nuisance and occupiers liability

Liability in nuisance

Cases

to liable, establish

1) act interfere with use and enjoyment of a part of society/land

2) P suffered special damage as result

3) D known or presumed to, of the nuisance but allowed it to continue

place steel pipes at roadside - Lim kar bee v Abdul latif b Ismail

excavating near p's house - wisma punca emas sdn bhd v Dr Donal

Clearing and levelling land above P's propety - Steven Phoa Cheng Loon & Ors v Highland Properties sdn bhd & Ors

leaving vehicle middle of the road...

causation

follow The Wagon Mound - remoteness, reasonable man would foresee

defense

1) easement

2) statutory authority empowers D to do so

3) necessity 4) Consent of P

5) contributory Negligence

Liability in Industrial accident

P have to show to work in factory defined in Factories and machinery Act 1967

and D owner/occupier

hasn't provide safe place for P o work

Factories and machinery Act 1967

refer general papers q&a page 62

cases

datuk bandar dewan bandaraya kuala lumpur v Ong kok Peng - lift rosak, no warning signs, no baricade, P injured, D owed DOC and also under FMA 1967 fail to maintain lift and cannot escape liability by simply delegating it to 3rd party

Mohd sainudin bin ahmad v consolidated hotels ltd & anor - owner of site is not the occupiers, the main contractors are, P's claim dismissed

Liang Jee Keng v Yik Kee Restaurant - SOCSO

Defense

1) volenti non fit injuria

2) D put up sufficient warning or notice

3) contributory negligence

4) s.31 SOCSO act 1969 5) exclusion clause

Occupiers Liability

for D liable under OL, following Wheat v Lacon & co Ltd, P has to establish that...

D is occupier of premises, cause D is in possession or has control of the premises

P entered premises as

a) paying guest

b) invitee c) licensee

d) trespasser

D owed DOC to entrees

if P is paying guest, highest DOC

D breached DOC

damage not too remote - Wagon Mound

cases

datuk bandar dewan bandarya KL v Ong Kok Peng - mentioned above

sri inai sdn bhd v yong yit swee & ors - school and local council both liable for inadequate exits

Takong Tabari v Govt of Sarawak & ors - gas explode, bank and govt. or srwk (public work department) both liable as Bank were occupiers owed DOC, govt. of srwk breached DOC by not testing gas leakage, ratio is 90:10

lew thai v chai yee chong - OMISSION to instruct worker stop working during heavy rain and suffered injuries, D held liable

BOP

same old tan ah kau vs govt of malaysia, P bear BOP of balance of probabilities, P may also raise res ipsa liquitor tender docs....(refer Motor accident)

Defense

1) volenti non fit injuria 2) warning and barriers

3) cont. neg. 4) exclusion clause