 8, 2020

Author: AmaliaSulaiman2

Source: slideshare.net

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1. AMALIA SULAIMAN UKM LAW SCHOOL 2020 LAW OF TORTS – REMEDY TYPES OF REMEDY • OUTSIDE THE COURT PROCESS LIKE SELF HELP [ELIMINATE THE ANNOYANCE] CASE: COLLINS V RENISON (1754) 96 ER 830 Defendant throw down a ladder while the Plaintiff is still on it. The defendant overturned a ladder, upon which the plaintiff was standing, and threw the plaintiff from it upon the ground for trespassing. The defendant pleaded; that he was in possession of a certain garden; and that the plaintiff, against the will of the defendant, erected a ladder in the garden, and went up the ladder, in order to nail a board to the house of the plaintiff. The defendant forbid the plaintiff so to do, and desired him to come down; and that upon the plaintiffs persisting in nailing the board, he gently shook the ladder, which was a low ladder, and gently overturned it, and gently threw the plaintiff from it upon the ground, thereby doing as little damage as possible to the plaintiff. The throwing down of a ladder, upon which a person is standing, is not justifiable. Ryder Ch.J.—Such force, as was used in the present case, is not justifiable in defence of the possession of land. The overturning of the ladder could not answer the purpose of removing the plaintiff out of the garden; since it only left him upon the ground at the bottom of the ladder, instead of being upon it. Denison J.—As only the ladder was in the present case damage feasant, it was no more lawful to throw this down, whilst the plaintiff was upon it, than it is to distrain a horse damage feasant, whilst a man is upon the horse's back, which it is not lawful to do. • THROUGH THE COURT PROCESS. INJUNCTION ➢ May be provided separately or together with damages. ➢ Injunction is provided when the damages are found to be insufficient. ➢ Injunction is also provided when the fault is ongoing. ❖ Types of Injunction ➢ Prohibition / prohibitory - prohibits the defendant from continuing to commit a crime such as nuisance and trespass ➢ Mandatory - order the defendant to do something. It was given in cases where the plaintiff suffered serious damage

2. AMALIA SULAIMAN UKM LAW SCHOOL 2020 CASE: MORRIS V.REDLAND BRICKS LTD [1970] AC 652 Terms of mandatory injunction: • Most likely the plaintiff will have serious damage. • Insufficient compensation alone is not enough. • The defendant's actions were unreasonable. • The restraining order must clearly state what the defendant needs to do. The requirement of proof is greater for a party seeking a quia timet injunction than otherwise. * Quia timet injunctions refer to a type of injunction in English law obtained where a wrong is anticipated. Quia timet literally means "because he fears". According to the case Graigola Merthyr Co Ltd v Swansea Corpn to obtain a quia timet injunction there must be an immediate threat to do something. Lord Upjohn said: ‘A mandatory injunction can only be granted where the plaintiff shows a very strong probability upon the facts that grave danger will accrue to him in the future. As Lord Dunedin said in 1919 it is not sufficient to say ‘timeo’. [A-G for Canada v Ritchie Contracting]. It is a jurisdiction to be exercised sparingly and with caution but in the proper case unhesitatingly.’ and ‘[T]he court must be careful to see that the defendant knows exactly in fact what he has to do and this means not as a matter of law but as a matter of fact, so that in carrying out an order he can give his contractors the proper instructions.’ CASE: TAY TUAN KIAT V. PRITAM SINGH[1987] 1 MLJ 276 Plaintiff’s request that the court impose a mandatory order for the defendant to demolish and remove the retaining wall and build a new wall in the defendant's area. Held: plaintiff's request was denied. The court ordered the defendant to move the chain-link fence located on the retaining wall and build it along the joint boundary without entering the plainitiff area. Defendants also need to move the structures involved in the plaintiff's area.

3. AMALIA SULAIMAN UKM LAW SCHOOL 2020 DAMAGES #The purpose is to place the plaintiff in a position before the tort is committed CASE: LIM POH CHOO V. CAMDEN AND ISLINGTON AREA HEALTH AUTHORITY [1980] AC 174 Lord Scarman: compensation should be nearly as possible put the party who has suffered in the same position as he would have been in if he had not sustained the wrong. Facts The claimant was a senior doctor. She was admitted to a hospital operated by the defendant health service for a minor surgery. The following day in the recovery room she suffered a cardiac arrest which resulted in severe brain damage. She was barely sentient and entirely dependent on 24 hour carers. The defendants admitted liability but disputed the quantum of damages awarded at first instance. Issue There were two issues at stake on appeal: firstly, the general grounds on which an appellate court could properly reduce an award of damages; secondly, whether the claimant’s unconsciousness should be taken into account in assessing the loss of experience and amenity which she had suffered. Held The House of Lords held that the simple fact that an award was high was an insufficient for the Appeal courts to reduce it. It was necessary that some error in the judge’s reasoning should be identified. On the second issue, it was held that the claimant’s lack of consciousness did not alter the actuality of deprivation of the ordinary experiences and amenities of life which she had suffered. The defendant’s appeal against the quantum of the award was therefore dismissed; although high, the figure reflected the totality of her loss. Obiter the House suggested that radical overhaul of the law of damages for personal injury was required, but that it was not the place of the courts to implement such changes. CASE: ROBINSON V. HARMAN (1848) 1 EXCH 850 Facts Harman wrote to Robinson offering him a 21-year lease of a dwelling house in Croydon. He subsequently changed his mind and refused to complete the lease when he discovered the property was worth more than the agreed price. Robinson’s solicitor had enquired as to the nature of Harman’s title, and had been assured he was absolutely entitled to grant the lease. The property was actually

4. AMALIA SULAIMAN UKM LAW SCHOOL 2020 vested in trustees and Harman was only entitled to a portion of the property. Robinson brought an action for damages. Issues Robinson claimed there had been an agreement to grant a good lease of the premises and in reliance on this he had incurred expenditure in the sum of £20 in preparation of the lease. Further, he claimed, because of Harman’s breach of the contractual agreement, Robinson had lost great gains and profits which would have otherwise accrued to him. Harman asserted that Robinson had full knowledge at the time of the agreement that Harman did not have capacity to grant the lease. Therefore, he contended, Robinson was not entitled to recover damages for the purported breach of an agreement which he knew Harman was not entitled to make. Harman paid £25 into court and as this exceeded Robinson’s expenses in preparation of the lease, claimed there was no further liability in damages. Held Robinson successfully recovered damages for his expenses and for the loss of the bargain. Where a party agrees to grant a good lease in full knowledge that he does not hold the full title, the other party may recover damages which would so far as possible place him in the same position he would have been had the contract been performed. (restitutio in integrum- Restoration of an injured party to the situation which would have prevailed had no injury been sustained; restoration to the original or pre-contractual position.) ❖ GENERAL PRINCIPLE OF DAMAGES The general principle - compensation is given once for one tort offense ❖ EXCEPTION TO GENERAL RULE 1. Apabila dua hak plaintif dilanggar CASE: BRUNSDEN V. HUMPREY (1884) 14 QBD 141 First action - the plaintiff brought a claim alleging damage to the taxi as a result of the collision with the defendant. The second action - the plaintiff brought a claim for bodily injury. Held - the court allowed the plaintiff's second claim because it involved infringement of two different rights.

5. AMALIA SULAIMAN UKM LAW SCHOOL 2020 CASE: TALBOT V BERKSHIRE COUNTY COUNCIL [1994] QB 290 Considered the BRUNSDEN case was wrongly held. The second action can only be taken if there are 'special circumstances': When the plaintiff was unaware of this second claim when she brought the first claim; or Where there is an agreement between the plaintiff and the defendant that the action would be held in abeyance; or When the plaintiff does not enter the second claim into the first claim based on the statement made by the defendant - for example: the defendant has agreed to settle the claim for bodily injury outside of court. CASE: WAIN V F SHERWOOD AND SONS TRANSPORT LTD [1999] PIQR P 159 The plaintiff did not include a claim for bodily injury in the first claim because of the negligence on the part of his attorney. When the plaintiff brought a second action to sue for bodily authority, his claim failed because it did not fall in any "special circumstances" in the TALBOT case. CASE: MALBAI V NAWI (1968) 28 MLJ 99 Rigby J. : On the evidence it seems to me abundantly clear that there were separate and distinct assaults upon the plaintiff giving rise to two separate causes of action. Plaintiff’s injury was caused by two people [the defendant & (X)]. 2. When the plaintiff suffers a continuing injury - eg in the case of trespass and nuisance. CASE: DARLEY MAIN COLLIERY V MITCHELL [19886] 11 AC 127 Damages can only be made up to the day of judgment. No claim for future damage can be made. ❖ TYPES OF DAMAGES ➢ General Damages Given to plaintiff in return for the tort done towards him. A civil remedy aiming to restore the plaintiff at the position he was before the tort. Includes pain and suffering, loss of amenities, loss of future earnings and ability to find earnings. CASE: Halijah V Velaitham - P claimed compensation for loss of life and loss of property due to her husband's death. Court granted her RM4500 for the pain she suffered. CASE: Marappan V Siti Rahmah – P experienced severe brain damage which later caused him to be paralyze. Court awarded damages amounting to RM180 for the pain suffered and for the loss of amenities.

6. AMALIA SULAIMAN UKM LAW SCHOOL 2020 CASE: Multar V Lim Kiim Chet - There is no strong evidence of loss of future earnings. However, the court was satisfied that the appellant had lost the ability to obtain an earning. Therefore, damages are compensated for such incapacity and not as compensation for loss of future earnings. ➢ Special Damages o Damages which can be specified at the time of the trial. o Ie: cost of medical treatments, vehicle repairments ➢ Nominal Damages o As an acknowledgement that the plaintiff’s rights has been violated. o A small amount that is paid by both parties. CASE: CONSTANTINE V IMPERIAL HOTELS LTD (1944) KB 693 Defendant refused to give his hotel stay to plaintiff, a prominent Indian cricketer. However, the plaintiff was given accommodation in another defendant's hotel. Held: Defendant had breached his duty as innkeepers because defendant's refusal to provide accommodation to the plaintiff was considered inappropriate. The plaintiff was fined 5 guineas (+ RM2). CASE: GUAN SOON TIN MINING CO V. WONG FOOK KUM [1969] 1 MLJ 199 Defendants are liable even if the plaintiff has not suffered any damage. CASE: TAY TUAN KIAT V. PRITAM SINGH [1987] 1 MLJ 276 Thean J : On the Q of damages, there is no evidence that the plaintiffs have suffered any damage or loss as a result of the trespass…I therefore award to the plaintiffs only nominal damages in a sum of RM500. ➢ Contemptous damages / ganti rugi menghina o A very small amount awarded. o Court acknowledges plaintiff’s rights have been violated but the case has no merits. CASE: M.G.G PILLAI V. TAN SRI DATO’ VINCENT TAN CHEE YIOUN The Court of Appeal awarded RM10 million to the respondent / plaintiff. Gopal Sri Ram HMR: Damage to a person's reputation, compared to a physical injury, can bring about the same harm to him, if not more. Accordingly, this Court must record its adverse determination on any judicial policy that seeks to award small damages for defamation. And no one, especially a journalist, should be relieved to think that a person's reputation can be taken for granted as a result of only paying a few thousand dollars in damages. The time has come for this Court to send a strong and clear indication that defamation is not a cheap act.

7. AMALIA SULAIMAN UKM LAW SCHOOL 2020 Hj. Lamin Hj. Mohd Yunus PMR: The first appellant is internationally known and in this sense, it is undeniable that he has a quarter of the world as his readers. His plan, titled 'Press Manouvres', was written without the slightest hint of the effect of his words. His answers to the questions at the cross- examination clearly show that besides being disrespectful to the people and ignoring the dignity of others, he was also willing to speak to anyone who was a hindrance even without sufficient evidence. In this case, the 'aggravated' injunction made by the Judge below is accurate and correct. It is clear that the decision of this case should be exemplary to all journalists. ➢ Aggravated damages /ganti rugi meruncing o Not only suffers physical and financial injury, but also emotional injury ie embarassment o There are two types of damages: ▪ General damages ✓ Damages alleged (presumed) by law as a result of tort offenses ✓ Amount not set (unliquidated) ✓ Ex: pain and suffering; loss of future income; loss of earning capacity ▪ Special damages ✓ Damages or damages not deemed by law to result from tort offenses. ✓ The plaintiff must give notice in the case of the plaintiff for which he is seeking special damages. ✓ Can be assessed in liquidated form ✓ Need to submit a bill or receipt. ✓ Ex: hospital bills; loss of income up to the trial date. ➢ Exemplary damages /ganti rugi tauladan o Not only to compensate the plaintiff, but also as a lesson for the defendant. CASE: ROOKES V BARNARD (1964) AC 1129 Lord Devlin: Exemplary damages can be awarded in three categories as follows: Oppressive, arbitrary, unconstitutional actions done by servants of the government. "... in the case of the government it is different, for the servants of the government are also the servants of the people and the use of their power must always be subordinate to their duty of service".

8. AMALIA SULAIMAN UKM LAW SCHOOL 2020 The defendant's act has been done 'with guilty knowledge, for the motive tt the chances of economic advantage outweigh or exceed the chance of economic or perhaps physical penalty' - when the defendant's actions brought financial benefits to him beyond the compensation to be paid to the plaintiff. When the statute allows for the award of a model damages. CASE: CASSELL & CO LD V BROOME (1972) AC 1027 Describing the second word to Lord Devlin EFFECT OF DEATH S.8 (1) of the Limitation Act 1953 - when a person dies, all actions taken against him or her being brought, continue to exist except in cases of defamation, for the benefit of his estate. S.8 (3) - Proceedings against the deceased are retained only if they are pending his death or taken within 6 months from the date of death. REIMBURSE IN CASES INVOLVING DEATH S.7 (1) of the Civil Laws Act 1956 - when the death is due to tort, the party responsible for the death shall be liable for damages. S.7 (2) - every act is for the benefit of wife, husband, parents and children. Action must be taken on behalf of the deceased administrator. S.7 (3) - damages including damages for loss of support together with expenses incurred as a result of tort offenses. s.7 (3) (i). In assessing damages the following factors cannot be taken into account: • Any payment from an insurance company under an insurance contract; • Any payments received from the 'employees' provident fund'; • Any pension or gratuity paid for death; or • Any payment made under any written law. • Compensation for funeral expenses; • No damages shall be awarded to the parent on the grounds that they have lost the services of their children and no damages may be awarded to the husband on the ground that he has lost the service of his wife; iv. In assessing the loss of income after death, the court should: (a) i. if the deceased was 55 years old at the time of death, the loss of income for the period following his death cannot be accounted for; ii. In other cases (deceased not 55 years old), loss of opinion on period after death will be considered if:

9. AMALIA SULAIMAN UKM LAW SCHOOL 2020 - it is proven that the deceased was in good health, had it not been for the injury which led to his death; and - Will receive income at his own point of death or any gainful activity before his death. iv. (b) The court shall not take into account the increase in income after death. (c) The Court shall take into account the depreciation of the damages awarded. (d) Income loss calculations: - if the deceased is 30 years old and under, his (years' purchase) is 16. - if the deceased is between 31 and 54, the multiplier is 55 minus the age and divides the remainder by 2. Examples 1: Saturn 26 years old (16 x RM2000 = RM32,000) Ex 2: The 40-year-old (55-40 = 15/2 = 7.5 x RM2000 = RM15,000) s.7 (3A) - damages may include compensation for bereavement. Compensation for the loss of not more than 10,000 ringgit. s.7 (3B) - damages for grief may only be claimed by: (a) the deceased spouse; and (b) the parent, if the child is deceased and has never been married. s.7 (3D) - YDA may change the amount in s7 (3A) from time to time by posting it in the news.

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