AMII_303_Legal Principles_2nd ed_25 June 2024

Article 160(1) of the Federal Constitution.

The Rules of the Federal Court 1995, Rules of the Court of Appeal 1994, and the Rules of Court 2012.

Liability insurance is a means for individuals or businesses to protect themselves in cases where they are potentially liable for some wrongdoing that caused harm to another.

The aggrieved party may file an appeal or, in some circumstances, seek revision.

The powers to arrest, search, seize, gather and preserve evidence, interview potential witnesses, and record statements.

The offence with which the accused is charged, the precise provision of law under which the person is being prosecuted, the provision providing for the punishment, and the time, date, and place of the alleged offence.

To convey to the accused with clarity and certainty the case which the prosecution intends to prove against him or her, and to inform the Court of the matters that need to be proven.

Generally, an appeal to the Court of Appeal does not stay the execution of the judgement appealed against unless the Court of first instance or the Court of Appeal otherwise directs.

The State (not the victim) brings the action as crimes are considered to have been committed against the community.

Yes, guilty mind (mens rea) is required under Criminal law.

If a party fails to appear or comply with directions at a pre-trial conference, the judge may make such order against the defaulting party as meets the ends of justice.

The Parliamentary Draftsperson.

A tort is a civil wrong and the breach of a general duty imposed by law, not agreed upon between parties.

1. Pre-trial, 2) Trial, 3) Post-trial

The amount in dispute or the value of the subject-matter must be above RM10,000, except for appeals concerning maintenance of wives or children. No monetary limit applies for appeals on a question of law.

Discovery is the process by which each party makes, and exchanges with the other party, a list of all relevant documents which are or have been in his or her possession, custody, or power relating to matters disputed by them in the action.

'Duty of care' means duty as imposed by the law, or legal duty. The breach of this duty gives rise to liability in negligence.

Further and better particulars may be obtained on request or by applying to the Court.

Sections 172A, 172B, 172C, and 172D

An appeal can only be brought to the Federal Court with leave from that Court and is governed by the Rules of the Federal Court 1995.

No, a customer does not have a legal duty to warn others about a banana skin on the floor. They only have a social or moral duty, which is not enforceable by law.

The only branch of Malaysian tort law that has been codified into statute is contained in the Defamation Act 1957 (Act 286).

Appeals to the Court of Appeal can be made against decisions of the High Court in the exercise of its original jurisdiction, in the exercise of its appellate or revisionary jurisdiction concerning matters originating in the Sessions Court, and in the exercise of its appellate or revisionary jurisdiction concerning matters originating in the Magistrates’ Court.

Order 21 of the RC allows a party to withdraw or discontinue his or her action, defence, or counterclaim.

The respective Rules Committee comprising primarily of judges and legal practitioners.

i) writ of summons; ii) originating summons; iii) originating motion; iv) petition.

Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.

Pleadings are written documents containing concise statements of all material facts relied upon by the parties.

The purpose is to provide the parties with the opportunity to assess the strength and weakness of their respective cases, and to encourage them either to compromise or settle their dispute without a trial.

The application for leave to appeal must be made within one month (or such further time as may be allowed by the Court) from the date on which the decision appealed against was given.

An appeal to the Federal Court does not operate as a stay of execution unless the Court of first instance or the Federal Court so orders.

The individual (victim) brings the action as the individual suffers a personal loss.

Beyond reasonable doubt.

The High Court Judge has discretionary powers to satisfy himself as to the correctness, legality, or propriety of any finding, sentence, or order of a subordinate Court.

The plaintiff (or claimant) and the defendant.

On 21 September 2000, pre-trial case management was introduced into the Rules of the High Court 1980 under Order 34, which is now Order 34 of the RC, bringing about greater involvement by the judge in the preparation of the case for trial.

Seven divisions.

The advantages of settlement via mediation include confidentiality, privileged communication, reduction of issues even if there is no full settlement, time-saving, preservation of relationships, and the ability to discuss wider issues.

The State Legal Adviser is completely independent of the Attorney General in giving advice on state matters.

The Ruler or Yang di-Pertua Negeri on the recommendation of the Judicial and Legal Service Commission, after considering the advice of the Menteri Besar or Chief Minister.

It is fundamental to understanding the legal impact and consequences of our daily conduct in relation to others, and it is especially important to the insurance industry.

An originating summons is used primarily for non-factual disputes, such as those involving construction of legislation or a written document.

The Deputy Public Prosecutor

It comprises hearing appeals from any judgement or order of the High Court, whether made in the exercise of its original or appellate jurisdiction.

Pleadings are deemed to be closed fourteen days after the service of the last pleading.

A defendant can apply to strike out the plaintiff’s statement of claim if it: discloses no reasonable cause of action; is scandalous, frivolous, or vexatious; tends to prejudice, embarrass, or delay the fair trial of the action; or is otherwise an abuse of the process of the Court.

No, a morally wrong act does not always constitute a tort. For example, if B was drowning and called out to A for help, and A failed to rescue B, A would not have committed any tort towards B. A's behavior may be morally wrong, but it is not a tort, i.e., not a legal wrong.

Criminal law is defined as a body of rules prohibiting certain conduct on pain of punishment.

The State enforces the judgement of the Court.

The Federal Court.

Pre-trial, the trial proper, and post-trial.

Closing speeches review the facts, make submissions on the weight of the evidence, argue why evidence should be accepted or rejected, and fully argue points of law with relevant authorities.

The Royal Malaysian Police (PDRM)

1. There is a duty of care owed by the defendant towards the plaintiff; 2) This duty is breached by the defendant; 3) Loss or injury is suffered by the plaintiff; 4) The loss or injury was caused by the said breach of the duty of care.

The procedure is set out in the Rules of the Court of Appeal (RCA) 1994. Where the RCA does not provide for the procedure, the RC applies with necessary changes.

Pre-trial conference, case management, plea bargaining, and disposal of the case as agreed by the accused and the Public Prosecutor after the plea-bargaining process.

The three main sources of the law of torts in Malaysia are: English common law, local judicial decisions, and common law principles codified into local statutes.

The 'neighbour principle' is used to determine the existence of a duty of care.

a) File an appeal to a higher Court, or b) Proceed by way of revision.

The plaintiff (person bringing the action) must establish their case on the balance of probabilities.

A neighbour is a person who is so closely and directly affected by one's act that one ought reasonably to have them in contemplation as being so affected by the said act.

No, an appeal does not automatically operate as a stay of execution. The trial or appellate Court has the discretion to stay execution on any judgement, sentence, or order pending appeal.

'Negligence' is the omission to do something which a reasonable man would do, or doing something which a reasonable man would not do.

The main purposes of pre-trial procedures are to enable the parties to prepare their cases for the trial as fully as possible, ensure that the issues in dispute are clearly and precisely defined, prevent either party from being taken by surprise at the trial, and eliminate cases that can be disposed of without trial.

The main aim of Practice Direction No.5 of 2010 is to encourage parties to settle amicably without going to trial, through mediation.

A writ of summons is used where there is a factual dispute.

Negligence means more than needless or careless conduct…it properly connotes the complex concept of duty, breach and damage thereby suffered by the person to whom the duty was owing.

A summary judgement is when the defendant has entered appearance and filed a defence but it is obvious from the statement of defence that the defendant has no real defence to the plaintiff’s claim, allowing the plaintiff to apply to the Court for summary judgement.

The Federal Court may exercise any of the powers of the Court from which the appeal lies, including the power to order a retrial. It may confirm, reverse, set aside, or vary the decision of the Court of first instance, or remit the matter with its opinion thereon to that Court or make such other order as it thinks fit.

In Donoghue -v- Stevenson, a ginger-beer manufacturer sold opaque bottles of ginger-beer to a retailer. A customer bought a bottle and served it to a friend, who found a decomposed snail in the drink and became severely ill. The plaintiff sued the manufacturer for failing to prevent snails from entering the bottles and for not inspecting the bottles before filling them.

The Court of Appeal may confirm, reverse, or vary the decision of the High Court, or even order a retrial. The proviso to subSection (1) of Section 60 of the CJA 1964 allows the Court of Appeal to dismiss the appeal if the Court considers that no substantial miscarriage of justice has occurred even though it is of the opinion that the point raised in the appeal might be decided in favour of the appellant.

The test was whether the plaintiff was the neighbour of the defendant.

1. No appeal in the case of an offence punishable with a fine only not exceeding RM25; 2) A person convicted after a proper plea of guilty cannot appeal against his or her conviction; 3) A person acquitted by a magistrate or a Sessions Courts judge can only be appealed against by, or with the written sanction of, the public prosecutor.

The defendant/appellant was liable due to its negligence in omitting to take preventive measures before commencing construction works.

An example is that imposing a duty of care on a certain party may open the 'floodgates' of litigation.

The types of cases suitable for mediation include personal injury and damages for road accidents, defamation, matrimonial disputes, contractual disputes, commercial disputes, and intellectual property disputes.

A consent judgement is a legally binding contract that resolves a dispute when both parties have reached a settlement agreement after mediation.

Witnesses for the plaintiff are called, take the oath, and are examined by the plaintiff's counsel, cross-examined by the defence counsel, and re-examined by the plaintiff's counsel.

Dangerous Drugs Act 1952 (Act 234) and Child Act 2001 (Act 611)

A defendant must enter an appearance within the prescribed period by completing a memorandum of appearance and filing a copy at the High Court registry.

A default judgement occurs when the defendant fails to enter appearance or to file a defence having entered appearance within the prescribed period, entitling the plaintiff to apply to the Court for default judgement.

It means that the Court re-hears the case on the documents, including the judge’s notes of evidence, and considers the materials which were before the judge below, additional materials (if any), and the judgement appealed against.

Discovery of documents begins once pleadings are closed.

The proprietor of the supermarket has a legal duty to ensure the safety of the premises for invitees and will be liable for any injuries due to a breach of this duty.

The burden of proof in criminal cases is 'beyond reasonable doubt', which is a higher burden than that in civil matters, which is 'on the balance of probabilities'.

The individual enforces the judgement of the Court.

On the balance of probabilities.

The first level of appeal is to the High Court and the second and final appeal is to the Court of Appeal.

No party has any right to be heard in a revision, but the Judge may hear any party if he thinks it fit to do so.

The prosecution and the accused.

The Queen’s Bench held that the Home Office owed a duty of care to the plaintiffs, which was capable of giving rise to liability in damages. The appeal by the Home Office was dismissed.

The defendant, a learner-driver, was not liable for the injury she caused to the plaintiff as she had tried to control the car to the best of her ability.

There must be an act or omission done intentionally or negligently, and there must be damage caused by such act or omission, which is not remote.

The plaintiff bears the burden of proving his case on the balance of probabilities.

The Criminal Procedure Code (Act 593) (CPC)

A petition is used only where expressly provided for by statute, such as in an application to wind up a company.

Interrogatories are written questions posed by one party to the other party concerning matters in dispute between them, asking that other to answer such questions on oath before trial.

a) To define the issues in dispute between the parties; b) To give the other party notice of the case to be answered so that there is no element of surprise at the trial.

The defendant must show there is a 'triable issue' (i.e. there is an issue which ought to be tried).

1. There must be a wrongful or unauthorized act or omission; 2) That wrongful or unauthorized act or omission affects the interests or rights of others; 3) The injured party or victim has a right to a claim for damages.

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 Malaysian High Court held that the Director of Health owes a common law duty of care to ensure that any application to renew a private hospital licence is attended to promptly. Failure to do so for almost a year without reasonable cause constitutes a breach of that duty.

The High Court may dismiss the appeal, direct further inquiry, order a retrial, substitute an acquittal with a conviction and proceed to sentence the accused according to law, quash the conviction and set aside the sentence, acquit or discharge the accused, or vary the sentence or order accordingly.

Appeals falling under category (3) are confined to only questions of law, which have arisen in the course of the appeal or revision and the determination of which by the High Court has affected the outcome of the appeal or revision, and can be pursued only with the leave of the Court of Appeal.

If an appeal is against an acquittal, the Court of Appeal may direct that the accused be arrested and brought before it. The Court of Appeal may remand the accused to prison pending the disposal of the appeal or grant the accused bail, if applicable.

The issue was whether the defendant owed a duty of care to the plaintiff.

1. It created a new category of duty, owed by the manufacturer to the consumer. 2) The Court took into account new technology, which was mass production, in the imposition of liability for negligence.

The defendant was conducting piling activities and excavation works without taking precautionary or preventive measures.

Structural damage to the bungalow, including cracks on floors, walls, columns, and beams.

The 'reasonable man’s test' is used to determine a 'breach of duty'.

No, an appeal does not automatically operate as a stay of execution. The only exceptions are where the appellant has been sentenced to whipping or death by the High Court. In these cases, the sentence will not be carried out until the deadline for filing a notice of appeal has expired or, where a notice of appeal has been filed, until the appeal has been determined.

The prosecution has the onus of proof to prove its case beyond reasonable doubt.

Damages (money compensation), injunction, and specific performance.

The Courts would insist on a pre-existing contractual relationship between the parties before a duty of care could arise.

Yes, the Court may not impose a duty of care on grounds of public policy even though damage to the plaintiff is foreseeable.

No, guilty mind (mens rea) is not required under Civil law.

Death, imprisonment, fines, whipping, and loss of licence, etc.

'Judgement' refers to the final order in a trial terminating in the conviction or acquittal of the accused.

a) The appellant; b) The public prosecutor or respondent; c) A reply by the appellant.

No, foreseeability or proximity does not always necessarily mean physical nearness.

It is enough for the plaintiff to be a member of a class of persons to whom damage is foreseeable.

It is up to the judge to determine based on the facts of each individual case.

Appeals can be made against the judgement, sentence, or order of the Magistrates’ and Sessions Courts.

1. The damage is reasonably foreseeable. 2) There is a close and direct relationship of proximity between the plaintiff and the defendant. 3) The circumstances as a whole must be such that it is fair, just, and reasonable for the imposition of a duty of care.

The issue of foreseeability in negligence.

The Court will ask whether a reasonable man in the same circumstances as the defendant would foresee that his conduct will adversely affect the plaintiff.

'Would a reasonable man in the same circumstances as the defendant have acted as the defendant has done?'