Tutorial 11 Law of Tort

1) What elements that are necessary to be proven in an action for negligence under
the law of tort?
● The elements of tort that must be established by the plaintiff are:
● (a) Duty of care
● (b) Breach of duty
● (c) Causation

Duty of care
The burden is on the plaintiff to prove that the defendant owes him a duty of care.
• Test / principle: Neighbour principle
• Case to discuss: Donoghue v Stevenson- Lord Atkin...
You must take reasonable care to avoid acts and omissions which you could
reasonably foresee would be likely to injure your neighbour.

Breach of duty
• The plaintiff must prove that the defendant was in breach of the duty of care which
has been shown to exist.
• Test: Reasonable man test
• Case: Blyth v Birmingham Waterworks Co “negligence is the omission to do
something which a reasonable man would do, or doing something which a prudent and
reasonable man would not do.”

• In deciding whether there is a breach of duty certain relevant factors must be taken
into consideration:
• (a)Magnitude of risk (1 st factor)
• 2 elements under 1 st factor??
(i) Likelihood of risk ,case law : Hilder v Associated Portland Cament Manufacturers
Ltd
(ii) Seriousness of risk , case law : Paris v Stepney Borough Council
• (b) Practicability of precautions (2 nd factor), case law : Latimer v A.E.C
• (c) State of knowledge (3 rd factor), case law : Roe v Minister of Health
• (d) Social benefit (4 th factor), case law: Daborn v Bath Tramways Motor Co. Ltd

Causation : Remoteness of damage:

• Upon establishing the first two elements above, the plaintiff must show that he
suffers loss which was caused by the defendant’s breach of duty.
• Case law: Barnett v Chelsea and Kensington Hospital Management Committee
• DAMAGE MUST NOT BE TOO REMOTE : ???
• Explain: To satisfy the last element, the plaintiff must prove that the damage that he
suffered must be easily foreseeable / reasonable foreseeable by reasonable man.
• Test / principle: remoteness test / reasonable foreseeability test , Case law: Wagon
mound

● • If the 3 elements are satisfied, the plaintiff can sue the defendant under negligence
and claim damages.

2) Briefly discuss the case of Barnett v Chelsea & Kensington Hospital

Management Committee [1969]. (Pg 5)

3) Explain the test used to determine whether the defendant owes a duty of care to
the plaintiff? (Pg 1)
Duty of care
The burden is on the plaintiff to prove that the defendant owes him a duty of care.
• Test / principle: Neighbour principle
• Case to discuss: Donoghue v Stevenson- Lord Atkin...
You must take reasonable care to avoid acts and omissions which you could
reasonably foresee would be likely to injure your neighbour.

4) Explain the factors that the courts would refer to when deciding if the defendant
 had breached the duty of care.
● In deciding whether there is a breach of duty certain relevant factors must be taken
into consideration:
● (i) Magnitude of risk
● (ii) State of knowledge
● (iii) Practicability of precautions
● (iv) Social benefit

5) Describe the test used when deciding whether damages are too remote under the
law of tort.
● Test: remoteness test
● Case law: Wagon mound
● Damage is considered to be too remote if a reasonable man would not foresee the risk.

6) Define the chain of causation for negligence. State the ways that the chain can be
broken.
● The chain of causation is the link between the plaintiff’s injury and the defendant’s
act. It can be broken by:-
● (i) Intervening natural event
● (ii) Intervening act of a third party
● (iii) Intervening act of the plaintiff

7) Give TWO (2) defences for negligence under the law of tort. (Pg 6 below)

8) Arthur, a qualified accountant worked as a chief auditor in JJ Bhd. Arthur

made his clerical staff to prepare the company’s annual financial report. He
simply signed the report without even checking it. Based on the audited accounts
of JJ Bhd., Honey purchased its shares and suffered losses. This was due to the
fact that the junior officers had failed to disclose the financial report with the
huge losses suffered by the company’s foreign investments. However, if Arthur
has properly checked the report before signing it, he could have detected the
error. Honey now wants to sue Arthur for the losses she had suffered.
Advise Honey under the law of tort.
● On the fact, Arthur is the professional accountant, he simply signed the report without
checking the report prepared by the junior officer. Due to this incident, Honey sue him
for professional negligence. Base on the case, Honey is the plaintiff, Arthur is the
defendant.
● The case of Hedley Byrne & Co V Hellar & Partners Ltd and Caparo Industries v
Dick,an & Ors. can be discussed under professional negligence.
● In the case of Hedley Byrne & Co V Hellar & Partners Ltd, the judge laid down 5
elements in order to sue the defendant for professional negligence.
● OUTLINE ALL THE ELEMENTS! (Refer lecture notes)
● However, the case of Hedley Byrne & Co V Hellar & Partners Ltd was overruled by
the case of Caparo Industries v Dick,an & Ors. The case of Caparo Industries v
Dick,an & Ors. is the new law to be followed by the judge in order to determine
professional negligence.
● OUTLINE ALL THE 3 ELEMENTS under the new law! (Refer lecture notes)
● In conclusion, if 3 elements under Caparo case can be established, and the P can prove
that the 2nd and 3rd element( breach & causation) are satisfied, then it is safe to
conclude that Honey can succeed to bring legal action against Arthur under PN.
 Extra question

9) The music was loud and John was texting on his smart phone whilst driving his
car. At the junction of Jalan Hantu, he did not realise that the lights had turned
red for the pedestrians to cross the road. He knocked into Fiona who was
crossing the road slowly because she was wearing a pair of six inches high heel
shoes. Fiona’s leg was broken and her shoulder was injured as a result of the
accident. Advise Fiona on the course of action against John under the law of
negligence.

● Introduction: To identify Plaintiff & Defendant

● John = Defendant & Fiona = Plaintiff
● In order to succeed in claim against John under tort of negligence, Fiona must
establish 3 elements:
i. Duty of care or Duty to take care – owed by the defendant to the plaintiff.
ii. Breach of that duty of care – by the defendant to the plaintiff.
iii. Damages suffered by the plaintiff due to the defendant’s act.

(i). Duty of care - Test for duty of care - ‘neighbour principle’ Case in point -
Donoghue v Stevenson (1932), Lord Atkin stated “…….you must take reasonable care
to avoid acts and omissions which you could reasonably foresee would be likely to
injure your neighbour.

The burden is on Fiona to prove that John owed her duty of care. The main test –
neighbour principle as in Donoghue case.

Who then in law is my neighbour?.......any person 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.

In this case, who is John’s neighbour? The pedestrians, and Fiona is one of those
pedestrians, who will likely be affected by John’s act of careless driving.

Did John owe a duty of care to Fiona? One must take care to avoid acts or omissions
to anyone whom he could reasonable foresee would be affected by his act or
omissions. John can foresee that when driving on the road there may be pedestrians
who may also use the road and that he should also foresee, like any reasonable man,
that any negligent act on his part can cause harm to any pedestrians.

● (2). Breach of that duty. Did John owe a duty of care to Fiona and was that duty of
care breached? Test: Standard of care. Blyth v Birmingham Waterworks Co- state the
reasonable man test.
● Factors to consider:
– Magnitude of risk- the likelihood that injury will be incurred;
– Reasonable foreseeability test as in Roe v Minister of Health.
– Seriousness of the injury that is risked. The relevance of the seriousness of injury
can be determined by the case of Paris v. Stepney Borough Council.
– Skill possessed/ Knowledge and experience

- It has to be shown that the hotel has breached the duty of care that he owed to the P.
- The test to prove breach of duty is ‘reasonable man test’ as in blyth case.
- On the fact, John has breached the duty of care towards Fiona because John did not
act as a reasonable man would have acted. A reasonable man would not fail to stop
when the lights had turn red and also reasonable man would not texting whilst driving.

● (3). Damages suffered by the plaintiff due to defendants breach of duty. Thus Fiona,
the plaintiff, must then show that she suffered loss which was caused by the
defendant’s breach of duty; and not too remote a consequence of it.
 Causation- Did John cause the injury or damage to Fiona? Fiona has to prove that
John breach his duty of care and caused the injury or damage. In this case, by showing
that John failed to stop when the lights had turn red and at the same time if it can be
proven that John was texting and driving at the same time, then he is negligent.

-Fionah has to further prove that it was because of the breach of duty by John
that she has suffered damage.
- Barnett case.
- On the fact, this is satisfied as Fiona sustained severe a broken leg and injured
her shoulder because of John careless driving.

Remoteness- Wagon Mound Case - ‘Damages would be considered to be too remote if

a reasonable man would not have foreseen them.’ In this case, there is no remoteness.
John can foresee that if he does not drive carefully it can cause an accident. A
reasonable man can foresee that texting whilst driving is dangerous and can lead to an
accident because one is not concentrating of the driving.

Defences available to John: Can John claim contributory negligence on the part of
Fiona for wearing very high heels shoes which slows her walk and causing him to
knock her? Section 12 Civil Law Act 1956 provides that where a claimant suffers
damage as a result partly of his own fault and partly of the fault of the other party, the
claim for damages shall be reduce to such extend as the court thinks just and equitable
having regard to the claimant’s share in the responsibility for the damage.

Jones v Livox Quarries Ltd – the P disobey his employer’s instructions by riding on
the back of traxcavator. Another vehicle hit the back of the traxcavator and the P was
injured. The court held that the P was contributorily negligent and affirmed that
contributory negligence was applicable to injury was reasonably foreseeable as a
consequences of the P behaviour.

John must prove that Fiona does not act reasonably to avoid damage and she has failed
to take reasonable care of herself and caused herself to suffer injury when she was
walking across the road as she did not pay attention at the oncoming cars. Thus, if
John can prove this, then the defence of contributory negligence would be available
for John.

In this case, Fiona was slow because she was wearing high heels shoes did not
contribute to the accident. The accident was purely the negligent act of John as he was
not concentrating on his driving. Thus, in this case there was no contributory
negligence on the part of Fiona. So the defence of contributory negligence would not
be available for John. Therefore, Fiona should be able to recover full damages from
John.

● In conclusion, if Fiona can satisfy all the 3 elements under negligence then John is
liable and Fiona is entitled to recover full damages from John.

10.  Janet bought a drinking water which was manufactured by Michael. When Janet
was about to drink the drinking water, she was shock and found out there was a dead
scorpion inside the drinking water bottle. Nevertheless, Janet removed the dead scorpion
and continued drinking. One day later, Janet was admitted to the hospital and severely
ill due to the poison from the dead scorpion.

 (a) Advise Janet whether Michael owed a duty of care to Janet. (8 marks)
  The primary principle used in determining the existence of duty of care is the well-
known ‘neighbour principle’ which was laid down in the case of Donoghue v
Stevenson. The D, a ginger beer manufacturer, had sold singer beer to a retailer. The
ginger beer bottles were opaque. A bought a bottle and entertained her friend, the P
 who drank the ginger beer. It was alleged that when A refilled the glass, along with the
ginger beer came the decomposed remains of a snail. The P suffered shock and was
severely ill as consequences. The P sue the manufacturer and claimed that the
manufacturer had a duty in the course of his business to prevent snails from entering
into his ginger beer bottles. Decision: The court held that the D is liable by applying
the neighbor principle „where one must take reasonable care to avoid acts which
would be likely to injure your neighbour i.e., persons who are closely and directly
affected by my act.‟
  Conclusion: In this case, Michael owed duty of care to Janet. This is because there is
proximity between Michael, the manufacturer and Janet, the customer. The consumer
is the manufacturer’s nearest neighbour (proximity) who will be affected by the
manufacturer’s acts or omission.

 (b) Discuss whether the damage suffered by Janet was too remote or not. (6 marks)
  In order to determine whether damages too remote or not, the test to be used is
reasonable foreseeability test in Wagon Mound case, that is, damage would be
considered to be too remote if reasonable man would not have foreseen them.
  The damage claimed by P should not be too remote, that is, the damage must be
reasonably foreseeable. This “reasonable foresight test” impose that D is only
responsible for the damage which a reasonable man would have foreseen as a likely
consequences of this action.
  In this case, damages suffered by Janet is not remote, as a reasonable man would
foresee that drinking a water that contained dead scorpion would cause ill to its
drinker.

 (c) Examine the defences available to Michael in the above situation. (6 marks)
  Michael can use the defence of volunti non fit injuria: (Pg 6)
  Volunti Non Fit Injuria is a common law doctrine which means that someone
willingly places themselves in a position where harm might result, knowing that some
degree of harm might result, he cannot then sue if harm actually results; OR
  Volunti non fit injuria means that „no wrong can be done to a person who voluntarily
consents to it. The presumption is that if P consented to the risk, then D should not be
liable.
  When raising the defence of volenti non fit injuria, the Defendant must prove that:
i. P has consent to the risk
ii. The consent of risk must be voluntary
iii. P has the full knowledge of the risk
 Morris v Murray. The P and D had been drinking all day. The D, who had a pilot
license and a light aircraft, suggested that they took the aircraft for a flight. The P
agreed and drove them both to the airfield. They started the engine and took off but
crashed shortly after. The D was killed and the P was seriously injured. An autopsy
revealed that the D had consumed 17 bottles of Whiskeys. In an action for negligence,
the D raised the defence of volenti non fit injuria. Held: The defence was allowed. The
actions of the P in accepting a ride in an aircraft from an obviously heavily intoxicated
pilot which was highly dangerous shows that P have voluntarily accepted the risk of
injury and waived the right to compensation.