Question 1

Issue:

Whether Marie can take legal action against Dr. Lam and the General Hospital under negligence.

Law:

Negligence can be defined as a tort wrong which comprises of certain elements that

need to be proved before liability may be established and damages imposed on the

tortfeasor.

1) Duty of care

-The breach of duty and the resulting damage may give rise to liability in

negligence

-The breach of moral or social duty generally does not give rise to liability

in negligence

-The duty of care must arise from some "relation" or some "proximity"

between the parties. For example, between manufacturer and consumers.

Case: Donoghue v Stevenson [1932] AC 562

Facts: In this case, the defendant who is a ginger-beer manufacturer had sold gingerbeer to a
retailer. The ginger 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.

Held: The House of Lords held that the test to determine the existence or otherwise, of

such duty, was whether the plaintiff was the neighbour of the defendant. The defendant

or the manufacturer owed a duty of care to their consumers who suffered personal

injury from the goods based on the neighborhood principle

2) Breach of duty

-For a 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.

- Happens when the defendant does something which is considered below the minimum standard of
care required of a reasonable man.
Case: Kow Nang Seng v Nagamah & Ors (1982) 1 MLJ 128

Facts: In this case, the plaintiff involved in an accident and his left leg had to be

plastered. The plaster was too tight, and plaintiff complained of pain. The doctor did not

act on the complaints immediately and consequently the leg had to be amputated.

Held: The defendant was liable as all doctors were aware that if plaster were applied,

blood circulation would be affected. The doctor was also negligent for only giving

painkillers when the patient complained of the pain. The reason that all doctors were

busy because that day was "surgery day" was not accepted as a defence.

3) Damage/injury

-Plaintiff in negligence case must prove that he has suffered damage/injury

as a result of the defendant's breach of duty.

Case: Scott v Shepard

Facts: D threw a lighted squib into a market place. It was picked up bystander and

threw it across the market to protect himself. Unfortunately, the squib landed in the

goods of another merchant who immediately grabbed the squib and tossed it away,

accidentaly hitting P in the face just as the squib exploded. The explosion caused P to

lose one eye.

Held: The act of the 3rd party who last threw the squib was an act of self-preservation.

D, who originally threw the squib was liable.