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LAW OF TORTNEGLIGENCE
WHAT IS NEGLIGENCE? Careless conduct Negligence as a tort More than heedless or carelessconduct – complex concept of du...
NEGLIGENCE WHAT IS IT? – the breach of a legal duty to takecare which results in damage, undesired by thedefendant, to th...
DUTY OF CARE EXIST IF…. THE DAMAGE IS FORESEEABLE - FORESEEABLEVS UNFORESEEABLE IF FORESEEABLE – THERE IS DUTY OF CARE ~...
 THE CIRCUMTANCES MUSTBE JUST AND REASONABLE.SATHU V HAWTHORNDEN RUBBERSESTATE CO LTDLOK KWAN MOI & ORS V RAMLI B. JAMI...
WHAT ABOUT OMISSION?... LIMITATIONS OF DUTY CAREOMISSION○ YES – CONTRARY TO EXISTING DUTY TOACT- SPECIAL RELATIONSHIP BE...
EXCEPTIONS STATUTORY POWER- IMMUINITYPSYCHIATRC ILLNESS – MENTAL, NEUROSISAND PERSONALITY CHANGES.REASONABLY FORESEEA T...
TEST OF BREACH OF DUTY OFCARE REASONABLE MAN TESTClasses of defendantPractice and knowledge at the time of allegedbreac...
TEST OF BREACH OF DUTY OF CARE THE REASONABLE MAN TEST THE USUAL HICCUPS IN LIFE (..the standard or foresight of thereas...
DAMAGE CAUSATION IN FACTBUT FOR TESTMULTIPLE CAUSES OR CONCURRENTBREACHES A DUTY OF CARECONSECUTIVE BREACHES CAUSATIO...
DAMAGE…. INTERVENING ACTS THROUGH A NATURAL EVENT THATINDEPENDENT OF HUMAN CONDUCTTHROUGH THIRD PARTYINTERVENING ACT O...
PROFFESIONAL NEGLIGENCE Ordinary case does not involve any special skill..Negligence means failure to do some act. The s...
NEGLIGENT MISSTATEMENT SPECIAL RELATIONSHIPRELYING ON OTHER ADVISE p.117DATO’ SERI AU BA CHI V MALAYAN UNITEDFINANCE BH...
NEGLIGENT ACT Pure economic loss is favour in certain casesSpartan steel p.125Murphy case p.130Kerajaan Malaysia vs Ch...
PARTIES IN PROJECTCLIENTFINANCIER CONTRACTORAUTHORITY PROFESSIONALThirdparty
NEGLIGENCE INCONSTRUCTION POTENTIAL WRONGDOER!CLIENT?…..CONSULTANT/DESIGNERCONTRACTOR/EMPLOYERWORKERSAUTHORITIES????...
CLIENTS CONTRACTOR-FAIL TO ENSURECONTRACTOR WORKPROPERLYDUTY ASSIGNEDTHROUGH SO DESIGNERNEGLIGENCE BYDESIGNER SHAREDB...
CONSULTANT- WHO? NEGLIGENCEADVISE(MISSTATEMENT)○ CHIN SIN MOTOR SDN BHD (P 123)NEGLIGENT ACT○ D & F Estates Ltd.. (P129...
NEGLIGENCE ENGINEER - ARCHITECTPRE-DESIGN○ SI, SURVEYDESIGN STAGE○ DESIGN, CALCULATION AND UNTESTED MATERIALIN SERVICE...
CONTRACTORS EMPLOYERTHE WAY WORKS BEENCARRIED OUTWORKERS OCCUPIERINVITEELICENSEETRESPASSER
NEGLIGENCE TO WORKERS NEGLIGENCE BY WORKERS(VICARIOUS LIABILITY NEGLIGENCE DUE TO BREACHOF STATUTORY DUTY – insurance,SO...
OCCUPIER’S LIABILITY OCCUPER –TortINVITEE – MOHDSAINUDIN○ CHONG FAH LIN V UEM○ DOBB & CO V HEELALICENSEE – LIABLETRESP...
CONT’DIt does not impose any responsibilitiestowards trespassersalthough a special case would probably bemade if a child t...
WORKERS NO – IF IT ISORIGINATED FROMEMPLOYER’SFAULT YES – SHARESOME BURDENS IFHE NEGLIGENTLYPERFORM AN ACT
PROOF OF NEGLIGENCE RES IPSA LOQUITORHOW AND WHY MAXIM APPLY?○ THINGS THAT CAUSES DAMAGE UNDER THE CONTROL OFDEFENDANT○ ...
DEFENCES VOLENTI NON-FIT INJURIA CONTRIBUTORY NEGLIGENCE INEVITABLE ACCIDENT MECHANICAL FAULTS SELF DEFENCE
HIGHLAND TOWER
CASE HISTORYHIGHLAND TOWER BLOCK 1 COLLAPSE OF A14-STOREY CONDOMINIUMBLOCK ON 11DECEMBER,1993 KILLING 48 PEOPLE
STRUCTURE OF BUILDINGCONSTRUCT BYUSING REINFORCEDCONCRETE COLUMNS,BEAMS AND SLABS.BUILDING SUPPORTEDBY RAILPILESWITH EAC...
FINDINGS Collapse not due to natural disaster or act of God Act of sabotage was also ruled out by the police(no evidence...
DEVELOPERCONSULTANT ARCHITECTENGINEERNEIGHBOURING PROPERTY OWNERSLOCAL AUTHORITYHIGHLAND TOWER
PARTIES CONTRIBUTORY TO THECOLLAPSEA) Developer/owner of the condominiums Fail to engage a qualified submitting person P...
B) Consultant ArchitectFailed in his duty as a consultant & had alsorefuse to comply with requirement impossedby the auth...
D) Neighbouring Property Owners Development carried out on their properties hadresulted in changes to the direction of th...
Assignment 1 There are liabilities in construction practise that can bedemonstrated clearly in some cases. The liabilitie...
EUT440 LAW 3 (Negligence)
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EUT440 LAW 3 (Negligence)

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Transcript of "EUT440 LAW 3 (Negligence)"

  1. 1. LAW OF TORTNEGLIGENCE
  2. 2. WHAT IS NEGLIGENCE? Careless conduct Negligence as a tort More than heedless or carelessconduct – complex concept of duty,breach and damage When it is occur – the day theplaintiff suffer loss – damageexistence
  3. 3. NEGLIGENCE WHAT IS IT? – the breach of a legal duty to takecare which results in damage, undesired by thedefendant, to the plaintiff (defendant? Plaintiff?) ELEMENTSTHERE IS DUTY OF CARETHE DUTY OF CARE HAS BEEN BREACHEDTHE BREACH RESULTS IN DAMAGE TO PLAINTIFF(economy, physical, financial, property)
  4. 4. DUTY OF CARE EXIST IF…. THE DAMAGE IS FORESEEABLE - FORESEEABLEVS UNFORESEEABLE IF FORESEEABLE – THERE IS DUTY OF CARE ~ BOURHILL V YOUNG ZAZLIN ZAHIRA HJ KAMARUZAMAN THERE IS CLOSE AND DIRECT REALTIONSHIPOF PROXIMITY BETWEEN THE PLAINTIFF ANDTHE DEFENDANT –NEIGHBOUR CONCEPT – CLOSE/PROXIMITY○ DONOGHUE VS STEVENSON○ ANNS V MERTON LONDON BOROUGH – p91○ PEABODY DONATION FUND V SIR LINDSAY PARKINSON & CO LTD – p93○ BOURHILL V YOUNG
  5. 5.  THE CIRCUMTANCES MUSTBE JUST AND REASONABLE.SATHU V HAWTHORNDEN RUBBERSESTATE CO LTDLOK KWAN MOI & ORS V RAMLI B. JAMIL &ORS & GOVERNMENT OF MALAYSIA
  6. 6. WHAT ABOUT OMISSION?... LIMITATIONS OF DUTY CAREOMISSION○ YES – CONTRARY TO EXISTING DUTY TOACT- SPECIAL RELATIONSHIP BETWEEN 2 PARTIES- DEFENDANT HAS CONTROL OVER 3RDPARTY- DEFENDANT HAS CONTROL OVER LAND ETC- FAILED TO PERFORM AN ACT AS PROMISED○ NO – SMITH VS LITTLEWOODS ORGASNIATION LTD
  7. 7. EXCEPTIONS STATUTORY POWER- IMMUINITYPSYCHIATRC ILLNESS – MENTAL, NEUROSISAND PERSONALITY CHANGES.REASONABLY FORESEEA TEST- 3RDPARTY IN THE SAME POSITIONPROXIMITY BETWEEN PLAINTIFF AND THEACCIDENT – TIME AND SPACETHE MEAN BY WHICH PLAINTIFF COME TOKNOWMEDICALLY RECOGNISED HOW TO DETERMINE IN MONETARY TERM
  8. 8. TEST OF BREACH OF DUTY OFCARE REASONABLE MAN TESTClasses of defendantPractice and knowledge at the time of allegedbreach RISK TEST○ The magnitude of the riskProbability of the injury occurringSeriousness of the injury○ Practicability or cost of precaution○ The importance of object to be attained○ General and approved practise
  9. 9. TEST OF BREACH OF DUTY OF CARE THE REASONABLE MAN TEST THE USUAL HICCUPS IN LIFE (..the standard or foresight of thereasonable man.. Eliminates the personal equation and isindependent of the idiosyncrasies of the particular person whoseconduct is in question) Level of intelligence and knowledge (the standard of care applicableis that the standard is that of reasonable man in that position) The defendant who has or profess expertise in a particular field (willbe judged as against other persons who possess those same skills) The defendant with an incapacity or infirmity The child defendant Driver of a vehicle (not under a duty to be perfect to anticipate thenegligence of others PROFESSIONAL?
  10. 10. DAMAGE CAUSATION IN FACTBUT FOR TESTMULTIPLE CAUSES OR CONCURRENTBREACHES A DUTY OF CARECONSECUTIVE BREACHES CAUSATION IN LAWDIRECT CONSEQUENCESTHE REASONABLE FORESIGHT TEST○ TYPE OF DAMAGE MUST BE FORESEEABLE○ THE EXTENT OF DAMAGE IS IRRELEVANT○ THE METHOD BY WHICH THE DAMAGE OCCURS ISIRRELEVANT
  11. 11. DAMAGE…. INTERVENING ACTS THROUGH A NATURAL EVENT THATINDEPENDENT OF HUMAN CONDUCTTHROUGH THIRD PARTYINTERVENING ACT OF THE PLAINTIFF PURE ECONOMIC LOSS?May be incurred either as a consequence of anegligent misstatement or megligent act(different principles applied)
  12. 12. PROFFESIONAL NEGLIGENCE Ordinary case does not involve any special skill..Negligence means failure to do some act. The standard of care required of professionals isthat of a reasonable professional Anybody act as if he/she is a professional will beliable as is as he/she is professional NEGLIGENCE may in the form ofNegligent misstatementNegligent act
  13. 13. NEGLIGENT MISSTATEMENT SPECIAL RELATIONSHIPRELYING ON OTHER ADVISE p.117DATO’ SERI AU BA CHI V MALAYAN UNITEDFINANCE BHD & ANOR p122 Plaintiff must showthat he relied on the proper performance of thatservice by the defendant;he is identifiable or belongs to a class of personswhom the defendant knows to be relying on theadvise or information, thus establishing proximityand foreseeability
  14. 14. NEGLIGENT ACT Pure economic loss is favour in certain casesSpartan steel p.125Murphy case p.130Kerajaan Malaysia vs Cheah Foong Chiew p 132(Pure economic loss is irrecoverable – based onMurphy)Teh Khem On & Or v Yeoh & Wu Development SdnBhd & Ors (pure economic loss is irrecoverable- nodirect contractual relationship)Pure economic loss recoverable- Dr Abdul Hamid &Anor v Jurusan Malaysia Consultants & Ors andSteven Phoa Cheng Loon & 72 Ors v Highland TowerProperties Sdn Bhd & 9 ors
  15. 15. PARTIES IN PROJECTCLIENTFINANCIER CONTRACTORAUTHORITY PROFESSIONALThirdparty
  16. 16. NEGLIGENCE INCONSTRUCTION POTENTIAL WRONGDOER!CLIENT?…..CONSULTANT/DESIGNERCONTRACTOR/EMPLOYERWORKERSAUTHORITIES????…. TO WHOM?PARTIES IN THE CONTRACTPARTIES NOT IN THECONTRACT
  17. 17. CLIENTS CONTRACTOR-FAIL TO ENSURECONTRACTOR WORKPROPERLYDUTY ASSIGNEDTHROUGH SO DESIGNERNEGLIGENCE BYDESIGNER SHAREDBY CLIENT SUB-CONTRACTOR?… WORKERS – NOTRESPONSIBLE
  18. 18. CONSULTANT- WHO? NEGLIGENCEADVISE(MISSTATEMENT)○ CHIN SIN MOTOR SDN BHD (P 123)NEGLIGENT ACT○ D & F Estates Ltd.. (P129)○ Murphy vs Brentwood District Council(p 130)○ Kerajaan M’sia v Cheah Foong Chiew &Ors (p132)○ Teh Khem On & Anor v Yeoh& WuDevelopment Sdn Bhd (p 133)○ Dr Abdul Hamid Abdul Rashid –p134
  19. 19. NEGLIGENCE ENGINEER - ARCHITECTPRE-DESIGN○ SI, SURVEYDESIGN STAGE○ DESIGN, CALCULATION AND UNTESTED MATERIALIN SERVICE○ ADVISE, CONSENTS FROM AUTHORITIESSUPERVISION○ INADEQUATE ATTENDANCE, FAIL TO DETECT DEFECTWORKS
  20. 20. CONTRACTORS EMPLOYERTHE WAY WORKS BEENCARRIED OUTWORKERS OCCUPIERINVITEELICENSEETRESPASSER
  21. 21. NEGLIGENCE TO WORKERS NEGLIGENCE BY WORKERS(VICARIOUS LIABILITY NEGLIGENCE DUE TO BREACHOF STATUTORY DUTY – insurance,SOSCO, OSHA EMPLOYERS NEGLIGENCEEMPLOYING WRONG WORKERSFAIL TO ENSURE MACHINES ARE INGOOD CONDITION & SAFEFAIL TO PROVIDE GOOD WORKINGENVIRONMENT
  22. 22. OCCUPIER’S LIABILITY OCCUPER –TortINVITEE – MOHDSAINUDIN○ CHONG FAH LIN V UEM○ DOBB & CO V HEELALICENSEE – LIABLETRESPASSER – NOTLIABLE
  23. 23. CONT’DIt does not impose any responsibilitiestowards trespassersalthough a special case would probably bemade if a child trespasser was injured dueto the contractor’s negligence, but thiscannot be turned the other way round,permitting the builder to leave parts of hissite in a deliberately dangerous condition todeter or trap trespassers.
  24. 24. WORKERS NO – IF IT ISORIGINATED FROMEMPLOYER’SFAULT YES – SHARESOME BURDENS IFHE NEGLIGENTLYPERFORM AN ACT
  25. 25. PROOF OF NEGLIGENCE RES IPSA LOQUITORHOW AND WHY MAXIM APPLY?○ THINGS THAT CAUSES DAMAGE UNDER THE CONTROL OFDEFENDANT○ WILL NOT HAPPEN IF ADEQUATE PRECAUTION TAKEN○ CUAE OF ACCIDENT UNKNOWNWHAT IS THE EFFECT?.○ THE BURDEN OF PROOF SHIFT TO DEFENDANT
  26. 26. DEFENCES VOLENTI NON-FIT INJURIA CONTRIBUTORY NEGLIGENCE INEVITABLE ACCIDENT MECHANICAL FAULTS SELF DEFENCE
  27. 27. HIGHLAND TOWER
  28. 28. CASE HISTORYHIGHLAND TOWER BLOCK 1 COLLAPSE OF A14-STOREY CONDOMINIUMBLOCK ON 11DECEMBER,1993 KILLING 48 PEOPLE
  29. 29. STRUCTURE OF BUILDINGCONSTRUCT BYUSING REINFORCEDCONCRETE COLUMNS,BEAMS AND SLABS.BUILDING SUPPORTEDBY RAILPILESWITH EACH COLUMNSBEING SUPPORTED INAT LEAST 2TO 3 RAILPILES.
  30. 30. FINDINGS Collapse not due to natural disaster or act of God Act of sabotage was also ruled out by the police(no evidence of any explosive found) No significant inadequacy in the design of thesuper structure Slope and rubble walls behind, and in front ofcollapsed block were not properly designed andsupervised Initial landslide of slope imposed additionalpressure in soil resulted in the failure of railpiles foundation. (The design were neverintended to carry any lateral load)
  31. 31. DEVELOPERCONSULTANT ARCHITECTENGINEERNEIGHBOURING PROPERTY OWNERSLOCAL AUTHORITYHIGHLAND TOWER
  32. 32. PARTIES CONTRIBUTORY TO THECOLLAPSEA) Developer/owner of the condominiums Fail to engage a qualified submitting person Proceeding with construction work withoutgetting the required approval and without propersupervision Fail to implement and fully comply with thedrainage plans approved by Department ofDrainage and Irrigation (JPS) Fail to carry out proper maintenance of surfacedrainage behind condominiumsDEFENDANTS WERE:
  33. 33. B) Consultant ArchitectFailed in his duty as a consultant & had alsorefuse to comply with requirement impossedby the authorities on drainage of the area.C) EngineerSigning the road and drainage plans for theproject though he did not design norsupervise the construction
  34. 34. D) Neighbouring Property Owners Development carried out on their properties hadresulted in changes to the direction of thenatural water path resulting in the concentrationof run-off water into the slope behind thecollapse blockE) Local Authority Weakness in complying with enforcement of thebuilding by-laws due to lack of staff leading toapproval of plans & CF.
  35. 35. Assignment 1 There are liabilities in construction practise that can bedemonstrated clearly in some cases. The liabilities include: negligence as in Dr Abdul Hamid Abdul Rashid & Ors vsJurusan Malaysia Consultants and Mohd Sainuddin b. Ahmadvs Consolidated Hotels Ltd & Anor, trepasss as in Kwong Hing Realty Sdn Bhd vs MalaysiaBuilding Society Bhd (America International Assurance Co Ltd nuisance and strict liability as in Wu Siew Ying vs GunungTunggal Quarry & Construction Sdn Bhd & Ors and Ryland vsFletcher Critically discuss the liabilities mentioned and how theconflicts in relation to the liabilities are addressed andresolved by the courts.
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