LAW OF TORT

Contents

◉ What is tort?
◉ Negligence
◉ Trespass
◉ Nuisance
◉ Occupier’s Liability
◉ Vicarious Liability
◉ Strict Liability
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 Negligence Vicarious Liability
HE
A DID IT
ITS
HIM!

Trespass
Strict Liability TORT
LAW

Nuisance Occupier’s Liability

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4 Strict Liability

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 Strict Liability
◉ 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 no duty and
did nothing wrong.
◉ This exception is called strict liability and sometimes called
absolute liability (Nuraisyah Chua Abdullah, 1975).
◉ It originated from tort and nuisance, and now strict liability
imposes more restricted rules.

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 Strict Liability
◉ It is 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, normally in
situation considered to be inherently dangerous.
◉ Products liability is similar to strict liability, where it imposes
liability on the seller of a defective product although the seller
violated no duty and did nothing wrong.
◉ Blackburn, J. in Rylands v Fletcher [1868] LR 3 HL 330 said that:

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… the rule of law is, that a person who for his own purposes
brings on his lands and collects and keeps there anything likely
to do mischief if 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.

“
Blackburn, J.
Strict Liability
Rylands v Fletcher [1868] L.R. 3 H.L. 330

Case facts:
The defendant had a reservoir built on his land by
independent contractors for purpose of supplying water to
his mill. The contractor found disused mines located beneath
the reservoir when digging, but failed to seal them properly.
When the reservoir was filled, the water escaped down
through the disused mine shaft which connects to the
plaintiff’s coal mine and flooded it.

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Strict Liability
Rylands v Fletcher [1868] L.R. 3 H.L. 330

Court held:
The defendant was held
to be liable to the
plaintiff, although the
defendant’s actions were
without any fault or
negligent.

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 Strict Liability
◉ After this case and in all subsequent cases, non-natural use of
land was added as an element needed in establishing strict
liability, making the rule more restricted.
◉ Overall, there are five elements required to establish liability
under this rule which are:
 Dangerous object
 Intentional storage
 Escape
 Non-natural use of land
 Foreseeability of damages

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 Strict Liability
Elements of strict liability:
◉ Dangerous object – Need not be dangerous per se because
they are safe if properly kept, but becomes dangerous if it
escapes, causing damages (i.e; gas, fumes, explosives, fire,
water, electricity, etc.) (Hock Tai v. Tan Sum Lee & Anor
[1957] MLJ 135).
◉ Intentional storage – only applies to an object or thing which
the defendant purposely keeps and collects. Does not apply to
anything that is naturally on the land.

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 Strict Liability
Hock Tai v Tan Sum Lee & Anor [1957] MLJ 135

Case facts:
The defendant stored petrol for the purpose of his business at the
ground floor, where the plaintiff rented and lived on the first
floor. The premise caught on fire and spread to the first floor,
causing the death of the plaintiff’s wife and child.
Court held:
The defendant was liable under the rule of Rylands v Fletcher.

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 Strict Liability
Elements of strict liability:
◉ Escape – the object has escaped from a place where the
defendant has control to a place where the defendant has no
control (Lembaga Tanah Persekutuan v TNB [1997] 2 MLJ
783).
If the escape was due to an act of a stranger (i.e. trespasser)
or due to an act of nature, the defendant will not be liable.

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 Strict Liability
Lembaga Tanah Persekutuan v TNB [1997] 2 MLJ 783

Case facts:
The plaintiff’s rubber trees were destroyed by fires started from the
defendant’s land. The defendant’s worker had cut vegetation on his land
and left it there under the hot and dry weather.
Court held:
The defendant was liable because he should have known that fire could
breakout from the cut vegetation and would spread to the plaintiff’s
property where he has no control over.

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 Strict Liability
Elements of strict liability:
◉ Non-natural use of land – it must be some special use bringing
with it increased danger to others. Not the ordinary use of the land
or such for general benefit of the community (Abdul Rahman Che
Ngah & Ors v Puteh Samat [1978] 1 MLJ 225).
◉ Foreseeability of damages – the type of damage must be
foreseeable (Cambridge Water Co. Ltd. v Eastern Countries
Leather Plc [1994] 1 All ER 53 – this case has confirmed that the
type of damage must be foreseeable).

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 Strict Liability
◉ Certain defenses for the defendant in order to escape strict liability:
 Fault of the plaintiff – the damage caused by the plaintiff’s own action
 Consent by the plaintiff – expressly or impliedly
 Act of third party – a person that acts outside the defendant’s control (e.g.
trespassers).
 Act of God – the escape occurs through natural means which is
unforeseeable.
 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.

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5 Vicarious Liability

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 Vicarious Liability
◉ It is liability of an employer for the torts committed by his
employees in the course of their employment (Lee Mei Pheng,
2005).
◉ An employer is strictly liable for torts committed by those under his
command, when they are found to be his employees (Sinha &
Dheeraj, 1996).
◉ No specific test can adequately cover all types and instances of
employment. The tests used will rest upon the individual aspects of
each case, looking at all the factors as a whole.

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 Vicarious Liability
◉ It 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 relationship
to B and that B’s tort should be referable in a certain manner to
that relationship (Lee Mei Pheng, 2005).

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 Vicarious Liability
Elements of vicarious liability:
◉ Wrongful act – all elements of tort must be fulfilled.
◉ Special relationship – relationship must exists between the
defendant & tortfeasor (i.e. employer-employee relationship).
◉ Existence of a contract of service – an agreement between
employer and employee. Must contain conditions for contract of
service (Ready Mixed Concrete (South East) Ltd. v. Minister of
Pensions and National Insurance [1968] 2 QB 497).

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 Vicarious Liability
The Conditions for Contract of Service:
◉ The employee agrees that in consideration of a wage or other
remuneration, he will provide his own work and skill in the performance of
service for his employer (to use his own expertise).
◉ He agrees that in the performance of that service, he will be subject to
sufficient degree of control (to comply with the employer’s instruction).
◉ Other provisions: 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).

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 Vicarious Liability
◉ An employer is not responsible for the torts of his
independent contractor (who are under contracts for
service, not contract of service).
◉ 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).

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 Vicarious Liability
◉ “ The liability of a master does not merely rest on the question of
authority, because the authority given is generally to do the master’s
business rightly; but the law says that if, in the course of carrying out
his employment, the servant commits an act that is beyond the scope
of his authority, the master is liable”.
“… 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” (Dyer and Wife v Munday and
Anor [1895] 2 Q.B. 742, C.A).

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 Vicarious Liability
◉ 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 (Goh Choon Seng v
Lee Kim Soo [1925] A.C. 550).
◉ 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.
◉ For the mistakes made by their employees (Bayley v Manchester,
Sheffield and Lincolnshire Ry. [1873] L.R. 8 C.P. 148).

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 Vicarious Liability
◉ For the willful (voluntary) wrongdoings of the employee (Limpus v
London General Omnibus Co. [1862] 1 H & C 526).
◉ Employers may also be liable for theft by their employees (Morris v C.W.
Martin & Sons Ltd. [1966] 1 Q.B. 716) and the employee’s fraud (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).

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 Vicarious Liability
Zakaria b Che Soh v. Chooi Kum Loong & Anor
[1986] 1 MLJ 324
Case facts:
The plaintiff was a driver for a research institute. After sending the director
home, he got into an accident while driving home for lunch.
Court held:
The state government (his employer) was held liable. Even though the
purpose of that trip had nothing to do with his employer, but it was
something that was expected to be done in the course of employment and
the accident occurred within the course of employment.

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 Vicarious Liability
◉ 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 owed to the plaintiff.
◉ e.g. wrongly selected the Nominated Sub-Contractor.

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 Vicarious Liability
This however, subjected to three situations (Norchaya Talib, 2010):
◉ When the employer authorising the commission of tort;
◉ The damage caused by the incompetence of independent
contractor (the employer’s negligence in failing to employ
competent and skilled contractor); and
◉ The duty is non-delegable (the employer cannot shift his duty of
care to the independent contractor – i.e; hazardous site area).

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6 Occupier’s Liability

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 Occupier’s Liability
◉ Occupier’s 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 (Lee Mei
Pheng, 2005) .
◉ The definition of occupier must be sought in case law.

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 Occupier’s Liability
◉ 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 (Wheat v. E Lacon & Co Ltd
[1966] 1 All ER 582).
◉ More that one person at the same time can be the occupier.

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 Occupier’s Liability
Wheat v. E Lacon & Co Ltd [1966] 1 All ER 582
Case facts:
Plaintiff owned a premise which respondent was the manager.
Respondent and his wife were allowed by agreement to live in the upper
floor, access to which was by a door separate from the licensed premised.
An accident was sustained by a paying guest on the staircase leading to
the upper floor.
Court held:
Although the guest was injured in the private area of the premises, the
respondent was held liable. He had enough residual control over that part
of the premises to be treated as occupiers.

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Occupier’s Liability
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 the common 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.

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 Occupier’s Liability
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 (AMF International Ltd v Magnet
Bowling Ltd [1968] 1 WLR 1028).

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 Occupier’s Liability
A M F International Ltd v Magnet Bowling Ltd [1968]
1 WLR 1028
Court held:
◉ 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: were invitees & licensees that is anyone whom an occupier gave
any invitation or permission to enter or use his premise.
◉ Occupier: someone who has the immediate supervision & control & the
power of permitting of prohibiting the entry of the persons.

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 Occupier’s Liability
Duties of an ‘Occupier’
◉ Duty owed to one who has entered the occupier‘s 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 (e.g. supplier of building materials entering construction
site).
◉ 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.

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 Occupier’s Liability
Duties of an ‘Occupier’
◉ 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 (e.g. students visiting
construction site).
◉ Duty owed to trespasser. The duty owed is only a duty to abstain
from deliberate or reckless injury (British Railway Board v
Herrington [1972] 1 All ER 749 HL).

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 Occupier’s Liability
British Railway Board v Herrington [1972] 1 All ER 749 HL

Case facts:
The claimant suffered severe burns when he wondered onto a live railway line.
The railway was surrounded by a fence. However, part of the fence had been
pushed down creating a gap that was used frequently as a short cut. The
defendant was aware of this gap, but did nothing about it.
Court held:
The railway company did owe a duty of common humanity to trespassers.
Should have taken proper steps of common sense to avoid danger to people who
might be on his premises.

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Summary of Tort

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Summary

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 References

◉ Lee Mei Pheng (2005) General Principles of Malaysian Law (5th ed.), Shah
Alam: Penerbit Fajar Bakti Sdn. Bhd.
◉ Nuraisyah Chua Abdullah (1975) Questions & answers on Malaysian courts,
statutes, cases & contract, tort, and criminal law, Petaling Jaya: International
Law Book Services
◉ Nurcahya Talib (2010) Law of Torts in Malaysia (3rd ed.), Sweet & Maxwell.
◉ Sinha & Dheeraj (1996) Legal Dictionary, ILBS, Petaling Jaya.

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