Malaysian Court Rules On Scope Protection

The Malaysian Court System and Hierarchy

Question:

Discuss About The Malaysian Court Rules On Scope Protection?

The courts system of Malaysia is inspired by the English legal system. The system continues both types of trials namely civil and criminal. There is a hierarchy systems of court in Malaysia which means that the powers and responsibilities of courts gets diminished while moving down business-law hierarchal pyramid.  The highest court in the country is the federal court and the subordinate courts comprise of the magistrate court and the sessions court.

This is the highest court in the country.  Appeals which arise out of the court of appeal in relation to civil matters are dealt by this court. The court also deals with criminal matters where the matters have been subjected to the original jurisdiction of the first High Court.

All civil appeals against the decisions of the high court are heard by the court of appeal.

The country has two high courts having general supervisory and revisionary jurisdictions over the subordinate courts. Unlimited civil jurisdiction along with criminal matters is provided to these courts other than matters on Islamic family and law.

Sessions courts are same as that of quarter session courts in England. Magistrate courts cannot try offences which have a sentence of 10 years or more. The court of Malay Village or Penghulu are other courts which deal with minor matters (Ng  2017).

As defined by Barrett (2016) the doctrine of stare decisis is a principle through which the courts are guided to rely upon principles which have been established in the past in relation to addressing an issue. The doctrine signifies that a ruling which has been made by the judge a higher court (In the Hierarchy) is binding legally upon the judges of the lower court when they are to address an issue having related and similar fact patterns. For example a decision which is made by the high court will have a binding effect on the magistrate court and a decision of the federal court would be legally binding on the judges of the High court. However the decisions from lower court or the same level of court is not binding. Decision of a same level of court is merely persuasive.

Whether negligence has been caused by Chan against Alias according to the provisions relating to the tort of Negligence

In the case of Arab Malaysian Bhd v Steven Phoa Cheng Loon (CA, 2002) it had been stated by the court that the required elements for establishing the tort of negligence includes in the first place the presence of a duty of care where an unauthorized or wrongful act has been committed by the party, second the act is infringed the rights of another person (breach of duty), third injury has been caused to the victim for the negligent act and finally actual damages have been caused which cannot be considered as very remote. In this case the court made it clear that English principles of tort are applicable in Malaysia.

Civil and Criminal Trials in Malaysia

The English case Donoghue v Stevenson 1932 AC 562 is the first which has discussed provisions regarding the tort of negligence. In the case the plaintiff had suffered injury because of the actions of a manufacturer who he was not directly associated with. The court ruled in the case that as the manufacturer could reasonable foresee harm to the plaintiff he had a duty of care towards him and thus as the duty was breached and the harm was caused the manufacturer was held liable for negligence.

The case of Haley v London Electricity Board [1965] AC 778 also discussed the foreseeability test. The test signified that of the harm can be foreseen reasonably based on proximity then duty of care is present.  The test in relation to standard of care is objective as provided by the case of Bolton v Stone [1951] AC 850. Here the court ruled that where a reasonable person observed the same standard of care to avoid the injury then no negligence is caused. The test for damages is the “but for” test as per Wu Siew Ying v Gunung Tunggal Quarry & Construction Sdn Bhd (FC, 2010) case. As per the test injury is held to be a result of the negligent action only if it would have not happed otherwise.

The facts of the case study signify that an accident has been caused where Alias has been injured. The injury has been caused as a signboard which was being carried on by a crane operated by Chan has hit the car which Alias was driving. As per the principles of the Haley case and the reasonable foreseeability test it can be stated that it is was foreseeable for Chan to known that his actions can injure a driver. As per the objective test a reasonable person would have ensured that the ropes are properly in place. As per the “but for” test no injury had been caused to Alias where the signboard had not fallen. Thus there is negligence on the part of Chan.

Whether any defenses are available to Chan in relation the claim of negligence by Alias

A significant defense which can be raised by a party which has been alleged to have committed the tort of negligence is the case of Contributory Negligence. The provisions in relation to the defense of contributory negligence have been discussed in the case of ICI v Shatwell [1965]. In this case it had been ruled by the court that the person who has been alleged of negligence can partially or wholly defeat the claim of the plaintiff if it is established that there was a contribution made by the plaintiff towards the injury which has been faced by him. Further whether a party has committed contributory negligence or not is assessed by the same standard which is observed which determining negligence. 

Provisions relating to contributor negligence are also provided in s. 12 of the Civil Law Act 1956. According to the section when damages have been suffered by a party because of their own fault as well as in part the fault of another person, then the claim of negligence would not be defeated totally and rather would be proportionated by the court in a manner which it thinks just and equitable.

Elements of Negligence Under Malaysian Law

It has been provided through the case study that a clear indication had been provided to Alias to stop the car 50 feet away from where the accident took place. However Alias did not stop upon the request to Chan’s assistance as he was getting late for a meeting. In this situation Alias had the duty of care to himself as he was in a position to harm himself. The duty was breached as he did not stop. This was the main cause of the injury as if would have stopped there would have been no accident and thus the “but for” test is satisfied. Alias is liable for contributory negligence. The court will therefore proportionate the damages according to the contribution.

According to McKendrick (2014) for a contract to be validly formed a proper offer is required followed by a valid acceptance according to the legal provisions relating to offer and acceptance.

In the case of Gibson v Manchester City Council [1979] 1 WLR 294 the court ruled that an offer has the legal capacity of being accepted if it is complete, sufficient and unambiguous. Any offer which is not sufficient and clear in nature is to be treated as an invitation to treat against which an acceptance cannot be made.

As per S4 (1) Contract Act 1950 an offer has to be accepted legally in order to be binding as a contract. The acceptance in relation to the offer has to be communicated in the required manner to the person who has made the offer. In addition the acceptance is also required to be “unequivocal”. The term signifies that the acceptance cannot contain any conditions which were not present in the original offer.

In the case of Byrne v Van Tienhoven (1880) LR 5 CPD 344  it was ruled by the court that once an offer has been revoked it cannot be accepted again and comes to an end.

In the case of Hyde v Wrench (1840) 49 ER 132 the plaintiff has made an offer to the defendant for the purchase of a farm at a price of 900. However the defendant asked for a price of 1000. The plaintiff provided a price of 950 which was rejected by the defendant stating that he will not sell the farm below 1000. The plaintiff subsequently made an offer to purchase the farm at 1000 but the defendant denied. The court in this case held that there was no contract between the parties as the offer had never been legally accepted.

In the given situation it has been provided that the Khalid has made an offer to Siti for the purchase of her painting at a price of RM 5000. However the Siti asked for a price of RM 7000. Khalid said that the price is too high.  Khalid subsequently made an offer to purchase the painting  at 7000 but Siti stated that she will not be selling the paining below RM10000. In this case there was a valid offer made by Khalid for the purchase of the painting at RM5000 however a counter offer was made by Siti for a price of 7000. This was a counter offer as it had additional terms as compared to the first offer. Thus there was no acceptance. The offer of RM 7000 made by Siti was rejected by Khalid and thus the offer came to an end in a legal manner and is no longer eligible to be accepted again.   Khalid attempted to accept the offer of RM7000 but as the offer had already been revoked it cannot be accepted again. Thus Siti is under no obligation to accept the price of RM7000 her offer was no longer there.  Further the position of Siti can be strengthened by the application of the Hyde v Wrench case where the same facts took place and the court held that there was no contract

There is no contract between Khalid and Siti

References

Arab Malaysian Finance Bhd v Steven Phoa Cheng Loon (CA, 2002)

Barrett, A.C., 2016. Originalism and Stare Decisis. Notre Dame L. Rev., 92, p.1921.

Bolton v Stone [1951] AC 850

Byrne v Van Tienhoven (1880) LR 5 CPD 344 

Civil Law Act 1956

Donoghue v Stevenson 1932 AC 562

Gibson v Manchester City Council [1979] 1 WLR 294

Haley v London Electricity Board [1965] AC 778

Hyde v Wrench (1840) 49 ER 132

ICI v Shatwell [1965]

McKendrick, E., 2014. Contract law: text, cases, and materials. Oxford University Press (UK).

Ng, K.P., 2017. Malaysian court rules on scope of protection for well-known trademarks. Journal of Intellectual business Law & Practice.

Wu Siew Ying v Gunung Tunggal Quarry & Construction Sdn Bhd (FC, 2010)