The law of torts

1. 1
The Law of Torts

2. PEOs
2
PEO1
Construction engineering specialist who have advanced knowledge
with practical skills capable of using advanced numeracy and
technical skills in multidiscplinary engineering fields.
PEO2
Construction engineering specialist who integrate communication and
interpersonal skills using advanced digital technologies when
engaging with stakeholders.
PEO3
Construction engineering specialist who display personal skill with
entrepreneurial mindset in elevating the quality of life.
PEO4
Construction engineering specialist with leadership quality adhere to
ethics, values, attitudes and profesionalism towards sustainable
development.

3. PLOs
3
PLO1: Explain and analyse advanced knowledge in management and
multidisciplinary engineering areas.
PLO2: Assess numerical data related to engineering practises by
integrating critical thinking and computational skills.
PLO3: Perform practical skill s using appropriate digital tools and
techniques in solving relevant current engineering problems.
PLO4:Adapt effective communication and interpersonal skills in the
engineering community and with society at large.
PLO5: Accommodate effectively as an individual, member or leader in
diverse teams in the context of unpredictable situations.
PLO6: Integrate personal skills for lifelong learning through continuous
academic or professional development within a global context.
PLO7: Organise entrepreneurial activities or project in multidisciplinary
fields.
PLO8: Uphold professional ethics, responsibilities and norms of engineering
technology practices.

4. COs
4
 The student should be able to:
 To discuss the legal principle of the law of torts and
its relation to the construction industry (CO2)
 To discuss the legal principles of trespass,
nuisance and strict liability (CO2)
 To discuss other ingredients of tort law (CO2)

5. 5
COURSE OUTCOMES BLOOM
PROGRAM LEARNING OUTCOME
TEACHING
METHODO
LOGY
ASSESSME
NT
PL
O 1
PL
O 2
PL
O 3
PL
O 4
PL
O 5
PL
O 6
PL
O 7
PL
O 8
PL
O 9
PL
O
10
PL
O
11
Illustrate the
fundamental
knowledge of legal
framework involves in
the construction
industry
C1
√
●Lecture
●Discussio
n
●Test
●Final Test
Formulate the
appropriate solution
using problem solving
skills for issues on
contract, the right and
duties, discharge of
contract, remedies for
breach of contract and
arbitration
C5
√
●Lecture
●Discussio
n
●Project-
based
learning
●Assignment
●Group
project
Demonstrate effective
role as a professional
engineer in wider
construction community
C4
√
●Lecture
●Discussio
n
●Final Test

6. 6
Synopsis
Generally, this lecture will discuss the legal
principle of the law of torts and its relation to
the construction industry.
 The nature of the law of tort.
 Differences between the law of tort and
criminal law and the law of contract.
 General defences available in the law of tort.

7. 7
Introduction
“The law of tort is mostly to be found in the common
law…Tort can be defined as a civil wrong
independent of contract; or as breach of a legal
duty owed to person generally. The practical
consequences of the law of tort are concerned with
the adjustment of losses. Where the elements of
fault and damage exist, the law determines who
should bear the resulting financial loss.”
(Prof. John Uff, 2002, p.419)

8. 8
Functions and Purpose
Winfield (1931) has said that :
“Tortious liability arises from the breach of
a duty primarily fixed by law; such duty is
toward persons generally and its breach
is redressed by an action for
unliquidated damages.”

9. 9
Functions and Purpose
Michael Jones puts it more simply :
“The law of torts is primarily concerned
with providing a remedy to persons
who have been harmed by the conduct
of others.”

10. 10
Functions and Purpose
The standard model for liability in tort
would be that the defendant’s act (or
omission) has, through the
defendant’s fault, caused damage to
the claimant of a type which is
recognised as attracting liability.

11. 11
Aims
There are two aims of the law of torts that
also point towards the major remedies
available, damages and injunctions.
A1. Compensation – the main outcome of
a successful tort action is to
compensate the victim of the wrong
to the extent of the damage suffered.

12. 12
Aims
A2. Deterrence / prevention – the most
satisfactory way of dealing with any
wrong is to ensure that it does not
happen again or, even, better, to prevent
it occurring at all i.e. injunction.

13. 13
Liability
 Liability in tort is independent of any
contract.
 It is based on conduct not agreement /
contract.
 The duty not to commit a tort is
imposed by law as opposed to being
fixed by agreement / contract.

14. 14
Categories of Torts
A. Actionable per se
 Trespass and forcible injury.
 Normally entitlement to compensation
accurse as of right without the
requirement to prove damage
occurred.

15. 15
Categories of Torts
B. Non actionable per se
The plaintiff must establish that he has
suffered actual damages due to the
defendant's commission of the tort.

16. 16
Categories of Torts
To succeed in an action in tort, the plaintiff must
show that the defendant’s behaviour falls into
a specified situation covered by law of tort:
 Tort of trespass [The Law of Tort Part II]
 Tort of nuisance [The Law of Tort Part II]
 Tort of negligence [The Law of Tort Part III]

17. 17
Interests Protected by the
Law of Torts (Turner, 2003)
A. PERSONAL SECURITY
 Concerns the safety of the individual,
including.
 Trespass or possibly trespass to the person,
land or goods.
 Possibly defamation [damaging someone
reputation i.e. libel (publish in permanent
form e.g. newspaper, film etc. and slander (in
an oral form e.g. radio or TV)].

18. 18
Interests Protected by the
Law of Torts
B. REPUTATION – an extension of
personal security i.e. defamation,
malicious falsehood and deceit /
dishonesty.
C. PROPERTY – concern with the property
(real/land or personal but not
“economic loss”) rights of the individual
i.e. nuisance, trespass, Ryland v Fletcher
and negligence.

19. 19
Interests Protected by the
Law of Torts
A. PERSONAL SECURITY (cont’d)
 Negligence.
 Other developments in personal
injury i.e. claims for psychiatric
damages etc.
 Possibly concepts as privacy.

20. 20
Interests Protected by the
Law of Torts
D. ECONOMIC INTERESTS – tort is much more
concerned with REMEDYING PHYSICAL DAMAGE
and PERSONAL INJURY than economic loss.
Economic loss as a result from negligent
misstatement and actual damages can be
compensated, not for a pure economic loss such
as loss of profits and defective building, which is
more readily ASSOCIATED WITH CONTRACT
LAW THUS unrecoverable under the law of tort
[Teh Khew On & Anor v. Yeoh & Wu Development
S/B (1995).

21. 21
Teh Khew On & Anor v. Yeoh & Wu
Development Sdn. Bhd. & Ors. (1995)
Facts
The plaintiffs claimed against the first defendant (“the
builder”) in contract for defective works in the
construction of the house purchased by the
plaintiffs.
They also claimed against the second defendant (“the
architect”) and the third defendant (“the engineer”)
for damages in negligence.

22. Teh Khew On & Anor v. Yeoh & Wu
Development Sdn. Bhd. & Ors. (1995)
Held
The learned Judge found the builder liable
for breach of contract but dismissed the
claim against the architect and the
engineer with whom the plaintiffs had no
contractual relationship, the claim being
for pure economic loss.
22

23. 23
Parties to Claim in Torts
Outsiders i.e. persons, who have no contractual
involvement in the construction process.
Parties with NO CONTRATUAL LINK
 Client v Subcontractor(s)
 Subsequent owner of a building v Construction
Parties
 Subsequent tenants v Construction Parties.
 Visitors v Construction Parties / Building owner.
 Passer-by v Construction Parties.

24. 24
Parties to Claim in Torts
Parties WITH CONTRATUAL LINK
 Client v Contractor / Builder.
 Client v Consultants.
 Builder / Contractor v Consultants.

25. 25
Parties to Claim in Torts
The law of contract does not prevent
action in the law of tort.
BUT
The obligations in tort CANNOT BE
GREATER than those found in the
contract.

26. 26
Traditional General Contracting
M/C
NSC, NS
Employer
Employment contract
Main Contract /
Standard Form
Direct agreement i.e.
payment provisions
Communication
Communication
Subcontract
Architect/Consultant

27. 27
Tort and Criminal Law
The same act may be both a tort and
crime. For instance, the case of the
motorist who causes death by
dangerous driving.
He may find himself charged with
offences in the criminal courts and at
the same time sued for damages on
behalf of the deceased victim.

28. 28
Tort and Crime
However, each set of proceedings must
be dealt with separately, one to punish
the wrong doer (preservation of order
in society) and the other aiming to
compensate the victim.

29. 29
Actions for Claim in Torts
Suffer injury, damage or loss because of
dangerous building work
Claim for damage or loss
Which particular torts? i.e. Negligence.

30. 30
Tort and Crime
LIABILITY TORT CRIME
Nature Civil wrong against a
particular
individual.
Offence against the
state.
Action Instituted by the
injured party.
By Public
Prosecutor or the
police against the
individual.
Parties The defendant is
sued by the plaintiff.
The accused is
prosecuted by the
State.

31. 31
Tort and Crime
LIABILITY TORT CRIME
Purpose Provide method of
redress to those
who suffered loss.
Protect interests of
the public. Maintain
law and order.
Remedy / sanctions Compensation for
the loss sustained
e.g. damages etc.
To punish a person
e.g. fine, prison or
both.
Burden and standard
of proof
The plaintiff to
show the defendant
was liable.
The prosecutor to
show the defendant
was guilty.

32. 32
Tort and Crime
LIABILITY TORT CRIME
Procedure Civil action is
governed by civil
procedure.
Civil action is
governed by
criminal
procedure.
Grounds Before the court on
the grounds of
negligence,
trespass, nuisance
etc.
Before the court on
the grounds of
theft, murder,
assault etc.

33. 33
Tort and Contract
The same act can give rise to liability in
contract and in tort:
A person who buys a defective tool that
causes him to lose his fingers may sue
the supplier for breach of contract, or
the manufacturer for the tort of
negligence.

34. 34
Tort and Contract
Where there is an existing contract between
employer and contractor / builder or architect,
the contract does not prevent the plaintiff
obtaining judgment also in tort.
The plaintiff may sue for either breach of contract
or negligence, or both, but he cannot recover
damages twice over on the same issue [Res
judicata / issue estoppel] .

35. 35
Conquer v Boot (1928)
The defendant builder had contracted to build a
bungalow for the plaintiff, who brought an
action for breach of contract to complete in a
good and workmanlike manner.
After recovering damages in this action, the
plaintiff then brought another action in
identical terms but alleging failure to build
with proper materials.
Held: The second action was failed.

36. 36
General Principles
Damages or relief arising from any cause
of action must be claimed once and for
all. It follows that any claim for damages
whether in tort of for breach of contract,
must claim for all future anticipated
loss, which will be assessed at the date
of hearing (Batty v Metropolitan
Realisations [1978] QB 554).

37. 37
Batty v Metropolitan Realisations
(1978)
In Batty the court awarded damages in
respect of a house which was deemed not
fit for habitation because it had been
built at the top of potential unstable
slope. The plaintiff recovered for the
anticipated loss even though it had not
collapsed and apparently did not
subsequently collapse.

38. 38
Batty v Metropolitan Realisations
(1978)
This case showed that there is no
mechanism whereby either plaintiff or
defendant can ask for damages, once
assessed, to be reassessed in the light
of subsequent facts once a judgment
becomes final.

39. 39
Tort and Contract
AREA CONTRACT TORT
Liability Based on the
consent of the
parties [agreement].
Privity of contract.
Imposed by law.
Duty is owed
towards persons
generally.
Measure of damages The amount awarded
to put the plaintiff
in the position if
the contract had
been performed.
The amount awarded
as far as possible,
restore him to his
original position.

40. 40
Tort and Contract
AREA CONTRACT TORT
Commencement of
limitation periods /
limit for bringing
action to court.
Limitation Act 1953
(Act 254)
Six (6) years from the
time of breach.
Six (6) years from the
time the damage is
suffered, not from the
time the breach of
duty occurred.
NB. In tort, time starts to run from the time
that the damage occurs, i.e. when the defect
manifests to cause damage and not the breach.
Thus, claims are likely to be statutory barred at
a later date than contractual claim.

41. 41
General Defences (Martin and
Turner, 2001)
A. Volenti non fit injuria (where there is
consent, there is no injury)
This means no injury is done to one who
voluntarily accepts a risk.
Not apply to the situation where the
claimant only knew of the existence of the
risk rather than understanding it i.e.
[Stermer v Lawson (1977) 5 WWR 628].

42. 42
General Defences (Martin and
Turner, 2001)
A. Volenti non fit injuria (cont’d)
Not apply where the plaintiff is forced to
accept the risk [Smith v Baker (1891)] for
instance in sporting situation if physical
harm is likely i.e. rugby [Simms v Leigh
RFC (1969)] and football [Condo v Basi
(1985)].

43. 43
General Defences (cont’d)
B. Inevitable accident
A defendant is never liable for a pure
accident. Pure accident means one
beyond the defendant’s control for
instance [Stanley v Powell (1891)]
someone has killed during a grouse
shoot. It was shown that the man was
not shot directly. The bullet ricocheted
off a tree before it hit him.

44. 44
General Defences (cont’d)
C. Act of God
In construction, concerns with extreme
weather conditions. However, they
must he unforeseeable condition, not
merely bad weather [Nicholls v
Marsland (1876)].

45. 45
General Defences (cont’d)
D. Common benefit [Dunne v North Western
Gas Board (1964)].
E. Statutory authority [Green v Chelsea
Waterworks Co (1894)].
F. Fault of the plaintiff – the plaintiff
responsible for the damage suffered.
G. Contributory negligence – partly
responsible by the plaintiff.

46. 46
Dunne v North Western Gas Board (1964)
A gas main exploded without any
negligence on the part of the Gas Board.
The Court doubted whether the Board had
accumulated the gas for their own
benefit; it was for the benefit of the
consumers and there was no liability.

47. 47
Green v Chelsea Waterworks Co (1894)
The defendant were obliged by statute to
provide a water supply.
The court held that from time to time burst
pipe were inevitable consequences of
this duty and there could be no
liability in the absence of negligence.

48. 48
Contributory Negligence
The effect is to reduce the plaintiff’s
damages where he has contributed to
his/her own harm.
It is not necessary to show that the claimant
owed a duty of care, merely that he
failed to take care in all the
circumstances.
However, causation must always be
proved – the claimant act in fact helped
cause the damages suffered.

49. 49
General Defences (cont’d)
Others
H. Act of stranger – no control over the
third party.
I. Illegality – illegal act.
J. Self defence – saving life.
K. Necessity – to avoid worse damage.

50. 50
Thank You