FACULTY OF LAW

UiTM SHAH ALAM, SELANGOR

LECTURER: MADAM NURULHUDA ADABIAH MUSTAFA

CLASS: LWB02A
DATE OF SUBMISSION:
9TH SEPTEMBER 2020
NAME STUDENT ID
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LAW498: LAW OF TORTS II

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PART A

Whether Anuar, Ummufid, Damia

Ayesha and Sipul Romi can successfully
claim for defamation?

Lord Atkin in Sim v Stretch define

defamation as “A statement untrue which
injures the reputation of another by exposing
him to hatred, contempt or ridicule or which
tends to lower him in the esteem of right
thinking members of society or which tends
to make them shun or avoid that person.”
And in Malaysia the Defamation Act 1957
was enacted to govern the law of defamation.
There are two types of defamatory statement
which is libel (permanent form) and slander
(temporary form). In relation to question, to
discuss is on libel. Example of libel is
caricatures, statements in newspapers,
television broadcasts, and statements made
on the radio. Libel is actionable per se. This
can be seen in case of Datuk Syed Kechik
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Syed Mohamad v Datuk Yeh Pao Tzu & Ors

where the court granted the plaintiff’s
application for an interim injunction as the
defamatory statement published through
caricatures of the plaintiff by the defendant
in the newspaper disclosed a clear case of
libel. Also, can be seen in Yousoupoff v
MGM where the court held that the plaintiff
was entitled to damages because the
defamatory statement contained in the film
made by the defendant is libel. Next, the
general principle of plaintiff is only living
persons can bring an action in defamation.
Means that a dead person cannot bring an
action in defamation no matter how
provocative the statement may be.
More, there are three elements to be
fulfilled to establish a defamation claim. First
elements, the statement made must contain a
defamatory meaning. To test this elements, a
statement is defamatory if it lowers the
plaintiff’s reputation in the minds of right-
thinking members of society. As in Byrne v
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Dean where the court found the defendant

not liable for the statement made as
informing the police of a crime is a heroic act
which does not lower the plaintiff’s
reputation in the minds of right-thinking
members of society. However, words may be
defamatory in two ways. First, by its natural
and ordinary meaning where the statement
made contains a literal meaning. The
meaning that the words would convey to
ordinary reasonable persons. As in Hasnul
Abdul Hadi v Bulat Mohamed, the court
found the defendant liable for calling the
plaintiff ‘Abu Jahal’ as the statement was
defamatory in its natural and ordinary
meaning. Second, by true or false innuendo,
where the statement becomes defamatory
through inferences, special facts or
circumstances known by the reader. As in
Tolley v JS Fry, where the court held the
defendant liable as those who knew the
plaintiff’s status as an amateur golfer would
reasonably assume by way of innuendo that

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the plaintiff had consented to and had been

paid for the advertisement. Moving to
second element, the statement made must
have referred to the plaintiff. To test this
elements, whether an ordinary reader would
reasonably conclude, based on the statement
as a whole that it referred to the plaintiff. The
ordinary reader must be able to immediately
identify the person being addressed. It is
sufficient for the plaintiff to be addressed
through initial letters. It does not matter if
the defendant had no knowledge of the
plaintiff’s existence. As example in a
situation where there is two people of the
same name and this is illustrated in the case
of Newstead v London Express Newspaper,
the court held the defendant liable even
though there were in fact two people,
including the plaintiff, of the same name,
and the defamatory statement made was
true of the other, but not the plaintiff. Move
to the last elements, the statement must be
published to a third party. Publish here

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means, making known the defamatory

matter after it has been written to some other
person than the person of whom it is written.
As in Theaker v Richardson, the court held
that there is publication where the defendant
knew or ought to have foreseen that the
statement would come to the attention of a
third party as is reasonably expected in
circumstances where a defamatory letter is
sent to the house of a married woman and is
read by her husband.
Done with the elements, there is few
defences that can be raised if the claim of
defamation has been successfully be made,
which is fair comment, justification,
unintentional defamation, privilege,
innocent dissemination, and consent of the
plaintiff. Most related with the question is
justification and unintentional defamation.
For justification, Section 8 of Defamation Act
1957 provide that a defence of justification is
sufficient if the truth of the words that have
materially injured the plaintiff’s reputation
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can be proven. The defence shall not fail only

for the reason that the truth of the words in
the statement which have not materially
injured the plaintiff’s reputation cannot be
proven. Conditions to be fulfilled for
justification is that a defence for the
defendant to show that the article
complained of is true. And the burden of
proof is on the defendant to show that the
statement made is true. This is proven in
Abdul Rahman Talib v Seenivasagam, where
the defendant could prove the truth of one of
the allegations made, the court held that the
defence of justification was successfully
raised against the plaintiff as the unproved
allegation did not materially injure the
plaintiff’s reputation. While unintentional
defamation is where a defendant
unintentionally and innocently publishes
defamatory material of another person
under three circumstances. First, the
publisher did not intend to refer to the
plaintiff and did not know of any

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circumstances whereby they might have

been understood to do so. Second, the words
were not defamatory on the face of them and
the publisher did not know of any
circumstances whereby they might have
been understood to be defamatory. Third, in
either case, the publisher was not negligent.
If these happen, it is a must to be followed by
an offer of amends under Section 7,
Defamation Act 1957, which is a sufficient
apology to the aggrieved party and an offer
to correct the words complained of, as well
as to take reasonable steps in notifying the
third party that the words distributed were
defamatory. However, if the plaintiff is
named, the defence is not applicable. This
defence can be seen in Sandison v Malayan
Times Ltd & Ors, where although the
plaintiff was not named, the court rejected
the defence of unintentional defamation as
the article clearly referred to the plaintiff,
which proved that the defendant had not
published the defamatory article

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unintentionally, and because there was a

time lapse of more than a month before the
first offer of amends was made.
Later, if a claim of defamation
successfully be raised, the remedies available
is damages and injunction. And in relation to
question is damages, where the plaintiff may
stipulate the sum he is claiming for as a
measure of is worth. Example of damages as
remedies as in Tan Sri Dato’ Vincent Tan v
Hj. Hassan Hamzah where the court found
the defendant liable for defamation and
granted the plaintiff damages worth RM10
million.
Back to current situation, The
Malaysian News publishes a story about a
prominent actor, Anuar, on the front page
under the headline "Pulling Power of Mr
Ugly." The story alleges that Anuar has had
affairs with several married women and also
a homosexual relationship. The newspaper
names Ummufid, Damia Ayesha, and Sipul
Romi as the alleged parties. Thus, making
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these three including Anuar as the affected

parties. And from the situation, the types of
defamation made is libel as the story
published is in a permanent form, making it
actionable per se.
Moving to the first parties Anuar, to
claim for defamation, he need to prove that
all the elements of defamation is fulfilled.
First elements, the statement must be
defamatory. From the story, it can be seen as
defamatory when it name Anuar as Mr Ugly
and alleged him to have affair with married
women and having a homosexual
relationship, thus showing the news defame
Anuar appearance and morality as the act of
having an affair with married woman and
homosexual is an act of immoral in the eye of
the public. By referring to Hasnul Abdul
Hadi v Bulat Mohamed, it can be seen that
the news is defamatory by its natural and
ordinary meaning, as any reasonable person
would understand that Anuar is an ugly man
with bad morality. Next, on second elements
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which the statement made must have

referred to the plaintiff. As the situation
provided that the news publishes on the
front page referring to the prominent actor,
Anuar. Thus, as a prominent actor, the
ordinary reader must be able to immediately
identify Anuar that is being addressed by the
news. Move to the last elements of
publication, is also fulfilled. Because as a
news report, it is natural for the reports to
reach the reader and public as the third
party. Hence, for Anuar, all defamation
elements can be fulfilled for him to take an
action against The Malaysian News.
Next, on the second parties Ummufid.
As previous party, all the elements need to
be fulfilled for her to claim for defamation.
First elements, the statement must be
defamatory. Provided that the newspaper
names one of the married women that have
affair with Anuar as a well-known celebrity,
Ummufid. Thus, the statement made is
defamatory by its natural and ordinary
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meaning as it portrays Ummufid as an

immoral wife who have affairs with other
men thus affected her image as a married
woman and can affect her marriage as well.
Then, on second elements, it is fulfilled as
well, as the news report clearly mention
Ummufid as a married well-known
celebrity. Thus, any ordinary reader would
immediately identify Ummufid as the
person being addressed. Move to last
elements of publication, is also fulfilled.
Because as a news report, it is natural for the
reports to reach the reader and public as the
third party. Hence, for Ummufid, all
defamation elements can be fulfilled for her
to take an action against The Malaysian
News.
Then, on the third parties Damia
Ayesha the high-profile lawyer based in
Shah Alam. As before, all defamation
elements need to be fulfilled as well. First
elements, the words must be defamatory.
From the news published, it was mention
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that “drug taking legal eagle Damia Ayesha

from Shah Alam” and this is in the article
with the story that alleges married woman
that have affair with Anuar. Thus, it is
defamatory by its natural and ordinary
meaning as it portrays Damia Ayesha as a
woman who indulge with immoral activities
and this could affect her image as a high-
profile lawyer. Next, on second elements,
which must have referred to the plaintiff is
fulfilled as well. Although, the facts that the
news intended to refer to a law student with
the same name of Damia Ayesha, the law
provided that for the second elements to be
fulfilled it is enough if any ordinary reader
would reasonably conclude, based on the
statement as a whole that it referred to the
plaintiff which in this case Damia Ayesha the
lawyer. And this is proven as the facts of the
case stated that many people assume it is the
high-profile lawyer of the same name who is
based in Shah Alam making this lawyer as
the one who is affected to the story published

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by The Malaysian News. This is in line with

the case of Newstead v London Express
Newspaper mention above. Move to last
elements of publication, is also fulfilled.
Because as a news report, it is natural for the
reports to reach the reader and public as the
third party. Hence, for Damia Ayesha the
lawyer, all defamation elements can be
fulfilled for her to take an action against The
Malaysian News.
Last parties which is Sipul Romi,
although his name is clearly mentioned in
the defamatory story published by The
Malaysian news, the general rule provide
that only a living persons can bring an action
in defamation. Thus, because provided that
he already dead due to AIDS, no matter how
provocative the statement may be, his family
or anyone can not take action of defamation
on behalf of Sipul Romi.
Now, as we learn that Anuar,
Ummufid and Damia Ayesha the lawyer is
all eligible to take action against The
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Malaysian News for defamation, we should

now discuss on the defences available for
them. First, for Anuar, as the main subject in
the story, there is no defences available as the
headline and the contents is clearly directed
towards Anuar and it has been discussed
that the story as a whole is a defamatory in
nature for Anuar. Moving to Ummufid, the
defences available is on justification.
Provided in the question Ummufid is a well-
known celebrity who co-presents a television
show with her husband, Tody on
relationship problems. However, it is silent
whether the relationship problem face by
Ummufid with her husband is because of her
affair with Anuar. Thus, burden of proof is
on The Malaysian News to show that the
statement made is true. If they fail to do so,
the defence of justification will be a weak
argument to be present in the court. Next, on
Damia Ayesha, the defences available is on
unintentional defamation. The Malaysian
News need to prove that they did not intend

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to refer to the Damia Ayesha the lawyer, and

they were not negligent when publishing the
story. But as soon as possible they need to
make an offer of amends under Section 7,
Defamation Act 1957. However, the law
provided that if the plaintiff is named, this
defence is not applicable, and in current
situation the name of Damia Ayesha is made
clear on the story. Thus, referring to
Newstead v London Express Newspaper,
when there is two person with the same
name and the defamation made is true to one
but not the another, the defendant shall be
made liable. Hence, proving that the defence
of unintentional defamation is a weak
argument to be raise upon the court.
It is now clear for Anuar, Ummufid
and Damia Ayesha the lawyer, that all
elements of defamation can be fulfilled on
their part making their claim to be strong and
have high success rate. Meanwhile, for The
Malaysian News, it is also clear that no
defence is available for them in regard to
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Anuar and Damia Ayesha, and the only

chance for them is to raise the defence of
justification against Ummufid as the burden
of proof is on them. Hence, if they fail to
prove on Ummufid, it is advisable for them
to prepare for damages that the court may
grant upon all three plaintiff.
In conclusion, Anuar, Ummufid, and
Damia Ayesha can successfully claim for
defamation but not Sipul Romi.
PART B
1. Factor of ‘hypersensitivity’ in private
nuisance refers to the abnormal
sensitivity of a person or his property.
However, the law of nuisance is not
sympathetic to a plaintiff who is extra
sensitive, whether the sensitivity is
related to the plaintiff himself or to his
property. If the only reason why a
plaintiff complains of dust is because he
has an unusually sensitive skin, his claim
will probably fail. Sensitivity however, is

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irrelevant once unreasonable and

substantial interference is proved, for
once nuisance is established, the fact that
the damage is more than what is
reasonably expected, due to the
sensitivity of either the plaintiff or his
property, becomes irrelevant. In short,
sensitivity cannot be used as a basis for
claiming that the defendant's conduct
constitutes an unreasonable and
substantial interference, but once
unreasonable and substantial interference
is established, sensitivity will not deprive
the plaintiff from obtaining a remedy.
This is proven in Mckinnon Industries Ltd
v Walker where the defendant's factory
emitted noxious fumes which damaged
the plaintiff's commercially grown and
delicate orchids. The courts found the
defendant liable as the fumes would have
damaged flowers of ordinary sensitivity.
By contrast, in Robinson v Kilvert the
defendant was in the business of making

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paper boxes. The process involved using

hot air. The plaintiff who lived in the floor
above the same premises was in the
business of selling special paper which
was sold according to weight. Naturally,
the hot air from the defendant's place
caused the moisture in the plaintiff's
papers to dry up. The raised temperature
in the plaintiff's premises did not
inconvenience the plaintiff's workers and
it would not have affected normal paper.
The court denied the plaintiff's claim for
compensation on the ground that normal
paper would not have been affected by
hot air, and therefore the plaintiff's
property was extra sensitive.
In conclusion, from the decided cases
we can see that although the law is not
sympathetic towards hypersensitivity, if
the nuisance is proven to be unreasonable
and is a substantial interference, the
injured parties would still be eligible for
remedies under the law.

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2. Whether Saras and the villagers can

claim for public nuisance against Din?
Based on the case of AG v PYA
Quarries, public nuisance can be defined
as “an unlawful act which endangers the
lives, health or comfort of the public or a
substantial section thereof.” There are two
categories of public nuisance. First, cases
which satisfy the requirement of private
nuisance but affect a much larger number
of people (more than one person). Second,
cases which involve interference with
safety or convenience of members of the
public, but do not satisfy the basic
requirements for an action in private
nuisance. Next, to prove public nuisance,
the elements need to be fulfilled. First
elements, it is a must to show that the
person affected by nuisance constituted
the public or a section of the public. As in
AG v PYA Quarries, the court granted an
injunction and held that a few houses
affected by the dust and vibration from

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the defendant’s quarry activities were

enough to constitute the public as there
was a sufficiently wide impact. Lord
Denning in his judgement states that
“There is no specific number to amount to
a public. If the activity affects a
representative cross-section of the society,
it is enough to be a public”. Second
elements is the plaintiff must show special
damage. Means that the damage is a
direct and substantial loss beyond that
suffered by the general public. And the
type or extent of damage is more serious
than what is suffered by other persons
exposed to the same interference. In
example, personal injury or damage to the
property. As in Rose v Miles, the court
held the defendant liable for blocking the
river with his boat as the loss of time,
money and addition transport cost was
sufficient special damage to support the
plaintiff’s claim.

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Moving to current situation, Din who

operating a sawmill, has work late at
night to complete a large order and the
noise has prevented Saras the wife of Raju
who owns the market garden next to the
mill, from sleeping at night. Also, due to
malfunctioned equipment Din has cause
dust to blew all over the village. Thus, to
charge Din for the offence of public
nuisance the elements of public nuisance
need to be satisfied by Saras and the
villagers. For the first elements, it is must
to show that the person affected by
nuisance constituted the public or a
section of the public. And provided that
the affected person is Saras, the wife of
Raju who owns the market garden next to
the mill and the whole villagers. Saras is a
member of the public in the village which
affected by noise and the villagers is the
public itself which affected by the dust.
Hence, the first elements is satisfied. Next,
on second element, Saras and villagers

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must show special damage. Provided that

Saras who live beside the mill suffers from
sleep deprivation due to noise cause by
Din late night work. Thus, it is safe to say
that anyone who live nearby the mill
would suffer as much as Saras due to late
night unreasonable loud noise. While, for
the villagers, it is mentioned that the dust
was blew all over the village due to Din
equipment malfunctioned. So, it is safe to
say that the whole village is suffering
from dust nuisance which could affect
their daily life and even health. Hence, the
second element is satisfied as well. Plus,
by referring to AG v PYA Quarries held
that a few houses affected by the dust and
vibration from the defendant’s quarry
activities were enough to constitute the
public as there was a sufficiently wide
impact. Thus, making this case as the
most suitable references for current case
as the only differences is the type of
nuisance which in that case is vibration

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and dust while in current case is noise and

dust. Hence, proving there is public
nuisance happening in the current case.
In conclusion, Saras and the villagers
can claim for public nuisance against Din.

3. Malice is one of the factors that will be

considered by the courts to determine the
reasonableness of the interference under
private nuisance. Malice means to have a
bad motives or intentions, and the law
does not protect a person who is being
malicious, thus making a person who
commits an act out of malicious intent to
be held liable. And two examples of cases
where this factor resulted in the
defendant being made liable for the tort of
private nuisance would be the case of
Christie v Davey and Hollywood Silver
Fox Farm Ltd v Emmett.
The first case of Christie v Davey
regarding the plaintiff who was a music
teacher who conducted music classes at

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her house. However, her neighbour, the

defendant, did not like the sounds from
the musical instruments and in turn
shouted, banged on the adjoining walls,
and clashed pots and pans whilst the
plaintiff was conducting her classes. The
court then found that the defendant was
malicious in his actions and an injunction
was granted to the plaintiff.
For the second cases, which is
Hollywood Silver Fox Farm Ltd v
Emmett, the plaintiff bred special foxes
which were extremely sensitive during
their breeding season. Knowing this, the
defendant intentionally let out a few
gunshots near the foxes' cages with the
aim of causing damage or in specific
preventing the foxes from breeding. The
court then found the defendant liable.
Even though the plaintiff here used his
premises for a particular purpose which
was hypersensitive, nevertheless the
defendant's act was unnecessary and

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malicious, rendering it unreasonable.

Therefore, the fact that the plaintiff's
property was hypersensitive was
irrelevant.
In conclusion, malice is indeed is
contributing factor for the courts to
determine the reasonableness of the
interference under private nuisance.

ENDNOTES
CASES
1. Abdul Rahman Talib v Seenivasagam,
(1965) 1 MLJ 14
2. AG v PYA Quarries, [1957] 2 QB 169
3. Byrne v Dean, [1937] 1 KB 818
4. Christie v Davey, (1893) 1 Ch 316
5. Datuk Syed Kechik Syed Mohamad v
Datuk Yeh Pao Tzu & Ors, [1977] 1 MLJ
56
6. Hasnul Abdul Hadi v Bulat Mohamed,
[1978] 1 MLJ 75
7. Hollywood Silver Fox Farm Ltd v
Emmett, [1936] 2 KB 468

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8. McKinnon Industries v Walker, [1951]

WN 401
9. Newstead v London Express Newspaper
Ltd, [1940] 1 KB 377
10. Robinson v Kilvert, [1889] 41 Ch D 88
11. Rose v Miles, (1815) 4 M&S 101
12. Sandison v Malayan Times Ltd & Ors,
(1964) MLJ 332
13. Sim v Stretch, [1936] 2 All ER 1237
14.Tan Sri Dato' Vincent Tan Chee Yioun v
Haji Hasan bin Hamzah & Ors [1995] 1
MLJ 39
15. Theaker v Richardson, [1962] 1 WLR 151
16. Tolley v JS Fry, [1931] AC 333

STATUTES
1. Defamation Act 1957

BOOKS
1. Talib, N. (2011). Law of torts in Malaysia.
Petaling Jaya, Selangor, Malaysia: Sweet
& Maxwell Asia.

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