NATURE AND SCOPE OF LAW OF TORTS

DR. SONNY ZULHUDA

INTERNATIONAL ISLAMIC UNIVERSITY MALAYSIA

KEY POINTS

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DEFINITION OF TORTS

ELEMENTS OF TORTS

NATURE AND SCOPE

SOURCES OF LAW

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KEY CONCEPTS OF LAW OF TORTS

Definition

Common law, non-statutory

Civil, non-contractu

al, not criminal

Remedy: Compens

ation

Protected interest

Legal wrongs

Parties: Individuals,

Government, Companies

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• Torts is a group of civil wrongs, corrected through civil actions.

• Torts is based on common law principles, not being written statutes

• Torts is not based on contractual obligations.• Contract may be helpful in determining

the standard required in negligence cases• Torts law protects variety of interests

including physical and mental well-being, personal safety, property as well as one’s reputation.

• Threat to those interests leads to harm• Parties in torts seeking compensation for

themselves, not a punishment for the other.• Remedies include unliquidated damages and

injunctions.

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ELEMENTS OF TORTS

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Wrong

• eg: Negligence

• Trespass to body, land or property

Damage

• Body injury

• Property damage

• Reputation loss

Remedy

• Monetary damages

• Injunction

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Differences between “WRONG” under different branches of law

MATTER TORTS LAW CONTRACT LAW CRIMINAL LAW

Objectives?

Disputing Parties?

Courts and Procedure?

Sanctions? Types of

Damages?

Sources of Law?

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DIFFERENTIATING TORTS FROM OTHER WRONGS

Consider this incident, enlist the various wrongs and their potential remedies!

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DIFFERENTIATING TORTS FROM OTHER WRONGS

Consider this incident, enlist the various wrongs and their potential remedies!

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DIFFERENTIATING TORTS FROM OTHER WRONGS

Consider this incident, enlist the various wrongs and their potential remedies!

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TYPES OF TORTS

Trespass

Nuisance

Defamation Negligence

Strict Liability

Others

•Defamation: Ridiculing statements, published or otherwise• Trespass: Unlawful encroachment

of land and property•Nuisance: Disturbance over

enjoyment of land•Negligence: Breach of duty• Strict liability: escape of harmful

non-natural thing on land.•Others: assault, battery,

conversion, harassment, privacy breach, wrongful imprisonment, etc.

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TYPES OF TORTS

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IS INTENTION REQUIRED TO PROVE TORTS?

•Yes, eg.•Trespass•Defamation

yes no

• No, eg. Tort of NegligenceTort under the Rule of Rylandsv Fletcher (i.e. Strict liability)

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TORTS VS OTHER COMPENSATION SCHEMES

When mishaps happen, what may ensue?

Torts litigation

Out-of-court settlement

Resort to insurance

Workers’ compensation scheme

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APPORTIONMENT OF DAMAGES

Contribution of liability

• Individual: One person commits the wrong

• Joint: Two or more commit the wrong

• Contributing claimant: Claimant’s own wrong led to harm

Level of involvement

• Primary: A person directly involved and committed the wrong by himself

• Vicarious: Not directly involved, but liable due to his/her role in relation to the primary defendant

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Torts Law or Latin Class?

Where there is a right, there is a remedyUbi jus ibi remedium

A damage without a wrongful actDamnum sine injuria

An injury without a damageInjuria sine damno

The thing speaks for itselfRes ipsa loquitur

To a willing person, no injury is doneVolenti non fit injuria

From an immoral consideration an action does not ariseEx turpi causa non

oritur actio

Ignorance of the law is no excuseIgnorantia juris non

excusat

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STAGES OF DEVELOPMENT OF LAW OF TORTS

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Sources of Law of Torts in Malaysia

Judicial Decisions

Statutes (Acts of

Parliament)

English Common Law (CLA

1956)

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Torts Law in Syariah perspective: Explore from the Quran and Hadith of Prophet!

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WHEN TORTS HAPPEN…

• Harm: body injury, emotional injury (psychiatric), financial, reputational

• Who suffers: individual, group of people, company

Harms/Damage: Who suffers what?

• Wrongdoer: alone, joint, several; direct, indirect

• Contribution: Self-inflicted; Self-contributed

• No need of proof of actual damage: Trespass & Libel

Who causes the harm/damage? • Against the law

• Torts vs other wrongs

What wrong was committed?

• Statute: immunity, limitation

• Morality/public policy: Ex ex turpi, necessity

• Others: consent, self-defence, mistake, act of god, inevitable accident

Any justification or defense?

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THE ENDFEEDBACK: sonny@iium.edu.my

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