Professional Documents
Culture Documents
Negligence
By: Haizam Mohd, Property Law
1. Definition
From the case Lochgelly Iron and Coal Co. v Mc Mullan, three elements must
be proven for the plaintiff to be successful in negligence suit. The elements are as
follows:
Relevant cases:
Donoghue v. Stevenson;
Held: The manufacturer still had to pay because the pants were defective
when it left the factory.
Held: Home Office were liable to strangers for not protecting them from
the ravages of the Borstal boys. A close direct relationship existed
between the office and the owners of the yacht. The officers should take
reasonable care to prevent the boys from interfering with yachts and
damaging them.
b) Breach of duty
Breach of duty of care occurs when the defendant does something that is
considered below the minimum of standard of care required of a reasonable man.
i) An ordinary defendant
Refer to case Kow Nan Seng v. Nagamah. Nagamah, the doctor had
applied a tight plaster on one of Kow’s leg and it was painful to Kow. Nagamah
ignored Kow complaint. In some time, the leg had to be amputated due to blood
circulation problem. The court held that, to ignore the patient’s complaint of pain
was not reasonable. The doctor should attend reasonably thus, unliquidated
damages was compensated to Kow Nan Seng.
c) Damage
The causation of damage must be tested with sine qua non or known as the
“But For” test. But For test is a test in law linking the tort and damages which are
stated as; “but for” the defendant’s negligence, the plaintiff would not have been
injured.
3. Defences
The plaintiff has voluntarily assumed the risk of injury generally. Refer to case
Nettleship v Weston, Nettleship was teaching Weston how to drive, an accident
occurred and Nettleship suffered broken knee-cap. The court held that, the damage
was reasonable as the plaintiff was aware of the risk of road accident drove by a
trainee. It was a calculated risk.
b) Mechanical Defects
Refer to case Che Jah bte Mohamad Ariff v C. C. Scott (1952). The plaintiff
was a passenger in the defendant’s car that crashed into a stationary car. She
suffered injuries as a result of the accident. The defendant gave evidence that ten
(10) days prior to the accident he had sent the car for service with particular attention
to the brake. The court held that, the defect of the brakes was latent and as the
defendant had employed skilled labour, no negligence could be attributed to him.
c) Contributory Negligence
1. With one (1) relevant court case, briefly explain but for test in negligence.
(5 marks)
2. Briefly explain the “neighbour principle” in the decided court case of Donoghue v
Stevenson.
(8 marks)
3. In relation to law of torts, briefly explain “The Reasonable Man Test” in professional
negligence.
(7 marks)
References