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WHAT IS NEGLIGENCE? Careless conduct Negligence as a tort More than heedless or carelessconduct – complex concept of duty,breach and damage When it is occur – the day theplaintiff suffer loss – damageexistence
NEGLIGENCE WHAT IS IT? – the breach of a legal duty to takecare which results in damage, undesired by thedefendant, to the plaintiff (defendant? Plaintiff?) ELEMENTSTHERE IS DUTY OF CARETHE DUTY OF CARE HAS BEEN BREACHEDTHE BREACH RESULTS IN DAMAGE TO PLAINTIFF(economy, physical, financial, property)
DUTY OF CARE EXIST IF…. THE DAMAGE IS FORESEEABLE - FORESEEABLEVS UNFORESEEABLE IF FORESEEABLE – THERE IS DUTY OF CARE ~ BOURHILL V YOUNG ZAZLIN ZAHIRA HJ KAMARUZAMAN THERE IS CLOSE AND DIRECT REALTIONSHIPOF PROXIMITY BETWEEN THE PLAINTIFF ANDTHE 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 MUSTBE JUST AND REASONABLE.SATHU V HAWTHORNDEN RUBBERSESTATE CO LTDLOK KWAN MOI & ORS V RAMLI B. JAMIL &ORS & GOVERNMENT OF MALAYSIA
WHAT ABOUT OMISSION?... LIMITATIONS OF DUTY CAREOMISSION○ YES – CONTRARY TO EXISTING DUTY TOACT- SPECIAL RELATIONSHIP BETWEEN 2 PARTIES- DEFENDANT HAS CONTROL OVER 3RDPARTY- DEFENDANT HAS CONTROL OVER LAND ETC- FAILED TO PERFORM AN ACT AS PROMISED○ NO – SMITH VS LITTLEWOODS ORGASNIATION LTD
EXCEPTIONS STATUTORY POWER- IMMUINITYPSYCHIATRC ILLNESS – MENTAL, NEUROSISAND PERSONALITY CHANGES.REASONABLY FORESEEA TEST- 3RDPARTY IN THE SAME POSITIONPROXIMITY BETWEEN PLAINTIFF AND THEACCIDENT – TIME AND SPACETHE MEAN BY WHICH PLAINTIFF COME TOKNOWMEDICALLY RECOGNISED HOW TO DETERMINE IN MONETARY TERM
TEST OF BREACH OF DUTY OFCARE REASONABLE MAN TESTClasses of defendantPractice and knowledge at the time of allegedbreach RISK TEST○ The magnitude of the riskProbability of the injury occurringSeriousness 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 thereasonable man.. Eliminates the personal equation and isindependent of the idiosyncrasies of the particular person whoseconduct is in question) Level of intelligence and knowledge (the standard of care applicableis that the standard is that of reasonable man in that position) The defendant who has or profess expertise in a particular field (willbe 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 thenegligence of others PROFESSIONAL?
DAMAGE CAUSATION IN FACTBUT FOR TESTMULTIPLE CAUSES OR CONCURRENTBREACHES A DUTY OF CARECONSECUTIVE BREACHES CAUSATION IN LAWDIRECT CONSEQUENCESTHE REASONABLE FORESIGHT TEST○ TYPE OF DAMAGE MUST BE FORESEEABLE○ THE EXTENT OF DAMAGE IS IRRELEVANT○ THE METHOD BY WHICH THE DAMAGE OCCURS ISIRRELEVANT
DAMAGE…. INTERVENING ACTS THROUGH A NATURAL EVENT THATINDEPENDENT OF HUMAN CONDUCTTHROUGH THIRD PARTYINTERVENING ACT OF THE PLAINTIFF PURE ECONOMIC LOSS?May be incurred either as a consequence of anegligent 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 isthat of a reasonable professional Anybody act as if he/she is a professional will beliable as is as he/she is professional NEGLIGENCE may in the form ofNegligent misstatementNegligent act
NEGLIGENT MISSTATEMENT SPECIAL RELATIONSHIPRELYING ON OTHER ADVISE p.117DATO’ SERI AU BA CHI V MALAYAN UNITEDFINANCE BHD & ANOR p122 Plaintiff must showthat he relied on the proper performance of thatservice by the defendant;he is identifiable or belongs to a class of personswhom the defendant knows to be relying on theadvise or information, thus establishing proximityand foreseeability
NEGLIGENT ACT Pure economic loss is favour in certain casesSpartan steel p.125Murphy case p.130Kerajaan Malaysia vs Cheah Foong Chiew p 132(Pure economic loss is irrecoverable – based onMurphy)Teh Khem On & Or v Yeoh & Wu Development SdnBhd & Ors (pure economic loss is irrecoverable- nodirect contractual relationship)Pure economic loss recoverable- Dr Abdul Hamid &Anor v Jurusan Malaysia Consultants & Ors andSteven Phoa Cheng Loon & 72 Ors v Highland TowerProperties Sdn Bhd & 9 ors
PARTIES IN PROJECTCLIENTFINANCIER CONTRACTORAUTHORITY PROFESSIONALThirdparty
NEGLIGENCE INCONSTRUCTION POTENTIAL WRONGDOER!CLIENT?…..CONSULTANT/DESIGNERCONTRACTOR/EMPLOYERWORKERSAUTHORITIES????…. TO WHOM?PARTIES IN THE CONTRACTPARTIES NOT IN THECONTRACT
CONSULTANT- WHO? NEGLIGENCEADVISE(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& WuDevelopment Sdn Bhd (p 133)○ Dr Abdul Hamid Abdul Rashid –p134
NEGLIGENCE ENGINEER - ARCHITECTPRE-DESIGN○ SI, SURVEYDESIGN STAGE○ DESIGN, CALCULATION AND UNTESTED MATERIALIN SERVICE○ ADVISE, CONSENTS FROM AUTHORITIESSUPERVISION○ INADEQUATE ATTENDANCE, FAIL TO DETECT DEFECTWORKS
CONTRACTORS EMPLOYERTHE WAY WORKS BEENCARRIED OUTWORKERS OCCUPIERINVITEELICENSEETRESPASSER
NEGLIGENCE TO WORKERS NEGLIGENCE BY WORKERS(VICARIOUS LIABILITY NEGLIGENCE DUE TO BREACHOF STATUTORY DUTY – insurance,SOSCO, OSHA EMPLOYERS NEGLIGENCEEMPLOYING WRONG WORKERSFAIL TO ENSURE MACHINES ARE INGOOD CONDITION & SAFEFAIL TO PROVIDE GOOD WORKINGENVIRONMENT
OCCUPIER’S LIABILITY OCCUPER –TortINVITEE – MOHDSAINUDIN○ CHONG FAH LIN V UEM○ DOBB & CO V HEELALICENSEE – LIABLETRESPASSER – NOTLIABLE
CONT’DIt does not impose any responsibilitiestowards trespassersalthough a special case would probably bemade if a child trespasser was injured dueto the contractor’s negligence, but thiscannot be turned the other way round,permitting the builder to leave parts of hissite in a deliberately dangerous condition todeter or trap trespassers.
WORKERS NO – IF IT ISORIGINATED FROMEMPLOYER’SFAULT YES – SHARESOME BURDENS IFHE NEGLIGENTLYPERFORM AN ACT
PROOF OF NEGLIGENCE RES IPSA LOQUITORHOW AND WHY MAXIM APPLY?○ THINGS THAT CAUSES DAMAGE UNDER THE CONTROL OFDEFENDANT○ WILL NOT HAPPEN IF ADEQUATE PRECAUTION TAKEN○ CUAE OF ACCIDENT UNKNOWNWHAT IS THE EFFECT?.○ THE BURDEN OF PROOF SHIFT TO DEFENDANT
CASE HISTORYHIGHLAND TOWER BLOCK 1 COLLAPSE OF A14-STOREY CONDOMINIUMBLOCK ON 11DECEMBER,1993 KILLING 48 PEOPLE
STRUCTURE OF BUILDINGCONSTRUCT BYUSING REINFORCEDCONCRETE COLUMNS,BEAMS AND SLABS.BUILDING SUPPORTEDBY RAILPILESWITH EACH COLUMNSBEING SUPPORTED INAT LEAST 2TO 3 RAILPILES.
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 thesuper structure Slope and rubble walls behind, and in front ofcollapsed block were not properly designed andsupervised Initial landslide of slope imposed additionalpressure in soil resulted in the failure of railpiles foundation. (The design were neverintended to carry any lateral load)
PARTIES CONTRIBUTORY TO THECOLLAPSEA) Developer/owner of the condominiums Fail to engage a qualified submitting person Proceeding with construction work withoutgetting the required approval and without propersupervision Fail to implement and fully comply with thedrainage plans approved by Department ofDrainage and Irrigation (JPS) Fail to carry out proper maintenance of surfacedrainage behind condominiumsDEFENDANTS WERE:
B) Consultant ArchitectFailed in his duty as a consultant & had alsorefuse to comply with requirement impossedby the authorities on drainage of the area.C) EngineerSigning the road and drainage plans for theproject though he did not design norsupervise the construction
D) Neighbouring Property Owners Development carried out on their properties hadresulted in changes to the direction of thenatural water path resulting in the concentrationof run-off water into the slope behind thecollapse blockE) Local Authority Weakness in complying with enforcement of thebuilding by-laws due to lack of staff leading toapproval of plans & CF.
Assignment 1 There are liabilities in construction practise that can bedemonstrated clearly in some cases. The liabilities include: negligence as in Dr Abdul Hamid Abdul Rashid & Ors vsJurusan Malaysia Consultants and Mohd Sainuddin b. Ahmadvs Consolidated Hotels Ltd & Anor, trepasss as in Kwong Hing Realty Sdn Bhd vs MalaysiaBuilding Society Bhd (America International Assurance Co Ltd nuisance and strict liability as in Wu Siew Ying vs GunungTunggal Quarry & Construction Sdn Bhd & Ors and Ryland vsFletcher Critically discuss the liabilities mentioned and how theconflicts in relation to the liabilities are addressed andresolved by the courts.