NEGLIGENCE

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 Introduction
Lochegelly Iron and Coal Co v McMullan
• Negligence means more than heedless or careless conduct
• Complex concept of duty, breach and damage thereby
suffered by the person to whom the duty was owing

Plaintiff has to prove:

i. There is duty of care on the part of the defendant
ii. This duty is breached by the defendant
iii. The breach results in some damage to the plaintiff

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Duty of Care

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 Neighbour Principle
Donoghue v Stevenson (1932)
- Neighbour Principle
“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.”

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Duty of Care
 Neighbour Principle
• Objective test, reasonable man test
• 2 Factors
i. Foreseeable
The conduct of defendant must able to foresee (by
reasonable man) that will adversely affect plaintiff
ii. Proximity Relationship
Plaintiff must be foresee (by reasonable man) that he or
she will be affected by the defendant’s act or omission

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Duty of Care
 Donoghue v Stevenson (1932), important
because of
i. It create new category of duty, which is
manufacture owed to consumer
ii. Categories of negligence are not limited to
precedent decisions

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Duty of Care
 Neighbour Principle
Home Office v Dorset Yacht Co Ltd (follow Donoghue)
“Neighbour Principle ought to be used in order to determine the existence of duty of
care unless there are good reasons or justification for its exclusion”

Anns v Merton London Borough Council (follow Home Office)

 2 elements test/ Anns Test
1) It requires a sufficient relationship of proximity based upon foreseeability, if is
“yes”, then 2nd stage;
2) The court has to examine there are any considerations that may negate, reduce or
limit the scope of the duty, or the group of persons to whom the duty will be
imposed.
 Anns Test receive heavy criticism after that, until retreat in Caporo case

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Duty of Care
 Caparo Test/ Composite Test
Caparo Industries Plc v Dickman held:
Physical damage
 Neighbour Principle apply
Non-physical damage
 Composite Test apply

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Duty of Care
 Caparo Test/ Composite Test
 3 elements:
i. The damage is reasonably foreseeable
ii. Close and direct relationship of proximity
between the plaintiff and the defendant
iii. The circumstances as a whole must be fair, just
and reasonable for imposition of a duty of care

 Accepted in Malaysia case Uniphone Sdn Bhd v

Chin Boon Lit

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Duty of Care
 Situation in which the duty of care is limited or
denied
• Omission
• Pure economic loss
• Psychiatric illness

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Duty of Care
 Omission
General Rule: An omission does not give rise to a duty
of care
• Smith v Littlewoods
An omission to prevent third party from causing
damage did not give rise to a duty of care in the
circumstances as it was not reasonably foreseeable that
vandals would enter the empty building.

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Duty of Care - Omission
 5 Exceptions - An Omission Give Rise To A Duty Of Care

1. Where the defendant has a duty to act and he does not do so.
Eg: A driver who does not stop his car at the traffic light when light
are red
Stovin v Wise [1996]
Issue: Whether a local authority could be found to owe a common law duty of
care if it had not complied with a public law obligation?
Held: A public law duty could not give rise to a common law claim for non-
performance. If this was the case, an unacceptable burden would be placed
on the local authority’s budget in respect of being permitted to exercise its
discretion, especially since road users were already required to carry
insurance. In other words, it was not fair, just or reasonable to impose a duty
in these circumstances.

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Duty of Care - Omission
 2. Where there exist special relationship between the plaintiff
and the defendant.
Eg: Employer& employee, Doctor& patient, Parent& child
Carmarthenshire Country Council v Lewis
• The driver of a car was killed while trying to avoid a child ran
onto the road, the school authorities were held liable to the
death of driver as it letting the child out from the school and it
was foreseeable that the child would cause an accident.

3. Where the defendant has control over a third party who

causes damage to the plaintiff
Eg: Mental patient& hospital
Ellis v Home Office
• A prisoner assaulted fellow inmate and the Home Office was
held liable for the failure to prevent the commission of
assault.
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Duty of Care - Omission
 4. Where the defendant has control over land or property on
which there exist or might exist danger.
Eg: Occupier& visitor
Parimala v Projek Lebuhraya Utara Selatan
• The driver was killed in highway when the car collided with
stray cow (cow entered the highway through hole in fence).
Highway authorities was held responsible for the
maintenance and safety of highway and so liable in
negligence.

5. Where the defendant fails to perform an act that has been

promised to the plaintiff
Semble, Wood v Thurston
• The court held the defendant liable, for the act of asking
the plaintiff lie down in the shop raised the assumption
that the defendant would offer some help to the plaintiff.

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Duty of Care - Omission
 Pure Economic Loss
Incurred as a consequence of
1. Negligence Misstatement
2. Negligence Act

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Duty of Care
 1. Negligence Misstatement

Hedley Byrne v Heller& Partners Ltd

• Neighbour test was insufficient
• Duty of care will arise when there exist a special
relationship between the plaintiff and the defendant,
determine through 3 factors:
1. The plaintiff believe and rely on defendant’s information
or advice
2. The defendant knows or ought reasonably to know that
the plaintiff believe and rely on his information or advice
3. It is reasonable in the circumstances for the plaintiff to
believe or rely on the defendant’s information or advice

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Duty of Care - Pure Economic Loss from Negligence Misstatement
 Caparo Industries Plc v Dickman held:
1. Auditor of public company do not owe duty of care to member of
public at large, included individual shareholder in a company who
wish to buy more shares, otherwise it give rise to unlimited
liability on the auditors.
2. There is 3 elements to impose duty of care
I. The damage is reasonably foreseeable
II. Close and direct relationship of proximity between the plaintiff and
the defendant
III. The circumstances as a whole must be fair, just and reasonable for
imposition of a duty of care
3. There is no relationship of proximity if the defendant has no
reason to anticipate that his statement might be rely by strangers.
4. A relationship of proximity can exist if the defendant knows that
his statement will be communicated to the (identifiable) plaintiff.
5. Proximity is established if the statement is made in connection to
a particular transaction and the (identifiable) plaintiff is very likely
to rely on the statement for the purpose of deciding whether to
enter into that transaction.

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Duty of Care - Pure Economic Loss from Negligence Misstatement
 Position in Malaysia

Apply Hedley Byrne

• Chin Sin Motor Works v Arosa Development
o Duty of care arises whenever a party reasonably relies
upon another to provide information or advice and the
person providing the information knows or ought to know
that the inquirer is relying on him.

Apply Caparo Test

• Co-operative Central Bank Ltd v KGV
o The court held there was no proximity between parties
because the party relying on the report is unknown to the
defendant valuer.

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Duty of Care - Pure Economic Loss from Negligence Misstatement
 2. Negligence Act

Spartan Steel and Alloys Ltd v Martin (1973)

D through negligence act caused power failure at P’s factory, P
removed melt from the furnace to prevent damage to furnace, by this
it resulted in reduction in value of melt, P also suffered loss of profit
from damaged melt. The electricity cutoff caused P loss profit they
would have made if they could run production during electivity failure.
The Court held the P can claim:
 Reduction in value to the first melt
 Loss of profit from first melt
× Loss of expected profit
This principle was followed by Malaysia

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Duty of Care - Pure Economic Loss from Negligence Act
 Junior Books Ltd v Veitchi Co Ltd (1983)
• This case went beyond the Spartan’s boundary by allowed P to
claim loss of profit due to extra time spent in relaying the floor.

The UK court start to limit liability/ close the door after Junior Books
case
• Muirhead v Industrial Tank (1986)
• Murphy v Brentwood District Council (1991)

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Duty of Care - Pure Economic Loss from Negligence Act
 Position in Malaysia

Kerajaan Malaysia v Cheah Foong Chiew (1993)

P claim cost of repairing the building in order to make them safe for occupation, the
Court dismissed P’s claim:
• Pure economic loss is irrecoverable based on Murphy case
• The D which is engineer was only answerable to his employer and not to the P
unless he has caused injury to someone or damage to the property of another
• It was unreasonable for an employee to be held liable to the owner of building for
his negligence which resulted in the non-completion of the building but which did
not cause injury to a person or to the property of another.

Until 1997, another decision by Case Dr Abdul Hamid v Jurusan Malaysia

• Pure economic loss is recoverable based on the foresight test and in the absence
of any Malaysia policy to the contrary.

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Duty of Care - Pure Economic Loss from Negligence Act
 Position in Malaysia (cont.)

MPAJ v Stevem Phoa Cheng Loon (2003)

• Current view that apply Caparo Test
• 1st: there is sufficient proximity between P & D, 2nd: that pure
economic loss as a type of damage is foreseeable.
• Principle: Pure economic loss is recoverable if it is foreseeable
result of the defendant’s breach
• However, the recovery of pure economic loss was denied in this
case due to policy reason which applied specifically to local
authorities.

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Duty of Care - Pure Economic Loss from Negligence Act
 Psychiatric illness
McLoughlin v O’Brian (1982)
Aftermath test, other factors to be considered except foreseeability of
injury shock
i. The class of persons, must have close emotional relationship with
primary victim. Eg: Parent, spouse
ii. Must be physical proximity to the accident in terms of time and
space, include a plaintiff who does not actually see the accident
but sees the immediate aftermath of it. Which mean the shock
must from what plaintiff sees, hears or alternatively if the plaintiff
comes upon the immediate aftermath of the damage,
information relayed by a third party is not recognized as a method
of perception.
iii. The defendant’s negligence act must result in a psychiatric
condition that is medically recognized.

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Duty of Care - Psychiatric illness
 Alcock v Chief Constable (1991)
I. It must be reasonably foreseeable that the plaintiff will
sustain psychiatric illness due to his close relationship of
love and affection with primary victim
II. There must be physical proximity between plaintiff and
the accident in terms of time and space. The plaintiff
must either see, hear or physically present at the scene of
the accident immediately aftermath. (In Alcock case, the
arrival of the plaintiff 8 or 9 hours after the accident did
not satisfy the “immediate aftermath” test.)
III. The means which the plaintiff know about the accident,
the information come from 3rd party, television (in Alcock
case) are outside the scope of liability.
IV. The plaintiff must suffer a medically recognized
psychiatric illness.

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Duty of Care - Psychiatric illness
Breached of Duty
(Ordinary Man)

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 The Reasonable Man Test

Blythe v Birmingham Waterworks Co.

• Negligence is the omission to do something
which is reasonable man would do, or doing
something which a reasonable man would not
do.

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Breached of Duty -The Reasonable Man Test
 Reasonable Man?
It is objective test, not expected the person to be a perfect man.

Glasgow Corporation v Muir

• Reasonable man means eliminate the personal equation and is
independent of the idiosyncrasies of the particular person whose conduct
is in question.

Nettleship v Weston
• Standard of care required of a learner-driver was the same as other
experienced drivers.

Roberts v Ramsbottom
• The court held that the driver ought to aware that he was unfit to drive, so
the driver was found liable in negligence.

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Breached of Duty -The Reasonable Man Test
 The reasonable man would only take appropriate care
when the consequence/ risk is foreseeable, the
defendant not liable when the risk was not foreseen.
Glasgow Corporation v Muir
• The court look at the foreseeable
• & if the object or thing that gives rise to the
negligence is naturally dangerous, it is more likely
that liability would be imposed

(How if the risk is foreseen, does defendant negligence?

Even the risk can be foreseen, it does not mean reasonable man
should do everything, refer to concept of risk.)

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Breached of Duty -The Reasonable Man Test
 The Concept of Risk
1. Magnitude of risk

a) Probability of the injury occurring

Bolton v Stone
• A person must only take reasonable steps against risks
that may materialize.

b) Seriousness of the injury

Paris v Stepney Borough Council
• If the defendant knew or ought to know that the risk of
injury to the plaintiff is higher than usual, then he must
take extra precautions to avoid potential injury.

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Breached of Duty - Risk
 2. Practicability or cost of precautions to the
defendant

Latimer v AEC
• If the risk can be reduced with low cost, then it
would be unreasonable for defendant if he does
not incur this low cost
• If the risk of injury is low and cost to reduce the
risk is high, then it is reasonable for defendant to
do nothing.

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Breached of Duty - Risk
 3. The importance of the object to be attained

Watt v Hertfordshire County Council

• If the object involves the saving of another’s life, the
existence of a high risk may still absolve the
defendant’s possible liability.

4. General and approved practice

General Cleaning Contractors v Christmas
• Even though standing on the window ledge was a
common practice for window cleaners, this was
dangerous practice and the defendant as the
employer was liable for not providing a safer system
of work.

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Breached of Duty - Risk
Breached of Duty
(Professional)

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 Wells v Cooper
• The court held that the standard of care required by
defendant was standard of a reasonably competent
carpenter.

Wilsher v Essex Area Health Authority

• The court held that the standard of care should be
related to the position of defendant, not his
individual level of experience. (5 years vs 10 years
doctor is same)

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Breached of Duty - Professional
 Test in Determining Standard of Care of Professional

Bolam v Friern Hospital Management Committee

• A man need not possess the highest expert skill, it is
sufficient if he exercise the ordinary skill of an ordinary
competent man exercising that particular act.
• In the case of a medical man, negligence mean failure
to act in accordance with the standards of reasonably
competent medical men at the time. There may be one
or more perfectly proper standards, and if he conforms
with one of those proper standards, then he is not
negligent.
• In this case, the defendant was not liable as he had conformed to the
standard of reasonable doctors, his not holding down the plaintiff’s body
was not an improper course of action.

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Breached of Duty - Professional
 Test in Determining Standard of Care of Professional

Sidaway v Bethlem Royal Hospital Governors

• Applied Bolam Test
• The hospital and surgeon were not liable as the surgeon had reached the required
standard of care, even though he did not inform the plaintiff the risks involved.

Rogers v Whitaker
• Another view developed from Bolam Test:
• High Court: the patient should be told of any material risk inherent in the
treatment. A material risk is one to which a reasonable person in the patient’s
condition would be likely to attach significance; and to which the doctor knows (or
ought to know) the particular patient would be likely to attach significance; and
about which questions asked by the patient reveal his or her concern.
• If the patient ask repeatedly and specifically, then the doctor should disclose the
risk.
• The Court also in the view of a medical practitioner may not be negligent if he had
followed the established medical practice, although the body of opinion of his
peers differs.

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Breached of Duty - Professional
 Test in Determining Standard of Care of Professional
(In Malaysia)
Foo Fio Na v Dr Soo Fook Mun
• Full reception of the Rogers v Whitaker case/ Whitaker Test
• the patient claimed that she was not informed of the risk of paralysis
from the particular surgery. The court found that the doctor was negligent
in failing to inform her of the risk.
• The Federal Court held that the applicable test in relation to disclosure of
information & risks is not the Bolam Test, the doctor has duty to warn a
mentally competent patient of risks of a proposed procedure so as to
enable the patient to decide whether to proceed or decline it accordingly.
• It is for the court to determine reasoning of doctors’ conduct, not the
profession. Professional opinion serves as a guidance to court as to what
constitutes acceptable professional practice, but its reasonableness may
be questioned by the court.
 Reasonableness: Bolitho v City and Hackney HA
If the consequence could not have been avoided even the doctor do in other
way round, then there is no negligence.

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Breached of Duty - Professional
 Test in Determining Standard of Care of Professional
(In Malaysia)

In 2017 case, Zulhasnimar binte Hasan Basri and Another v Dr Kuppu

• The Whitaker Test followed in Foo Fio Na in regard to standard of care
in medical negligence is restricted only to the duty to advise of risks
associated with any proposed treatment and does not extend to
diagnosis or treatment.
• This would mean that there is no necessity for the Courts to consider
what a body of medical practitioners would have done in the
circumstances in order to determine if there is a breach in the duty to
advise.
• With regard to the standard of care for diagnosis or treatment, the
Bolam Test still applies.
• The Court would accept the views of medical experts and thus
removing the Courts from the responsibility of resolving a dispute that
it is not equipped to resolve.
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Breached of Duty - Professional
Causation and Damage

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 Causation
1. Causation in Fact
 But-for-test
 Multiple causes
 Consecutive or successive causes
2. Causation in Law/ Remoteness of Damage
 Direct consequence test
 Reasonable foresight test
 Relevant factors associated with the reasonable
foresight test
 Intervening acts

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Causation
 But-For-Test
Barnett v Chelsea
• But-for the defendant’s breach of duty, would the
plaintiff have suffered the injury or damage?
– If the answer is “yes”, means defendant’s breach did
not cause the plaintiff’s injury
– If the answer is “no”, then there is causation
• In this case, the patient would still have died even
if the doctor had treated him, so no causation,
defendant not liable.

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Causation in fact – But-for-test
 Multiple Causes
Bonningston Castings Ltd v Wardlaw
• Plaintiff need not prove that the defendant's
breach of duty is the sole or main cause of the
damage, as long as the breach is an important
cause of the damage

McGhee v National Coal Board

• It was sufficient for the plaintiff to prove that the
defendant's breach had materially increased the
risk of injury to him.

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Causation in fact – Multiple causes
 Consecutive or Successive Causes
Baker v Willoughby
• The defendant argued that the shooting incident had broken the
chain of causation , so the injuries from the road accident no longer
existed.
• The issue was whether the shooting was a new intervening act or if
the defendant should be accountable for all losses suffered.
• The defendant was held to be liable for losses and reduced
earnings, even after the shooting and amputation of the leg. The
court took the view that if defendant had not been negligent in his
driving to begin with, the plaintiff would not have lost his leg. Thus,
he was still liable as if the shooting had never happened and must
compensate plaintiff for losses after the amputation. It was stated
that when there are two accidents that are consecutive and
contribute to the same injury, the original defendant would be
liable for the overall injury.

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Causation in fact – Consecutive or successive causes
 Consecutive or Successive Causes

Performance Cars v Abraham

• The Court held that the defendant not liable because
he had damaged a car which was already damaged,
therefore his negligence did not cause the damages.
He had not caused extra damage so he was entirely
resolved of liability.

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Causation in fact – Consecutive or successive causes
 Consecutive or Successive Causes
Jobling v Associated Dairies Ltd
• After injuries, plaintiff was limited to carrying out light work, which saw his
earnings reduced by 50 per cent of what they were prior to the accident.
• 4 years later and before the trial, plaintiff had been diagnosed with a pre-
existing spinal disease, which was not a result of the accident. It would
eventually disable him entirely and he would be unable to work.
• It was held that the employer would only be liable for damages and partial
loss of earnings for the 4 years plaintiff was employed. Because even if the
plaintiff had not been injured by the tort, his capability of work would still
have been affected in any case.
• The court did not follow the decision in Baker v Willoughby; this was
called an exception to the normal test of causation. His pre-existing spinal
condition must be considered and all factors taken into account, in order
for court not to award excessive compensation.
• This was a case of the eggshell skull rule and an example of a ‘vicissitude
of life’; it was relevant that the illness would cause full disability.

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Causation in fact – Consecutive or successive causes
 Intervening Acts
3 Types:

1. Intervention through a natural event that is independent of human conduct

Carslogie Steamship Co Ltd v Royal Norwegia Govt
• It was held that the defendants were only liable and responsible for the loss of profit
resulting from the collision, not for further damage sustained by the natural events at
sea.

2. Intervention by 3rd party

The Oropesa
• It was held that the deaths of the seaman were directly caused by the negligence of the
Oropesa. The captain’s decision to leave the boat naturally resulted from the
emergency of the severe damage caused by the Oropesa.
• In order to break the chain of causation, it must be proven that the second incident was
an independent and separate act that was not a normal consequence of the initial
breach (/the risk was not foreseeable from the initial breach), something that was
unreasonable.

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Causation – Novus Actus Interveniesn
 Intervening Acts
3. Intervening act of the plaintiff
McKew v Holland
• The plaintiff went to staircase had no handrail beside it, he lost control and jump
to avoid failing, so it make his injury more serious
• The Court held that jump in emergency situation did not necessarily break the
chain of causation, but in this case the plaintiff had broken the chain of causation
because he had placed himself in that emergency situation.
• His conduct though foreseeable, was unreasonable.

Conclusion
In determining whether there has been a novus actus intervention is to consider
whether the resulting subsequent act or omission to the first breach is unreasonable
or foreseeable.

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Causation – Novus Actus Interveniesn
 Direct Consequence Test
Re Poleis and Furness
• 1st: Whether damage is foreseeable as a
consequence of the defendant’s conduct
• 2nd: If “yes”, the defendant will be liable for all the
direct consequences of his conduct, even though the
type or extent of damage is unforeseeable.
• This case was ruled as unfair in Wagon Mound case
and no longer apply.

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Causation - Direct Consequence Test
 Reasonable Foresight Test
The Wagon Mound No.1
• The test should be whether a reasonable man in the
defendant’s position would foresee the damage that has
occurred.
• 1st: The damage must be foreseeable a consequence of the
defendant’s conduct
• 2nd: If the damage that occurs is different nature than what is
foreseeable, then defendant will not be liable.
• Liability is only extended to reasonably foreseeable damage.

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Causation - Reasonable Foresight Test
 Relevant Factors Associated with the
Reasonable Foresight Test

Eggshell skull rule

• The Wagon Mound does not affect the maxim that
a “defendant must take his victim as he finds him”.
• Smith v Leech-Brain & Co Ltd
o The defendant liable even though an ordinary healthy
person would not have developed cancer in the same
circumstances.

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Causation - Reasonable Foresight Test
 Relevant Factors Associated with the
Reasonable Foresight Test
 The method by which the damage occurs is irrelevant
• Once the type of damage is foreseeable, the way or method which damage
occurs is not important.
• Hughes v Lord Advocate
o Even it was not foreseeable that an explosion would occur in these
circumstances, since the type of injury was foreseeable, the defendant
was held liable.

 Extent of damage is irrelevant

• Once the type of damage is foreseeable, the extent of damage is irrelevant
• Vacwell Engineering Co Ltd v BDH
o Even the damage was far more serious than what was initially
foreseeable, since the type of damage was foreseeable, which is damage
through an explosion, so defendant is liable.

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Causation - Reasonable Foresight Test
Defenses to Negligence

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 Defenses that usually raise:
1. Volenti non fit injuria
2. Contributory negligence

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Defenses to Negligence
 Volenti non fit injuria
• Mean voluntarily/ consent to accept the risk of injury
• Can be in form of express or implied
• Smith v Charles Bakers & Sons
– Plaintiff mere knowledge of existence risk was insufficient
(knowledge on risk ≠ accept the risk)
• Imperial Chemical Industries Ltd v Shatwell
– Case of accept the risk impliedly, plaintiff and his brother
agreed amongst themselves to disregard the employer’s
instruction
– Defense of volenti accepted because no coercion or
pressure from the defendant to the plaintiff

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Defenses to Negligence - Volenti non fit injuria
 Volenti non fit injuria
• Bowater v Rowley Regi Corporation
– The person is said to be voluntarily assuming the
risk if he is in a position where he has a choice.
– His choice must not subject to any restrictions,
coercion or duress.
– His consent must be given freely and voluntarily.

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Defenses to Negligence - Volenti non fit injuria
 Contributory Negligence
• Subject to Civil Law Act, s.12(1)
– Even the plaintiff is negligent as well, it does not mean the
defendant completely not liable, it just reduce the certain
portion of his liability.
• Element-element:
– The plaintiff is not required to have a duty of care to the
defendant. The duty of care is upon himself to act
reasonably so as to avoid damage to himself; and
– The plaintiff has failed to take reasonable care of himself
by behaving unreasonably; and
– The act or omission must be cause of his injury, which
must be of a type reasonably foreseeable from his act or
omission.

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Defenses to Negligence - Contributory Negligence