NEGLIGENCE - BREACH OF THE DUTY AND DAMAGE

BREACH OF THE DUTY

o   Plaintiff must show not only that there is a duty to take care - but that the duty have been breached i.e. the defendant does something below the minimum standard of care required

o   Standard of care to determine breach or not - that of a reasonable man i.e. would a reasonable man have acted as the defendant has done if the reasonable man was faced with the same circumstances

o   Must also consider the magnitude of the risk and practicality of precaution

GOVT OF MALAYSIA & ORS v JUMAT BIN MAHMUD & ORS [1977] 2 MLJ 103

The plaintiff an eleven years old student, was injured in his right eye by another student in his class, who was noted for his mischievous antics. The trial judge found as fact that the stabbing of the plaintiff’s eye was not deliberate, nevertheless he found the defendants liable. On appeal by the defendants to the federal court, the following issues were raised:

a)     was the risk or injury foreseeable

b)    if so, had the defendants taken reasonable steps to protect the plaintiff (prevent the injury) ?

c)     was the injury “casualty related” to the teacher’s negligence (lack of supervise)?

Federal Court held that the appeal allowed.

Raja Azlan Shah J held that the teacher’s duty of care :

MOHD RAIHAN & ANOR v GOVT OF MALAYSIA & ORS [1981] 2 MLJ 27

The first appellant was struck on his head by a changkul (hoe) wielded by a fellow pupil in the course of practical gardening class. The appellant sued for damages, alleging that the respondents had failed to give instructions on the proper use of the garden tools used by the pupil.

The trial judge Ajaib Singh J held that the respondents were not liable because he found, as fact, that proper instructions had been given, and that proper precaution to ensure the pupil’s safety had also been taken.

On appeal to the Federal Court , the court held, distinguishing Jumaat’s case and allowing the appeal, that the respondent had been negligent in not taking all reasonable and proper steps to prevent injury, that the teacher concerned had failed to check the condition of garden tools used and that the school authorities had failed to provide a safe system of holding the garden class.

CAUSATION AND DAMAGE

n  There must be some form of damage or injury as a result of the breach - whether physical or to property

n  Exception - pure economic loss

n  The but for test - must show that the injury is the result of the breach by the defendant – Barnett v. Chelsea & Kensington Hospital

BERNETT v CHELSEA & KESINGTON HOSPITAL [1969] 1 QB 428

The plaintiff’s husband had gone to the casualty department of the hospital for treatment. The husband had been vomiting. The doctor who was on duty refused to examine him. The husband was asked to go home and consult his own doctor the following morning. The husband was in fact suffering from arsenic poisoning and he died several hours later.

The plaintiff sued the hospital, alleging that they had been negligent in not attending to her husband and that as a result of their negligence her husband had died.

The court held that the defendants were not liable to the plaintiff because the husband’s death was not caused by their negligence. Even if the husband had been treated by the defendants, he would still have died from poisoning. Consequently, the doctor’s negligence was not the cause of the defendant’s death.

n  The damage or the injury was of the type which the law allows recovery that is - not too remote - must be foreseeable although the extent and method of the damage is irrelevant

n  Defendant too must accept the plaintiff as he is – the egg-skull rule

n  Sivakumaran v. Yu Pan – P’s husband committed suicide after accident

n  Vacwell Engineering case – bigger explosion than anticipated

VACWELL ENGINEERING v BDH CHEMICALS [1971] 1 QB 88

The defendant had supplied a chemical to the plaintiff but had carelessly failed to give a warning that it was liable to explode if it comes into contract with water. A scientist working for the plaintiff had placed the consignment of chemical in the sink and a violent explosion had occurred, causing extensive damage.

The court held that although the extent of the damage was not foreseeable, the defendant was held liable because the kind of damage was foreseeable.

n  Rouse v. Squires compared with Knightley v. Johns

ROUSE v SQUIRES [1973] 1 QB 889

The defendant X, owing to his negligent driving , had caused his lorry to obstruct a motorway. Subsequently, the second defendant Y, who was driving too fast, skidded in trying to avoid the obstruction and killed a bystander. Both X and Y were held to have caused his death.

KNIGHTLY v JONES [1982] 1 WLR 349

D1’s negligent driving caused the blocking of a busy tunnel. After a good deal of confusion as to the location of the accident, D2, a police inspector, took charge but did not immediately close the tunnel as he should have done. He then ordered P, a constable, to drive back against the traffic for that purpose. While doing so P was struck and injured by D3, who was driving too fast into the tunnel.

Ct of Appeal set aside judgment for P against D1. However D2 and D3 were liable to P.