CAUSE OF ACTION
Duty of Care
D V S ‘neighbour’ Caparo
‘proximity+forseeability+policy’
Breach of Duty
KR Taxi reasonably competent driver
Bolton is the risk justified?
Daborn Is there a bigger benefit?
Latimer Is the mitigation practical?
Causation in Fact
Barnett ‘but for’
McGhee ‘material contribution’
Haynes novus actus interferens
Causation in Law
Wagon Mound ‘reasonably foreseeable’
Hughes ‘kind of damage’
Smith ‘egg-shell skull rule’
OTHERS
Occupier Liability
Premises - can be anything
Occupier - control Wheat v Lacon
Contractual - reasonable care and skill
(Maclenan)
Invitee - unusual danger (Takong Tabari)
Licensee – trap (DBKL v Ong Kok Peng)
Trespasser - common humanity to warn
(Ramakrishnan)
Public nuisance
Unreasonable Au Kean Hoe
Suffer special damage
Ryland v Fletcher
Unnatural accumulation
Escape
Damage Cambridge Water Company
GMC and AB owe Raj a duty of care
GMC did not act reasonably when they ask
Raj to start work without cutting off supply.
AB did not act reasonably when they did not
supervise.
More than reason for the injury, so we use
McGhee, both breach of duty materially
contributed to the injury
It is reasonably foreseeable that burn injury
will be caused by explosion
Premise - Gaya
Occupier - GMC
Contractual entrant, so GMC liable for not
providing reasonable care and skill when did
not supervise and did not switch off supply
DEFENCES
Beyond Control
Act of God
Latent Defect Tan Chye Choo
Agony of moment
Limitation Period
Limitation Act - 6 years
Govt Proceeding Act - 36 months
Dependency Claim - 3 years
Volenti Don’t want to wear protective gear (CN)
Contributory Negligence S12 CLA
- child Mohd Zukhairi Insist on going ahead while power supply was on
(Volenti)
Breach of Statutory Duty
Hu Sepang
-Injury is within ambit of statute
-Statutory Duty imposes a liability -
Statutory duty was not fulfilled
-Breach of Duty caused the P’s injury
Govt Proceeding Act s7 - road
Local Govt Act s101 – tree & lighting
Street Drainage & Building Act
Ouster Clause S95 Stephen Phoa
Whether Semenyih Jaya will apply?
Vicarious Liability
Employer - Employee Mariasusai
In the course of employment Zakaria
Sketch Plan Mustapah Conflicting evidence between GMC and Raj, court
Bingham Table Tabarani will believe what is inherently more probable
Conflicting Evidence Tabarani
 PERSONAL INJURY
Expenses Loss of Future Earning Pain & Suffering & Loss of Amenities
Cut-off Date 1 Sept 2019

Medical Change hospital, Pre-Condition S28A Pain & Suffering P&S for burns
- Private justified Yaakub Foong deductions will be - Be Healthy (pre) Spread of injuries Chong Chee
- Govt servant go private Suriyati made to the claim - Must be below 55 / 60 Kong LOA - burn and
- From govt to private Tang Sia of RM50k - Earning cannot carry heavy
Bak - Allowance ok Marrappa Include physical pain & mental object
- Overseas Dharam Singh Physio - Legal Burn (Burglar) Yaakub pain
- Overstaying IB Drenna (illegal w/o work permit) Tan Ly - include now loss of expectation
Seng (not worker fault) TP Safeer of life
(can be legitimised)
Only if conscious Lim Poh Choo

Traditional Medicine Seah Yit Gloves Multiplicand Loss of Amenities

Chen Income - Tax (Yaacub) + EPF 3000 Objective element - loss of body
(Noor Azhar) - living expenses faculties
Medical Apparatus Appalasamy (Tey Chan) Subjective element - personal
- prospective increase not taken sense of loss
Transportation Chan Kim Hee into account S28A(2)(c)(ii)
- actual increase ok Chang Feng Even if unconscious Lim Poh
Special Diet Yeap Cheong Hock - duty to mitigate Lim Eng Kay Choo

Cost of Care Multiplier S28A(2)(d)(i) Age is 29 so Claims by Others

Must show evidence Yang 30 and below - 16 multiplier is 16 Only victim of tort can claim, exception:-
Salbiah Above 30 – 55 / 60 - Age divide by years = 192 months 1. Loss of consortium Bas Mini Wilayah
Multiplicand 2 2. Household work Inthra Devi
1. Professional care - market value - start from date of accident Paid from Feb - Apr
Housecroft Kanan (3 months) so
2. Family - if working, amount of multiplier reduce by
lost wages, if not working, market 3 months 192 - 3 =
value Donnelly 189
Multiplier
Marappan - statutory 3k x 189
Wong Li Fatt - didn’t follow
statutory Loss of Earning Capacity Deductions
Asainar - ⅓ deduction - alternative if cannot claim LOFE
Bujang - life expectancy - livelihood will be affected in No deductions Perkeso 51%
future - Insurance, pension, SOCSO disability and
Car Repair - Dirkje nurse on sabbatical can s28A(1) insurance 20k,
claim Soo Cheng Lin (medical insurance) not deductible
- Tan Kim Chuan 12 years old - Gratuitous payment by employer or
cannot third party Lim Kiat Boon
Deduction
- Contractual payment by employer
Brown
 FATAL INJURY (NOT RELEVANT)
Dependency Claim Estate Claim

Statutory Dependants s7 1. Loss of Support Special Damages

Can be claimed here if not claimed
Husband, wife, customary Multiplier S7 under Dependency
marriage Chong Ching Seng, 30 and below - 16
mother, father, grandfather, Above 30 – 55/ 60 - Age divide by 2 General Damages
grandmother, son, daughter, - start from date of accident Kanan -died instantly - no p&s and no loa
grandchild, stepchild, - reduction due to subsequent marriage Chan -die later and unconscious - no p&s
illegitimate child, legally adopted Chin Ming - mixed results in subsequent cases but got loa
child Zulkifli, posthumous child -die later and conscious - p&s and
Mariyayee, custom adoption Ali Multiplicand loa
Tan, persons under disability 1. Earning Method
(post) Income - Tax (Yaacub) + EPF (Noor Azhar) -
living expenses (Noor Famiza)
Not dependants - prospective increase no s7(3)(iv)(b)
Siblings Chan Chin Ming - actual increase ok Chang Feng
Divorced wife Payne Collins
2. Contribution Method
Pre-Condition All contribution less any contribution for deceased Deductions
sole benefit Minachi
1. Must be actual loss of No deductions
support Yap Ami vs Lim Chai 3.Contribution in terms of services - Insurance, pension, SOCSO
Oon s7(3)(iii) s28A(1)
2. Must be support due to Parent cannot claim for child’s services Soo Cheng Lin (medical
relationship Maylon Husband cannot claim for wife’s services insurance)
3. s7(3)(iv) Hum Peng Sin - can claim if already expended - Gratuitous payment by employer
- Must be below 55 / 60 (see Neo Kim Soon) or third party Lim Kiat Boon
- Earning a legal income Deduction
- Be Healthy - duty to mitigate Lim Eng Kay - Contractual payment by
employer Brown

Loss of consortium 2. Expenses

- Medical
Cannot claim s7(3)(iv) - Funeral s7(3)(ii)
- Household work Neo Kim Soon
- Probate Minachi

3. Bereavement
- 10k shared by spouse and parent of unmarried
minor child
- 30k shared by spouse, parent and child
 IN THE SESSION COURT AT SEREMBAN
IN THE STATE OF NEGERI SEMBILAN
SUIT NO [ ] OF 20
BETWEEN
M Rajasekaran … Plaintiff
(suing for his own injuries)

AND

Gaya Management Corporation …. 1st Defendant

Ali Baba Electrical Services …. 2nd Defendant

STATEMENT OF CLAIM

1. The Plaintiff is a Malaysian citizen (NRIC No 900405-01-7777) with an address for service at [ ]

2. The 1st Defendant is a Management Corporation set up under the Strata Management Act 2013 with an address for service at [ ] while the 2nd Defendant is an enterprise set up under the
Business Registration Act 1956 with an address for service at [ ].

3. On 5th of February 2020, the Plaintiff was engaged by the 1st and 2nd Defendant to do cable jointing work at a premise managed by the 1st Defendant (“the Premise”) when an explosion occurred
causing injuries to the Plaintiff.

4. The aforesaid explosion was caused wholly by the negligence of the 1st and 2nd Defendant as follows:-

Particulars of Negligence of the 1st Defendant

(a) Failing to turn off the power supply at the Premise

(b) Failure to stop the Plaintiff from carrying out the work even though the power supply was on

Particulars of Negligence of the 2nd Defendant

(a) Failing to ensure that the power supply at the Premise was turned off by the 1st Defendant
(b) Failure to supervise the Plaintiff at work

5. By reason of the aforesaid negligence of the 1st and 2nd Defendant, the Plaintiff sustained severe injuries and suffered damages and has been put to expense.

Particulars of the Plaintiff’s Injuries

The Plaintiff who was 29 years old at the time of the explosions suffered from various burns, corneal abrasion and weakness to the right hand. He suffered pain and suffering due to his injuries as
well as the mental anguish trauma and suffering from the injuries. He also suffers from loss of earning as electrician.

Particulars of Special Damages

Medical RM50,000.00

AND the Plaintiff Claims:

(a) Special damages on behalf of himself in the sum of RM50,000.00

(b) General Damages
(c) Interest
(d) Costs
(e) Any further or other relief which this Honourable Court deems fit and proper to grant.

Dated this [ ] day of [ ] 20 [ ].

………………………….
Solicitors for the Plaintiff

This Statement of Claim is filed by [ ] solicitors for the Plaintiff whose address for service is at [ ]