CONFIDENTIAL LWIJAN 2018/LAW498/163 UNIVERSITI TEKNOLOGI MARA FINAL EXAMINATION COURSE LAW OF TORTS II COURSE CODE LAW498/163 EXAMINATION JANUARY 2018 TIME 3 HOURS 15 MINUTES INSTRUCTIONS TO CANDIDATES 1. This question paper consists of two (2) parts PART A (4 Questions) PART B (1 Question) 2. Answer any three (3) questions in PART A and the compulsory question in PART B in the Answer Booklet. Start each answer on a new page. 3, Do not bring any material into the examination room unless permission is given by the invigilator. 4, Please check to make sure that this examination pack consists of i) the Question Paper ii) _ an Answer Booklet ~ provided by the Faculty lil) a four—page Appendix 1 5. Answer ALL questions in English. DO NOT TURN THIS PAGE UNTIL YOU ARE TOLD TO DO SO This examination paper consists of 4 printed pages © Hak Cipta Universiti Toknologi MARA, CONFIDENTIAL,CONFIDENTIAL 2 LWIJAN 2018/LAW498/163 PARTA QUESTION 1 Prime Sdn Bhd (Prime) is the main contractor in charge of the construction of the Cepat Lekas Highway (LCL). Ali is the employee of a subsidiary company of Hebat Construction ‘Sdn Bhd (Hebat Construction) and is the driver of a bulldozer owned by Hebat Construction. Hebat Construction was the subcontractor hired by Prime to perform works in the construction of the LCL. Ah Meng and Raju are employees of a company, Tagging Sdn Bhd (Tagging) which are in charge of supplying, installing and testing the toll system at LCL. Discuss the tortious liability of the parties, if any, arising under the following circumstances: a) One day, while doing the work, Ah Meng, who ate nasi lemak earlier for breakfast, felt sick. He rushed out to the main office, looking for a restroom. As he walked into the restroom, he slipped and injured his back. The floor had just been waxed by the cleaner prior to polishing the floor. He claimed that there was no notice to inform the public that the restroom could not be used as cleaning was in progress. (10 marks) b) On another occassion, whilst Raju was driving along the LCL, the bulldozer driven by Ali suddenly made a U-turn into Raju's right of way and collided with the car driven by Raju. At the time of the accident, LCL was not opened to the public yet. As a result, Raju suffered serious injuries. (10 marks) QUESTION 2 “Here it is important to bear in mind that the specie or genus of nuisance upon which the plaintiffs have brought their action, involves physical damage and injury; in other words, nuisance that produces material damage or injury to property or persons, rather than a nuisance productive of sensible personal discomfort. See para 18-08 of Clerk and Lindsell on Torts (17 ed). Clearly, in my view, damage to building caused by vibrations is of the physical kind, and the liability for the nuisance caused by such vibrations is established by proving the encroachment or the damage to the property as the case may be. Hence, the situation of the land affected or the character of the building in the neighbourhood is not a matter to be taken into consideration. See St. Helens Smelting Co. v. Tipping (1865) 11 H.LC. 642, per Lord Westbury L.C. at 650; Halsey v Esso Petroleum Co., Ltd, (1961) 1 W.LR. 683, 689-692.” Per Vincent Ng Kim Khoay J in Cheong Fatt Tze Mansion Sdn Bhd v Hotel Continental Sdn Bhd [1996] MLJU 357. With reference to the above statement, discuss the test of reasonableness in nuisance and the factors that the Court may take into consideration to decide whether the act(s) of the defendant(s) is/ are unreasonable. (20 marks) (© Hak Cipta Universiti Teknologi MARA CONFIDENTIALCONFIDENTIAL 3 LWIJAN 2018/LAW498/163 QUESTION 3 The case of Cambridge Water is perhaps the most high profile relatively recent action against an industrial activity. The defendant, located in Sawston, Cambridgeshire, used ‘organic chemicals in its leather treatment process. Over many years, it spilled a large volume of those chemicals, in small amounts, onto the concrete floor of the tannery. The chemicals percolated through the floor, entered the aquifer under the defendant's land, and travelled the 1.3 miles to the claimant's borehole. Regulatory changes in the early 1980s meant that the presence of the chemical rendered the claimant's water “unwholesome", and no longer suitable for supply as drinking water. Cambridge Water sought the costs of relocating its water supply. Lord Goff defined the rule in Rylands v Fletcher as part of the tort of strict lability; an absence of reasonable foreseeabilty meant that the defendants were not liable. Maria Lee, “The Public Interest in Private Nuisance: Collectives and Communities in Tort’, 2005. Analyse the above statement based on the principles of strict liability. (20 marks) QUESTION 4 ‘Amazing Chemicals own and operate a large, chemical processing factory in the middle of rural Nottinghamshire. Last year, they obtained planning permission to double the size of their factory. Koko, Daisy and Eddie live nearby and have recently experienced a number of problems related to the chemical processing plant. Koko, who owns a farm 2 miles away from the factory, complains that Amhexidine, a chemical used by Amazing Chemicals has percolated into the soil and contaminated a water source on his land used to water his crops and livestock. He has been forced to find another water supply at a cost of RM250,000. Amhexidine is on an EU list of banned chemicals because it is known to be harmful to human health. However, a crop of fast growing shrubs intended as bio-fuel for a nearby power station has died off after being irrigated with water contaminated with Amhexidine. There has been no report previously of Amhexidine being harmful to plants. Daisy lives next door to the factory. She complains that loud machinery used at the factory ‘every night between 2 am and 6 am is keeping her awake. Dirt and dust from the factory has also caused damage to Daisy's extensive collection of garden gnomes. Eddie, an aspiring author, is visiting a friend of his in the area whilst he completes his latest novel. Eddie complains that vibrations from the machinery at the factory are a constant distraction to his work Advise Koko, Daisy and Eddie as to their remedies, if any, in the law of tort. (20 marks) (© Hak Cipta Universiti Teknologi MARA, CONFIDENTIAL,CONFIDENTIAL 4 LWIJAN 2018/LAW498/163 PARTB. QUESTION 4 Lara and Jamil are a married couple. In 2009, Lara took part in the AUM organized talent contest “Suara Sedap Musim Kedua’ (SS2) and she successfully advanced to the final rounds. From 2009 onwards and subsequent to the SS2 show, Lara's career as a singer and entertainer blossomed and becomes a celebrity. Lara was bor to the couple, Encik Hamid and Puan Kalsom in Kuching, Sarawak. She was given away by her biological family for adoption to a childless couple when she was still an infant. Shortly after Lara was given away for adoption, her biological and adoptive families were involved in a family dispute and were intensely hostile towards each other ever since. Due to the family dispute, she was never introduced to her biological family. Lara then met Jamil, a lecturer, in 2014 and they later got engaged in February 2016. After the engagement, her adopted mother had assured Lara that she would assist her to approach her biological father in regard to her wali mujbir (wali by way of blood relation) arrangement. As events turned out, Lara’s biological father refused to be her wali. As a result of which on 4 July 2016, Lara and Jamil's marriage was solemnized at the Islamic Council of Narathiwat Province, Thailand by way of wali hakim. Later, Mahkamah Syariah Hulu Langat issued a court order declaring that their marriage is valid according to Hukum Syara’ Television Hebat is a company operating a leading free-to-air television channel (also known as TVH). Amongst the many popular programmes aired regularly over the TVH's channel is one entitled 'Hendap’. The programme, hosted by Cantik which was aired on 15 September 2016, contained a segment on the family dispute between Lara and her biological family. It also contained materials consisting of statements and visuals regarding her marriage in Thailand. It was also shown live on the same day at the Mari-Mari Camival at Stadium Likas, Sabah, the venue where the Hendap programme was recorded. On 20 September 2016, the Programme was aired again about 12:30pm to 1:30pm. On 25 September 2016, the programme was also uploaded to the internet portal of www.tonton.com.my and thus was accessible online anytime and anywhere by anyone in the world. The programme was in the form of an infotainment report touching on Lara's marriage in Thailand where it was alleged that the Lara's biological father had refused to be her “wali” although she tried to persuade him to do so. The programme and Cantik as the host, had amongst others, published the following words: “Solemnization in Thailand is only valid on paper, but according to religion, as long as your parents are stil alive, their marriage solemnization in Thailand was not valid’ Lara and Jamil later claimed that the words have the effect of casting a slur on their character and reputation, and were therefore defamatory of them. Consider the liabilities of the parties against Lara and Jami. (40 marks) END OF QUESTION PAPER (© Hak Cipta Universiti Toknotogi MARA CONFIDENTIALCONFIDENTIAL APPENDIX 1(1) LWIJAN 2018/LAW498/163 CASE LIST A ‘Abdul Rahman bin Che Ngah & Ors v Puteh bin Samad [1978] 1 MLJ 225 Abdul Rahman Talib v Seenivasagam & Anor (1966) 2 MLJ 66 ‘Ang Hock Tai v Tan Sum Lee [1987] 1 MLJ 304 Ashdown v William Samuels & Sons Ltd [1957] 1 QB 409 Attorney-General v PYA Quarries Ltd [1957] 2 QB 169 B Bayley v Manchester, Sheffield and Lincolnshire Rly [1873] LR 8 CP 148 Bliss v Hall [1838] 4 Bing NC 183 British Celanese v Hunt (Capacitors) Ltd [1969] 2 All ER 1253 British Railway Board v Herrington (1972) 1 All ER 749. c Cambridge Water Co. v Eastern Counties Leather [1994] 2 AC 264 Cassidy v Daily Mirror Newspaper Ltd (1929) 2 KB 331 Cassidy v Ministry of Health [1951] 2 KB 343 Century Insurance Co Ltd v Northern Ireland Road Transport Board [1942] AC 509 Chan Jet Chiat v Allied Granite Marble Industries [1994] 3 MLJ 495 Chapman v Ellesmere (1932) 2 KB 431 Chew Sew Khian v Saniboey Mohd Ismail (2003) 1 AMR 408 China Insurance Co. Ltd v Wo Hup [1978] 1 MLJ 59 Chong Siew Chiang v. Chua Chin Geh & Anor [1995] 1 MLJ 551 Christie v Davey [1893] 1 Ch 316 Chuan Seng & Co Pineapples Factory v Idris & Anor [1962] MLJ 239 Collins v Hertfordshire County Council [1947] KB 598 Conway v George Wimpey & Co Ltd [1951] 2 K.B. 266 Crowhurst v Amersham Burial Board (1878) 4 ExD 5 D Dato’ Seri Anwar Ibrahim v Dato’ Seri Dr. Mahathir Mohamad [2007] 5 MLJ 406 Datuk Bandar, Dewan Bandaraya Kuala Lumpur v Ong Kok Peng (1993) 3 CLJ 205 Delaware Mansions Ltd v Westminster City Council [2001] 4 All ER 737 HL Dunn v Birmingham Canal Navigation (1872) LR 7 Q1) 244 G Giles v Walker [1890] 24 QBD 656 Gillingham Borough Council v Medway (Chatham) Dock Ltd [1992] 3 WLR 449 Glasgow Corporation v Taylor (1922) IAC 44 Goh Chat Ngee & 3 Ors v Toh Yan & Anor [1991] 2 CLJ 1163, Goldsmith v Sperrings [1977] 1 WLR 478 H Hale v Jennings [1938] 1 All ER 579 Hall v Lorimer [1993] EWCA Civ 25 Harris v Birkenhead Corporation [1976] 1 WLR 279 Hasnul b Abdul Hadi v Bulat b Mohamed & Anor (1978) 1 MLJ 75 Hawkins v Couldson and Purley Urban District Council (1954) 1 QB 319 Hiap Lee Brickmakers Ltd v Weng Lok Mining [1974] 2 MLJ 1 PC Hulton & Co v Jones (1910) AC 20 Huth v Huth (1915) 3 KB 32 (© Hak Cipta Universiti Toknologi MARA, CONFIDENTIAL,CONFIDENTIAL APPENDIX 4(2) LWIJAN 2018/LAW498/163 ' likiw v Samuels [1963] 1 WLR 991 Indermaur v Dames (1866) LR ICP 274 J JB Jeyaratnam v Goh Chok Tong (1985) 1 MLJ 334 Jenni Ibrahim, Dr. v S. Pakianathan (1986) 2 MLJ 154 kK Keppel Bus Company Limited v Sa’ad bin Ahmad [1974] 2 All ER 700 Knupffer v London Express Newspaper Ltd (1944) 1 All ER 495 Koperasi Pasaraya Malaysia Bhd v Uda Holdings Sdn Bhd & 41 Ors [2002] 4 AMR 4701 L Latham v R. Johnson & Nephew Ltd. (1913) 1 KB 398 Lau Tin Sye v Yusuf b Muhammad [1973] 2 MLJ 186 Lee Kuan Yew v Seow Kee Leng (1986) 1 MLJ 6 Lembaga Kemajuan Tanah Persekutuan v Mariam [1984] 1 CLJ 225 Lembaga Kemajuan Tanah Persekutuan v Tenaga Nasional Berhad [1997] 2 MLJ 783 Lembaga Letrik Negara v Ramakrishnan [1982] 2 MLJ 128 Liddle v Yorks (North Riding) County Council (1934) 2 KB 101 Lim Kar Bee v Abdul Latif bin Ismail [1978] 1 MLJ 109 Lim Seow Wah & Anor v Housing and Development Board [1991] 1 MLJ 386 Limpus v London General Omnibus Co (1862) 1 H&C 526 Lister v Hesley Hall Ltd. [2001] UKHL 22 Lloyd v Grace, Smith & Co [1912] AC 716 London Artists v Littler [1962] 2 QB 375 Luk Kai Lam v Sim Ai Leng (1978) 1 MLJ 214 M Majlis Perbandaran Pulau Pinang v Boey Siew Than & Ors [1976] 2 MLJ 156 Mat Jusoh bin Daud v Syarikat Jaya Seberang Takir Sdn Bhd [1982] 2 MLJ 171 Matania v National Provincial Bank Ltd and Elevenist Syndicate Ltd [1936] 2 All ER 633 McKinnon Industries Ltd v Walker [1951] 3 DLR 577 PC Meeran Leebaik Maullin & Anor v J Mohamed Ismail Marican & The Straits Printing Works [1926] 2 Mc 85 MGG Pillai v Tan Sri Dato’ Vincent Tan (1995) 2 MLJ 493 Miller v Jackson [1977] 3 All ER 338 CA. Mohamed Azwan Ali v Sistem Televisyen Malaysia [2000] 7 CLJ 498 Morgan v Odhams Press Ltd (1971) 1 WLR 1239 Morris v CW Martin & Sons Ltd [1966] 1 QB 716 Musa b Hitam, Dato v SH Alattas & 2 Ors (1991) 1 CLJ 314 N Newstead v London Express Newspaper Ltd (1939) 4 All ER 319 Nichols v Marshland (1876) 2 xD 1 Normala Shamsuddin v Keluarga Communication Sdn Bhd (1999) 2 MLJ 654 (© Hak Cipta Universiti Toknologi MARA CONFIDENTIAL,CONFIDENTIAL APPENDIX 1(3) LWIJAN 2018/LAW498/163 Pp Pacific Engineering v Haji Ahmad Rice Mill [1966] 2 MLJ 142 Penfold v Wescote (1806) 28 + P (N.R) 335 Perbadanan Pengurusan Taman Bukit Jambul v Kerajaan Malaysia [2000] 1 AMR 228 Perry v Kendricks Transport Ltd [1956] 1 All ER Perunding Alar Bina Sdn Bhd v Errol Oh & Ors [1996] 6 MLJ 101 Phipps v Rochester Corporation (1955) 1 QB 450 Poland v Parr & Sons [1927] | KB 236 Ponting v Noakes (1849) 2 QB 281 Pullman v W. Hill & Co Ltd [1891] 1 QB 524 Pustaka Delta Pelajaran Sdn Bhd v Berita Harian Sdn Bhd (1998) 6 MLJ 529 R Ravindran Kunji Kuttan v Tenaga Nasional Berhad (1996) 2 CLJ 1960 Read v Lyons & Co Ltd [1945] KB 216 Ready Mixed Concrete v Minister of Pensions [1968] 2 QB 497 Renal Link v Dr Hamam Singh [1997] 3 CLJ 225 Rickards v Lothian [1913] AC 263 Robert Addie & Sons Ltd v Dumbreck (1929) AC 358 Robinson v Kilvert [1889] 41 Ch D 88 Rose v Plenty [1876] 1 WLR 141 Rylands v Fletcher (1868) LR 3 HL 330 s S. Pakianathan v Dr. Jenni Ibrahim [1988] 2 MLJ 173 ‘Samin Bin Hassan v Government of Malaysia [1976] 2 MLJ 211 Sandison v Malayan Times Ltd & Ors (1964) 1 MLJ 332 ‘SB Palmer v AS Rajah & Ors (1949) MLJ 6 Sedleigh-Denfield v O'Callaghan [1940] 3 All ER 349 ‘Short v J & W Henderson Ltd [1946] 62 TLR 427 ‘Sim v Stretch [1936] 2 All ER 1237 ‘Sinuri b Tubar v Syarikat East Johore Sawmills Sdn Bhd [1987] 1 MLJ 135 ‘Sivanathan v Abdullah b Dato’ Abdul Rahman (1984) 1 MLJ 62 ‘Southport Corporation v Esso Petroleum Ltd [1953] 2 All ER 1204 Spicer v Smee [1946] 1 All ER 489 Sri Inai (Pulau Pinang) v Yong Yit Swee & Ors (1998) 3 CLJ 893 ‘St Helen's Smelting v Tipping [1865] 11 HL Cas 642 ‘Stevenson, Jordan and Harrison Ltd v McDonald and Evans [1952] 1 TLR 101 ‘Syed Husin Ali v Sharikat Perchetakan Utusan Melayu Bhd (1973) 2 MJ 56 T Telley v Chitty [1986] 1 All ER 663 Tennent v Earl of Glasgow (1864) 2 M (HL) 22 ‘Theaker v Richardson (1962) 1 WLR 151 Tolley v Fry & Sons Ltd (1931) All ER 131 Transco plc v Stockport Metropolitan Borough Council [2004] 2 AC 1 ‘Twine v Bean's Express Ltd [1946] 1 All ER 302 u Ummi Hafilda Ali v Karangkraf Sdn Bhd (2000) 6 MLJ 532 Ummi Hafilda bte Ali v Ketua Setiausaha Parti Islam Se Malaysia (PAS) & Ors [2006] 4 MLJ 761 (© Hak Cipta Universiti Teknologi MARA, CONFIDENTIAL,CONFIDENTIAL APPENDIX 1(4) LWIJAN 2018/LAW498/163, v Vincent Tan Chee Yioun, Tan Sri Dato’ v Haji Hassan bin Hamzah & Ors [1995] 1 AMR 69 Vizetelly v Mudie’s Select Library Ltd (1900) 2 QB 170 w Wennhak v Morgan (1888) 20 QBD 635 Wheat v Lacon & Co. (1966) AC 552 Wheeler v Copas (1981) 3 All ER 1053 Wisma Punca Emas Sdn Bhd v Dr Donal [1987] 1 MLJ 393 SC Woon Tan Kan (Deceased) & 7 Ors v Asian Rare Earth Sdn Bhd [1992] 4 CLJ 229 Y Yat Yuen Hong Ltd v Sheridan Lea & Anor [1963] MLJ 279 ‘YB Hj Khalid bin Abdul Samad v Datuk Aziz bin Isham & Anor [2012] 7 MLJ 301 Yip Shou Shan v Sin Heap Lee-Marubeni Sdn Bhd [2002] 5 MLJ 113 ‘© Hak Cipta Universiti Teknologi MARA CONFIDENTIAL,