Law of Torts - Occupiers’ Liability Act 1957

Occupier

Occupier is a person who has sufficient degree of control over premises to put him under a duty of care towards those who came lawfully upon the premises.

Per : Lord Denning in Wheat V.E. Lacon & Co. - - The foundation of occupier’s liability is on occupational control not exclusive possession.

Visitors
 

There is one class of person namely visitor. (Includes contractual entrant, invitees and licensee under common law). Under the Act a person can be a visitor if:

a. By express invitation or permission.

b. By authority of law

c. By implied permission. This is question of law and the visitor must proof it.

Common Duty of Care

Section 2(2) of Occupiers’ Liability Act provides that the common duty of care only applies where the visitor is using the premises for the purposes for which he is invited or permitted to be there.

The occupier on the other hand under a duty to take such care in all circumstance of the case is reasonable to see that the visitor will reasonably safe in using the premises for the purpose he is invited. Please refer to the case of Wheat v Lacon & Co Ltd.

The Act gives example of circumstances where decree of care is required.

Section 2(3)(a) of Occupiers’ Liability Act - - an occupier must be prepared for children to be less careful than adults.

Section 2(3)(b) Occupiers’ Liability Act - - an occupier may expect that a person, in the exercise of his calling will appreciate and guard against special risks ordinary incident to it, so far as the occupier leaves him free to do so.

Bates v Parker - - Householder employs an independent contractor do work, to repair or clean. The contractor must satisfy himself as to the safety on which he is to work.

Specific Aspects

1. Warning

Section 2(4)(a) provides that the warning by the occupier regarding the danger must be sufficient in order for him to escape liability.

2. Volenti Non Fit Injuria

Section 2(5) of Occupiers’ Liability Act stated that this defence is available to the occupier, if visitor willing takes the risk.

3. Independent Contractor

Section 2(4)(b) provides that if damage caused to a visitor due to the faulty execution of any work of construction maintenance, repair by an independent contractor employed by him, the occupier is not liable if he had acted reasonably in entrusting the work to the contractor and he is satisfied that the contractor is complete and work properly done.

4. Contributory Negligent

If the visitor is at the same time is careless of his own duty and the occupier breach his common duty the damage will be apportion.

5. Exclusion of Occupier’s Duty

Section 2(1) - - An occupier may exclude or modify his liability to a visitor by express terms in a contract with his visitor or otherwise.

Occupiers’ Liability Act - - If the occupier brings the condition of notice to the visitors attention the occupier can escape liability.

See further OLA.

Law of Torts - Defamation

Definition
 
The law of defamation is governed by Defamation Act 1957. No definition provided. Common law definition:

“Defamation is the publication of a statement which reflects on a person’s reputation and tends to lower him in the estimation of right thinking members of society generally or tends to make them shun or avoid him”.

Types of Defamation

A. Libel

1. Libel consists of a defamatory statement or representation in permanent from i.e. picture, statute, or any writing, print or sign exposed to view (usually libel is in writing or printing).

2. Section 3 of Defamation Act – Broadcasting radio communication is treated as publication in permanent form.

3. Libel is actionable per se, no need to proof of special damage.

4. It is tort as well as crime – Section 499 / 500 of Penal Code.

B. Slander

1. Slander consists of a defamatory statement/representation conveyed by spoken words or gesture.

2. Although Slander generally is not actionable per se, (the P must show proof of special damage). But there are certain cases where Slander is considered as actionable per se and no need to proof actual damage. They are:

(i) Section 4 of Defamation Act – words which imputes unchastely or adultery to any women. Please refer to Luk Kai Lam v Sim Ai Leng.

(ii) Section 5 of Defamation Act – words calculated to disparage a person’s in any office, profession, business.

a. C. Sivanathan v Abdullah b. Dato’ Haji Abdul Rahman

b. Wan Abd Rashid v S. Sivasubramaniam

(iii) Section 6(1)(b) of Defamation Act provides in an action for slander of title, slander of goods or other malicious falsehood, P does not have to proof special damages.

For example A tells B that C is no longer operating his coffee shop, the statement may well deprive C of his business and C now can sue A for slander without have to prove special damages.

Element of Defamation

Words must be defamatory
 
i. The words must have a tendency to lower the P’s reputation in the estimation of right minded persons of the society, so that P is avoided or shunned or ridiculed.

Please refer to the case of Syed Husin Ali v Syarikat Percetakan Utusan Melayu Berhad.

ii. Mere words of abuse uttered in anger in the heat of moment cannot constituted defamation.

Please refer to the case of C. Sivanathan v Abdullah

iii. Words may be defamatory in one of the following 3 ways:

1. Natural and ordinary meaning – The words by themselves, as understood by ordinary men of ordinary intelligence must have the tendency to make them avoid the P. Please refer to the case of:

a. Levis v Daily Telegraph Ltd

b. Datuk Harris Salleh v Abdul Jalil Ahmad

c. Ng Chen Kiat v Overseas Union Bank

2. Innuendo – When words themselves in its natural and ordinary meaning is not a defamatory, but may be defamatory when combined with some special facts known to readers of the publication is known as innuendo. Please refer to the case of Tolley v JS Fry & Sons.

i. True or legal innuendo – it arises when the P has to adduce additional evidence to establish the meaning which he alleges that the words should be given. Please refer to the case of:

a. Tolley v JS Fry & Sons

b. Levis v Daily Telegraph Ltd.

ii. False Innuendo – It arises where the P alleges that the words, in their ordinary and natural meaning, bear a particular meaning which is discernible without the need for additional evidence.

3. Juxtaposition – If D places words, pictures or objects, which by themselves are not defamatory, i.e. placing P’s photograph in a pile of wanted criminals. Please refer to the case of Monson v Tussauds Ltd.

* For both innuendo and Juxtaposition intention/knowledge of D is immaterial. Please refer to the case of Cassidy v Daily Mirror Newspapers.

See also textbooks. 

Law of Torts - Damage to Property

Basic principle is Restitution in Intergrem

Total Destruction of Property
1. If the property is totally destroyed, P can claim the value at the time and place of the destruction or market price prevailing at the date of the destruction.

2. Consequential Damage – P also can claim consequential damage ie reasonable cost of hire a substitute until a replacement can be bought.

3. Loss of Business Profits – If P was using the property in the course of his business he can claim loss of business profits.
Liesbosch Dredger v SS Eddison - - P’s dredger during used in a project sunk due to D’s negligence. Court awarded:-
i. market price of a comparative dredger.
ii. the cost of adapting the new dredger and transporting to the site.
iii. compensation for disturbance in the carrying out of their contract till the new dredge could have reasonably available.

Damage to Property
If the property suffers only normal damage then P can claim for:

A. Cost of Repair
Dodd Properties Ltd v Canterbury City Council - - It is immaterial whether after repair the value of property goes up or not. If cost of repair higher than total value, only actual value can be recovered.

B. Loss of Use
P can also claim for loss of use if P was deprived from using due to time taken for repair.
Note : even if P was using it for pleasure, he is still entitle.
Assessment: Cost of a hire reasonable substitute. If not general damage awarded.

Mitigation of Damage
Applicable to both damages of Person & Property.
P must take reasonable steps on his part to avoid further any further loss. For example if P injured and he needs surgery but he refuse to it. Here P must proof it was reasonable for him to refuse.

The court must draw a balance between the act of P causing greater expenses to D and the act of D causing difficulties to P.

Tan Jie Hoo v Lian Soon Hing Shipping Co - - P suffered leg injuries due to accident. But mid way before trial he is able to do job. It was held that it is the duty of P to mitigate loss. Loss of earning awarded from date of accident till August 1985 not date of trial.

Tan Lian Heng v Kilang Papan Aman Sdn Bhd - - P Had tried to mitigate loss by looking for jobs but could not get. It was justified.

Lee Tai Hoo & Anor v Lee Swee Keat - - D drove a lorry negligently collided to P’s shop houses. It was damage severely. D admits his negligent. P did not repair until the day of judgment. It was held that:
i. paramount consideration is what the reasonable step taken by P to mitigate loss. If mitigation loss might cause detriment to P and his avoidance is significant.
ii. if mitigate is beyond P’s means then justified.
iii. in fact she did submit the plan and rejected is justified.