Chapter 12 – Law of Tort 1

 Tortious liability arises from the breach of a duty primarily fixed by the law; this duty is towards persons generally and its breach is redressible by an action for unliquidated damages  The law of tort in Malaysia is largely derived from the common law of England 2

 Tort covers subjects such as: - ◦ Trespass to the person (e.g. assault and battery and false imprisonment) ◦ Negligence ◦ Defamation ◦ Trespass to land ◦ Nuisance ◦ Trespass to goods 3

 Negligence is defined as ‘the breach of a legal duty to take care which results in damages, undesired by the defendant, to the plaintiff’  The ingredients of negligence are: - ◦ A legal duty on the part of A towards B to exercise care in such conduct of A as falls within the scope of the duty ◦ Breach of that duty ◦ Consequential damage to B 4

 Not every careless act done by a person results in his being held responsible in law  He will only be liable in negligence if he is under a legal duty to take care 5

 The general principle as regards the criterion of duty is that which was given by Lord Atkin in Donoghue v Stevenson which reads as follows: ‘The rule that you are to love your neighbour becomes, in law, you must not injure your neighbour; and the lawyer’s question, Who is my neighbour? Receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be – persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.” 6

Donoghue v Stevenson [1932] A.C. 562, 580 A manufacturer of ginger-beer had sold to a retailer ginger- beer in an opague bottle. The retailer resold it to A who treated her friend to its contents. The ginger-beer bottle also contained the decomposed remains of a snail which had found its way into the bottle at the factory. A’s friend alleged that she became seriously ill in consequence and sued the manufacturer for negligence. Held: Although there was no contractual duty on the part of the manufacturer towards A’s friend, the manufacturer owed her a duty to take care that the bottle did not contain noxious matter and it would be liable if that duty was broken 7

 The test for the existence of a duty owed to the plaintiff is the ‘neighbour’ principle stated by Lord Atkin in Donoghue v Stevenson, i.e. the foresight of the reasonable man  One therefore asks the question whether the injury to the plaintiff was reasonably foreseeable consequence of the defendant’s acts or omissions 8

The Atkinian test was applied by the Malaysian courts in Lim Kar Bee v Abdul Latif bin Ismail, Wu Siew Ying v Gunung Tunggal Quarry & Contructions Sdn. Bhd. & Ors. Lembaga Kemajuan Tanah Persekutuan v Maniam The Court of Appeal in Arab-Malaysian Finance Bhd. v Steven Phoa Cheng Loon & Ors. 9

In deciding whether a duty of care is owed by a defendant to a plaintiff in a given case, it is necessary to consider the facts and circumstances of that case (Canadian National Railway Co. v Norsk Pacific Steamship Co.) 10

It is not required that the plaintiff must be identifiable by the defendant It is enough if the plaintiff is one of a class within the area of foreseeable injury 11

Haley v London Electricity Board Ds excavated a trench in the street. They took precautions for the protection of passers-by which were sufficient for normal sighted persons. However, P, who was blind, suffered injury because the precautions taken by Ds were inadequate for him. Held: the number of blind persons walking about the streets alone was sufficient to require Ds to have them in contemplation and take precautions appropriate to their condition. 12

The defendant must not only owe the plaintiff a duty of care, he must be in breach of it The test for deciding whether there has been a breach of duty is laid down in the dictum of Alderson B. in Blyth v Birmingham Waterworks Co.: “Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do” 13

Who is a ‘reasonable man’? A reasonable man has been described as ‘the man on the omnibus’. In other words, a ‘reasonable man’ means an ordinary man who is not expected to have any particular skill such as that possessed by a surgeon, a lawyer or a plumber unless he is actually one 14

In Fardon v Harcourt-Rivington, Lord Dunedin put the test as follows: “If the possibility of the danger emerging is reasonably apparent, then to take no precautions is negligence; but if the possibility of danger emerging is only a mere possibility which would not occur to the mind of a reasonable man, then there is no negligence in not having taken extraordinary precautions … In other words, people must guard against reasonable probabilities, but they are not bound to guard against fantastic possibilities.” 15

 Lord Macmillan, in Bourhill v Young formulated the relevant test in this way: “The duty to take care is the duty to avoid doing or omitting to do anything, the doing or omitting to do which may have as its reasonable and probable consequence to others and the duty is owed to those to whom injury may reasonably and probably be anticipated if the duty is not observed.” 16

 The standard of what is ‘reasonable’ is an objective one  Varies with the circumstances  Judge to decide – in the circumstances of the particular case, the reasonable man would have in contemplation, and what accordingly the party sought to have foreseen  Example: a passer-by who renders emergency first aid after an accident is not required to show the skill of a qualified doctor 17

 In some cases, however, the question of foreseeability of an event will depend upon whether or not a particular item of knowledge is to be imputed to the reasonable man  The reasonable foreseeability of a consequence is determined by the knowledge and experience which is to attributed to the reasonable man in the circumstances 18

Roe v Minister of Health [1954] 2 Q.B. 66 Facts: In 1947, Roe was a patient in a hospital. Dr. G, an anaesthetist, administered a spinal anaesthetic to him in preparation for a minor operation. The anaesthetic was contained in a glass ampoule which had been kept before use in a solution of phenol. Unfortunately some of the phenol had made its way through an ‘invisible crack’ into the ampoule this contaminating the anaesthetic. As a result Roe became permanently paralysed from the waist dow. Dr. G had subjected the ampoule to a visual examination before administrating the anaesthetic but he did not add a colouring agent to the phenol so that contamination of the anaesthetic could have been observed. 19

Held: Dr. G was not negligent in not causing the phenol to be coloured because the risk of invisible cracks had not been drawn to the attention of the profession until 1951 and ‘care has to be exercised to ensure that conduct in 1947 is only judged in the light of knowledge which then was or ought reasonably to have been possessed. In this connection, the then existing state of medical literature must be had in mind.’ 20

 In deciding whether there was a breach of duty, a balance must be truck between the magnitude of the risk and the burden to the defendant in doing (or not doing) what is alleged he should (or should not) have done  In every case where a duty of care exists, the court must consider whether the risk was sufficiently great to require of the defendant more than he has actually done  The 3 factors the courts must consider are: ◦ The magnitude of the risk; ◦ The importance of the object to be attained; and ◦ The practicability of precautions 21

 2 elements: ◦ Likelihood that injury will be incurred; and ◦ Seriousness of the injury that is risked 22

Bolton v Stone [1951] A.C. 850 Facts: P was standing on the highway in a road adjoining a cricket ground when she was struck by a ball which a batsman had hit out of the ground. Balls had occasionally been hit out of the ground before. However, there was a seven-foot fence around the cricket ground, there was quite a distance from the pitch to the edge of the ground, and there was an upward slope of the ground in the direction in which the ball was struck. 23

Held: Taking into the account the distance from the pitch to the edge of the ground, the presence of a seven-foot fence and the upwards slope of the ground in the direction in which the ball was struck, the likelihood of injury to a person in P’s position was so slight that the cricket club was not negligent in allowing cricket to be played without having taken additional precautions such as increasing the height of the fence. 24

Hilder v Associated Portland Cement Manufacturers Ltd. [1961] 1 W.L.R Facts: P’s husband was riding his motorcycle along a road outside a piece of open land occupied by Ds and where children were permitted to play football. A ball was kicked into the road causing P’s husband to have an accident 25

Held: In view of the likelihood of injury to passers-by, Ds are liable for having permitted football to be played on their land without having taken any additional precautions 26

 It is necessary to balance the risk against the consequences of not taking it  In Daborn v Bath Tramways, where it was held that a left-hand-drive ambulance driver during the emergency period of war was not negligent in turning right without giving a signal  Thus, where the purpose to be served in talking the risk is sufficiently important to justify the taking of that risk, the defendant is not liable (Watt v Hertfortshire County Council) 27

 The risk must be balanced against the measures necessary to eliminate it, and the practical measures with which the defendant could have taken must be considered (Latimer v A.E.C. Ltd)  Latimer v A.E.C. Ltd. [1953] A.C. 643 Facts: A factory floor became slippery after a flood. The occupiers of the factory did everything possible to get rid of the effects of the flood. Nevertheless, P was injured and then sought to say that the occupiers should have closed down the factory. Held: The risk of injury created by the slippery floor was not so great as to justify so onerous a precaution as to close down the factory. 28

 P’s damage must have been caused by D’s breach of duty and must not be too remote a consequence of it  Remoteness of damage is concerned with the question whether damages may be recovered for particular items of P’s loss  This means that one has to ask whether the breach of duty was the primary cause of the damage 29

Barnett v Chelsea and Kensington Hospital Management Committee Facts: Early one morning P’s husband went to D’s hospital and complained of vomiting after drinking tea. The nurse on duty consulted a doctor by telephone and the doctor said that he should go home and consult his own doctor later in the morning. P’s husband died of arsenical poisoning. Held: In failing to examine the deceased, the doctor was guilty of a breach of his duty of care, but this breach was not a cause of the death because, even if the deceased had been examined and treated with proper care, the probability was that it would have been impossible to save his life. P’s claim therefore failed

 In The Wagon Mound [1961] A.C. 388, the Privy Council that the foresight of the reasonable man alone can determine responsibility.  Test – reasonably foreseeable  In negligence, foreseeability is the criterion not only for the existence of a duty of care but also for remoteness of damage

 The Wagon Mound [1961] A.C. 388 test of reasonable foreseeability of harm has been applied by the Malaysian Courts in: - ◦ Government of Malaysia & Ors v. Jumat bin Mohamed & Anor ◦ Jaswant Singh v. Central Electricity Board & Anor ◦ Arab-Malaysian Finance Bhd. v. Steven Phoa Cheng Loon & Ors.

 Whether a particular harm was reasonably foreseeable is a question of fact that depends upon the peculiar facts of each (Jolley v. Sutton London Borough Council)  Applying the general principles given above in respect of remoteness, it is clear that consequences which are intended are never too remote  Lord Lindley in Quinn v. Leatham said, ‘The intention to injure the plaintiff … disposes of any question of remoteness of damage’  Example: - ◦ If a man throws some fire crackers intending it as a joke and P’s eye is injured as a result, he would be liable ◦ If a woman hits a man on the head with a hammer, she cannot raise the defence that the man’s head wad hurt badly because he had a ‘thin skull’

 Contributory negligence  Volenti non fit injuria

 At common law, if P’s injuries have been caused partly by the negligence of D and partly by his own negligence, then, P can recover nothing  It is clear that this rule is a harsh one and hardship is cause especially where P’s negligence was not the major cause of the accident

 S12 of the Civil Law Act 1956 provides: “Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage but the damages recoverable in respect thereof shall be reduced to such extent as the Court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage.” By the same section ‘fault’ means negligence, breach of statutory duty, or other act or omission which gives rise to liability in tort or would, apart from the act, give rise to the defence of contributory negligence

 All that is required to provide contributory negligence is that P has failed to take reasonable care for his own safety and that P’s lack of care for his own safety was a contributory factor to the accident which caused his damage  P is not guilty of contributory negligence if his conduct could not have been foreseen as likely to result in his own injury  A person is guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable prudent man, he might hurt himself and in his reckonings he must take into account the possibility of others being careless

 As provided in s 12 of the Civil Law Act 1956, in the case of contributory negligence, the damages recoverable by P are to be reduced ‘to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage’  In apportioning the damage, the court is directed to do what is ‘just and equitable’  The matter is thus one for the discretion of the court  The courts generally consider the extent of P’s lack of care for his own safety as a major factor

 100% defence  Plaintiff is 100% at fault for his own injury

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