GROUP 7 (PART 2)
MOHD AIRUL BIN ALIMATSITI HAWA BT JAMALUDIN
NURULHUDA BT MOHD NASIRNUR FATIMAH ZAHARAH BT SULAIMAN
Tort and Legal Liability Unlawful conduct of a person result
in person injury and /or damage to person property that can seek legal redress
Negligence Required to exercise with proper care Due to careless conduct. Eg : Impatience, lack of foresight
The Standard of Care- Circumstances surrounding the act. have
to consider.- Consistent with and not below the level of
care exe.- Eg : Chin Keow v. The Gov. of Malaysia and
Another
The duty of care Injury or damage imposed on negligent
person
Condition
The damages is foreseeable
Reasonable
Not excluded on the ground
of public policy
Nuisance Private Nuisance
Unlawful interference with the enjoyment right
Example: Right interfered with concerns enjoyment
of private land, Liability for private nuisance may ensue Allowing effluence to flow into an adjacent
land Disruption of quiet enjoyment of
residential premises
Unreasonable interference Deemed unreasonable • Interest in Land Factors :
The relative value of the activities of the parties
Appropriate location Practicability of avoiding the interference Abnormal sensitivity on the part of the
plaintiff Unlawful motive of the defendant
Public Nuisance Occasioned when comfort and convenience
enjoyed by the public is interfered Example;
obstruction of a highway Offence or up criminal liability
Trespass Actual damages or injury is unnecessary to
establish liability for trespassTrespass to land
Enter land of others without authorizationRemaining on land beyond permitted periodUnlawfully cause physical matter
Trespass to goods
Take out of others possessionMove without authorityUnlawful physical contact
Trespass to person
AssaultUnlawfully cause actual physical contactFalse imprisonment
Defamation Libel or slander Absence of intention doesn’t absolve a
person Defamatory imputation:
Exposes the
referred person to hatred
Published and
communicate to 3rd
party
Does not have to
be names usually refer as plaintiff
Injury reputatio
n and suffered damages
Breach of Statutory Duty Invariably an offence, criminal liability Circumstances :
Injury is occasioned to person’s
property
Person affected by
injury/ damages seeks to protect
Injury/ damages sustained
wish to prevent
Intention to obtain civil remedy for
injury/ damages
Rylands v Fletcher
Used for extraordin
ary purpose
Gives extraordin
ary danger
Does not confer any benefits
Must be accumulat
ed
How to make a contract?
The element of contract
Proposal & Acceptance Intention
Capacity
Consideration
Lawful object
1. Proposal & acceptance
Offeror Offeree
Make offer
Make an acceptance
communication
A proposal cannot be accepted if:
proposer died or suffer mental incapacity counter proposal
declaration of willNot required to be in any particular form
Must have communication/ conduct P&A is not invitation to treat
2. intention
What the offeror want at the end of the contract
3. CONTRACTUAL CAPACITY Attained the age of majority (18 years) Sound mind Not disqualified from contracting
4. consideration
Give benefits to both party Common types of consideration 1. Tangible payment (money /
property) 2. Performance of an act
(providing legal services)Love and affection
Reward a past act
Pay a barred debt
Waive a contractual
right
5. Lawfulness of object
Should not have an object or a purpose that is not lawful
Prohibited by law
Contravene law
Fraudulent
agreement
Injury & damage
Immoral /against public policy
In what condition a contract is voidable?
Coercion – use of unlawful detention Undue influence – unlawful influece
Fraud Misrepresentation
Mistake
How to discharged a contract?
1.Performance2.Agreement3.Frustration4.Operation of law5.Fundamental breach of contract
Is it employer liable for the injury of their
employee?
Employees Distinguished from agents and contractors
Criminal Liability for injury to employees
Liability for workmen compensation
Common law liability for injury to employees
3.1Employee distinguished from agents and contractors
Element of control
Scope of employee work
3.2Criminal Liability for Injury to employees
Employers should pay close attention to the employment related injuries that might happen to employees.
If employer’s failure to meet min statutory safety standard – may face criminal liability
Employer can be made criminally liable for creating risky working environment for their employee
Oblige under Occupational Safety and Health Act 1994 ( known as OSHA)
3.3 Liability for workmen’s Compensation
Circumstances that made employer need to pay compensation:-
Nature of liability for workmen’s compensation
Injury arising in
the course of employm
ent- Only
liable if injury
linked to his work
Liability not fault based
-employer is liable although it’s not
employer fault.
Examples of non-liability- employer do not have liability to pay because did not arise in the course of employment:-1. died/disabled in circumstances unconnected to his work2. died/ suffered disablement when carry out work for which he is not employed.3. death/ disablement when carry out work but not caused by the work done.
Special Provision1. Section 4(1)(b) – workman is involved in an accident while
travelling to/from work with employer permission2. Section 4(1)(c) – workman injured/ died when taking steps
emergency (to save lives/ property)3. Section 4(1)(d) – workman die / injured as result of having
failed to comply with instructions
Exceptional circumstances – employer is expressly excluded from liability :-
1. Section 4(2)(a) – Disablement of workman do not exceed 4 days2. Section 4(2)(b) – Disablement results from a workman being under influence of alcohol.3. Section 4(2)(c) – Death / disablement of workman is results from self- inflicted injury4. Section 4(2)(d) – Disablement arises from which workman has falsely represented to the employer.
The Statutory Compens
ations
Contracting out & compulsory insurance
s.24 prohibits an employer from contracting out of his obligation
to provide the compensation stipulated under WCA 1952.
s.26 mandatory for employer to effect with the authorised insurer a policy to insure his
liability under the Act
3.4 Common Law Liability for Injury to Employees
2 categories to facilitate understanding the liability are:SOCSO eligible employeesNon-SOCSO eligible employees
At common lawPersonal negligence of the employerBreach of statutory dutyVarious liability
Personal negligence of the employer
At common law
Common law duties Examples of breaches
Provision of proper tools Tools are not in proper working order
Provision of a safe place of work
Slippery factory floor
Provision of competent workers
Employees did not qualified to do their work properly
Provision of a safe system of work
Not provide enough training for handling dangerous tasks.
•Non-compliance with the requirements to observe the safety stipulations of the Factories and Machinery Act 1967. •Failure to meet the requirements pertaining to safety and health under the Occupational Safety and Health Act 1994..
Breach of
statutory
duty
At common law
Various liability
•The employee has been injured by a fellow employee.•The injury is occasioned in connection with the employment of the employees.•Some fault is ascribed to the fellow employee for the injury caused.
At common law
8. PRODUCT LIABILITYEncounter legal liability when:
Express undertakingImplied undertaking
Liability under Section 68(4) of the Consumer Protection Act 1999
1. Seller of ProductSupplies a product under a
contract of sale.
2. Supplier of ProductA person who supplies the product
other than under a contract of sale.
8. PRODUCT LIABILITY (cont)
Liability may occur based on:Section 68(1) of the Consumer Protection Act 1999.
3. Manufacturer and Person Who Does Work in Relation to
a Product* The person who produces goods
from raw materials.* Liability may occur based on:
# The Donoghue v. Stevenson principle.
# Section 38 of the Consumer Protection Act1999.
And…
4. Importer or Label Owner of
ProductA person who hold themselves out as
producers by affixing their names,
trademarks or any distinguishing marks
on the products.
THE END
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