BUSINESS LAW

(LAW101)
Chapter 5 – Law of Tort
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Introduction
• Tortious liability arises from the breach of a
duty primarily fixed by the law; this duty is
towards persons generally and its breach is
redressible by an action for unliquidated
damages
• The law of tort in Malaysia is largely
derived from the common law of England
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DEFINITION OF TORT

TORT FROM THE LATIN TORTUS, MEANING TWISTED OR WRONG

TODAY TORT = A LEGAL WRONG (hvi vi phạm pháp luật cho phép tòa
án có quyền áp đặt những biện pháp hạn chế tổn thất)

A LEGAL WRONG = A WRONG RECOGNISED BY THE COURTS

ALLOWING THE AGGRIEVED PARTY (bên nạn nhân) TO BRING A LEGAL
ACTION
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TORT OF NEGLIGENCE

NEGLIGENCE ORDINARILY MEANS "CARELESSNESS" OR "LACK OF

PROPER CARE AND ATTENTION"

LEGAL MEANING IS THE SAME BUT IS NOT BASED ON THE STATE OF

MIND OF THE PERSON INVOLVED BUT IS MEASURED AGAINST AN
OBJECTIVE STANDARD IMPOSED BY LAW
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Negligence
• Negligence is defined as ‘the breach of a legal
duty to take care which results in damages,
undesired by the defendant, to the plaintiff’
NEGLIGENCE

The Plaintiff must The Plaintiff must As a consequence

prove that the prove that the of this breach, the
defendant owed defendant plaintiff
him a DUTY OF BREACHED this SUFFERED
CARE duty LOSSES / INJURY
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HOW LIABILITY IS DETERMINED FOR

NEGLIGENCE

STANDARD OF
DUTY OF CARE
CARE

CAUSATION

REMOTENESS OF
DEFENCES
DAMAGE
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Duty to take care

• Not every careless act done by a person results in his
being held responsible in law
• He will only be liable in negligence if he is under a legal
duty to take care
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DUTY OF CARE

BYSTANDER

ION
G AT
I
O BL
DROWNING PERSON
NO LIFESAVERS

OBLIGATION TO TAKE REASONABLE AND DUE CARE

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Duty to take care

• The general principle as regards the criterion of duty is that which
was given by Lord Atkin in Donoghue v Stevenson which reads as
follows:

‘The rule that you are to love your neighbour becomes, in law, you
must not injure your neighbour; and the lawyer’s question, Who is my
neighbour? Receives a restricted reply. You must take reasonable
care to avoid acts or omissions which you can reasonably foresee
would be likely to injure your neighbour. Who, then, in law 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 acts or omissions which are called in question.”
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Duty to take care

Donoghue v Stevenson [1932] A.C. 562, 580

A manufacturer of ginger-beer had sold to a retailer ginger-beer in

an opague bottle. The retailer resold it to A who treated her
friend to its contents. The ginger-beer bottle also contained the
decomposed remains of a snail which had found its way into the
bottle at the factory. A’s friend alleged that she became seriously
ill in consequence and sued the manufacturer for negligence.

Held: Although there was no contractual duty on the part of the

manufacturer towards A’s friend, the manufacturer owed her a
duty to take care that the bottle did not contain noxious matter
and it would be liable if that duty was broken
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DONOGHUE v STEVENSON

SALE
NO CONTRACTUAL

MANUFACTURER
RELATIONSHIP

CAFE

SAL
E
GIFT

CONSUMER/PLAINTIFF FRIEND/PURCHASER
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Duty to take care

• The test for the existence of a duty owed to the
plaintiff is the ‘neighbour’ principle stated by Lord
Atkin in Donoghue v Stevenson, i.e. the
foresight of the reasonable man
• One therefore asks the question whether the
injury to the plaintiff was reasonably foreseeable
consequence of the defendant’s acts or
omissions
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Duty to take care

 It is not required that the plaintiff must be
identifiable by the defendant
 It is enough if the plaintiff is one of a class within
the area of foreseeable injury
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Duty to take care

Haley v London Electricity Board

Ds excavated a trench in the street. They took precautions for the

protection of passers-by which were sufficient for normal sighted
persons. However, P, who was blind, suffered injury because the
precautions taken by Ds were inadequate for him.

Held: the number of blind persons walking about the streets alone was
sufficient to require Ds to have them in contemplation and take
precautions appropriate to their condition.
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Breach of Duty
 The defendant must not only owe the plaintiff a
duty of care, he must be in breach of it
 The test for deciding whether there has been a
breach of duty is laid down in the dictum of
Alderson B. in Blyth v Birmingham
Waterworks Co.:

“Negligence is the omission to do something

which a reasonable man, guided upon those
considerations which ordinarily regulate the
conduct of human affairs, would do, or doing
something which a prudent and reasonable man
would not do”
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STANDARD OF CARE

STANDARD OF CARE MUST ALSO ALSO BE ESTABLISHED ACCORDING

TO AN OBJECTIVE TEST

WOULD A REASONABLE PERSON IN THE SAME CIRCUMSTANCES HAVE

OBSERVED THE SAME STANDARD OF BEHAVIOUR AS THE DEFENDANT
DID IN CAUSING INJURY OR DAMAGE TO THE PLAINTIFF ("THE
NEIGHBOUR")

NOT NEGLIGENT
OBJECTIVE
STANDARD OF
BEHAVIOUR NEGLIGENT

THE REASONABLE PERSON

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Breach of Duty
 Who is a ‘reasonable man’?
 A reasonable man has been described as ‘the man on
the omnibus’.
 In other words, a ‘reasonable man’ means an ordinary
man who is not expected to have any particular skill such
as that possessed by a surgeon, a lawyer or a plumber
unless he is actually one
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Breach of Duty
Roe v Minister of Health [1954] 2 Q.B. 66

Facts: In 1947, Roe was a patient in a hospital. Dr. G,

an anaesthetist, administered a spinal anaesthetic to
him in preparation for a minor operation. The
anaesthetic was contained in a glass ampoule which
had been kept before use in a solution of phenol.
Unfortunately some of the phenol had made its way
through an ‘invisible crack’ into the ampoule this
contaminating the anaesthetic. As a result Roe
became permanently paralysed from the waist dow.
Dr. G had subjected the ampoule to a visual
examination before administrating the anaesthetic but
he did not add a colouring agent to the phenol so that
contamination of the anaesthetic could have been
observed.
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Breach of Duty
Held: Dr. G was not negligent in not causing the phenol to
be coloured because the risk of invisible cracks had not
been drawn to the attention of the profession until 1951
and ‘care has to be exercised to ensure that conduct in
1947 is only judged in the light of knowledge which then
was or ought reasonably to have been possessed. In this
connection, the then existing state of medical literature
must be had in mind.’
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Breach of Duty
 In deciding whether there was a breach of duty, a
balance must be truck between the magnitude of the
risk and the burden to the defendant in doing (or not
doing) what is alleged he should (or should not) have
done
 In every case where a duty of care exists, the court must
consider whether the risk was sufficiently great to require
of the defendant more than he has actually done
 The 3 factors the courts must consider are:
◦ The magnitude of the risk;
◦ The importance of the object to be attained; and
◦ The practicability of precautions
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Magnitude of the Risk

• 2 elements:
• Likelihood that injury will be incurred; and
• Seriousness of the injury that is risked
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Magnitude of the Risk

Bolton v Stone [1951] A.C. 850

Facts: P was standing on the highway in a road adjoining a

cricket ground when she was struck by a ball which a batsman
had hit out of the ground. Balls had occasionally been hit out
of the ground before. However, there was a seven-foot fence
around the cricket ground, there was quite a distance from the
pitch to the edge of the ground, and there was an upward slope
of the ground in the direction in which the ball was struck.
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Magnitude of the Risk

Held: Taking into the account the distance from the pitch to
the edge of the ground, the presence of a seven-foot
fence and the upwards slope of the ground in the direction
in which the ball was struck, the likelihood of injury to a
person in P’s position was so slight that the cricket club
was not negligent in allowing cricket to be played without
having taken additional precautions such as increasing
the height of the fence.
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Magnitude of the Risk

Hilder v Associated Portland Cement Manufacturers
Ltd. [1961] 1 W.L.R. 1434

Facts: P’s husband was riding his motorcycle along a road

outside a piece of open land occupied by Ds and where
children were permitted to play football. A ball was kicked
into the road causing P’s husband to have an accident
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Magnitude of the Risk

Held: In view of the likelihood of injury to passers-by, Ds
are liable for having permitted football to be played on
their land without having taken any additional precautions
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The Importance of the Object to be Attained

 It is necessary to balance the risk against the
consequences of not taking it
 In Daborn v Bath Tramways, where it was held that a
left-hand-drive ambulance driver during the emergency
period of war was not negligent in turning right without
giving a signal
 Thus, where the purpose to be served in talking the risk
is sufficiently important to justify the taking of that risk,
the defendant is not liable (Watt v Hertfortshire County
Council)
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The Practicability of Precautions

 The risk must be balanced against the measures necessary
to eliminate it, and the practical measures with which the
defendant could have taken must be considered (Latimer v
A.E.C. Ltd)
 Latimer v A.E.C. Ltd. [1953] A.C. 643
Facts: A factory floor became slippery after a flood. The
occupiers of the factory did everything possible to get rid of
the effects of the flood. Nevertheless, P was injured and then
sought to say that the occupiers should have closed down the
factory.
Held: The risk of injury created by the slippery floor was not
so great as to justify so onerous a precaution as to close
down the factory.
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Remoteness of Damage
• P’s damage must have been caused by D’s breach of
duty and must not be too remote a consequence of it
• Remoteness of damage is concerned with the question
whether damages may be recovered for particular items
of P’s loss
• This means that one has to ask whether the breach of
duty was the primary cause of the damage
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Remoteness of Damage
Barnett v Chelsea and Kensington Hospital Management
Committee
Facts: Early one morning P’s husband went to D’s hospital
and complained of vomiting after drinking tea. The nurse on
duty consulted a doctor by telephone and the doctor said that
he should go home and consult his own doctor later in the
morning. P’s husband died of arsenical poisoning.
Held: In failing to examine the deceased, the doctor was guilty
of a breach of his duty of care, but this breach was not a
cause of the death because, even if the deceased had been
examined and treated with proper care, the probability was
that it would have been impossible to save his life. P’s claim
therefore failed
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Remoteness of Damage
• In The Wagon Mound [1961] A.C. 388, the Privy Council
that the foresight of the reasonable man alone can
determine responsibility.
• Test – reasonably foreseeable
• In negligence, foreseeability is the criterion not only for the
existence of a duty of care but also for remoteness of
damage
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Remoteness of Damage
 Whether a particular harm was reasonably foreseeable is a
question of fact that depends upon the peculiar facts of each (Jolley
v. Sutton London Borough Council)
 Applying the general principles given above in respect of
remoteness, it is clear that consequences which are intended are
never too remote
 Lord Lindley in Quinn v. Leatham said, ‘The intention to injure the
plaintiff … disposes of any question of remoteness of damage’
 Example: -
◦ If a man throws some fire crackers intending it as a joke and P’s eye is
injured as a result, he would be liable
◦ If a woman hits a man on the head with a hammer, she cannot raise the
defence that the man’s head was hurt badly because he had a ‘thin skull’
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DEFENCES

ONCE P PROVES A PRIMA FACIE CASE OF

NEGLIGENCE, D CAN TRY TO AVOID OR
REDUCE LIABILITY BY RAISING DEFENCES

VOLENTI NON FIT INJURIA -

VOLUNTARY ASSUMPTION OF RISK

CONTRIBUTORY NEGLIGENCE
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VOLENTI NON FIT INJURIA -

VOLUNTARY ASSUMPTION OF RISK
L-4-170

P MUST HAVE CONSENTED TO THE FULL

RISK. MERE KNOWLEDGE OF A RISK IS
INSUFFICIENT

VOLENTI IS A TOTAL DEFENCE. P WILL GET

NOTHING IF IT IS ESTABLISHED BY D
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Volenti non fit injuria (Voluntary assumption of

risk)
• Morris v. Murray [1990] 3 All ER 801
• Facts: The husbands of the plaintiff and defendant had been
drinking alcohol all afternoon after which they decided to go on a
flight in the defendant’s husband’s light aircraft. It crashed and they
died.
• The Court of Appeal decided that the plaintiff’s husband was aware
of the serious risk involved and had consented to the risk. The
claim failed.
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Contributory Negligence
• At common law, if P’s injuries have been caused partly by
the negligence of D and partly by his own negligence,
then, P can recover nothing
• It is clear that this rule is a harsh one and hardship is
cause especially where P’s negligence was not the major
cause of the accident
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Contributory Negligence
 S12 of the Civil Law Act 1956 provides:
“Where any person suffers damage as the result partly of his own
fault and partly of the fault of any other person or persons, a claim in
respect of that damage shall not be defeated by reason of the fault
of the person suffering the damage but the damages recoverable in
respect thereof shall be reduced to such extent as the Court thinks
just and equitable having regard to the claimant’s share in the
responsibility for the damage.”

By the same section ‘fault’ means negligence, breach of statutory duty,

or other act or omission which gives rise to liability in tort or would,
apart from the act, give rise to the defence of contributory
negligence
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Contributory Negligence
 All that is required to provide contributory negligence is
that P has failed to take reasonable care for his own
safety and that P’s lack of care for his own safety was a
contributory factor to the accident which caused his
damage
 P is not guilty of contributory negligence if his conduct
could not have been foreseen as likely to result in his
own injury
 A person is guilty of contributory negligence if he ought
reasonably to have foreseen that, if he did not act as a
reasonable prudent man, he might hurt himself and in
his reckonings he must take into account the possibility
of others being careless
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Contributory Negligence
 As provided in s12of the Civil Law Act 1956, in the
case of contributory negligence, the damages
recoverable by P are to be reduced ‘to such extent
as the court thinks just and equitable having regard
to the claimant’s share in the responsibility for the
damage’
 In apportioning the damage, the court is directed to
do what is ‘just and equitable’
 The matter is thus one for the discretion of the court
 The courts generally consider the extent of P’s lack
of care for his own safety as a major factor
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LIABILITY FOR PURE

ECONOMIC LOSS CAUSED BY
NEGLIGENT MISSTATEMENTS
OR ACTS
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PURE ECONOMIC LOSS FOR

YOU WILL PASS LAW101!

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NEGLIGENT MISSTATEMENTS

HEDLEY BYRNE v HELLER

HELD: MERE FORSEEABILITY OF HARM IS NOT ENOUGH TO

ESTABLISH A DUTY OF CARE

A DUTY OF CARE TO AVOID NEGLIGENT MISSTATEMENTS WILL ARISE

IF THERE IS A "SPECIAL RELATIONSHIP" BETWEEN THE INQUIRER
AND THE MAKER OF THE STATEMENT.
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NEGLIGENT MISSTATEMENTS

A SPECIAL RELATIONSHIP EXISTS WHEN:-

• THE INQUIRER TRUSTED THE MAKER TO TAKE SUCH CARE

AS THE CIRCUMSTANCES REQUIRED

• IT WAS REASONABLE FOR THE INQUIRER TO DO SO

• MAKER GAVE ADVICE KNOWING OF THIS TRUST
• ADVICE GIVEN IN RESPONSE TO A SPECIFIC ENQUIRY
• INFORMATION USED FOR THE PURPOSE OF THE ENQUIRY
• NO DISCLAIMER OF RESPONSIBILITY BY MAKER
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NEGLIGENT MISSTATEMENTS

IS THIS DUTY ONLY OWED BY

PEOPLE IN THE BUSINESS OF
GIVING INFORMATION / ADVICE
OR IS EVERYONE WHO GIVES
ADVICE UNDER AN OBLIGATION
TO TAKE CARE?
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NEGLIGENT MISSTATEMENTS

• A DUTY OF CARE MAY BE OWED EVEN IF IT IS NOT THE BUSINESS OF

THE DEFENDANT TO GIVE INFORMATION / ADVICE

• KEY QUESTION: IT IS REASONABLE TO RELY ON THE ADVICE?

• DOES THE ADVISER HAVE SPECIAL SKILL OR COMPETENCE?

• IS ADVICE GIVEN IN A SERIOUS OR BUSINESS CONTEXT?

• IS ADVICE ‘CONSIDERED ADVICE’ ?

• DISCLAIMER OF LIABILITY / RESPONSIBILTY NO LONGER

CONCLUSIVE
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QUESTIONS