CEY 2017
Negligence
1.0 Introduction
Summary of facts
2.0 Cause of action: Negligence
2.1 Definition of negligence
From the case of Blyth v Birmingham Waterworks Co (1856), Alderson B stated that
negligence is the omission to do something which is 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.
While from the case of Lochgelly Iron and Coal Co v McMullan [1934], Lord Wright
defined negligence that it means more than heedless count or careless conduct… it properly
connotes the complex concept of duty, breach or damage thereby suffered by the person whom
duty was owning.
2.2 Element of negligence
In order to establish negligence, there are three elements to fulfil.
First, that is a duty of care on the part of the defendant,
secondly this duty is breached by the defendant and
thirdly, the breach results in some damages to plaintiff.
2.3 Duty of care
2.3.1 Preliminary test
From the case of Heaven v Pender (1883), Brett HR stated that if an ordinary person
thinks that if he did not use ordinary skill and care in his conduct, then it will cause danger and
injury to others, a duty arises to use ordinary care and skill to avoid such danger. Under this
care,*relating*.
Moreover, from the case of Le Lievre v Gould, Lord Esher MR stated that one man
woe duty of care to another even though there is no contract between them. Under this case,
*relating*. Furthermore, Lord Esher MR further asserted that if one many is near to another or
is near to the property of another, a duty is lies upon him no to do something that may cause
injury to another or his property. Under this case, *relating*.
2.3.1 The neighbour principle Test
From the case of Donoghue v Stevenson [1932], The issue in this case was whether the
defendant owed such a duty to plaintiff. Therefore, Lord Atkin formulated a neighbour
principle in his judgement that a person must take reasonable care to avoid such acts or
omissions which he/she could foresee would be likely injure his/her neighbours. Who, then, in
law is his/her neighbour. Person who are so closely and directly affected by his/her acts that
he/she thought to have them in contemplation as being so affected when he/she is directing
his/her mind to certain acts or omission. Hence, under this case *relating*.
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There is also a hypothetical question by the court that would a reasonable man, who is
in the same circumstances as the D, foresee that his conduct will adversely affect the P? If the
answer is yes, P is the neighbour of D and the latter owes former a duty of care and vice versa.
Under this case, *relating*.
2.3.2 The incremental Test
This test is originated from the case of Caparo Industries plc v Dickman [1989]. There
are two significances from the case. Firstly, the plaintiff in order to establish the duty of care
owed by defendants, only need to prove that a duty of care arises in his situation because it
accords with existing policy and decisions in the case law. Need not to fit into any of the
recognized categories. Hence, House of Lord set up a ‘three-fold’ test where in order to
establish duty of care arise in a case of negligence, we only need to fulfil the following factors:
The damage is reasonably foreseeable
There is a close and direct relationship of proximity between the plaintiff and the
defendant, and
It is fair, just and reasonable to impose such duty of care under the circumstances.
Hence, under this case, *relating*.
2.4 Nervous Shock
2.4.1 Definition
From the case of Brice v Brown [1984], nervous shock means a mental injury or
psychiatric illness and not simply grief and sorrow.
2.4.2 Historical Development
In the earlier cases, the Court only allow a claim for nervous shock if there was proof
of actual physical injury as in the case of Victorian Railway Commissioners v Coutlas (1888).
Then, this view was changed when shock alone, without physical damage was held to be
recoverable as in the case of Duliue v White & Sons [1901] where the plaintiff suffered shock
which resulted in a miscarriage when the defendant’s van crashed into a public bar where she
was serving drinks.
The scope was then expanded beyond the primary victim to include a secondary victim
in Hambrook v Stokes Bros [1925] where the majority of CoA held that if a mother may
receive a compensation for fearing her own safety, there should be no reason why a claim from
a mother who feared for the safety of her children should be denied.
Then, the scope was extended to include any person who sustained psychiatric illness
due to fear of immediate physical injury to near relations. In the case of Hinz v Berry [1970],
the P recovered damages for severe shock upon witnessing her husband’s death and her
children’s injuries. While in Malaysian Case of Zainab Ismail v Marimuthu & Anor [1955],
the Court allowed P’s claim for nervous shock sustained as a result of seeing her daughter
knocked down by the defendant’s lorry.
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2.4.3 Current Law application
The requirement for the secondary victim to be at or close to the scene of accident
changed in the case of McLoughlin v O’Brian [1982] (story), where House of Lord allowed
the plaintiff’s appeal and Lord Wilberforce formulated the ‘aftermath test’ and stated that
foreseeability of injury by shock alone was insufficient. The additional factors must also be
considered, and they are:
Class of person. Person who may claim must have close emotional relationship with
the primary victim. HOL further held that a parent or spouse will be persons who come
within the scope of a duty of care on the part of the defendant
Proximity in term of time and space. Physical proximity is extended to include a
plaintiff who does not actually see the accident but sees the immediate aftermath of it.
The shock to the plaintiff must either be as a result of what the P sees, hears or
alternatively if the P comes upon the immediate aftermath of the damage. Information
relayed by third party is therefore not recognised.
The defendant’s negligent act must result in a psychiatric condition that is medically
recognised.
The latest current law application can be seen through the decision in Alcock v Chief Constable
of South Yorkshire Police [1992]. HOL has summarised few considerations on liability for
psychiatric illness. They are:
Nature of relationship between the plaintiff and the victim, which must be one based
on love and affection which in turn must be proven in court.
Psychiatric illness must be as a result of what the plaintiff himself perceives with his
senses. Even a third party unrelated to the primary victim may claim if he sees a tragedy
of exceptional horror.
There must be proximity between the P and the accident in terms of time and space.
This means that the P must either see the accident, hear the accident, or be physically
present at the scene of the accident immediately thereafter. What is ‘immediate’,
depends upon the facts of each case.
Psychiatric illness as a result of being informed about the accident by a third party is
outside of the scope of liability.
The plaintiff must suffer a medically recognised psychiatric illness.
*Vernon v Bosley [1997] (no PTSD but only got pathological grief as long as he had satisfied
the requirement of close relationship with the primary victim and proximity to the accident.)
2.4.3 Primary Victim and secondary victim
From the case of Dulieu v White [1901], if the plaintiff himself suffers physical injury
and consequently psychiatric illness, he is classified as a primary victim. From the case of Page
v Smith [1995], HOL has drew the distinction between primary and secondary victims. (look
note)
Primary Victim Secondary Victim
Person who directly involved in the Person who witness the accident.
accident as a participant and was
actually exposed or reasonably
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believed to be exposed to the risk of
physical injury.
Foreseeability of psychiatric injury. Foreseeability of psychiatric injury.
Proximity to the event in term of
time and space.
Proximity or relationship between
Primary Victim and Secondary
Victim.
The Psychiatric illness is medically recognized.
[Link] Rescuer
In Chadwick v British Railways Board [1967], the Court allowed the claim of the
plaintiff who suffered nervous shock as a result of witnessing the consequences of the disaster
when rescuing the victims. This is because he was deemed to be within the reasonable
contemplation of persons who might suffer nervous shock as a result of coming to the aid of
the injured passengers.
However, in the case of White v Chief Constable of South Yorkshire Police [1991],
policy considerations played an effective role in disallowing claims by police officers for
psychiatric illness suffered by them because of rescue operations during the disaster.
[Link] Mere bystander
In Bourhill v Young [1943], where a pregnant woman suffered a miscarriage through
the shock of seeing the aftermath of a road accident, the court held that as she was not within
the area of foreseeable impact, the defendant owed her no duty of care.
[Link] Damage to property
In Attia v British Gas Plc [1987], the court allowed the plaintiff to recover the damages
for nervous shock upon seeing the destruction of her house and its contents by fire due to the
defendant’s employees’ negligence.
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3.0 Breach of duty of care
3.1 The Reasonable Man Test
In Blyth v Birmingham Waterworks & Co, it as stated that negligence is the omission
to do something that a reasonable man will do or doing something that a reasonable man would
not do. Hence, the test is to test whether a reasonable man have acted as the defendant has done
if the reasonable man faced the same circumstances with Defendant.
3.2 Reasonable Man
In Glasgow Corporation v Muir [1943] (children scalded by tea), Lord Macmillan
stated that the standard of foresight of the reasonable man is in one sense an impersonal test
and the reasonable man is presumed to be ‘free from over-apprehension and from over-
confidence’. Hence, the test for who is a reasonable man is an impersonal test which involved
objective test and subjective test. Objective test is about the reasonableness where personal
character of defendant would not be taken into account. While subjective test is allowing the
judge to instil the characteristics of reasonable person according to the fact of the case by
considering the knowledge and skill owned by the defendant.
3.3 Common practice and special skill/ professional defendant
Tindal CJ in Lanphier v Phipos stated that every person who possessed a profession
career should adopt a reasonable degree of care and skills. It is not possible for them to use a
highest degree of skill but a fair, reasonable and competent degree of skill.
While in Bolam v Friern Hospital Management Committee [1957], negligence means failure
to act in accordance with the standards of reasonably competent medical man at the time. There
may be more than one proper standards, and the accordance with either one, then he is not
negligent. While in Elizabeth Choo v Government of Malaysia & Anor [1970], Raja Azlan
Shah I stated that a professional will not be deemed to be negligent if he has taken steps that
would normally be taken by others who are in the same position. The Bolam test also applicable
in other professions where in Greaves & Co v Baynham Meikle [1975], it was held that a
professional man- be it a medical man, a lawyer, an accountant, an architect or an engineer,
must use reasonable care and skill in the course of his employment. Reasonable care and skill
is to be determined throught the Bolam test, where the defendant professional’s conduct will
be compared with that of reasonably competent men exercising the particular art.
However, in Roger v Whitakers [1972], the Court rejected the principle in Bolam as the non-
disclose of risk and the provision of advice and information is very important. The court further
asserted that it is for the court to adjudicate on what is appropriate standard of care after giving
weight to paramount consideration that a person is entitled to make his own decision about life.
Moreover, the Federal Court in Foo Fio Na v Dr Soo Fook Mun [2007] held that the
applicable test in determining the standard of care of a medical practitioner in relation to
disclosure of information and risks is not the Bolam test. Instead the medical practitioner has a
duty to warn a mentally competent patient of risks of a proposed procedure so as to enable the
patient to decide whether to proceed or decline it accordingly.
In Bolitho v City and Hackney Health Authority [1997], the Court held that the professional
opinion serves as a guidance to courts as to what constitutes acceptable professional practice,
but its reasonableness may be questioned by the courts.
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3.4 Defendant who has less expertise in particular field.
In Well v Cooper [1958] (repair door), the Court stated that the unskilled people should
not be considered to have the characteristics of a skilled or expert when doing something. While
in Ng Peng Hong v Ng Shaw Chino & Anor, the standard to be applied not that of the perfect
driver but a driver using ordinary care & skill.
3.5 Incapacity or infirmity
In Roberts v Ramsbottom [1980], the defendant was completely unaware that he had
suffered a stroke before getting into his car. He then collided with and injured the plaintiff. The
court held him liable despite his being unaware of his impaired consciousness at the time of
the accident.
However, in Mansfield v Weetabix Ltd [1998], the defendant who was driving, went
into a hypoglycaemic state induced by a malignancy. He then got into collision with plaintiff.
CoA held that since D was not and could not reasonably have been aware of his condition, this
disability must be taken into account in determining whether he had met the objective standard
of care.
3.6 Child defendant
In Mullin v Richards [1998], CoA held a 15 years old schoolgirl not liable when she
was fencing with her friend with plastic rulers and one of the broke and entered another girl’s
eye. The girl became blind, but defendant is not liable as the court stated that 15-year-old,
unlike an adult, could not be expected to foresee the risk of her behaviour.
3.7 Concept of risk
Lord Dunedin in Fardon v Harcourt Rivington [1932] stated that if the possibility of
the danger emerging is reasonably apparent then to take no precautions is negligence, but if the
possibility of danger emerging is only a mere possibility would never occur to the mind of a
reasonable man, then there is no negligence in not having taken extraordinary precautions.
3.7.1 Magnitude of risk
In Bolton v Stone [1951] (cricket ball-rarely-rather remote injury), HOL held that
although a reasonable man may foresee many risks, life would be inconvenient if precautionary
measures are to be taken for all foreseeable risks. A person must only take reasonable steps
against risk that may materialise.
3.7.2 Cost of precautions to the defendant
In Latimer v AEC [1953] (factory-flood-slippery-P slipped and fell-shut factory-HOL
not enuf), the principle is that if the expenditure incurred to overcome the risk is too high and
the probability of such risks will be small, there is no breach of duty if the defendant does not
take cautious measures to counter such risks
3.7.3 Importance of the object to be attained
In Watt v Hertfordshire County Council [1954] (fireman-jack fell- hurt P-employer
not liable), if the object involves the saving of another’s life, the existence of a high risk may
still absolve the defendant’s possible liability.
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3.7.4 General and approved practice
In General Cleaning Contractors v Christmas (clean window-fell), the principle which
emerges is that even if an act is a general and common practice, liability will still be imposed
if the act is dangerous and gives rise to a considerable degree of risk of injury.
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Element 3: Damage
Overview:
1. Causation in Fact
2. Causation in Law
3. Novus Actus Interveniens
Causation in Fact
Overview:
1. The “but for” test
2. Limitation for the test – Multiple causes (Concurrent or successive)
The “But for” Test
Whether the damage would not have occurred but for the breach of duty?
Barnett v Chelsea and Kensington Hospital Management Committee
o The P’s husband attended the D hospital and complained of vomiting.
o The doctor refused to examine him and told him to see his own doctor in the
morning if he still felt unwell.
o 4 hours later, he died of arsenic poisoning.
o The D owed P duty of care and had breached by failing to examine him.
o They were held not liable as the evidence established that, even if he had been
examined.
o He would have died before diagnosis and treatment could have been carried
out.
o As the deceased would have died regardless of the breach of duty, the breach
was not the cause of his death.
McGhee v National Coal Board
o P worked in D’s brick factory which is very hot and dusty.
o He had to cycle home unwashed as no washing facilities were provided at
work.
o P committed dermatitis, a skin disease.
o He argues that if the D had provided washing facilities, he would not caught
the disease.
o House of Lord:
o P could succeed on the ground that D had materially increased the risk of P
contracting the disease.
o D had increased the risk of the particular damage and the damage occurred.
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Wilsher v Essex Area Health Authority
o Rejected the McGhee case.
o A junior doctor in a special care baby unit negligently caused a premature
baby receiving too much oxygen.
o The baby suffered RLF and the baby’s eyes resulted in blindness.
o The excessive oxygen was a possible cause of the blindness but there were
other possible causes that will cause the blindness.
o The casual mechanism linking to blindness was unknown.
o House of Lords:
o The burden of proof on P to prove that D’s breach of duty causes his injury.
o The baby’s blindness could have caused by the any one of the possibilities or
combination of them, it was not proved that the blindness was caused by the
excessive of oxygen, P failed to discharge the burden of proof required by
him.
Dr. KS Sivananthan v The Government of Malaysia & Anor
o Followed Wilsher
o P was injured in a road accident and sought treatment first at Hospital A and B
o At hospital A, a plaster of Paris was applied to his wounded leg
o Dissatisfied with the care he received there, he discharged himself and sought
treatment at Hospital B
o The attending dr spilt the POP and performed an operative procedure on the
leg.
o A week later the plaintiff received further treatment from the same dr.
o 9 months later the leg had to be amputated due to ischaemia.
o Judgment:
o P’s leg was at a severe condition when he admitted to hospital B, the attending
doctor could not be said to be negligent in delaying treatment at that stage.
o Although doctor could have opted to treat the P by other alternative treatment,
his method of treatment was acceptable as a recognized choice of treatment in
the circumstances. (satisfying the required standard of care)
o Doctor at hospital B could not concluded as being the causative factor of P’
amputation.
Limitation for the test – Multiple causes (Concurrent or successive)
Performance Cars v Abraham
o The 2nd D negligently collided with P’s car.
o The car had been previously been in collision caused by the negligent of the
first D.
o The 2nd D was not liable for the cost of re-spray, as at the time of accident the
car already in need of one
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Jobling v Associated Dairies Ltd
o House of Lords
o If there are two successive torts, the first tortfeasor’s liability is unaffected by
the second one.
Causation in Law
Overview:
1. Direct Consequences Test
2. Reasonable Foresight Test
- Type of Damage must be foreseeable
-Extend of Damage is irrelevant (eggshell skull rules)
-The Method by which the damage occurs is irrelevant
Direct Consequences Test
Re Polemis and Furness, Withy & Co
o Charters of a ship loaded it with benzene.
o The benzene leaked and this caused the ship’s hold to fill with vapor.
o A stevedore negligently dropped a wooden plank into the hold of the ship.
o This caused a spark, which ignites the vapor, causing an explosion which
destroyed the ship.
o COA held that the stevedore’s employee were liable for the stevedore’s
negligent and that the damage was not too remote.
Test for remoteness:
Whether the damage was a direct consequence of the breach of duty.
* Some damage was foreseeable as the result of the plank being dropped. Duty
was therefore established.
* The explosion was a direct consequence of the breach of duty; therefore the
damage was not too remote.
Reasonable Foresight Test
Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co (The Wagon Mound
No.1)
o D negligently discharged fuel oil into Sydney Harbour. The oil spread to P’s
wharf where welding was taking place.
o There was no danger of the oil catching fire on water and continue welding.
o 2 days later the oil caught fire and the wharf and ships being repaired there
were damaged by the fire.
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o The trial judge held that it was sufficiently to establish duty and as the fire
damage was a direct consequence of the breach of duty, D were also liable for
the fire damage.
o The Privy Council:
o D was not liable for the fire damage.
Reasonable Foresight Test:
1. Damage must be foreseeable as a consequence of the D’s conduct.
2. The type of damage must be foreseeable
* It was foreseeable that the spilling of oil will cause some damage to the P,
but not a fire damage.
The Wagon test is the accepted test in Malaysia.
Jaswant singh v Centrral Electricity Board & Anor
o 5 buffaloes and a dog belong to P died as a result of electrocuted by a
telephone wire belonging to D2, GOM.
o The wire was exposed due to prior accident and was lying on the ground.
o P claimed D for negligent.
o Judgment:
o D owed a duty of care to P as the P was a neighbor to D.
o The electricity was carried overhead by wires or cables great care must be
taken.
o The D had breached their duty in allowing wire carrying electricity exposed
for a long time.
o The damage was not so remote for it is reasonably foreseeable that death or
serious injury will happen if the wire carrying electricity was exposed.
Relevant Consideration associated with the reasonable foresight test:
1. The type of damage must be foreseeable
Tremain v Pike
o P worked in D’s factory which had many rats.
o P contracted Weil’s disease.
o Judgment:
o The illness which was caused by contact with rat urine was extraordinary
o The illness that was foreseeable were rat-bites and food poisoning and not
Weil’s disease.
o D was not liable as the damage caused was different with kinds of foreseeable.
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2. The extent of damage is irrelevant (Egg Shell Skull Rule)
Smith v Leech Brain & Co
o P suffered a burn on his lips as a result of D’s negligence.
o The burn caused the P to cause cancer, as the tissue of his lips were in a pre-
malignant state. He died three years after the accident.
o D argued that they were not responsible for his death, as it could not have been
foreseen.
o The court stated that D were held liable as the question for remoteness was
whether the D could have foreseen a burn, not whether they could foresee
cancer.
3. The method by which the damage occurs is irrelevant.
Hughes v Lord Advocate
o The D’s employee erected a tent over a manhole and surrounded the tent with
paraffin oil lamps.
o The hole was left unguarded while the man were on a tea break.
o 10 years old P dropped one of the paraffin oil lamps into the hole and the
lamps exploded due to an unusual combination of circumstances.
o P was badly burnt.
o D argued that they were not liable, as the way in which the damage came
about is unforeseeable and the damage was therefore too remote.
o The argument was rejected by House of Lords
o Their Lordships asked what kind of damage was foreseeable as the result of
breach of duty.
o The answer is burn.
o What kind of damage had occurred?
o The answer is burns.
o The damage was therefore not too remote.
o The fact that the burns had come about in an unforeseeable way did not render
the damage too remote.
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Novus Actus Interveniens
Some other factual causes, intervening after the breach, maybe regarded as the sole
cause of some, or all of the claimant’s damage.
The event breaks the chain of causation between the D and the claimant.
Any damage happened after the novus actus interveniens will be regarded as being
too remote.
Forms of novus actus interveiens:
1. A natural event
2. Intervening Act of a third party
3. Act of the claimant
A natural event:
Carslogie Steamship Co v Royal Norwegian Government
o P’s ship was damaged in a collision caused by D’s negligent.
o After temporary repairs the ship set out for the United States on a voyage.
o The voyage would not have made if the collision did not occur
o The ship suffered damage due to bad weather condition.
o The storm damage was not treated as a consequence of the collision but as an
intervening event in the course of an ordinary voyage.
o It is important that the decision of the ship’s owner to put to the sea was
voluntary.
Intervening act of a third parties:
Standbie v Troman
o D was employed as a decorator in P’s house.
o He was told to lock the door if he went out.
o D failed to do this and a thief (a third party) entered the house and stole
property belonging to P.
o The D was held liable as the thief’s act did not break the chain of causation.
o The entrance of thief was a consequence of D’s negligent.
Claimant’s Act
Test applied: whether the claimant was acting reasonably in the circumstances
Weiland v Cyril Lord Carpets Ltd
o P was unable to adjust her spectacles as a result of a neck injury inflicted by
D’s negligent.
o She was worried about catching public transport in such condition and went to
her son’s office to ask him to drive her home.
o On the way to office, she fell down and was injured.
o It was held that P acted reasonably and the D was liable for her injuries.
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Defences to Negligent
1. Contributory Negligence
2. Volenti non fit injuria
Contributory Negligence
Overview:
1. Current Law
2. Elements of Contributory Negligent
3. Contributory Negligence by children
4. The Dilemma Principles
Butterfield v Forrester
o P rode his horse violently and collided with a pole that D negligently left on
the road.
o It was held that if P had used ordinarily care then the wont have happened.
o P was therefore guilty of negligent and could recover nothing.
The Current Law
Section 12 (1) of Civil Law Act 1956
o When a person suffered a damage as a result of the combination of his own
fault and other person’s fault, a claim for the damage shall not be defeated but
shall be reduced to such content that the Court thinks just and reasonable
having regards the claimant’s share in the responsibility of the damage.
Elements of Contributory Negligence
1. P failed to exercise reasonable care for his own safety.
2. The failure contributed to the damage.
3. The damage is foreseeable as the result of the failure.
Jones v Livox Quarries Ltd
o The claimant was riding on the back of a traxcavator (a slow moving vehicle)
at work, contrary to the company’s regulations.
o A dumper truck crashed into the back of it seriously injured the claimant.
o He sued his employer, claiming that the driver of the dumper truck was
negligent in failing to keep a proper look out.
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o In response, D argued that the claimant had contributed to his own injuries by
his own carelessness in riding at the back of the truck.
o Judgment:
o Lord Denning:
o 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 be hurt
himself, and in his reckonings he must take into account the possibility of
others being carelessness.
Contributory Negligent by Children
Gough v Thorne
o P was aged 13. A lorry driver signaled to her to cross the road. She did so
without stopping to see whether the road is clear. She was run over by a car
travelling at an excessive speed and overtaking at the wrong side.
o It was held that P is not guilty of contributory negligence.
o Lord Denning:
o We couldn’t expect a young child to take precautions on his or her own safety.
o An older child maybe but it depends on the circumstances.
The Dilemma Principle
Jones v Boyce
o P was a passenger at D’s coach.
o A coupling rein broke loose and thinking that the coach was about to crash, P
jumped put and broke his leg.
o The coach did in fact crash and if he had remained on it he would have
suffered no harm.
o As his action were those of a prudent and reasonable would do at the situation,
P was held that there is no contributory negligent.
Choy Nyee Ngah & Anor v Syarikat Beruntong S/B
o If the act at the moment is reasonable in order to avoid a greater risk, the
claimant would held to have no contributory negligent.
