LAW OF TORTS:
Negligence
By: Haizam Mohd, Property Law
1. Definition
The definition of negligence is derived in Lochgelly Iron and Coal Co. V. Mc
Mullan that negligence is the careless conduct. It connotes the complex concept of
duty, breach of duty and damage, thereby suffered by the person to whom the duty
was owing.
2. Three (3) Elements of Negligence
From the case Lochgelly Iron and Coal Co. v Mc Mullan, three elements must
be proven for the plaintiff to be successful in negligence suit. The elements are as
follows:
a) Duty of care (also called as Neighbour Principle)
Duty of care is defined from the case of Donoghue v. Stevenson, “There
must be, and is some general conception of relations giving rise to a duty of
care...”. The rule is a duty must be arise out of some “relation” between the
parties; the duty of care is also known as the “neighbour principle.”
The examples of neighbour principle are relationship between a
manufacturer and consumer, doctor and patient, mechanic and client, teacher
and student, police and offender et cetera.
Relevant cases:
Donoghue v. Stevenson;
Issue: Duty of care, the neighbour principle.
Facts: Mrs. Donoghue claimed that a friend purchased a bottle of ginger-
beer for her at a cafe. The bottle was of dark opaque glass. The owner of
the cafe took the metal cap off the bottle and poured some of the contents
into a tumbler. When her friend refilled her glass, decomposed remains of
a snail floated. She suffered shock and severe gastroenteritis (bacterial
toxins that caused vomiting and diarrhoea).
Held: The manufacturer owed a duty of care to their consumers or
purchasers who suffered personal injury from the goods based on the
neighbour principle.
Grant v. Australian Knitting Mills
Issue: Duty of care, the neighbour principle
Facts: Grant complained of dermatitis resulting from the use of
underpants manufactured by Australian Knitting Mills which contained
excess sulphites. However, Australian Knitting Mills produced evidence
that they had manufactured 4,737,600 pairs of underpants with not even a
complaint.
Held: The manufacturer still had to pay because the pants were defective
when it left the factory.
Dorset Yacht and Co. Ltd. v. Home Office
Issue: Duty of care, the neighbour principle
Facts: Seven Borstal boys ran away when 3 officials-in-charge of them
were in bed. The boys boarded one of the many vessels in the harbour,
started it and later collided with the plaintiff’s yacht.
Held: Home Office were liable to strangers for not protecting them from
the ravages of the Borstal boys. A close direct relationship existed
between the office and the owners of the yacht. The officers should take
reasonable care to prevent the boys from interfering with yachts and
damaging them.
b) Breach of duty
Breach of duty of care occurs when the defendant does something that is
considered below the minimum of standard of care required of a reasonable man.
Re: Blyth v. Birmingham Waterworks Co. Breach of duty of care is the
omission to do something which a reasonable man would not do; The
Reasonable Man Test.
i) An ordinary defendant
In Glasgow Corp v. Muir, Muir spilled hot tea on some children as he
brought a big container of tea through the corridor full of children.The court held
that, Muir was not being reasonable as the damage can be avoided.
ii) A professional defendant
Refer to case Kow Nan Seng v. Nagamah. Nagamah, the doctor had
applied a tight plaster on one of Kow’s leg and it was painful to Kow. Nagamah
ignored Kow complaint. In some time, the leg had to be amputated due to blood
circulation problem. The court held that, to ignore the patient’s complaint of pain
was not reasonable. The doctor should attend reasonably thus, unliquidated
damages was compensated to Kow Nan Seng.
c) Damage
The causation of damage must be tested with sine qua non or known as the
“But For” test. But For test is a test in law linking the tort and damages which are
stated as; “but for” the defendant’s negligence, the plaintiff would not have been
injured.
Refer to case Scott v Shepherd. Shepherd threw a lighted squib into a
market, it exploded and caused the plaintiff to lose an eye. The court held that,
the damage suffered was a sine qua non.
In case Barnett v. Chealsea & Kensington Hospital, three (3) security
guards went to the hospital when they started vomiting after drinking some tea.
The doctor told them to go home and rest. Later, the plaintiff’s husband died of
arsenic poisoning. The wife sued the hospital for being negligence. It was held
that even with the hospital’s care, her husband could not be saved as the poison
had damaged her husband’s internal organs.
3. Defences
a) Volenti Non Fit Injuria
The plaintiff has voluntarily assumed the risk of injury generally. Refer to case
Nettleship v Weston, Nettleship was teaching Weston how to drive, an accident
occurred and Nettleship suffered broken knee-cap. The court held that, the damage
was reasonable as the plaintiff was aware of the risk of road accident drove by a
trainee. It was a calculated risk.
b) Mechanical Defects
If the damage is occurred after a proper inspection and maintenance of the
vehicle, the damage was considered as unforeseeable therefore not a negligence.
Refer to case Che Jah bte Mohamad Ariff v C. C. Scott (1952). The plaintiff
was a passenger in the defendant’s car that crashed into a stationary car. She
suffered injuries as a result of the accident. The defendant gave evidence that ten
(10) days prior to the accident he had sent the car for service with particular attention
to the brake. The court held that, the defect of the brakes was latent and as the
defendant had employed skilled labour, no negligence could be attributed to him.
c) Contributory Negligence
It is a contributory negligence if the damage was caused by the ignorance of the
plaintiff to put himself out of danger. The plaintiff is required to act reasonably to avoid
damage.
Tutorial
1. With one (1) relevant court case, briefly explain but for test in negligence.
(5 marks)
2. Briefly explain the “neighbour principle” in the decided court case of Donoghue v
Stevenson.
(8 marks)
3. In relation to law of torts, briefly explain “The Reasonable Man Test” in professional
negligence.
(7 marks)
References
Nuraisyah Chua Abdullah, Questions and Answers on Malaysian courts,
statutes, cases, contract, tort, and criminal law, 7th Edition, 2015.
Norchaya Talib, Torts in Malaysia, 2nd Edition, 2003.
Rogers, W.V.H., Winfield and Jolowicz on Tort, 16th Edition, 2002.
Lee Mei Pheng, General Principles of Malaysian Law, 4th Edition, 2001.
