TOPIC 1: DEFAMATION

Chok Foo Choo v. The China Press Element 1: Words (2 stages) 1. Determine whether the words complained of
Bhd must be defamatory are capable of bearing a defamatory meaning.
2. Whether the words complained of are in fact
defamatory
Penfold v Westcote (You are a thief) • The defendant called the claimant a thief
amongst other abusive words
[1806] 2 B&P (NR) 335 • At court, He argued that the words and
expressions surrounding the word ‘thief’
proved that he did not intend to impute
felony – he only used the word in the heat of
the moment.
• The court held in favor of the defendant.
• the manner in which the words used were
pronounced and also other circumstances,
which could explain the meaning of the word
should be considered.
Byrne v Deane (Golf member – • It was a rule that members could not put any
gambling) notices or posters without the secretary’s
[1937] 1 KB 818 consent in the club premises.
• They had gambling machines in the club for
exclusive members only.
• Police removed the machines after they got
notified about it.
• After that, an anonymous poem was pinned
to the wall implying that the mystery
informant was the claimant.
• The claimant brought an action in Libel as
those words were implying that the claimant
was disloyal to the other club members
• Held: words of the verse in the poster could
not be defamatory.
• Moreover, it was argued that there was no
evidence that any of the defendants had
anything to do with the verse’s publication.
Berkoff v Burchill and another (Frankestine) • The first defendants were journalist/film critic
and the newspaper publisher.
[1996] 4 All ER • In one review, the film critic described the
1008; [1997] EMLR 139 claimant as;
‘notoriously hideous-looking’,
“only marginally better-looking than the
creature in Frankenstein”.
• The claimant sued for libel.
• The court held in favour of film critics
• This is because, words that do not imply
disgraceful conduct or lack of business
efficiency can still be defamatory if they
cause the claimant to be subject to ridicule,
contempt or exclusion from society.
 • However, insults not attacking a person’s
standing in society cannot constitute libel.
• Secondly, claiming that someone was ugly
was different from attacking someone based
on his physical condition, where the latter
were statement of fact.
• Calling a person ugly was a subjective
perception and no right-minded person
would exclude another purely based on the
subjective perception of a third person.
Tolley v Fry & Sons Ltd (Iklan – golf) • P was an amateur golfer and D depicted him
as though endorsing D’s product, which was
[1931] AC 333 against the rules of amateur golf.
• P sued D for defamation
• D claimed that the advertisement damaged
his reputation as it implied that he broke the
rules of amateur golf.
• The court held in favour of the P.
• This is because, in the circumstances of this
case, the caricature was capable of
constituting defamation.
• In other words, the publication could have
the meaning alleged by the claimant.
Lee Kuan Yew v. JB Jayaratnam Innuendo • In 1976 general election, Jeyaretnam
delivered a speech during the lead-up to the
election saying that Mr Lee Kuan Yew has
managed his fortunes very well and he would
not manage his fortune as well as LKY if he
became a PM.
• But what he actually meant was the PM had
gained personal advantages from his position
• The court held that the defamation was
established
Abdul Khalid@Khalid Jafri bin Bakar Element 2: The words “Caled Jeffry” • The plaintiff claimed that the word “Caled
Shah v Parti Islam Se Malaysia must refer to the Jeffry” and “Pulp Dalil” that has been used in
Plaintiff an article of a newsletter was actually
referred to him, Khalid Jafri and his book
called 50 Dalil Mengapa Anwar Tidak Boleh
Jadi PM
• The judge held that by reading that
publication in its entirely, he had no
hesitation in concluding that the word “Caled
Jeffry” was indeed meant to refer to the
Plaintiff and no other.
Morgan v Odhams Press (kena tangkap • The defendant was a journalist.
gambar, pastu viral • The journalist was working on collecting
kena culik) materials for the dog doping gang story.
• The defendant had the key witness under his
surveillance while investigations were on.
• The witness went to see the claimant with
whom she was seen in public.
• The witness was taken back under the
surveillance until the gang members were
arrested.
 • When the defendant published the story, it
included a photograph of the witness with
her name on it.
• Another article, which was published later,
stated that the witness was kidnapped by
members of the gang.
• The claimant brought an action for libel,
saying that by suggestion the article
associated him with the gang and the
kidnapping.
• The court held that held that one must first
consider the nature of the article and the
class of readers likely to read it.
• The Court further held that the article would
be defamatory if it contained defamatory
imputations and pointed to the claimant as
the person to be defamed.
• The Lords were of the view that in the
present case the article complied with these
requirements and was thus defamatory
Newstead v London Express (Bigamy trial, Harold • A newspaper published details of a bigamy
Newspaper Ltd Newstead) trial and referred to the accused as “Harold
Newstead, thirty-year-old Camberwell man.”
• Another man by the name of Harold
Newstead, also from Camberwell and aged
around thirty, brought an action in libel
against the newspaper.
• He claimed that the article had been
misunderstood as referring to him
• The defendant newspaper admitted
publication of the account but denied that
they were intended or understood to refer to
the plaintiff or that they were defamatory of
him.
• The court noted that it is established law that
liability for libel does not depend on the
intention of the defamer, but on the fact of
the defamation.
• The court held that a newspaper publisher,
must be aware of the possibility of individuals
with the same name and must assume that
the words published will be read by a
reasonable man with reasonable care.
• The Court further held that a reasonable man
may have understood the words complained
of to refer to the plaintiff.
• The fact that the words were true of another
person was not a valid defense against a
claim of libel.
Knuppfer v London Express (international • Knuppfer was the head of the British branch
Newspapers socialist group, of an international socialist group.
member of firm) • London Express published a newspaper
article which alleged association between
Hitler and the Party.
 • Whilst Knuppfer was not named individually
in the article, witnesses at trial intimated that
they understood the article as referring to
Knuppfer.
• The Court rejected their claim as class of
people cannot sue unless “the words would
reasonably be understood as published of
each member of the firm or each trustee or
tenant”
• It is an essential element of defamation that
the words complained of should be published
“of the plaintiff.”
Le Fanu v Malcolmson (Some of the Irish • The Plaintiffs were the owners of various
factories, ill- factories in Ireland.
treatment) • They raised an action of libel against
newspaper publishers.
• The contentious publications concerned
alleged ill-treatment of workers in the
factories including excessive working hours
and cruelty amounting to effective slavery
• The court said that if the defamatory
publication refers to a class of people, but the
descriptions in the publication can be applied
directly to an individual in that group, then an
individual can sue over the publication.
• Accordingly, each factory proprietor had a
valid claim where the defendant newspaper
made a publication referring to practices “in
some of the Irish factories” and this could be
imputed to mean the factory of an individual
plaintiff.

Nikmat Maju Development Bhd v Element 3: (Tampering meter, • Nikmat Maju operated a hotel called the
Tenaga Nasional Bhd Publication counterclaimed) Crystal Crown Hotel in Petaling Jaya and was
a registered as consumer.
• The electric meter (the TNB meter room)
which is within the hotel but was secured by
lock and key held in the possession of TNB.
• Over span of over a year, TNB discovered
suspicious discrepancies in the usage of
electricity
• A physical inspection showed that the meter
had been tampered, resulted in an under-
recording.
• TNB then sent several notices to Nikmat Maju
informing it of the tampering of the recording
and asked Nikmat Maju to pay the correct
amount
• When Nikmat Maju refused to do so, TNB
filed a high suit against Nikmat Maju
• Nikmat Maju then counterclaimed damages
for defamation
• The Court held that there was no defamation
as the impugned notices were just mere
 letters of demand for payment of loss
revenue
• Also, by looking at the circumstances of the
case, the notices were only sent to the
defamed person
• Therefore, there was no publication
Thong King Chai v. Ho Khar Fun Element 3: (Email Fb akaun dia) • The Plaintiff sued the Defendant for defaming
Publication (Internet him via email and a closed Facebook Group.
posting) • In determining whether the statements were
published, the High Court applied the
presumption of publication under s. 114A of
the Evidence Act 1950.
• The High Court held that pursuant to s. 114A,
the presumption of fact is that the email was
published by the Defendant as it had
originated from his email address.
• Similarly, there is also a presumption of fact
that the Facebook posting was published by
the Defendant through his Facebook account.
Kopitiam Asia Pacific Sdn Bhd v (Defamatory from • The plaintiff discovered that an article
Modern Outlook Sdn Bhd & Ors website, made by allegedly defaming him was circulating on
third parties) certain websites.
• The plaintiff contended that he had
insufficient information on those responsible
for posting the defamatory article.
• Hence, he commenced an action against the
defendants who were the administrators of
the websites for an order that the defendants
disclose all relevant information on the
identities of the relevant parties
• The Court held that under the Data
Protection Act 2010, the Court is empowered
to direct persons in possession of relevant
data to disclose it to a third party.
• Thus, the Court allowed the plaintiff to do
pre-action research because it was sure that
the plaintiff's intended action against the
people who put up the defamatory article can
only be properly handled when the plaintiff
gets the information from the people who
put it up.
GS Realty Sdn Bhd v Lee Kong Seng (comments) • This case was about defamatory statements
made by the defendant on his Facebook
Page.
• There were also secondary publications which
included postings by third parties.
• The Court held that the defendant was well
aware of the postings made by third parties
but did nothing to remove them from his
Facebook page.
• The defendant was held liable for the posts
made by third parties.
Datuk May Phng @ Cho Mai Sum & (Email, circulation) • A has wrote a defamatory statement on an
Ors v Tan Pei Pei email
 • A claimed that email was intended only to
one person
• It was not disputed that the said email has
been circulated among the public via the
internet to as many people as possible and
that A has invited the recipients to read and
spread its contents as widely as possible.
• Therefore, the Court was of the view that
there is presumption in law that such
circulation by the internet is presumed to be
a wide publication
Datuk Seri Anwar Ibrahim v Wan (Bloger Papa Gomo, • In this case, the blogger known as ‘Papa
Muhammad Azri bin Wan Deris intended to Gomo’ had published defamatory statements
discredit) with the intention to discredit Datuk Seri
Anwar bin Ibrahim
• As such, the Court held that given that the
defamatory statements were published on
the internet and people all over the world can
get access to the website.
• Thus, there was a wide publication of the
defamatory statements.
YB Hj Khalid bin Abdul Samad v (MP, news editor,
Datuk Aziz bin Isham & Anor republication) • defendants who was chief editor and a
national daily newspaper could be held liable
for an article that was already posted by
another MP on his blog.
• This is because their republication of an
article defamatory of him which originally
appeared on the official blog of another MP
causes the libel.
• The court held that the defendant is liable as
no attempts were made by the defendants to
verify and they failed to publish the
disclaimer as well
Tan Ah Hong v CTOS Data System (CTOS, apply loan) • In this case, a guy named Tan Ah Hong
Sdn Bhd wanted to apply for a bank loan and he apply
for bank facilities
• But the applications were rejected
• Then, he discovered that his historical credit
stored in the CTOS Database showed that he
had many debts
• So, he was unhappy because the details of his
financial report have been shared with many
third parties
• Then, Tan Ah Hong discovered that the
information in the database about himself
include the info in 1990-s where the debts
back then has already been paid
• So, he claimed that that what is contained in
the said reports include defamatory
statement
• The defendant relied on the disclaimer, but
the court held that the fact that CTOS
deliberately and intentionally loaded
information onto its database to be accessed
by a third party indicates a clear publication.
 Defences of Defamation

Normala Samsudin v Keluarga Consent (tebus talak, • A is a well-known television

Communication mingguan Wanita) personality and a prime-time
newscaster with TV3.
• The publisher of a magazine called
Mingguan Wanita had, published on
its cover a photograph of the plaintiff,
and an article which, mentions that
someone, that is a third person, paid
her tebus talak on behalf of her ex-
husband
• She said that such statement
suggested that she bought herself off
from her marriage bondage
• The publisher then claimed that the
plaintiff authorized and consented to
the publication of the article
• However, the court found that there
was no evidence of the consent given
by A
• And the court further held that even
though the word “tebus talak” is an
innocent expression, but making the
reference to 3rd party making payment
is a vilification
• So, the court agree with the A
Abdul Rahman Talib v Justification (Receipt of favours, • B alleged that A, which was a government
Seenivasagam receipt of money) minister had received money and favours
to his personal advantage through his
influence as minister.
• The truth of the receipt of favours was
proved but not the receipt of money.
• The court held that the unproven
allegation did not materially injure the
plaintif reputation having regard to the
truth of the allegation concerning receipt
of favours.
• Defence of justification was successful.
S Pakianathan v Dr Jenni Ibrahim (criminal breach of • The defendant alleged that the plaintiff
trust, percaya je x had committed a criminal breach of trust
cukup) amounting to certain amount of money.
• Defendant sent several letters to various
people.
• There was libel but no merit.
• The court held that the burden rested on
the defendant to prove JUSTIFICATION
and it was not sufficient to state that he
believed the allegation to be true.
 • Defendant failed to prove that Plaintiff
committed breach of trust
• Defence of justification was unccessful
Joshua Benjamin Jeyaretnam v Fair comment (4 fingers) In an action for defamation in respect of
Goh Chok Tong words consisting partly of allegations of facts
and partly of expression of opinion, 4
requirements need to be established:
• Words must be in the form of
comment and not statement of facts
• Comment must be based on true facts
• Comment is fair
• Comment concerns an issue of public
interest
Datuk Seri Dr Mohamad Salleh (loan, tuduh • The A was the chairman and director of
bin Ismail & Anor v Mohd Rafizi seludup) the company which had several
bin Ramli & Anor agreements with the Malaysian
government to implement a national
feedlot centre project.
• To facilitate the project’s implementation,
the government had given the company a
loan.
• Then there is B who was a director in an
opposition political party, called a press
conference to allege that part of the loan
that the said company had received was
deposited with a commercial bank and
was used as security to obtain personal
loans to buy properties in the names of A
and his family members.
• B claimed his allegations were based on
information contained in copies of certain
bank documents he had received from an
anonymous party.
• When A filed for defamation on B at court,
B relied on the defense of fair comments
regarding his statements on A
• However, the defense of fair comment
was unsuccessful since the statements
made by B were statement of facts and
not in form of comments.
• Besides, the said statements were not
based on facts as B failed to justify his
statements.
• This is because, nothing in the documents
themselves suggested that the deposit
had been used by the company as security
to obtain personal loans to buy properties
in the names of A and his family members.
• Therefore, the court held in favour of A.
Sandison V Malayan Times Ltd & Unintentional • A, a senior expatriate officer in the Rubber
Ors Defamation Industry Board, was given notice of
summary dismissal
• Later, an article was published in
newspaper stated that the services of a
senior expatriate officer were terminated.
• It also contained the record of an
interview the Director of the Anti-
Corruption Agency in which he
commented about the difficulties of
obtaining a conviction in corruption cases.
• A claimed that the newspaper company
meant and were understood by the
readers to mean that the A was the
person referred to in the report and that
he had thereby been greatly injured in his
reputation.
• When the action of libel was brought to
the court, the newspaper company
contended that the publication was made
mala fide without malice or negligence
and innocently.
• They also claimed that they made an offer
of amends by letters to A.
• The court held that although the executive
was not named, the date of dismissal was
mentioned and indeed that was the date
the plaintiff ceased holding that position.
• The article also reported on who
succeeded the dismissed executive and
the identity of the successor was well
known, the defamatory words clearly
indicated the plaintiff as the corrupt
executive.
• Besides, the offer of amends was not
made as soon as practicable after the
newspaper company received notice that
the publication was or might be
defamatory of A because a whole month
elapsed between the date of the A's
notice and the newspaper company's
reply;
 Topic 3: Defamation

Halsey v Esso Petroleum Element 1: (Asap dan bunyi • Halsey lives close to an Esso Petroleum oil
Unreasonable kilang, kereta factory.
[1961] 2 All ER 145 Interference or rosak) • Halsey stated that the factory's fumes had
Wrongful Acts an unpleasant smell and that the acidic
residue from the smoke had ruined his
clothes that was hung out to dry and
damaged his car paint.
• The noise from the trucks that were
continually going at night also kept Halsey
awake.
• The court held that the defendant is liable
for nuisance because of noise from boilers
and vehicles from the night shift, the
unpleasant smell that coming from the
boilers and the damage to Halsey’s clothes
and car.
• An injunction is granted to prevent the
noise from disturbing the surrounding
area at night.
St Helen’s Smelting Co v Tipping (asap dmrting • The claimant was the owner of a large
factory, pokok country house with over a thousand acres
[1865] 11 HL rosak) of land. This land was close to a copper
Cas 642 smelting factory which had long been in
operation.
• The smelting factory discharged noxious
gases as a result of its operation, which
Injury to were considered to be a normal part of
the smelting operation.
property
• As a result, trees on the claimant’s land
were damaged by the fumes and noxious
gases. The claimant sued in nuisance
• The claim was allowed. It was no defence
to say that the claimant ‘came to the
nuisance’ and the defendant could not be
said to have acquired a right through
prescription to continue to discharge
noxious fumes
• Where there had been physical damage to
the claimant’s property as had occurred in
this case the question of the character of
the locality itself was irrelevant.
Hollywood Silver Fox Farm Ltd v (vixen, tembak2) • A carried on the business of breeding
Emmett silver foxes on his land.
Injury to • During the breeding season the vixens are
property very nervous and liable if disturbed, either
to refuse to breed, or to miscarry or to kill
their young.
 • B, an adjoining landowner, maliciously
caused his son to discharge guns on his
own land as near as possible to the
breeding pens for the purpose of
disturbing A’s vixens.
• A filed a suit for injunction against B and
was successful.
Delaware Ltd. v. Westminster (Akar panjang • The respondent was owner of a tree
City Council (2001) sangat, bangunan growing in the footpath of a highway.
rosak) • The roots of the tree caused cracks in the
4 All ER 737 (HL) neighbouring building.
• The transferee of the building of the Commented [RSABRS1]: penerima pindahan
building, after the cracks were detected,
Injury to was held entitled to recover reasonable
property remedial expenditure in respect of the
entire damage from the continuing
nuisance caused by the trees.
Broadbent v. Imperial Gas Co. (Gas lagi, garden • Here, the defendants were involved in a
produce pulak manufacturing business that emitted large
(1856) 7 De GM & G 43 rosak quantities of noxious gasses.
• The plaintiff’s residence in close quarters
to the defendant’s business premises.
• The plaintiff complained that the residual
gases had caused substantial damage to
his trees and plants.
• An injunction was granted to prevent a
gas company from manufacturing gas in
such a close proximity to the premises of
the plaintiff, a market gardener, and in
such a manner as to injure his garden
produce by the escape of noxious matter
Andreae v Selfridge and Co. Ltd Element 2: (bunyi kuat sangat • Andrae occupied a land in which she
Interference tak dapat tidur + operated a hotel in Wigmore Street,
[1937] All ER 255 CA with The Use habuk) London.
And Enjoyment • The defendant owned the surrounding
Of The Land land and demolished the said land
extensively for the purpose of
reconstruction.
• Those works had continued throughout
the night without interruption.
• The plaintiff sued the defendant for
nuisance as a result of the dust and noise
she suffered.
• The court held that the loss of night’s
sleep due to excessive noise constitutes
substantial interference.
• Selfridge Co. Ltd had made excessive noise
at inconvenient hours as well as the
amount of dust and grit was intolerable.
• The plaintiff succeeds in her case.
Thompson-Schwab v Costaki (Banyak tengok • Thompson-Schwab and Costaki live in the
thot, panas mata same neighbourhood.
memandang) • Thompson-Schwab claimed that the
enjoyment of their home was being
interfered with by seeing the Costaki’s
illicit activity.
• They were upset at the sight of the
prostitutes regularly entering and leaving
the Costaki's premises.
• The courts found that, because the
activity observed was both “obvious and
blatant” and considering the fact that
young children lived on the premises,
Costaki’s activities constituted as an
interference with the “comfortable and
convenient enjoyment” of the claimant’s
property.
• There it amounted to a nuisance.
Khorasandjian v Bush (ex-bf, stop calling • Plaintiff’s former boyfriend (defendant)
me) was unhappy that their relationship had
ended.
• The boyfriend persistently made
unwanted visit and abusive phone calls.
• She sought an injunction against him to
prevent him making these phone calls to
prevent the ongoing harassment through
the tort of nuisance.
• The injunction was granted
Dato’ Dr Harnam Singh v Renal (klinik atas lepas • In this case, plaintiff had for eighteen
Link KL gas pulak, banyak years operated a clinic and hospital for the
sakit ma) treatment of ear, nose, and throat
ailments.
• The defendant operated a renal clinic at
which patients receive haemodialysis on
the floor above the plaintiff’s clinic.
• The defendant was found liable for
emitting from their clinic obnoxious fumes
which escapes downwards into the
plaintiff’s clinic.
• The plaintiff, his staff and patients were
found to have suffered substantial
damage ranging from skin diseases, red
and swollen eyes, headaches, lethargy and
breathing difficulties.
Robinson v Kilbert Element 3 (paper box factory, • The defendants operated a paper boxes’
special brown factory.
[1889] 41 Ch D 88 paper) • Hence, to ensure the paper boxes
produced by the defendant are in a good
condition, their factory had to be
continuously warm.
 • The claimant rented the ground floor and
used that area to store a special brown
paper.
• Unfortunately, the heat from the
defendant’s factory damaged the brown
paper owned by the claimant.
• The claimant sued the defendant for
nuisance.
Syarikat Perniagaan Selangor (skating rink, • The appellant has leased a piece of land to
Sdn Bhd v Fahro Rozi Mohdi cinema, and be used as a skating rink, cinema, and
restaurant/ no restaurant.
noise above certain • Later, he changes his mind and decided to
level) build an open stage and disco.
• The court has totally rejected the
appellant’s contention that as the
registered and legal owner of land, it
could use its land in any manner it pleases
to use, no matter what the effect on the
neighbours may be.
• The court held that living in urban area
must expect to have to put up with a
certain volume of noise from his
neighbours and he in turn must have the
right to make certain amount of noise in
the enjoyment of his property.
• But no one has the right to create such
excessive noise and noise above a certain
level constitutes a nuisance.
Elliotson v. Feetham Defences to (Noisome trade, 20 • it was held that the Defendant has
defamation: years without acquired prescriptive rights to carry the
Prescripton objection) noisome trade as he continued to do so
for the past 20 years without any
objection from the Plaintiff.
Goldsmid v. Turubridge Wells (Discharge sewage • It was held that no prescriptive right could
Improvement Commissioners, to stream, lake be obtained to discharge sewage into a
bertambah) stream passing through plaintiff’s land and
feeding a lake therein perceptibly
increasing quantity.
Sturges v. Bridgman (Heavy machinery, • A had used a certain heavy machinery for
constructed a his business, for more than 20 years.
consulting room) • B, a physician neighbour, constructed a
consulting room adjoining A’s house only
shortly before the present action and then
found himself seriously inconvenienced by
the noise of A’s machinery.
• B brought an action against A for
abatement of the nuisance.
• It was held that B must succeed.
• A cannot plead prescription since time
runs not from the date when the cause of
 the nuisance began but from the day
when the nuisance began
Vaughan v. Taff Vale Rly Defences to (Locomotive • The defendants who had authority by
defamation: engine, fire cause Statute to locomotive engines on their
Statutory by escape of park) railway, were held not liable for a fire
aithority caused by the escape of sparks
 Topic 4: Strict Liability

LANDMARK CASES: Rylands v. Fletcher

• Defendants owned a mill, and he employed some independent contractor to build some reservoir on his land.
• Beneath the intended reservoir, there are some iron shafts that went through the mining area and connected to
Plaintiff’s mind.
• Defendant did not know of the existence of these shafts.
• However, the contractor knows about these shafts, but they were negligent as they did not block the shaft
• After they finished the reservoir, they filled it with water.
• Unfortunately, Plaintiff’s mine was also filled with water.
• Thus, plaintiff filed a claim against Defendant.
• The court held that defendants were strictly liable for the damage caused by a non- natural use of land.
• The court set out the requirements to be fulfilled in order to succeeds under Strict Liability:
1) Dangerous things / things likely to cause damage if it escapes
2) Intentional storage / accumulation
3) Escape
4) Non-natural use of land
5) Foreseeability of damage
Ang Hock Tai v Tan Sum Lee & Element 1: Dangerous (bawah petrol, pastu • The Plaintiff rented a shophouse and
Anor things / things likely to terbakar) lived on the 1st floor of the building
cause damage if it • The Defendant rented the ground
escapes floor and conduct the business of
repairing and distributing tyres
• The defendant stored petrol for the
purposes of his business
• One day, the defendant’s premises
caught fire and it spread to the 1st
floor
• The fire causes the plaintiff’s wife and
child died
• The court held that the defendant
liable as petrol was a dangerous
thing.
Dato’ Dr Harnam Singh v • In this case, plaintiff had for eighteen
Renal Link KL years operated a clinic and hospital for
the treatment of ear, nose, and throat
ailments.
• The defendant operated a renal clinic at
which patients receive haemodialysis on
the floor above the plaintiff’s clinic.
The defendant stored and used some
chemicals in their premise, which
produced obnoxious fumes.
• The defendant was found emitting from
their clinic obnoxious fumes which
escapes downwards into the plaintiff’s
clinic.
• The court held that the defendant was
liable as the chemicals produce noxious
gases which cause the Plaintiff and his
 staff have suffered substantial damage
ranging from skin diseases, red and
swollen eyes, headaches, lethargy and
breathing difficulties.
Miles v Forest Rock Granite Element 2: (The D himself • The defendant had brought some
Co Storage/Accumulation accumulate the explosives onto his land and used
things, explosives to them to blast rocks which had already
blast rock) been naturally occurring on his land.
• As a result of this blasting, some of the
rock fragments flew onto nearby land
below, more specifically on the nearby
highway, where they hit and injured
the claimant.
• The claimant then brought an action
under strict liability.
• The claim succeeded; this is because
the defendant had brought the
explosives onto his land which caused
the rocks to fly out through the
blasting.
Rainham Chemical Works v The D authorised the • X & Y set up a company Z Ltd which
Belvedere Fish Guano accumulation/ operated as a factory
Suruh Z buat • The functions of Z Ltd was to perform
explosives a contract entered into by both X & Y
with another party
• One of Z Ltd’s work was to
manufacture explosives.
• Z Ltd was a licensee therefore Z Ltd
have to manufacture the explosives
on X & Y's land
• Later, a big explosion happened.
• Consequently, the explosion damaged
neighbouring property & killed many
people
• Court held:
1) Z Ltd liable as the licensee which
had accumulated the thing
2) X & Y (as occupiers & landowners)
were also liable for the escape of the
thing accumulated by their licensee as
the accumulation was a discharge of X
and Y's contractual duty to another
party
Giles v Walker Element 2: The thing is naturally • Seeds from some thistles on the
Storage/Accumulation on the D’s land/ defendant’s land blew into
(Not Liable) Thistle terbang neighbouring land owned by the
claimant and damaged his crops.
• The defendant was not liable as he
had not brought the thistles onto his
land and there can not be liability
 under Rylands v Fletcher for a thing
which naturally accumulates on land.
Pontardawe RDC v Moore The thing is naturally • Some rocks from the defendant’s land
Gwyn on the D’s land/batu fell onto the claimant’s land.
jatuh atas kepala • The defendant was not liable as they
had not brought the rocks onto the
land to accumulate them.
• The escape was also caused by natural
events with adverse weather
conditions causing an avalanche.
Milik Perusahaan Sdn Bhd v Element 3: Escape Earthwork activities/ The def was found liable when earthwork
Kembang Masyhur Sdn Bhd Mudslide activities conducted on its land resulted
in a mudslide and considerable soil
deposits were made on the plaintiff’s
adjoining, lower-level land
Lee Kee v Gui See & Anor Bakar sampah/ • Def was found liable when third party
Api merebak rumah whom he had hired to burn some
jiran rubbish in his land without taking any
precautions, which resulted in the
fire spreading into plaintiff’s land
destroying the latter’s rubber trees.
• If a person makes a fire on his land
which is inflammable, he must take
reasonable step to prevent the fire
from spreading.
Midwood & Co Ltd v Mayor, Explosion/ Ds were held liable when an explosion on
Aldermen, and Citizens of Api merebak their property caused inflammable gas to
Manchaster (1905) escape into P's house & set fire to P's
property.
Read v J Lyons & Co Ltd Element 3: Escape Datang dlm kilang/ • An inspector of munitions was
(Not liable) Kilang meletup injured when a shell that was being
manufactured at the defendant’s
factory where she was employed,
exploded, and caused her substantial
injuries.
• The def were not liable as there was
no escape.
Crowhurst v. Amersham Element 4: Non- Tanam pokok • There was a poisonous tree on the
Burial Board natural use if the land beracun/ defendant’s land.
Kuda makan pokok • Eventually the branches of the tree
tu grew and reached the property of the
plaintiff and the plaintiff’s horse ate
the leaves of the tree and died.
• The court held that defendant was
liable as planting a poisonous tree is
not considered as natural use of the
land.
Hoon Wee Thim v Pacific Tin Buat reservoir/ • D built reservoir on his land
Consolidated Corporation Air merebak bila
hujan lebat
 • Heavy rainfall caused water-bunds to
collapse, water escaped to the
adjacent land.
• Caused death to the deceased by
drowning.
• The court held that using sand-bunds
to separate ponds of water
constituted a dangerous and non-
natural use of land and any resulting
damage would be caught under the
rule of Rylands.
Abdul Rahman bin Che Ngah Bersihkan irrigation • D was hired by someone to clean out
& Ors v Puteh bin Samat canal/ an irrigation canal that ran through
Api merebak P’s rubber farm.
• Bushes and weeds were set on fire by
accident, which destroyed P's rubber
trees.
• D was held liable for strict liability as
the escape of fire resulting from non-
natural use of land.
Cambridge Water Co Ltd v PCE merebak bawah • D who was a leather manufacturer
Eastern Counties Leather plc tanah dalam diam/ used a chemical, PCE, in the process
Kena Kawasan air P of manufacturing.
Element 5 • The chemical had been spilled little
by little on the concrete floor of their
factory.
• PCE was not soluble in water, and it
had seeped through the factory floor Commented [RSABRS2]: Meresap ke dalam factory floor
until fifty meters below the ground.
• It had then spread until it eventually
reached the area the P used to pump
water for the daily consumption of
the residents in that area.
• The distance between the D’s factory
and P’s borehole was quite far and it
had taken 9 months for the PCE
spillage to reach the borehole.
• The court held that D is not liable in
both the torts of nuisance and strict
liability.
• The D’s use of their land was not
exactly a natural use of land but
because the damage was
unforeseeable that the spillage would
spread and cause damage to the P.
Defences of Strict Liability
Sheikh Amin bin Salleh v Chop Consent of the Sewa rumah teres • P owned a piece of land on 8 terrace
Hup Seng Plaintiff buat biskut/ houses were built, 4 of which were
Rumah teres rented by D.
terbakar
 • D used their rented premises for the
purpose of bakery.
• P know that fact
• Then, a fire caused by D’s negligence
destroyed all 8 houses.
• Court found the evidence that P
assented in the use of D’s premises as
a bakery with an oven.
• D could not liable under rule in
Rylands v Fetcher
• Consent will negative the D’s liability
under Rylands.
Carstairs v Taylor Common benefit Bumbung ke gutter/ • Claimant rented the ground floor of
Gutter ke kotak/ the factory from defendant.
Kotak terkoyak lolz • Water from the roof flow through the
gutter which connected to the box.
• Rats made hole in the box and cause
water leakage.
• The leaking water damaged
claimant’s property.
• Court held: Defendant not liable. The
act did was for common benefit of
both parties.
Dunne v North Western Gas • Gas escaped from main caused by
Board burst water main.
• The escaped gas travelled along the
sewer and exploded, resulting in
injuries to claimants.
• The court held that D was not liable
because the gas was for the common
benefit of both parties and the
incident happen was not result of
negligent from either party.
Box v Jubb (1879) Act of third party A banjirkan tanah B/ • D reservoir overflowed & damaged
B banjirkan tanah C the Plaintiff property.
• The cause was the overflowing of the
D’s neighbour’s reservoir which in
turn flooded the D’s reservoir.
• Held: not liable – the sequence was
not foreseeable; Def was not
negligence.
Northwestern Utilities Ltd v Dia yang buat aky • D was negligent for failing to inspect
London Guarantee and meletop whether there was any damage to
Accident Co Ltd. their main gas supply.
• Later when a 3rd party built a
sewerage nearby, D’s main gas line
exploded.
• The explosion caused damage to P's
hotel
 • Although they were held liable under
negligence, they were not held liable
under the rule in Rylands v Fletcher
on the defence of the unforeseeable
act of the 3rd party.
Nicholas v Marsland Act of God • The defendant owned many artificial
lakes.
• A heavy rainfall caused the artificial
embankments of the lake swept away
four bridges and caused the damage.
• The court held that it was not
reasonably foreseeable and act of
God.
Ponting v Noakes Plaintiff’s Defalult • The claimant’s horse died after it had
reached over the defendant’s fence
and ate some leaves from a
poisonous tree.
• The defendant was not liable under
Rylands v Fletcher as the poisonous
tree was entirely in the confines of
the defendant’s land and the damage
was due to horse’s own intrusion
Green v Chelsea Waterworks Statutory authority • A water main burst causing damage
Co to the claimant’s land.
• Defendant were under a statutory
obligation to maintain high pressure
in the water main.
• This mean that any escape would be
inevitably cause damage.
•
 Topic 5: Breach of Statutory Duty

Hu Sepang v. Keong On Eng Elements of BSD 5 elements must be established:

a) The statute allows a cause of action
in tort
b) The defendant has breached his
statutory duty
c) A duty must be owed to the plaintiff
d) The statutory breach must have
caused the damage
e) The damage must be of the kind
which the statute is intended to prevent

X (minors) v. Bedfordshire Element 1: The statute Private right of action in tort arises
County allows a cause of when:
action in tort. • The statute was imposed for the
protection of limited class of the
public.
• The Parliament intended to vest
private right of action to the
members of the class for breach of
duty.
Hague v. Deputy Governor of In the absence of • Hague was a prisoner serving a
Parkhurst Prison express provision, sentence at Parkhurst prison.
does this allow • The deputy governor of Parkhurst
plaintiff to claim transferred him to the Wormwood
against the public Scrubs prison.
authority? • The deputy then ordered that
Hague should be segregated from
other prisoners.
• The 1964 Prison Rules did not
permit him to make this order,
meaning that the segregation was
unlawful.
• The 1964 Prison Rules did not
create a private action for breach of
statutory duty.
• The court said that if the statutes is
silent as to how the right may be
enforced, the private right of action
still can be available.
• However, the court held against
Hague as the Rules were designed
to regulate prison governance
rather than to benefit prisoners.
Toh Muda Wahab v. Parliament may make • Defendant breached the duty to
Petherbridge it clear that it does not fence mining land (s.81 Mining
intend to allow a Enactment 1904)
separate BSD action.
 • Plaintiff’s elephants strayed on the
mining land, and one fell down the
unfenced mining pit.
• Held: No tortuous claim was
entertained as there was already
the penalties for non-performance
were provided under the statute.
Wu Siew Ying v. Gunung Element 2: The If the statute gives the power to issue a
Tunggal Quarry defendant has permit for removal of rock material on a
breached his statutory piece of land but does not give
duty supervisory power over maintenance of
the site, it is too remote to claim the
i) The breach duty of care is covered under the
committed is within statute or common law
the scope of the duty
UDA Holdings Bhd v. Pasaraya Element 2: The • The statute does not confer right to
Malaysia Bhd defendant has UDA Holding to Lorong Haji Hussein
breached his statutory (LHH3) (where the hawkers were
duty located) although DBKL has issued
TOL.
ii) The duty imposed • Section 46(4) of Street, Drainage
on the defendant and Building Act empowers the
must be a mandatory local authority to allow temporary
duty to act erections for purposes of festivals
and ceremonies and not for the
purpose for which LHH3 was in fact
closed
• Held: No positive obligation was
established on the part of UDA
Holdings based on the statute.
Abdul Ghani Hamid v. Abdul Element 2: The • The defendants failed to display
Nasir Abdul Jabbar defendant has warning notices via 'danger signs' at
breached his statutory relevant places at an electric
duty substation owned by them which is
in contravention of certain
iii)There is breach of regulations of the Electricity Supply
absolute duty Regulations 1990.
• As a result of non-compliance with
the relevant regulations, the
plaintiff suffered severe burns due
to an explosion that occurred when
he came into contact with the
switch cable in order to effect
repair works.
• The court held that the statutory
duty under the regulations was
absolute as failure to display
warning sign amounts to BSD
Lim Thing Eng v. Sg Choh • Machine must be installed in a
Rubber specific manner to prevent the
 Element 3: A duty hands of the operator from having
must be owed to the contact with the machine.
plaintiff • Held: P fell under the class of
protected persons.
Knapp v. Railway Executive • Mr Knapp was approaching a
railway level crossing in his car
where the barrier was down. He
accidentally let his car run into the
barrier which was not appropriately
secured in breach of statutory duty
under Brighton and Chichester
Railway Act 1844.
• The Railway Executive contended
that the 1844 Act was designed to
protect persons using the turnpikes
and highways, and therefore, no
right of action stemmed from an
injury to an employee of the
Railway Executive.
• Plaintiff was not covered under
statute as the engine driver.
Wong Soon San v. Malayan Element 4: The • Defendant was liable for the failure
United Industrial Co Ltd statutory breach must to provide goggle to their machine
have caused the operators.
damage • But since the plaintiff’s injuries was
caused by his own act in operating
the machine without consulting the
supervisor, he was contributorily
negligent.
Gan Kim Thye v. The Union • The plaintiff was a bus conductor
Omnibus who was under the employment of
the defendant, who in this case was
the employer, had alleged that it
was because the plaintiff has
worked for long hours, it had
caused him to face a stroke and
paralysis, thus claiming that the
defendant had breached his
statutory duty.
• The court was not in favour of the
plaintiff’s claim as the defendant
had not breached his statutory
duty.
Gorris v. Scott Element 5: The • Statutory duty was to provide pens
damage must be of of specified size for the carriage of
the kind which the animals on his (defendant) ship.
statute is intended to • Plaintiff’s sheep was swept
prevent overboard.
• Held: the damage was not intended
to prevent by the statute as it was
 to prevent disease, not to prevent
animals from drowning at sea
Straits Steamship Co Ltd v. AG • Plaintiff suffered losses and had to
compete unfairly with exempted
vessels from certificated officers.
• The object of the statute was to
regulate merchant shipping, not to
protect individuals from damage in
their trade
 Topic 5: Vicarious Liability

Short v JW Henderson Ltd Element 2: Factors to consider:

(1946) Determining the • Power of selection by the employer,
employer-employee • Power in determining salary,
relationship: • Right of employer to control the
Control Test method of work, and
• Right of employer to terminate the
services.
Hawley v Luminar plc [2005] • Defendant Luminar is a nightclub.
Luminar hired the tortfeasor bouncer
through ASE.
• The bouncer punched the claimant in
the face, knocking him to the ground.
• At court, Luminar had been held in
control and vicariously liable for
bouncers
• This is because, ASE did not have
control over the tortfeasor, whereas
Luminar gave them detailed
instructions on how to do the job
Zedtee Sdn Bhd v Maduraya Plaintiff is an independent contractor
Sdn Bhd employed to extract timber from Area 1
The defendant has a license to extract
(2004) 7 MLJ 461 timber from Area 2
Bawan was employed as an independent
contractor
Bawan had cut and felled over 600 pieces
of timber logs
Bawan is the supplier of everything
The defendant was not liable for Bawan.
Bawan is an independent
contractor
Mat Jusoh bin Daud v Syarikat Element 2: • Plaintiff was employed as a sawyer in
Seberang Takir Sdn Bhd Determining the the defendant’s sawmill. He was
employer-employee injured while cutting/ splitting the
(1982) relationship: logs and lost three fingers of his right
Organisation Test/ hand.
Integration Test • Due to the injuries, plaintiff was
refused further employment at the
defendant's sawmill. He sued the
defendants and claimed for damages.
• The defendant denied liability
contending that the plaintiff was not
their employee but the employee of
the defendant's contractor Lim.
• Held: Plaintiff’s work was integral
part of defendant’s business.
Ready Mixed Concrete Ltd v Element 2: The Court held that employment under a
Minister of Pensions [1968] 2 Determining the contract of service (employer-employee)
QB 497 employer-employee exists when:
relationship: • A person agrees to a perform a
Multiple test service for a company in exchange for
remuneration; and
• A person agrees, expressly or
impliedly, to subject himself to the
control of the company to a sufficient
degree to render the company his
“master,” including control over the
task’s performance, means, time; and
• The contractual provisions are
consistent with ordinary contracts of
service.
• A driver contracted with a mixed
concrete company for the delivery of
concrete.
• The contract declared him an
“independent contractor” and set out
wages and expenses.
• The driver was to purchase his own
vehicle, yet with a requirement that
the vehicle be painted in company
colours.
• He was to drive the vehicle himself
but under compliance with certain
company’s rules including, for
example, the manner of vehicle
repairs and payments.
• The question arose as to whether the
driver was an “employed person”
under a contract of service
• On the facts, the Court held that the
driver had sufficient freedom in the
performance of his contractual
obligations as he was free to decide
the vehicle, his own labour, fuel, and
other requirements in the
performance of the task.
• In lieu of these freedoms, he was an
independent contractor and not an
employee of the company.
Century Insurance Co Ltd v Element 3: • Defendant’s worker (oil tanker
Northern Island Road Transport In the course of driver), plaintiff (petrol station
employment: owner)
a) Carelessness of • Defendant transferred petrol from
worker in the the lorry to an underground tank
performance of his job • The driver lit a cigarette and threw
the burning match on the floor.
 • Explosion occurred. Plaintiff’s
property was burnt.
• Held:
1. Defendant (employer) liable for his
driver’s negligence (employee). The act
was considered done in the course of
employment, albeit no benefit to the
defendant.
2. The driver did what he was hired to do
(to deliver petrol), although it was not
done with care and in authorised
manner.
Poland v Parr and Sons Element 3: • Employee struck a boy suspected of
In the course of stealing sugar at his employer’s
employment: premise.
b) Tort committed in • The Court held that the employee
protection of had an implied authority to act to
employer’s property protect his employer’s property if he
has reasonable ground to believe that
it was in danger.
• The Court stipulated that the
employee’s actions were entirely in
the interests of protecting the
employer, although it was an
excessive means of doing so.
• Accordingly, the employee was held
to be impliedly authorised by the
employer and the employer was held
liable for the resultant personal
injuries.
Zakaria Che Soh v Chooi Kum Element 3: • P drove his employer’s car after
Loong In the course of sending him home and was involved
employment: in an accident.
c) Worker acting for • Held: The employer was liable.
his own benefit Although the lunch trip was nothing
(If employee’s act was to do with his employer, it was
expected in the course expected in ‘the course of
of his employment, employment’.
and accident
happened: employer
would be liable)
London County Council v. Element 3: • Employee was hired to move vehicles
Catermoles In the course of in a garage and was expressly
employment: forbidden to drive.
d) Acting against • He drove to make way for another
employer’s express vehicle.
prohibition • Held: employer was liable.
(Employer is still liable
if employee does
something in the
 course of
employment, even if
the employer
expressly prohibits it.)
Keppel Bus Company Ltd v Element 3: • A passennger quarreled with bus
Saad bin Ahmad In the course of conductor (employee) about
employment: mistreatment of an elderly lady.
e) Employee acting on • Bus conductor hit the passenger with
a frolic of his own a ticket punch
(If employee acts for • The court held that the act was no
his own benefit per se, longer in the course of employer
he fall outside the when the lady got off the bus.
scope of • Thus, the employer was not liable.
employment.)
Lloyd v Grace, Smith & Co Element 3: • Defendant (employer) hired a clerk to
In the course of do conveyancing. Plaintiff had some
employment: difficulties in handling her property
f) Fraud of the worker went to the defendant’s office. The
clerk transferred some of the
properties into his own name,
disposed them off for his own
purpose.
• Held: The employer was liable
because he gave a position that
allowed the clerk to do the fraud. The
clerk’s act fell under scope of
ostensible of authority by the
defendant.
Alcock v Wraith Exception to the rules: • D liable for damage caused to
a. Work causing the neighbour’s property when negligent
withdrawal of support re-roofing was undertaken on D’s
to a neighbor’s land property by independent contractor.
• As work involved a risk of damage to
adjoining property (row of terraced
houses), there was a duty to ensure
that it was carried out carefully.
Penny v Wimbledon Urban Exception to the rules: • On this principle, a local authority
District Council b. Work done on was held liable where its contractor,
highway employed to make up a highway,
negligently left a heap of soil in the
road, unlighted and unprotected,
resulting in Claimant’s injury
Ng Kim Cheng v Naigai Nitto Exception to the rules: • X, a storekeeper employed by Y, was
Singapore Pte Ltd c. Cases of a master’s injured while driving a forklift at his
duties for his servant’s employer’s warehouse and the
safety at common law brakes failed.
• X’s left arm was severely crushed and
subsequently amputated.
• A day before the accident, the forklift
brakes had been repaired by Z.
 • X sued Y for negligence in failing to
take adequate safety precautions
of the X’s safety.
• Y denied negligence and averred that
it was caused by Z’s negligent/faulty
repairs.
• The court held that Y was liable for
and remains responsible to X even
though the work was done by Z, his
independent contractor (his IC) who
had carried out the repairs
negligently.
Rylands v Fletcher Exception to the rules: • Escape was caused by the negligence
d. Cases of strict of the Independent Contractor.
liability • A person who brings upon his land
something likely to do damage if it
escapes consequently cannot excuse
himself for the escape on the ground
that he employed a competent
contractor to place and confine the
matter in the position from which it
escaped.
Datuk Bandar Dewan Exception to the rules: • The court found maintenance of lift
Bandaraya KL v Ong Kok Peng e. Cases of statutory was a statutory duty imposed by the
duty imposed on Factories and Machinery Act 1967.
certain categories of • D could not escape liability by
persons delegating it to the 3rd party.