The defendant may be criminally liable for omitting to act provided that the crime is one which may be committed by omission and the defendant is in breach of some legal duty to act. It is generally believed by some theorists that omission liability plays an insignificant role in the criminal law and there are others who suggest that the scope of omission liability should be widened to include a wide range of conduct that are subject to criminal sanctions. Also, there is concerns that how should such liability be constructed, for example, would it unfairly penalized an innocent passer-by? The modern legal system tends to adopt the concept of ‘duty to act’, whereby it is an offence if a person who has a duty to act failed to act in a required state. One can debate whether (and to what degree) duties of compassion and solidarity exist between citizens, and whether the state should punish their violation.
False imprisonment is an act punishable under criminal law as well as under tort law. Under tort law, it is classified as an intentional tort as trespass to a person.False Imprisonment has been defined as the total restraint of the liberty of a person. The word ‘false’ means ‘erroneous’ or ‘wrong’. It is a tort of strict liability and the plaintiff has not to prove fault on part of the defendant. It safeguards the right to freedom of a person so that they may be able to move without restraint.
At times criminal intent is used in the sense of mens rea-the mental element requisite for guilt of the offense charged. Knowledge; the law can presume knowledge of facts under the doctrine of notice where a person would have known if he had made proper enquiries. Recklessness must be judged under two scenarios firstly was the risk taken unjustifiable, secondly it may sometimes be seen to be justifiable on the basis of social utility, circumstances must be taken into consideration. The question is as to whether the recklessness in question shall be judged subjectively or objectively. Subjective recklessness involves the conscious taking of an unjustifiable risk.
Judge Haugh declared that “One is not entitled to seek damages for mere bad manners or mere sensitivity, but there is however an action known to the law of tort that entitles a person to compensation when they suffer a recognized psychiatric consequence of harassment ,that is inexcusable conduct intentionally or recklessly handed out. Before he can succeed in an action for the wilful or reckless infliction or emotional harm there must be a form of harassment or a form of misconduct formed on the part of the defendant that any right-minded right-thinking person would consider to be gratuitous or reprehensible. It must be done either with the intention of humiliating or embarrassing the butt of the harassment ,or it must be done where there is a risk of such an adverse reaction and that risk is unjustifiably
The other type is appropriation of name or likeness. Appropriation of name or likeness means “Plaintiffs may make a claim for damages if an individual (or company) uses their name or likeness for benefit without the other party 's permission” (Invasion of Privacy). The third type is appropriation disclosure of private facts, which means revealing private information that is not of public concern, and the reasonable person find it offensive for the public to know them. The last type of invasion of privacy is false light. False light is similar to a defamation claim.
If a wrongful act is done deliberately, the possibility of negligence is ruled out automatically. In strict/absolute liability, the person responsible for causing harm is found guilty of wrongdoing, regardless of whether they are negligent or not. Characteristics of Tort Claims In order for a victim of a tort to file a legal claim in tort and receive compensation for their injuries or property damage, the following four elements of negligence must be satisfied: 1.There must be a duty imposed by law for the protection of other individuals against harm. Without the existence of this legal duty of care, the plaintiff cannot collect damages. 2.Another requirement that has to be met in tort claims is the breach of the duty of care.
Firstly, the courts observed that the works should be considered as a whole and not in individual parts. In Kakodkar case the Supreme Court held that it is the duty of the Court to consider the obscene matter by taking an overall view of the entire work and however obscene the matter may appear to be when considered by itself, the overall literary merit of the book might still make those very passages fall beyond the concept of obscenity. In Abbas case it was held, “it is not the elements of rape, leprosy, sexual immorality which should attract the censor’s scissors but how the theme is handled by the
WHAT IS TORT ( NATURE & DEFINATIONS ) Shall I write above Law of Tort or Law of Torts. But we will take up the difference a bit later and first get to know what a tort is ? Tort which is equivalent to the English term ‘wrong’ finds its root in the Latin term ‘tortum’ which means ‘to twist’. Thus “tort means “a conduct which is not straight or lawful, but, on the other hand, twisted ,crooked or unlawful . Tort is violation of a legal right vested in any particular individual (defamation) or of public at large (Public nuisance).It is a branch of the obligations ,where the legal obligations to refrain from harm to another and ,if harm is done, to repair it or compensate for it ,are imposed not by agreement, but independently of agreement by force of the general law.
In Malaysia, this is governed by the Defamation Act 1957. ELEMENTS OF DEFAMATION In order to prove defamation, a plaintiff must be able to satisfy the following criteria : 1. The statement must be defamatory First and foremost, the statement must be defamatory. It is rather obvious that to be defamatory, the statement must damage or lower the plaintiff’s reputation in the eyes of a right-minded person or the statement can
What is necessity? The defence of necessity, otherwise known as compulsion, arises when a person choses to break the law in order to avoid an imminent evil, this situation whether brought about by the force of the surrounding circumstances or by human influence such as compulsion, duress or coercion is treated uniformly by the law. The defence is invoked where the conduct of the defendant was directed against an innocent third party to protect the interest of the defendant or another third party from danger. Necessity is a legal defence that, when successful, can find a crime that has been recognised in the criminal law, to usually be void of the element of unlawfulness. Whether or not the defendant’s conduct would be covered by the defence of necessity will depend on the specific facts of the case.