GENERAL DEFENCES IN TORTS 1 DR SONNY ZULHUDA

GENERAL DEFENCES IN TORTS 1 DR. SONNY ZULHUDA

Background • Right to compensation under law of tort must be brought through LEGAL ACTION (Plaintiff v Defendant). • P must cite grounds as the CAUSES OF ACTION, e. g. : Negligence, Trespass, Nuisance, Defamation, Wrongful Imprisonment, etc. • D has the RIGHT TO DEFEND himself by citing certain factual and legal grounds. These grounds are called DEFENCES. • If the court approves such defence, it can ELIMINATE or REDUCE liability.

General Defences • • Volenti Non Fit Injuria (VNFI) Necessity Inevitable Accident Illegality Mistake Act of God Private Defence Statutory Authority

VOLENTI NON FIT INJURIA

• VNFI = Consent = Voluntary assumption of risk! • “One who has invited or assented to an act being done towards him cannot, when he suffers from it, complain of it as a wrong. ” Lord Herschell in Smith v. Baker [1891] A. C. 325, 360.

• VNFI = Consent. But occasionally courts give different meaning: – “Consent applies when the plaintiff does give consent; whereas VNFI applies when he does not consent but so conducts himself as to lead the D to believe that he does. ” (Sir John Donaldson M. R. in Freeman v. Home Office (No. 2) [1984] • Consent can be implied from conduct or expressed in words – E. g. participating in a boxing match – Presenting one’s arm for injection – Smoking cigarettes!

Requirements to Prove VNFI • Generally the D will have to prove two things: 1. That P knows about the Risk; AND 2. That P consents to such Risk “if the def desire to succeed on the ground that the maxim VNFI is applicable, they must obtain a finding of fact that the claimant freely and voluntarily, with full knowledge of the nature and extent of the risk he ran, impliedly agreed to incur it. ” Letang v. Ottawa Electric Rly Co [1926]

ICI v Shatwell [1964] • The plaintiff and his brother were certificated and experienced shotfirers employed by ICI Ltd in a quarry owned by the defendant company. • Their work included wiring up detonators and checking the electrical circuits. There was an old practice where a galvanometer was applied directly to each detonator for testing purposes. This practice was known to be dangerous and was outlawed by statutory regulation. • The explosion took place. The plaintiff claimed his brother was to blame for the explosion, but the employer (defendant) was vicariously liable.

ICI v Shatwell [1964] • The plaintiff was awarded half of the total amount of damages. The defendant appealed. • Court: The plaintiff and his brother were both experts. They freely and voluntarily assumed the risk involved in using the galvanometer. There was no pressure from any other source. To the contrary, they were specifically warned about complying with the new safety regulations. • The defence of volenti non-fit injuria will apply when there is true and free consent to the risk. • The court found the plaintiff had consented to the injury. The defendant/employers were not vicariously liable.

Smith v Baker & Sons [1887] • P, a servant of the defendant railway contractors, was drilling holes in rock cutting. He worked in a condition where there was continuous stone-removal work operating by crane over his head. A stone fell out of a crate and injured P. P took action against the employer. • Held: v Mere continuance of work did not indicate that P acted voluntarily. v The Q was not whether he voluntarily and rashly exposed himself to injury, but whether he agreed that, if injury should befall him, the risk was to be his not his masters. v Whether working under this circumstances is an “assumption of risk” depends upon the nature of the risk, and the workman’s connection with it, as well as other various circumstances. .

Kanagasabapathy v. Narsingam – The P, a toddy-tapper was required by the D (employer) to tap 25 coconut trees twice daily. – The P had complained several times about the slipperiness of the steps due to mossy growth and rain. D did not take action. – One day P fell and injured himself. P sued D, D argued that by continuing the work, P had consented! – Court disagreed and held D liable for negligence for failure to provide a reasonably safe system of work. – Court said P was AWARE of risk BUT he did not consent to it and therefore VNFI can’t apply. Q: Was there a knowledge of the risk? Was there a consent to assume the risk?

Nettleship v. Weston • D asked P to teach her driving. Before agreeing, P inquired about the car’s insurance policy. • During one of the lessons, D lost control of the car and caused an accident, injuring P. • The defendant argued that the plaintiff was well aware of her lack of skill and that the court should make allowance for her since she could not be expected to drive like an experienced motorist. • Court was in favour of P. Held that VNFI does not apply because P did not consent to the injury. Q: Was there a knowledge of the risk? Was there a consent to assume the risk?

Bowater v. Rowley Regis Corporation [1944] The plaintiff, a carter employed to collect road sweepings by a municipal corporation, was ordered by his foreman to take out a horse which, to the knowledge of both of them, had run away on at least two previous occasions when driven by a fellow employee. • The carter protested, but the foreman said that it was an order of the borough surveyor. • Some weeks later, the horse ran away and the plaintiff was thrown from his cart and suffered personal injuries. • P took action against the corporation, alleging that they had failed in their duty to provide him with a horse which was safe and suitable for the work which he had to perform.

Bowater v. Rowley Regis Corporation [1944] • Court: “A man cannot be said to be truly ‘willing’ unless he is in a position to choose freely, and freedom of choice predicates, not only full knowledge of the circumstances on which the exercise of choice is conditioned, so that he may be able to choose wisely, but the absence from his mind of any feeling of constraint so that nothing shall interfere with the freedom of his will. ” • For this maxim or doctrine to apply it must be shown that a servant who is asked or required to use dangerous plant is a volunteer in the fullest sense, that, knowing of the danger, he expressly or impliedly said that he would do the job at his own risk and not at that of his master. • IN sum: – A person is said to be voluntarily assuming the risk if he is in a position where he has a choice. – He must have full knowledge of the circumstances in which he has to make the choice, so that he may make a reasonable choice

Bowater v. Rowley Regis Corporation [1944] • Goddard LJ: – A corporation carter or dustman is not like a horsebreaker because he is also a horse-keeper. It is no part of his duty to break or tame the horse which draws the dust cart. – For this maxim or doctrine to apply it must be shown that a servant who is asked or required to use dangerous plant is a volunteer in the fullest sense, that, knowing of the danger, he expressly or impliedly said that he would do the job at his own risk and not at that of his master. – The evidence in this case fell far short of that, and, in my opinion, the plaintiff was entitled to recover.

Consent in Sport? • Consent to an injury applies when the injury is the kind which is inherent and it happens under normal circumstances of the sport under its rules. This applies to anyone who is involved: the sportsman, officials, reporters, spectators, etc. • However, depending on the circumstances, consent may be disregarded even if the game observed the rules. – Affutu-Nartey v Clarke

Wooldridge v Sumner [1963] • A person attending a game or competition takes the risk of any damage caused to him by any act of a participant done in the course of and for the purposes of the game or competition. • That is notwithstanding that such an act may involve an error of judgment or lapse of skill – unless the participant’s conduct is such as to evince a reckless disregard for the spectator’s safety. ” per Diplock L. J.

Condon v Basi [1985] • Issue arose between participants in amateur league football match and substantial damages were awarded for injuries arising from a tackle. So, VNFI was not applicable. Why? It was described as: “made in reckless and dangerous manner not with malicious intent towards the plaintiff but in an excitable manner without thought of the consequences. ”

VNFI in rescue cases For public policy reason, it is not preferred by the court. Chadwick v. BRB Prof. Goodhart: ”The American rule is that the doctrine of the assumption of risk does not apply where the plaintiff has, under an exigency caused by the defendant’s wrongful misconduct, consciously and deliberately faced a risk, even of death, to rescue another from imminent danger of personal injury or death, whether the person endangered is one to whom he owes a duty of protection, as a member of his family, or is a mere stranger to whom he owes no such special duty. ” See: Haynes v. Harwood [1935]; Cutler v. Utd. Dairies [1933}

NECESSITY

Necessity • Used in cases “altruistic” in nature – unselfish concern for the welfare of others: other people, other people’s property or public property. • To be applicable, a great danger must be imminent, or that the act was done in order to save lives – Lord Denning in Southwark London Borough Council v Williams [1971]. • Limited application – especially on urgent situation of imminent peril, actual danger and necessity. • In modern time, more use on medical and surgical cases, i. e. when a surgery is necessary even though no prior consent was given. Esp. in cases of emergency and life-threatening AND where similar treatment was done in the past that has been consented. • Can be either PRIVATE or PUBLIC necessity

Cope v Sharpe [1912] • Fire on P’s land – D stepped in to set the fire to a heather to protect his pheasants – sued for trespass to land. • D not liable as there was real and imminent danger at the moment and therefore what he did was reasonably necessary. Rigby v Chief Cons. of Northamptonshire [1985] • A dangerous psychopath entered P’s shop – to flush out that person, D (a policeman) fired a canister of gas into the shop – the gas caused a fire which damaged the shop – D was sued in trespass and raised necessity as defence. • Court: necessity could be raised if the occasion of necessity does not arise from the defendants own negligence. • Held: Necessity applied, therefore no trespass.

INEVITABLE ACCIDENT

INEVITABLE ACCIDENT • Defined by Sir Frederick Pollock as and accident “not avoidable by any such precautions as a reasonable man, doing such an act then and there, could be expected to take. ” • People must guard against “reasonable probabilities”, not “fantastic possibilities” (Fardon v. Harcourt-rivington} • “An inevitable accident in point of law is… that which the party charged with the offence could not possibly prevent by the exercise of ordinary care, caution, and maritime skill. ” – Per Sir James Colville in The Marpesia [1872] L. R. 4 P. C. 212

INEVITABLE ACCIDENT • Che Jah binte Mohamed Ariff v CC Scott [1952] MLJ 69 – P was a passenger in the D’s car which crashed into a stationary car causing injuries to P. D gave evidence about previous reparation and maintenance activities. Brakes were repaired and tested, and functioned well. – Court: the brake defects were latent defect and as the D has employed skilled labour, no negligence can be attributed. – Defence of inevitable accident applicable.

INEVITABLE ACCIDENT The defence of Inevitable accident could not apply in the following cases: • Tangachimmah v Flower [1968] MLJ – D’s car windscreen shattered then completely obscured his view. Thus collided with the deceased cyclist. – Court: D failed to discharge the onus on him to show that the cause of accident was a cause not produced by him, the result of which he could not avoid. The defence failed.

INEVITABLE ACCIDENT Zainun bt Abdul Ghani v. Chong Ah Seng: • Defence of Inevitable Accident failed when D’s car knocked down a cyclist after the tyre suddenly burst, Court found D negligent in using worn-out equipment, i. e. almost bald tyre. • To displace the presumption, D must go further and prove that the burst tyre itself was due to specific cause that does not connote negligence on their part.

INEVITABLE ACCIDENT Zainun bt Abdul Ghani v. Chong Ah Seng: • The burden of proof is upon the Defendant • D will escape liability if he succeeds in proving that the accident occurred despute the exercise of reasonable care on his part. • He must either: – Show what was the cause of the accident that the result of which was inevitable, or – Show all the possible causes which produced the effect, and that the result of these was unavoidable

DEFENCE OF ACT OF GOD

Act of God • Very limited application – even less favorable given the advance level of mankind’s knowledge and technology • It is required that the damage/loss occurs through natural causes which are unforeseeable and occur without any human intervention – court in Tennent v Earl of Glasgow [1864]. • Test: whether a foresight and rationality may comprehend the possibility of the event occurring, or whether the event could have been reasonably anticipated or prevented. – Natural danger escaped through a natural cause is an Act of God. – Artificial danger through a natural cause is hardly!

Kwan Sun Ming v. Chak Chee Hing [1965] • An action for damages for breach of contract or alternatively damages for negligence arising out of a contract to tow logs from Kampong Abai to Sandakan. • The defence by Appellant was that the 253 logs were lost in a storm so violent as to amount to an "act of God" and the defendant should be excused from all liability for damages. • The learned judge held that although there was a storm it was not a storm violent enough to be regarded as an "act of God" and gave judgment against the defendant (appellant).

Kwan Sun Ming v. Chak Chee Hing [1965] Wylie CJ: • An act of God, in the legal sense of the term, may be defined as an extraordinary occurrence or circumstance which could not have been foreseen and which could not have been guarded against; • or, more accurately, as an accident due to natural causes, directly and exclusively without human intervention, and which could not have been avoided by any amount of foresight and pains and care reasonably to be expected of the person sought to be made liable for it, or who seeks to excuse himself on the ground of it. .

Nichols v. Marsland (1876) • A heavy rainfall caused the embankments of D’s artificial lakes collapse and water from the lake swept away four bridges that belong to P – P took action in negligence. • Court applied Act of God as it was not reasonably foreseeable and D was not negligent. Note; this decision was questioned in Greenock

Greenock Corp. v. Caledonian Railway [1917] • Another heavy rainfall caused D’s pool to flood – water from pool flowed to highway and then onto P’s land – causing damage to P’s property – D used the defence of Act of God. • Court did not accept the Act of God and held that D was negligent. • Reason: In collecting and damming up the water of a stream, D had a duty to ensure that people of lower ground would not be injured or adversely affected as a consequence of their activities. • Thus: the INTERFERENCE creates such duty on D!

CMW Engineering Corporation Sdn. Bhd VS Hotrade Sdn. Bhd [In the High Court in Sabah and Sarawak at Kuching, Civil Appeal no. 12 b-11 -2010 -ii] FACTS: • The plaintiff is a distributor of power tools whereas the defendant is a public transport company. • On 14 th September 2007, the parties had entered into an agreement whereby the defendant would transport the plaintiff’s power tools from Kuching to Miri. ISSUE: Whether the goods were destroyed by • The goods never reached their an act of god? destination as the trailer caught fire and some of the goods The court referred to the decision in Federal including the plaintiff’s goods were Court in Kwan Sung Ming which held that the completely destroyed. The plaintiff event must be one which could not have been claimed for damages. foreseen and which could not have been guarded against.

CMW Engineering Corporation Sdn. Bhd VS Hotrade Sdn. Bhd [In the High Court in Sabah and Sarawak at Kuching, Civil Appeal no. 12 b-11 -2010 -ii] RAVINTHRAN PARAMAGURU JC: • In the instant case, the defendant’s witnesses testified that the trailer had been sent for regular inspection. • Merely because the defendant did not know what caused the fire does not qualify it as an Act of God as the vehicle is a man made mechanical contraption. • It is obvious that the fire was caused by either human intervention or some “The Sessions Court Judge was therefore mechanical or electrical fault since plainly wrong in ruling that the fire was there was no evidence that the fire was caused by an act of God merely becaused by a natural event such as the cause of the fire was unknown. He lightning striking the trailer. omitted to take into account whether • In my opinion, the defendant 5 has not human intervention or natural causes made out a case that an act of god resulted in the fire. ” caused the fire.

PRIVATE DEFENCE

Private Defence • Private defence or self defence is a very natural thing for survival and prevention of repeated strikes against him/itself. • To be applicable, 2 tests: IS IT REASONABLE TO APPLY VIOLENCE? YES NO IS THE VIOLENCE USED PROPORTIONATE TO THE STRIKE? YES Private Defence Applicable NO Private Defence NOT applicable

Defence of person • Question to pose: is the danger imminent? Lane v Holloway [1968] • In a fight due to words exchange between P & D’s wife, P hit D on the shoulder – D retaliated causing P to suffer injury that requires 16 stitches. • Lord Denning: D should not have taken P’s words as a challenge due to their age difference. The violent retaliation was unreasonable and not proportionate. Self defence was not applicable.

Defence of Property Holmes v Baggae [1853] • Defence of property can be raised by someone who has the right of possession to the property. • P & D members of a cricket club – P was forcibly removed from cricket field by D’s direction – In action for assault D uses defence of property • Court: defence cannot be used as D does not have possession of the property i. e. the cricket field. (because it was possessed by the committee of the club, not by the D) Creswell v Sirl [1947] • P’s dog chased D’s sheep, causing it to miscarry – D shot P’s dog – Argued the defence of property. • Court: two tests to be proven: (1) the sheep was in actual & imminent danger; and (2) if the dog is left at large, this would leave the sheep in constantly imminent danger. Court approved the defence

ILLEGALITY

DEFENCE OF ILLEGALITY • WHAT? – The principle: no court ought to enforce an illegal contract or allow itself to be made the instrument of enforcing obligations alleged to arise out of an illegal transaction – Maxim: “EX TURPI CAUSA NON ORITUR ACTIO” "from a dishonorable cause an action does not arise“ – It is about serving public interest, not taking side to the defendant!

ILLEGALITY • HOW? – It is applied when the illegality is duly brought to the notice of the court and the person (plaintiff) is himself implicated in the illegality – Scott v Brown [1892] – The def must establish: • That the plaintiff’s conduct is so clearly reprehensible as to justify its condemnation by the court, and • That the conduct is so much a part of the claim against the defendant as to justify refusal of remedy to plaintiff

ILLEGALITY Consider the two possibilities: 1. Two burglars, A and B, agree to open a safe by means of explosives, and A negligently handles the explosive charge and injured B, can B take action for negligence against A? 2. If A and B are proceeding to premises which they intend burglariously to enter, and before they enter them, B picks A’s pocket and steals A’s watch, can A sue B in tort? • Per Lord Asquith in National Coal Board v. England [1954] A. C. 403, 429.

Applied in cases involving joint participants in crime… • Ashton v. Turner [1981] QB 137 – P and D committed burglary and escaped from the scene in a getaway car. – They were met by accident, injuring P. – P’s claim for negligence failed

Pitts v. Hunt [1990] All ER 344 • After an evening’s drinking, P and D set off home on a motorcycle which D was, to P’s knowledge, neither licensed nor insured to ride. D’s alcohol level was twice that permitted. • Encouraged by P, D drove in a reckless and hazardous manner in order to frighten members of the public. • An accident occurred, P injured. • Court of Appeal: P’s action failed on the ground of public policy (i. e. engagement in illegality, and court’s reluctance to frame standard of care on a detailed criminal activity)

Local cases on Illegality • Chua Kim Suan v. Govt. of Malaysia [1994] 1 MLJ 394 – Plaintiff was a taxi driver without legal license. He met an accident and was killed. Losses were not claimable as it would be against public policy. Tay Kian Hock v. Kewangan Bersatu Bhd. [2002] 4 MLJ 411 • Claim for conversion was not successful when plaintiff’s conduct (not returning the D’s equipment) has formed integral part of the conversion by D. It was against public conscience to allow the claim.

STATUTORY AUTHORITY

Statutory Authority • Statute may absolve defendant’s liability subject to certain requirements that may differ from one statute to another, from one matter to another. • Example: – Under s. 19 Civil Aviation Act 1969: “No action shall lie in respect of trespass or in respect of nuisance, by reason only of the flight of aircraft over any property at a height above the ground, which, having regard to wind, weather, and all the circumstances of the case, is reasonable, or the ordinary incidents of such flight, so long as this Act and any subsidiary legislation made under this Act are duly complied with. . ”

STREET, DRAINAGE AND BUILDING ACT 1974 • Section 95. Protection of the State Authority and officers from personal liability. • (1) No matter or thing done and no contract entered into by any State Authority and no matter or thing done by any officer employed in the administration of this Act or other person whomsoever acting under the direction of any State Authority shall if the matter or thing was done or the contract was entered into bona fide for the purpose of executing this Act, subject them or any of them personally to any action, liability, claim or demand whatsoever.

STREET, DRAINAGE AND BUILDING ACT 1974 Section 95 (2) • The State Authority, local authority and any public officer or employee of the local authority shall not be subject to any action, claim, liabilities or demand whatsoever arising out of any building or other works carried out in accordance with the provisions of this Act or any by-laws made thereunder or by reason of the fact that such building works or the plans thereof are subject to inspection and approval by the State Authority, local authority, or such public officer or employee of the State Authority or the local authority…

Majlis Perbandaran Ampang Jaya v Steven Phoa Cheng Loon [2006] • After the collapse of Block 1 of Highland Towers in Ampang in 1993, the local authority MPAJ (the appellant) promised the respondents that a master drainage plan for the affected area on the hill slope behind Highland Towers would be formulated and implemented so as to ensure the stability and safety of the adjacent Blocks 2 and 3 occupied by the respondents. However, MPAJ failed to carry out the plan. • The respondents then filed a suit in the High Court against various parties including the appellant MPAJ, for negligence and nuisance. • The learned trial judge found the appellant who was the fourth defendant in the case to be 15% liable for negligence in respect of the appellant's acts and omissions prior to the collapse of Block 1 of the Highland Towers.

Majlis Perbandaran Ampang Jaya v Steven Phoa Cheng Loon [2006] • However, he held that s 95(2) of the Street, Drainage and Building Act 1974 ('the Act') operated to indemnify the appellant of any pre-collapse liability but provided no protection to the appellant for postcollapse liability. • At the Federal Court, the appellant appealed against the decision of the Court of Appeal in affirming the High Court's finding that the appellant was 15% liable to the respondents for negligence and nuisance. – The respondents' cross-appeal was aimed at the Court of Appeal's decision that their cause of action against the appellant for alleged post-collapse liability lay in the area of public law and not private law. • Federal Court allowed Appellant’s appeal and dismissed respondent’s cross appeal.

Mistake • Mistake can be: – Mistake of law Ignorantia juris non excusat! – Mistake of fact very limited application • Very limited applicability as a defence – Not applicable in conversion e. g. Consolidated Co. v. Curtis [1892] • In that case: def (an auctioneer) was held liable in conversion to plaintiff when he sold off his goods under a mistaken belief that the goods belonged to someone else who gave instruction to sell off the goods.

Cheng Hang Guan v. Perumahan Farlim (Penang) Sdn. Bhd. [1993] • The plaintiffs (P 1, P 2 and P 3) claimed that at all material times, they were and are lawful and protected tenants and that they were entitled in law and equity to possession of the plot concerned. The plaintiffs' claim against the defendants was founded on trespass and nuisance allegedly committed by the defendants • D carried out the demolition works concerned in the honest belief that they were entitled to do so • Their mistaken view of the law as to the availability of self-help, is no defence to an action for trespass. • Court allowed the plaintiff’s claim: Trespass is normally associated with intentional acts even though committed by mistake, for mistake is no defence and is no answer to the claims for exemplary damages, having regard to the particular circumstances of this case.

Revision Undestand the Following: • Types and Meaning of Defence • legal Requirements of Applicability • Prominent Features/incidents • Caselaws (Reasons of the decision