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.
NEGLIGENCE - BREACH OF THE DUTY AND DAMAGE
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