Chapter 1 - Cause of Action: Negligence Flashcards
NEGLIGENCE
Overview
1) Duty of care
2) Standard of care
3) Breach of duty of care
4) Causation & remoteness
5) Burden & standard of proof
6) Issues on negligence
7) Remedies for negligence
DUTY OF CARE
Overview
1) Meaning & scope
2) Between road workers & road users
3) Between drivers
4) Drivers towards passenger
5) Towards children in fare-paying vehicle
6) On property & of animals
7) Failure to act
8) How court determines the existence of duty of care
DUTY OF CARE
Meaning & scope
Oxford Dictionary:
- a moral or legal obligation to ensure the safety or well-being of others.
- see: how court determines the existence of duty of care below.
DUTY OF CARE
Road workers & road users
Lim Kar Bee v Abdul Latif Ismail:
- people who work by the road has a duty to consider the risk of collision & to avoid any hazard;
- Failure to consider will amount to breach.
DUTY OF CARE
Between drivers
Goh Beng Seng v Dol bin Dolah:
- One driver owes a duty to others on the road, just as others owe duty to each other.
DUTY OF CARE
Drivers towards passenger
KR Taxi Services & Ors v Zaharah & Ors:
- Duty of driver towards passenger is to exercise reasonable care;
- He is not under a duty to anticipate the way other drivers drive.
DUTY OF CARE
Towards children in fare-paying vehicle
Chang Kan Nan v Ludhiana Transport Syndicate:
- fare-paying drivers owe a very high degree of care towards those whom they convey.
DUTY OF CARE
On property & of animals
Periasamy v Suppiah:
- A man may be liable for damages done by animals under his care;
- Duty of care is owed to property as well as per neighbourhood test.
DUTY OF CARE
Omission or failure to act
Chai Yee Chong v Lew Thai:
- General rule: failure to act does not amount to negligence.
- Exception: special relationship between the parties.
- What needs to be proven: commonly done & obviously wanted.
- i.e. the law does not impose a general duty of care to be a do-gooder or a good Samaritan unless there is a special relationship between the parties.
DUTY OF CARE
How court determines existence of duty of care
1) Neighbour principle - Lim Kar Bee v Abdul Latif Ismail:
To determine whether a duty was owed to P;
- A person must take reasonable care to avoid acts or omissions which he can reasonably foresee would be likely to injure his neighbour;
- Neigbour is a person who is directly & closely affected by his act.
2) Recent - Lok Kok Beng & Ors v Loh Chiak Eong & Anor (FC, 2015):
- Tortious liability arises from a wrongful act where the common law imposes a duty to take reasonable care.
- The threshold in determining the existence of duty of care is that of foreseeability.
STANDARD OF CARE
Overview
1) General standard of care
2) Professional standard of care - Bolam’s Test
3) Professional standard of care - Malaysian position
STANDARD OF CARE
General standard of care
1) Blyth v Birmingham Water Works:
- standard of care is one of ordinary prudence would not act or fail to act;
- i.e. one is negligent if he fails to do something which a reasonable man would do or he does something which a prudent & reasonable man would not do.
2) Recent - Lok Kok Beng & Ors v Loh Chiak Eong & Anor (FC, 2015):
- liability is judged by the standard of the reasonable man that he ought to have foreseen it.
STANDARD OF CARE
Professional standard of care - Bolam’s test
Bolam v Friern Hospital Management Committee:
- A man need not possess the highest expert skill at the risk of being found negligent.
- It is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art;
- i.e. standard of care in professional field is the standard of an ordinary skilled man exercising & professing to have that special skill.
STANDARD OF CARE
Professional standard of care - Malaysian position
Dr. Soo Fook Mun v Foo Fio Na (FC, 2007):
- Bolam test has no relevance to the duty and standard of care of a medical practitioner in providing advice to a patient on the inherent and material risks of the proposed treatment.
- The practitioner is duty bound by law to inform his patient who is capable of understanding and appreciating such information of the risks involved in any proposed treatment;
- This is so as to enable the patient to make an election of whether to proceed with the proposed treatment with knowledge of the risks involved or decline to be subjected to such treatment.
BREACH OF DUTY
Overview
1) State of knowledge
2) Magnitude of risk
3) Practicability of precautions
4) Utility of conduct
BREACH OF DUTY
State of knowledge
Roe v Minister of Health:
- there was no breach if the risk is an unknown risk & it is a risk that cannot be foreseen.
BREACH OF DUTY
Magnitude of risk
Paris v Stepney:
- If the magnitude of risk is higher on a particular person, duty owed to the person is higher.
BREACH OF DUTY
Practicability of precautions
Latimer v AEC Ltd:
- As long as D had taken practical & reasonable precautions, there was no breach of duty.
BREACH OF DUTY
Utility of conduct
Watt v Hertfordshire:
- As long as D’s utility of conduct outweighs the needs of taking strict precautions, there is no breach of duty.
CAUSATION & REMOTENESS
Overview
1) Causation - “but for” test
2) Remoteness - “foreseeability” test
CAUSATION
“but for” test
1) What is causation:
- Cause in fact;
- i.e. causation is a matter of fact and requires the claimant to prove that the negligent act caused the damage complained of.
- The claimant will not succeed unless it can be demonstrated that the negligent act of the defendant caused or materially contributed to the damage complained of.
2) But for test - Barnett v Chelsea Kensington Hospital:
- would the result have occurred but for the act or omission of the defendant?
- If yes, the defendant is liable.
REMOTENESS
“foreseeability” test
1) What is remoteness:
- cause in law which require the claimant to establish that the damage was of a kind which was reasonably foreseeable.
2) The Wagon Mound:
- the kind & extent of damage suffered by P should have been foreseeable by D.
2) Recent - Lok Kok Beng & Ors v Loh Chiak Eong & Anor (FC, 2015):
- whether the defendant ought to have known that the claimant would suffer damage from his carelessness.
3) Application - Sivakumaran v Yu Pan:
- If the result is a normal result from alike accident, it is foreseeable.
- If the result is an abnormal result from alike accident, it is not foreseeable.
BURDEN & STANDARD OF PROOF
Overview
1) Burden of proof
2) Standard of proof
3) res ipsa loquitur
BURDEN & STANDARD OF PROOF
Burden of proof
Hussaina Rani v Ahmad Nadzri Kamaruddin:
- On the P;
- May be proven by his own evidence or cross-examination.
