EUT440 LAW 3 (Negligence)

WHAT IS NEGLIGENCE?
 Careless conduct
 Negligence as a tort
 More than heedless or careless
conduct – complex concept of duty,
breach and damage
 When it is occur – the day the
plaintiff suffer loss – damage
existence

NEGLIGENCE WHAT IS IT? – the breach of a legal duty to take
care which results in damage, undesired by the
defendant, 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 - FORESEEABLE
VS UNFORESEEABLE
 IF FORESEEABLE – THERE IS DUTY OF CARE ~
 BOURHILL V YOUNG
 ZAZLIN ZAHIRA HJ KAMARUZAMAN
 THERE IS CLOSE AND DIRECT REALTIONSHIP
OF PROXIMITY BETWEEN THE PLAINTIFF AND
THE 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 MUST
BE JUST AND REASONABLE.
SATHU V HAWTHORNDEN RUBBERS
ESTATE 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 TO
ACT
- SPECIAL RELATIONSHIP BETWEEN 2 PARTIES
- DEFENDANT HAS CONTROL OVER 3RD
PARTY
- DEFENDANT HAS CONTROL OVER LAND ETC
- FAILED TO PERFORM AN ACT AS PROMISED
○ NO – SMITH VS LITTLEWOODS ORGASNIATION LTD

EXCEPTIONS
 STATUTORY POWER- IMMUINITY
PSYCHIATRC ILLNESS – MENTAL, NEUROSIS
AND PERSONALITY CHANGES.
REASONABLY FORESEE
A TEST- 3RD
PARTY IN THE SAME POSITION
PROXIMITY BETWEEN PLAINTIFF AND THE
ACCIDENT – TIME AND SPACE
THE MEAN BY WHICH PLAINTIFF COME TO
KNOW
MEDICALLY RECOGNISED
 HOW TO DETERMINE IN MONETARY TERM

TEST OF BREACH OF DUTY OF
CARE
 REASONABLE MAN TEST
Classes of defendant
Practice and knowledge at the time of alleged
breach
 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 the
reasonable man.. Eliminates the personal equation and is
independent of the idiosyncrasies of the particular person whose
conduct is in question)
 Level of intelligence and knowledge (the standard of care applicable
is that the standard is that of reasonable man in that position)
 The defendant who has or profess expertise in a particular field (will
be 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 the
negligence of others
 PROFESSIONAL?

DAMAGE
 CAUSATION IN FACT
BUT FOR TEST
MULTIPLE CAUSES OR CONCURRENT
BREACHES 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 IS
IRRELEVANT

DAMAGE….
 INTERVENING ACTS
 THROUGH A NATURAL EVENT THAT
INDEPENDENT OF HUMAN CONDUCT
THROUGH THIRD PARTY
INTERVENING ACT OF THE PLAINTIFF
 PURE ECONOMIC LOSS?
May be incurred either as a consequence of a
negligent 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 is
that of a reasonable professional
 Anybody act as if he/she is a professional will be
liable 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 UNITED
FINANCE BHD & ANOR p122
 Plaintiff must show
that he relied on the proper performance of that
service by the defendant;
he is identifiable or belongs to a class of persons
whom the defendant knows to be relying on the
advise or information, thus establishing proximity
and 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 on
Murphy)
Teh Khem On & Or v Yeoh & Wu Development Sdn
Bhd & Ors (pure economic loss is irrecoverable- no
direct contractual relationship)
Pure economic loss recoverable- Dr Abdul Hamid &
Anor v Jurusan Malaysia Consultants & Ors and
Steven Phoa Cheng Loon & 72 Ors v Highland Tower
Properties Sdn Bhd & 9 ors

PARTIES IN PROJECT
CLIENT
FINANCIER CONTRACTOR
AUTHORITY PROFESSIONAL
Third
party

NEGLIGENCE IN
CONSTRUCTION
 POTENTIAL WRONGDOER!
CLIENT?…..
CONSULTANT/DESIGNER
CONTRACTOR/EMPLOYER
WORKERS
AUTHORITIES????….
 TO WHOM?
PARTIES IN THE CONTRACT
PARTIES NOT IN THE
CONTRACT

CLIENTS
 CONTRACTOR-
FAIL TO ENSURE
CONTRACTOR WORK
PROPERLY
DUTY ASSIGNED
THROUGH SO
 DESIGNER
NEGLIGENCE BY
DESIGNER SHARED
BY CLIENT
 SUB-CONTRACTOR?…
 WORKERS – NOT
RESPONSIBLE

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& Wu
Development 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 DEFECT
WORKS

CONTRACTORS
 EMPLOYER
THE WAY WORKS BEEN
CARRIED OUT
WORKERS
 OCCUPIER
INVITEE
LICENSEE
TRESPASSER

NEGLIGENCE TO WORKERS
 NEGLIGENCE BY WORKERS
(VICARIOUS LIABILITY
 NEGLIGENCE DUE TO BREACH
OF STATUTORY DUTY – insurance,
SOSCO, OSHA
 EMPLOYERS NEGLIGENCE
EMPLOYING WRONG WORKERS
FAIL TO ENSURE MACHINES ARE IN
GOOD CONDITION & SAFE
FAIL TO PROVIDE GOOD WORKING
ENVIRONMENT

OCCUPIER’S LIABILITY
 OCCUPER –Tort
INVITEE – MOHD
SAINUDIN
○ CHONG FAH LIN V UEM
○ DOBB & CO V HEELA
LICENSEE – LIABLE
TRESPASSER – NOT
LIABLE

CONT’D
It does not impose any responsibilities
towards trespassers
although a special case would probably be
made if a child trespasser was injured due
to the contractor’s negligence, but this
cannot be turned the other way round,
permitting the builder to leave parts of his
site in a deliberately dangerous condition to
deter or trap trespassers.

WORKERS
 NO – IF IT IS
ORIGINATED FROM
EMPLOYER’S
FAULT
 YES – SHARE
SOME BURDENS IF
HE NEGLIGENTLY
PERFORM AN ACT

PROOF OF NEGLIGENCE
 RES IPSA LOQUITOR
HOW AND WHY MAXIM APPLY?
○ THINGS THAT CAUSES DAMAGE UNDER THE CONTROL OF
DEFENDANT
○ 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

CASE HISTORY
HIGHLAND TOWER BLOCK 1
 COLLAPSE OF A
14-STOREY CONDOMINIUM
BLOCK ON 11
DECEMBER,
1993 KILLING 48 PEOPLE

STRUCTURE OF BUILDING
CONSTRUCT BY
USING REINFORCED
CONCRETE COLUMNS,
BEAMS AND SLABS.
BUILDING SUPPORTED
BY RAIL
PILES
WITH EACH COLUMNS
BEING SUPPORTED IN
AT LEAST 2
TO 3 RAIL
PILES.

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 the
super structure
 Slope and rubble walls behind, and in front of
collapsed block were not properly designed and
supervised
 Initial landslide of slope imposed additional
pressure in soil resulted in the failure of rail
piles foundation. (The design were never
intended to carry any lateral load)

DEVELOPER
CONSULTANT ARCHITECT
ENGINEER
NEIGHBOURING PROPERTY OWNERS
LOCAL AUTHORITY
HIGHLAND TOWER

PARTIES CONTRIBUTORY TO THE
COLLAPSE
A) Developer/owner of the condominiums
 Fail to engage a qualified submitting person
 Proceeding with construction work without
getting the required approval and without proper
supervision
 Fail to implement and fully comply with the
drainage plans approved by Department of
Drainage and Irrigation (JPS)
 Fail to carry out proper maintenance of surface
drainage behind condominiums
DEFENDANTS WERE:

B) Consultant Architect
Failed in his duty as a consultant & had also
refuse to comply with requirement impossed
by the authorities on drainage of the area.
C) Engineer
Signing the road and drainage plans for the
project though he did not design nor
supervise the construction

D) Neighbouring Property Owners
 Development carried out on their properties had
resulted in changes to the direction of the
natural water path resulting in the concentration
of run-off water into the slope behind the
collapse block
E) Local Authority
 Weakness in complying with enforcement of the
building by-laws due to lack of staff leading to
approval of plans & CF.

Assignment 1
 There are liabilities in construction practise that can be
demonstrated clearly in some cases. The liabilities include:
 negligence as in Dr Abdul Hamid Abdul Rashid & Ors vs
Jurusan Malaysia Consultants and Mohd Sainuddin b. Ahmad
vs Consolidated Hotels Ltd & Anor,
 trepasss as in Kwong Hing Realty Sdn Bhd vs Malaysia
Building Society Bhd (America International Assurance Co Ltd
 nuisance and strict liability as in Wu Siew Ying vs Gunung
Tunggal Quarry & Construction Sdn Bhd & Ors and Ryland vs
Fletcher
 Critically discuss the liabilities mentioned and how the
conflicts in relation to the liabilities are addressed and
resolved by the courts.

EUT440 LAW 3 (Negligence)

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