PART 3 : LAW OF TORT

Nature of Tortious Negligence Trespass Nuisance

QSM 457

Originated from tort and nuisance now, strict liability imposes more restricted rules. Liability which is imposed on the defendant without any proof of fault on his part, even all reasonable precautions to avoid or minimise the risks have been taken into account.

Nuraisyah Chua Abdullah, Questions & Answer on Malaysian Courts, Statutes, Cases & Contracts:, Tort & Criminal Law: Normally a defendant is not liable unless he does something wrong. However, there is one exception to this general rule where a defendant will be liable even though he violated no duty and did nothing wrong. This exception is sometimes called strict liability and sometimes called absolute liability. The application of strict liability to these items are called products liability Similar to strict liability, it imposes liability on the seller of a defective product although the seller violated no duty and did nothing wrong.

 In regards to strict liability, Blackburn J in Rylands v Fletcher [1868] L.R. 3 H.L. 330 said that:
the rule of law is, that a person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief it it escapes, must keep it in a peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape. This is known as the rule in Rylands v Fletcher.

 In Rylands v Fletcher, D had a reservoir built on his land by independent contractors for purpose of supplying water to his mill. But, when the reservoir was filled, the water escaped down through a disused mine shaft located beneath the reservoir which connects to Ps coal mine and flooded it. D was held to be liable to P, although Ds actions were without any fault or negligent. After this case and in all subsequent cases, non-natural use of land was added as the requirements needed in order to establish liability under this rule, making the rule more restricted.

There are five elements required to establish liability under this rule which are: a) Dangerous objects anything that may cause damage if it escapes (i.e; gas, fumes, explosives, fire, water, electricity, etc). - Case: Hock Tai v. Tan Sum Lee & Anor [1957] MLJ 135
: The defendant stored petrol for the purposes of his business at the ground floor, where the plaintiff rented and lived on the first floor. : The defendants premises caught fire and the fire spread to the first floor and the plantiffs wife and child died. : Held - defendant liable under the rule of Ryland v. Fletcher.

b)

Intentional storage only applies to an object or thing which the defendant purposely keeps and collects.

c) Escape the object has escaped from a place where the defendant has control and authority to a place where the defendant has no control and authority (read: Lembaga Tanah Persekutuan v TNB [1997] 2 MLJ 783) d) Non-natural use of land it must be some special use bringing with it increased danger to others and must not merely be the ordinary use of the land or such a use as is proper for general benefit of the community (read: Abdul Rahman Che Ngah & Ors v. Puteh Samat [1978] 1 MLJ 225) e) Foreseeability of damages the type of damage must be foreseeable (read: Cambridge Water Co. Ltd. V Eastern Countries Leather Plc [1994] 1 All ER 53 this case has confirmed that for liability under the rule in Rylands v Fletcher, the type of damage must be foreseeable)
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flooded

Certain defences available to the defendant in order to escape strict liability: a) Fault of the plaintiff the damage caused by the plaintiffs own action or wrongdoing. b) Consent by the plaintiff expressly or impliedly c) Act of third party a person that acts outside the defendants control (E.g. trespassers). d) Act of God the escape occurs through natural means which is unforeseeable. e) Statutory authority the defendant acts under the authority of a statute. Even if the defendant escapes strict liability, he may still be found liable for nuisance or ordinary negligence, or for other torts.

Lee Mei Pheng, General Principles of Malaysian Law:

Vicarious liability specifies the liability which A (employer) may incur to C (buyer) for damage suffered by C (buyer) due to the negligence or other tort of B (employee). Not necessarily that A have participated in the commission of the tort nor the breach in law of a duty owed by A to C. The only requirement is that A stands in a particular relationship to B and that Bs tort should be referable in a certain manner to that relationship. Liability of an employer for the torts committed by his employees in the course of their employment.
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 Sinha & Dheeraj, Legal Dictionary: Vicarious liability Liability of the master for the acts of the servant or agent done in the course of his employment. An employer is strictly liable for torts committed by those under his command, when they are found to be his employees. No specific test can adequately cover all types and instances of employment. The tests used will rest upon the individual aspects of each case, looking at all the factors as a whole.

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Requirements that must be fulfilled to commit the act as a vicarious liability:1) Wrongful act - all elements of tort must be fulfilled 2) Special relationship - relationship must exists between the defendant & tortfeasor (i.e; employeremployee relationship). 3) Existence of a contract of service

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 An employer is not responsible for the torts of his independent contractor (who are under contracts for services i.e. not contract of service ). To determine whether the contract is a contract for services or not, the employer may look at the conditions that need to be satisfied in establishing existence of contract of service.
Independent contractor : a person who is working for the employer but he is not controlled by the employer in the method or conduct relating to the performance for services (Stevenson, Jordan and Harrison Ltd v. MacDonalds and Evans [1952] 1 TLR 101)
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 The conditions (CONTRACT OF SERVICE):(based on Ready Mixed Concrete (Souh East) Ltd. v. Minister of Pensions and National Insurance [1968] 2 QB 497:

a) The employee agrees that in consideration of a wage or other remuneration, he will provide his own work and skill in the performance of service for his employer (to use his own expertise). b) He agrees, expressly or impliedly that in the performance of that service, he will be subject to the other controls in a sufficient degree to make that other employer (to comply with the employers instructions). c) The other provisions of the contract are consistent with its being a contract of service. For example, the employer provides the tools and materials for use by the employee in his work (conditions in the agreement are consistent with the nature of job) .
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Lord Esher M.R. in Dyer and Wife v Munday and Anor [1895] 2 Q.B. 742, C.A ruled that:
The liability of a master does not merely rest on the question of authority, because the authority given is generally to do the masters business rightly; but the law says that if, in the course of carrying out his employment, the servant commits an act that is beyond the scope of his authority, the master is liable. the law says that for all acts done by a servant in the conduct of his employment and for the benefit of his master, the master is liable, although the authority that he gave is exceeded.

In Goh Choon Seng v Lee Kim Soo [1925] A.C. 550: - where a servant is doing some work which he is appointed to do, but does it in a way which his master has not authorised and would not have authorised, the master is nevertheless responsible.
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Other examples of vicarious liability:

Where an employee is careless in the course of employment, the employer is liable (Century Insurance Co. Ltd. v Northern Ireland Road Transport Board [1942] A.C. 509. Employers are also liable for the mistakes made by their employees (Bayley v Manchester, Sheffield and Lincolnshire Ry. [1873] L.R. 8 C.P. 148) and for the willful wrongdoings of the employee (Limpus v London General Omnibus Co. [1862] 1 H & C 526). Employers may also be liable for theft by their employees (Morris v C.W. Martin & Sons Ltd. [1966] 1 Q.B. 716) and the employees fraud (Lloyd v Grace, Smith & Co. [1912] A.C. 716), only where the acts come within the business conducted by the employers. Worker does an act for his own benefit thou not necessarily that he has acted outside the scope of his employment (Zakaria b Che Soh v. Chooi Kum Loong & Anor [1986] 1 MLJ 324)
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 In construction, even an employer is not responsible for the torts of his independent contractor (i.e; delay to complete on time), the employer may still be sued for damages caused by his independent contractor where the employer himself was in breach of some duty, which he himself owed to the plaintiff (i.e; wrongly selected the Nominated Sub-Contractor).

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This however, subjected to four situations (Norchaya Talib, 2nd Edition, Law of Torts in Malaysia, p. 384):i) When the employer authorising the commission of tort ii) Torts which do not require intentional or negligent conduct by the tortfeasor (similar with the nuisance & strict liability requirement) iii)The damage is caused by the incompetence of independent contractor (the employers negligence in failing to employ competent and skilled contractor) iv)The duty is non-delegable (the employer cannot shift his duty of care to the independent contractor i.e; hazardous site area)

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 Lee Mei Pheng, General Principles of Malaysian Law (5th ed.):

Occupiers liability is the liability of an occupier of premises for any damage suffered by visitors to the premises. Occupier is a person who has sufficient degree of control over premises to put him under a duty of care towards those who come lawfully upon the premises.

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Who is Occupier?
The definition must be sought in case law. The currently applicable test for the status of "occupier" is the degree of occupational control.

The more control one has over certain premises, the more likely he is likely to be considered "occupier" for the purposes of Occupiers' Liability Acts.
More than one person at the same time can have the status of occupier.

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Owners
Owners of let property will be occupiers of those areas which they have not let by demise and over which they have retained control (such as the common staircase in flat building).

If the tenancy agreement imposes upon the owner the duty to carry out repairs, he will be coresponsible with the tenant for the conditions of the premises as occupier.

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Tenants and licensees

Both tenants and licensees will be occupiers of property where they live. Licensees will usually share the status of occupier with the owner.

Independent contractors
Independent contractors working on the property may also be covered by the concept of "occupier" if they exercise sufficient control over the premises.

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Duties of an Occupier? Can be categorised into four types: a) Duty owed to one who has entered the occupiers premises in pursuance of a contract with him. There is an implied warranty that the premises are as a reasonable care and skill could make them.
b) Duty owed to an invitee, who is a person without any contract entered the premises on business interest to himself and the occupier. He is entitled to expect the occupier to prevent damage from normal danger which he knew or ought to have known.

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Duties of an Occupier? (contd): c) Duty owed to the licensee, who is a person who entered with the interest with the occupier. The duty is to warn him of any concealed danger or trap of which he actually knew.
d) Duty owed to trespasser. The duty owed is only a duty to abstain from deliberate or reckless injury.
In British Railway Board v Herrington [1972] 1 All ER 749 HL : the court held that the defendant was liable to use proper steps of common humanity and common sense to avoid danger (i.e; warnings) to people who might be on his premises

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Other case law:

Wheat v. E Lacon & Co Ltd [1966] 1 All ER 582

THANK YOU & GOOD LUCK

- Ps owned a public house which Mr R was their manager. Mr R n his wife were allowed by agreement to live in the upper floor, access to which was by a door separate from the licensed premised. An accident was sustained by a paying guest on the stair case leading to the upper floor. It was held that although C was injured in the private area of the premises, Ds ( along Mr R & Mrs R) were liable. They had enough residual control over that part of the premises to be treated as occupiers.

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A M F International Ltd v Magnet Bowling Ltd [1968] 1 WLR 1028 - both a contractor & owner were held to have sufficient control to be joint occupiers of the premises in which the claimant's equipment was damaged by rainwater entering the building via leaking doorway. -Visitor- those person who were invitees & licensees that is anyone whom an occupier gave any invitation or permission to enter or use his premise. -an occupier is therefore someone who has the immediate supervision & control & the power of of permitting of prohibiting the entry of the persons.

THANK YOU & GOOD LUCK

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THE END

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