A) Nature of law
1) Laws like morality , designed to control our behavior
- unlike morality, enforced by courts; may force to pay fine, damages, go to prison
if break the law
2) Oxford dictionary, law - body of enacted or customary rules recognized by a
community as binding.
3) Jurisprudence by Sir John Salmond, law the body of principles recognized and applied by the state in the
administration of justice.
In short, law - a body of rules which are enforced by the state.
B) Classification of law
i) Public Law
Public law deals with matters that affect society as a whole.
E.g: criminal, constitutional and administrative law. - that deal with the relationship
between the individual and the state.
i) Private Law
Deals with the relationships between individuals to settle private disputes
Private suits = civil suits.
ii)International Law
International laws prevail between States.
International law - a body of law composed for greater part of principles and rules of
conduct with the States feel themselves bound to observe and consequently commonly
observe in their relationships with each other.
C) Sources of Malaysian law legal sources - Legal rules that make up the law in
Malaysia.
i) The written law - Most important source of law.
1) The Federal Constitution - supreme law of the country.
The rights in the constitution can be changed by a two-third majority of the total
members of the legislature
2) Legislation - law enacted by a body constituted for a purpose.
3) Customs
Local customs that was accepted as law by the courts in Malaysia.
Generally relate to family law i.e. marriage, divorce and inheritance are given legal force
by Malaysia Court
(e.g: motor vehicle accidents; landlord and tenant disputes and distress
proceedings.)
b) Superior courts
i) High Court :
Two High Courts of co-ordinate (equal) jurisdiction and status;
- High Court in Malaya for Peninsular Malaysia
- High Court of Sabah and Sarawak.
3 types of jurisdictions vested in the High Court:Original Jurisdiction; Appellate Jurisdiction; and Revisionary & Supervisory
Jurisdiction.
a) Original
Criminal : S.22 - hear all criminal cases and pass any sentence. But, in practice hear
cases which the sessions courts have no jurisdiction.
Civil : General: S.23 - hear all civil cases & has unlimited monetary jurisdiction.
However, in practice hear cases where the claim exceeds RM1,000,000.
Special: S.24 (1) divorce, bankruptcy, admiralty, guardian, probate
b)Appellate : S.26 & S.27 - hears all civil and criminal appeals from the subordinate
courts.
c) Revisionary & Supervisory : S.31 & S.32
- power to revise criminal proceedings in subordinate courts
- to call for & examine the record of any civil proceedings before such court satisfy itself
as to the correctness, legality/ propriety of any decision recorded/passed, and as to the
regularity of any proceedings of any such subordinate court.
ii) Court of Appeal
- headed by President of the Court of Appeal.
Civil : hear and determine any appeal for cases where the amount or value of the
subject-matter of the claim is not less than RM 250,000
Criminal: hear and determine any appeal against any High Court decision
iii) Federal Court :
- Highest court in Malaysia.
- Consist of Chief Justice, the President of the Court of Appeal, the Chief Judge of Malaya
and the Chief Judge of Sabah and Sarawak, and six Federal Court Judges.
- hear disputes on any matter between any state and the federal government.
- hear civil & criminal appeals from the Court of Appeal.
c) Special courts
i) Young offenders Courts :
The Malaysia Child Act, a consolidation of 3 previous laws on issues relating to child
protection and juvenile justice,
e.g: Juvenile Courts Act, Women and Young Girls Protection Act and Child Protection Act.
Hear, determine or dispose of any charge against a child. Comprises of a Magistrate and
2 advisers. Jurisdiction: Hear all offences except offences punishable with death.
S.91-97- if a child is found guilty of an offence, he shall not be imprisoned, but may
sent to an approved school or released on bail. For capital offences, detain of the child
in prison is at the pleasure of the Yang di-Pertuan Agong or Ruler.
ii) The Industrial Court :
Industrial court & Special Commissioners of Income Tax- Provide specialized
adjudication of disputes of a technical character, tribunals,
- Established under the Industrial Relations Act, and deals with trade disputes.
- Consists of a President appointed by the Yang di-Pertuan and a panel appointed by the
Minister of Law.
- Jurisdiction : trade disputes and dismissal of a workman who is not a union member.
- Award: the decision handed down by the Court
E)Liability
legal responsibility, the counterpart to legal right.
- A situation where a person is legally responsible for a breach of an obligation imposed
by law.
- May arise due to operation of civil or criminal law.
a) Contractual liability- Arise during a breach of a legally enforceable agreement entered into by two or
persons/parties.
- Can be in the form of products liability (defective product/ goods that injured
consumers and others ).
b) Tortuous liability-
- Arise during a breach of a duty imposed by law. e.g. breach of duty of care owed
by one person to another.
- Law of tort seeks to compensate the victims of certain forms of harmful conduct by
an award of damage or an injunction which prevents the harm from reoccurring.
- Can take form in the context of vicarious liability (one person being liable for the harm
caused by another) and strict liability (liability imposed on the defendant without any
proof of his fault).
c) Criminal liability- Arises due to a criminal act committed by an individual.
A crime is an offence against the State. Hence, criminal law is distinctive for the
uniquely serious potential consequences of failure to abide by its rules. Capital
punishment is imposed for the most serious crimes with physical or corporal
punishment - whipping or caning, (prohibited in some parts of the world)
- can be in the form of strict liability offences ( mens rea is not required in the
commission of such an offence )
Chapter 2 - Contract law
1) Contract - a legally binding agreement between two parties.
- regulated by the Contracts Act 1950.
If Contracts Act or Malaysian decided cases does not dealt on the law of contract subject
sufficiently or not at all, then the English law may be applied
Essential elements or pre-requisites of a valid contract are:
1.
2.
3.
4.
5.
Offer
Acceptance
Intention to create legal relations
consideration
Capacity
- Can be oral or written, or implied from the conduct (behaviour) of the parties or from
the circumstances concerned, as they can be express or implied.
Section 9:So far as the proposal or acceptance of any promise is made in words, the
promise is said to be express. So far as the proposal or acceptance is made otherwise
than in words, the promise is said to be implied.
- can be made to an individual or to a large number of people. It must be a definite
promise where offeror intends to be legally bound by the terms stated.
Carlill v Carbolic Smoke Ball Co. (1892) : The court held that the advertisement
was an offer to the world at large, and Mrs. Carlill had accepted the offer by purchasing
and taking the remedy.
B) Invitation to treat
For goods on display in a shop or supermarket, the law decided that the customer is
who makes the offer by taking the goods and placing them on the counter, and the
shopkeeper or cashier accepts the offer by accepting the customers money.
- The price displayed is not the offer but an invitation for customer to make
an offer
- The law gives the shopkeeper or cashier the right to accept or reject a customers
offer.
Pharmaceutical Society of Great Britain v Boots Cash chemist Ltd. ( display of
goods)
The court held that the display of goods was not an offer but an invitation to treat. It
was the customer who made the offer and Boots could either accept or reject this offer
(in the presence of the qualified pharmacist). The act of constituting the acceptance is
the counting the price by the cashier and at that moment a binding contract of sale is
made.
Partridge v Crittenden (ads)
The high court decided that the advertisement was not an offer but an invitation to
treat. However, the advertisements under the category of unilateral contracts are
considered as offers, not invitations to treat.
Harvela Investments v Royal Trust of Canada ( bids)
The defendants were bound to accept the highest bid, the referential bid did not have
a fixed amount attached to it and as such could not be accepted or even submitted
Blackpool & Fylde Aero Club v Blackpool Borough Council (application form)
Court of Appeal found invitation to tender was an offer to consider any tender which
was submitted as required and tenders correctly submitted would be acceptance of that
offer
C) Acceptance
Section 2(b) : when the person to whom the proposal is made signifies his assent
thereto, the proposal is said to be accepted; a proposal, when accepted, becomes a
promise.
- Unconditional consent to the terms of the offer, a final and unqualified acceptance
of the terms of an offer.
If the acceptance contains any reservations, variations to the terms of the offer, etc,
then the acceptance will be conditional. And since it is not unconditional, it is not an
acceptance but a new offer or COUNTER OFFER.
General rule - an acceptance must be communicated to the offeror. A mere silent cannot
amount to acceptance, unless it is absolutely clear acceptance was intended.
Entores v Miles Far East Corp Lord Denning stated that acceptance must be communicated by offeree or someone
authorised by offeree. If someone accepts on behalf of the offeree w/o
authorisation, this will not be a valid acceptance.
Powell v Lee - the court stated that the offeror cannot impose a contract on the
offeree against his wishes by deeming that his silence should amount to an acceptance
The Postal Rule - ONLY applies when the acceptance is sent by post.
As acceptance by post has been requested or an appropriate and reasonable means of
communication between the parties existed, then acceptance is complete as soon
as the letter is posted, even if the letter is delayed, destroyed or lost in the post so
that it never reaches the offeror.
Adams v Lindsell
The court held that acceptance took effect when the letter was posted. It is Lindsell
delay that was default; hence Lindsell has to provide the Adam the wools for sale,
D) Revocation of Offer/Acceptance
Section 5 : A proposal may be revoked at any time before the communication of its
acceptance is complete as against the proposer, but not afterwards.
Section 6(a) : An offer may be withdrawn at any time before acceptance is complete
In general, an offer terminates:
Section 2(d). the price in a bargain. The price need not be money, but must have a
monetary value.
Section 25 - if the consideration or any part of it is unlawful, the agreement is void.
Examples: If A buys a packet of groundnuts, the consideration which A provide is the
money, whereas the consideration moving from the shopkeeper is the packet of
groundnuts. They have each provided consideration for the business transaction. (not
important)
- Need not be adequate, but sufficient and must be measurable in terms of some
economic gain or loss
Phang Swee Kim v Beh I Hock:, the Federal court held that an agreement to which
the consent of the promisor is freely given is not void merely because the consideration
is inadequate.
However if A said to B that she could have his new Mercedes in return for her
praying for him, wishing him good health, there would not be sufficient
consideration if B actually carried out the praying and wishing.
E) Capacity
Section 11: Every person is competent to contract who is of the age of majority
according to the law to which he is subject, and who is of sound mind, and is not
disqualified from contracting by any law to which he is subject.
Any person may make a contract, except the law protects certain people group (minors,
mental patients ) who has inherent weakness or disability, cannot be expected to
manage their own affairs adequately.
MINORS & UNSOUND MINDS DISQUALIFIED BY LAW
Nash v Inman (1908) : The father proved that the infant was amply supplied with
such clothes when the tailor supplied the clothes concerned. The court held that the
goods supplied were not necessaries..
Government of Malaysia v Gurcharan Singh & Ors, the court held that education
was included under necessaries.
Contracts [Amendment] Act - for scholarships or loans given by the government or a
statutory body or an educational institution, the scholarship agreement entered into
by an infant is valid.
2) Terms of contract
made up by the content of a contract
-known as clauses in written contracts
- may be express or implied.
Express terms terms stipulated by both parties in making the contract that is either
orally or in writing
Implied terms - terms not expressly stated in the contract but are deemed to be
included in the contract.
The courts can imply certain terms into the contract, reason is that the implied terms
are required by a statute like Sale of Goods Act, the Hire-Purchase Act and
the National Land Code.
The Moorcock : The court held that there was an implied term that the ground
alongside the wharf was safe at low tide since both parties knew that the ship must rest
on it. Terms may be implied from previous dealings between the parties concerned.
Hillas & Co Ltd v Arcos Ltd : The court held that the missing terms of the agreement
could be imported/implied by reference to the transactions in 1930.
Conditions terms
- an important term of the contract that goes to the root of the contract. If breached,
the injured party may repudiate (get out of) the entire contract or continue the contract
and sue for damages (compensations).
Warranties terms
A lesser term, any breach may entitles the injured party to damages, not repudiation of
the contract.
A statute states a term shall be is or is not a condition (Sales of Goods Act implied
conditions and warranties).
A term as a condition or warranty is not conclusive and is left to the court to classify
whether it has been breached, usually on the basis of the commercial importance of the
term.
Guarantee is the warranty which the manufacturer of goods gives as an offering to
replace part for free against faulty workmanship ( not important )
Poussard v Spiers and Ponds
The court held that the failure of ill-ridden Madame Poussard to perform the contract as
from the first night was a breach of condition, and the defendants were within their
rights to repudiate the contract.
made certain
vi) Section 31: An agreement by way of wager
Leha Binte Jusoh v Awang Johari Bin Hashim : the Federal court held that an
agreement entered into by a minor to purchase certain lands was void.
ii) Consequences of Void or Illegal Contracts
Unenforceable
Section 66: any person who has received any advantage under a void contract must
restore the advantage, or make compensation for it to the person who has provided the
advantage.
Voidable Contracts
A contract is made by mutual agreement between parties out of their own free will. if it
is not by the free consent of one or both parties, there is no consensus ad idem
(meeting of the minds).
-May arise when unequal bargaining powers happens.
Section 14 consent is said to be free where it is not caused by one of the following:
Coercion;
Undue influence;
Fraud;
Misrepresentation;
Mistake.
III) Misrepresentation
Before entering into a contract, two parties are involved in negotiation, during which
pre-contract statements / terms of contract made are incorporated and some not (
representations).
Representation - a pre-contract statement that induces the formation of a contract but
is not incorporated as a term of the contract.
Misrepresentation - untrue representation, hence the party misled can claim
a) Fraudulent misrepresentation - (Derry v. Peek) - when one makes
representation with intent to deceive and with the knowledge that it is false. Action for
fraudulent misrepresentation allows for a remedy of damages and revocation
b) Negligent misrepresentation - When defendant carelessly makes a
representation without reasonable basis to believe it to be true.
Hedley Byrne v Heller : The court found that a statement made negligently and was
relied upon can be actionable in contract as well as tort.
c) Innocent misrepresentation - False statement a person makes honestly believing
IV) Fraud
Section 17 : Any following acts committed by a party to a contract, with intent to
deceive another party, or to induce him to enter into the contract:
(a) Suggestion, fact, that is not true by one who does not believe it to be true;
(b) Active concealment of a fact by one having knowledge or belief of the fact;
(c) Promise without any intention of performing it;
(d) Act fitted to deceive
(e) Act or omission that is fraudulent under law.
When a person causes another to act on a false representation which the person himself
does not believe to be true, he is said to have committed a fraud.
Section 17(b) and (c). Mere silence or non-disclosure would, generally, not constitute
fraud. In certain circumstances, silence may be fraud, ( Speak now or forever hold
your peace scenario)
In fraud, the person making the representation does not believe the representation to
be true , in misrepresentation, he believe the representation to be true.
V) Mistake
Even if the contract is less favourable to one of the parties, he has no legal grounds for
terminating it
Law will not protect those who have made a bad bargain.
Section 21: Where both the parties to an agreement are under a mistake as to a
matter of fact essential to the agreement, the agreement is void.
Cooper v Phibbs :
The court held that the lease must be set aside for reason of common mistake as to the
ownership of the fishery. ( Cooper is the actual owner, Phibbs is the apparent owner )
Section 22 : A contract is not voidable because it was caused by a mistake as to any
law in force in Malaysia; but a mistake as to a law not in force in Malaysia has the same
effect as a mistake of fact.
Section 23: A contract is not voidable merely because it was caused by one of the
parties to it being under a mistake as to a matter of fact.
Section 21 & 23 together: If both parties contracted under a common mistake of
essential fact, the contract is void; but if only one party contracted under a mistake of
essential fact, the contract is valid and binding.
Discharge of Contract
Performance;
Agreement;
Impossibility (or frustration);
Breach
1) Performance
A contract is discharged when both parties carry out their promises.
Section 38(1) - parties to a contract must either perform or offer to perform their
respective promises, unless such performance has been dispensed with by any law.
Section 51 - performance of any promise may be made in any manner, any time, which
the promisee prescribes or sanctions.
General rule - a party must do everything promised in the contract. Part
performance is no performance.
General rule- failure to perform or pay on time is only a breach of warranty and will
not end the contract.
Exceptions :
i) Installment contracts in which A obliged to pay B even though B partly performed his
part; A has to pay a proportionate amount of the price at that stage.
ii) A accepted partial performance by B in which A had a free choice; then A is required
to pay on a quantum meruit (reasonable sum) basis.
iii) Some action on As part has prevented B from completing the contract; B will be
entitled to a quantum meruit payment.
In some cases, time of performance is crucial; then it is a condition of the contract.
Parties can make time of performance a condition by stipulating that time shall be of the
essence of the contract.
Section 56(1)- Where time is of the essence, failure to perform within the fixed time
would render the contract voidable.
Where is not of the essence, then performance must be within a reasonable time of the
fixed date, and payment within a reasonable time of the completion of the contract.
2) Agreement
The parties can agree to terminate a contract before it has been fully performed.
Contract that has not even started( executory contract) can be terminated simply by
a new agreement of the parties to waive their respective rights under the contract.
This new agreement is a binding contract and cancels out the original contract. (the
consideration from each party is the giving up of the right to demand the other party to
perform)
If one party has performed or partly performed his part of the contract, then before this
contract is discharged, the other party who has done nothing must:
The parties may agree beforehand that occurrence of specific event would discharge the
contract.
3) Frustration
A contract is frustrated if an event occurs during the contract being agreed and being
performed, which is fault of neither party, but renders the contract legally or physically
incapable of performance in original intended form.
Section 57(2): A contract to do an act which, after the contract is made, becomes
impossible, or by reason of some event which the promisor could not prevent, unlawful,
becomes void when the act becomes impossible or unlawful.
The frustrated contract becomes void. Both parties are discharged from any further
obligations under the contract without any liability incurred towards the other party.
RELATED CASES
H.A. Berney v Tronoh Mines Ltd
The court held that the invasion of Malaya by the Japanese frustrated the performance
of the contract and there was no breach of contract by the defendant.
Re Shipton, Anderson & Co
An Act of Parliament was passed requisitioning all wheat for the government, hence the
court held that a contract for delivery of wheat was frustrated before delivery could took
place.
Taylor v Caldwell
The defendant agreed to let the plaintiff to have the use of the Old Surrey music hall for
a concert. Before the day of performance, the hall was destroyed by fire. The court held
that the contract was frustrated.
Robinson v Davison
A piano player felt ill and could not play on the appointed date. The court held that as it
was not her fault that she was unable to perform, the contract was frustrated.
Krell v Henry
The defendant hired a room to overlook the route of the procession of King Edward VIIs
coronation. The King was ill and the coronation was cancelled. The court held that the
contract was frustrated because the procession was the basis of the contract.
Herne Bay Steamboat Co v Hutton
Hutton hired a boat to follow the royal barge but the Kings illness prevented the royal
review. Hutton did not use the boat. The court held that the contract was not frustrated,
as the contract purpose was to review the fleet, which was assembled. The contract was
possible and Hutton was liable to pay damages.
Consequence of a Frustration
BREACH
Occurs when:
Even though the limitation period have expired (the action is time-barred), the
cause of action involving a debt may be revived by acknowledgement in writing, signed
by debtor to creditor, or by a part-payment clearly referable to the original obligation.
If cause of action involves fraud, or concealed by fraud, or based on a mistake, the time
limit will not run until the plaintiff reasonably have discovered the truth.
B) DAMAGES
A breach of contract entitles the injured party to damages to compensate him for his
loss. if no loss, no damages, other than nominal damages to reflect the fact that a
contract has been broken.
The purpose of damages is not to penalise or punish the defaulting party but to put the
injured party back where he started (possible financial means ).
Penalty clause :A clause in a contract which state a party, shall pay a higher sum of
money as compensation to the other party as default
Liquidated damages clause : If compensation specified is a genuine pre-estimate of
the probable loss which would be suffered following a breach
English law, penalty clause - void, liquidated damages - valid. In Malaysia, there is no
distinction between liquidated damages and penalties.
Section 75: Aa plaintiff is only allowed to recover a reasonable sum for breach of
contract.
If a sum to be paid in case of such breach is named, then the damages recoverable
cannot exceed that sum.
C) REMOTENESS OF DAMAGES
Section 74(2): Such compensation is not to be given for any remote and indirect loss
or damage sustained by reason of the breach.
Before claiming any damages, he must prove that the loss he suffered was direct
consequence of the breach by the other party, and was not too remote from it.
(regardless of penalty or liquidated damages).
Section 74 : Injured party may recover any loss or damage for any breach which
naturally arose in the usual course of things; or which the party knew, when the
contract is made to be resulted from the breach of the
Hadley v Baxendale
Hadleys machinery could not be operated until the new shaft was delivered, but
Baxendale was not informed of this exceptional circumstance. Delayed delivery for an
unreasonable time, as the mill was idle for a longer period than it would have been had
the shaft been delivered promptly. Hadley sued in respect of loss of profits during the
period of additional delay.
The court held that the damage was too remote and Hadleys claim failed.
Victoria Laundry v Newman Industries
Newman Industries Ltd was late in delivering a new boiler to Victorial Laundry which
cause Victorial Laundry to lost (a) normal business profits during the period of delay,
and (b) profits from dyeing contracts offered to them during the same period.
The court held (a) was recoverable as damages, but (b) too remote and not recoverable
because Newman did not know, nor as reasonable men ought to be aware of the dyeing
contracts.
illustrations of section 74 , a party may recover damages for:
In an available market for the goods, the normal measure of damages is the difference
between the contract price and the market price at the time of the breach
Once the loss type is foreseeable by the defendant, he will be liable for the full extent of
it, even it is much greater than expected. The plaintiff is expected to take reasonable
steps to mitigate his loss.
D) SPECIFIC PERFORMANCE
if the injured party is more interested in getting the contract actually performed than
receiving damages for a breach.
Section 21, Specific Relief Act: High Court has a discretionary power to award a
decree of specific performance. Failure to obey an order of specific performance is a
contempt of court and the penalty is imprisonment.
E) INJUNCTIONS
Interlocutory injunction -a court order prohibiting a party from doing something
Purpose - maintain status quo between parties.
Discretionary remedy and awarded if damages would be inadequate as a remedy.
Used to prevent a breach of contract for personal services,
e.g. to stop a party under an exclusive contract from contracting with another third
party.
Warner Bros. v Nelson
Bette Davies, agreed to make a film for another company although she had an exclusive
contract with the plaintiffs. The court granted the injunction to the plaintiff and
restrained the defendant from carrying out the contract with the third party.
Page One Records Ltd v Britton
The Troggs manager applied for an injunction prohibiting the group from employing
anyone else as their manager. The court held that this was a request for enforcement
of the original contract, hence rejected.
3 factors to consider :
1. The magnitude of risk;
( likelihood and seriousness of the injury will be incurred)
2. The importance of the object to be obtained;
(risk and consequences of not taking it must balance. The purpose must be
sufficiently important to justify the taking of that risk, hence the defendant is not
liable.)
3. The practicability of precautions.
(risk, measure and the consideration to eliminate it must balance)
Case 3: BOLTON V. STONE [1951] A.C. 850 (1)
The plaintiff was standing on the highway adjoining to a cricket ground and was struck
by a ball the batsman hit.
Held: There is a 7 foot fence and the upward slope of the ground around the cricket
ground in the direction in which the ball was struck making the likelihood of injury in
plaintiff position so slight that the cricket club was not negligent in playing without
additional precautions like increased the height of the fence
Case 4: WATT V. HERTFORDSHIRE COUNTY COUNCIL [1954]
Watt, a fireman, injured by a heavy jack when travelling with it in a lorry not specially
equipped for carrying it. A woman is trapped under a heavy vehicle and the jack was
urgently required to save her life.
Held: The fire authorities were not negligent because the risk taken by Watt was not so
great as to prohibit the attempt to save life. If the same occurred in a commercial
enterprise, Watt could recover as the commercial end to make a profit is very different
from the human end to save life.( the existence of high risk may absorb the defendants
possible liability.)
Case 5: LATIMER v. A.E.C. [1953] A.C. 643
The occupiers did their best to eliminate the effect of the flood: slippery floor. The
plaintiff was injured and said that the occupiers should have closed down the factory.
Held: The risk of injury due to the slippery floor was not so great to justify, much less
require, so onerous a precaution as to close down the factory and hence insufficient to
warrant the factory to be shut down.
Case 6: BARNETT v. CHELSEA AND KINGSTON HOSPITAL MANAGEMENT
COMMITTEE [1969]
The plaintiffs husband went to the defendants hospital and complained of vomiting
after drinking tea. The nurse on duty telephone a doctor and the doctor said that he
should go home and consult his own doctor. The plaintiffs husband died of arsenical
poisoning.
Held: The doctor was guilty of a breach of his duty of care in falling to examine the
deceased, but this breach was not a cause of the death because, even if the deceased
is examined and treated with proper care, it would have still be impossible to save his
life. The plaintiffs claim therefore failed.
D) CONTRIBUTORY NEGLIGENCE
Section 12 of Civil Law Act 1956 (Revised 1972) stated:
Where any person suffers damage as the result partly of his own fault and partly of
the fault of any other person suffering the damage, but the damages recoverable
in respect thereof shall be reduced to such extent as the Court thinks just and
equitable having regard to the claimants share in the responsibility for the
damage.
fault = negligence, breach of statutory duty, act or omission which gives rise to a
liability in tort or the defense of contributory negligence. Examples : Riding without a
seat-belt & Taking a lift with a drunk driver
Case 7: KWEK HOW BOK v. LEE SIN KWENG [1966]
The plaintiff motorcycle rammed into the defendants taxi as it suddenly braked. The
defendant contended that the plaintiff should have kept a distance and not followed too
close to the taxi.
Held: both the plaintiff and the defendant to be equally negligent in their conduct.
E) STRICT LIABILITY
If the dangerous thing escapes, and damage was foreseeable, the owner will be liable
for all the consequences, even if he took all care, and was not negligent.
TO BE LIABLE UNDER THIS RULE
The thing causing damage must be brought onto the land, and not occur there
naturally.
- Must be foreseeable that the thing could cause damage.
- Must be an escape of the dangerous thing from the defendants land.
Held: Under the negligence rule, the injurer is only liable when he is in negligence; an
injurer under a strict liability rule is always liable. His negligence can only be proved
by showing that he caused the damage or injury.
the person who for his own purposes brings on his lands 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".
F) Intentional torts - deliberate actions to cause personal or economic injury to
another.
G) Tort of Tresspass
1) Trespass to person:
1. Assault :
- intentionally putting someone (plaintiff) in immediate apprehension of a battery
against him.
- nonphysical from : threatening words, gesture and manners, pointing a gun
2. Battery :
- intentional application of physical force to another person without lawful
justification
-E.g: To spit at someone, To pour water over them, To snatch a chair away as they sit
down
3. False imprisonment.
- Infliction of bodily restraint which is not authorised by the law.
- anywhere they are wrongfully deprived of their liberty to go where they please.
2) Trespass to Goods :
- wrongful physical interference with others possessions, or unauthorised touching of
someone property.
3) Trespass to land
- an unjustifiable interference with the possession of land.
-unlawful entry of a person or thing onto land or buildings in the possession of another.
H) Defence to trespass
Consent;
Self-defence;
Lawful arrest;
Parental authority;
Inevitable accident.
B) Copyright
A legal concept enacted to gives the creator of an original work exclusive right to it for a
limited time.
A form of protection by nation laws to the authors of original works of authorship
including literary, dramatic, musical, artistic, and certain other intellectual works.
Legally one is not allowed to take someone else works and use it for their own purposes.
Rights
1. Copyright owner has the exclusive right to decide who may use the work.
2. Except for educational fair use which is permissible to use portions of copyrighted
work for educational purposes in a self-contained classroom.(not internet)
Breach of copyright
If someone exercises the owners exclusive right to reproduction, modification,
distribution, public performance and public display of his copyrighted work.
Linking to another site without consent, through hypertext links, framing, and
caching.
Web site links permit users to click their way from one web to another.
*Framing- permits viewer from framing site to view the framed site while framing site
content (advertising banners) exist on viewers computer screen.
*Caching - creation of a copy of a web site by storing data on a computer.
The jurisdictional nature of computer crime gives rise to difficult jurisdictional issues.
Case 2 R v Governor of Brixton and another, ex parte Levin
- Levin arrested for transferring $12M from customers accounts of US Citibank into his
and his accomplices accounts. Levins counsel challenged the extradition, raising
jurisdictional issue as the criminal act occurred in Russia, therefore, the proper court is
Russian court.
a) Hacking : An illegal and unauthorized intrusion into a computer system or network.
Sec 3 of the Computer Crimes Act 1997:
Unauthorised access to computer material is an offence. The intent need not be direct.
The punishment is a fine not exceeding RM50,000 or imprisonment for a term not
exceeding 5 years or to both.
b) Cracking :An illegal intrusion into a computer system or network with a intention of
causing harm.
Sec 4 & 5 of the Computer Crimes Act 1997
Unauthorised access to computer material with intent to commit or facilitate
commission of further offence. The punishment is fine not exceeding RM150,000 or
imprisonment not exceeding a term of 10 years or to both.
c) Cyber stalking- repeated harassment or threatening behavior of cyber criminal
towards the victim by using internet services, such as following the victim, making
harassing phone calls, killing the victims pet, vandalizing victims property, leaving
written messages or objects.
D) Legislation in Malaysia dealing with cyber law
i) Digital Signature Act 1997- Allows development of e-commerce by providing an avenue for secure online
transactions through use of digital signatures.
- to provide security measure and assurance to persons transacting electronically.
ii) The Telemedicine Act 1997- provide a framework to enable licensed medical practitioners to practice medicine
using audio, visual and data communications.
- any locally registered medical practitioner may practice telemedicine with the consent
of the patient.
iii) Copyright (Amendment) Act 1997
- make unauthorised transmission of copyright works over the Internet an infringement
of copyright.
- ensuring adequate protection of intellectual property rights for party of content
creation in the ICT and multimedia environment.
iv) The Computer Crimes Act 1997- create several offences relating to the misuse of computers.
- deals with unauthorised access to computer material (sec 3), unauthorised access with
intent to commit other offences (sec 4) and unauthorised modification of computer
contents (sec 5).
- to facilitate investigations for the enforcement of the Act.
e) The Communications and Multimedia Act 1998- provides regulatory framework to cater for convergence of telecommunications,
broadcasting and computing industries,
- Objective: making Malaysia a major global centre and hub for communications ,
multimedia information and content services
LaRonde made a motion to quash service of the summons as the courts in California
have no jurisdiction, claiming that sufficient minimum contacts with California were
lacking. Hall submitted an affidavit in opposition to the motion, declared that he
contacted LaRonde by electronic mail and telephone and LaRonde responded with the
idea of integrating Hall's module with various modification. Hall made the modifications
and module was incorporated into LaRonde's retail product. The court denied Hall's
request for a continuance. The court granted LaRonde's motion to quash and
ordered the case dismissed.
F) Possible liabilities of an Internet Service Provider
Internet service providers (ISP)- organizations that have permanent connection
with the Internet and sell temporary connections to others for a fee.
- May be liable for providing avenue for breaching copyright, hosting pornographic
materials and defamation.
- If the infringer of the copyright is not readily identifiable, insolvent or too
geographically remote, the ISP can be an alternative target for copyright
infringement.
- Clear notice must be given to ISPs if anyone wants infringing materials to be taken
down and the ISP will not be liable for it, if they took reasonable steps promptly
to notify subscriber that it has removed the material.
* In Malaysia, ISPs liability for copyright infringement has not been addressed in any
legislation so far.
Note: The problem in applying the provisions is that they do not directly cover the
activity of pornography on the Internet.
H)
(i) Top-level domain names e.g. .com (for commercial users), .edu (educational
institutions), .gov (government entities), etc.
(ii) Second-level domain names, first-come-first serve basis. Only one person can
have a particular second-level domain under a particular top-level name. He may select
any name while it is advisable to select carefully due to trademark conflict that occur
due to
a) cybersquatting (practice of registering trademarks as domain name in order to
extort payment for the sale of rightful owner domain name),
b) typo squatting (registering domain names that are nearly identical to the actual
domain names used by other organizations),.
3. Employment law - regulates the labour market operation in general and the
employment relationship between employers and employees in particular
a) The Employment Act 1955 provides comprehensive legal frameworks that include
hiring process, suspension from work, maternity rights, layoff and wages, rest days,
hours of work, holidays.
Purpose - to ensure that no contract entered into between the employer and the
employee is no less favourable then the provisions under the Act.
Only applicable to West Malaysia.
Differences Between the Employment Act and the Industrial Relations Act
I) Definition of "employee" under Employment Act:
Based on wages and type of occupation of the employee wages, do not exceed
Rm 2000 a month.
More compelling nature, concerned with monetary benefits (annual leave with pay,
sick leave with pay, maternity allowance, overtime). Failure to provide benefits is an
offence for which an employer can be prosecuted in court.
ii) Definition of "workman" under Industrial Relations Act:
Any person employed under a contract of employment without being
restricted to the amount of wages or the type of occupation.
More of persuasive nature, industrial problems are solved as far as possible through
negotiation and conciliation.
d) Occupational Safety and Health Act 1994
Provides legislative framework to secure the safety, health and welfare among all
workforce
To protect others against risks to safety or health due to activities of persons at
work.
Establish effective safety and health organisation and performance
Based on self-regulation scheme, primary responsibility is to ensure safety and
health of workers lies with those who create and work with risks .
e) Employment Contract
Agreement between the employer and the employee that governs their
relationship.
Contract where rules of contract law is applicable.
Sec 7A allows the parties to stipulate terms and conditions in the employment
agreement outside the statute if it is more favourable to the employer and
employee
Does not have to be written a.k.a letter of appointment. Implied by the fact of the
employee is working for the employer.
Case 1: American International Assurance Co Ltd v Dato Lam Peng Cheng &
Others- multiple test on a reasonable man was preferred compared to other
traditional and organisational tests
4. End of employment contract
Sec 15 deals breach of employment contract by both the employer and employee i.e.
failure to pay the employees wages by the employer, continuous absence of employee
from work.
Sec 12(2).and sec 13 - termination of employment contract without notice.
work in a skilful and competent manner for the benefit of the employer.
Obey reasonable and lawful command of the employer.
Keep confidential information.
Account for the money or property received in the course of employment.
Disclose relevant information to the employer.
responsibilities or duties implied in a contract of employment. Employees
obligation to: act in good faith; competently; with care; and obedient.
Employees service comes to an end automatically on the date stated in the contract.
No action is required by both employer and the employee to terminate the contract.
- Such a contract can be renewed when the service of the employee is still needed
(project of employee is taking longer time to complete ).
- Fixed-term contracts cannot be used by an employer to avoid claims for unfair
dismissal. An employee on a fixed term contract can be dismissed due to poor
performance or misconduct.
(e) Constructive dismissalThe employee takes the initiative to leave his employment and dismissal is considered
to have taken place.
Industrial law - give the right of an employee to walk off the job.
Sec 14(3) of the Employment Act 1955 - An employee can terminate the contract
without notice if he is ill-treated or exposed to risk that he did not contract to undertake.
Certain behaviours from employers part can cause the employee to claim or invoke
constructive dismissal.:
1. major wage cut;
2. demotion to a lower level/post (unless for a disciplinary purpose);
3. transfers to a different location (unless clearly stated in the contract of
employment);
4. major changes of job duties;
5. humiliation of the employee;
6. forced resignation;
8. Termination benefits
Virtue of Regulation 6 of the Employment (Termination and Lay-off Benefits)
Regulations 1980, the amount of termination of lay-off benefits payment to which an
employee is entitled shall not be less than :
(i) Two years of service- 10 days wages for every year of employment;
(ii) Two years or more but less than five years-15days wages for every year of
employment;
(iii) Five years of service or more- 20days wages for every year of employment.
(sec 60 - termination, lay-off and retirement benefits)
Exception(i) employee retires pursuant to the contract of service;
(ii) employee is dismissed on the ground of misconduct;
(iii) employee voluntarily terminates his contract;
(iv) employees contract renewed and he is re-engaged with the same employer on
terms and conditions not less favourable than the previous contract;
(v) employee leaves service after receiving due notice of termination of contract without
the employers prior consent or without paying indemnity to the employer (sec 13 of the
Employment Act 1955.)
9. Wrongful dismissalIn common law, employer cannot hire and fire an employee even without
notice,
even if the employees conduct amounts to a serious breach of contract of service,
even if it is proven that there is a wrongful dismissal.
- Common law cannot force the employer to reinstate, but the court can only award
damages to compensate the loss of salary due to wrongful dismissal.
- Industrial relations legislation - To mitigate on this problem of common law
Case 4: Federal Hotel International Sdn. Bhd v KC Fong CT Mak-:
In dismissing an employee, the employer must:
- has the obligation to justify the dismissal by providing evidence of the employee
committed the offence;
- acted reasonably from the facts and adopted a reasonable procedure of inquiry before
decide to dismiss;
- acted reasonably in deciding and that the dismissal was warranted in the
circumstances of the case.
Case 5: East Asiatic Co. Bhd.v Valen Noel Yap-:
- In a remedy for wrongful dismissal, the court must consider reinstatement and its
practicability.
- In normal practice, the court has discretion in awarding a suitable remedy in a
wrongful dismissal.
10. Resolution of Disputes between an employer and an employee by:
direct negotiation;
conciliation
mediation
arbitration. (Sec 20 of the Industrial Relations Act 1967)
*Employees are the beneficiaries of a trade union since the union represents them by
speaking up for them
Chapter 6 LAWS PERTAINING TO ENGINEERS
A) Engineering
i) Annual Report of Accreditation Board of Engineers and Technology (ABET) :
A profession which mathematical and natural science knowledge gained by study,
experiences and practice is applied with judgments and discretion, in order for the
economically use of the materials and forces of nature for the benefits of mankind.
ii) Cambridge International English Dictionary 1998:
Individuals responsible in planning, creating and building the machines, engines,
electrical appliances, roads, bridges and transportation vehicle for the good of human
being.
B) Engineering Profession
A joint body formed under the coordination of BEM to accredit engineering degree
programmes.
To ensure consistency in accreditation,
Accepted as the 13th signatory or jurisdiction of the Washington Accord (WA)
1) All engineering programmes completed within 4 years and met EAC requirements
will be accredited in accordance to the updated & upgraded EAC Manual 2012;
2) All BEM accredited engineering programmes (graduates) will be accepted to practice
in WA signatory countries.
3) All graduates from other countries will be recognised by AEC/BEM if their universities
are in the 17 signatory countries of the WA.
The approach in delivering an EAC accredited programme follows an universally
accepted quality centric framework [Outcomes Based Education (OBE) ] as a form
of education democracy and is underpinned by Blooms Taxonomy on learning
episode for higher KSA domains.
Sec 15 : Carry out investigations to establish whether there is a prima facie case
against a registered engineer for contravening the Act. May cancel the registration of
any engineer, if found:
guilty of fraud,
dishonesty or moral turpitude;
acceptance of illicit commission;
Fail to disclose to the client any vested financial interest in his dealings.
(g) Publication:
Publication Committee promote engineering profession through Bulletin Ingenieur
and printed materials.
The Ingenieur is BEM communication tool to disseminate information on the Board
activities, regulations, code of ethics, career development, update and guidelines and
such other news decided by the Board.
(h) Supervision of Work:
Supervise the construction work for registered engineers. The registered engineer shall
certify stages of completion including setting out, completion of foundations and
certificate of fitness for occupation.
The registered engineer has to certify
E) Observations
i) Role of BEM in the new millennium
- Sec 14A & sec 14B : Established a Disciplinary Committee to deal with the
establishment, power and conduct of proceedings of a Disciplinary Committee.
- Add further grounds to area of cancellation, removal and reinstatement. i.e. false or
negligent certification.
- Sec 17(2)- impose additional conditions to ensure engineers follow latest
developments.
Functions of the Board
- appoint a committee consisting of persons to be determined by the Board
- conduct examinations or to cause examinations to be conducted by a Board
recognised institution for the purpose of admission to the profession.
F) Code of Professional Conduct
Describes the professional behaviour of Engineers. Issues:
Code No. 24, Definition of Employer- Unless otherwise, the expression employer shall
include client.
Code No. 25, Conduct of Registered Engineer- A Registered Engineer shall order his
conduct to uphold the dignity, standing and reputation of the profession.
Code No. 26, Responsibility to Employer and Profession- A Registered Engineer
shall has responsibility to his employer and the profession shall have full regard to the
public interest
Code No. 27, Discharge of Duties- A RE shall discharge his duties with complete
fidelity, not accepting remuneration for services rendered other than from his employer
or with his employers permission.
Code No.28, Reputation of a Registered Engineer - A Registered Engineer shall
not maliciously injure or attempt to injure, directly or indirectly, the professional
reputation, prospects or business of another Registered Engineer.
Code No. 29, Canvassing and Advertisement Prohibited.
Code No. 30, A Professional Engineer in private practice should not practice with any
person whose registration has been cancelled.
Code No. 31, A salaried Registered Engineer should not compete with Professional
Engineers in private practice.
All Professional Conduct are amenable and have clear interpretation because
of its legal connotations and would be enforceable in law.
It can distinguish between legal and illegal cases as issues of morality and
philosophy would be ineffective in law and impossible to legislate.
literary works;
musical works
artistic works;
films
sound recordings; broadcasts.
written works
stage performance,
works of reference (encyclopedias, dictionaries )
lectures, addresses, sermon
tables , compilations, figures or symbols whether visible or not
computer programs.
C) Subsistence of copyright
i) Originality
The meaning of 'original' does not require the work to be new or innovative but the
manner the work was created where it is originated from the author, its creator,
and that it was not copied from another work
ii) Work
For copyright to subsist in a literary, dramatic, musical or artistic work, it must qualify
as a 'work', which is determined from the amount of skill, labour or judgment which
has gone into its creation.
iii) Expression
Copyright protects expression but not ideas.
Section 7(2A) of Copyright Act 1987; " Copyright protection shall not extend to any
idea, procedures, method of operation or mathematical concepts."
iv) No provision for registration
There is no copyright registration system in Malaysia. It is automatically protected under
copyright if all the requirements under the Copyright Act 1987 has been fulfilled
v) Material form
Section 7(3) - literary, musical or artistic work shall not be eligible for copyright unless
it is written down or recorded (reduced to material form).
Material form" includes any form (whether visible or not) of storage from which the
work, derivative work, or a substantial part of the work can be reproduced
vi) Qualification;
Section 10 : Any work eligible for copyright shall be made by a qualified person
mentioned in Section 3 .
vii) Duration of protection
Lasts for the lifetime of the author plus another 50 years after his death
D) Rights granted
Section 13(1) : right to reproduce, communicate to the public, perform, distribute, and
rent.
E) Infringement
Attempt to act within the exclusive rights of the owner without the permission or
authorisation of the owner..
i) Direct Infringement
Section 36(1) : copyright is infringed by any person who does or causes others to do
without the license of the owner,.
ii) Indirect Infringement
Section 36(2)- if any person who without the consent or license of the copyright
owner, imports an article into Malaysia for the financial purpose, i.e: selling, letting for
hire, trade and offering or exposing for sale
iii) Other types of infringement
Section 36(3) - circumvention of effective technological measures used by the authors
in respect of their works without authorisation or valid licence.
Case 1 : CREATIVE PURPOSE SDN. BHD. & ANOR. v. INTEGRATED TRANS
CORPORATION SDN.BHD [1997]
The plaintiffs alleged that the defendants infringed the copyright in the software
program by reproducing the same without licence or consent and distributed
the infringing copies to the public.
Held as there is a clear infringement by the defendants.
employees , organisation and arrangements for the time being. He should show the
statement and any revision to notice all of his employees.
17. General duties of employers and self-employed persons to persons other
than their employees.
(1) Every employer and every self-employed person has to conduct his undertaking to
practicably ensure that he and others ( not his employees), who may be affected, are
not exposed to the safety or health risks thereby.
(2) Every employer and every self-employed person should give to others (not his
employees), who may be affected by the manner he conducts his undertaking, the
prescribed information on such aspects in that might affect their safety or health.
18. Duties of an occupier of a place of work to persons other than his employees.
(1) An occupier of non-domestic premises which has been made available to the
persons (not his employees) as a place of work, or a place to use a plant or
substance are safe and without risks to health, shall take practicable measures to
ensure the premises, all access thereto and egress therefrom is available for use
by persons using the premises.
(2) A person by virtue of a contract, lease, and obligation of any extent in relation to (a) the maintenance or repair of a working place or any means of access and exits
(b) the prevention of safety and health risk arise from the use of plant or substance in
working place shall be deemed to have control of the matters.
24. General duties of employees at work.
(1) It shall be the duty of every employee while at work to(a) take reasonable care for the safety and health of himself and of others who may be
affected by his acts or omissions at work;
(b) co-operate with his employer , any person in charge, requirement imposed by the
employer or person who work under this Act or any regulation in respect;
(c) wear or use at all times any protective equipment or clothing provided by the
employer for preventing risks to his safety and health
(d) comply with instruction or measure on occupational safety and health instituted by
his employer or person under this Act or any regulation in respect.
(2) A person who contravenes these provisions shall be guilty of an offence and, be
liable on conviction to a fine not-exceeding RM 1000 or to imprisonment for a term not
exceeding 3 months or to both.