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BPD 20302
CONSTRUCTION
LAW

Dr. Norliana Sarpin

norliana@uthm.edu.my

Law of Torts in Construction

Project
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Content

Objectives
Introduction
Classification of law
Definition of law of tort
Basic features/requirement of tort
Types of tort
Tort in construction work
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OBJECTIVES
At the end of the lecture students should
acquire these abilities:

To describe the basic features of the

law of tort.
To explain the governing laws.
To relate principles of the law of tort
with construction works.
To discuss selected tort cases in
construction industry .
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INTRODUCTION

There is no one law that can be specifically called

‘construction law’.
Any law that directly or indirectly concerns with
construction is considered part of construction law.
The law of tort is another example of an area of the law
that is of vital importance in the study of construction law.
However, not all aspects of the law of tort relates to
construction.
+ INTRODUCTION

The knowledge of tort help avoid legal problems in

construction contracts.
There are construction contract terms that involve law
of tort.
+ CLASSIFICATION OF LAW

Public Law

Private Law
International Law
Public International Law
Private International Law
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CLASSIFICATION OF LAW

Public Law
Constitutional law / Undang-Undang
Perlembagaan
Administrative law
Criminal law
Traffic offences law
Immigration
Custom & Excise
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CLASSIFICATION OF LAW

Private Law
Family law
Commercial law
Contract law
Trust law
Tort
+ DEFINITION OF ‘TORT’

There is no single definition complete

enough to tell what ‘tort’ is.
The word ‘tort’ conveys little meaning to the
average layman
Its exact definition is matter of difficulty even to
lawyers
‘Tort’ - Latin – “tortus” which mean ‘twisted’ or
‘wrung’.
These two words signify - wrong
Therefore a ‘tort’ simply means a ‘wrong’ in its
most untechnical sense.
+ DEFINITION OF ‘TORT’

Salmond & Heuston:

“A civil wrong for the remedy is a

common law action for unliquidated
damages, and which is not exclusively
the breach of a contract or a breach of
trust or other merely equitable
obligations.”
+ DEFINITION OF ‘TORT’

Sir Percy Winfield:

“Tortuous liability arises from a breach of

duty primarily fixed by law; such a duty is
towards persons generally, and its
breach is redressible (boleh
diperbaharui) by an action for
unliquidated damages.”
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DEFINITION OF ‘TORT’

 Every civil lawsuit except for contractual disputes falls

under the category of tort law.

 Essentially, any civil lawsuit is tort law.

 The premise behind these laws is to provide

compensation to victims of wrongdoings.

 However, not every tort case is successful.

 So how can you make sure your tort case is successful?

 For any civil lawsuit to be successful, there need to be

four elements of tort law present and proven in court.
+ Basic Features/Requirement
of Tort

Fundamental Components of Tort / basic

requirement to establish an action of tort
eg: negligence, nuisance, etc.

1. A Duty of Care
2. Breaching Duty of Care
3. Causation which result in suffering
4. Damages
+ A Duty of Care

Every person (natural/legal) has duty fixed by law.

Examples:
Neighbour - not to do acts that will affect
neighbour’s comfort and health.
A person generally – not to intrude
another’s property without permission
Property owner – to ensure visitors that
enter premises safe and not expose to
danger.
Professional – to carry out duty with care.
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BREACHING DUTY OF CARE

If a person breaches duty – and another suffers

injury, death of damage of property, the person in
breach liable to the injured person
Examples

Person makes noise interferes with his

neighbour’s enjoyment and comfort.
Construction works causes injury to
visiting students .
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Causation which result in
suffering
 This part is crucial for a tort case because there needs to
be the action that has caused suffering to the victim.

 In the absence of the cause, there is no case for a tort.

 A key aspect of causation that a court will explore is

whether or not the victim’s injuries would have occurred
had the offender not committed the specific action that
resulted in the injury to the victim.
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Damages

 Thisis a crucial part of the puzzle because

without the damage or injury sustained then
there is no basis for a tort lawsuit.
Examples
Injury.
Death.
Damage of property.
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TYPES OF TORTS

Negligence
Occupier’s liability
Nuisance
Trespass
Defamation
Malicious falsehood
Deceit
+ Tort Scope
i. Violation of individual rights (safety, reputation, possession,
injury, etc.);
Perlanggaran hak-hak persendirian (keselamatan diri, nama baik, milikan, kecederaan);

ii. Violation of ‘duty of care’ under the “common law”;

Pencabulan kewajipan di bawah “common law”;

iii. Violation of ‘duty of care’ that rises from general rights e.g.
human rights (and not from personal/domestic relationship);
Perlanggaran sesuatu kewajipan yang berbangkit dari suatu hak umum (dan bukan
dari perhubungan persendirian/domestik)

iv. Violation of right “in rem” and not “in persona”; i.e. the
responsibility of all members of the civillized society towards
their neighbours;
Perlangaran suatu hak “in rem” dan bukan “in persona”: iaitu tugas umum semua
ahli masyarakat bertamadun terhadap jiran-jiran
Durga Das Basu, The Law of Torts, 9th Ed., New Delhi (1977)
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TORT & CONSTRUCTION

Negligence (Kecuaian)
Occupier’s liability
Nuisance (Gangguan)
Trespass (Pencerobohan)
Ryland & Fletcher
+ Definition - NEGLIGENCE

“A breach of a legal duty to take care, resulting

in damage to the plaintiff which was not
desired by the defendant.”
“The omission to do something which a reasonable
man, guided upon those considerations which
ordinarily regulate the conduct of human affairs,
would do, or doing something which a prudent and
reasonable man would not do.”
Hedley Bryne & Co. Ltd. Vs Heller (1964)*
+ TORT & CONSTRUCTION

Negligent

Dr. Abdul Hamid Abdul Rashid & Anor v.

Jurusan Malaysia Consultants (sued as a firm)
& Ors. [1997] 3 MLJ 546

Lee Kee v. Gui Seng & Anor [1972] 1 MLJ 33

+ Definition – OCCUPIER’S
LIABILITY

“An occupier has a common duty of care to all

persons on his premises by his invitation or
permission, express or implicit.”

“Wherever a person has a sufficient degree of

control over premises to realise that any failure
on his part to use care may result in injury to a
person coming lawfully there, then the occupier
is liable.”
“Wheat v. Lacon & Co. [1966] AC 552
+ TORT & CONSTRUCTION

Occupier’s Liability

Chong Fah Lin v. UEM [1978] 2 MLJ 259

Mohd Sainudin bin Ahmad v. Consolidated
Hotel Ltd. & Anor [1991] 1 MLJ 271
Sukumaran v. Building Construction Co.
(Malaya) [1969] 1 MLJ 233
Yeap Cheng Hock v. Kajima-Taisei Joint
Venture [1973] 1 MLJ 230
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Definition – NUISANCE

“An unlawful interference with another’s use of,

or enjoyment of, or right over, or in relation to
land, or damage resulted from such
interference.”
“Read v. Lyons. [1945] KB 216
+ TORT & CONSTRUCTION

Nuisance

Andrea v. Selfridge & Co. [1938] Ch. 1

The Asia Insurance Co. Ltd. v. Chan Wing &
Sons Realty [1962] MLJ 266
Wisma Punca Emas v. Dr. Donold R.
O’Holohan [1987] 1 MLJ 393
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Definition – TRESPASS

“An unjustifiable interference with possession.”

“A tort involving ‘direct and forcible injury’. ”

“Every invasion of private property, be it ever

so minute, is a trespass. ”
“Hashim bin Din v. Sato Cogyo Co. [1988] 1
MLJ 527
+ TORT & CONSTRUCTION

Trespass

Hashim Bin Din v. Sato Cogyo Co. [1988] 1

MLJ 527
Toyo Textiles Industries & Anor v. Liam Foong
Housing Development [1986] 1 MLJ 412
Lembaga Kemajuan Tanah Persekutuan v.
Mariam & Ors. [1984] 1 MLJ 283
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Definition – RYLANDS v. FLETCHER

“A person who for his own purposes brings

on his land 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.”

“Rylands v. Fletcher (1868) L.R. 3 H.L. 330

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Definition – RYLANDS v.
FLETCHER
 In Tort Law – relationship of the parties involved
- the form and level of the relationship will determine
the right and the liability involve
The commonly formed relationships are as below:
 employer – employee relationship

 client – consultant relationship

 client – contractor (sub-con)
 client – contractor – third party
 the overall relationships occur in the construction project
+ TORT & CONSTRUCTION

Principles in Rylnd v. Fletcher

FELDA v. TNB [1997] 2 MLJ 283

Yat Yuen Hong Co. v. Sheridan-Lea & Anor
[1963] 1MLJ 279
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norliana@uthm.edu.my
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TYPE OF TORT

Definition – DEFAMATION
The publishing of a statement that tends to lower
a person in the estimation of right thinking
members of society.
Where it involves criminal offences, it may be
‘actionable per se’.
Perunding Alam Bina v. Errol Oh & Ors. [1999]
6 MLJ 101
Normala Samsudin v. Keluarga
Communication [1999] 2 MLJ 654
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TYPE OF TORT

Definition – Malicious Falsehood

A false and malicious statement concerning a
person, made to someone other than that person,
relating to his property or business interest which
damages his general business interest. .
‘Malicious’ involves some dishonest or other
improper motive (but not carelessness).

Ratcliffe v. Evans [1892] 2 QB 524

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TYPE OF TORT

Definition – Deceit
A tort arising from false statement of fact made by
one person, knowingly or recklessly, with the
intent that it shall be acted on by another who, as
a result suffers damage.

Derry v. Peek (1889) 14 App Cas 337

Bradford Building Society v. Borders [1941] 2
All ER 295
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CAUSE OF ACTION

Type of action
Parties
Time
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GENERAL DEFENCES

‘Volenti non fit injuria’

Mistake
Necessity
Statutory authority
Self defence
Limitation period
Statutory provision
Contributory Negligent