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Obscure Torts

Joshua Wu discusses the less common torts.

This article reflects the personal opinion(s) of the writer(s), and does not necessarily represent the views of the Bar Council.

Introduction

Arguably the most well-known torts are negligence and defamation. Which law student and/or legal practitioner has not heard of the seminal case of Donoghue v Stevenson [1932] UKHL 100?

Lesser known torts, yet still heard of and/or taught in law school, includes nuisance, trespass to person, trespass to land, and vicarious liability.

This article intends to present and make known obscure torts which do not appear in many Tort Law textbooks.1The first, second, and fourth tort can generally be classified as economic torts which “as their name suggests, have their primary function the protection of claimants’ economic interests, in the sense of their existing wealth or financial expectations.”2

I. Procuring a Breach of Contract

This tort arises where “a third person deliberately [interferes] in the execution of a valid contract which has been concluded between two or more other parties.”3

In Greig v Insole [1978] 3 All ER 449, Slade J elaborated on the conditions that need to be fulfilled:

“First, there must be either (a) ‘direct’ interference; or (b) ‘indirect’ interference coupled with the use of unlawful means: see per Lord Denning MR in Torquay Hotel Co Ltd v Cousins [1969] 2 Ch 106 at p 138.

As to the meaning of ‘interference’ this is not confined to the actual procurement or inducement of a breach of contract; it can cover the case where the third person prevents or hinders one party from performing his contract even though this be not a breach: see per Lord Denning MR.

Secondly, the defendant must be shown to have knowledge of the relevant contract.

Thirdly, he must be shown to have had the intent to interfere with it.

Fourthly, in bringing an action, other than a quia timet action, the plaintiff must show that he has suffered special damage, that is, more than nominal damage: see Rookes v Barnard [1964] AC 1129, at p 1212, per Lord Devlin. In any quia timet action, the plaintiff must show the likelihood of damage to him resulting if the act of interference is successful: see Emerald Construction Co Ltd v Lowthian [1966] 1 WLR 691 at p 703, per Diplock LJ.

Fifthly, so far as is necessary, the plaintiff must successfully rebut any defence based on justification which the defendant may put forward.”4

Greig v Insole was cited approvingly by the Court of Appeal in Kelang Pembena Kereta-Kereta Sdn Bhd v Mok Tai Dwan [2000] 1 MLJ 673 and Fong Seng Fatt dan satu lagi lwn Syarikat Cekal Kasih Sdn Bhd [2011] 4 MLJ 27.

II. Unlawful Interference

Closely connected to the tort of procuring a breach of contract is the tort of unlawful interference. According to Abdul Malik Ishak J (later JCA) in Worldwide Rota Dies Sdn Bhd v Ronald Ong Cheow Joon [2010] 8 MLJ 297, “The tort of unlawful interference arises when one person [uses] unlawful means with the object of causing damage to another.”5

His Lordship went on to provide an example:

“Thus, in a situation where the defendant commits an actionable wrong, like inducing a breach of contract … or where the defendant authorises or procures a breach of copyright for purpose of harming the plaintiff (CBS Songs Ltd & Ors v Amstrad Consumer Electronics Plc & Anor [1988] 1 AC 1013 (HL)), the defendant is said to commit the tort of unlawful interference.”6

III. Intimidation

According to the UK Court of Appeal in Morgan v Fry [1968] 2 Q.B. 710 [“Morgan”], this tort arises where there is a “threat by one person to use unlawful means (such as violence or a tort or a breach of contract) so as to compel another to obey his wishes: and the person so threatened must comply with the demand.”7

Morgan made reference to the House of Lords decision of Rookes v Barnard [1964] AC 1129 wherein the latter established the existence of the tort of intimidation.

In Sarawak Energy Berhad & Anor v Peter Kallang & Ors [2016] MLJU 775 [“Sarawak Energy Berhad”], Lee Heng Cheong J found that the Defendants had committed the tort of intimidation. His Lordship held that:

“… there are clear evidence showing inter alia the followings:-

[i] by the Defendants’ hostile acts and words, and/ or by their unlawful assembly in such  manner and numbers, had threatened the Plaintiffs and their servants and agents with injury to property and/or to persons with the intention to coerce the Plaintiffs and their servants and agents to leave the Plaintiffs’ Main Camp, the Storage Area, and the Plaintiffs’ Boreholes Sites, and to cease the Soil Investigation Works.; and

[ii] As a result, the Plaintiffs and their servants and agents were forced to leave the Plaintiffs’ Main Camp, the Storage Area and the Plaintiffs’ Boreholes Sites, to leave behind the Machineries and Supplies, the Cores and all other goods and property of the Plaintiffs, to cease or suspend the Soil Investigation Works.”8

Although Sarawak Energy Berhad did not specifically refer to Morgan, the elements of the tort of intimidation referred to and applied to the facts of the case by Lee Heng Cheong J closely resembles the elements laid out in Morgan.

IV. Conspiracy

Lord Brampton in Quinn v Leathem (1901) AC 495 held that, “A conspiracy consists of an unlawful combination of two or more persons to do that which is contrary to law, or to do that which is wrongful and harmful towards another person.”9

In Yap J.H. v Tan Sri Loh Boon Siew & Ors. [1991] 4 CLJ (Rep) 243 similar elements were laid down by Mohamed Dzaiddin J (later CJ):

“… the plaintiff must establish (1) an agreement between two or more persons, (2) an agreement for the purpose of injuring the plaintiff, and (3) that acts done in execution of that agreement resulted in damage to the plaintiff (Halsbury’s Laws of England, 4 Edn., Vol. 45, para. 1527). Damage is an essential element and where damage is not pleaded, the statement of claim may be struck out – Ward v. Lewis [1955] 1 All ER 55 at p. 56, 57. Finally, the acts done which resulted in damage must be without lawful justification or excuse. (Crofter Harris Tweed Co. Ltd. v. Veitch [1942] 1 All ER 142.)”10

V. Misfeasance in Public Office

The “leading English case, Three Rivers District Council v Bank of England (No 3) described it as a ‘deliberate and dishonest wrongful abuse of the powers given to a public officer’, while in other cases it has been defined in terms of the ‘abuse of public office’, or the ‘abuse of a public function’.”11

Slade LJ in Jones v Swansea City Council [1989] 3 All ER 162 established the elements of the tort of misfeasance in public office:

“… someone holding public office has misconducted himself by purporting to exercise powers which were conferred on him not for his personal advantage but for the benefit of the public or a section of the public either with intent to injure another or in the knowledge that he was acting ultra vires. All powers possessed by a local authority, whether conferred by statute or by contract, are possessed ‘solely in order that it may use them for the public good’: see Wade Administrative Law (6th edn, 1988) p 400.”

The Federal Court in Tony Pua Kiam Wee v Government of Malaysia [Civil Appeal No.: 01(i)-44-11/2018(W)] and Tony Pua Kiam Wee v Datuk Seri Najib bin Tun Haji Abdul Razak [Civil Appeal No.: 02(i)-111-11/2018(W)] recently recognised that the Prime Minister is a public officer for the purposes of the tort of misfeasance in public office.

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  1. See eg Kirsty Horsey, and Erika Rackley, Tort Law (Oxford University Press, 2017), pp. xiii-xiv; John Hodgson, and John Lewthwaite, Tort Law Textbook (OUP Oxford, 2007), p. ix; Timon Hughes-Davies, and Nathan Tamblyn, Tort Law (Routledge, 2019); V. H. Harpwood, Modern Tort Law 6/e, (Cavendish Publishing, 2005), pp. vii-xxiii.
  2. Hazel Carty, An Analysis of the Economic Torts (Oxford University Press, 2010), p.1.
  3. Greig v Insole [1978] 3 All ER 449 at pp 484–485.
  4. Greig v Insole [1978] 3 All ER 449 at pp 484–485.
  5. Worldwide Rota Dies Sdn Bhd v Ronald Ong Cheow Joon [2010] 8 MLJ 297 at 343; see also Bullen & Leake & Jacob’s Precedent of Pleading (13th Ed) [Sweet and Maxwell, 1990]: “The elements are (1) interference with the plaintiff’s trade or business (2) unlawful means (3) intention to injure the plaintiff (4) the action should in fact injure the plaintiff …”; Hanipah Farikullah J (later JCA) in Ken Holdings Bhd & Ors v Sri Seltra Sdn Bhd & Ors [2014] 9 MLJ 858: “[135] The tort of unlawful interference arises when one person using unlawful means with an object of causing damage to another (see Merkur Island Shipping Corpn v Laughton [1983] 2 AC 570 (HL) at p 606 (Auth 31 PBOA); Worldwide Rota Dies Sdn Bhd v Ronald Ong Cheow Joon [2010] 8 MLJ 297 at p 343 (Auth 32 PBOA)”.
  6. Worldwide Rota Dies Sdn Bhd v Ronald Ong Cheow Joon [2010] 8 MLJ 297 at 343.
  7. Morgan v Fry [1968] 2 Q.B. 710 at 724.
  8. Quinn v. Leathem (1901) AC 495 at 528.
  9. Sarawak Energy Berhad & Anor v Peter Kallang & Ors [2016] MLJU 775, at para 38.
  10. Yap J.H. v Tan Sri Loh Boon Siew & Ors [1991] 4 CLJ (Rep) 243 at 245; see also Asmabi Mohamad J (later JCA) in Repco (M) Sdn Bhd v Tan Toh Fatt & Ors [2013] 7 MLJ 408 at 431-432: “In order to establish a conspiracy to defraud with the intention to injure, the plaintiff must establish that ‘there must be an agreement or ‘combination’ of two or more with the common intention to effect an unlawful purpose or to do a lawful act by unlawful means resulting in damage to the plaintiff (see SV Beverages Holdings Sdn Bhd & Ors v Kickapoo (Malaysia) Sdn Bhd [2008] 4 MLJ 187; [2008] 4 CLJ 20 and Industrial Concrete Products Bhd v Concrete Engineering Products Bhd [2001] 2 MLJ 332; [2001] 8 CLJ 262). The plaintiff must not only prove that there was an agreement but must also prove the overt acts which had been alleged to have been done by the parties to the conspiracy which had caused injury and damage to the plaintiff (see Seah Siang Mong v Ong Ban Chai [1998] 1 CLJ Supp 295).”
  11. Kit Barker, Simone Degeling, Karen Fairweather, Ross Grantham, Private Law and Power (Bloomsbury Publishing, 2017), p.179.



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