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LADY JUSTICE

ANTASYA, IZZAT, AIMAN, AQILAH & MELISSA

NEGLIGENCE

Q2. Misha Vegas is a social media celebrity who is well-known for her beauty and
healthcare product reviews on Instagram. Three (3) months ago, Misha Vegas
received a supply of HealthProt drinks from HealValley Sdn. Bhd. which contained
protein powders. HealValley Sdn. Bhd. claimed that the drinks can help to promote
health, increased vitality and beautiful glowing skin. HealValley Sdn. Bhd. requested
Misha Vegas to consume the drinks for three (3) months and give them a favourable
review. HealValley Sdn. Bhd. did not disclose that the drinks contained substances
that could cause damage to kidney and liver. Misha Vegas decided to try the drinks as
prescribed by the HealValley Sdn. Bhd. After two (2) months of consuming the drinks,
Misha Vegas discovered that her skin and eyes were becoming yellowish and she
suffered consistent abdominal pain and swelling. Upon consultation with her doctor,
Misha Vegas was informed that she was suffering from a liver failure. Later, it was
found out that the drinks contained substances banned by the Ministry of Health,
Malaysia.

Advise Misha Vegas whether she has any cause of action against HealValley Sdn.
Bhd. (25 marks)

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LADY JUSTICE
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1.0 ISSUE
Whether HealValley Sdn. Bhd. as the defendant owed such a duty against
Misha Vegas as the plaintiff.

2.0 LAW
2.1 DEFINITION OF NEGLIGENCE
Negligence is the breach of a legal duty to take care which results in damage,
undesired by the defendant to the plaintiff. It has three (3) elements to be
fulfilled before the claim can be succeed.

2.2 DUTY OF CARE, TEST AND CASE LAW

Duty of care is the first elements of negligence. Duty is obligation that
recognized by law. Not every careless act done by a person results in his
being held responsible in law. The breach of the duty and the resulting
damage may give rise to liability in negligence. The breach of a moral or
social duty generally does not give rise to liability in negligence. The primary
test or principle used in determining the existence of a duty of care is the
well-known “Neighbourhood principle”. The neighbour principle was
formulated by Lord Atkin. A person must be careful of his action that may
harm their neighbour. Whether the injury to the plaintiff was the reasonably
foreseeable consequence to the defendant’s acts or omissions. It does not
require that the plaintiff must be identifiable by the defendant. It is enough if
the plaintiff is one of the classes within the area of foreseeable injury. Who is
our neighbour? This principle was laid down in the landmark case of
Donoghue v Stevenson. The defendant, a ginger-beer manufacturer, had
sold ginger-beer to a retailer. The ginger-beer bottles were opaque. A, bought
a bottle and entertained her friend, the plaintiff 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 plaintiff suffered shock and was
severely ill as a consequence. The plaintiff sued 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 and further that he
had a duty to ensure that all empty bottles were carefully inspected before
they were filled with ginger-beer.

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LADY JUSTICE
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2.3 BREACH DUTY OF CARE, TEST AND CASE LAW

Subsequently, breach duty of care is the second elements of negligence.
For the defendant to be liable to negligence, the defendant must not only owe
a duty of care to act reasonably to the plaintiff, but must also breach that duty.
A breach of duty is determinable through the reasonable man test. The
reasonable man is the man on the omnibus. An ordinary man who is not
expected to have any particular skill such as that possessed by a surgeon, a
lawyer or educator unless he is actually one. The standard of care is that of
the reasonable man would have foreseen. Reasonably foreseeable is
determined by the knowledge and experience which is to be attributed to the
reasonable man in the circumstances. If a prudent & reasonable man would
not do like what you did or omit, then you are said to be in breach of duty of
care. The standard of care required is not of the defendant’s himself, but of
this “reasonable man”. To determine the result of the test, would a reasonable
man have acted as the defendant has done, should the reasonable man is
faced with the same circumstance? If NO, then the defendant has breached
his duty of care. If YES, then the defendant has not breached his duty of
care. As referred to the case of Watt v Hertfordshire Country Council, The
fire authorities were not negligent because the risk taken in respect of Watt
was not so great as to prohibit the attempt to save life. The practicability of
precautions is when the risk must be balanced against the measures
necessary to eliminate it, and the practical measures, which the defendant
could have taken, must be considered.

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LADY JUSTICE
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2.4 DAMAGES OR INJURY SUFFERED, TEST AND CASE LAW

Lastly, damages or injury suffered is the third or last elements of negligence.
The plaintiff’s damage or injury suffered must have been caused by the
defendant’s breach of duty and must not be too remote a consequence of it.
Remoteness of damage is concerned with the question whether the breach of
duty was the primary cause of the damage. What is meant by damages or
injury suffered? The injury suffered could be bodily harm, such as a broken
arm or head injury. It could also be a damages to property car or house or
emotional or monetary loss. Causation in fact is whether the defendant’s
conduct has in fact caused the plaintiff’s damages? Did the defendant’s
breach of duty in fact cause the damages suffered by the plaintiff? The test
used is the but-for test. To determine the result of the test, would the plaintiff
have suffered any injury or damages? If YES, then then the defendant’s
breach did not cause the plaintiff’s injury. If NO, then defendant’s breach
had cause the plaintiff’s injury. There is another test must be held in this
elements which is remoteness of damages only after the result of but-for
test is NO. Whether a reasonable man would foresee the damages that has
occurred? In negligence, foreseeability is the criterion not only for the
existence of a duty of care but also for remoteness of damages. To determine
the result of the test, If YES, then the damage is not remote. Thus, you are
liable for negligence. If NO, then the damage is too remote. Thus, you are
inliable for negligence. As referred to the case of Neogh Soo oh & Ors. v G.
Rathinasamy, the defendant had failed in his duty to use reasonable care
and skill.

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LADY JUSTICE
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3.0 APPLICATION AND ARGUMENTS

3.1 EXTRACTION OF DUTY OF CARE
Duty of care is the first elements of negligence as illustrated in the case of
Donoghue v Stevenson. Based on the facts given, Misha Vegas as the
plaintiff has received a gift of HealthProt drinks from HealValley Sdn. Bhd. as
the defendant. The motive of a gift from the defendant was to asked a
favourable review on HealthProt drinks from the plaintiff to gain the popularity
of the products. Due to the plaintiff is well-known for her beauty and
healthcare product reviews on Instagram, without hesitation the plaintiff
agreed to do so as the defendant claimed that the drinks could help to
improves internal health, increased vitality and enhance appearance of skin.
After two (2) months of consumption the drinks, the plaintiff noticed and
discovered that her eyes and skin has turned into yellowish and also she
suffered consistent abdominal pain and swelling. The doctor of the plaintiff
informed that she was suffering from a liver failure. De facto, the drinks
contained substances banned by the Ministry of Health, Malaysia. The
primary test or principle used in determining the existence of a duty of care is
the well-known “Neighbourhood principle”. In law, the neighbour is
someone closely and directly affected by the acts or omissions by the
defendant. Applying this neighbourhood principle, The Judge of The Court
has found that HealValley Sdn. Bhd. as the defendant has liable for duty of
care against Misha Vegas as the plaintiff. HealValley Sdn. Bhd. as the
defendant owed a duty of care to Misha Vegas as the plaintiff who suffered
personal injury from HealthProt drinks based on the neighbour principle.
Hence, the first elements of negligence has been fulfilled.

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3.2 EXTRACTION OF BREACH DUTY OF CARE

Subsequently, breach duty of care is the second elements of negligence as
illustrated in the case of Watt v Hertfordshire Country Council. Based on
the facts given, HealValley Sdn. Bhd. as the defendant has breached duty of
care against Misha Vegas as the plaintiff. The HealthProt drinks makes the
plaintiff suffered several injury such as yellowish eyes and skin, and suffered
consistent abdominal pain and swelling. Thus, upon consultation with her
doctor, the plaintiff was informed that she was suffering from a liver failure.
After investigation, later, it was found out that the HealthProt drinks consumed
by the plaintiff contained substances banned by the Ministry of Health,
Malaysia. Initially, the defendant gave the HealthProt drinks to the plaintiff for
her to make a reviews on the product. The HealthProt drinks was caused the
plaintiff suffered the liver failure. The test determining the existence of breach
duty of care is the “Reasonable man test”. Applying this reasonable man test,
The Judge of The Court has found that HealValley Sdn. Bhd. as the
defendant has breached his duty of care against Misha vegas as the
plaintiff. Hence, the second elements of negligence has been fulfilled.

3.3 EXTRACTION OF DAMAGES OR INJURY SUFFERED

Finally, damages or injury suffered is the third or last elements of
negligence as illustrated in the case of Neogh Soo Oh & Ors. v G.
Rethinasamy. Based on the facts given, Misha Vegas as the plaintiff has
suffered from a liver failure informed by her doctor upon consultation. The
liver failure was caused by the HealthProt drinks consumed by the plaintiff
and it was from HealValley Sdn. Bhd. as the defendant. The HealthProt drinks
from the defendant has devasted the plaintiff’s health. At first, the plaintiff
agreed to do a reviews without hesitation on the product of HealthProt drinks
from the defendant. Later after two (2) months of consumption the plaintiff
started to suffered from a liver failure. The test used in determining the
existence of damages or injury suffered is “But-for test”. Applying this but-for
test, The Judge of The Court has found that HealValley Sdn. Bhd. as the
defendant has inliable for damages or injury suffered against Misha Vegas
as the plaintiff. The defendant’s breached did not cause to the plaintiff’s injury.
Hence, the third or last elements of negligence is not fulfill.

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4.0 CONCLUSION
As a conclusion, I can conclude that, Misha Vegas as the plaintiff could not
proceed of the negligence claiming process against HealValley Sdn. Bhd. as
the defendant due to the third elements of negligence is not fulfill. Hence,
HealValley Sdn. Bhd. as the defendant did not owed such duty against Misha
Vegas as the plaintiff.

LAW245 - MALAYSIAN LEGAL SYSTEM

LADY JUSTICE