GROUP 7 (PART 2)

MOHD AIRUL BIN ALIMATSITI HAWA BT JAMALUDIN

NURULHUDA BT MOHD NASIRNUR FATIMAH ZAHARAH BT SULAIMAN

Tort and Legal Liability Unlawful conduct of a person result

in person injury and /or damage to person property that can seek legal redress

Negligence Required to exercise with proper care Due to careless conduct. Eg : Impatience, lack of foresight

The Standard of Care- Circumstances surrounding the act. have

to consider.- Consistent with and not below the level of

care exe.- Eg : Chin Keow v. The Gov. of Malaysia and

Another

The duty of care Injury or damage imposed on negligent

person

Condition

The damages is foreseeable

Reasonable

Not excluded on the ground

of public policy

Nuisance Private Nuisance

Unlawful interference with the enjoyment right

Example: Right interfered with concerns enjoyment

of private land, Liability for private nuisance may ensue Allowing effluence to flow into an adjacent

land Disruption of quiet enjoyment of

residential premises

Unreasonable interference Deemed unreasonable • Interest in Land Factors :

The relative value of the activities of the parties

Appropriate location Practicability of avoiding the interference Abnormal sensitivity on the part of the

plaintiff Unlawful motive of the defendant

Public Nuisance Occasioned when comfort and convenience

enjoyed by the public is interfered Example;

obstruction of a highway Offence or up criminal liability

Trespass Actual damages or injury is unnecessary to

establish liability for trespassTrespass to land

Enter land of others without authorizationRemaining on land beyond permitted periodUnlawfully cause physical matter

Trespass to goods

Take out of others possessionMove without authorityUnlawful physical contact

Trespass to person

AssaultUnlawfully cause actual physical contactFalse imprisonment

Defamation Libel or slander Absence of intention doesn’t absolve a

person Defamatory imputation:

Exposes the

referred person to hatred

Published and

communicate to 3rd

party

Does not have to

be names usually refer as plaintiff

Injury reputatio

n and suffered damages

Breach of Statutory Duty Invariably an offence, criminal liability Circumstances :

Injury is occasioned to person’s

property

Person affected by

injury/ damages seeks to protect

Injury/ damages sustained

wish to prevent

Intention to obtain civil remedy for

injury/ damages

Rylands v Fletcher

Used for extraordin

ary purpose

Gives extraordin

ary danger

Does not confer any benefits

Must be accumulat

ed

How to make a contract?

The element of contract

Proposal & Acceptance Intention

Capacity

Consideration

Lawful object

1. Proposal & acceptance

Offeror Offeree

Make offer

Make an acceptance

communication

A proposal cannot be accepted if:

proposer died or suffer mental incapacity counter proposal

declaration of willNot required to be in any particular form

Must have communication/ conduct P&A is not invitation to treat

2. intention

What the offeror want at the end of the contract

3. CONTRACTUAL CAPACITY Attained the age of majority (18 years) Sound mind Not disqualified from contracting

4. consideration

Give benefits to both party Common types of consideration 1. Tangible payment (money /

property) 2. Performance of an act

(providing legal services)Love and affection

Reward a past act

Pay a barred debt

Waive a contractual

right

5. Lawfulness of object

Should not have an object or a purpose that is not lawful

Prohibited by law

Contravene law

Fraudulent

agreement

Injury & damage

Immoral /against public policy

In what condition a contract is voidable?

Coercion – use of unlawful detention Undue influence – unlawful influece

Fraud Misrepresentation

Mistake

How to discharged a contract?

1.Performance2.Agreement3.Frustration4.Operation of law5.Fundamental breach of contract

Is it employer liable for the injury of their

employee?

Employees Distinguished from agents and contractors

Criminal Liability for injury to employees

Liability for workmen compensation

Common law liability for injury to employees

3.1Employee distinguished from agents and contractors

Element of control

Scope of employee work

3.2Criminal Liability for Injury to employees

Employers should pay close attention to the employment related injuries that might happen to employees.

If employer’s failure to meet min statutory safety standard – may face criminal liability

Employer can be made criminally liable for creating risky working environment for their employee

Oblige under Occupational Safety and Health Act 1994 ( known as OSHA)

3.3 Liability for workmen’s Compensation

Circumstances that made employer need to pay compensation:-

Nature of liability for workmen’s compensation

Injury arising in

the course of employm

ent- Only

liable if injury

linked to his work

Liability not fault based

-employer is liable although it’s not

employer fault.

Examples of non-liability- employer do not have liability to pay because did not arise in the course of employment:-1. died/disabled in circumstances unconnected to his work2. died/ suffered disablement when carry out work for which he is not employed.3. death/ disablement when carry out work but not caused by the work done.

Special Provision1. Section 4(1)(b) – workman is involved in an accident while

travelling to/from work with employer permission2. Section 4(1)(c) – workman injured/ died when taking steps

emergency (to save lives/ property)3. Section 4(1)(d) – workman die / injured as result of having

failed to comply with instructions

Exceptional circumstances – employer is expressly excluded from liability :-

1. Section 4(2)(a) – Disablement of workman do not exceed 4 days2. Section 4(2)(b) – Disablement results from a workman being under influence of alcohol.3. Section 4(2)(c) – Death / disablement of workman is results from self- inflicted injury4. Section 4(2)(d) – Disablement arises from which workman has falsely represented to the employer.

The Statutory Compens

ations

Contracting out & compulsory insurance

s.24 prohibits an employer from contracting out of his obligation

to provide the compensation stipulated under WCA 1952.

s.26 mandatory for employer to effect with the authorised insurer a policy to insure his

liability under the Act

3.4 Common Law Liability for Injury to Employees

2 categories to facilitate understanding the liability are:SOCSO eligible employeesNon-SOCSO eligible employees

At common lawPersonal negligence of the employerBreach of statutory dutyVarious liability

Personal negligence of the employer

At common law

Common law duties Examples of breaches

Provision of proper tools Tools are not in proper working order

Provision of a safe place of work

Slippery factory floor

Provision of competent workers

Employees did not qualified to do their work properly

Provision of a safe system of work

Not provide enough training for handling dangerous tasks.

•Non-compliance with the requirements to observe the safety stipulations of the Factories and Machinery Act 1967. •Failure to meet the requirements pertaining to safety and health under the Occupational Safety and Health Act 1994..

Breach of

statutory

duty

At common law

Various liability

•The employee has been injured by a fellow employee.•The injury is occasioned in connection with the employment of the employees.•Some fault is ascribed to the fellow employee for the injury caused.

At common law

8. PRODUCT LIABILITYEncounter legal liability when:

Express undertakingImplied undertaking

Liability under Section 68(4) of the Consumer Protection Act 1999

1. Seller of ProductSupplies a product under a

contract of sale.

2. Supplier of ProductA person who supplies the product

other than under a contract of sale.

8. PRODUCT LIABILITY (cont)

Liability may occur based on:Section 68(1) of the Consumer Protection Act 1999.

3. Manufacturer and Person Who Does Work in Relation to

a Product* The person who produces goods

from raw materials.* Liability may occur based on:

# The Donoghue v. Stevenson principle.

# Section 38 of the Consumer Protection Act1999.

And…

4. Importer or Label Owner of

ProductA person who hold themselves out as

producers by affixing their names,

trademarks or any distinguishing marks

on the products.

THE END