Tort Case Law

The Court of Appeal held that landlords can be in sufficiently close proximity to lawful visitors of their tenants. Landlords bear responsibility for structural safety and compliance with structural safety laws — they may be liable for injuries sustained on the premises.

Relevant to the liability of a local authority as occupier in respect of public premises and infrastructure under their control.

Relevant authority on the standard of care owed by an occupier to persons entering the premises. Establishes the scope of the occupier's duty in the Malaysian context.

Private nuisance established in the context of a pig rearing business causing substantial and unreasonable interference with the neighbouring party's use and enjoyment of land.

Defendant blocked a stream during works, causing flooding. Defendant argued the works were authority-approved and that the flood was an Act of God. Court held this was both a negligence and nuisance case — the defence failed.

Arising from the 1993 Highland Tower collapse. Relevant to nuisance and negligence claims involving structural failures and damage caused to neighbouring properties.

Guardhouse and boom gate case. The Court held that not every inconvenience amounts to a nuisance — the interference must be substantial and unreasonable.

Malaysian authority applying the rule in Rylands v Fletcher — strict liability for the escape of a dangerous thing accumulated on land through non-natural use. The four requirements must be satisfied: dangerous thing escaped; accumulation on land; foreseeable damage; non-natural use of land.

The Bolam Test — a professional is not negligent if they acted in accordance with a practice accepted as proper by a responsible body of professionals in the same field, even if other practitioners would have acted differently. Applies to diagnosis and treatment.

Qualification of the Bolam Test — the body of medical opinion relied upon must be capable of withstanding logical analysis. A court is entitled to reject professional opinion that is not defensible on a logical basis.

Establishes the duty to advise on material risks — the standard for informed consent. A doctor must warn a patient of any material risk inherent in the proposed treatment. A risk is material where a reasonable person in the patient's position would be likely to attach significance to it.

The Federal Court affirmed the Rogers v Whitaker standard for informed consent in Malaysia, departing from the Bolam Test on the issue of risk disclosure. A doctor's duty to advise on risks is assessed from the patient's perspective, not the medical profession's.

The Federal Court reaffirmed both the Bolam Test (for diagnosis and treatment) and the Rogers v Whitaker standard (for informed consent and risk disclosure) as the applicable dual framework for medical negligence in Malaysia. Also refer to Zulhasnimar Hasan v Dr Kuppus 2017.

Relevant authority on whether an employee's act was committed in the course of employment for the purposes of vicarious liability. Examines the scope of employment and whether the employer is liable for the employee's wrongful act.

The Federal Court applied the "close connection" test — asking (1) what fields of activities the employee was engaged in, and (2) whether the wrongful act was closely connected to those activities. Employers can be vicariously liable even for intentional, unauthorised wrongs if closely connected to employment. Applied similarly to Mohamud v WM Morrison Supermarket Plc.

Relevant authority on contributory negligence as a partial defence under s.12 of the Civil Law Act 1956. The Court apportions liability by a just and equitable percentage based on each party's degree of fault — contributory negligence does not extinguish the defendant's liability entirely.

Reasonableness of the item claimed is assessed on the facts. Traditional medicine costs can be claimed as special damages where reasonable in the circumstances.

Medical expenses incurred at a government hospital are claimable as special damages.

Where there is no proof that the private hospital had treatment unavailable at a government hospital for the particular condition, private hospital costs are not claimable. However, they can be claimed if reasonable in the circumstances — see Yaakub Foong and Chai Yee Chong.

Private hospital costs can be claimed where it was reasonable on the facts for the plaintiff to seek treatment there.

Transportation costs incurred by the plaintiff's family in visiting the plaintiff during hospitalisation and for outpatient treatment are claimable as special damages.

Nursing care costs are claimable as special damages where the need for nursing care is proved. The multiplicand for care costs is assessed by reference to market value, wages lost by the carer, and future care costs at a private institution.

Gratuitous care provided by a spouse is claimable as special damages. The value of such care is assessed at market value — the reasonable cost of equivalent professional nursing care.

Where a family member gives up employment to provide care for the plaintiff, the wages lost by that carer are claimable by the plaintiff as special damages, assessed at market rate. The plaintiff's loss is the need for care itself — it is irrelevant whether the services were provided gratuitously or whether there was any legal obligation to reimburse the carer.

The cost of future care at a private institution is claimable as a head of special damages where such care is reasonably required.

The plaintiff is under a duty to take reasonable steps to mitigate their loss. Failure to mitigate may result in a reduction of the quantum of damages awarded.

A plaintiff who is rendered unable to work loses not only their salary but also the employer's statutory EPF contribution, which forms part of their overall remuneration. The loss of the employer's portion of EPF contributions is claimable as a head of special damages.

These cases are relevant to the assessment of general damages for pain and suffering and loss of amenities. The plaintiff's state of consciousness and sentience at the time of injury and thereafter is material — a plaintiff who is conscious and aware of their condition may recover more than one who is not.