Law of Tort II (LAW 1511)

Cases Review
Section 1

Lecturer
Dr. Suzi Fadhilah Ismail
By
Izzat Emir Hakimi Bin Jasme

1224091

Muhamad Ikmal Affandi Bin Zulkifli

1226641

Muhammad Hasif Bin Muhaidin

1223597

[1988] 3 CLJ 893

SRI INAI (PULAU PINANG) SDN BHD v YONG YIT SWEE

FACTS OF THE CASE
The judgment of the learned sessions court judge, Ho Mooi Ching, is published
immediately after this Court of Appeal judgment. See p 290.The first defendant (appellant) -- a
school, rented an old dwelling house from the second defendant (tenth respondent) -- a local
authority.] The first defendant rented the house which belonged to the second defendant for use
as a hostel to accommodate some of its students. The second defendant despite knowing that
young children would live in the old house, did nothing to upgrade the building to ensure that it
was safe for use as a hostel by young children. Subsequently a fire broke out in the house
claiming the lives of several children and causing serious injury to others. An action was filed in
the sessions court against the defendants in respect of the accident and at the conclusion of its
trial, the sessions court judge found the defendants equally liable for the deaths and injuries
caused by the fire. The first defendant appealed to the High Court contending that the second
defendant should be held solely liable. The second defendant cross-appealed for the same
purpose. The High Court however dismissed the appeal, allowed the cross appeal and awarded
costs against the plaintiff. Whilst the High Court accepted the findings of fact made by the
sessions court judge, it found for the second defendant purely on a point of law. The High Court
decided that as a matter of law the second defendant whether as a landlord or a local authority
owed no duty of care to the plaintiffs. The first defendant thus appealed to the Court of Appeal
with leave.
COURT DECISION
The court of appeal decided to set aside the verdicts made by the High Court and take
the opinion that the decision of the Sessions Court must be restored.
RATIO DECIDENDI
The court in arriving the decision of this case viewed the decision based in certain reason.
It is stated in the case that the court examine several issues. The court view that:
1)

Whether the duty of care has been discharged in a given case depends on a number
of factors present or absent on the peculiar fact pattern of the particular case. In

other words, the degree of care that ought to be exercised depends among other
matters on the magnitude of risk to which a plaintiff is exposed in particular
circumstances. Presently, the law of tort imposes a duty of care on a defendant who
assumes responsibility to perform professional or quasi-professional services for a
plaintiff who relies on those services. In such cases the relationship between the
parties is itself sufficient without more to give rise to a duty on the part of the
defendant to exercise reasonable skill and care in doing so. The assumption of
responsibility and the factum of reliance may be either express or may reasonably be
inferred from the circumstances of the particular case. In the instant case, the
sessions court judge would have been entirely justified in finding liability against the
first defendant on the basis that it had assumed responsibility for the safety of the
innocent pupils while they resided at the hostel and the latter had in turn relied on
the former to make the hostel reasonably safe (see pp 281C-D, H, 282A-B);
Government of Malaysia & Ors v Jumat bin Mahmud & Anor [1977] 2 MLJ 103
and Mohamed Raihan bin Ibrahim & Anor v Government of Malaysia & Ors [1981]
2 MLJ 27 followed; Hedley Byrne & Co v Heller & Partners [1964] AC 465; Smith
v Eric S Bush [1989] 2 All ER 514 and Henderson v Merrett Syndicates Ltd [1995]
2 AC 145 referred.
1)

In Malaysia, the Federal Court decision of Lembaga Kemajuan Tanah Persekutuan v

Mariam & Ors [1984] 1 MLJ 283 accepted the proposition that Donoghue v
Stevenson [1932] AC 562 overrides cases that preceded it where courts insisted
upon a pre-existing contractual relationship in order for a duty of care to arise. It is
entirely up to our courts to develop our common law jurisprudence according to the
needs of our local circumstances. This is in keeping with the common law tradition
(see p 285D-E); Invercargill City Council v Hamlin [1996] 1 All ER 756 andChung
Khiaw Bank Ltd v Hotel Rasa Sayang Sdn Bhd & Anor [1990] 1 MLJ 356 followed.
Following the jurisprudence encapsulated in the case of Lembaga Kemajuan Tanah
Persekutuan v Mariam & Ors [1984] 1 MLJ 283, a landlord of premises stands in
sufficiently close proximity to the lawful visitors of his tenant.In accordance with
Malaysian common law, a landlord of premises owes a duty of care to the lawful
visitors of his tenant (see p 286A, C-D); Cavalier v Pope [1906] AC 428

distinguished; AC Billings & Sons Ltd v Riden [1958] AC 240 and Lembaga
Kemajuan Tanah Persekutuan v Mariam & Ors [1984] 1 MLJ 283 followed;
Travers v Gloucester Corporation [1947] 1 KB 71 and Sutherland Shire Council v
Heyman [1985] 157 CLR 424 referred.
1)

The nature, scope and extent of the duty owed by a landlord to the lawful visitors of
his tenant is to ensure that the premises that are let out are safe for the purposes for
which they are meant to be used and the defect complained of by the entrant must be
a defect of which the landlord had knowledge or means of knowledge (see pp 286D287C); Jones v Bartlett [2000] HCA 56 followed.

1)

The evidence on record showed that the second defendant, despite being a local
authority whose duty it was to enforce compliance of the Uniform Building ByLaws 1986 ('the By-Laws'), did not comply with those very By-Laws when letting
out the building in question to the first defendant. It did not take any steps to meet
the requirements of the By-Laws in respect of the availability of a safe exit for
occupants in the event of a fire. It was well aware that the building was to be used as
a hostel for young children. In such circumstances the second defendant was not a
bare landlord. It exposed the plaintiffs to the risk of injury by its failure to comply
with the relevant By-Laws. It knew the purpose for which its property was to be
used. It was also well aware of the harm that would ensue to the children by reason
of the absence or inadequacy of fire escape exits. Accordingly, the second defendant
as the landlord of the premises in question owed a duty of care to the lawful visitors
of its tenant and was in breach of that duty (see pp 287F-288B); Donoghue v
Stevenson [1932] AC 562 and Lembaga Kemajuan Tanah Persekutuan v Mariam &
Ors [1984] 1 MLJ 283 followed.

1)

The High Court erred in important respects. By refusing to apply AC Billings &
Sons Ltd v Riden [1958] AC 240 on the ground that it was a case decided after the
coming into force of the Civil Law Act 1956, it overlooked the decision of the
Federal Court in Lembaga Kemajuan Tanah Persekutuan v Mariam & Ors [1984] 1
MLJ 283 which applied AC Billings and was a decision binding on it. The High
Court had thus acted contrary to the doctrine of precedent. The High Court's
interpretation of

s 3 of the Civil Law Act 1956 did not also accord with the

decision of Chung Khiaw Bank Ltd v Hotel Rasa Sayang Sdn Bhd & Anor [1990] 1
MLJ 356 which decision was also binding on it. As an appellate court will not
disturb the apportionment of liability for an accident made by the trial court except
in the rarest of cases -- and the present case was not such a case -- the apportionment
of equal liability by the sessions court had to be restored. The High Court had found
the first defendant 100% liable on a ground of law with which the Court of Appeal
could not agree (see pp 288E-F, 289C-D); AC Billings & Sons Ltd v Riden [1958]
AC 240; Lembaga Kemajuan Tanah Persekutuan v Mariam & Ors [1984] 1 MLJ
283 and Chung Khiaw Bank Ltd v Hotel Rasa Sayang Sdn Bhd & Anor [1990] 1
MLJ 356 followed.
COMMENT
In this case, we are about to discuss the topic of occupier liability. Basically, occupier
liability is when the liability for dangerous structures (including land) forms a special subhead of
the general doctrine of negligence. The structures are including the immoveable property like
taxis, buses, railway carriages, gangways and scaffoldings.
Generally, an occupier is a person who has a sufficient degree of control over premises to
put him under a duty of care towards those who came lawfully upon the premises. There may be
one occupier of the same structure at one time.
In this case, the Court of Appeal arrived at one decision saying that the decision made by
the Sessions Court should be restored meanwhile the decision made by the High Court should
otherwise be set aside. The Session Court decided judge found that the defendants equally liable
for the deaths and injuries caused by the fire. It means that both first defendant which is the
tenant of the premises, and the second defendant which is the landlord of the premises should be
equally responsible for the deaths and injuries incurred due to the fire that was broke out. The
Sessions Courts judge justified that the first defendant should also be put into liability on the
basis that it had assumed responsibility for the safety of the innocent pupils while they resided at
the hostel and the latter had in turn relied on the former to make the hostel reasonable.
Also, the court looked into the case of Lembaga Kemajuan Tanah Persekutuan v Mariam
& Ors [1984] 1 MLJ 283, the court held that a landlord of premises stands in sufficiently close
proximity to the lawful visitors of his tenant. In accordance with Malaysian common law, a
landlord of premises owes a duty of care to the lawful visitors of his tenant. As referred to this

case, the Sessions Court agreed that the second defendant also should be held liable to the
tenants visitors based on their relationship between landlord and tenants.
Furthermore, the judge of the Sessions Court also referred to the case of Jones v Bartlett
[200] HCA 56 where it is said in this case that the landlord owed the duty of care to the lawful
visitors of his tenant where the landlord must ensure that the premises used are let out to be safe
for the purposes for which they are meant to be used and the defect complained of by the entrant
must be a defect of which the landlord acknowledged it.
Accordingly to this case, the second defendant acknowledged that they did not comply
with those very By-Laws when letting out the building to the first defendant, the tenant to be
exact. The second defendant did not make any safe exit for the occupants in the event of
emergency. They already knew that the building will be used as a hostel for the occupants as a
place to dwell. Without doing any steps of precaution in ensuring the premises is safe in any
condition, the second defendant have exposed the plaintiff with the risks of injury by any means
of emergency.
In short, it is fair, just and reasonable to say that both defendant are equally liable for the
death and injuries incurred due to the fire against the plaintiff.

[2002] 5 MLJ 113

YIP SHOU SHAN v SIN HEAP LEE-MARUBENI SDN BHD

FACTS OF THE CASE

The plaintiff owned Lot 1360 and the defendant owned Lot 157 situated in the Mukim of
Cheras, District of Hulu Langat, Selangor. Lot 1360 was separated on its southern boundary from
Lot 157 by a strip of state land approximately 40 feet wide ('the access reserve'). The defendant
had carried on development works on its land for the purpose of developing a golf course and a
huge residential and commercial complex. The development had resulted in physical damages to
the plaintiff's land. Sometime in February 1996, the defendant, without the plaintiff's consent,
constructed a crib-wall on the access reserve part of which was on the plaintiff's land. The
plaintiff brought an action against the defendant for general damages and exemplary damages
based on trespass and nuisance. The defendant contended that there were two incidents of
trespass and that at the time of first incident, the plaintiff was neither the registered proprietor nor
was he in legal possession of Lot 1360 and hence the plaintiff did not have the capacity to
maintain an action in this respect; and that as for the second incident, that the trespass was
incidental and minimal besides being unintentional and was mitigated by the need to do so in
order to lower the levels on the access reserve.
COURT DECISION
Court decided that plaintiffs claims against the defendant is allowed on ground of
trespass to land that is committed by the defendant towards plaintiffs land.
RATIO DECIDENDI
The court in arriving the decision took both Sessions Court and the High Court verdict in
examination. The Court of Appeal however agreed that the Sessions Courts verdict should be
restored and set aside the decision made by High Court regarding this case. The court view that:
2)

As at 29 June 1991, the vendor was a bare trustee and the plaintiff became entitled to
possession of the land in law; and by cl 6 of the agreement, the plaintiff was
contractually entitled to vacant possession on completion of the sale; and hence, the

plaintiff's right of entry accrued on 29 June 1991. By the doctrine of relation back, if
an owner who has a right to enter makes an entry on land, his right of possession is
related back to the time at which his right of entry accrued, and he may sue for a
trespass committed before his entry, the wrongdoer thus becoming a trespasser by
relation. The plaintiff and his agents entered and took physical possession of the
land on 18 July 1991, that is to say, before the first incident when the first survey
was conducted. Therefore, by the doctrine of relation back, the plaintiff was clearly
entitled to maintain this action even though he was not in physical possession at the
time of the first incident (see p 122E-G).
2)

The issue of possession was not pleaded by the defendant. Trespass was essentially
an interference with the possessory rights and not ownership, since registered
ownership does not usually connote legal possession. Therefore, on the pleadings as
it stood and the evidence adduced, in law and in the interest of justice, the defendant
should not be allowed to submit on the issue of possession, being repugnant to all
three situations as envisaged in O 18 r 8(1) of the Rules of the High Court 1980. The
proper defence to trespass to land is to deny possessory title of the plaintiff which
must be specifically pleaded (see pp 122H, 123A-C).

2)

The physical damage caused by the defendant's trespass had resulted in the
withdrawal of soil to soil support and the loss of lawful use of the land by the
plaintiff. The crib-wall built by the defendant was to be regarded only as a
temporary measure because not only it did not at all protect the plaintiff's land but it
was also not sufficient to prevent future soil failures, that is to say, the crib-wall
would not guarantee the stability of the slope. There was a real probability, not just a
possibility, of prejudice to the plaintiff's intended development of his land; Wong
See Lee & Ors v Ting Siik Lay [1997] 2 CLJ 205 (folld) followed. If the plaintiff
intended to develop his land, extra protection of the slope would be needed or a very
expensive foundation works would be required for any building to be built near the
slope (see p 120C-D, F-G).

2)

The defendant was liable to the plaintiff both in trespass and nuisance and the
plaintiff had suffered actual damage in consequence of the torts committed by the
defendant (see p 123F-G).

COMMENT
In this case, defendant has committed the tort of trespass to land against the plaintiff. It is
stated here in the facts of this case that the defendant had carried on development works on its
land for the purpose of developing a golf course and a huge residential and commercial complex.
Later, the work made by the defendant resulted in physical damages to the plaintiff's land.
Sometime in February 1996, the defendant again, without the plaintiff's consent, constructed a
crib-wall on the access reserve part of which was on the plaintiff's land.
Under the eyes of the law, the defendant had committed trespass to land against the
plaintiff. Trespass to land consists of an intentional wrongful entry and interference with
someones ownership or rightful possession of land. It is unjustifiable intrusion by a person upon
the land in the possession of another. The slightest crossing of the boundary is sufficient to
constitute trespass. In the case of Cheah KimTong v Taro Kaur [1989] 3 MLJ 252, Peh Swee
Chin J reiterated that any trespass is actionable per se. It is not necessary for the plaintiff to prove
that he suffered actual damage. Accordingly, in this case the defendant had encroached upon
plaintiffs land as a subsequent from the development works he carried on purpose. The physical
damage caused by the defendant's trespass had resulted in the withdrawal of soil to soil support
and the loss of lawful use of the land by the plaintiff.
As a result, court allowed plaintiffs claim against the defendant on ground of trespass to
land. Defendant was liable in this case as there was physical damage that inflicted against the
plaintiff.

[1973] 2 MLJ 56
Syed Husin Ali v Syarikat Perchetakan Utusan Melayu Bhd
FACTS OF THE CASE

In this case, the plaintiff claimed damages for libel contained in a newspaper published
by the first defendant and of which the defendant was the editor. The publication was admitted
and it was proved that the words complained of referred to the plaintiff. The plaintiff alleged that
the words complained of were capable of the following false innuendoes, namely that the
plaintiff was dishonest, disloyal to the Government, a subversive element, an irresponsible
politician, an ungrateful person, a supporter of President Sukarno and an instigator of unrest in
the country.
DECISION OF COURT
The words complained were defamatory of the plaintiff. The court awarded damages in
sum of $6500 to the plaintiff.
RATIO DECIDENDI
In this case, publication has been admitted, and the fact that the words complained of
refer to the plaintiff has been proved beyond doubt since the plaintiff was referred to by name
and as well as by photograph in the news report. The action falls within the type of cases in
which the ordinary and natural meaning of words only arise from them by inference or
implication, and as such plaintiff has correctly pleaded the meaning he ascribes to the words.
Such a meaning, which should be regarded as part of the natural and ordinary meaning of the
words, has been described as a "false innuendo" as distinguished from a "true" or "legal"
innuendo, or a secondary meaning.

COMMENT
The judge in this case arrived to the decision of the case because the elements of
defamations have been fulfilled. For the first element which is word must be defamatory, the

defendants words were defamatory in the way of innuendo. The second element fulfilled was the
words were referring to the plaintiff, which in this case, the defendant admitted that the words
were referring to the plaintiff. The article was published in Utusan Melayu, fulfilling the third
element of defamation which is the words must be published.

[1993] 2 MLJ 207

Kuan Kwai Choi v Ak Zaidi bin Peg Metali

FACTS OF THE CASE

A warrant of arrest dated 11 June 1990 was issued by the magistrates' court authorizing
police officers to arrest the plaintiff for failure to attend court and to produce the plaintiff before
the court. On Saturday 23 June 1990 at about 10am, the defendant, an inspector of the Royal
Brunei Police Force in the execution of the said warrant, arrested the plaintiff at her home and
brought her to the police station where the plaintiff was locked up at about 10.30am. The
defendant drove to the central police station where at about 11am, he wrote a minute to his
superior, DSP Kamaludin who later in the day at about 4pm ordered the defendant to take the
plaintiff to court. The defendant and DSP Kamaludin phoned up the court but could get no
answer. Shortly before 4.30pm on the same day, the defendant signed a minute stating that he
could not bring the plaintiff to court in time that day. Thereafter, the defendant had nothing
further to do with the case. The plaintiff was kept in custody for 52 hours before being finally
taken before the court on Monday 25 June 1990 at about 2pm. The plaintiff instituted the present
suit against the defendant claiming damages for false imprisonment.
COURTS DECISION
The plaintiffs claim was allowed with cost. The sum of $3000 was awarded to the
plaintiff as damages for wrongful imprisonment.
RATIO DECIDENDI
There was nothing in the warrant authorized the detention of a person arrested under it.
Under s 47 of the Criminal Procedure Code it is provided that the police officer or other person
executing a warrant of arrest shall 'without unnecessary delay' bring the person arrested before
the court. If a court is not sitting, or a magistrate is not available at the time when the arrest took
place such circumstances may be regarded as a necessary delay. The plaintiff was arrested
shortly after 10am and the magistrate should have been available for some six hours thereafter.
The court found that there was unnecessary delay in this case as no effort was made to take the
plaintiff in front of a magistrate during that time. Between 10.30am and 4pm on 23 June, the
plaintiff was falsely imprisoned. From 4pm onwards, DSP Kamaludin had charge of the plaintiff
and could have released her. Therefore, the liability of the defendant did not extend beyond the
first six hours.

COMMENTS
The court has made it clear that the warrant does not authorize anybody to detent the
defendant. The defendant should not delay in bringing the plaintiff to the court after arresting the
plaintiff. All four requirements to constitute false imprisonments which are complete restraint,
restraint of personal liberty, intention and without justification were fulfilled in this case. The
defendant cannot use lawful arrest as defense because the warrant requires immediate action of
the defendant to bring the plaintiff to the court, and not to delay the action. Since the defendant
unlawfully put the plaintiff in a lockup, he has committed false imprisonment.

[1982] 1 MLJ 313

Sidek Bin Haji Muhamad & 461 Ors v The Government of The State of Perak & Ors
FACTS OF THE CASE

In this case the appellants who were squatters came to Teluk Anson (now Teluk Intan)
in 1950. They were from Kedah, North Perak and Selangor and they opened up a large part
of a jungle area in the Mukim of Bandar, Teluk Anson. Between 1950 and 1970 more and
more squatters came and settled in the area. The State Government put up a plan to organize
the settlement of these squatters. After a meeting held in January 1977 between the pioneer
settlers and government officials including the District Officer of Perak Tengah, the District
Officer promised that each settler family would be given five acres of padi land subject to
successful interviews to be held by the District Land Committee. There were also articles in
the Utusan Melayu, quoting Bernama as the source, stating that the State Government was
prepared to open up about 10,000 acres of land to be developed by the squatters. However,
after the interviews some of the squatters were given 3 acre lots but others including the
appellants were not successful. The appellants were given notice to stop work and to vacate
the area. They then filed a writ, asking for a declaration, inter alia, that they are entitled in
law and in equity to be in possession of their respective lots, originally pioneered, opened up
and occupied by them. The respondents say that the appellants are not entitled in law and in
equity to compel the State Government to give State land to them as they were and are in
illegal occupation of State land. The respondents applied under Order 18, rule 19 of the
Rules of the High Court to strike out the appellant's action on the grounds that they were
squatters and that it was within the sole discretion of the State Government to alienate land.
COURTS DECISION
The learned judge dismissed the appellants claimed because they were squatters.
Squatters have no right either in law or in equity. Illegal occupation of State land is an
offence under section 425 of the National Land Code and a court of equity will never assist
squatters to resist an order of possession illegally acquired and it will never intervene in
aid of wrongdoers.
RATIO DECIDENDI
Their position under the National Land Code is not dissimilar. Section 48 of the Code
is against them. It says that "No title to State land shall be acquired by possession,
unlawful occupation or occupation under any license for any period whatsoever." Section

78 of the Code is also relevant. It says that alienation of State land shall only be effected in
accordance with the provisions of Chapter 3, of Part Five and Chapter 2 of Part Eleven,
and notwithstanding that its alienation has been approved by the State Authority, the land
remains State land until registration under the Code. Section 341 of the Code empowers
the State Authority to dispossess any squatters at any time. So the limitation period does
operate against the State. What equitable right or interest can be conjured up for the
squatters who have illegally occupied State land? Squatters go into possession by, or as a
result of, illegal occupation of State land. Illegal occupation of State land is an offence
under section 425 of the National Land Code. It is well established that a court of equity
will never assist squatters to resist an order of possession illegally acquired; it will never
intervene in aid of wrong-doers.
COMMENT
This case was explained to people that squatters have no right to claimed states land
as theirs even though they settled that land. This decision was acceptable since it was
followed by the later cases. For example, in the case of Yap Pun & Anor v Orang-orang
Yang Tidak Dikenali Yang Menduduki Di atas Tanah Yang Dikenali Sebagai Lot No 108,
Seksyen 92A, Bandar Kuala Lumpur and Muhammad Saleh Bin Hashim & Ors v Percon
Corp Sdn Bhd. So, it shows that this decision was reasonable in the eyes of laws. However,
the act of the Government of State of Perak which was not fulfilled their promise shows
that they were doing something immoral that can make the citizen lost their faith on the
state government respectively.