Negligence is defined as per the case Blyth v Birmingham Waterworks Co 1 , to mean an

omission to do something which a reasonable man, guided upon the considerations that are

ordinary to a circumstance, would do, or doing something which a reasonable man would not

do. In order to claim under this tort, three elements need to be established and these are, as

according to Lochgelly Iron v McMullan 2 , duty of care, breach of duty and causation of

damage.

A. WHETHER TUAN OWES PAK KADIR A DUTY OF CARE.

A duty of care is an obligation requiring an individual to do or refrain from doing something

in avoidance of assailing harm onto another. There are different tests that aid in establishing a

duty of care, depending on the type of harm incurred. The Neighbour Principle is utilised in

order to ascertain the existence of duty of care specifically in cases where the damages

claimed involve property damage and personal injury. On the other hand, the three-fold

Caparo test is utilised in establishing a duty of care in cases of pure economic losses, which

are damages incurred wholly independent from property damage or physical injury.

Before proceeding to apply the aforesaid principles in establishing duty of care, the damages

incurred by Pak Kadir must first be classified as per the above to determine the appropriate

test. Firstly, in terms of property damage, Pak Kadir’s newly-erected front gate was bent.

Secondly, in terms of personal injury, Pak Kadir incurred a cut in his hand when he lifted his

bent gate while cleaning his front garden, which required ten stitches. These two damages

fall within the scope of the Neighbour Principle. On another note, as a result of Pak Kadir’s

mentioned hand injury, he is unable to work for three weeks; a period in which he could have

earned RM2100. As the claim for loss earnings falls within the ambit of pure economic loss,

1
(1856) 11 Ex 781 at 784.
2
[1934] AC 1 at 25, HL.
seeing as it is claim completely independent of personal injury and physical damage, albeit

being a result of it.

The Neighbour Principle

The Neighbour Principle lays out that reasonable care must be taken by a person to avoid acts

or omissions which can be reasonably foreseen to injure their ‘neighbour’. ‘Neighbour’ in the

context of the case, refers to anyone who is so closely affected by the other person’s act, that

the other person ought to know that his unreasonable conduct would injure them in some

ways. For clarity, the principle has compounded as follows.

i) Foreseeability Of Harm

The damage incurred must be such that it is reasonably expected to arise from the defendant’s

conduct. This element is illustrated in the case of Topp v London Country Bus 3 . The

defendant bus company left a mini-bus in a lay-by overnight. It was unlocked and the keys

were left in the ignition. The driver who was expected to pick the bus did not turn up for his

shift. Thieves stole the bus and drove it away. Unfortunately, the bus knocked a woman off

her bicycle and killed her. Her husband brought an action for damages. The court held that

the bus company did not owe a duty of care for the acts of the third party. It was not

foreseeable that thieves would take the bus and run a woman off her bicycle.

A damage is said to be especially foreseeable if the arises from the act of a third party over

which the defendant harbours a position of control. This is illustrated in the case of Home

Office v Dorset Yacht Co Ltd 4 where some young offenders were doing some supervised

work on Brown Sea Island under the Borstal Regime. One night the Borstal officers retired

3
[1993]1 WLR 976.
4
[1970] AC 1004.
leaving the boys unsupervised. Seven of them escaped and stole a boat which collided with

the plaintiff’s yacht. The court held that the Home Office owed a duty of care as it was

foreseeable that harm would result from leaving the boys unsupervised. The Home Office

owed a duty of care for their omission as they were in a position of control over the third

party who caused the damage and it was foreseeable that harm would result from their

inaction.

In this case, the facts are similar to Topp’s case. Tuan’s lorry was left by his driver outside

Tuan’s premise for a few minutes. Later Ben, a teenage boy drove away the lorry for fun.

Unfortunately, the lorry crashed into Pak Kadir’s gate and damaged them severely. Tuan just

did what a reasonable man would do by leaving his lorry outside his premise for a few

minutes without expecting others to come and drive it away. It is foreseeable that his lorry

would be stolen by others within the few minutes when his lorry was left outside his premise,

but it is not foreseeable that his lorry was driven away by Ben who later clashed into Pak

Kadir’s new gates. Thus, Tuan did not owe a duty of care for the acts of Ben who was a third

party in this case. It was not foreseeable that Ben would drive away the lorry while playing in

the area and crashed and damaged Pak Kadir’s new gates.

It can be argued that as per the Home Office case above, Tuan has to bear a responsibility

towards the damage, although it was clearly caused by a third party, Ben. Nevertheless, to

distinguish, in Tuan’s circumstances he did not have a position of control over Ben as he was

a remote teenage boy merely playing near the area, who bore no relations to Tuan and whose

careless conduct in impulsively deciding to drive the lorry cannot then be said to fall within

Tuan’s reasonable expectation.

ii) Proximity Of Relationship

A relationship is deemed to be of proximity when the party affected was so closely and

directly affected by the other party’s act. Proximity does not always mean physical nearness.

Two persons may be physically near each other and yet there is no duty of care. In Bourhill v

Young, the plaintiff, a pregnant woman, suffered nervous shock when she heard but did not

see a collision between the defendant and another road user. The House of Lords held that the

defendant did not owe a duty of care to the plaintiff. This was because the plaintiff was

outside the area of foreseeable harm and the possibility of her being affected by the collision

was consequently unforeseeable.

In the present case, Tuan and Pak Kadir were physically near to each other since they were

neighbours, but there is no duty of care by Tuan to Pak Kadir as Tuan did not expect his own

lorry to be driven by Ben who clashed into Pak Kadir’s gate at the material time. Thus, the

possibility of Pak Kadir being affected by the clash was completely unforeseeable. Therefore,

Tuan having contemplated as a reasonable person that Pak Kadir would not be affected by

having his (Tuan) lorry left in front of his own premise (Tuan’s premise) for few minutes did

not owe a duty of care to Pak Kadir.

As such, Tuan does not owe a duty of care towards Pak Kadir in terms of the damaged gate

and injured hand.

Caparo Test

In Caparo Industries v Dickman5, the plaintiff bought shares based on a report accorded by

the company concerned and then discovered the accounts did not show the company was

suffering losses. The plaintiff then sued the defendant, the auditors of the company’s

accounts for negligence, in not appropriating the correct figures in the report they relied upon.

The House of Lords held defendant not liable. In assessing this, the court laid out three

5
[1990] 2 AC 605.
components: foreseeability of harm and proximity of relationship, similar to the Neighbour

Principle, and an extra component on whether it would be fair, just and reasonable to impose

a duty of care onto the defendant.

As the first two components of this test have been addressed in the application of the

Neighbour Principle, only the third component needs to be applied to the facts of the current

case.

iii) Fair, just and reasonable to impose duty

In Spartan Steel & Alloys Ltd v Martin & Co6, their Lordships felt that the first and second

types of damages (the reduction in value to the first melt and the loss of profit from it) were

consequential upon the damage to property, but the third type of damage (the loss of expected

profits) suffered by the plaintiffs was a pure economic loss completely independent of

physical damage, and being far too remote in claims, is considered irrecoverable.

In the present case, as the damage to the gate and consequent injury to Pak Kadir’s hand

cannot be foreseen to result from the lorry being taken over by Ben and as such, no

proximate relationship between Tuan and Pak Kadir was deemed to exist, it would not then

be fair, just and reasonable to impose a duty of care on Tuan for the recoverability of the loss

of income. To justify, since the damages preceding and resulting in Pak Kadir’s loss of

income were not caused by Tuan, it would therefore be inequitable to demand Tuan to

remedy a loss resulting from something that he was not responsible for.

As such, in terms of the loss of income, Tuan does not owe a duty of care towards Pak Kadir.

B. WHETHERTHERE WAS TUAN BREACHED HIS DUTY OF CARE

TOWARDS PAK KADIR

6
[1973] 1 QB 27.
A breach is a failure to perform a legal obligation or duty. A violation of the duty of

reasonable care, such as acting unreasonably, constitutes breach of duty. Breach of duty

occurs if the defendant fails to perform a duty that would be expected of a reasonable man. If

a defendant owes a duty of reasonable care, breach of that duty due to a failure to exercise

reasonable care may support an action for negligence. The test applicable here is the

Reasonable Man Test, elaborated as follows.

Reasonable Man Test

The behaviour expected of a hypothetical reasonable man is tested when one is placed in the

similar circumstances as the defendant. In the case of Blyth v Birmingham Waterworks Co7,

the court held that the question to ask is whether the reasonable man would have acted as the

defendant had done in the similar circumstances.

Nevertheless, the standard of a reasonable man may be varied. A variant of the reasonable

man standard is elaborated on in the case of Glasgow Corporation v Muir 8 where the

defendant spilled hot tea on some children, and the issue faced by the court was whether the

defendant should have foreseen that the injury would occur when he brought a big container

of tea through the corridor of the premises, such that he could have exercise a reasonably

higher standard of care. The court held that hot tea is not a naturally dangerous object and

therefore, the plaintiff claims were dismissed on the ground that the defendant had exercised

a standard of care of any reasonable man in handling the hot tea; he had not fallen below the

standard of precaution and he need not exercise care beyond what was necessary.

Applying this to the case, a lorry cannot be said to be a naturally dangerous object, as it is

used ordinarily as a means of transport. As such, Mat need not handle the lorry with a higher

7
(1856) 11 Ex 781 at 784.
8
[1943] AC 448.
standard of care than what he has to exercise as a reasonable lorry driver. Therefore, Mat is

justified in leaving his lorry outside Tuan’s premise for a few minutes without expecting

others to come and drive it away. Tuan need not exercise care beyond means of what is

foreseeable. Accordingly, it is foreseeable that his lorry would be stolen by others within the

few minutes when his lorry was left outside his premise as earlier established, but it is not

foreseeable that his lorry was driven away by Ben who later crashed into Pak Kadir’s new

gates.

As such, there was no breach of duty on Tuan’s part towards Pak Kadir.

C. CAUSATION

In order to establish negligence, the damage incurred must have a causal link to the negligent

act. For this causal link to proven, the causation in fact and causation in law also known as

remoteness of damage have to be established.

i) Causation In Fact

To prove causation in fact, ‘But For’ test laid out in Barnett v Chelsea & Kensington Hospital

Management Committee9, among others, can be applied. The question to ask is, “but for the

defendant’s breach of duty, would the plaintiff have suffered the damage?”. If the answer is

‘yes’, then no causal link can be deemed to be established. On the other hand, if the answer is

‘no’, then a causal link is then established.

In this landmark case, the plaintiff’s security guard husband drank some tea and subsequently

started vomiting. Upon arrival at the hospital, the doctor refused to treat the plaintiff’s

husband and told him to go home. He then died of arsenic poisoning. In a suit for negligence,

the court held that the plaintiff’s husband would have died anyway. Therefore, despite the

9
[1969] 1 ALL ER 1068.
existence of a breach of duty in refusal on part of the doctor to treat the deceased, due to

inevitable nature of the death, the claim for negligence was dismissed.

In the present case, since there was no breach of duty from the outset, there is no need to

establish the existence of a causation in fact.

ii) Causation In Law (Remoteness of damage)

This limb of causation is used to ensure that the damage suffered by the plaintiff is not

too remote. Failing to prove this would absolve completely or limit the defendant’s

liability towards the damage. The test utilised to establish causation in law is the

Reasonable Foresight Test. This test requires for the damage to be reasonably foreseeable

to arise from the negligent act.

The case to illustrate the aforesaid test is the case of The Wagon Mound no I10, whereby it

was held that even though the damage suffered was a direct consequence of the fire

alighted by the spilled furnace oil from the defendant’s ship, no reasonable man could

have foreseen such a damage as a the time, it was unknown that a fire could ignite on

water. Therefore, the defendant escaped liability.

However, in the case of Hughes v Lord Advocate11, the defendant was held liable for the

burns a child suffered from playing with a paraffin lamp down a manhole as they had

failed to guard the manhole. Even though the explosion was unforeseeable, it was still

foreseeable that children could get burned when mishandling such lamps.

Novus Actus Intervenies

10
[1961] AC 388.
11
[1963] AC 837.
 In arguing against causation in law, the defendant may absolve his or her liability by

proving that there was an intervening factor that had caused the damage and that he or she

should not be made liable for the incurred damages. Among the ways intervention can be

shown is as follows.

a. Act Of Third Party

To show this, the defendant must prove that the third party’s act was not

foreseeable. If the act was not foreseeable then the chain of causation is

broken. The invocation of this argument can be seen in the case of The

Oropesa12, where two ships collided and the captain of one of the ships

took a lifeboat with the a few crew members to discuss the incident with

other ship. The lifeboat subsequently capsized and the crew members died.

Nevertheless, in a claim for negligence, the captain’s act was held to be

necessary and foreseeable in the circumstance and therefore, his act cannot

be said to have broken the chain of causation.

b. Act Of Plaintiff

The plaintiff’s own actions can also be said to be unreasonable such that it

breaks the chain of causation. This is illustrated in the case of McKew v

Holland 13where the defendant injured his leg at his place of employment

and proceeded to descend staircases without holding the rail. He suffered

further injuries to his legs. The court held that the employer was merely

liable in compensating for the initial injury and not from the subsequent

12
[1943] 1 ALL ER 211.
13
[1969] 3 ALL ER 1621.
 injuries suffered by the plaintiff as he had acted unreasonable by putting

himself in the position of danger.

In the current case, since it had been established earlier on that no negligent act can be

established on Tuan’s part, all damages thereby suffered by Pak Kadir would be deemed to

be too remote. Nevertheless, to strengthen Tuan’s argument, it can firstly be invoked as per

The Oropesa that there had been an intervention by a third party, in this context, Ben that

had broken the chain of causation. Ben’s act was not at all foreseeable by Tuan as the

teenager had merely been playing in the area. No reasonable lorry driver, or in this case,

Mat, would expect a teenage boy to steal and undertake to drive a lorry and subsequently hit

a man’s newly-erected gate. Therefore, Ben’s act has broken the chain of causation.

Moreover, the hand injury suffered by Pak Kadir, which had prevented him from working for

three weeks was a result of his own frolic. As in the case of Mckew v Holland, aware of the

hazard of the protruding gate, Pak Kadir had acted unreasonably in not wearing gloves

before lifting it up and had therefore, imposed the injury upon himself. Therefore, Tuan is not

liable to Pak Kadir’s hand injury.

As such, no causation can be established.

In conclusion, negligence on Tuan part cannot be established.