CHAPTER 2

GENERAL DEFENCES
IN TORTS
 Defences

• Consent • Discipline
• Mistake • Lawful arrest
• Inevitable • Statutory
accident authority
• Act of God • Jus tertii
• P r i v a t e • Ex turpi
defence causa non
• Necessity orito action
 Consent
• Meaning: P’s willingness to accept the act done to
him
– It would amount to tort if not because of P’s
consent
• Different from volenti non fit i n j u ri a – t he
willingness to accept the risk as a result of D’s act
• Consent must be given voluntarily without duress
or threat
• Consent is given for a specific act complained of-
for other acts which are not consented, the act
would amount to tort
 3 REQUIREMENTS
(a)Consent to the act
-D’s wrongful act would not become a
wrong
- E.g : consent in medical treatment –
Chatterton v Gerson, Mallette v
Schulman

(b) Consent to the risk

- P assumes the risk in the act done by D
- volenti non fit injuria
 Burden of proof (BOP)
• On D to show that P has consented to the
act/risk
• Requirements of volenti
i. Consent or assumption of risk
• Express or implied agreement that P consented to the act
• No threat or duress
ii. Consent or assumption of risk must be voluntary
• P in the position that he has a choice
iii. With full knowledge of the nature and extent of the
act/risk
Knowledge alone is not consent
Case: SMITH V BAKER & SONS [1891] AC 325
P, a worker of D’s railway contractors was drilling
holes in rock cutting. He was aware of the
danger that the stone from the crane might fell
onto his head and it actually did fell on P’s head
and injured him.
P claimed for damages and D pleaded volenti.
HOL: notwithstanding that P had knowledge of the
danger but there is no evidence that P voluntarily
undertakes to run the risk of injury.
CASE: KWONG HING REALTY SDN BHD v MALAYSIA BUILDING
SOCIETY BHD (AMERICAN INTERNATIONAL ASSURANCE CO LTD,
THIRD PARTY) [1997] 5 MLJ 670
• P was the owner of 18-storey building and D was the
immediate neighbour of P and the owner of 8-storey
building. P alleged that D had encroached into his
land and took possession over the land and the
space above it. D admitted that he had encroached
into the common boundary of both lands, but denied
liability based on the agreement between D and the
previous owner of P’s land. D argued that P was
bound by the express and implied conditions of the
agreement which includes all unregistered
easement of the land.
• P was not privy to the agreement between
D and the previous land owner and thus
was not bound by the conditions stated in
the agreement
• P’s consent must be express and
voluntary
 Mistake
• Not a good defence
• In intentional tort, intention of the
tortfeasor is an important element
– Thus mistake could not be a good
defence in intentional tort, except in
limited circumstances
CASE: CONSOLIDATED CO V
CURTIS [1892] 1 QB 495
• The owner of certain household furniture
a s s i g n e d i t b y b i l l o f s a l e t o t h e P.
Subsequent to the assignment, the assignor
employed the D, a firm of auctioneers, to sell
it by auction on her behalf at her private
residence. The D, who had no notice of the
bill of sale, accordingly sold the furniture at
the assignor's residence, and in the ordinary
course delivered it there to the purchasers.
• Held: D was liable for conversion
 Inevitable accident
• An accident that the D could not possibly
prevent by the exercise of ordinary care,
caution and skill.
• D must prove that the accident occurs
despite the reasonable precautions that
had been taken by D to avoid it
• BOP: Defendant
CASE: SARAWAK SHELL BHD V THE OWNERS OR
OTHER PERSONS INTERESTED IN THE SHIP OR
VESSEL THE ' RED GOLD' AND ANOTHER ACTION
[2011] 1 MLJ 239
• A vessel known as 'Red Gold' was
involved in a collision with an offshore oil
platform. The bow thruster of Red Gold
experience an overhaul and was sent for
repairs. All necessary repairs had been
taken but yet it suddenly drifted and
collided with the Sarawak Shell oil
platform. D pleaded inevitable accident on
their defence.
• The owners had not established that the
accident would have occurred even without
their negligence. The power card was not
securely placed or fastened so as to be
immune to vibration. The defect could have
been rectified or avoided by a proper
securing of the said power card and a system
of routine visual checking.
• The defence of inevitable accident failed in
that the owners failed to discharge the onus
on them to provide a reasonable explanation
for the collision and that it would have, in any
event, occurred without their negligence
CASE: TING JIE HOO v LIAN SOON HING
SHIPPING CO [1990] 2 MLJ 56

• P was employed by the defendant as a labourer.

P was involved in an accident while handling the
wire-rope of a crane mounted on a barge on a
river. P claimed that when the crane's engine
was started, the boom suddenly swayed towards
him and struck him on his legs.
• P claimed damages for pain, suffering and loss
of earnings.
• D pleaded the defence of inevitable accident and,
alternatively, volenti non fit injuria.
• D had not exercise reasonable care for the
safety of the plaintiff as its employee which
had materially contributed to the plaintiff's
injuries.
• The burden of proof of inevitable accident
was on D and they had failed to show that
the fall of the boom caused by the waves
was inevitable.
• P only worked at D’s for 12 days and could
not appreciate the dangerousness of the
work- the plea for volenti fails.
 Act of God
• Conditions
(i) The natural cause is unforeseeable
(ii) Without human intervention
• The defence must involve an act that is not influenced
in any way by mankind’s activities
• Also known as force majeure
• The act must not be reasonably foreseeable so that the
defence of Act of God can be sustained
• Depends on the facts of the case
• E.g: extraordinary rainfall, high wind and high tide.
 CASE: TENNENT EARL OF
GLASGOW (1864) 2 M (HL) 22
• Definition of act of God
"circumstances which no human foresight
can provide against, and of which human
prudence is not bound to recognise the
possibility, and which when they do occur,
therefore, are calamities that do not
involve the obligation of paying for the
consequences that may result from them."
 CASE: HOCK WEE NURSERIES SDN BHD V FAJAR SAGA SDN
BHD [2011] 7 MLJ 479
• P and D were owners and occupiers of adjoining plots
of land. P was carrying out orchid farming activities on
his land while D was developing its land into a housing
project. Some time in 2001, a stream which ran from
the P's land, which was situated upstream, to the D
land, which was situated downstream, burst its banks
and flooded the P's orchid farm
• D submitted that the construction works carried out on
its lands were guided by it's surveyors, engineers and
architects and approved by the relevant authorities. It
further submitted that both pieces of land were
situated in flood prone areas and that the flood which
occurred was an act of God that was beyond the
defendant's control.
• From evidence, the flood was brought
about by the backflow of water due to the
obstruction of the stream caused by the
temporary earth road cum embankment
built by D
• The court found out that if the land were
flood prone areas, D’s land would not be
suitable to be developed into a housing
estate
• The defence of Act of God must fail.
 CASE: NICHOLS V
MARSLAND [1870] 2 Ex D 1
• D owned many artificial lakes. A heavy
rainfall caused the artificial embankment
of the lake to collapse and water from the
lake swept away four bridges.
• Held: D was not liable as he was not
negligent. The heavy rain was not
reasonably foreseeable and it was an act
of God.
• NOTE: The decision was criticized in later cases.
 CASE: GREENOCK CORPORATION V
CALEDONIAN RAILWAY CO [1917] AC 556, HL

• An extraordinary heavy rainfall caused D’s

pool to flood. Water flowed from it onto the
highway and then onto P’s land, causing
damage to their property.
• Held: D was liable because in collecting
and damming up the water of a stream, it
had a duty to ensure that people who were
staying on lower ground would not be
injured or adversely affected as a
consequence of their activities.
 CASE: HOON WEE THIM v PACIFIC TIN
CONSOLIDATED CORPORATION [1966] 2 MLJ
240
• D had built a water reservoir above ground level on
their land. The reservoir contained very large
quantities of water. There was heavy rainfall in the
surrounding hills and seepage conditions appeared
on the water bund of the reservoir. The bund started
to fail and finally collapsed. As a result water
escaped on to the adjacent land and this caused the
death of one person by drowning. The administrator
of his estate claimed damages arising out of the
death.
• Held: In a tropical country such as Malaysia a heavy
shower can certainly not be held to be an act of God
 Private defence

I. Self-defence
II. Defence of another
III. Defence of property
IV.Contributory negligence
 I. Self-defence

• Relevant in case of trespass to person;

assault, battery and false imprisonment
• General principle: when a person is being
attacked, he must take reasonable steps
to defend himself
• Under Penal Code (Section 96)-anything
done in self-defence is not an offence
 CASE: ANONYMOUS CASE
68 ER 1075
• Requirements of exercising the right of
self-defence
(a) whether it is reasonable for D to use
violence in defending himself
(b) whether the violence used is
proportionate to the P’s act

Note: all facts and circumstances of the

case must be taken into consideration.
 CASE: COCKROFT V SMITH
[1705] 2 Salk 642
• A court clerk, in a scuffle, ran his fingers
towards D’s attorney’s eyes, who bit off P’s
forefinger.
• Held: D was liable.
• A person must react proportionately in
cases of assault. Even though P’s act
constituted a dangerous threat to D’s eyes,
it did not justify D to react in such a violent
and unreasonable manner
 CASE: LANE V HALLOWAY
[1968] 1 QB 379
• P who was 64 years old and D who was 23
years old were neighbors. D’s wife uttered some
rude words to P and P did likewise to her. D,
upon hearing P’s words to his wife asked P to
repeat his words. P then challenged D to a fight.
As D walked towards P, who believed that D was
going to hit him, he hit D on the shoulder. D
retaliated by hitting P causing P to suffer injury
which required 16 stitches.
• Held: D’s act was not proportionate to P’s action
who has a huge age difference between them
 II. Defence to another
• General principle: a person may act in order to
defend
– Children
– Wife/husband
– Other members of family
– Master/person under his guardian
• Requirements: (a) reasonable (b) proportionate
• Defend other person?
– Was it reasonable for D to protect other person in
this way?
– Whether the force is necessary in the
circumstances?
 III. Defence of property
• Principle: a person may use reasonable force to
defend his property (land or goods)
• A person must show that he has possession of it
(not necessarily ownership)
• The reasonable force depends on facts and
circumstances of the case
– The use of reasonable force must not cause
another person to suffer great body injuries
 CASE: HOLMES V BAGGE
[1853] 1 E & B 782
• P and D were members of the same cricket club.
In one incident, D asked P to participate in the
game(P was then as a spectator). P did not like
the way D spoke to him and refused to play and
move away from the field. By D’s direction, P
was forcibly removed from the field.
• D argued that he used his defence to property
as he claimed to have possession of the field.
• Held: D did not have possession of the field and
the defence failed.
 CASE: CRESWELL V SIRL
[1947] 2 All ER 730
• P’s dog and another dog were chasing D’s
sheep and as a result D’s sheep
miscarried. D, who saw what was
happening and thinking that the dogs were
stray dogs, shot the dogs when the dogs
were in fact running in another direction.
• Two requirements:
(a)The sheep was in actual danger
(b)The danger is imminent
• A reasonable man would have acted in
the same way as Ds’ in the same
circumstance- A reasonable man test
• Held: the defence succeeded
 CASE: COLLINS V RENISON
[1754] Say 138
• D had possession of his garden. P without
permission placed a ladder in D’s garden
and climbed up the ladder to his (P) roof.
D asked P to climb down but P refused to
do it. D then shook the ladder, causing P
to fall down.
• Held: a defence to property may be used
to trespassers.
• In this case, the defence failed because
the method used was too excessive
 Necessity
• Relevant in all forms of intentional torts
• Usually used when there is an urgent situation of
imminent peril
• Basis of the defence is:
– Charity
– Maintenance of public goods
– Self-protection of person or property
• Two categories
(a) Private necessity
(b) Public necessity
 (a) Private necessity
• Pleading: the tort committed is justified and
necessary to prevent greater damage to D or
another person
– The tort must not be from the cause of D’s
negligent conduct
• Operates when there are two choices and both
choices are equally bad
• Conditions:
i. Reasonable
ii. Necessary
• Depends on facts and circumstances of the case
• Take into account whether life is threatened in the
situation
 Issues:
• 1: Saving a person who attempts to commit suicide?
– England- Suicide Act 1961
– Malaysia
• 2: Doctor-patient relationship?
– The patient objects to the treatment?
– The patient consents to the treatment and in the
course of the treatment, the doctor finds other
disease and treats the disease without the
patient’s consent?
– The parents or guardian objects to the treatment
to a minor?
– Unconscious patient who is unable to give
consent?
 Case: RE T (An Adult: Medical
Treatment) [1992] 4 All ER 649
• A pregnant woman/patient, who was a
Jehovah witness involved in an accident
where the doctor performed a blood
transfusion in order to save her life. The
patient expressly told the doctor that she
do not want to have a blood transfusion.
• The patient sued the doctor for trespass.
• An adult patient who was mentally and
physically capable of exercising a choice must
consent if medical treatment of him was to be
lawful. Treating him without consent or despite a
refusal of consent would constitute a civil wrong
of trespass and might constitute a crime. Where
a patient had made no choice and, when the
need for treatment arose, was in no position to
make one, the doctor could lawfully treat the
patient in accordance with his clinical judgment
of what was in the patient's best interests. The
patient's right of choice existed notwithstanding
that his reasons were rational, irrational,
unknown, or even non-existent
Case: COPE V SHARPE [1912]
1 KB 496
• A fire broke out on P’s land. While his servants were
trying to beat the fire out, D who was P’s neighbour, and
who had shooting rights over P’s land set fire to some
heather that was situated between the fire and his
pheasants.
• P’s servant eventually succeeced in extinguishing the fire
but P sued D for trespass to land.
• Held: Not liable
• There was real and imminent danger and what D did
was reasonably necessary and a necessity in the
circumstances.
 Case: RIGBY V CHIEF CONSTABLE OF
NORTHAMPTONSHIRE [1985] 2 All ER 985

• The police fired a canister of CS gas into P’s shop in

order to flush out a dangerous psychopath who had
entered the premises. The gas caused a fire which
damage P’s shop.
• Held: defence succeeded.
• The defence could not be used if the police was
negligent. In this case, the police was not negligent
in not having a new CS gas device, which involved
no fire risk.
Note: the police was however negligent for the failure
to provide sufficient fire-fighting measures when the
gas was released onto the premises.
 The test:
• Was it reasonable for D to have reacted for the
protection of his property or person?

• Reasonableness of the act

• In case of immediate and urgent need of action

• Cases:
• S O U T H WA R K L O N D O N B O R O U G H
COUNCIL V WILLIAMS
• WHALLEY V LANCASHIRE AND
YORKSHIRE RLY CO
• GREYVENSTEYN V HATTINGH
 (b) Public necessity
• The use of private property by a public official for
a public reason.
• The potential harm to society necessitates the
destruction or use of private property for the
greater good.
• The injured, private individual does not always
recover for the damage caused by the necessity
• Conditions:
– Actual danger
– Reasonable
– necessary
Case: DEWEY V WHITE [1827]
Mood & M 56

• During a fire, D threw down P’s chimney

as there was a risk to the highway below.
• Held: Not liable
• Protection of public property
 Discipline
• Relevant in trespass to person- battery
and false imprisonment
• The purpose: to punish P
• Two categories
(A)Parents
(B)School teachers
 (a) Discipline by parents
• The infliction of assault, battery and false
imprisonment by parents may be justified
on the ground of discipline.
• Requirement: reasonableness of the act
• Issue: detention of children?
– Allowed only if it is reasonable in the
circumstances
– No physical violence
(b) Discipline by school teacher
• Qs: whether the conduct of a teacher towards
the students is reasonable in the circumstances?
• Corporal punishment?
– Education Regulations (Student Discipline)
2006- only for boys
• Public caning is banned in schools after the
Education Regulations (Student Discipline)
2006 came into force.
• Malaysian governments do not encourage
caning for primary school students, but caning is
allowed at the secondary level by the principal or
a person to whom he delegates the power to.
 Guidelines on school caning
• Female students are not allowed to be caned
• Only the headmaster can carry out the caning
• A teacher can only cane when the headmaster
delegates this power to him in writing, and he must
be a permanent teacher of the school
• The student can only be caned on the buttocks or
the palm. It cannot be done on bare buttocks and
the student cannot be asked to lower his pants.
• The caning is to be meted out in a confined area
• The student's parents will be informed and invited to
witness the caning
• Caning must only be for a repeated mistake or very
serious offence.
Case: RYAN V FILDES [1938] 3
All ER 517
• P, a schoolboy (10-y) was boxed on the
ear by his schoolmistress for his lack of
discipline. As a result of the blow, which
was not a violent one, the boy became
deaf in one ear.
• Held: liable
• The blow, although a moderate one,
exceeded reasonable and lawful
correction.
 Lawful arrest
• The act of a police officer may amount to
false imprisonment, battery or interference
with goods
• Defence: if it is made under the Criminal
Procedure Code, the act of a police officer
is justified
• See CPC
 Section15(1) Criminal
Procedure Code
In making an arrest the police officer or
other person making the same shall
actually touch or confine the body of the
person to be arrested unless there is a
submission to the custody by word or
action.

Note: Arrest can also be made by Penghulu,

Magistrate and Private person under CPC
 Statutory authority
• A statute may absolve D’s liability that
would originally amounts to a tort
• Unless the damage is caused by
negligence or contributory negligence of D,
D is not liable to pay damages
• The statute may also provides for
compensation to be made by D in case of
damage occurs to P as a result of D’s
action
 Section 19 Civil Aviation Act
1969-
• The land owner cannot bring an action for
trespass or nuisance or for any damage to
property by reason of flight of an aircraft
over his land at a reasonable height
– Except: the damage is caused by
negligence or contributory negligence of
D
 E.g.: Section 53 (1) Street,
Drainage and Building Act 1974
• The local authority shall maintain and keep in repair and, as it sees
fit, enlarge, alter, arch over or otherwise improve all or any of the
surface and storm water drains, culverts, gutters, and water-courses
under the control of the local authority and may discontinue, close
up or destroy such of them as it deems useless or unnecessary:
• Provided that the local authority shall before entering any private
under this
property for the purpose of carrying out any work
subsection, give reasonable notice in writing in
that behalf, and shall in carrying out such works
do as little damage as may be and shall make
full compensation for any damage done
 Ex turpi causa non oritur actio
• Def: cause of action would not arise from a wrongful act
• a claimant will be unable to pursue a cause of action if it
arises in connection with his own illegal act
• No clear-cut standard for its applicability- usually on
public policy reason or illegal/immoral conduct of P
• D must show that the P’s action is reprehensible as to
justify the condemnation by the court
• Depends on facts and circumstances of the case
Case: MUHAMAD SALEH BIN HASHIM & ORS v
PERCON CORP SDN BHD [2003] 6 MLJ 483

• P and 71 others were illegal squatters who had

unlawfully erected huts along the river banks of
Sungai Klang. D was a private limited company
that carried on the business of general
construction. P's claim was based on negligence
in that as a result of the D's project in building a
highway project, the land on which the P's
houses were built were flooded.
• The D alleged that the floods were caused by
the inadequate drainage system.
 High Court
• P together with the 71 other persons are,
pure and simple, squatters who had
contravened the various provisions of the
law by erecting illegal squatter huts on the
river banks of Sungai Klang
• That the illegal acts of erecting squatter
huts cannot be legitimized because it
contravened the relevant provisions of the
statutes