Tort ii - Duty of care (Q4) PDF

Preview

Summary

QUESTION 4A—Uniphone v Chin Boon Liat [1998] 6 MLJ 441The plaintiff was a manufacturer and operator of public telephones, using telephone cards, with the approval of the Minister of Energy, Telecommunications and Post, in accordance with section 3 of the Telecommunications Act 1950. The 1st defendan...

Description

QUESTION 4 A— Uniphone v Chin Boon Liat [1998] 6 MLJ 441 The plaintiff was a manufacturer and operator of public telephones, using telephone cards, with the approval of the Minister of Energy, Telecommunications and Post, in accordance with section 3 of the Telecommunications Act 1950. The 1st defendant was the editor and the 2nd defendant the proprietor of a newspaper called New Life Post (the Post). The defendants published an article in the Post on 15.5.93. The plaintiff contended that in consequence of the publication of the said article, it had suffered loss in the sale of telephone cards because the owners of the disused telephone cards were using the same old cards without purchasing fresh cards. The plaintiff therefore contended that since the Post had a wide readership, the defendants had in fact by the said publication breached their duty of care to the plaintiff. The claim was thus founded on negligence and particulars of negligence were pleaded. The plaintiff claimed general and exemplary damages and special damages amounting to RM940,965.20 with interest and costs. Pendaftar dan Pemeriksa Kereta Motor, Melaka v KS South Motor Sdn Bhd [2000] 2 MLJ 540 The respondent is in the business of buying and selling new and used motor vehicles. On 8 July 1980, respondent was approached by 2 brokers who were anxious to sell 2 nd hand Mercedes-Benz car to the respondent and was registered in the name of Tay with a registration number of MF9857. The offer was taken up as it satisfied them that all the particulars given was in order in the registration book by the first appellant. Purchase price of RM25000 that was agreed, and after Tay signed the documents, the respondents took possession of the car and paid RM4000 to Tay as deposit and promised to pay the balance RM21000 once the car was registered by the second appellant in the respondent’s name. The respondent the found a ready buyer named Su after few transactions who purchased it at RM29500 on 23 July 1980. 7 months later, police informed the respondent that it was a stolen car that was reported missing in PJ back in June. Police investigations later revealed that the number plate was false and belonged to another vehicle and the first and the second owner were fake. In 1982, the respondent commenced proceedings against the 3 appellants at the Sessions Court claiming they suffered commercial when they refunded the whole purchase price, RM29500 to Su. The respondents also founded their claim based on 4 principals and causes namely torts of fraud, collusion, negligence and misrepresentation on the 1 st and 2nd appellants. The 3rd appellant is added by virtue of s5 of the Government Proceedings Ordinance 1956. Sessions court found the 1st and 2nd appellants negligent in registering the car based on forged documents and there has been negligent misrepresentation on the part of the appellants but insufficient evidence to prove fraud, collusion or negligent statement. The respondent’s claim was allowed, and the judgement entered against the appellants for special damages, interests and costs but not for general damages. Appellants appealed at the High Court and the Sessions Court judgement was affirmed.

MPAJ v Stephen Phoa Cheng Loon [2006] 2 MLJ 389 The Highland Towers consisted of three blocks of apartment known as Blocks 1, 2 and 3 situated on Lots 494, 495 and 635 Mukim Hulu Klang. On 11 December 1993, a landslide occurred resulting in the collapse of Block 1 and the subsequent evacuation of the respondents from Blocks 2 and 3. After the collapse of Block 1, the local authority MPAJ (the appellant) promised the respondents that a master drainage plan for the affected area on the hill slope behind Highland Towers would be formulated and implemented so as to ensure the stability and safety of the adjacent Blocks 2 and 3 occupied by the respondents. However, MPAJ failed to carry out the plan. Due to this, the respondents then filed a suit in the High Court against various parties including the appellant MPAJ, for negligence and nuisance. Dissatisfied with the High Court’s judgement, both the appellant and respondents appealed to the Court of Appeal. At the Federal Court, the appellant appealed against the decision of the Court of Appeal in affirming the High Court’s finding. Generally about before imposing a duty of care, which factors or which test is to be applied or considered in several circumstances

B— For the element of proximity, the duty of care by the first and second appellant is owed to the aggrieved party and not to the public at large, merely all the information given to paying class of persons who seek information is accurate to enable that class of persons to conduct private and commercial transactions in relation to the particular vehicle on which the information is sought. In the case of foreseeability, the second appellant must have been aware or ought to have been aware that the act of transferring the car into the respondent’s name may not be the last transaction conducted by the respondent on the car. The possibility of it being transferred by the respondent to a third party by way of a resale is there and being a car trader that possibility is real. C— It is fair because as per what was held by the court, the public relies on the information that is supplied by the appellants and is presumed to be accurate and detailed. D— First, in MPAJ case, the danger posed by the concept of diverting the East stream across the hill slope behind Highland and Towers was reasonably foreseeable. It was recognized by existing engineering codes. Secondly, the drainage requirements for the hill slope imposed by JPS were the result of its concerns for the safety of the Highland Towers apartment blocks, which were near the hill slope. There was therefore a direct link between the need for a safe drainage scheme on the hill slope and the Highland Towers apartment blocks below it. Thirdly, the Highland Towers tragedy had caused 48 died and although the other blocks did not collapse, however, all the residents who lived in those two blocks had evacuated and looked for shelter. Therefore, based on the ground of public policy, the court was urged to hold the MPAJ liable to require the diversion of the East stream without

ensuring its proper maintenance. Despite the grounds above are so advanced and negligence should be attributed to MPAJ, they still immunized against any liability under s95 (2) of Act 133.

In my opinion it is quite unfair to the community, and this section has helped the department to escape from the liability although in fact they were liable. For the Uniphone case, the court look at the three criteria, foreseeability of damage, proximity of relationship and whether in all the circumstances it is fair, just and reasonable to impose a duty. The court applied these tests and found that, there was no issue of foreseeability of damage, since the damage had already been done. It is no more foreseeable, compares to the previous case, the damage in that case was reasonably foreseeable. E— On the first ground, the expression 'causa causans' merely means a cause that causes. There may be more than one causes that causes a particular injury. Causation is a matter to be determined by common sense and what the law regards as fair, just and reasonable in the circumstances of a particular case. The relevant question is whether the acts and/or omissions of a particular defendant made a material contribution to the harm suffered by the plaintiff. And in this case, the appellant did contribute to the harm. On the second ground, when the facts as found by the learned trial judge which were accepted by the Court of Appeal are examined in the context of the specific provision under s 95(2), in particular the second and third limbs thereof, they fall squarely within its ambit. Thus, MPAJ and/or its predecessor Majlis Daerah Gombak are fully protected from liability under the said section. On the third ground, the respondents' claim for negligence by way of writ action is perfectly proper in law. The Court of Appeal has erred in holding that the respondents' only recourse against MPAJ lay in the area of public law by way of judicial review. At the time the respondents filed this present action, the public law remedy of judicial review under O 53 of the Rules of the High Court 1980, did not permit the recovery of damages. Hence, it is not inappropriate for the respondents to proceed by way of writ action which they did. The significant points made are that although the local authority is immunized, however, the respondent still can claim for damage under private law, and this point formulated the final decision of the court...