module 5 - law of tort (vicarious, strict & occupier).ppt

7/27/2019 MODULE 5 - LAW OF TORT (VICARIOUS, STRICT & OCCUPIER).ppt

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PART 3 : LAW OF TORT

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QSM 457

Nature of Tortious Negligence Trespass Nuisance


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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.

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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.

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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.

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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.

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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.

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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)

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flooded


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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.

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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.

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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.

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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

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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.

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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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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) .

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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.

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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)

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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).

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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)


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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.


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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.

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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.

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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.

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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.

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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.

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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


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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:


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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.


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THE END

module 5 - law of tort (vicarious, strict & occupier).ppt

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