EUT440 LAW 3 (Negligence)
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EUT440 LAW 3 (Negligence)

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    EUT440 LAW 3 (Negligence) EUT440 LAW 3 (Negligence) Presentation Transcript

    • LAW OF TORTNEGLIGENCE
    • 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
    • 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)
    • 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
    •  THE CIRCUMTANCES MUSTBE JUST AND REASONABLE.SATHU V HAWTHORNDEN RUBBERSESTATE CO LTDLOK KWAN MOI & ORS V RAMLI B. JAMIL &ORS & GOVERNMENT OF MALAYSIA
    • 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
    • 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
    • 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
    • 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?
    • 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
    • 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)
    • 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
    • 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
    • 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
    • PARTIES IN PROJECTCLIENTFINANCIER CONTRACTORAUTHORITY PROFESSIONALThirdparty
    • NEGLIGENCE INCONSTRUCTION POTENTIAL WRONGDOER!CLIENT?…..CONSULTANT/DESIGNERCONTRACTOR/EMPLOYERWORKERSAUTHORITIES????…. TO WHOM?PARTIES IN THE CONTRACTPARTIES NOT IN THECONTRACT
    • CLIENTS CONTRACTOR-FAIL TO ENSURECONTRACTOR WORKPROPERLYDUTY ASSIGNEDTHROUGH SO DESIGNERNEGLIGENCE BYDESIGNER SHAREDBY CLIENT SUB-CONTRACTOR?… WORKERS – NOTRESPONSIBLE
    • 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
    • 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
    • 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,SOSCO, OSHA EMPLOYERS NEGLIGENCEEMPLOYING WRONG WORKERSFAIL TO ENSURE MACHINES ARE INGOOD CONDITION & SAFEFAIL TO PROVIDE GOOD WORKINGENVIRONMENT
    • OCCUPIER’S LIABILITY OCCUPER –TortINVITEE – MOHDSAINUDIN○ CHONG FAH LIN V UEM○ DOBB & CO V HEELALICENSEE – LIABLETRESPASSER – NOTLIABLE
    • 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.
    • 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○ WILL NOT HAPPEN IF ADEQUATE PRECAUTION TAKEN○ CUAE OF ACCIDENT UNKNOWNWHAT IS THE EFFECT?.○ THE BURDEN OF PROOF SHIFT TO DEFENDANT
    • 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 EACH COLUMNSBEING SUPPORTED INAT LEAST 2TO 3 RAILPILES.
    • 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)
    • DEVELOPERCONSULTANT ARCHITECTENGINEERNEIGHBOURING PROPERTY OWNERSLOCAL AUTHORITYHIGHLAND TOWER
    • 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:
    • 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
    • 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.
    • 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.