NEGLIGENCE

DR. NUR IZIEADIANA ABIDIN

WHAT IS NEGLIGENCE?
Negligence as a tort
Certain elements need to be proved

Careless conduct

Unintentional tort
Unintended accident, typically because they
were not being careful

Plaintiff suffer loss or damage

ELEMENTS OF NEGLIGENCE
• WHAT is it? – the breach of a legal duty to take care which
results in damage to the plaintiff due to defendant’s action.

a) Duty of care b) Breach of Duty

does the defendant owe the claimant a has the defendant breached that duty?
duty of care?

Elements of
Negligence
c) Causation
- requires a plaintiff to show that the d) Damages (economy,
defendant's breach of duty was the cause physical, property)
of the plaintiff's injury and losses
Has the claimant’s damage been
- whether the defendant could have caused by the defendant’s breach?
foreseen that his or her actions might
cause an injury.
 DUTY OF CARE
What duty did the defendant(s)
owe to the plaintiff?
 DUTY OF CARE EXIST
based on Caparo Test

Case
• bourhill v young
a) the damage is foreseeable - foreseeable vs unforeseeable • zazlin zahira hj
kamaruzaman
if foreseeable – there is duty of care ~ • donoghue vs stevenson

Case
• donoghue vs stevenson
• anns v merton london borough – p91
• peabody donation fund v sir lindsay
b) there is close and direct relationship of proximity parkinson & co ltd – p93
between the plaintiff and the defendant • bourhill v young
–neighbour concept – close/proximity

Case
• sathu v hawthornden
rubbers estate co ltd
• lok kwan moi & ors v ramli
c) the circumstances must be just and reasonable. b. jamil & ors & government
of malaysia
Let’s consider a hypothetical
case and use it to
demonstrate how the tort of
negligence works.

Harry is involved in an accident

in which his car is hit by one
driven by Alex. As a
consequence of the accident
Harry breaks a leg and is
unable to work for two months.
Can Harry sue Alex for
damages?
What does this mean for Harry?

I think you’ll agree that Alex owes him a duty of care. There is sufficient
proximity (ie Alex drove into Harry’s car); it is reasonably foreseeable
that a collision between the cars could cause Harry some injury, and it
seems fair, just and reasonable for Alex to owe a duty of care to Harry
(and indeed all other road users).
 BOURHILL V YOUNG
- the damage is foreseeable
- neighbor/proximity concept

Facts
Mr Young had been negligently riding his motorcycle and was responsible for a collision with
car in which he himself suffered fatal injuries. At the time of the crash, Mrs Bourhill (C) was in
the process of leaving a tram about 50 feet away. C heard the crash and, after Mr Young’s
body had been removed from the scene, she approached and witnessed the immediate
aftermath. C was 8 months pregnant at the time of the incident and later gave birth to a
stillborn child. C subsequently brought an action against Mr Young’s estate, claiming she had
suffered nervous shock, stress and sustained loss due to the negligence of D.

Issue
The principal issue on appeal to the House of Lords was whether D owed a duty of care to C.
In order for such a duty to be found it had to be said that that C was both sufficiently
proximate to the incident itself and, if so, that D ought reasonably to have foreseen that, in
driving negligently, he might cause psychiatric damage to a person hearing the crash from C’s
position.

Held
D was not liable for any psychiatric harm that C might have suffered as a result of the
accident. It was not foreseeable that C would suffer psychiatric harm as a result of D
negligently causing a loud traffic accident, nor was C sufficiently proximate to the scene of
the crash itself. D, therefore, could owe no duty of care to C.
 DONOGHUE VS STEVENSON
- damage is foreseeable
- neighbour/proximity concept

Facts:
Mrs Donoghue went to a cafe with a friend. The friend brought her a bottle of ginger
beer and an ice cream. The ginger beer came in an opaque bottle so that the
contents could not be seen. Mrs Donoghue poured half the contents of the bottle
over her ice cream and also drank some from the bottle. After eating part of the ice
cream, she then poured the remaining contents of the bottle over the ice cream and
a decomposed snail emerged from the bottle. Mrs Donoghue suffered personal injury
as a result. She commenced a claim against the manufacturer of the ginger beer.

Held:

Her claim was successful. This case established the modern law of negligence and
established the neighbour test.
 SATHU V HAWTHORNDEN RUBBERS ESTATE CO LTD
- just and reasonable

Fact:
19 heads of cattle/cow belonging to the P strayed onto the estate
of the D whilst grazing. The estate had been sprayed with sodium
arsenate a few days earlier and as a result of grazing on the
contaminated grass , the complete herd died a few days later.

Held:
In order to be liable under this principle, the D’s company must
be shown to have been aware that the P’s cattle, and not any
cattle, were likely to stray on their estate. Since this fact was not
reasonably foreseeable by the D, it owed no duty of care to the
P and consequently was not liable for the injury to the P’s cattle
WHAT ABOUT OMISSION? Failure to act
4 scenarios where someone (i.e. a defendant) will be guilty of negligence where
there has been an omission:
a) Special relationship between 2
parties

b) Defendant has control over 3rd

party

c) Defendant has control over land

d) Failed to perform an act as

promised

Liable: Barrett V Ministry of Defence

However, different in a case of

Smith V Littlewoods Orgasniation Ltd
 Omission
Scenarios where someone (defendant) will be guilty for
negligence where there has been omission of:

An omission may give rise to liability

Example:

a. The omission is contrary to an existing duty to act (things he supposed to do

but he omits it
b. Where there is social relationship between the plaintiff and the defendant
c. Where the defendant has control over a 3rd party who causes damage to the
plaintiff (ie: the owner of the dog, the mental hospital)
d. The defendant has control over land or something that may cause danger if it
is interfered with
e. The defendant may be liable if he fails to perform an act that has been
promised to the plaintiff
 Omission

Situations in which the duty of care is limited or denied

Omission: inaction on the part of the defendant causes harm to the plaintiff.

An omission does not give rise to a duty of care

The general rule is that a person must try not to harm others, but at
the same time he does not owe a duty of care to do something for
the benefit of another.

Smith V Littlewoods Organisation Ltd

The negation of duty of care compounded by the fact that it was
not reasonable to foresee vandalism
 Barrett V MOD
Fact:
The claimant’s husband was in the Navy stationed at a remote base in Norway. One night he was celebrating his 30th birthday
and a recent promotion by drinking with his friends in the bar provided at the Naval base. It was a Friday night which was a
night on which the men would generally indulge in heavy drinking. The bar was putting on an Hawaiian night and duty free
alcohol was available. The claimant’s husband was drinking heavily and was involved in a drinking competition and became
extremely drunk to the point where he passed out. He was carried to a chair in the lobby.

A senior officer saw him and told Petty Officer Wells to take him back to his cabin and look after him. He was taken back and
placed in his bunk and left in the recovery position. He was in a coma but tossing and turning. The Petty Officer checked on
him on two occasions but he was then found dead at 2.30am. At trial the judge held that the MOD were liable for his death
because of the relaxed attitude towards excessive drinking at the base, in that it was common for officers to drink heavily and
rules and penalties relating to alcohol consumption were not being enforced. The damages were reduced by 25% under the
Law Reform (Contributory Negligence Act) 1945. The MOD appealed on the grounds that no duty of care should arise to
prevent a person becoming intoxicated.

Held:

The MOD were liable, not through breach of a duty of care to prevent him becoming dangerously intoxicated, Until the
deceased became unconscious, he alone carried the legal responsibility for his own actions, however, once the senior officer
assumed a responsibility for him by ordering the Petty Officer to look after him a duty of care did arise. He was in breach of
duty by failing to ensure the deceased received the appropriate supervision.
 However, different in a case of

SMITH V LITTLEWOODS ORGANISATION LTD

The defendant owned a disused cinema which they purchased with the intention of demolishing it and replacing it with a
supermarket. The cinema was last used on 29th May 1976. Littlewoods acquired the building on 31st May 1976. Contractors
were present at the cinema until 21st June and thereafter the cinema was empty until the incident on 5th July 1976. The
contractors had left the building secure, however, vandals had broke into the building. Littlewoods had not been informed of this
and so the building remained unsecured. There was evidence to suggest that further entry by vandals had occurred over the
couple of weeks. The fittings inside the building were damaged and debris was thrown. On one occasion a sink had been
removed and thrown onto the roof of a billiard hall. There were also two small incidents involving fire. None of this was reported
to the police or Littlewoods. On July 5th the vandals broke into the cinema and set fire to it. The fire spread and caused
damage to neighbouring properties. The owners of the properties brought an action in negligence claiming that Littlewoods
owed them a duty of care to prevent the actions of the vandals.

Does the occupier of a property owe a duty of care to the adjoining occupiers in respect of acts of trespass on his property
resulting in damage to the adjoining properties?

Held:
Littlewoods were not liable. Whilst they did owe a duty of care they were not in breach of duty. They were not required to
provide 24 hour surveillance and were unaware of the previous incidents.
EXCEPTIONS

a) Statutory power-
immunity

b) Psychiatric illness – mental, neurosis

and personality changes – medically
recognized

how to determine in monetary term? c) Liability of lawyers

• reasonably foresee - Close emotional

relationship with the primary victim
• a test- 3rd party in the same position
• proximity between plaintiff and the
accident – time and space d) Economic loss
• medically recognized
BREACH OF THE DUTY
Was there a breach of duty?
Test of breach of duty of care

REASONABLE
MAN TEST

• Classes of
defendant

• Practice and
knowledge at
the time of
alleged breach
.
Test of breach of duty of care
THE REASONABLE MAN TEST

Breach is determine through reasonable man test and the question is: would a reasonable man have acted as the
defendant has done if the reasonable man was faced with the same circumstances as the defendant.

• The standard or foresight of the reasonable man

• Eliminates the personal equation

• Independent of the idiosyncrasies (unusual behavior) of the particular person whose conduct is in question

• Level of intelligence and knowledge (the standard of care applicable is that the standard of reasonable man in that
position)

a) Ordinary defendant: personal characteristic of the defendant is not considered but usual norm or practices in
particular society is taken into consideration

b) Professional defendant: the standard of care required of a professional is specific and of higher than that required of
the ordinary man on the street. The required standard duty of care of a professional is judged according to the practice
and knowledge available at the time of the alleged breach. (will be judged as against other persons who possess those
same skills) ie: earings case done by surgeon

c) The child defendant (conduct of other children of the same age, experience, and intelligence. Courts in some
jurisdictions, however, apply the adult standard of care to children who engage in certain adult activities, such as
driving a car).
Test of breach of duty of care
THE REASONABLE MAN TEST

d) The defendant with an incapacity of infirmity (keuzuran)

The general rule is that the defendant’s action must conform to the standard
expected of a person with normal negligence. It is submitted that one should
not measure the reasonableness or otherwise, of the defendant’s conduct with
the hypothetical reasonable man whose level of intelligence would be higher
than the ‘below-average’ defendant.

e) Driver of a vehicle
Case: Ho Kiong Chan v Patipet Choor Singh J. ; there is a very strong duty on
the part of a driver to keep a good look out while driving. A driver should always
anticipate the possible presence of others on the road and should always be
able to stop within the range of his permitted vision.
Test of breach of duty of care
RISK TEST
1. The magnitude of the risk
a) Probability of the injury occurring
b) Seriousness of the injury

2. Practicability or caused of precautions to the defendant

- The risk must be measured against precaution that needs to be taken
and all precautionary measures undertaken by the defendant will be taken
into account in determining the reasonabless of the defendant’s conduct

3. The importance of the object to be attained (emergency)

- Sometimes the social importance or utility of the defendant’s action will
allow him to incur risk of injury in his undertakings
- Ex: police officers shot the victim as he has reasonable suspicion, but
no abusing power

4. General and approved practice (safety measures)

- Does it reasonable for the defendant to do the act when we are in the
same situation. If yes the defendant will not be liable as he has been acted
in accordance with the common practice
Test of breach of duty of care
RISK TEST –MAGNITUDE
OF RISK

• Probability of the injury occurring

Bolton v Stone, Miller v Jackson, Hilder v Associated Portland Cement
Manufacturers Ltd

• Seriousness of the injury

Paris v Stepney Borough Council

• Practicability or cost of precautions to the defendant

Hamzah & Ors v Wan Hanafi Wan Ali

• The importance of the object to be attained

Watt v Hartfordshire County Council, Ward v London County Council

• General and approved practice

Aik Bee Sawmill v Mun Kum Chow
 TEST OF BREACH OF
DUTY OF CARE

• Class of persons who can sue is important

• There must be physical proximity to the accident in terms of

time & space

• The means by which the shock is caused must either be as a

result of what the plaintiff sees, hears not relayed by third party

• The defendant’s negligent act must result in psychiatric

condition that is medically recognized.
CAUSATION AND DAMAGE
What kind of damages did the
plaintiff suffer?
 DAMAGE
To win a lawsuit based on most torts, including negligence, you need to prove causation. To prove
causation, you must prove both actual (causation in fact) and legal cause (causation in law)

1. CAUSATION IN FACT
• Actual cause refers to what you might consider the factual cause of the accident.
Without this cause, the accident that resulted in your injury couldn't have happened.

• Bob is driving his truck and approaching an intersection with a green light. As he goes
through the intersection, a vehicle driven by Linda collides with him. A subsequent
investigation determines that Linda ran a red light.

• In the above example, Linda's actions (running the red light) clearly caused the
accident. In this case, actual cause can be established.

• However, in some cases, causation isn't as clear cut. For example:

• George is driving in the left lane of a 2-lane road. Marcy is driving in the right lane of the
same 2-lane road. A pedestrian suddenly runs into the right lane. Marcy swerves her car to
avoid the pedestrian and collides with George.
• Did Marcy's actions (swerving the vehicle) cause the accident, or did the pedestrian's
actions (stepping into the middle of the road) cause the accident?
DAMAGE
• Whether the defendant’s conduct has in fact caused the damage suffered by
the plaintiff?

CAUSATION IN FACT

a. but for test (o establish a factual link between the conduct of the defendant and the injuries
of the claimant)
But for the defendant’s breach of duty, would the plaintiff have suffered any injury or damage?’

b. multiple causes or concurrent breaches a duty of care

Multiple causes: Where there exist two causes occurring in succession (berturut-turut dan tidak
berlaku dalam masa yang sama) it may be possible to identify the factual cause of the
damage.
- concurrent: Where there exist two or more causes which operate concurrently(serentak dan
berlaku dalam masa yang sama) it may be factually impossible to determine which one was
the cause. This has proved problematic not least because it is the claimant's responsibility to
establish which one was the cause.

c. consecutive or successive causes (defendant harmed by two sources of damage)

- If there are two occurrences and the first incident is a tort, the second incident may wipe out
or erase the earlier wrong
DAMAGE
CAUSATION IN FACT

a. but for test

Case in Focus: Cork v Kirby MacLean Ltd [1952] 2 All ER 402

The claimant was painting the inside roof of a factory. The claimant was working on a narrow platform
23 feet above the ground, with no guard-rails or toe-boards. The claimant had epilepsy, and was aware
of this fact; his employers were not. Whilst working, the claimant had an epileptic fit and was killed
when he fell from his platform. When the case came to court, the defendants argued that the cause of
death was the claimant’s epilepsy, which it could not be held responsible for. Conversely, the
claimant’s estate argued that the cause was a lack of appropriate guard-rails on the platform.

In formulating the but for test, Lord Denning said the following:

"if the damage would not have happened but for a particular fault, then that fault is the cause of the
damage;

And thus, because guardrails would have likely prevented the fall, it was ruled that there was a causal
link between the lack of guardrails and the injury to the claimant.
 DAMAGE
CAUSATION IN FACT

b. multiple causes or concurrent breaches a duty of care

Case in Focus: Bonnington Castings Ltd v Wardlaw [1956] AC 613

The claimant contracted pneumoconiosis (a lung disease) from inhaling minute silica particles during
his work in a steel production facility. There were two possible sources of the silica particles: a swing
grinder or a pneumatic hammer (both pieces of equipment used in shaping steel). The defendants, who
managed the factory, had a statutory duty to provide ventilation for the swing grinder, but not the
pneumatic hammer, but had failed to provide any ventilation for either. This meant that the claimant’s
illness could be attributed to two possible causes (i) the illegally present silica dust from the swing
grinder which should have been removed by the fan, (ii) but also the dust which would have been
present from the pneumatic hammer (this distinction is often referred to as the difference between
‘guilty dust’ and ‘innocent dust’).

It was argued by the defendant that the burden of proof rested with the claimant, and because the
cause of his injuries was only 50% attributable to the defendant, that the claim should fail.
 DAMAGE
CAUSATION IN FACT

c. consecutive or successive causes (defendant harmed by two sources of damage)

The primary example here is Performance Cars Ltd v Abraham [1962] 1 QB 33. The claimant’s Rolls Royce
was struck by a negligent driver. Two weeks prior, however, the claimant was in another accident (also in
which the other driver was at fault). The damage from the second collision was such that it caused no
additional damage on top of the first collision. The claimant was awarded £75 for the first collision, but
did not receive it. The claimant then sought to recover the same amount for the second collision.

The courts ruled that a claimant could not be compensated for the same loss twice. However, the
question remained over which of the drivers should be responsible for the damage. It was ruled
that in such situations, the former, earlier defendant is liable. Thus, to take the two hunter example, it
is only the first hunter who is legally responsible for negligently shooting the claimant dead, not the
second (and not both jointly).
DAMAGE
CAUSATION IN LAW

A defendant will only be liable if it is reasonably foreseeable that his conduct will result in some
damage to the plaintiff: A negligent act may give rise to different type of damages, but the law does
not and will not impose liability on the defendant for every single damage that occurs due to his act
or omission. The test for this is:

a) direct consequences test

a person is liable for all the direct consequences of his wrongful act, whether he could foresee
them or not; because consequences which directly follow a wrongful act are not too remote.

b) the reasonable foresight test

if the consequences of a wrongful act could have been foreseen by a reasonable man, they are
not too remote.

c) type of damage must be foreseeable

d) the extent of damage is irrelevant

e) the method by which the damage occurs is irrelevant

f) intervening acts
An act committed by a third party, or some event occurring naturally, if unforeseeable, breaks the
chain of causation
PROOF OF NEGLIGENCE
Res ipsa loquitor
• how and why maxim apply?
• things that causes damage under the
control of defendant
• will not happen if adequate precaution
taken
• cause of accident unknown
• what is the effect?.
the burden of proof shift to
defendant
AN EXAMPLE OF HOW RES IPSA LOQUITUR COULD
WORK

Suppose for a moment you are walking down the street next to
a brewery, when suddenly a giant barrel of yeast falls out of a
window. The barrel strikes you, and you sustain severe head
and spinal cord trauma. There was a witness who saw the
barrel fall out of the window, but they did not see what caused
it to fall.

You decide to file a lawsuit against the brewery, alleging that

the owner is liable for the injuries you sustained. In this
incident, there is no direct evidence that the owner caused the
injury or that their negligence caused the barrel of the yeast to
fly out the window. However, there is no other explanation of
how the barrel left the window of the brewery and crashed
onto you.
AN EXAMPLE OF HOW RES IPSA LOQUITUR
COULD WORK

This scenario meets the three elements of res ipsa

loquitur mentioned above:
a. it is not an incident that normally occurs unless
someone has acted negligently

b. the evidence ruled out the possibility that you

caused the injury or that a third party caused the injury

c. and the brewery owner had a duty to ensure that

barrels do not fall out of the window and cause harm to
others.
Example: Eliora is walking past a 2-story commercial
building. At the time, construction and renovations are
being done to this building by a construction company,
Alliance Construction Co. As Eliora walks by the building,
a wrench falls onto her head. She sustains traumatic
brain injury as a result.

Eliora and her legal team can’t prove negligence on the

part of Alliance Construction Co. since no one saw any
worker dropping the wrench. However, the jury awards
her full compensation on the basis of res ipsa loquitur.
Even though there was no direct evidence, the event of a
wrench dropping by the building cannot be explained by
anything but negligence on the part of Alliance
Construction Co.
ELEMENTS OF RES IPSA LOQUITUR

The plaintiff must demonstrate three res ipsa loquitur elements to prove
the defendant’s negligence:
1.The event could not have happened unless negligence took place.

2. The event that occurred was exclusively in the control of the

defendant.

3. The plaintiff could not have caused the incident.

ELEMENTS OF RES IPSA LOQUITUR

Let’s apply these three elements to our previous example:

•Element 1: A wrench dropping from the building does not

ordinarily happen without some sort of negligence.

•Element 2: The wrench obviously belonged to Alliance

Construction Co., the construction company working on-site at
the time.

•Element 3: Eliora was merely a pedestrian walking by at the

time – not in any way connected to the wrench falling.
By establishing these three elements, the plaintiff can
successfully bring a case of res ipsa against the defendant.
 DEFENCES IN NEGLIGENCE
What if anything, did the plaintiff do wrong?

01VOLENTI NON-FIT INJURIA

02 CONTRIBUTORY NEGLIGENCE
03 INEVITABLE ACCIDENT
04 MECHANICAL FAULTS
05 SELF DEFENCE
 Defences to Negligence
VOLENTI NON-FIT INJURIA

This is voluntary agreement by the plaintiff, who has full knowledge of the nature and
extent of risk, that is defendant fails to take reasonable care, the plaintiff will bear his
own loss.

The defence has 3 requirements:

- Consent or assumption of risk – there is agreement between the parties and the
defendant will not be liable for negligence
- The consent or assumption of risk must be voluntary
- Full knowledge
 Defences to Negligence
CONTRIBUTORY NEGLIGENCE

- This means that the plaintiff has breached a duty of care for his own safety, in that he has
failed to take reasonable care of himself or his property; which consequently contributed or
resulted in his injury.
- The defence only serve to reduce the amount of compensation payable to the plaintiff.
- For example, in a car accident between car A and car B, car A’s driver was speeding and
car B’s driver was driving drunk. Both drivers are engaged in negligent risk creating
behavior. The negligence on the part of the injured plaintiff is called contributory
negligence.

MECHANICAL FAULTS/
INEVITABLE ACCIDENT

-Reasonable care has been undertaken to ensure the proper work of the machine in dispute
can discharge negligence claims.
THANK YOU