7/27/2019 MODULE 5 - LAW OF TORT (VICARIOUS, STRICT & OCCUPIER).ppt
1/27
PART 3 : LAW OF TORT
1
QSM 457
Nature of Tortious Negligence Trespass Nuisance
7/27/2019 MODULE 5 - LAW OF TORT (VICARIOUS, STRICT & OCCUPIER).ppt
2/27
Originated from tort and nuisance now, strict liability
imposes more restricted rules.
Liability which is imposed on the defendant without any
proof of fault on his part, even all reasonable precautions
to avoid or minimise the risks have been taken into
account.
2
7/27/2019 MODULE 5 - LAW OF TORT (VICARIOUS, STRICT & OCCUPIER).ppt
3/27
Nuraisyah Chua Abdullah, Questions & Answer on Malaysian
Courts, Statutes, Cases & Contracts:, Tort & Criminal Law:
Normally a defendant is not liable unless he does something
wrong. However, there is one exception to this general rule
where a defendant will be liable even though he violated noduty and did nothing wrong. This exception is sometimes
called strict liability and sometimes called absolute liability.
The application of strict liability to these items are called
products liability
Similar to strict liability, it imposes liability on the seller of a
defective product although the seller violated no duty and did
nothing wrong.
3
7/27/2019 MODULE 5 - LAW OF TORT (VICARIOUS, STRICT & OCCUPIER).ppt
4/27
In regards to strict liability, Blackburn J in Rylands v
Fletcher[1868] L.R. 3 H.L. 330 said that:
the rule of law is, that a person who for his own purposes
brings on his lands and collects and keeps there anythinglikely to do mischief it it escapes, must keep it in a peril, and,
if he does not do so, is prima facie answerable for all the
damage which is the natural consequence of its escape.
This is known as the rule in Rylands v Fletcher.
4
7/27/2019 MODULE 5 - LAW OF TORT (VICARIOUS, STRICT & OCCUPIER).ppt
5/27
In Rylands v Fletcher, D had a reservoir built on his land by
independent contractors for purpose of supplying water to
his mill. But, when the reservoir was filled, the water
escaped down through a disused mine shaft located beneath
the reservoir which connects to Ps coal mine and flooded it.D was held to be liable to P, although Ds actions were
without any fault or negligent.
After this case and in all subsequent cases, non-natural use
of land was added as the requirements needed in order toestablish liability under this rule, making the rule more
restricted.
5
7/27/2019 MODULE 5 - LAW OF TORT (VICARIOUS, STRICT & OCCUPIER).ppt
6/27
There are five elements required to establish liability under this rule
which are:
a) Dangerous objects anything that may cause damage if it
escapes (i.e; gas, fumes, explosives, fire, water, electricity, etc).
- Case: Hock Tai v. Tan Sum Lee & Anor[1957] MLJ 135
: The defendant stored petrol for the purposes of his business at
the ground floor, where the plaintiff rented and lived on the first
floor.
: The defendants premises caught fire and the fire spread to the
first floor and the plantiffs wife and child died.
: Held - defendant liable under the rule ofRyland v. Fletcher.
b) Intentional storage only applies to an object or thing which
the defendant purposely keeps and collects.
6
7/27/2019 MODULE 5 - LAW OF TORT (VICARIOUS, STRICT & OCCUPIER).ppt
7/27
c) Escape the object has escaped from a place where the defendant
has control and authority to a place where the defendant has no
control and authority (read: Lembaga Tanah Persekutuan v TNB
[1997] 2 MLJ 783)
d) Non-natural use of land it must be some special use bringingwith it increased danger to others and must not merely be the
ordinary use of the land or such a use as is proper for general
benefit of the community (read:Abdul Rahman Che Ngah & Ors v.
Puteh Samat[1978] 1 MLJ 225)
e) Foreseeability of damages the type of damage must beforeseeable (read: Cambridge Water Co. Ltd. V Eastern Countries
Leather Plc [1994] 1 All ER 53 this case has confirmed that for
liability under the rule in Rylands v Fletcher, the type of damage
must be foreseeable)
7
7/27/2019 MODULE 5 - LAW OF TORT (VICARIOUS, STRICT & OCCUPIER).ppt
8/2788
flooded
7/27/2019 MODULE 5 - LAW OF TORT (VICARIOUS, STRICT & OCCUPIER).ppt
9/27
Certain defences available to the defendant in order to escape
strict liability:
a) Fault of the plaintiff the damage caused by the plaintiffs
own action or wrongdoing.
b) Consent by the plaintiff expressly or impliedlyc) Act of third party a person that acts outside the
defendants control (E.g. trespassers).
d) Act of God the escape occurs through natural means which
is unforeseeable.
e) Statutory authority the defendant acts under the
authority of a statute.
Even if the defendant escapes strict liability, he may still be found
liable for nuisance or ordinary negligence, or for other torts.
9
7/27/2019 MODULE 5 - LAW OF TORT (VICARIOUS, STRICT & OCCUPIER).ppt
10/27
Lee Mei Pheng, General Principles of Malaysian Law:
Vicarious liability specifies the liability which A
(employer) may incur to C (buyer) for damage suffered by
C (buyer) due to the negligence or other tort of B(employee).
Not necessarily that A have participated in the commission
of the tort nor the breach in law of a duty owed by A to C.
The only requirement is that A stands in a particular
relationshipto B and thatBs tort should be referable in a
certain manner to that relationship.
Liability of an employer for the torts committed by his
employees in the course of their employment.
10
7/27/2019 MODULE 5 - LAW OF TORT (VICARIOUS, STRICT & OCCUPIER).ppt
11/27
Sinha & Dheeraj, Legal Dictionary:
Vicarious liability Liability of the master for the acts
of the servant or agent done in the course of his
employment.
An employer is strictly liable for torts committed by
those under his command, when they are found to be
his employees.
No specific test can adequately cover all types and
instances of employment. The tests used will rest uponthe individual aspects of each case, looking at all the
factors as a whole.
11
7/27/2019 MODULE 5 - LAW OF TORT (VICARIOUS, STRICT & OCCUPIER).ppt
12/27
Requirements that must be fulfilled to commit the act as
a vicarious liability:-
1) Wrongful act - all elements of tort must be fulfilled
2) Special relationship - relationship must existsbetween the defendant & tortfeasor (i.e; employer-
employee relationship).
3) Existence of a contract of service
12
7/27/2019 MODULE 5 - LAW OF TORT (VICARIOUS, STRICT & OCCUPIER).ppt
13/27
An employer is not responsible for the torts of his
independent contractor (who are under contracts for
services i.e. not contract of service ).
To determine whether the contract is a contract for services
or not, the employer may look at the conditions that need tobe satisfied in establishing existence of contract of service.
13
Independent contractor:
a person who is working for the
employer but he is not controlled by
the employer in the method or conduct
relating to the performance for
services (Stevenson, Jordan and
Harrison Ltd v. MacDonalds and Evans
[1952] 1 TLR 101)
7/27/2019 MODULE 5 - LAW OF TORT (VICARIOUS, STRICT & OCCUPIER).ppt
14/27
The conditions (CONTRACT OF SERVICE):-
(based on Ready Mixed Concrete (Souh East) Ltd. v. Minister of Pensions
and National Insurance [1968] 2 QB 497:
a) The employee agrees that in consideration of a wage or other
remuneration, he will provide his own work and skill in theperformance of service for his employer (to use his own expertise).
b) He agrees, expressly or impliedly that in the performance of that
service, he will be subject to the other controls in a sufficient
degree to make that other employer (to comply with the employers
instructions).
c) The other provisions of the contract are consistent with its being
a contract of service. For example, the employer provides the tools
and materials for use by the employee in his work (conditions in
the agreement are consistent with the nature of job) .
14
7/27/2019 MODULE 5 - LAW OF TORT (VICARIOUS, STRICT & OCCUPIER).ppt
15/27
Lord Esher M.R. in Dyer and Wife v Munday and Anor[1895] 2
Q.B. 742, C.A ruled that:
The liability of a master does not merely rest on the question of
authority, because the authority given is generally to do the
masters business rightly; but the law says that if, in the course of
carrying out his employment, the servant commits an act that isbeyond the scope of his authority, the master is liable.
the law says that for all acts done by a servant in the conduct of
his employment and for the benefit of his master, the master is
liable, although the authority that he gave is exceeded.
In Goh Choon Seng v Lee Kim Soo [1925] A.C. 550:
- where a servant is doing some work which he is appointed to do,
but does it in a way which his master has not authorised and would
not have authorised, the master is nevertheless responsible.
15
7/27/2019 MODULE 5 - LAW OF TORT (VICARIOUS, STRICT & OCCUPIER).ppt
16/27
Other examples of vicarious liability:
Where an employee is careless in the course of employment, the
employer is liable (Century Insurance Co. Ltd. v Northern Ireland
Road Transport Board[1942] A.C. 509.
Employers are also liable for the mistakes made by their employees(Bayley v Manchester, Sheffield and Lincolnshire Ry. [1873] L.R. 8 C.P.
148) and for the willful wrongdoings of the employee (Limpus v
London General Omnibus Co. [1862] 1 H & C 526).
Employers may also be liable for theftby their employees (Morris v
C.W. Martin & Sons Ltd. [1966] 1 Q.B. 716) and the employeesfraud(Lloyd v Grace, Smith & Co. [1912] A.C. 716), only where the acts come
within the business conducted by the employers.
Worker does an act for his own benefit thou not necessarily that he
has acted outside the scope of his employment (Zakaria b Che Soh v.
Chooi Kum Loong & Anor[1986] 1 MLJ 324)
16
7/27/2019 MODULE 5 - LAW OF TORT (VICARIOUS, STRICT & OCCUPIER).ppt
17/27
In construction, even an employer is not responsible for
the torts of his independent contractor (i.e; delay to
complete on time), the employer may still be sued for
damages caused by his independent contractor where
the employer himself was in breach of some duty, which
he himself owed to the plaintiff (i.e; wrongly selected the
Nominated Sub-Contractor).
17
7/27/2019 MODULE 5 - LAW OF TORT (VICARIOUS, STRICT & OCCUPIER).ppt
18/27
18
This however, subjected to four situations (Norchaya Talib,2nd Edition, Law of Torts in Malaysia, p. 384):-
i) When the employer authorising the commission of tort
ii) Torts which do not require intentional or negligent
conduct by the tortfeasor (similar with the nuisance &
strict liability requirement)
iii)The damage is caused by the incompetence of independent
contractor (the employers negligence in failing to employ
competent and skilled contractor)
iv)The duty is non-delegable (the employer cannot shift his
duty of care to the independent contractor i.e; hazardous
site area)
7/27/2019 MODULE 5 - LAW OF TORT (VICARIOUS, STRICT & OCCUPIER).ppt
19/27
Lee Mei Pheng, General Principles of Malaysian Law (5th ed.):
19
Occupiers liability is the liability of an occupier
of premises for any damage suffered by visitors
to the premises.
Occupier is a person who has sufficient degree of
control over premises to put him under a duty of
care towards those who come lawfully upon the
premises.
7/27/2019 MODULE 5 - LAW OF TORT (VICARIOUS, STRICT & OCCUPIER).ppt
20/27
Who is Occupier?
The definition must be sought in case law.
The currently applicable test for the status of
"occupier" is the degree of occupational control. The more control one has over certain premises, the
more likely he is likely to be considered "occupier"
for the purposes of Occupiers' Liability Acts.
More than one person at the same time can have thestatus of occupier.
20
7/27/2019 MODULE 5 - LAW OF TORT (VICARIOUS, STRICT & OCCUPIER).ppt
21/27
Owners
Owners of let property will be occupiers of those
areas which they have not let by demise and over
which they have retained control (such as thecommon staircase in flat building).
If the tenancy agreement imposes upon the owner
the duty to carry out repairs, he will be co-
responsible with the tenant for the conditions of
the premises as occupier.
21
7/27/2019 MODULE 5 - LAW OF TORT (VICARIOUS, STRICT & OCCUPIER).ppt
22/27
Tenants and licensees
Both tenants and licensees will be occupiers of
property where they live. Licensees will usually
share the status of occupier with the owner.
Independent contractors
Independent contractors working on the property
may also be covered by the concept of "occupier" if
they exercise sufficient control over the premises.
22
7/27/2019 MODULE 5 - LAW OF TORT (VICARIOUS, STRICT & OCCUPIER).ppt
23/27
Duties of an Occupier?
Can be categorised into four types:
a) Duty owed to one who has entered the occupiers
premises in pursuance of a contract with him. There is
an implied warranty that the premises are as a
reasonable care and skill could make them.
b) Duty owed to an invitee, who is a person without
any contract entered the premises on business interest
to himself and the occupier. He is entitled to expect the
occupier to prevent damage from normal danger which
he knew or ought to have known.
23
7/27/2019 MODULE 5 - LAW OF TORT (VICARIOUS, STRICT & OCCUPIER).ppt
24/27
Duties of an Occupier?(contd):
c) Duty owed to the licensee, who is a person who entered
with the interest with the occupier. The duty is to warn him
of any concealed danger or trap of which he actually knew.
d) Duty owed to trespasser. The duty owed is only a duty toabstain from deliberate or reckless injury.
24
In British Railway Board v Herrington
[1972] 1 All ER 749 HL
: the court held that the defendant wasliable to use proper steps of common
humanity and common sense to avoid
danger (i.e; warnings) to people who
might be on his premises
7/27/2019 MODULE 5 - LAW OF TORT (VICARIOUS, STRICT & OCCUPIER).ppt
25/27
THANK YOU
&
GOOD LUCK25
Wheat v. E Lacon & Co Ltd[1966] 1 All ER 582
- Ps owned a public house which Mr R was their manager. Mr
R n his wife were allowed by agreement to live in the upperfloor, access to which was by a door separate from the
licensed premised. An accident was sustained by a paying
guest on the stair case leading to the upper floor. It was held
that although C was injured in the private area of the
premises, Ds ( along Mr R & Mrs R) were liable. They had
enough residual control over that part of the premises to betreated as occupiers.
Other case law:
7/27/2019 MODULE 5 - LAW OF TORT (VICARIOUS, STRICT & OCCUPIER).ppt
26/27
THANK YOU
&
GOOD LUCK26
A M F International Ltd v Magnet Bowling Ltd[1968] 1 WLR 1028
- both a contractor & owner were held to have sufficient control to be
joint occupiers of the premises in which the claimant's equipment was
damaged by rainwater entering the building via leaking doorway.
-Visitor- those person who were invitees & licensees that is anyonewhom an occupier gave any invitation or permission to enter or use his
premise.
-an occupier is therefore someone who has the immediate supervision &
control & the power of of permitting of prohibiting the entry of the
persons.
7/27/2019 MODULE 5 - LAW OF TORT (VICARIOUS, STRICT & OCCUPIER).ppt
27/27
27
THE END
Top Related