Introduction To Law (Week11-

14)
LAW OF TORT
CONTRACTS AND TORT OF NEGLIGENCE

 Professional body -Liability in contract and liability in the tort of

negligence.
 The difference – liability on contract – limited only to the
contracting parties.
 Liability in tort – wider in that any person who has suffered
damage as a consequence of the engineer’s negligence may have
a cause of action against him.

LAW OF TORT

 A tort may consist of either a wrongful act or omission, which is

not authorized by the law.
 In other words, the act or omission which does not give rise to an
action for damages is not a tort
 The tort law is also concerned primarily with a party’s unilateral
action actions where they have caused damage to the recognized
interests of another with that one party has done another in the
context of particular interaction. E.g negligence, nuisance,
trespass.
  It is therefore typically concerned with the imposition of legal
liabilities and the consequent remedies in respect of civil wrongs
committed against recognised entities, a liability which is not
dependant on contractual agreement.
 The breach of a tortious liability is usually redressible by an action
for unliquidated damages.(‘unliquidated’ because no one knows
exactly how much the judge will award).

TORT OF NEGLIGENCE
 Tort may be categorised as follows:
-Negligence -Defamation
-Occupier’s liability -Ryland v fletcher strict liability
-Trespass to persons -Tort of conspiracy
-Trespass to land -Malicious prosecution
-Trespass to goods -Vicarious liability
-Nuisance -Breach of statutory duty
-Passing off

 Definition of negligence
 Breach of a legal duty to take care, resulting in damage to
claimant who was not desired by defendant.
 It is also means a breach of care resulting in injury or damage
OR careless conduct that may arise in construction contract by
one’s action.
 The person who caused the misconduct, therefore owed a duty
of care to the aggrieved person as he failed to act with
reasonable standard of care and caused losses accordingly.
  The tort of negligence is complete when three conditions are
satisfied :
1) The defendant owes a duty of care to the claimant.
2) The defendant has acted or spoken in such a way as to break
that duty of care.
3) The claimant has suffered relevant damage as a
consequence of the breach.

DUTY OF CARE

 The first step is normally for the court to assess whether the
defendant owed a duty of care to the plaintiff, and whether the
defendant could reasonably foresee that his acts (or omissions)
would have an effect on the plaintiff.
 The test ‘neighbour principle’ as stated by Lord Atkin in
Donoghue v Stevenson, (ie foresight of the reasonable man).
Manufacturer commits negligent towards the consumer of its
product because it could foresee that anything inserted in the
bottle with the drink would be found by the consumer

BREACH OF DUTY

 The second step is normally to assess whether the duty of care

was breached.
 Standard of care –if it is in a professional capacity, the standard of
care required is that of as expected of a reasonable professional
in the defendant’s discipline in the situation
 An instance given is like a builder, who undertakes the work of a
designer will be judged against the standards to be expected of a
professionally qualified designer
  If it is in a non-professional capacity, the standard of care required
is that of as expected of an ordinary reasonable man in the
situation.
 The standard of care required of the defendant would affect
whether he has breached that standard

CAUSATION

 The third step is to determine whether the breach of duty can be

conclusively shown to have caused a consequential damage to the
plaintiff
 A consequence must not be too remote
 Consequences which are intended are never too remote, e.g if a
man throws some firecrackers intending it as a joke and the
plaintiff’s eye is injured as a result, the man would be liable .

CAUSATION

 In tort also, the kind of damage, which is suffered must be

reasonable foreseeable by them . In simplest forms, where it is
too remote and unforeseeable, they are not entitled for
compensation.

QUANTUM OF LOSS

 A plaintiff who has convinced the court on three elements above

will have to prove the loss that the defendant has caused
 The court will assess the quantum of loss that the plaintiff is
entitled to and award an appropriate amount to compensate the
plaintiff for the damage done by defendant
CONTRIBUTORY NEGLIGENCE

 If the plaintiff is found to have contributed to (or be partly

responsible for) his own injury, the damages recoverable by the
plaintiff are to be reduced to such extent as the court thinks fair
and equitable; ie the plaintiff may not be able to recover anything

PROFESSIONAL NEGLIGENCE

 The professional man often relates with their negligent conduct,

thus, the terms ‘professional’ and ‘negligence’ remains
inseparable and crucial.
 In fact, it can be described as frequently applied to the liability of
professional advisers to provide advice of a certain standard .The
example of particular profession has been explained based on the
following points :

PROFESSIONAL NEGLIGENCE- DUTY OF CARE

 a)Architect – An architect is one who possess, with due regard to

aesthetic as well as practical considerations, adequate skill and
knowledge to enable (i) originate (ii) to design and plan (iii) to
arrange for and supervise the erection of such buildings other
works calling for skill in design and planning as he might,
e: Steven Phoa Cheng Loon & Ors v Highland Properties Sdn Bhd &
Ors (Malaysia)
PROFESSIONAL NEGLIGENCE – BREACH OF DUTY

 Another instance is in preparing the report for investigation of

site. Invariably, the reports are regularly produced to record the
particular details of the projects.
 Normally, an engineer may produce a report on the ground
conditions on a particular site or a surveyor may produce a report
outlining the likely expenditure to be anticipated in connection
with a particular project.
 When, however, it is inaccurate, the professional who produced
the report may be liable for client and the third party who reads
the report and rely upon it to their financial disadvantages

PROFESSIONAL NEGLIGENCE – CAUSATION

 However, in the case of Teh Khem On & Anor v Yeoh & Wu

Development Sdn Bhd & Ors (Malaysia),
No contractual relationship between parties. Thus, the plaintiff's
claims in respect of the defective condition of the house which
were purely economic loss would fail.

OCCUPIER’S LIABILITY

 Liability of the owners of the premises for any damage suffered by

visitors to the premises.
 Occupier’s liability will arise in a situation where the premises are
not as safe it should reasonably be and this defective state, which
includes activities carried out on the premises causes injury or
damage to the plaintiff.
  Premises include all forms of buildings, land spaces, vehicles
which are used for carrying persons including tractor’s and
structures such as scaffolding, ladders, walls and other.
 An occupier of premises owes the same duty to all his visitors to
ensure that they are reasonably safe in using the premises for the
purposes for which they are invited (or permitted by the occupier)
to be there.
 Example: if you invite your friend into your house and she slides
down the banisters due to wet floor, you may be liable
 To avoid this, occupier ,may restrict his duty of care by putting up
warning signs or exclusion clauses (e.g ‘keep out’, ‘staff only’,
‘private’, ’park at your own risk’…

TRESPASS TO PERSONS

 It may be divided into 3 different torts, namely the tort of assault,

battery and false imprisonment.
 Assault – an intentional and direct act of the defendant which
causes the plaintiff fear for his safety. A civil wrong as well as a
criminal act.
 Battery- an intentional and direct application (physically touch) of
the defendant to plaintiff (by force) and without his consent.
 False imprisonment – the plaintiff is unlawfully detained (against
his will) by the defendant.

TRESPASS TO LAND

 Unauthorized entry into (or use of) someone’s land (or premises),
including under or over the land.
TRESPASS TO GOODS

 A wrongful and direct interference with goods that are in the

possession of another.
 Detinue – wrongful retention of goods , e.g Jane borrowed Mary’s
dress to go to a party but later she refused to return it to Mary
 Conversion- dealing with another person’s goods in a manner
which is inconsistent with the rights of the true owner. e.g Jane
now sells Mary’s dress to Lucy

NUISANCE

 A nuisance may be either ‘public’ or ‘private’:

a) Public nuisance – the defendant unreasonably interferes with the
comfort of the society in general
b) Private nuisance – the defendant unreasonably interferes with the
comfort of the plaintiff’s lawful use or enjoyment of his land

BREACH OF STATUTORY DUTY

 The defendant commits an act or omission that is breach of a duty

imposed on the defendant by a statue or Act of Parliament
 Example: under the occupational safety & health 1994, the duty
of employers is to ensure, as far as practicable, the safety, health
and welfare at work of all his employees, including the provision
of necessary instruction, training and supervision to employees;
and the maintenance of a safe, healthy and risk-free environment
in the work place.
DEFAMATION

 The defendant says or writes something which lowers the

plaintiff’s reputation in the eyes of right-thinking members of
the society generally. There are two forms of defamation:
a)Libel – defamation in a permanent form such as writing,
printing and painting
b)Slander – defamation in the form of oral statement

Rylands v Fletcher Strict Liability

 The defendant is responsible for any damage caused by

something collected on his land due to non-natural use of the
land. This principle is known as the ‘Rule in Rylands v Fletcher’
from the 1868 case of that name
 The Rule in Ryland’s v Fletcher stipulates that where a person
for his own purpose brings in and keeps in his land anything
likely to do mischief if it escapes, he keeps it at his own peril; if
he fails to do so, he is liable for all damage which is the natural
consequence of its escape. This principle applies to beasts,
water, fire,etc
 The case of Rylands v Fletcher is a per the article appended.
OTHER TERMS

 Tort of conspiracy
o A plan by two or more persons to injure the plaintiff which is
put into effect

 Malicious prosecution
o Any unwarranted criminal prosecution of the plaintiff activated
by malice rather than any reasonable cause
 Vicarious liability
o Refers to a situation where A is liable to C for damage or injury
suffered by C due to the negligence or other tort committed by
B.

OTHER TERMS (CONT’D)

 Example: Ali was driving his employer’s van to transport some

goods to a supplier when he negligently struck Siti’s car. Ali’s
employer would be liable to pay for Siti’s damages.
 Employers are not vicariously liable for torts committed by
independent contractors (under the contract for services)
 However, the employer is still liable for damages caused by his
independent contractor if the employer is in breach of certain
duty which he owes to the plaintiff (e.g where the employer has
failed to select a competent contractor to carry out the work)
REFERENCES

1. Curzon, L.B (2002). Dictionary of Law (6th Ed). Pearson

education Limited : England
2. Dugdale, A.M and Stanton, K.M (1982). Professional Negligence
(1stEd). Butterworths : London
3. Jackson, R.M and Powell, J.L (2007). Jackson and Powell on
Professional liability (6thEd). Sweet and Maxwell : London
4. Lecture note from Ar. Chang Choong Yew
5. Shirke, S (2009). Professional Negligence in the Construction
Industry. Malayan Law Journal Article. Vol.2 (No.162) Retrieved
January 14, 2010, from http:// www.lexisnexis.com
6. Talib, N (2010). Law of Torts in Malaysia (3rd ed). Sweet &
Maxwell Asia : Kuala Lumpur
7. Talib, N (2003). Law of Torts in Malaysia (2nd ed). Sweet and
Maxwell Asia, Kuala Lumpur.