Q1

Abu is working as a site supervisor. Recently he fell off the scaffolding and sustains
permanent injury. He is unable to walk. Before the accident,
he noticed the poor state of
scaffolding. He has acknowledged the main contractor. He believes that his employer
failed to provide safe working environment and decided to claim for damages under
negligence.
You are required to provide him information on the following matters;
The necessary elements to be raised to establish negligence
In order to establish negligence, we have to prove these three elements
1-duty of care
2- Breach of duty of care
3-Damage
(7 marks)

(a)

The principle in determining the existence of a duty of care.

(10 marks)

The damage is foreseeable- therefore, there is duty of care

There is close and direct relationship of proximity between the
plaintiff and the defendant.
Neighbor concept exists ( direct affect obtained)
The circumstances must be just and reasonable.

(b) To establish that the defendant does something that is perceived to be below the
minimum standard of care required of him using appropriate test.
(8 marks)

In this particular case, there is a duty of care, the reason is that the main
contractor should be responsible to ensure the safety conditions at the
construction site. In this case, the damage is foreseeable and there is a
possibility for such incident to happen. However, there is a direct
relationship between the manpower and main contractor. More than that
the case is neighbor where the manpower is directly affected

. Basically ,

the contractor has to ensure the safety condition at the site, however , the

contractor has been told about the poor state of scaffolding and he should
had done something to ensure the stability of scaffolding. Therefore, the
main contractor is responsible for what happened to Abu. However Since
the defendant (main contractor) has a duty of care for ensuring safe
conditions to the manpower at the site, and there was a breach of the duty
of care in that particular case, then the plaintiff suffered from damage as
result of breach of care. Therefore, from the legal point of view, the plaintiff
can sue the main contractor to pay the damages because the negligence
has been established in this particular case.

Q2.
Asmad is a registered owner for Lot 4133. The construction of a bungalow is
progressing on the adjoining land, Lot 4113. Contractor K is a main contractor for the
project whilst Contractor W is a sub-contractor for earthwork and responsible for
supplying heavy machines. The owner of the project is Maidin.
Maidin restrained the contractors to place their machine on his land and consequently,
Contractor K and W, park all the machines on Lot 4133. When the construction was
about 50%, Contractor K was declared bankrupt. As a result his contract has been
determined. Contractor W is trying to recover the machines which still on site. A written
notice has been served to Maidin. Maidin failed to response to the demand.

Explore the legal issues in the above case.

In this particular case, there are two issues have to be established to
determine the legal actions to be made. Basically, the two issues are the
trespass of land and negligence
The first issue is trespass of land.
In this case the contractors W and sub contractor K have placed the heavy
machines on Asmad land without his permission , however , both
contractors have been restrained not to place the machines at Asmad land
by Maidin who is actually owner of the project, In fact, Maidin has discharge
his responsibilities of avoiding trespass issue by giving instructions to the
contractors not to place the machines on the adjacent land of Asmad.
It is obvious that Asmad is eligible to claim the damages for trespass issue
because the elements of trespass to land have been determined which are

Intentional action to place the machines

Unauthorized/unlawful entry on land (close)
Damages:
Nominal damages sufficient for intentional torts
In environmental cases, placing heavy machines shows actual
and substantial damages (e.g., particles on land) and the Space
above and below land (whats reasonable) is trespass.
Therefore, plaintiff (Asmad) is eligible to sue the (defendant) who
-

suppose to be the owner of the project to pay the damages , but

since the woner of the project have restrained the contractors not to
place the machines there , so a duty of care has to be done to avoid
any damage which is foreseeable to happen if they placed the heavy
machines at the other land , beside that , There is close and direct
relationship of proximity between the plaintiff (Asmad)

and the

defendant (contractors) and considered as neighbor (direct affect

obtained) therefore, absolutely there is duty of care.
However, since the contractors have disobeyed the owner instructions and
placed the machines at the other land so the contractors have breached of
duty of care. However, the Breached of duty of care has resulted in causing
damage, then the negligence is established

To sum up, based on the legal point of view, Asmad (plaintiff) is

eligible to claim damages from the owner of project (defendant) for
trespass issue. And the owner of the project (plaintiff) is eligible to claim
damages from the defendant (main contractor) for negligence issue.

Q3

Contractor B is a main contractor for Site K. Site K belongs to

Syarikat Primula Emas. As a main contractor, B has appointed subcontractors CC and DD to carry out construction works. One day,
one of the scaffoldings collapsed and killed three workers. An
investigation is carried out to establish the causes of the accident
and parties liable for the incident.

(i)

Explore the liabilities of Primula Emas and Contractor B in

the above scenario.
(You are required to make necessary assumption when
appropriate)

In this particular case, the liability goes for both contractors

B and the owner of the site (to Syarikat Primula Emas). However
the liability of the owner of the site is not critical as the contractor
B do because Primula Emas should at least whether contractor B
is the one who is doing the job or he pointed someone else to do
the work even though he knows that contractor B pointed
someone else he must get some information about the people

who is going to do the work whether

they are capable and

efficient to do the work with all the necessary requirement to do

construction

work

and

this

is

all

under

Primula

Emas

responsibilities. However contractor B is more liable than Primula

Emas because he is the one assigned the other sub contractors to
do the work

(ii)

Critically analyze the possibility of negligence and show how

it could be established in the above case.

In this case, Its so obvious that cause of this big incident ,is
this due to negligence from all the parts working for this
construction project. But the negligence its not at the same level
form one part to another it depends on the door thats each part
in this project is playing. The owner of the site owes a duty of
care in has site and he should at least investigate who is working
on has sit and they have good record or no and that is breach of
duty of care and damage happened caused three people were
killed. For contractor B he is also owes a duty of care because
first he has to take permeation from the owner of the site if he is
going to hire someone else to do the work if he did so thats a
duty of care if not he its breach of care second he has to
supervise on the contractors thats he hired them. And if the
owner of the site and contractor B did all the necessary element
for hiring other contractors and did the supervision on the site
with legal agreement the whole negligence goes to contractor CC
and DD because they owe duty of care for the good condition of
the scaffoldings and on the manpower on the site and the failure

of the scaffolding is breach of duty of care and damage

happened.

(iii)

If Contractor B, found to be liable for negligence, critically

comment the applicability of volenti-non-fit injuria for
negligence in this case.

The defendant who is contractor B in this case may be able

to reduce his liability or avoid liability altogether by pleading
defenses Volenti Non Fit Injuria. This means that there can be no
injury if you consent to it In other words, you cannot bring a claim
in negligence if you consent to the injury or to the risk of injury.
There are 2 categories
1- the claimant consents to the infliction of harm
deliberately
2- the claimant consents to the risk that harm may be
inflicted accidentally
After showing that the defendant owed him/her a duty of care and
the defendant breached that duty, the third thing which the
claimant must show is causation . In other words, the action or
inaction of the defendant caused injury or damage to the
claimant. The basic rule is that the claimant has to show that but
for the action of the defendant he would not have been injured.
Even if the breach of duty causes the injury/damage, the injury
must not be too remote. A defendant is only liable for foreseeable
consequences.