CASE(S) OF THE WEEK
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WANG BAO' AN & ORS v. MALAYSIAN AIRLINE SYSTEM BHD & OTHER CASES
[2018] 7 CLJ 371
HIGH COURT MALAYA, KUALA LUMPUR
AZIZUL AZMI ADNAN J
[CIVIL SUIT NO: 21NCVC-25-03-2017; 21NCVC-43-04-2016 (formerly registered as WA-22NCVC-146-03-2016); 21NCVC-26-03-2017; 21NCVC-20-03-2016; 21NCVC-15-02-2016; 21NCVC-51-08-2015; 21NCVC-22-03-2016; 21NCVC-23-03-2016; 21NCVC-33-03-2016; 21NCVC-34-03-2016; 21NCVC-27-03-2016; 21NCVC-28-03-2016; 21NCVC-30-03-2016]
21 MAY 2018
AVIATION LAW: Fatal accidents – Liability of carrier – Loss of aircraft out of international carriage by air of passengers – Whether Montreal Convention and Warsaw Convention provide exclusive causes of action against carrier – Whether all common law causes of action ousted – Whether cap on liability for dependency claim imposed by s. 7 of Civil Law Act 1956 applies in respect of claim under Montreal Convention
CIVIL LAW ACT: Dependency claim – Claim for damages – Disappearance of aircraft out of international carriage by air of passengers – Whether cap on liability for dependency claim imposed by s. 7 of Civil Law Act 1956 ('CLA') applies in respect of claim under Montreal Convention – Whether s. 5 of Carriage by Air Act 1974 displaces whole of s. 7 of CLA – Whether merely substitutes causes of action – Whether s. 7(3) of CLA governs recoverability and assessment of damages consequent upon any liability found under art. 17 of Montreal Convention
CIVIL PROCEDURE: Disposal on point of law – Issues – Whether Montreal Convention and Warsaw Convention provide exclusive causes of action against carrier and all common law causes of action ousted – Whether cap on liability for dependency claim imposed by s. 7 of Civil Law Act 1956 applies in respect of claim under Montreal Convention – Whether whole action would be disposed of by determination of question of law – Whether suffices if questions determine 'any claim or issue' in action – Rules of Court 2012, O. 14A
INTERNATIONAL LAW: Conventions – Binding effect within Malaysia – Loss of aircraft out of international carriage by air of passengers – Whether jurisdiction of either Warsaw Convention or Montreal Convention invoked – Whether pre-condition to art. 17(1) of Montreal Convention applies – Whether Montreal Convention and Warsaw Convention provide exclusive causes of action against carrier and all common law causes of action ousted – Whether cap on liability for dependency claim imposed by s. 7 of Civil Law Act 1956 applies in respect of claim under Montreal Convention
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CASE(S) HIGHLIGHT
Uber rape case: Cab driver Shiv Kumar Yadav found guilty, faces life imprisonment
More than 10 months after a 25-year-old woman was raped and sexually assaulted inside a radio taxi in the national capital, a fast-track court in Delhi Tuesday convicted cab driver Shiv Kumar Yadav, holding him guilty on charges of rape and endangering the life of the victim. Yadav, a former driver of Uber taxi service, faces a maximum punishment of life imprisonment.
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Judgment
Sentencing Decision
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ARTICLE HIGHLIGHT
Iraqi diplomat ordered to pay $20,000 over ‘morally repugnant’ sacking of Filipino nanny
AUSTRALIAEmployment
Diplomat who docked $250 from nanny's wages over shampoo ordered to pay A$20k
An Iraqi diplomat who docked $250 from the wages of her live-in Filipino nanny for a bottle of Sunsilk shampoo has been ordered to pay $20,000 over the “morally repugnant” treatment.
Juliet Buenaobra was brought to Australia in January 2015 on a 403 temporary work visa by Republic of Iraq Consul-General Anwar Alesi, then First Secretary, to perform domestic work at her home.
Ms Buenaobra was promised monthly wages of $1750 but was paid as little as $800, typically in cash. Her contract included a number of monthly “deductions”, including “board and lodging” of $800 — despite not having a private bedroom — “incidentals allowance” of $250, and $125 for “full medical insurance” that was never provided.
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Company should have been allowed to contest £75,000 tribunal award, finds Court Of Appeal
UKEmployment
Debarring order should not extend to remedy hearing in a significant claim
A company which was blocked from defending its liability in an employment tribunal should have still been able to contest the amount awarded against it, the Court of Appeal has ruled.
Office Equipment Systems had been issued draft damages worth almost £75,000 after former employee Jane Hughes lodged a multitudes of claims against it in November 2015.
On 8 December 2015, Cardiff Employment Tribunal wrote to Office Equipment Systems informing the company that, as it had not responded to the claims, its ability to participate in any hearing would be limited. When employers do not respond to claims in a timely manner, tribunals are entitled to make a finding on the facts made available to them by the employee.
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ECJ delivers landmark copyright ruling
Watch out next time your kids illustrate their school projects! ECJ rules that freely available content not necessarily free.
Although content is freely available on the internet users should still get consent from the person originally putting the content online, Europe’s top court has ruled. The ruling is welcomed by Europe's creative industries, which complain online platforms deny publishers, broadcasters and artists of their revenues. The Court of Justice of the European Union (ECJ was ruling on the case of a high school student in Germany who downloaded a photograph of Cordoba from a travel website to illustrate a presentation which was subsequently published on the school website. Photographer Dirk Renckhoff sued the city of Waltrop and North Rhine-Westphalia for copyright infringement and 400 euros in damages.
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British firm ordered to pay €60,000 by French court for breaching employee's 'right to disconnect' from work
EUROPEEmployment
British firm ordered to pay €60,000 by French court for breaching employee's 'right to disconnect' from work
The French wing of British pest control and hygiene giant Rentokil Initial has been ordered to pay a former employee €60,000 (£53,000) because it failed to respect his “right to disconnect” from his phone and computer outside office hours.
The ruling is believed to be the first of its kind since a 2016 law on the right to switch off such electronic devices became effective on January 1 last year in response to the modern-day scourge of compulsive out-of-hours email and message checking.
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New Zealand shop battles in court over Weetabix imports
NEW ZEALANDIntellectual property
Breakfast cereal battle hinging on whether consumers would confuse Weetabix with Weet-Bix
British expat Lisa Wilson wanted to sell the wheat-based breakfast to homesick Britons in her Canterbury-based shop A Little Bit of Britain, but has come up against domestic manufacturer Sanitarium, which says the brand name is too similar to their own local brand Weet-Bix, Radio New Zealand reports.
Customs officials seized a shipment of Weetabix last August after a complaint by Sanitarium.
Weet-Bix is a hugely popular brand in both Australia and New Zealand complete with celebrity endorsements, and Sanitarium are keen to protect their trademark.
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Payment in court! Judge orders cyberscammer to pay fine in crypto
Canadian case puts cyberscammer on the spot, ordering a Montreal businessman to pay a fine in cryptocurrency or go straight to jail.
cyberscammer to pay fine in crypto
Canadian case puts cyberscammer on the spot, ordering a Montreal businessman to pay a fine in cryptocurrency or go straight to jail.
Shutterstock
A superior court of Quebec judge ordered a cyber-scammer to pay a fine in cryptocurrency or face jail in a case that goes back to last year, when a Montreal businessman Dominic Lacroix was sentenced to two months in jail and a $10,000 fine in December for deceiving investors from around the world of nearly $15 million in a crypto-currency scam.
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