Tort tutorial 1 q4 PDF

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Read these cases: Pendaftar dan Pemeriksa Kereta Motor, Melaka v KS South Motor Sdn Bhd [2000] 2 MLJ 540 Uniphone v Chin Boon Liat [1998] 6 MLJ 441 MPAJ v Stephen Phoa Cheng Loon [2006] 2 MLJ 389 (a) Have a general consensus first and foremost, on the gist of the facts in these cases.(b) In Pendafta...

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4. Read these cases: • Pendaftar dan Pemeriksa Kereta Motor, Melaka v KS South Motor Sdn Bhd [2000] 2 MLJ 540 • Uniphone v Chin Boon Liat [1998] 6 MLJ 441 • MPAJ v Stephen Phoa Cheng Loon [2006] 2 MLJ 389

(a) Have a general consensus first and foremost, on the gist of the facts in these cases.

(b) In Pendaftar, identify the elements of foreseeability and proximity between the parties, as held by the court.

(c) Applying the “duty test” explain the court’s finding on whether imposing a duty on the public authority was fair or unfair. (d) In MPAJ the local authority as the public authority was held not liable. What was the issue surrounding foreseeability and proximity in these two cases? Can you reconcile these two decisions? (Spend some time analysing the similarities and differences between these cases)

(e) Discuss the grounds of the Federal Court decision in MPAJ. What are the significant points which formed the basis of the decision?

(f) Referring to Uniphone, what is different about the issues arising in this case? Is there a moral element in the judgement – and what would this be? (a)- (c) Note: These cases are generally about before imposing a duty of care, which factors or which test is to be applied or considered in several circumstances Talk on facts of case Uniphone: phone company claimed newspaper publishing steps how to recycle phone cards, cause them loss sale (private commercial Foreseeability: harm isn’t foreseeable, bcuz ady happened, so foreseeability failed Proximity: pf cannot be proximited within the neighbor principle Fair, just, reasonable: not right to impose on someone to expose fraud. crime Cases involving similar type of damage: pure economic loss, duty of care depends on type of damage inflicted, all decided after 1990, so imply all should apply Caparo

Pendaftar: motor trader loss bcuz bought stolen car, relied on pendaftar, then had to refund car sold to others (pendaftar here is a public authority/ body working on public funds, not directly pay, by tax of ppl who relied o the service) Foreseeability: foreseesble will rely on right info, if not right will damage business Proximity: no duty to public at large, on certain ppl only: to parties of transaction who ady paid fees to check accuracy of vehicle’s registration. (talked largely here) Fair, just, reasonable: fair because if paid ady, foreseeable pendaftar should perform the act paid for (not talk much here, implied only)

MPAJ: public body depending on public funds , directly pay (got COA and FC version) Pre collapse liability: negligent in approving plans, supervising ,no maintainence Post collapse liability: Omission to provide master drainage, security Whether owe duty in carrying out what they were supposed to do? Not provided by act, use 3 elements? Foreseeeability: Proximity: Fair just reasonableness: s95 provide immunity cannot liable in any case, but post collapse liability no fall under this section, so hv to see all 3 elements

d) Issue surrounding foreseeability and proximity in both cases: reasonable to expect the said actions been done by the local authorities, and put reliance on it. In MPAJ the appellant was held to owe a duty of care towards the respondent. The only reason why it is not liable is because the statute, s.95 (2) of The Street, Drainage & Building Act 1974 provides them immunity. Different from Pendaftar: no relevant statutes that render them immunity. Biggest difference: the immunity given by statutes.

e) 1st 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.

2nd 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.

3rd ground, it is a general principle that pure economic loss could be recover from an action of negligent.

4th ground regarding joint tortfeasor, where the injury has been done to the plaintiff and the injury is indivisible, any tortfeasor whose act has been a proximate cause of the injury, must compensate for the whole of it.

5th 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.

f) The issue here is whether a duty of care could be imposed when there is public interest.Yes there is a moral element since the court did consider is it fair and just to impose such duty of care. The court held that the fraud reported may cause more harm to the plaintiff but since it is public-spirited, the defendants had ventured to expose the fraud. Uniphone: damages ady done beforehand, after damage then put in newspaper As there is moral element, got duty to promote honesty, should uphold that although might harm others...