NEGLIGENCE Flashcards
(20 cards)
Definition of Negligence
Breach of legal duty to take care which results in damage, undesired by the defendant to the plaintiff
Cause of Action for Negligence (Case Law)
Bank Bumiputra Malaysia Bhd -
1. on the date the loss is suffered; or
2. in cases where the damage is latent, the date the damage comes into existence and not the date when the damage is discovered.
3 Elements of Negligence
- Defendant is under a legal duty of care to the plaintiff
- There has been a breach of that legal duty of care by the defendant
- As a result, the plaintiff suffered damage
Explanation of legal duty of care
Duty of care can be defined as an obligation or burden imposed bu the law, which requires a person to conform to a certain standard of conduct.
A person is only liable for negligence if he is under a legal duty to take care. So, not all careless acts can be categorised as negligent
To whom is this duty to take care owed?
Lord Atkin in Donoghue v. Stevenson formulated the Neighbour Principle
Who is the neighbour?
Person who are closely and directly affected by my act that ought reasonably to have them in contemplation as being so affected
Case Donoghue v. Stevenson
The defendant, a ginger-beer manufacturer has sold ginger-beer in opaque bottles to a retailer. A friend to the plaintiff had purchased the ginger-beer from the retailer. The plaintiff consumed half and poured the remainder into a glass and found a decomposed snail in it. As the bottle was opaque, the plaintiff could not see the snail earlier. As a result, the plaintiff became ill.
Held: The defendant as the manufacturer owed a duty of care to the plaintiff as the consumer. The duty included ensuring that the drink did not contain any noxious substance, which was likely to cause injury to anyone drinking it. It is not important that the defendant did not know the plaintiff, as long as the plaintiff belonged to one of the classes within the area of foreseeable injury.
Explanation for breach of duty
To prove defendant has breach his duty of care - Breach occurs when the defendant does something that is perceived to be below the minimum standard required of him, which is measured through the standard of a reasonable man.
Case law Vaughan v. Menlove
Defendant’s conduct was to be judged by the standard of care which is shown by a person of ordinary prudence
Case of reasonable man
Blyth v. Birmingham Waterworks - negligence is the omission to do something which a reasonable man would do, or doing something which a prudent and reasonable man would not do
What is the reasonable man test
An objective test which ask “what would a reasonable person have done in the defendant’s situation?
Two case law of breach of duty of care
- Jumat bin Mahmud
- Mohamed Raihan bin Ibrahim
Case Law: Jumat bin Mahmud
A pupil who was sitting behind the plaintiff pricked the plaintiff’s thigh with a pin. The plaintiff turned around and his eye came into contact with the sharp end of a pencil which the pupil was holding. The eye was badly injured and had to be removed. The High Court held the form mistress liable in negligence
Held: In considering whether the defendants were in breach of their duty of care, its necessary to ask whether the risk of injury to the plaintiff was reasonably foreseable. If yes, next is to ask whether the defendant had taken reasonable steps to protect the plaintiff against those risks. Constant vigilance in the classroom would not have prevented the injury sustained by the plaintiff. The defendants appeal was allowed
Case Law: Mohamed Raihan bin Ibrahim
The plaintiff was injured by a hoe wielded by a fellow pupil during a practical gardening class. The plaintiff alleged the defendants had failed to give adequate supervision and instructions regarding the use of gardening tools
Held: The Federal Court distinguished this case from Jumat’s case and held the defendants negligent as they had failed to take a reasonable steps to prevent injury to the plaintiff who was under their care
Explanation for plaintiff suffered damage
The plaintiff must prove that the defendant’s breach of legal duty caused him to suffer damage or loss to win a negligence suit. The damage caused by the breached must be foreseeable or can be anticipated. It must not be too remote
Two test whether the damage suffered is due to defendant’s breach of duty of care
- But-For-Test
- Causation in Law / Remoteness of Damage
But-For-Test Explanation
But for the defendant’s action/breach of duty, would the plaintiff have suffered the injury or damage anyway?
if YES - defendant’s breach of duty did not cause the plaintiff’s injury
if NO - defendant’s action did cause it
Case Law of But-For-Test
Barnett v. Chelsea & Kensington Hospital Management Committee - The plaintiff’s husband went to the defendant’s hospital when he started vomiting after drinking some tea in the early morning. The nurse on duty telephoned the doctor who instructed the nurse to tell the plaintiff’s husband to go home and call his own doctor. Later the afternoon, the husband died of arsenic poisoning and the plaintiff sued the hospital for negligence for its failure to treat her husband.
Held: The doctor has clearly breach his duty of care, however, his breach did not cause the death because even if the doctor were to treat him with proper care, he still could not have been saved.
Causation in Law Explanation
The defendant will only be liable if it is reasonably foreseeable that his conduct will cause some degree of damage to the plaintiff. So, if the reasonable man would not have foreseen it, then defendant is not negligent.
Case Law of Causation in Law
The Wagon Mound - the defendant chartered the ship named the Wagon Mound which was anchored at C Oil Company for refueling. Due to the negligence of the defendants worker, some oil had split onto the water and spread to the plaintiff’s wharf.
The manager of the plaintiff wharf upon seeing the oil ordered the welding work to stop. He inquired with C Oil Company whether it was safe to continue, and they said yes. Two days later the oil caught fire and the plaintiff wharf was extensively damage.
Held: As it was not foreseeable that the defendant’s breach of duty would cause a fire, therefore the defendant was not held liable.
