LAW OF TORT: NEGLIGENCE

Business Law
LAW1014
Introduction
What is tort?
Hall v Herbert [1993] 2 SCR 159

• Difficult to define the nature of tort.

• Distinguished from criminal law – conviction and

sanctions (punishments).

• Torts – liability and damages.

• However difficult to define what exactly is tort – that is

why there are so many different types of torts.
What is tort?
Type of torts

• Negligence;
• Nuisance;
• Trespass (to land & to person)
• Occupiers Liability (related to Health and Safety)

* Further reading: Law for Business (2014, Sweet &

Maxwell), pp. 508- 519.
Negligence: Duty of Care
What is Negligence?

• Description of conduct that may amount to

negligence:
– Carelessness;
– Failure to do that a reasonable person would
do;
– Doing something that a reasonable person
would not do.
What is negligence?
Elements of Duty of Care

The defendant (D) will only be liable if the plaintiff

(P) can prove that:
1. D owed them a duty of care;
2. D was in breach of the duty of care;
3. D’s breach of duty was cause of P’s loss; and
4. the damage suffered by P was not too remote
Duty of Care
Donoghue v Stevenson [1932] AC 562, p. 580

“You must take reasonable care to avoid acts or

omissions which you can reasonable foresee would be
likely to injure your neighbour. Who then is my
neighbour? The answer seems to be – persons who are
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 act or
omission which are called in question.”
Duty of Care
Donoghue v Stevenson [1932] AC 562, p. 580

Key points:
1. Duty is owed to one’s neighbours.
2. A person’s neighbour is one who is closely and
directly affected by the defendant’s act.

*Point of reflection: how do we determine the

claimant’s neighbour? See Law for Business
(Sweet& Maxwell), Chapter on Negligence
Duty of Care
Caparo Industries v Dickman [1990] UKHL 2

Key factors to consider to determine whether the claimant

is the defendant’s neighbour:
1. Was the loss foreseeable?
2. Was there sufficient proximity between the parties?
3. Is it fair, just and reasonable to impose a duty of care?

* Take note these English principles are applicable in

Malaysia - Arab Malaysian Finance Bhd v Steven Phoa
Cheng Loon (CA, 2002)– per Gopal Sri Ram JCA
Duty of Care
Reasonable foreseeability

• It has to be proven that the defendant either actually can

foresee or should have foreseen (reasonable person
test) that there was a risk with respect to the conduct
they undertook to do.

• Whether duty should be imposed depends on the degree

of foresight attributable to the risk and conduct.
Duty of Care
Reasonable foreseeability

Langley v Dray [1980] 5 PIQR P314 – held that the

defendant who drove recklessly to avoid capture foresaw
that his actions could endanger the lives of other road
users.

Haley v London Electricity Board [1965] AC 778 – a

blind man tripped on a shovel and pick in a trench which
was not fenced. They were held to be negligent because it
was proven to be a risk to a class of persons the claimant
was part of.
Duty of Care
Proximity

• In addition to foresight, it must be shown

that is a degree of ‘closeness’ between
the defendant and the claimant.

• There are ways in which this is established

in different circumstances – either contract
or assumption of responsibility
Proximity
Hedley Byrne v Heller [1964] AC 465

• In this case, it was stated that if someone giving

advice knew or should have known that their
advice would be relied on
• Then they in giving advice would assume
responsibility for the consequence of that
advice.
• This in turn creates a proximity between the
claimant (receiver of advice) and the defendant
(giver of advice)
Proximity
Hedley Byrne v Heller [1964] AC 465

• However it was noted that the courts must also consider

whether it would be reasonable to rely on the advice
and;

• Whether the advice was actually relied on by the

claimant (i.e. getting a second opinion casts doubt on
reliance).

*Further reading - See Law for Business (Sweet&

Maxwell), Chapter on Negligence
Justice & Reasonableness

The courts will consider

1. whether imposing duty of care would aid justice?
• Justice is not limited to the individual case. It also
concerns whether the decision would help future
cases where similar class of defendants and
claimants are concerned.
2. whether it is reasonable?
• Reasonableness is a question of fact. That means
reasonableness is considered on a case by case
basis.
Negligence: Breach of Duty
What is Breach of Duty?

• There are two stages to determine breach;

• First Stage:
• Determine the standard of care.

• Second Stage:
• Determine whether the defendant’s conduct falls
above or below the standard.
Breach of Duty
Determining Standard of care

• Bolton v Stone [1951] AC 850 – the appellant was struck

by a cricket ball while walking past the defendant’s
cricket ground. The ball had travelled some 85 metres
before hitting the plaintiff. Balls had only been hit over
the fence 12 times in the last 30 years during matches,
and committee members could not recall a similar
incident ever happening.

• The factor – Probability of risk

– Higher the probability, higher the standard.
Breach of Duty
Determining Standard of care

• Paris v Stepney Borough Council [1950] AC 367: P only

had one good eye. While using a hammer to remove a
bolt, a piece of metal flew off and lodged in his good eye,
leaving him blind. The Council had not provided him with
goggles, nor was it usual practice for employers to
provide goggles to men working on maintenance.

• The factor – Gravity of Harm

– Higher the gravity of harm higher the standard of
care.
Breach of Duty
Sri Inai (Pulau Pinang) Sdn Bhd v Yong Yit Swee (CA,
2002).

• D1 (a school) rented premises from D2 (local

authority) for use as a hostel for students. D2 knew
that young children would occupy the premises but
did nothing to improve the safety of the premises.

• A fire broke out claiming the lives of some of the

students. Action was taken against the defendants
for negligence.
Breach of Duty
Sri Inai (Pulau Pinang) Sdn Bhd v Yong Yit Swee (CA,
2002).

• Court of Appeal held both defendants were liable in

negligence because both defendants had a
relationship with the students who stayed at the
hostel in terms of their safety.

• There was a duty to take necessary measures for

the safety of the premises which was not taken
hence this amounted to breach of duty of care.
Negligence: Causation
Causation

• P must show that the D’s negligence caused loss

• General test to establish this is “But For…” Test – would
the P have suffered the damage “But For” the D’s
negligence
• More than one cause – “But For Test” not appropriate
where there is more than one cause for damage
• If a new act caused the damage to P - this called break
in chain of causation (novus actus interveniens (NAI)
• D only liable for negligence up to the time of NAI
Causation
Wu Siew Ying v Gunung Tunggal Quarry & Construction
Sdn Bhd (FC, 2010)

• D2 leased land to D1 who operated a quarry on the land.

The quarry was next to P's land, on which he had a
nursery.
• After a severe thunderstorm, debris fell onto P's land and
destroyed the nursery.
• P filed an action in tort against D1 and D2. At the
Federal Court, the court had to consider the "But For"
test in deciding whether P could succeed.
Causation
Wu Siew Ying v Gunung Tunggal Quarry & Construction
Sdn Bhd (FC, 2010)

• FC decided that vibrations caused by D1's

quarry operations was the material cause for the
damage to P’s nursery.

• Since P was directly affected by D1's act, D1

ought to have had P in his contemplation and
taken necessary steps to minimise the risk of
collapse
Negligence: Remoteness
Remoteness

• D is not liable for damage which the courts

regard as too remote

• The test used by the courts is whether the

damage, or the same kind of damage, was
reasonably foreseeable by D, and is a question
of law: The Wagon Mound No 1 case [1961]
Remoteness

• Arab Malaysian Finance Bhd v Steven Phoa Cheng

Loon (CA, 2002) – per Gopal Sri Ram JCA

• Malaysian Courts are bound by the decision in the

Wagon Mound (No. 1)

• Settled law that P can only recover loss which a

defendant could reasonably forsee would happen to the
victim of the tort
Negligence: Defences
Contributory Negligence

• the defence of contributory negligence is

governed by legislation in all States and
apportionment of damages are based on what is
fair and reasonable between the parties;
• must be pleaded by D and is concerned with P’s
failure to take precautions for their own safety;
• the onus of proof rests on D
• See Section 12, Civil Law Act 1956
Voluntary Assumption of Risk

• must be raised by D and is a complete

defence;
• D must show P knew of and fully
appreciated the risk and voluntarily
accepted it;
• often raised in sporting cases
Voluntary Assumption of Risk
ICI v Shatwell [1965]

• The plaintiff and his brother were both

detonation experts.
• They freely and voluntarily assumed the
risk involved and there was no pressure
from any other source.
• To the contrary, they were specifically
warned about complying with the new
safety regulations. They had consented to
the risk.
Negligence: Vicarious Liability
Vicarious Liability

• A person (including a company) may be vicariously liable (i.e.,

responsible) for a wrong-doer's actions, where a particular
relationship exists between the parties, e.g. employer-employee,
principal and agent.
• An employer is vicariously liable for an employee's acts or
omissions committed in the course of their employment.

• Employees must be distinguished from independent contractors,

over whom the employer has little control, as an employer is not
vicariously liable for an independent contractor's actions.

• An employer may be liable if they “lend” an employee to another

employer unless they can show that control over the employee has
been effectively transferred to the “borrowing” employer.
The End