INTRODUCTION TO Prepared by Abu Sufyan

Mohd Salleh
CIVIL LAW
 INTRODUCTION

Literal definition :
The word, Law has been taken from the latin word Lex which means The
body of Rules.
According to John Austin Law is the command of sovereign.
According Law is made of 3 elements :
a) Command
b) Duty
c) Sanction
) A body of rules of conduct with binding legal force and effect, prescribed,
recognized, and enforced by controlling authority.
 DIFFERENCES BETWEEN CIVIL
LAW AND CRIMINAL LAW.

CIVIL LAW CRIMINAL LAW

a) Definition Civil law deals with the disputes Criminal law is the body of
between individuals, law that deals with crime and
organisations, or between the two, the legal punishment of
in which compensation is awarded criminal offenses.
to the victim. (party who suffered
damages).
b) Purpose To settle dispute between to maintain the stability of
individuals, organisations, or the state and society by
between the two, in which punishing offenders and
compensation is awarded to the deterring them or others from
victim committing offences.
c) Case filed by private party, Victimised party
(claimant, Plaintiff).
d) Decision Defendant can be found liable
or not liable.
e) Standard of proof "Preponderance of evidence."
Claimant must produce
evidence beyond the balance
of probabilities.
f) Burden of proof Burden of proof is on the
plaintiff/ claimant
e) Types of Punishment compensation.
f) Examples contract proceeding, divorce
proceeding, divorce
proceeding, personal injury etc.
Government/ state through
police or Public prosecutor. Not
filed by the aggrieved party.
OKT (Orang Kena Tuduh) or the
Accused if found guilty will be
convicted, if not guilty will be
acquitted.
Beyond reasonable doubt
Burden of proof is on the public
prosecutor (PP)
Punishment in the form
monetary penalty,
imprisonment and in some
cases death penalty (i.e
possession drugs under 39B of
DDA 1952).
Theft, rape, criminal breach of
trust, robbery etc.
 LAW OF TORT
Definition of Tort
Literal meaning: The word tort originates from the Latin word, tortus, which means
twisted or wrong.
A tort is a private injury or wrong arising from a breach of duty imposed by law. Tort may
also be defined as a private or civil wrong or injury, other than a breach of contract, for
which the court will provide a remedy in the form of an action for damages.
A more recent definition, offered by Peter Birks, suggests that a tort is: The breach of a
legal duty which affects the interests of an individual to a degree which the law regards as
sufficient to allow that individual to complain on his or her own account rather than as a
representative of society as a whole.
Tort is that branch of common law which deals with disputes between individuals of a non-
contractual nature. Thus, what the law of tort does is to define the obligations imposed on
one member of society to his or her fellows and to provide for compensation for harms
caused by breach of such obligations.
 SCOPE OF TORT LAW

First and foremost, there is no accurate definition that readily explains the width
of the scope of the law of torts. Hence, even though tort is a wrong, this does
not mean that all wrongs come within the purview of the law of torts. This is
based on the assertion or reasoning that not all wrongful acts or omissions are
legal wrongs.

The scope of tort law is wide. Well-established torts include trespass to person
(assault, battery and false imprisonment), interference to goods (trespass to
goods, conversion, detinue), trespass to land, negligence, defamation, nuisance
and strict liability.

The scope of tortious liability has slowly expanded in recent years to include
interference with trade, passing-off and product liability.

It is important to note that the scope of tort law will continue to expand in order to
 TWO TYPES OF TORTIOUS ACT

Tortious Act

unintentional intentional Tort

tort
- Categorised according to
the subject matter or the
- Negligence
tort
- Strict liability
- i.e : Trespass to property,
trespass to person,
trespass to goods,
nuisance and
defamation.
 FEATURES AND SOURCES OF TORT
LAW
a) Features
1) The features of a tort are:
2) There must be a wrongful or unauthorised act or omission, which
arises from a breach of duty fixed by the law;
3) that wrongful or unauthorised act or omission affects the
interests or rights of others; and
4) the injured party or victim has a right to a claim for damages.

Note: The general rule is that an act or an omission which

does not give rise to an action for damages is generally not
tort.
 Apart from addressing the features of tort law, it is equally important to
distinguish tort from other branches of law like contract, crime, trust, etc. For
example, in contract, duties are or obligation are imposed or fixed by the
parties themselves. In tort, duties are primarily fixed by the law. In contract,
the duty is towards a specific person or persons whereas in tort it is towards
persons generally. In tort, the purpose of award of damages is to restore the
plaintiff, as far as possible, to the position he was in before the commission of
the tort (restitutio integrum). On the other hand, in contract as a general rule
awards of damages to the plaintiff is based on the notion of compensating
him for what he would have obtained if the contract had been performed
As to tort and crime, a tort is a civil wrong against an individual or a number
of individuals, whereas a crime is an offence against the State. In tort, a civil
proceeding is instituted by the tort victim whereas a criminal proceeding is
instituted by the State through the office of the Public Prosecutor or the
police. The remedy for a tort is compensation, usually in the form of
damages, which is monetary compensation. In contrast, criminal law strives
to control and regulate human conduct and this is done by punishing the
accused, either through the imposition of a fine, or by imprisonment, or both.
 SOURCES OF TORT LAW
i) English common law
The application of principles of English tort law in Malaysia is based on the
provisions of sec 3 of the Civil Law Act 1956, which came into force on April 1, 1972.

Note: Sec 3(1) of the Civil Law Act 1956 limits the wholesale application of English law. Hence,
local law takes precedence over English law and it is only those parts of the English law which
are suited to local circumstances that will apply.

ii) Local judicial decisions

)Since law of tort is a creature of the common law and is mostly not codified, as such principles
of law found in judicial decisions form a major source of tort law. Thus, Malaysian courts have
followed and incorporated existing English common law tort principles in deciding local cases.
See the case of Chin Keow v Government of Malaysia & Anor- where the court adopted
the Bolam test and held that the doctor had been negligent as it was expressly written on the
patients card that she was allergic to penicillin.
FUNCTIONS AND NECESSITY OF TORT LAW
a) Functions
To compensate individuals who have suffered a loss or injury as result of anothers action
or conduct . In other words, the most important function of the law of tort is compensation,
or loss distribution (the tortfeasor, who is the person alleged to have committed the tort
and who would be the defendant, through the monetary compensation that he pays out to
the tort victim, in effect shares the burden of the victims loss).

To enable the person to whom the duty is owed to pursue a remedy on his own behalf
where beach of one of those duties infringes his interests to a degree recognised by the
law as such an infringement.

To force only the wrongdoer to be responsible for the costs.

To prevent future loss or injury. In other words, the law of tort serves a deterrent function or
purpose. Since there is payment of compensation, the wrongdoer will be more responsible
and careful in all his future activities, so as not to adversely affect anyone.
b) Necessity
Being a device to compensate an injured party, there is no doubt that
the law of tort serves a vital role to an individual and to the community
as a whole. Hence, thats why the obligation imposed on the wrongdoer
or duty is fixed by the law. This sums up the necessity for this area of
the law.
All in all, to have this branch of law is necessary because apart from
compensation and deterrence, the other aims of tort law include
protection of property, vindication, control of future conduct and loss
spreading, etc.
 LIMIT OF TORT LAW
Though there is much theorising about what should and should not
be actionable in tort, the law of torts remains essentially practical.
Judges have little patience with trivial claims. For example, they
may deny a remedy by way of trespass to the person for mere
touching. They recognise the limits of the wrongs that the law is
capable of redressing, however morally reprehensible they may be.
The courts also display a marked caution in the context of awarding
damages for non-material harms.
 CONCLUSION
Tort is that branch of common law which deals with disputes between
individuals of a non-contractual nature. Thus, what the law tort does is to
define the obligations imposed on one member of society to his or fellows
and to provide for compensation for harms caused by breach of such
obligations.
All in all, functionally, tort law may be viewed as a loose federation of
causes of action sharing common aims be it intentional or unintentional
tort.