Written and Unwritten Law

TASK 1

1. Explain the written and unwritten law.

Written law is the most important source of law. It refers to the portion of Malaysia law, which includes the following: - Federal and State Constitutions; The Federal Constitution is the supreme law of the land. All of the thirteen states have their own constitutions known as the State Constitution. - Legislation enacted by Parliament and the State Legislative Assemblies; such as Acts of Parliament, Ordinances and Enactments. - Subsidiary Legislations; made by persons or bodies under powers conferred on them by Acts of Parliament or State Assemblies; such as Rules and Regulations, By laws and Guidelines.
Unwritten law is simply that portion of Malaysia law, which is not written. These are part of Malaysian law which is not enacted by Parliament or the State Assemblies. Unwritten law is found in cases decided by the court, local customs, etc. - Principles of English law applicable to local circumstances. - Judicial decisions of the superior courts; such as the High Courts, Court of Appeal and the Federal Court. - Customs of local inhabitants which have been accepted as law by the courts.

2. Based on the case law selected, identify and describe the sources of law applied in the case study.

CHONG TENG v PUBLIC PROSECUTOR [C. A. (Thomson C.J Hill and Good JJ.A.) February 12, 1960 [K.L.-F.M. Criminal Appeal No. 43 of 1959] Cases referred to:

1. Nazir Ahmad v. King-Emperor, 63 I.A. 372; A.I.R. 1936
2. R. v. Attard, 43 Cr. App. R. 90
3. Cheong See Leong v. Public Prosecutor [1948-19] M.L.J. Supp. 56

Thomson C.J (delivering the judgment of the Court): this appellant was tried at Seremban before Ismail Khan J., and a jury on a charge that on 16th August, 1959, at the Central Market in Seremban he murdered one fan Nam in contravention of section 302 of the Penal Code. He was convicted and sentenced to death. He appealed against his conviction and we dismissed his appeal on 12th January. The sources of law in the case that I mention above are case of appeal which is Court of Appeal involve in this case as a court.

3. State the relevance of case laws within the construction industry.

IN THE COURT OF APPEAL OF MALAYSIA AT PUTRAJAYA [APPELLATE JURISDICTION] CIVIL APPEAL NO: W-02-2155-2010 Between PEREMBUN (M) SDN BHD - APPELLANT And CONLAY CONSTRUCTION SDN BHD - RESPONDENT “The Plaintiff Conlay Construction Sdn Bhd claimed payment for construction work done under a sub-contract. The Defendant Perembun (M) Sdn Bhd counter-claimed. After a full trial, the High Court found in favour of the Plaintiff and dismissed the Defendant's counter-claim. The Defendant appealed to this Court.

TASK 2

1. Identify the hierarchy of courts in Malaysia.

Superior courts of Malaysia The twoHigh Courtsin Malaysia have general supervisory and revisionary jurisdiction over all the Subordinate Courts, and jurisdiction to hear appeals from the Subordinate Courts in civil and criminal matters. (Based on Court system.ppt) Subordinate courts of Malaysia It is the court that consists of Session courts, Magistrate courts and Syariah courts. Which the type of cases is presided by their own types of courts judges. Session and Magistrate courts have the jurisdiction to hear both criminal and civil cases. While the Syariah courts has the limited jurisdiction over the matters of the state of Islamic law. (Based on Court system.ppt)

2. With the aid of diagram indicate the courts in each tier.

Figure 1: Court System

3. State the type of case and the courts(s) involved in hearing the selected case law.

Type	Definition	Example case
Criminal law	Crimes are classified according to the nature, damage or harm they cause.	DPP v Majewski “The defendant was charged with assault causing actual bodily harm and assault on a police officer in the execution of his duty”
Common law	Law that became common to the realm. It uses evolving bodies of case (judge made) precedents.	Sri Inai (Pulau Pinang) Sdn Bhd v Yong Yit Swe & Ors “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”.
Tort law	A tort is a wrong not arising out of a contract. It’s generally injury to persons and/or property, usually arising out of an accident.	Mohr v. Williams (1905) “P consented to surgery on right ear. Doctor operates on left ear, which he believes is worse. Court finds that since the doctor performed the surgery without her consent, it was wrongful, and since it was wrongful, it was unlawful”.
Contract	A legally binding agreement made between two or more parties, by which rights are acquired by one or more acts or forbearance on the part of the other or others.	Hyde v. Wrench (1804) “The defendant offered to sell his farm for A£1000. The plaintiff, offered to buy the farm for A£950. This offer was rejected and the plaintiff then agreed to pay A£1000 and sought, unsuccessfully, to enforce the sale through the court”.

4. Describe the appeal process based on the outcome of the case and the courts involved in the appeal process.

Sampson v. Channell [110 F.2d 754(1st Cir.1940)] Court of Appeal: United States Court of Appealsdecision interpreting the application of theErie doctrine. “Theplaintiffhusband and wife were hit by a car inMaine; the driver of the other car was killed. The plaintiffs sued theestate (law)of the dead driver in theFederal District Courtin Massachusetts, naming theexecutorof the dead driver's estate as thedefendantand invoking the court'sdiversity jurisdiction. The District court applied general principles of conflicts of law, determining that Maine law should control the case because that is where the accident happened. Under Maine law, the plaintiffs had theburden of proofto show that they werenotcontributory negligent; had the court applied Massachusetts law, the defendant would have had the burden of showing plaintiff's contributory negligence. The plaintiff appealed, contending that the Massachusetts Federal District Court should have applied the law of Massachusetts.

TASK 3

1. With appropriate example (s), express the meaning of the term tortuous liability= using your own words.

Negligence Negligence is by far the most important of torts. It forms the cause of action in the majority of cases. The term of negligence is also found in the context of breach of contract, for example, where an architect is alleged to have carried out negligent design of supervision. A common type of action in negligence heard in the courts is that between two or more drives involved in a road accident. However, the plaintiff in an action for negligence must show that the defendant owed him a duty of care, that there was a breach of duty and that recoverable damage was thereby caused. Considering the first of these element, it is necessary to decide whether in the particular circumstance one person ( the defendant) owed a duty of care to the other ( the plaintiff). The classic test as to when a duty of care might arise was stated in the leading case of Donoghue v Stevenson. “The manufacture of ginger beer was held to owe a duty to the ultimate consumer, who found a decomposing snail in the empty bottle. The consumer could not sue in contract because the ginger beer had been purchased by a friend, and in any event the default was that of the manufacture, not the seller”. The law of tort remained comparatively dormant for some time after Donoghu's case and it was not until Dutton v Bognor Regis UDC that the court began to grapple with the questions which subsequently came to dominate this area of law, namely the circumstances in which a duty would arise and the interrelationship between such duties and the type of damage.
Nuisance Private nuisance may be defined as an unlawful interference with the use or enjoyment of another person land. The interference may result in damage to property, such as by flooding or vibrations, or it may be only an annoyance, such as excessive noise or dust. There must be a substantial interference. A nuisance is often a continuing state of affairs, although an isolated happening may support an action in nuisance. Person who lives in noisy or industrial neighborhoods must usually put up with the attendant discomforts, although actual damage to property will be actionable. Usually the only person who can sue for nuisance is the occupier of the land, although other persons may be able to sue on the same facts. Unlike negligence, liability for nuisance does not depend primarily on the standard of conduct of the defendant. Thus, it is not necessarily a defence to nuisance that reasonable care was taken to avoid it. Bit in the context of building and construction operations, those carrying out such work are under a duty to take proper precautions to see that nuisance is reduced to minimum. Thus, in Andreae v Selfridge, “where a demolition contractor took no steps to minimize noise and dust near to the plaintiff’s hotel, and actionable nuisance was created for which the employer was liable”. Trespass Trespass is an ancient set of wrongs which mainly deals with the direct, and usually intentional, invasion of a plaintiff’s interest in his person, his land or goods. There are two type of trespass namely to person and to land or goods. There are three type of trespass to person which is assault, battery and false imprisonment. Assault is an act of the defendant which causes to the plaintiff reasonable apprehension of the infliction of battery on him by the defendant. For example, to throw water on a person is an assault but if any drop falls onto the person, it is battery. In the case of Stepehns v Myers (1830), “the plaintiff was the chairman of a meeting. The defendant made many interruptions and it was agreed that he should be evicted. The defendant then advanced toward the plaintiff, declaring that he would pull him from the chair, but was stopped before he could reach him. It was held that defendant’s action constituted an assault”. Next, battery is the intentional and direct application of force on another person, either hostilely or against his will. For example, in the case of Pursell v Horn (1832) and “where chair was pulled from under a person, causing him to fall”. False imprisonment consists of wrongful deprivation of personal liberty in any form. For example, in the case Warner v Riddiford (1858), “the defendant after dismissing the plaintiff as resident manager of a beer-house, prevented him from going upstairs to collect his belongings. It was held that this amounted to false imprisonment”. Trespass to land is constituted by unjustifiable interference with the possession of land. In the case of Baxter v Taylor (1932), “the defendant exercising a purported right of way, entered upon land with a horse and cart and deposited stones”.

2. Discuss the tortuous liabilities of the parties in the above-mentioned mishap.

The tortuous liabilities of the parties in the above mentioned case disaster is about the liability in the construction. Means tortuous liability arises from the breach of a duty primarily fixed by law such duty is towards persons generally and its breach is redressed by an action of unliquidated damages. As mentioned above, the worker died at the scene was hit by falling metal formwork from the 12th floor of an office block under construction and his two co-workers were injured. Liabilities of the parties are that each party must be careful and always be aware of their surroundings while in the area of construction without happen mortality or injured as mentioned above. TASK 4

1. Define the term “contract”.

A legally binding agreement made between two or more parties, by which rights are acquired by one or more acts or forbearance on the part of the other or others.

2. List element of a contract.

• Capacity
• Intentions to create legal relations
• Voluntary
• Consideration
• Offer
• Acceptance
• Form of contract

3. With the aid of a diagram, identify parties involved in the contract in Scenario 2.

4. Analyse the contractual liabilities of the parties in Scenario 2.

• Client

Client is one side that starts something construction project and also was the person that responsible to pay all works that was completed properly. Client need to be referred and negotiate to determine a thing which occupy and achieving goals. The importance, client must get legal approval related to project first before the project carried out. Apart from that, client must provide or supply contractor with all details, painting or big information. After that, client has to pass on cooperation to contractors after both agree conduct a project.

• Consultant

In the building process, where design and construction are separate entities, it is the architect who receives the commissions from the client. The architect may require the assistance of consultants from other professional disciplines. The architect function is providing the client with an acceptable and satisfactory building upon completion. This will involve the proper arrangement of space within the building, shape, form, type of construction and material used environmental controls and aesthetic consideration. The architect will generally operate under the rules of agency on the part of the employer. This means that instructions given to the contractor will be accepted and paid for by the employer.

• Contractor

The majority of the construction work in the UK is undertaken by a main contractor. The term general contractor is now outdated since relatively few of these firms undertake the work themselves. Contractors provide agreed services to a client for a set fee - and possibly duration - under a contract for services. (This is in contrast to a contract of service, e.g. a contract of employment, which is between an employee and employer). Contractors can charge the client fees by the hour, day or on a lump-sum basis. Their contracts often specify milestones for part payment, e.g. on completion of specific goals. Reference

• Abdullah N.C (2013). Question & Answer on MALAYSIAN COURTS, STATUTES, CASES & CONTRACT, TORT AND CRIMINAL LAW; International Law Book Services
• Ashworth A. (2006). Contractual Procedure in the Construction Industry; Prentice Hall
• Uff J. (2005). Construction Law, 9th Edition; Thomson

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