PUAN EDELIN BINTI HUSSEIN

Introduction
to Tort

Negligence
Nuisance

CONTEN
T - LAW
Occupiers of TORT Trespass
Liability

Strict Vicarious
Liability Liability
Definition of Law of Tort

Tort – Legal meaning; Civil Wrong – injury arising

- A civil legal action to obtain monetary damages from a
legal injury a person or property.

Examples of civil wrongs:

1) Breach of contract
2) Breach of trust
3) Breach of statutory DUTIES

Plaintiff (injured party) sues the Defendant claiming damages

or compensation for personal injury or property damaged
resulting from defendant’s civil wrong actions.

For which the Law will grant a remedy – for the sake of
public.
The nature of law of Tort

Concerned with protecting people from wrongful

acts causing personal physical injury or
damage to property

A breach of legal duty owed by one party to

another. It is a civil wrong or injury arising
out of an act or failure to act

The injured person is entitled to claim

damages and/or to secure an injunction to
prevent the continuance of the tort
Who wants to claim in Tort?

1) Outsiders (persons who haven no contractual

involvement in the construction process)
2) Owner / tenant of a building
3) Visitors / a passer-by
4) Client (from someone whom there is no
contract; sub-contractors)

If such persons suffer injury, damage or loss

because of defective or dangerous building work,
their claims must lie in tort – Tort of
negligence.
 Tort vs Crime (The same act however can be
charged for both;
a tort and aTORT
LIABILITY crime) CRIME
and a crime)
Nature Civil wrong against one Offence against the
particular individual state / law
Actions Brought by the injured By public prosecutor /
party Police against the
wrongdoer
Parties Plaintiff and defendant Prosecutor and the
wrongdoer
Purpose of To provide a method of Protect interest of the
law justice for individuals who public / maintain law
suffered loss and order
Remedy Compensation for the loss – To punish guilty person
damages, injunction, – fine and or prison
specific performance etc
Procedure Civil action Criminal procedure
Example Negligence, trespass, Theft, murder, assault
nuisance etc. (attack)
Tort vs Contract (The same act can give rise to
liability in contract and in tort) and a crime)

TORT
LIABILITY 1) Imposed by the law
2) Duty is owed towards
person generally
MEASURE 1) The amount awarded as
OF damages is what would,
DAMAGES as far as possible and
restore him to original
position (unlimited and
wide; personal injury and
latent property damage)
CONTRACT
1) Based on agreement /
consent of the parties
2) Duty is owed to a specific
person (person who knows
about the contract)
1) The amount awarded as
damages by considered
what the plaintiff would
have achieved if the
contract had been
performed (limited to
economic loss)

TIME LIMITS 1) 6 years from the time the 1) 6 years from the time of
FOR damage is the breach of contract
BRINGING suffered/occurred
ACTION
Tort vs Contract (The same act can give rise to
liability in contract and in tort)

SITUATION TORT CONTRACT

PERSON WHO BUYS 1) Sue the 1) Sue the supplier
A DEFECTIVE TOOL manufacturer for for breach of
(CAUSES HIM TO the tort of contract
LOSE HIS FINGERS) negligence

WHY PLAINTIFF MIGHT SUE IN TORT AS WELL AS, OR

INSTEAD OF IN CONTRACT
The assessment of damages may be more favourable in contract

Damages in contract are normally limited to economic loss, whereas

in tort the types of harm include personal injury and latent property
damage
The limitation period in tort may be extended.
NEGLIGENCE
 Lack of standard/reasonable care or conduct (breach of a legal
duty to take care) which results the injury/damage (or
financial loss) to another.
 Not actionable per se (loss must be proved)

ELEMENTS OF NEGLIGENCE

DUTY OF
CARE

ELEMENTS OF
NEGLIGENCE

INJURY OR BREACH
DAMAGE OF DUTY
Everyone has a duty of care all of the time.
Defendant owed plaintiff duty of care (Not to
injure/cause loss to other people and take
standard/reasonable care)

Duty of care is the amount of care that a reasonable

person would exercise under the circumstances. What
is a reasonable person?

A reasonable person is not any real person or even the

average person, but an imaginary prudent person who
takes the precautions necessary to avoid harming
another person or their property.
● Can you think of examples of due care that
each of the following people must exercise?
1. A lifeguard at a pool.
2. An owner of an aggressive dog.
3. A high school football coach.
4. A site supervisor at construction site
DUTY OF CARE
Donoughue v Stevenson (1932)
Facts
 In Donoghue, P’s friend bought her a bottle of ginger
beer
 After drinking most of it, P found a decomposed snail in the
bottle and became ill.
 The bottle was opaque so that the snail’s presence could not
have been detected until most of the liquid has been
consumed.
 P had no contract with either the seller or the
manufacturer.
 The default was that of the manufacturer, not the seller.
Court Judgment
 HL held that the manufacturer owed a “duty of care” to
the consumer of the product.
 Since the plaintiff had suffered as a result of the
manufacturer’s alleged lack of care in ensuring that the
product was fit for consumption, the manufacturer was
liable to P in negligence.
NEIGHBOURHOOD PRINCIPLE

Donoughue v Stevenson (1932)

 A duty of care arises whenever a person can

reasonably foresee that his acts or omissions would
injure or cause damage to another – neighbour
principle.
 The rule that:
- You are to love your neighbour
- You must not injure your neighbour
- You must take reasonable care to avoid acts or
omission which you can reasonably foreseen would
be likely to injure your neighbour.
- Who is my neighbour?
“Persons who are closely and directly affected by my
act”
SIGNIFICANT POINTS FROM THE CASE

Donoughue v Stevenson (1932)

 Negligence is a separate tort
 The absence of privity of contract is irrelevant in
tort
 To establish negligence, the claimant must prove
on the negligence elements
 As a test for the existence of a duty of care must
be applied although with the absence of the
contract
 Manufacturers owe a duty of care to consumers in
respect of the goods that they provide to ensure
that they do not threaten health or safety
Breach of Duty.

• Breach is the simplest of the three elements.

• Once you determine the standard of care, did the defendant

follow that standard of care?

• For example, if the standard of care requires the owner of an

aggressive dog to keep the dog on a leash and the owner does
not do so she/he has breached the duty of care.

• the duty was broken by the defendant due to careless conduct &
not take standard/reasonable care
BREACH DUTY OF CARE - Behaves carelessly

Bolam v Friern Hospital Management Committee (1957)

 Ordinary reasonable man test

- What a reasonable man would do and not do
- Reasonable man is expected to know the law and regulate
his conduct by it
 Meet the Standard of reasonable professional (certain
level of skill and competence)
 The question is what a reasonably competent practitioner
would do, having regard the standard normally adopted in his
profession.
 If he acts in accordance with the standards set by a body of
reasonably competent members of the particular profession –
not negligent.
 If the person is a dentist, he will be judged against the
standards of the reasonable dentist as long as the activity is
one that is reasonable for a dentist to attempt.
Injury or damage

There are two types of injury / damage:

- Causation in fact; and
- Proximate cause

Causation in fact
Also known as “but-for” test, is pretty simple.

The question is, but for the defendant’s actions would the
injury have occurred?

Example: A hits B in the shin with a golf club. B’s shin

would not have been injured if A had not him in the shin
with a golf club.
INJURY OR DAMAGE - consequences of the breach need to
be proved

Barnet v Chelsea & Kensington Hospital Management Committee

(1960)
 ‘But for’ test
- But for the defendant’s behaviour,
- would the plaintiff have suffered the damage complained
of?
 The plaintiff must prove that the defendant’s act caused the
injury otherwise the defendant cannot be blame for the
damage complained of.
 In this case, a doctor was negligent in failing to examine a
patient who complaining of feeling sick after drinking tea.
 In fact, the patient was dying from arsenic poison.
 Held that, even if correct medical treatment had been done,
nothing could saved him.
 So the doctor is not guilty because the doctor’s negligence did
not cause his death.
Injury or damage

There are two types of injury / damage:

- Causation in fact; and
- Proximate cause

Proximate cause
Proximate cause is a little more difficult.

Ultimately, it is more of a policy question than a legal

question. The issue is where the law wants to cut off
liability for a negligent actor.

Several theories exist regarding proximate cause:

- Forseeability
- Direct Consequences
Proximate cause

» E.g: A case involves a flaming barge floating down a

river that set fire to a house on the riverside and due to
a strong wind thirty neighboring houses caught fire.
» The court held the barge operator liable for the first
house, but not the other 29.

The theories, on a basic level, are:

» (1) whether the tortfeasor could have foreseen the
consequences of his or her actions; if not no proximate
cause;
» (2) whether the tortfeasor’s actions were the direct
cause of the consequences; if there was an intervening
cause such as a lightning strike then no proximate
cause; and
» (3) similar to forseeability, whether the harm was within
the range of harms that could be expected from the
tortfeasor’s actions.
INJURY OR DAMAGE – Remoteness (Foreseeable consequence
of such conduct)

The Wagon Mound (No. 1, 1961)

 ‘Direct consequences’ test

(Damages are too remote if they are not foreseeable by a
reasonable man)

 The defendant is liable only for damage that was the natural and
probable consequence of his wrongful act.
 In this case, workers of a ship called the Wagon Mound negligently
discharged oil into a harbour.
 Some of the oil spread to another wharf owned by the plaintiff
where an extensive fire was caused (the oil ignite and catching fire
due to welding activity which was currently taking place on the
plaintiff wharf).
 Held that, Wagon Mound were held not liable.
 Although they owed a duty to take care in relation to the plaintiff,
and were in breach by negligently discharging the oil, the damage
they had caused was not a reasonably foreseeable
consequence of their negligence.
NEGLIGENT MISSTATEMENT
 the right of action arises when the person who made the
misstatement possessed a special skill or knowledge relating
to the circumstances
 Plaintiff relied on the defendant’s skill and judgment
Example:
 A designer could be liable for information given to a contractor
at a pre-tender stage as to the design, or nature of the sub-
soil or the possibility of a method of work. He could also incur
liability to the owner, subcontractors and suppliers.
 Quantity surveyor when giving their clients advise in relation
to cost estimates
 Case: Hedley Byrne & Co. v Heller & Partners Ltd (1964)
 Hedley Byrne sets out the principle that a professional man
owes a duty of care not only his client who employs him but
also to others whom he knows are relying on his skills.

PROFESSIONAL NEGLIGENCE
 Liability of professional advisers (in contract or tort) to provide
advice of a certain standard
 DEFENCES THAT ARE AVAILABLE FOR THE
NEGLIGENCE

 Contributory negligence —defendant may not have to pay,

his negligence may only have been part of the problem
(some states)

 Comparative negligence —applies when a plaintiff is

partially at fault therefore the defendants payment will be
reduced (most states).

 Assumption of the risk - Volenti non fit injuria

The plaintiff was fully aware of the risks
if plaintiff’s are aware of the danger, but decide to
subject themselves to the risk anyway Ex.—walking on a
wet floor when there is a warning sign.
 TRESPASS TO LAND

Entry onto the property of another without

the owner’s consent.
 TRESPASS TO LAND
(Without permission or authority)
(Permission or authority granted has been revoked or lapsed)

3 Forms of Trespass to Land

1) Direct interference with the land of another
(airspace above and the ground below).
- The soil itself
- Things under the soil
- Buildings or houses affixed to the surface

2) Remaining on the land of another

3) Placing or throwing any material object upon the land
of another
 TRESPASS TO LAND

It is a tort which depends upon ENTRY not DAMAGE.

Thus there is no need to prove damage (actionable
per se) as a consequence of the tort (Distinct from
negligence) – Kelsen v Imperial Tobacco Co. Ltd (1957)

It is no defence that the trespasser intended no harm

or did know that he was trespassing – Basely v
Clarkso (682)

The element of trespass to land

- Mental state of the defendant (purposely done and
intentionally)
- Direct Interference
 TRESPASS TO LAND

Examples of acts that constitute trespass :

1) Walk over another’s land
2) Throwing thing onto the land
3) Placing a ladder against the surrounding wall
4) Driving nails into another’s wall
5) Removing doors and windows belonging to
another
6) Dumping soil onto the plaintiff’s land
7) Swinging from projecting arm of a crane (jib)
over the land
8) Installation of service cable or signboards
9) airspace above and the ground below the land
(except aeroplane or a satellite passes over the
land)
 TRESPASS TO LAND
(Remedies)

Defences (in interfering with possession of the land)

- Obtain permission (a license); Site possession
- By operation of law; Search warrant

Remedies (Construction industry Scenario)

1) Injunction
2) Damages

The contractor, In order to avoid and having injunction

made against them by the landowners, contractors may
be forced to offer large sum in damages to the
landowners who affected by the building works.
 TRESPASS TO GOODS

• Trespass to goods may be defined as a

wrongful and direct interference with the
goods that are in the possession of
another.

• The interests that are protected by this

tort are the plaintiff’s interest to continue
having possession of his property, to the
physical conditions of his property as well
as to maintain and protect his right to
the non-interference of his property in all
respects.
 TRESPASS TO GOODS
(Without permission or authority)
(Permission or authority granted has been revoked or lapsed)

Forms of Trespass to Goods

1) Intentional or negligent interference with the possession
of goods of another
- Wrongful detention of the goods of another /
temporary permission granted previously however has
been lapsed ; Detention

2) Wrong to possession, as distinct from ownership

(Conversion)
- Wrongful conversion of the goods of another with
the intention of exercising dominion over the goods
permanently or temporarily.
 TRESPASS TO GOODS

The element of trespass to goods

- Mental state of the defendant (purposely done and
intentionally)
- Direct Interference
- Disturb the right of the owner of the goods

Remedies
1) Injunction (Returning of goods)
2) Damages (Value of the goods and the loss incurred)

Examples of acts that constitute trespass :

1) Throw another’s book out of the window
2) Remove the wheels of another’s motor-car
3) Mechanics lent the customers cars to others
» Assault – no physical contact
» occurs when one person intentionally puts another
in reasonable fear of an offensive or harmful bodily
contact
» Mental state of the defendant (purposely done and
intentionally)

» The effect on the plaintiff

» Capability to carry out the threat

» Bodily movement - positive (active)/negative

(passive) act
» Battery – Any physical contact
» Harmful or offensive touching, includes
pushing, punching, spitting, or shooting
» Mental state of the defendant (purposely
done and intentionally)
» The defendant’s act (direct application of
force, voluntarily done)
» Contact
» Force (without consent)
» The intentional
confinement of a person
against the person’s will
and without lawful
privilege.
» It can include being
handcuffed or locked in
a room or car.
False statements that injure a person’s
reputation or good name.
+ Slander - spoken defamation
+ libel - written or printed defamation

To be defamatory the statement must

be:
1. False
2. Communicated to a 3rd party
3. The victim’s reputation is ruined or he/she faces
ridicule
Uninvited intrusion into an individual’s
personal relationships and activities.
 TRESPASS TO PERSON

Defences and Remedies for damages

1) Self-defence
2) Defence of property (force to eject the
trespasser)
3) Consent / approval
4) Judicial authority (warrant of arrest)
5) Preservation of peace
6) Application of forgiveness
7) Protection from harassment

Examples of acts that constitute trespass :

1) Pointing an unloaded gun at a person
2) Threat to hit a person (reasonable fear)
VICARIOUS LIABILITY

The liability for the acts of the others:

1) Employer/client and contractor
2) Main contractor and subcontractor
3) Employer and their own individual employees

One party is responsible for the negligent acts of

another without necessarily contributing to the
negligence. For example, where an employee commits
a tort in the course of his employment; his
employer will also be liable for the tort of his employee.

The injured party can elect to sue the employer or the

employee or both.
VICARIOUS LIABILITY

The reason is because vicarious liability is favored on the

employer who has ultimate control over the whole situation
where:
1) The employer-employee relationship; employer has
the obligation to bear the consequences done by their
employee
2) the employer is normally better able to pay any
damages awarded
3) Can most easily insure against such risks and takes the
profit from the business (Insurance protection,
indemnity, bond etc).
4) Can act as inducement to the employer to promote high
standards of safety within his organisation.
VICARIOUS LIABILITY

Master and servants

(Liable for servant ‘s torts)
Vicarious Liability
Independent Contractor
(Not liable for contractor’s torts)

To differentiate, it depends on some relevant factors:

1) Degree of control over the employee in the
performance of the work.
2) Who provides the tools and equipment.
3) Who hires and fires other workers.
4) Who is responsible for EPF and SOCSO contributions,
sick pay and holiday pay.
5) Who take the financial risks and/or benefits from work
done well.
 VICARIOUS LIABILITY
Master and servant
(Liable for servant ‘s torts)
Ultimate Control over working practices and
safety procedures
Where his employer has the right to control
the work he does and the way in which he
does it
Employee who works under a
contract of service.
“In the course of employment “:
1) He is doing what he is employed to do
2) Acting upon the employer’s instructions
3) Acting for the employer’s benefit yet in
a wrongful manner (negligently)
 An injured person can sue the employer
instead of suing the
employee
Independent Contractor
(Not liable for contractor’s
torts)
No Ultimate Control over working
practices and safety procedures
the employer has no right to controls
the manner to carry out the work.
Independent Contractor works under
a contract for service.
The employer provides them with
general directions only and the
contractor is free to select his method
of doing it.
 VICARIOUS LIABILITY
Master and servant Independent Contractor
(Liable for servant ‘s torts) (Not liable for contractor’s torts)

Example Example
Where people are employed to An architect appointed by the client is an independent Contractor.
carry out design work by a firm, the
firm (master) will be responsible for Sub contractor appointed by the main contractor is an
the torts of their employed independent contractor *(exceptionally).
designers (servant) provided that
the tort was committed in the
course of the employee’s
employment.
CASES * Standard Form (JKR 203A)
1) Mersey Docks & Harbour Board v • Clause 27
Coggins & Griffiths Ltd. ( 1947) Approval to the main contractor to appoint Subcontractor. Breach
- Workmen is lent or hired to of any contract, liable for subcontractor’s torts
another company • Clause 28
2) Limpus v London General Omnibus Nominated subcontractor / supplier by the SO.
Company (1862) Liable for subcontractor’s torts
- Acting for the employer’s benefit • Clause 29
yet in a wrongful manner
(negligently) Liability of main contractor towards the NSC.
To ensure the NSC act in parallel with the main contract

* Standard Form (JKR 203A)

• Clause 32
- Indemnity (Between contractor and the government)
- An agreement to pay upon any claim from the third party.
- the government entitled to get full amount of indemnity
although the claim arise due to their lack supervision of the
contractors work.
• Clause 33
- Insurance Protection to cover and fulfill the main contract
 CONTRACT OF SERVICE
• The employer has the right to
control the servant; the work he
does and the way in which he
does it; Master and servant
• The employer will be responsible
for the torts of their servant
(provided that the tort was
committed in the course of the
employee’s employment)
• Relevant factors:
- Full degree of control
- Salary paid by the employer
- Employer provides the tools
and equipment
• Illustrations / Cases :
- A resident engineer employed
by the building owner
CONTRACT FOR SERVICE
• The employer has no right to control
the independent contractor; the work
he does and the way in which he
does it (provides them with general
directions only); Independent
contract
• The independent contractor is liable
for torts which he commits while
carrying out the contract.
• Relevant factors:
- Lack degree of control
- Free to select the tools and
equipment
• Illustrations / Cases:
- An architect appointed by the
client
 RYLANDS v FLETCHER LIABILITY : STRICT
LIABILITY

Rylands v. Fletcher was the 1868 English case

Both Rylands and Fletcher were neighbours.

Rylands owned a mill for whose energy requirement
he constructed a water reservoir on his land.
He gave this work to independent contractor and
engineers.
Due to the negligence of the private contractor, the
shafts that led the way to Fletcher’s mine were
broken which led the water into the mine, causing
heavy loss to him.
Fletcher sued Rylands.
 The Court held Rylands liable for the damage
done to Fletcher.

 It was held that the defendants owed a duty

of care towards the risk which he took by
doing unnatural use of his land and bringing
any object to his land which was not harmful
that time but would be harmful if it escapes.

 Even if defendant was unaware of the fact

that there were shafts which could lead water
into plaintiff’s mine, he is liable.
 The appellant took the defence that the
construction work was being carried by an agency
and was inspected by an engineer.
 It was said that appellants were not at all part of
the work. They also were not subjected to know
about the security regarding the construction.
 It was held that it does not matters what care did
the appellant took but he was responsible for the
damage as he brought to his premises such article
which could be dangerous if escapes.
 Appeal was dismissed and compensation was given
to Fletcher.
Facts
I. Rylands constructed a reservoir on his land.
II. The work of construction was done by
independent contractor and he was negligent in his
work.
III. Water escaped and injured Fletcher.
Conclusion- Rylands was held liable to Fletcher.
Material facts seen by the Court
I. Rylands constructed a reservoir on his land.
II. Water escaped and injured Fletcher.
Conclusion- Rylands was held liable to Fletcher.
STRICT LIABILITY
Strict Liability : Independent Contractor (the
employer may be liable for the torts)

1) Extra hazardous activities

the work from its very nature is likely to cause danger
to others.
2) Statutory duties
Statute imposes an obligation upon a person to do a
particular thing, he cannot escape liability by
delegation to an independent contractor; fence sites
and safety of work premises.
3) Rylands v Fletcher
Negligence in employing an incompetent contractor or
failing to give adequate directions to avoid damage to
another.
RYLANDS v FLETCHER LIABILITY : STRICT LIABILITY

 The rule was developed by the courts to impose liability

upon those landowners for damage caused as a result
of an escape from their land (escaping liability)
 It is no defence to say that the defendant took all
reasonable care to avoid the escape.
 Who can sue (plaintiff):
1. A person who has an interest in land and suffers
damage to his property (affected by the escape)
 Who can be sued (defendant):
1. The owner or controller of the dangerous thing. If
he brings or collects it on land, he is liable
 To establish Rylands liability:
1. the defendants must be an occupier of land
2. The object or accumulation must be non-natural
3. It must also escape from defendant’s land to
plaintiff’s land and cause damage
RYLANDS v FLETCHER LIABILITY : STRICT LIABILITY
 To applied Rylands Rule:
1. Applicable to anything that is not naturally on the land and
purposely keeps and collects (Situations which can escape and
cause damage)
-colliery spoil heaps
-inflammable goods
-gas /oil
-explosions
-electricity
-poisonous vegetation

2. Thus, when something that is naturally on the land escapes and

cause damage, the occupier will not be liable unless he
intentionally allows the escape to occur or that the escape is
foreseeable and yet the defendant does nothing to prevent the
probable escape.

 Construction situation
1. Flooding from drainage to building
2. Contractor bringing dangerous chemicals on to site (if escape and
cause damage)
RYLANDS v FLETCHER LIABILITY : STRICT LIABILITY

Miles v Forest Rock Granite Co Ltd. (1918)

- The defendant used some explosives to break

some rock on his land.
- Some of the rocks fell and injured the plaintiff.
- The rocks were not purposely collected or kept
on the land but the explosives were
purposely collected and kept.
- Yet the defendant was held liable for escape of
the rocks because the way in which the injury
was sustained was through rock blasting, which
was not a natural use of land.
RYLANDS v FLETCHER LIABILITY : STRICT LIABILITY

Ang Hock Tai v Tan Sum Lee & Anor (1957)

- Plaintiff rented a shop house and lived on the first floor

of the building.
- Defendant who engaged in managing tyres business
rent the ground floor of the building from the plaintiff.
- Besides keeping stock of tyres, the defendant also
stored petrol for the purpose of his business.
- One morning the defendant’s premise caught fire. The
fire spread to the first floor and the plaintiff’s wife and
child died in that tragedy.
- The court held the defendant liable under the rule in
Rylands v Flecther as the petrol was a dangerous
object.
RYLANDS v FLETCHER LIABILITY : STRICT LIABILITY

Defences
- The plaintiff has consented to the dangerous thing being
kept on the defendant’s land
- The escape was caused by the independent act of a
stranger (which is unforeseeable) or caused by the
plaintiff himself
- The escape was due to an act of God
- The dangerous thing has been stored pursuant to some
statutory duty/authority

"The true rule of law is, that the 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 at his peril, and, if he does not do so, is prima facie
answerable for all the damage which is the natural
consequence of its escape."
OCCUPIERS’ LIABILITY

o Occupiers’ liability concerns only with persons

who suffer injury while they are on another’s
premises.

o In construction, it governs the liability to an

independent contractors when carrying out work
on another’s land.

o An occupier’s liability to lawful visitors, as

well as to trespassers, depends on his fault in
not taking reasonable precautions.
OCCUPIERS’ LIABILITY
 The law of negligence imposed ‘a duty of care on the
occupier’ of any premises towards those coming onto those
premises (visitor).
 This duty covered not only the occupier’s negligent
actions, but the state (conditions) of the premises
themselves.

Negligence
 A Negligence claim is appropriate where injuries result from
negligent activity on the premises.
 While occupier’s liability is applicable if they arise from the
conditions of the premises.

Common Law expressed:

“an occupier of premises owes a duty of care to lawful
visitors to see that they are reasonably safe (not expose
to danger) for which they are there”
Occupier?
 Anybody who occupies a premises is an occupier.
 Who has control over the premise.
 Who has control flow of people into and out of the
premises
 Degree of Occupation (based upon possession control
and not ownership)
1. Liability rests with the occupier (contractor) of the
premises
2. The owner (employer/client) is not always
considered to be the occupier

Premises?
 All forms of building
 Land spaces
 Fixed or movable structures
Visitors?
 A lawful visitor
– Invited and permitted people (with consent and
expressed/implied permission-License)
– common duty of care

 Unlawful visitor
– People who are present on to a premises without the
occupier’s expressed or implied permission.
– humanity duty of care:
1. Duty owed to trespassers and other non-visitors in
respect of risk of injury on premises.
2. This duty arises if the occupier is aware that there is
danger on his premise (reasonably foreseen)
3. Reasonably expected that trespassers may come
(reasonably anticipated)
4. Occupier’s fault in not taking reasonable precautions
to offer some protection to the risk of injury (taking
steps to avoid) – kindness and good of deeds
Child Trespassers (implied license)

 The general rule as to the duty of occupier towards

trespasser does not apply in the case of children trespasser.
 Several points to be considered:
1. An Occupiers must be prepared for the fact that children
are less careful than adults.
2. What may be a warning to adults may not be necessarily
so to children.
3. if a premises contain something attractive to curious
children, the occupier may be liable for the safety of
those children.
4. if an occupier has knowledge that there has been
children trespassers on his premises and he takes
no precaution to prevent future recurrence, they may
later qualified as lawful visitors (implied license).

- British Railways Board v Herrington

- LLNM v Ramakrishnan
 British Railways Board v Herrington

Miss Herrington, a 15 year old girl, climbed through a gap in a fence onto
a railway line owned by the British Railways Board. She was hit by a
train. She sued the board under the Occupiers' Liability (Scotland) Act
1960 for failing in their common duty of care to keep the premises
reasonably safe for visitors.

Held that the pursuer had taken a chance, fully aware of the risks involved
and that the Board had no responsibility to maintain the fence any more
than they had.

Judgment
The House of Lords dismissed the claimant's final appeal, holding that she
was not owed any duty under the Occupiers' Liability (Scotland) Act 1960
on the grounds that she had voluntarily decided to run the risk of walking
on the railway line. As such, the defender had no duty, at least in relation
to the pursuer, to maintain the fence any better than they had.
OCCUPIERS’ LIABILITY

Generally, an occupier/owner will not be liable:

- For negligence of an independent contractor provided
the occupier is satisfied that the contractor is
reasonably competent.
- If the premises has been adequately secured and the
occupier gives reasonably effective warning of a hazard
(Duty to warn). A warning notice can mean that the
occupier has done sufficient to discharge the duty of
care and make visitors safe.
‘For example: using exclusion clauses are
attempts by the occupier to escape liability and
avoid the common duty of care’ Where a risk is
willingly accepted by a visitor / lack of care on the
plaintiff’s part.
DEFENCES AND REMEDIES IN TORT
Defences
1. A plea of Volenti non fit injuria (complete
defence)
 Where plaintiff consented to the act which caused his
injury.
 Where the plaintiff agreed to run the (risk was willingly
accepted).
2. Contributory negligence (partial defence)
 Established where it is proved that a injured party
failed to take reasonable care of himself and thus
contributed to his own injury.
 The court will reduce damages by an amount
proportionate to the plaintiff’s share of responsibility.
3. Exclusion of liability
 By using exclusion/exemption clause or notice (Duty to
warn; warning notice)
DEFENCES AND REMEDIES IN TORT
Defences
4. Breach of Statutory Duty
 Some statute makes it clear that the breach only gives
rise to other criminal sanction laid down in the statute
and there is no separate right of action in tort.
 Example the OSHA 1994, Employee’s Social security act
1969, Building Act 1997 (A breach of the Act’s provision,
the injured person cannot bring a claim for damages for
breach of the broken duty)
5. Limitation period
 The right to bring an action for damages in tort must be
exercised within a specified period, the limitation period,
after the cause of action has accrued.
(6 years from the time the damage is suffered/occurred)
 Failure to do so - action unenforceable (time or statute-
barred)
DEFENCES AND REMEDIES IN TORT
Remedies
1) Damages
2) Injunction

Damages
 Award of damages (monetary); restoring through
money payment for the loss (losses that are reasonably
foreseeable consequences of the defendant’s tort – not
too remote)
 For the purpose of compensate for the damage which
the tort has caused.

Injunction
 An order to stop committing his tortious actions
 No compensation
NUISANCE
 An ‘unlawful interference’ by neighbours in relation
to land with damage resulting from such interference.
 Ownership of property generally entitles the owner to
enjoy the land without interference by neighbours.
 If the activities of one party (neighbours) affect the
enjoyment of the other, legal action (nuisance) might
be taken to prevent further disturbance.

REQUIREMENTS OF NUISANCE (TORT)

- Nuisance is a tort connected with land (enjoyment of
land)
- Nuisance is designed to protect an occupier’s right to
the enjoyment of his land (Physical damage on property
and or affects the reasonable comfort and convenience)
- Keywords: interference, enjoyment, land and
damage
- Not actionable per se (must prove damage)
 Trespass and Nuisance
(Both affect land, but)
TRESPASS
1) Actionable per se
2) Without the requirement to prove
damage/injuries occurred
1) Direct physical interference to land
etc
2) Example: walking across the field /
placing rubbish on neighbouring
land etc
1) Wrongful entry of an object or
person on another’s land
Negligence and Nuisance
NEGLIGENCE
1) Protection of personal rights
1) General claim for negligence:
damages
NUISANCE
1) Not Actionable per se
2) Must prove damage / injuries
occurred
1) Need not be direct interference to
land
2) Example: allowing smoke to drift /
branches to encroach / bricks from
ruinous building to fall onto
neighbouring land
1) No entry necessary. The action can
be created on defendant’s own land
NUISANCE
1) Protection of rights over land
(proprietary)
1) General claim for nuisance:
injunctions
NUISANCE
Nuisance is an important factor in the construction industry
because of the rules in relation to:
1. Demolition and building (effect on neighbouring
land)
2. Building operations (Noise, vibration, dust, flood,
mosquito)
3. Planning new uses of land (EIA restrictions in
relation to nuisance)

Examples of Nuisance caused by construction activities:

 If contractors are not careful when carrying out their
works, the neighbours may find their living conditions are
being interfered with.
 If the neighbours can proof that they suffer discomfort, or
their property is damaged, the contractor can be made
liable for damages and injunction.
PUBLIC NUISANCE
 ‘unreasonable interference’ / ‘unlawful act’:
1. materially affects the reasonable comfort and convenience
of the public (in general or some section of it)
2. generating harm to the public at large (endangers lives
and safety)
3. it is a crime (common law) / statutory offences – not
actionable by the public generally (to avoid multiplicity
of actions)

 Common Examples of Public Nuisance:

1. Obstructing the highway
2. Polluting a public water supply / open burning
3. Selling food unfit for human consumption
4. Dust caused by quarrying operations
5. Factory that emits excessive smoke, fumes or dirt – cause
discomfort to the community
PRIVATE NUISANCE
 Unlawful / unreasonable interference by a defendant
with the use or enjoyment of a plaintiff’s land
- Person suffering the harm is the owner or
occupier of the land.

 ‘unlawful interference’ (unreasonable and

substantial):
1. that affects his health, or (Physical damage)
2. that affects his comfort or convenience

 Common Examples of Private Nuisance:

1. Noise
2. Vibration
PRIVATE NUISANCE

 The interference may result in:

1. Damage to a persons’ enjoyment of an
easement (right of light, right of way etc)
2. Damage of property – vibrations, emission
of fumes which damage another’s
property
3. Causing an encroachment on another’s land
(overhanging trees, encroaching tree roots)
4. Annoyance – obnoxious smells, fumes,
noise, dust, sewage and keeping animals
PRIVATE NUISANCE
 Who can sue (plaintiff):
1. The owner of the land
2. The occupier of the land
3. Tenant

 Who can be sued (defendant):

1. The creator of the nuisance
2. The occupier of the land

 In deciding what is unreasonable, the court will take into

account:
- The duration and nature of the interference
- The defendant’s conduct
- The effect of the interference on the plaintiff
PRIVATE NUISANCE – CONSTRUCTION SCENARIO

 In construction, a contractor will be liable for

interference with adjoining land caused by the
construction operations (creator), but the employer
may also be liable:
1. Nuisance
2. Vicarious liability

 Independent contractor, whether the employer is liable

for nuisance depends on whether it could reasonably
have foreseen that the work instructed was likely to
result in nuisance:
1. Nuisance was reasonable foreseeable, employer
take steps to prevent – independent contractor liable
2. Nuisance was reasonable foreseeable, employer did
not take steps to prevent – employer liable
PRIVATE NUISANCE
 No liability is imposed on the occupier for nuisance
caused by a trespasser or natural causes unless it can
be shown that:
1. The owner had knowledge or means of knowledge of
the nuisance
2. should have prevented the effects of the nuisance

BUILDING AND DEMOLITION

 A man who builds an extension onto his house (causes
inconvenience to his neighbour):
1. Not liable - he takes all reasonable care so that no
undue annoyance is caused
2. liable – unreasonable hours, unreasonable time to
complete, use unreasonable methods and
equipments, unreasonable interference.
» Breach of legal duty owed by a
party to another
» Civil wrong resulting from action or
omission
» Independent of any contract (no
contract relationship need to be
established to determined duty owed)
» Govern by Common Law or statute
 WHOEVER
Passers-by, outsider, visitor, public.. Trespassers?
that suffers
DAMAGES, LOSS, INJURY
FAULTY
DESIGN ACCIDENTS

DEFECTIVE HAZARDOUS
BUILDING ENVIRONMENT

INTERFERENCE GENERAL
OPERATION
NUISSANCE
MISHAP
Tort in Construction
TORTIOUS WRONG EXAMPLES

Negligent Design supervision liability of architects

(Duty to take care) and engineers; defective workmanship
of contractors

Vicarious Liability Employer and employee

Occupier’s Liability Contractors towards lawful visitors

Trespass Construction activities that intrude into

space of neighbouring land

Nuisance Piling works that can cause damage to

neighbouring property

Strict liability Strict liability (no defence to say that all

(Ryland & Fletcher) reasonable care has been taken)
Liability in tort (in connection with building
operations)
SITUATIONS

For injuries to persons employed in connection with the building operation

(Negligent)

For damage to personal property belonging to persons so employed -

Negligent

For injuries to the public (persons not employed in connection with the
building operations) – Negligent / OL

For damage to personal property of the public - Nuisance

For damage or interference to adjoining/neighbouring land and buildings -

Trespass

For economic loss caused by the building operations - Nuisance

ASSIGNMENT 2 PRESENTATION
REVISION