School of Architecture and Built Environment

Bachelor of Quantity Surveying (Hons)

Course Name:
MPU3393_Legal Studies for Built Environment

Assignment Title:
Assignment 2

Student Name & Matric Number:

Loo Hao Ze (1002161481)
Jordan Soo Mao Soon (1002058266)
Yong Hao Lin (1001954943)

Lecturer:

Mr Muhammad Ariffudin Arifin

 MPU3393_Assignment 02 | Loo Hao Ze, Jordan Soo Mao Soon, Yong Hao Lin

Contents
1.0 Introduction ............................................................................................................................................. 2
1.1 What is negligence .............................................................................................................................. 2
1.2 Negligence case study ......................................................................................................................... 4
1.3 Vicarious liability................................................................................................................................ 5
1.4 Vicarious Liability Case Study ........................................................................................................... 6
2.0 Discussion ............................................................................................................................................... 8
1. Advise Tan Sri Ahmad whether he has recourse against Ah Kiat. ...................................................... 8
2. Advise Tan Sri Ahmad whether he has recourse against Ulasan Berhad. ............................................ 9
3.0 Conclusion ............................................................................................................................................ 10
References ................................................................................................................................................... 11

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1.0 Introduction
A scenario has been given as below:

Ah Kiat, a newspaper despatch, drives a van for Ulasan Berhad. The company makes it
clear to all the employees that nobody, especially children, is to be allowed to help them in
delivering the newspapers. Ah Kiat, however, regularly allows Jason, aged 15 to assist him in his
delivery round.

The delivery round includes the house of Ah Chai's aunt, Christina. One day, while doing
his round accompanied by Jason, Ah Kiat stopped the van outside Christina's house. Christina then
asked Ah Kiat and Jason to help her move a heavy refrigerator. Jason offered to move the van a
few meters down the road while Ah Kiat was in Christina's house. Ah Kiat agreed, but when Jason
released the brake, he was unable to stop the van from running down the road. The vehicle collided
with Tan Sri Ahmad’s brand-new Porsche 911 GT3 RS, injuring Tan Sri Ahmad, damaging his
car and also injuring Jason.

In this report, two question will be discussed, which are advise Tan Sri Ahmad whether he
has recourse against Ah Kiat and advise Tan Sri Ahmad whether he has recourse against Ulasan
Berhad. These two questions will be discussed in the perspective of negligence as a tort and
vicarious liability from the perspective of the law of torts. Most importantly, this is report is to
analyze contractual challenges, particularly those involving conflicts between opposing parties,
using existing knowledge of construction law and contract administration to make effective and
efficient decisions.

1.1 What is negligence

‘ In law, negligence is the failure to meet a basic of conduct established to prevent others
from unwarranted danger. The core of tort liability is negligence, which is a fundamental factor in
the majority of property damage cases and personal injury. The concept of carelessness was first
applied to "public" professions such as blacksmiths, innkeepers, and doctors, however it was most
likely prompted by industrial development and an increase in work accidents. Initially, liability
was strict, but it was slowly reduced to boost industrial expansion. A increasing feeling of duty
characterises the latter. The law of negligence does not require the elimination of all risk connected
with a person's actions; rather, it simply requires the elimination of all unjustified risk, as measured

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by the severity of the prospective consequences. As a result, nitro-glycerine producers are held to
a higher standard than household matchmakers. Even if the strictest processes are followed, the
law holds the liable for any errors committed in critical businesses such as the milk industry. This
principle is known as strict responsibility.

In order to prove negligence as a tort, various factors must be established. The claimant,
for example, was damaged in a way that the tort law recognises. The court will consider the chain
of causation, or whether there is a link between the breach and the Plaintiff's losses, while
determining damages. While reaching this decision, the courts would evaluate the but-for test, the
facts surrounding the negligent act, and whether the Plaintiff contributed to the breach of duty of
care. Large medicine balls on a fragile top shelf, for example, fall and hit a customer in the head,
resulting in a concussion. The customer will be out of work for a few weeks and will be responsible
for a large medical cost. The customer will be compensated financially for his losses, missed wages,
and medical expenditures.

The second element is that the defendant owes the claimant a duty of care. “The principal
test to determine the existence of the duty of care is to apply the objective test of the neighbourhood
principle i.e. would a reasonable man who is in the same circumstances as the Defendant foresee
that his conduct will adversely affect the Plaintiff?” (Malaysia Negligence Law, 2018). If the
answer is true, the Plaintiff has a duty of care to the Defendant. Consider the following scenario:
all drivers must keep their vehicles in excellent technical condition and drive them safely and in
compliance with all traffic rules. Additionally, company owners must make reasonable measures
to ensure that their facilities are safe for consumers and employees. This might mean evaluating
their property on a regular basis for potentially dangerous issues and taking action as soon as
possible.

‘ 'The court must next consider whether the defendant broke the obligation by doing or not
doing anything that a reasonable person would do in a similar situation,' according to the court.
After establishing a responsibility, the next step is to determine if the Defendant has breached that
obligation. When the Defendant fails to fulfil the minimum standard of care required of him/her,
which is the standard of care that a reasonable man would anticipate, it is called a breach. As a
result, the most important issue to consider is whether a reasonable person in the same situation as
the Defendant would have behaved similarly. The Defendant has failed to satisfy his or her

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commitments if the response is no. It is considered a breach of responsibility when a corporate car
fails to allow adequate stopping distance when approaching an interconnection and collides with
some other vehicle stopped at a red light, or when a dog owner sends their dog to a tee-ball game
knowing that their dog is hostile toward children and the dog bites the child violently.

The fourth factor in negligence is causation. A plaintiff must show that the defendant's
breach of duty caused the plaintiff's injuries and losses in order to establish causation. Another
thing to consider is whether the defendant foresaw the repercussions of his or her actions.
According to The Carlson Law Firm (2020), “if the plaintiff was injured as a result of an
unforeseen act of nature, the conduct would be judged unforeseeable, and the defendant would
most likely be found not liable”. As an example of a justifiable explanation, a grocery store
supervisor observes a worker dropping grapes in the produce section. An elderly customer
stumbles and breaks her hip when the supervisor and no other workers fail to pick the grapes in a
timely manner. The customer would not have slipped and fallen on the floor if the store employees
had picked up the grapes, so the broken hip is rationally attributable to their breach of duty of care.

1.2 Negligence case study

Donoghue v. Stevenson, dubbed the "snail in the bottle" by some, is a watershed incident
in Western legal history. In this case, the civil law tort of negligence was founded, allowing
businesses to provide care to their customers. The events of the case took place in Paisley, Scotland,
in 1928. A friend brought Ms May Donoghue a ginger beer while she was out shopping. A
decomposing snail was eventually discovered within the bottle. Because the container was not
constructed of clear glass, Donoghue drank the most of the wine before noticing the snail. “Mr.
David Stevenson, the ginger beer's manufacturer, was then sued by Donoghue and she filed a writ
in the Court of Sessions, Scotland's highest civil court, demanding £500 in damages” (lawgovpol,
2019). Donoghue will not sue Stevenson for breach of contract because the deal has not been
completed.

Instead, Donoghue's lawyers argued that Stevenson had hurt his customer as a result of his
carelessness and had also breached a duty of care due to him. At the time, this field of civil law
was still developing. Stevenson's attorney dismissed Donoghue's allegation, claiming that such a
claim had never been made before. In Mullen v. AG Barr, Donoghue's earlier complaint was
dismissed because to a lack of precedent, in which a dead mouse was found in a bottle of soft drink.

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Despite the fact that Donoghue's initial attempt had failed, she was granted leave to appeal to the
House of Lords, which at the time had the judicial authority to hear appellate cases. Lord Atkin's
leading judgement in 1932 established that Stevenson was responsible for the health of anybody
who consumed his products since they could not be scrutinised.

Several legal theories and precedents have emerged as a consequence of the Donoghue v.
Stevenson decision. To begin, the ruling of the House of Lords recognised negligence as a tort.
The plaintiff can sue the respondent in civil court if he or she is injured or loses property as a result
of the respondent's negligence. “In order to show carelessness, the plaintiff had to establish some
contractual relationship, such as a sale of an object or an agreement to supply a service” (lawgovpol,
2019). Despite the fact that Donoghue had no contractual relationship with Stevenson since she
did not purchase the drink, Lord Atkin's decision made him accountable for the quality of his goods.
Second, the Court recognised that manufacturers owed a duty of care to the end users or customers
of their products. According to Lord Atkin's ratio decendi, "a manufacturer of things, which he
sells... to reach the ultimate client in the form in which they left him... owes an obligation to the
consumer to take reasonable care”. This precedent has progressed to the point that it currently
serves as the basis for consumer protection regulations against contaminated or defective goods.
Many of these protections were formed through common law, while others, such as the Trade
Practices Act, were later codified (Commonwealth, 1974).

1.3 Vicarious liability

In own words, vicarious liability can be described as substitution of responsibilities.
Vicarious liability is a circumstance of a person who held partly liable for the illegal actions of a
third party, and the third party also considered as liable to the action. When one party is supposed
to be responsible in charge of a third party but failed, vicarious liability might occur. There is some
conditions and obligation to satisfied vicarious liability such as negligence, which described the
mistake happen during the act. To proceed with the conditions, the specific relationship must be
conduct between the company and third party usually workers or the defendant and the people who
had done negligence because the company has the responsibilities to bear the legal liability. The
last condition for vicarious liability form when a tort is made on the defendant’s proposition and,
moreover, it is not committed by the employee.

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Therefore, the vicarious liability of the worker cannot come into the force. To understand
the term, an example about the company or headman may be responsible for member of staff
unlawful activities, such as provocation or workplace discrimination. An employer may also be
responsible if employee negligently or inappropriately uses machinery or equipments, resulting in
property damage or physical assault. Vicarious liability is a norm of responsibility prevalent during
the course of the common law of tort that generally holds an employer severely accountable for
the torts of its workers if the tort occurs during the course of employment. However, the concept
of holding an employer accountable to pay compensation to victims of its workers' torts, regardless
of personal mistake and negligence, is not unique to common law. Civil law systems may also
contain ideas of strict responsibility for the torts of others, albeit in certain systems it is subject to
a rebuttable presumption of culpability.

1.4 Vicarious Liability Case Study

If construction employees mishandle a crane's controls and collapse the wall of an adjacent
structure that wasn't authorised to be worked on, the project's management company will almost
certainly be held liable. Aside from that, if a railway engineer loses control of a train and it flees,
the train's owner and operator may be held vicariously liable for any damages and damage
sustained by the fleeing locomotive.

Even though the employer did not participate in criminal behaviour, it is held accountable
because it is held responsible for the activities of its employees while on the job and is regarded
capable of preventing and/or regulating any harmful acts committed by its employees. By taking
reasonable steps to prevent the illegal behaviour, the employer may be able to escape vicarious
responsibility.

As a result, the courts believed it was necessary to adopt a new test that recognised this
transition in the workforce, especially because the courts ruled in Mr. Walker's favour and
recognised that skilled and professional people can also be employees. Even though A refers to B
as an independent contractor, it is evident from that example that A cannot discharge himself of
B's obligations. A is found vicariously liable for the losses and injuries suffered by C as a
consequence of B's negligence at work as a result of B's activities.

Ravindran a/l Kunci Kuttan VS TNB Berhad.

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Plaintiff was assigned on February8,1984, to examine the measurement of intake structure

block C level 148 to see whether the contractor had complied with the parameters contained in the
contract between the defendant and Hyundai. Hyundai built the aforementioned formwork, and it
seems that no defendant employees were involved in its construction. The defendant claimed that
no defendant personnel were involved in its construction on the day and hour of the accident. This
is also corroborated and agreed upon by the plaintiff, who did not observe anyone working on
level148, which was the highest level finished at the time. According to the evidence, none of the
defendant's employees were actively involved in the formwork construction. The defendant
claimed that he was not actively involved in the project's construction. However, the defendant
stated that, in addition to checking the work done for the purpose of progress payment, the
defendant was also responsible for granting security passes that allow workers to visit the
construction site.

With the jurisdiction of the court, the court mention because none of the defendant's
employees were engaged in the building of the formwork, the defendant could not be held
vicariously responsible for the plaintiff's injuries. Next, as an occupier, the defendant was
irresponsible in failing to ensure that the plywood was safe and properly secured.

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2.0 Discussion

1. Advise Tan Sri Ahmad whether he has recourse against Ah Kiat.

According to law of tort, Tan Sri Ahmad has the right to sue Ah Kiat. Tort law gives rise to
negligence law. The fundamental factors that must be present in any negligence lawsuit are first,
a duty of care exists whereby there must be an unlawful and illegal conduct or omission through
the Defendant, and second, the act or omission in issue damaged the interests or rights of others.
Finally, the aforementioned omissions or acts gave rise to the injured victim's or party's entitlement
to compensation. Ah Kiat could be sued under the enforcement of contributory negligence. Section
12(1) of the Civil Law Act recognises contributory negligence as follows: "Where a person suffers
damage as a result of his own fault and partly of the fault of another person, a claim for that damage
shall not be defeated because of the fault of the person who is suffering the damage, but the
damages recoverable in respect of or shall be reduced to the extent that the Court considers just
and equitable having regard to the claimant's share in the responsibility for the damage. Provided,
however, that this subsection shall not be construed to defeat any contractual defense; and where
any contract or written law limiting liability is applicable to the claim, the amount of damages
recoverable by the claimant under this subsection shall not exceed the maximum limit so
applicable." From the scenario given, Ah Kiat’s vehicle collided with Tan Sri Ahmad’s vehicle,
hence cause damages to Tan Sri Ahmad’s vehicle and both parties. This situation can be considered
as careless action, and this could be avoided due to its foreseeability. Contributory negligence is
not according to the duty of care, instead it is based on foreseeability. Similar to actionable
negligence necessitates potential of causing injury to others, contributory negligence necessitates
foreseeability of causing injury to oneself. One is guilty of contributory negligence if he ought
reasonably to have predicted that, if he did not act as a reasonable, cautious man, he may be
damaged himself; and in his calculating he must take into account the likelihood of others being
careless. Another similar example is a motorist who fails to observe incoming vehicle turning left
without yielding to them owing to inattention, e.g., while texting on handphone and not concentrate
at the road.

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2. Advise Tan Sri Ahmad whether he has recourse against Ulasan Berhad.
As Ulasan Berhad has announced that they are strictly not allow another person than company
employee, especially children to be involved in their newspaper delivery work. However, Ah Kiat
always allow Jason who is below 18 years old to help him in the delivery task. This action
eventually against the rule that has been stated by the company in the early stage. As an information,
there must be an unlawful torturous conduct, such as negligence, to meet the first criteria. The
second need is that there must be a particular relationship, which is concerning the employee-
employer relationship, i.e., there must be a specific relationship between the employer and the
employee who committed the negligence. Lastly, the tort must occur during the course of work,
and an employer is only vicariously liable for his employee's torts that arise during the course of
employment. Tan Sri Ahmad could sue Ulasan Berhad by this reason is because the action that has
been done by Ah Kiat is also considered as in the scope of employment. Acting against the stated
prohibition of his employer does not imply that he is acting beyond the scope of his work. However,
in order for this to be the case, the conduct must be connected to his profession and performed for
the advantage of the employer. In this scenario, Ah Kiat allowed Jason to help him during the
newspaper delivery, this eventually against the prohibition of the company. Jason hit Tan Sri
Ahmad car and cause damages to the car and person during the working time, the company was
held vicariously responsible since the restriction only affected the way or method in which the
worker was to accomplish his responsibilities as a deliveryman, and the tort happened while he
was doing what he was hired to do, delivering newspapers.

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3.0 Conclusion
To sum up, negligence under tort law is the failure of a lawful obligation to exercise
acceptable care, which results in damage to the plaintiff. Furthermore, in Lochgelly Iron and Coal
‘

Co. v McMillan (Lord Wright), he emphasised that negligence encompasses more than thoughtless
or reckless behaviour . It correctly connotes the complicated idea of duty, violation, and the
’

resulting loss sustained by the person to whom the responsibility was shown. The tort of negligence
covers defective constructions, faulty products, road accidents, manufacturing accidents, third-
party personal injuries, and negligent misstatements. Negligence is also defined as reckless
behaviour resulting from a failure to exercise appropriate care and competence. It needs
confirmation of specified factors before the tort is established, despite the defendant's negligence
and the plaintiff's suffering or damages. Vicarious Liability refers to a circumstance in which an
employer is responsible for harm or injury incurred by a plaintiff as a result of an unlawful or
tortious conduct performed by his employee while on the job. Ravindran a/l Kunci Kuttan VS TNB
Berhad, this study could act as an reference for the vicarious liability. In the scenario given, Tan
Sri Ahmad has recourse against Ah Kiat and Ulasan Berhad.

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References
lawgovpol. (2019, October 5). Case study: Donoghue v. Stevenson (1932). Lawgovpol.Com.

Retrieved March 30, 2022, from https://lawgovpol.com/case-study-donoghue-v-

stevenson-1932/

Malaysia Negligence Law. (2018, August 29). MESSRS KS Chew Lawyers & Associates - Kuala

Lumpur Malaysia. Retrieved March 29, 2022, from http://www.kschewlaw.com.my/our-

services/negligence/#:%7E:text=In%20any%20negligence%20action%2C%20the,interest

s%20or%20rights%20of%20others.

The Carlson Law Firm. (2020, May 29). The Four Elements Of Negligence. Carlson Law Firm.

Retrieved March 29, 2022, from https://www.carlsonattorneys.com/news-and-update/four-

elements-negligence

Malaysia Negligence Law. (2018, August 29). MESSRS KS Chew Lawyers & Associates - Kuala

Lumpur Malaysia. http://www.kschewlaw.com.my/our-services/negligence/

Vicarious Liability. (2018). StuDocu. https://www.studocu.com/my/document/multimedia-

university/law-of-tort-2/vicarious-liability/9095482

Vicarious Liability - First Year - Second SemesterSummaries on based on Norcahaya Law of Tort

textbook. (2017). StuDocu. https://www.studocu.com/my/document/universiti-

malaya/tort-ii/vicarious-liability-first-year-second-semestersummaries-on-based-on-

norcahaya-law-of-tort-textbook/2302795

What is Vicarious Liability? (2021, 26 augustus). Law Teacher. Geraadpleegd op 30 maart 2022,
van https://www.lawteacher.net/free-law-essays/contract-law/what-is-vicarious-liability-
contract-law-essay.php

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L. (2019, 18 februari). Understanding Vicarious Liability in Tort – The value of a comparative

perspective – University of Bristol Law School Blog. About The Law School Blog.
Geraadpleegd op 30 maart 2022, van
https://legalresearch.blogs.bris.ac.uk/2019/02/understanding-vicarious-liability-in-tort-
the-value-of-a-comparative-perspective/

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Plagiarism Rate

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