WELCOME TO NEGLIGENCE DR AMINAH MD YUSOF. WHAT IS NEGLIGENCE? Careless conduct Careless conduct...

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WELCOME TO NEGLIGENCE WELCOME TO NEGLIGENCE DR AMINAH MD YUSOF DR AMINAH MD YUSOF

Transcript of WELCOME TO NEGLIGENCE DR AMINAH MD YUSOF. WHAT IS NEGLIGENCE? Careless conduct Careless conduct...

Page 1: WELCOME TO NEGLIGENCE DR AMINAH MD YUSOF. WHAT IS NEGLIGENCE? Careless conduct Careless conduct Negligence as a tort Negligence as a tort More than heedless.

WELCOME TO WELCOME TO NEGLIGENCE NEGLIGENCE

DR AMINAH MD YUSOFDR AMINAH MD YUSOF

Page 2: WELCOME TO NEGLIGENCE DR AMINAH MD YUSOF. WHAT IS NEGLIGENCE? Careless conduct Careless conduct Negligence as a tort Negligence as a tort More than heedless.

WHAT IS WHAT IS NEGLIGENCE?NEGLIGENCE?

Careless conductCareless conduct Negligence as a tortNegligence as a tort More than heedless or careless More than heedless or careless

conduct – complex concept of duty, conduct – complex concept of duty, breach and damagebreach and damage

When it is occur – the day the When it is occur – the day the plaintiff suffer loss – damage plaintiff suffer loss – damage existenceexistence

Page 3: WELCOME TO NEGLIGENCE DR AMINAH MD YUSOF. WHAT IS NEGLIGENCE? Careless conduct Careless conduct Negligence as a tort Negligence as a tort More than heedless.

NEGLIGENCENEGLIGENCE WHAT IS IT? – the breach of a legal duty to WHAT IS IT? – the breach of a legal duty to

take care which results in damage, undesired take care which results in damage, undesired by the defendant, to the plaintiff (defendant? by the defendant, to the plaintiff (defendant? Plaintiff?)Plaintiff?)

ELEMENTSELEMENTS THERE IS DUTY OF CARETHERE IS DUTY OF CARE THE DUTY OF CARE HAS BEEN BREACHEDTHE DUTY OF CARE HAS BEEN BREACHED THE BREACH RESULTS IN DAMAGE TO PLAINTIFF THE BREACH RESULTS IN DAMAGE TO PLAINTIFF

(economy, physical, financial, property)(economy, physical, financial, property)

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DUTY OF CARE EXIST IF….DUTY OF CARE EXIST IF….

THE DAMAGE IS FORESEEABLETHE DAMAGE IS FORESEEABLE - - FORESEEABLE VS UNFORESEEABLEFORESEEABLE VS UNFORESEEABLE

IF FORESEEABLE – THERE IS DUTY OF CARE ~ IF FORESEEABLE – THERE IS DUTY OF CARE ~ BOURHILL V YOUNGBOURHILL V YOUNG ZAZLIN ZAHIRA HJ KAMARUZAMANZAZLIN ZAHIRA HJ KAMARUZAMAN

THERE IS CLOSE AND DIRECT REALTIONSHIP THERE IS CLOSE AND DIRECT REALTIONSHIP OF PROXIMITY BETWEEN THE PLAINTIFF AND OF PROXIMITY BETWEEN THE PLAINTIFF AND THE DEFENDANT –THE DEFENDANT – NEIGHBOUR CONCEPT – CLOSE/PROXIMITYNEIGHBOUR CONCEPT – CLOSE/PROXIMITY

DONOGHUE VS STEVENSONDONOGHUE VS STEVENSON ANNS V MERTON LONDON BOROUGH – p91ANNS V MERTON LONDON BOROUGH – p91 PEABODY DONATION FUND V SIR LINDSAY PARKINSON & CO LTD – p93PEABODY DONATION FUND V SIR LINDSAY PARKINSON & CO LTD – p93 BOURHILL V YOUNG BOURHILL V YOUNG

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THE CIRCUMTANCES MUST BE THE CIRCUMTANCES MUST BE JUST AND REASONABLE.JUST AND REASONABLE. SATHU V HAWTHORNDEN RUBBERS ESTATE SATHU V HAWTHORNDEN RUBBERS ESTATE

CO LTDCO LTD LOK KWAN MOI & ORS V RAMLI B. JAMIL & LOK KWAN MOI & ORS V RAMLI B. JAMIL &

ORS & GOVERNMENT OF MALAYSIAORS & GOVERNMENT OF MALAYSIA

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WHAT ABOUT WHAT ABOUT OMISSION?...OMISSION?...

LIMITATIONS OF DUTY CARELIMITATIONS OF DUTY CARE OMISSION OMISSION

YES – CONTRARY TO EXISTING DUTY TO YES – CONTRARY TO EXISTING DUTY TO ACT ACT

SPECIAL RELATIONSHIP BETWEEN 2 PARTIESSPECIAL RELATIONSHIP BETWEEN 2 PARTIES DEFENDANT HAS CONTROL OVER 3DEFENDANT HAS CONTROL OVER 3RDRD PARTY PARTY DEFENDANT HAS CONTROL OVER LAND ETCDEFENDANT HAS CONTROL OVER LAND ETC FAILED TO PERFORM AN ACT AS PROMISEDFAILED TO PERFORM AN ACT AS PROMISED

NO – SMITH VS LITTLEWOODS ORGASNIATION NO – SMITH VS LITTLEWOODS ORGASNIATION LTDLTD

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EXCEPTIONSEXCEPTIONS STATUTORY POWER- IMMUINITYSTATUTORY POWER- IMMUINITY

PSYCHIATRC ILLNESS – MENTAL, NEUROSIS PSYCHIATRC ILLNESS – MENTAL, NEUROSIS AND PERSONALITY CHANGES.AND PERSONALITY CHANGES. REASONABLY FORESEEREASONABLY FORESEE A TEST- 3A TEST- 3RDRD PARTY IN THE SAME POSITION PARTY IN THE SAME POSITION PROXIMITY BETWEEN PLAINTIFF AND THE PROXIMITY BETWEEN PLAINTIFF AND THE

ACCIDENT – TIME AND SPACEACCIDENT – TIME AND SPACE THE MEAN BY WHICH PLAINTIFF COME TO THE MEAN BY WHICH PLAINTIFF COME TO

KNOWKNOW MEDICALLY RECOGNISEDMEDICALLY RECOGNISED

HOW TO DETERMINE IN MONETARY TERMHOW TO DETERMINE IN MONETARY TERM

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TEST OF BREACH OF TEST OF BREACH OF DUTY OF CAREDUTY OF CARE

REASONABLE MAN TEST REASONABLE MAN TEST

Classes of defendantClasses of defendant Practice and knowledge at the time of Practice and knowledge at the time of

alleged breachalleged breach RISK TESTRISK TEST

The magnitude of the riskThe magnitude of the risk Probability of the injury occurringProbability of the injury occurring Seriousness of the injurySeriousness of the injury

Practicability or cost of precautionPracticability or cost of precaution The importance of object to be attainedThe importance of object to be attained General and approved practiseGeneral and approved practise

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TEST OF BREACH OF DUTY OF TEST OF BREACH OF DUTY OF CARECARE

THE REASONABLE MAN TESTTHE REASONABLE MAN TEST THE USUAL HICCUPS IN LIFE (..the standard or foresight of THE USUAL HICCUPS IN LIFE (..the standard or foresight of

the reasonable man.. Eliminates the personal equation and the reasonable man.. Eliminates the personal equation and is independent of the idiosyncrasies of the particular person is independent of the idiosyncrasies of the particular person whose conduct is in question)whose conduct is in question)

Level of intelligence and knowledge (Level of intelligence and knowledge (the standard of care the standard of care applicable is that the standard is that of reasonable man in applicable is that the standard is that of reasonable man in that position)that position)

The defendant who has or profess expertise in a particular The defendant who has or profess expertise in a particular field field (will be judged as against other persons who possess (will be judged as against other persons who possess those same skills)those same skills)

The defendant with an incapacity or infirmityThe defendant with an incapacity or infirmity The child defendantThe child defendant Driver of a vehicle (not under a duty to be perfect to Driver of a vehicle (not under a duty to be perfect to

anticipate the negligence of othersanticipate the negligence of others PROFESSIONAL?PROFESSIONAL?

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DAMAGEDAMAGE

CAUSATION IN FACTCAUSATION IN FACT BUT FOR TESTBUT FOR TEST MULTIPLE CAUSES OR CONCURRENT MULTIPLE CAUSES OR CONCURRENT

BREACHES A DUTY OF CAREBREACHES A DUTY OF CARE CONSECUTIVE BREACHESCONSECUTIVE BREACHES

CAUSATION IN LAWCAUSATION IN LAW DIRECT CONSEQUENCESDIRECT CONSEQUENCES THE REASONABLE FORESIGHT TESTTHE REASONABLE FORESIGHT TEST

TYPE OF DAMAGE MUST BE FORESEEABLETYPE OF DAMAGE MUST BE FORESEEABLE THE EXTENT OF DAMAGE IS IRRELEVANTTHE EXTENT OF DAMAGE IS IRRELEVANT THE METHOD BY WHICH THE DAMAGE OCCURS IS THE METHOD BY WHICH THE DAMAGE OCCURS IS

IRRELEVANTIRRELEVANT

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DAMAGE….DAMAGE…. INTERVENING ACTSINTERVENING ACTS

THROUGH A NATURAL EVENT THAT THROUGH A NATURAL EVENT THAT INDEPENDENT OF HUMAN CONDUCTINDEPENDENT OF HUMAN CONDUCT

THROUGH THIRD PARTYTHROUGH THIRD PARTY INTERVENING ACT OF THE PLAINTIFFINTERVENING ACT OF THE PLAINTIFF

PURE ECONOMIC LOSS? PURE ECONOMIC LOSS? May be incurred either as a consequence of a May be incurred either as a consequence of a

negligent misstatement or megligent actnegligent misstatement or megligent act

(different principles applied)(different principles applied)

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PROFFESIONAL NEGLIGENCEPROFFESIONAL NEGLIGENCE Ordinary case does not involve any special skill.. Ordinary case does not involve any special skill..

Negligence means failure to do some act.Negligence means failure to do some act. The standard of care required of professionals is The standard of care required of professionals is

that of a reasonable professionalthat of a reasonable professional Anybody act as if he/she is a professional will be Anybody act as if he/she is a professional will be

liable as is as he/she is professionalliable as is as he/she is professional NEGLIGENCE may in the form ofNEGLIGENCE may in the form of

Negligent misstatementNegligent misstatement Negligent actNegligent act

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NEGLIGENT NEGLIGENT MISSTATEMENTMISSTATEMENT

SPECIAL RELATIONSHIP SPECIAL RELATIONSHIP RELYING ON OTHER ADVISE p.117RELYING ON OTHER ADVISE p.117 DATO’ SERI AU BA CHI V MALAYAN UNITED DATO’ SERI AU BA CHI V MALAYAN UNITED

FINANCE BHD & ANOR p122FINANCE BHD & ANOR p122

Plaintiff must show Plaintiff must show that he relied on the proper performance of that that he relied on the proper performance of that

service by the defendant;service by the defendant; he is identifiable or belongs to a class of he is identifiable or belongs to a class of

persons whom the defendant knows to be persons whom the defendant knows to be relying on the advise or information, thus relying on the advise or information, thus establishing proximity and foreseeabilityestablishing proximity and foreseeability

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NEGLIGENT ACTNEGLIGENT ACT Pure economic loss is favour in certain cases Pure economic loss is favour in certain cases

Spartan steel p.125Spartan steel p.125 Murphy case p.130Murphy case p.130 Kerajaan Malaysia vs Cheah Foong Chiew p 132 Kerajaan Malaysia vs Cheah Foong Chiew p 132

(Pure economic loss is irrecoverable – based on (Pure economic loss is irrecoverable – based on Murphy)Murphy)

Teh Khem On & Or v Yeoh & Wu Development Teh Khem On & Or v Yeoh & Wu Development Sdn Bhd & Ors (pure economic loss is Sdn Bhd & Ors (pure economic loss is irrecoverable- no direct contractual relationship) irrecoverable- no direct contractual relationship)

Pure economic loss recoverable- Dr Abdul Hamid Pure economic loss recoverable- Dr Abdul Hamid & Anor v Jurusan Malaysia Consultants & Ors & Anor v Jurusan Malaysia Consultants & Ors and Steven Phoa Cheng Loon & 72 Ors v and Steven Phoa Cheng Loon & 72 Ors v Highland Tower Properties Sdn Bhd & 9 orsHighland Tower Properties Sdn Bhd & 9 ors

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PARTIES IN PROJECTPARTIES IN PROJECT

CLIENT

FINANCIER CONTRACTOR

AUTHORITY PROFESSIONAL

Third party

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NEGLIGENCE IN NEGLIGENCE IN CONSTRUCTIONCONSTRUCTION

POTENTIAL WRONGDOER!POTENTIAL WRONGDOER! CLIENT?…..CLIENT?….. CONSULTANT/DESIGNERCONSULTANT/DESIGNER CONTRACTOR/EMPLOYERCONTRACTOR/EMPLOYER WORKERSWORKERS AUTHORITIES????….AUTHORITIES????….

TO WHOM?TO WHOM? PARTIES IN THE CONTRACTPARTIES IN THE CONTRACT PARTIES NOT IN THE PARTIES NOT IN THE

CONTRACTCONTRACT

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CLIENTSCLIENTS CONTRACTOR- CONTRACTOR-

FAIL TO ENSURE FAIL TO ENSURE CONTRACTOR WORK CONTRACTOR WORK PROPERLYPROPERLY

DUTY ASSIGNED DUTY ASSIGNED THROUGH SOTHROUGH SO

DESIGNERDESIGNER NEGLIGENCE BY NEGLIGENCE BY

DESIGNER SHARED BY DESIGNER SHARED BY CLIENTCLIENT

SUB-CONTRACTOR?…SUB-CONTRACTOR?… WORKERS – NOT WORKERS – NOT

RESPONSIBLERESPONSIBLE

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CONSULTANT- WHO?CONSULTANT- WHO? NEGLIGENCENEGLIGENCE

ADVISE(MISSTATEMENT)ADVISE(MISSTATEMENT) CHIN SIN MOTOR SDN BHDCHIN SIN MOTOR SDN BHD (P 123)(P 123)

NEGLIGENT ACTNEGLIGENT ACT D & F Estates Ltd.. (P129)D & F Estates Ltd.. (P129) Murphy vs Brentwood District Murphy vs Brentwood District

Council (p 130)Council (p 130) Kerajaan M’sia v Cheah Foong Kerajaan M’sia v Cheah Foong

Chiew & Ors (p132)Chiew & Ors (p132) Teh Khem On & Anor v Yeoh& Wu Teh Khem On & Anor v Yeoh& Wu

Development Sdn Bhd (p 133)Development Sdn Bhd (p 133) Dr Abdul Hamid Abdul Rashid –Dr Abdul Hamid Abdul Rashid –

p134p134

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NEGLIGENCENEGLIGENCE

ENGINEER - ARCHITECTENGINEER - ARCHITECT PRE-DESIGN PRE-DESIGN

SI, SURVEYSI, SURVEY

DESIGN STAGEDESIGN STAGE DESIGN, CALCULATION AND UNTESTED MATERIALDESIGN, CALCULATION AND UNTESTED MATERIAL

IN SERVICEIN SERVICE ADVISE, CONSENTS FROM AUTHORITIESADVISE, CONSENTS FROM AUTHORITIES

SUPERVISIONSUPERVISION INADEQUATE ATTENDANCE, FAIL TO DETECT DEFECT INADEQUATE ATTENDANCE, FAIL TO DETECT DEFECT

WORKSWORKS

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CONTRACTORSCONTRACTORS EMPLOYEREMPLOYER

THE WAY WORKS BEEN THE WAY WORKS BEEN CARRIED OUT CARRIED OUT

WORKERSWORKERS OCCUPIEROCCUPIER

INVITEEINVITEE LICENSEELICENSEE TRESPASSERTRESPASSER

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NEGLIGENCE TO WORKERSNEGLIGENCE TO WORKERS NEGLIGENCE BY WORKERS NEGLIGENCE BY WORKERS

(VICARIOUS LIABILITY(VICARIOUS LIABILITY NEGLIGENCE DUE TO BREACH OF NEGLIGENCE DUE TO BREACH OF

STATUTORY DUTY – insurance, STATUTORY DUTY – insurance, SOSCO, OSHASOSCO, OSHA

EMPLOYERS NEGLIGENCE EMPLOYERS NEGLIGENCE EMPLOYING WRONG WORKERSEMPLOYING WRONG WORKERS FAIL TO ENSURE MACHINES ARE IN GOOD FAIL TO ENSURE MACHINES ARE IN GOOD

CONDITION & SAFECONDITION & SAFE FAIL TO PROVIDE GOOD WORKING FAIL TO PROVIDE GOOD WORKING

ENVIRONMENTENVIRONMENT

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OCCUPIER’S LIABILITYOCCUPIER’S LIABILITY

OCCUPER –TortOCCUPER –Tort INVITEE – MOHD INVITEE – MOHD

SAINUDINSAINUDIN CHONG FAH LIN V UEMCHONG FAH LIN V UEM DOBB & CO V HEELADOBB & CO V HEELA

LICENSEE – LIABLELICENSEE – LIABLE TRESPASSER – NOT TRESPASSER – NOT

LIABLELIABLE

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CONT’DCONT’D

It does not impose any It does not impose any responsibilities towards trespassers responsibilities towards trespassers

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

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WORKERSWORKERS NO – IF IT IS NO – IF IT IS

ORIGINATED FROM ORIGINATED FROM EMPLOYER’S EMPLOYER’S FAULTFAULT

YES – SHARE SOME YES – SHARE SOME BURDENS IF HE BURDENS IF HE NEGLIGENTLY NEGLIGENTLY PERFORM AN ACTPERFORM AN ACT

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PROOF OF PROOF OF NEGLIGENCENEGLIGENCE

RES IPSA LOQUITORRES IPSA LOQUITOR HOW AND WHY MAXIM APPLY?HOW AND WHY MAXIM APPLY?

THINGS THAT CAUSES DAMAGE UNDER THE CONTROL OF THINGS THAT CAUSES DAMAGE UNDER THE CONTROL OF DEFENDANTDEFENDANT

WILL NOT HAPPEN IF ADEQUATE PRECAUTION TAKENWILL NOT HAPPEN IF ADEQUATE PRECAUTION TAKEN CUAE OF ACCIDENT UNKNOWNCUAE OF ACCIDENT UNKNOWN

WHAT IS THE EFFECT?.WHAT IS THE EFFECT?. THE BURDEN OF PROOF SHIFT TO DEFENDANTTHE BURDEN OF PROOF SHIFT TO DEFENDANT

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DEFENCESDEFENCES

VOLENTI NON-FIT INJURIAVOLENTI NON-FIT INJURIA CONTRIBUTORY NEGLIGENCECONTRIBUTORY NEGLIGENCE INEVITABLE ACCIDENTINEVITABLE ACCIDENT MECHANICAL FAULTSMECHANICAL FAULTS SELF DEFENCESELF DEFENCE

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HIGHLAND TOWERHIGHLAND TOWER

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CASE HISTORYCASE HISTORY

HIGHLAND TOWER BLOCK 1HIGHLAND TOWER BLOCK 1

COLLAPSE OF A COLLAPSE OF A 14-STOREY CONDOMINIUM 14-STOREY CONDOMINIUM BLOCK ON 11 DECEMBER, BLOCK ON 11 DECEMBER, 1993 KILLING 1993 KILLING 48 PEOPLE48 PEOPLE

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STRUCTURE OF BUILDING STRUCTURE OF BUILDING CONSTRUCT CONSTRUCT BY USING BY USING REINFORCED CONCRETE REINFORCED CONCRETE COLUMNS, BEAMS AND COLUMNS, BEAMS AND SLABS.SLABS.

BUILDING SUPPORTED BUILDING SUPPORTED BY RAIL BY RAIL PILES PILES WITH EACH COLUMNS WITH EACH COLUMNS BEING SUPPORTED IN BEING SUPPORTED IN AT LEAST 2 AT LEAST 2 TO 3 RAILTO 3 RAIL PILES. PILES.

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FINDINGSFINDINGS Collapse not due to natural disaster or act of Collapse not due to natural disaster or act of GodGod

Act of sabotage was also ruled out by the Act of sabotage was also ruled out by the police (no evidence of anypolice (no evidence of any explosive found) explosive found)

No significant inadequacy in the design of the No significant inadequacy in the design of the super structuresuper structure

Slope and rubble walls behind, and in front of Slope and rubble walls behind, and in front of collapsed block were not properly designed collapsed block were not properly designed and supervisedand supervised

Initial landslide of slope imposed additional Initial landslide of slope imposed additional pressure in soil resulted in the failure of rail pressure in soil resulted in the failure of rail piles foundation. (The design were never piles foundation. (The design were never intended to carry any lateral load)intended to carry any lateral load)

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DEVELOPER

CONSULTANT ARCHITECT

ENGINEER

NEIGHBOURING PROPERTY OWNERS

LOCAL AUTHORITY

HIGHLAND TOWER

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PARTIES CONTRIBUTORY PARTIES CONTRIBUTORY TO THE COLLAPSETO THE COLLAPSE

A) Developer/owner of the condominiumsA) Developer/owner of the condominiums

Fail to engage a qualified submitting personFail to engage a qualified submitting person

Proceeding with construction work without Proceeding with construction work without getting the required approval and without getting the required approval and without proper supervisionproper supervision

Fail to implement and fully comply with the Fail to implement and fully comply with the drainage plans approved by Department of drainage plans approved by Department of Drainage and Irrigation (JPS)Drainage and Irrigation (JPS)

Fail to carry out proper maintenance of Fail to carry out proper maintenance of surface drainage behind condominiumssurface drainage behind condominiums

DEFENDANTS WERE:

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B) Consultant ArchitectB) Consultant Architect

Failed in his duty as a consultant & had also Failed in his duty as a consultant & had also refuse to comply with requirement refuse to comply with requirement impossedimpossed by the authorities on drainage of by the authorities on drainage of the area.the area.

C) EngineerC) Engineer

Signing the road and drainage plans for the Signing the road and drainage plans for the project though he did not design nor project though he did not design nor supervise the constructionsupervise the construction

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D) Neighbouring Property OwnersD) Neighbouring Property Owners

Development carried out on their properties Development carried out on their properties had resulted in changes to the direction of had resulted in changes to the direction of the natural water path resulting in the the natural water path resulting in the concentration of run-off water into the slope concentration of run-off water into the slope behind the collapse blockbehind the collapse block

E) Local AuthorityE) Local Authority

Weakness in complying with enforcement of Weakness in complying with enforcement of the building by-laws due to lack of staff the building by-laws due to lack of staff leading to approval of plans & CF.leading to approval of plans & CF.

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Assignment 1Assignment 1 There are liabilities in construction practise that can be There are liabilities in construction practise that can be

demonstrated clearly in some cases. The liabilities demonstrated clearly in some cases. The liabilities include:include: negligence as in negligence as in Dr Abdul Hamid Abdul Rashid & Ors Dr Abdul Hamid Abdul Rashid & Ors

vs Jurusan Malaysia Consultants vs Jurusan Malaysia Consultants andand Mohd Sainuddin Mohd Sainuddin b. Ahmad vs Consolidated Hotels Ltd & Anorb. Ahmad vs Consolidated Hotels Ltd & Anor, ,

trepasss as in trepasss as in Kwong Hing Realty Sdn Bhd vs Malaysia Kwong Hing Realty Sdn Bhd vs Malaysia Building Society Bhd (America International Assurance Building Society Bhd (America International Assurance Co LtdCo Ltd

nuisance and strict liability as in nuisance and strict liability as in Wu Siew Ying vs Wu Siew Ying vs Gunung Tunggal Quarry & Construction Sdn BhdGunung Tunggal Quarry & Construction Sdn Bhd & Ors & Ors and and Ryland vs FletcherRyland vs Fletcher

Critically discuss the liabilities mentioned and how Critically discuss the liabilities mentioned and how the conflicts in relation to the liabilities are the conflicts in relation to the liabilities are addressed and resolved by the courtsaddressed and resolved by the courts..