EXERCISE 1 (LAW573)

Group members:
1.Siti Nursyahirah Binti Zaffendee (2020810628)
2. Nur Alya Amirah binti Mohd Nizam (2020810332)
3. Norshahira Atika binti Mohammad Zamri (2020453082)
4. Umi Nur Maisarah bt Rusli (2020614678)
5. Nurizzati Binti Mohamad (2020862014)
Issue of the case

The issue of this case is either Mr Zamrud can take action against Kristal Sdn Bhd based on
common law which falls under negligence and strict liability since most of the provisions in
his shop has been damaged because of the leaking oil from the storage of Kristal Sdn. Bhd.
Therefore, according to the valid reasons, Mr Zamrud can take action against Kristal Sdn.
Bhd.

Rule/Principle of Law

Based on our understanding towards the case given, action under common law that can be
identified in the case between Mr Zamrud and Kristal Sdn. Bhd are negligence & strict
liability.

First, negligence can be defined as a failure to act with the same amount of caution as
a prudent person would in the same situation. When there is a duty to act, the conduct
normally includes acts, but it can also include omissions. In any negligence action, the
essential elements that should be present are firstly, a duty of care exists wherein there must
be a wrongful and unauthorized act or omission by the Defendant and secondly, the
act/omission in question affected the interests or rights of others. Lastly, the said
acts/omissions caused the injured party or victim to have a right to damages.

The elements of negligence related to the case are as follows:

1. Duty of care exists between the plaintiff and defendant. The existence of the duty of care is
to apply the objective test of the neighbourhood principles such as to prevent injury or
damage arising as the result of a fault or failure of their products or machinery.
2. Breach of the duty of care. The defendant has breached the duty of care where due to their
negligence in taking care of their machinery and have failed to do regular inspection to their
oil tank, it leads to a faulty valve of the tank;

3. As a result of the breach, the plaintiff suffered damages where the leaked oil flowed into
Mr. Zamrud sundry shop and has cause damages to most of his provisions in the shop.

Secondly, strict liability can be defined as a legal level of culpability in which a

person is legally liable for the consequences of their actions even though they are not at fault
or have criminal intent such as Kristal Sdn. Bhd. causing damages to Mr. Zamrud’s sundry
shop even though the damages caused to Mr Zamrud is undesired and without the intention of
the defendant. Also, strict liability may be imposed by the defendant without proof of
negligence.

To support our study, in the case of McGowan & Anor v Wong Shee Fun & Anor
(1966) IMCJI, the first defendant was the owner and developer of the land known as Jalan
Water-Works Estate. The second defendant was the owner and developer of the land adjacent
to the first defendant's land. The plaintiff alleged against the defendant that they had
indiscriminately stripped off the top soil of their land and so caused and allowed the stream to
become silted, due to the erosion of the land thus causing flooding that caused damage to the
plaintiff's land. In addition, the first defendant had constructed across the river a culvert,
which was inadequate to cope with the water that was likely to flow down the stream during
or after a heavy rainfall. The court held both the defendants were negligent for not having
taken all reasonable steps to prevent fine earth from being washed down the sides of the
slopes into the stream.
Conclusion

In a nutshell, Mr Zamrud can take action against Kristal Sdn Bhd. This is due to the reason
under common law which is the negligence of the defendant, Kristal Sdn Bhd because there
is a probability that the factory has failed to check the valves that cause leaking and this has
brought damages to the Mr Zamrud’s property which is the provisions of his sundry shop.