Chapter 1 - Cause of Action: Negligence

Question 1

NEGLIGENCE

Overview

Answer 1

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

Question 2

DUTY OF CARE

Overview

Answer 2

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

Question 3

DUTY OF CARE

Meaning & scope

Answer 3

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.

Question 4

DUTY OF CARE

Road workers & road users

Answer 4

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.

Question 5

DUTY OF CARE

Between drivers

Answer 5

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.

Question 6

DUTY OF CARE

Drivers towards passenger

Answer 6

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.

Question 7

DUTY OF CARE

Towards children in fare-paying vehicle

Answer 7

Chang Kan Nan v Ludhiana Transport Syndicate:

• fare-paying drivers owe a very high degree of care towards those whom they convey.

Question 8

DUTY OF CARE

On property & of animals

Answer 8

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.

Question 9

DUTY OF CARE

Omission or failure to act

Answer 9

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.

Question 10

DUTY OF CARE

How court determines existence of duty of care

Answer 10

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.

Question 11

STANDARD OF CARE

Overview

Answer 11

1) General standard of care
2) Professional standard of care - Bolam’s Test
3) Professional standard of care - Malaysian position

Question 12

STANDARD OF CARE

General standard of care

Answer 12

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.

Question 13

STANDARD OF CARE

Professional standard of care - Bolam’s test

Answer 13

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.

Question 14

STANDARD OF CARE

Professional standard of care - Malaysian position

Answer 14

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.

Question 15

BREACH OF DUTY

Overview

Answer 15

1) State of knowledge
2) Magnitude of risk
3) Practicability of precautions
4) Utility of conduct

Question 16

BREACH OF DUTY

State of knowledge

Answer 16

Roe v Minister of Health:

• there was no breach if the risk is an unknown risk & it is a risk that cannot be foreseen.

Question 17

BREACH OF DUTY

Magnitude of risk

Answer 17

Paris v Stepney:

• If the magnitude of risk is higher on a particular person, duty owed to the person is higher.

Question 18

BREACH OF DUTY

Practicability of precautions

Answer 18

Latimer v AEC Ltd:

• As long as D had taken practical & reasonable precautions, there was no breach of duty.

Question 19

BREACH OF DUTY

Utility of conduct

Answer 19

Watt v Hertfordshire:

• As long as D’s utility of conduct outweighs the needs of taking strict precautions, there is no breach of duty.

Question 20

CAUSATION & REMOTENESS

Overview

Answer 20

1) Causation - “but for” test

2) Remoteness - “foreseeability” test

Question 21

CAUSATION

“but for” test

Answer 21

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.

Question 22

REMOTENESS

“foreseeability” test

Answer 22

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.

Question 23

BURDEN & STANDARD OF PROOF

Overview

Answer 23

1) Burden of proof
2) Standard of proof
3) res ipsa loquitur

Question 24

BURDEN & STANDARD OF PROOF

Burden of proof

Answer 24

Hussaina Rani v Ahmad Nadzri Kamaruddin:

• On the P;
• May be proven by his own evidence or cross-examination.

Question 25

BURDEN & STANDARD OF PROOF

Standard of proof

Answer 25

Tan Ah Kau v Govt. of Malaysia:

• On balance of probabilities.

Question 26

BURDEN & STANDARD OF PROOF

res ipsa loquitur

Answer 26

Teoh Guat Looi v Ng Hong Guan:

• Negligence is prima facie proven if P can show that it could not have happened w/o negligence in the part of D.
• Onus is shifted on D to prove that he is not negligent.

Question 27

ISSUES ON NEGLIGENCE

Overview

Answer 27

1) Driving w/o driving license

2) Omission in police report

Question 28

ISSUES ON NEGLIGENCE

Driving w/o driving license

Answer 28

Siti Rohani Mat Shah & Ors v Haji Zainal bin Saiflee:

• Riding or driving w/o license per se is not negligent.

Question 29

ISSUES ON NEGLIGENCE

Omission in police report

Answer 29

Abdul Kadir Mohammad v Kamarulzaman Mohd Zin:

• Omission in police report, if material, is fatal to the party omitting such facts.

Question 30

REMEDIES

Remedies for negligence

Answer 30

Damages

Question 31

DEFENCES FOR NEGLIGENCE

Overview

Answer 31

1) Contributory negligence

2) Assumption of risk

Question 32

CONTRIBUTORY NEGLIGENCE

Overview

Answer 32

1) Pleading contributory negligence
2) What is contributory negligence
3) Examples of contributory negligence
4) Contributory negligence for infants

Question 33

CONTRIBUTORY NEGLIGENCE

Pleading CN

Answer 33

1) Who to plead:

• The party who is relying on it;
• i.e. the defendant.

2) The law:
- O.18, r.8
3) Failure to plead:
- General: Janagi v Ong Boon Kiat

• parties are bound by their pleadings;
• failure to plead points will prevent the party from raising the issue at trial;
• court is also prevented to decide based on unpleaded issue.
• On CN: Anuar bin Mat Amin v Abdullah bin Mohd Zain (HC):
• The learned judge of the sessions court was wrong in considering contributory negligence in the case when contributory negligence was not pleaded nor otherwise properly made an issue of during the course of the trial.
• Therefore, contributory negligence MUST be specifically pleaded.

Question 34

CONTRIBUTORY NEGLIGENCE

Principles on contributory negligence

Answer 34

1) The principle - Nance v British Columbia Electric Railway Co Ltd:
- the principle involving contributory negligence is that, where a man is part author of his own injury, he cannot call on the other party to compensate him in full.
2) Test for CN - Mohd Zukhairi Abd Ghapar & Anor v Quek Chiam Kee:

• Does not mean breach of duty;
• It means failure by a person to use reasonable care for the safety of himself or his property so that he becomes the author of his wrong.

Question 35

CONTRIBUTORY NEGLIGENCE

Examples of contributory negligence

Answer 35

Loh Chee Kong v Syarikat Bee Huat Bhd:

• a prudent driver would anticipate the motorcyclist losing his control;
• P did not avoid until it was too late;
• P was held to be contributorily negligent.

Question 36

CONTRIBUTORY NEGLIGENCE

CN on infants

Answer 36

Mohd Safuan bin Wasidin & Anor v Mohd Ridhuan bin Ahmad (an infant):

• degree of care attached to a child is different;
• the younger the child, the lesser the degree of care is expected;
• OTF, due to P’s tender age, he cannot be held liable for CN.

Question 37

ASSUMPTION OF RISK

The principles & test

Answer 37

1) The principles:

• When a plaintiff assumes the risk involved in an obviously dangerous activity but proceeds to engage in the activity anyway, he or she may not be able recover damages for injuries.
• In order for this doctrine to apply, the plaintiff must have actual, subjective knowledge of the risk involved in the activity.
• The plaintiff must also voluntarily accept the risk involved in the activity.

2) Test to invoke - Letang v Ottawa Electric The court held that if the defendant wants to succeed under this maxim, he must prove that the plaintiff had given his consent freely, voluntarily with full knowledge of the nature of the risk.