LLB Year 1

Module: Tort II Law Tutorials

Year: 2019 (Semester 2)

Lecturer: Dr. Faizah Nazri Abd

Rahman

For use in the Faculty of Law, University of Malaya only

NEGLIGENCE

A. DUTY OF CARE

Essential pre-tutorial reading:

Donoghue v Stevenson [1932] AC 562

Dorset Yacht v Home Office [1970] AC 1004
Anns v Merton London Borough Council [1978] AC 728
Caparo Industries v Dickman [1990] 2 AC 605
Hill v Chief Constable of West Yorkshire [1989] AC 53
Marc Rich & Co Ag v Bishop Rock Marine Co Ltd (The Nicholas H) [1996] AC 211
Stovin v Wise [1996] AC 923

Additional reading:

Yuen Kun-Yeu v A-G for Hong Kong [1988] AC 175

Smith v Littlewoods [1987] AC 241 Bourhill v
Young [1943] AC 92
Governors of the Peabody Donation Fund v Sir Lindsay Parkinson [1984] 3 All ER 529

Please prepare the following for discussion:

1. Before Donoghue v Stevenson legal liability for carelessness was generally confined to clear-
cut situations, such as if the activity was dangerous in themselves (eg defendant is dealing with a
loaded gun near the plaintiff). In Donoghue v Stevenson this restriction was lifted.

(a) Discuss the issues arising in the case of Donoghue v Stevenson. What is the ‘neighbour
principle’? What is a manufacturer’s duty, according to the rule in Donoghue v Stevenson?

In the case of Donoghue v Stevenson, the Df who is a ginger-beer manufacturer, had sold ginger-beer
to a retailer. A bought a bottle and entertained the Pf. When A refilled the glass, along with he
ginger-beer camethe decomposed remains of a snail. The Pf suffered shock and was severely ill as
consequence. The Pf claimed that the manufacturer had a duty to prevent snails from entering into his
ginger-beer bottles and further that he had a duty to ensure all empty bottles were carefully inspected.
The issue in this case was wheher the Df owed such a duty to Pf (a 3rd party, who doesn’t have
contractual relationship). The HoL hld a test to determine whether the plaintiff was the neighbour of
the Df.

The neighbour principle refers to the persons who are so closely and directly affected by one’s act. It
is not necessary to have ppre-existing contractual relationship or to be close in any physcial sense.
Thus, it also establishes a duty which is owed by the manufacturer to the consumer. The
manufacturers must take reasonable care to avoid any acts or omissions which they can reasonably
foresee would be likely to injure the consumers.
(b) Discuss the neighbour principle and its applications by thinking of your own examples (check
with your tutor if your examples are within or outside the scope of the neighbour principle)

The neighbour principle is an objective test in the sense that if a reasonable man, who is in the
same circumstances as the Df, can foresee that his conduct will adversely affect the Pf, the Df
would owe the Pf a duty of care and vice versa.

Example: The supermarket should ensure all the items selling are not expired.
Highway company should ensure the road conditions is safe for driving.

(c) What is the impact of this case on the issue of determining duty (or liability) in negligence?

It created a new category of duty, owed by the manufacturer to the consumer. Thus, it is not
necessary that both of the parties need to be close in physical sense. Once a reasonable man can
foresee that the Pf will be affected by the Df’s act or omission, a duty would establish.

Secondly, the court had taken into account new technology, which was mass production, whereas
before this case, the court would insist on a pre-existing contractual relationship between the
parties befre a duty of care would airse, this was no longer the case. The decision signified that
the categores of negliencea are not closed or limited.

2.(a) How does the duty test in Caparo Industries plc v Dickman differ from the test
in Donoghue v Stevenson? Why did the courts abandon the two-stage test?

The test in Donoghue v Stevenson is based on the neighbour principle test. Meaning
that if there is proximity ad the harm or damage is foreseeable, a duty of care
established.

In the Carparo test, it is not a must for the Pf to prove that his situation falls squarely
into any of the recognised categoies to establish duty. Instead, the Pf needs to
establish that a duty of care arises in his situation becaue it accords with the existing
policy and decisios in analogous case. It has different a

(b) Is the three-stage test an improvement? Identify weaknesses and strengths of the three
part test.
3. Asiya was driving home on the Bawang Merah Bawang Putih (BMBP) highway a few days
ago. This is her normal route home from work for the past two years. She works as a grooming
consultant with a private firm in Kuala Lumpur. On that particular afternoon, two of BMBP
workers, Siska and Rika were doing some repair works on the road. They had closed part of a
lane on the highway and had placed red cones near the closure and they had also informed the
road-users about the closure by putting a message up on the electronic message board (EMB).
Rika had arranged the red cones to form a diagonal line which closed the lane in a gradual
manner. Siska had forgotten to close the circuit wiring after setting the EMB.

On that particular day, the rain had made the roads wet. Upon approaching the EMB, water from
the wheels of Asiya’s car splashed onto the EMB and conducted electricity to her car causing
her car to come to an abrupt halt. The electronic system in Asiya’s Mercedes was short-circuited
resulting in costs of repair totaling RM 4000, a sum much higher than what would have been
incurred if the car was any of the Japanese-manufactured cars (between RM 600-RM 2500).

Asiya was taken to the hospital and her pelvis was found to be located due to the very sudden
halt. This caused her to have difficulty in sitting up. Dr Ferdi conducted an operation on Asiya to
correct her pelvis. After the operation, Asiya discovered that she could not get up at all because
her pelvis was now permanently deformed. Dr Ferdi did not inform Asiya that there was a risk
of this occurring as a result of the surgery. However, many medical practitioners are of the view
that because the risk of permanent deformity occurring was only 5%, informing the patient was
not critical and would only frighten the patient unnecessarily.

Asiya was also hoping to do some part-time modeling for a giant cosmetics industry and she
was already short-listed for the final interview when the accident occurred. However when the
company found out about her physical impairment, they called her up to say she has been struck
off the shortlist.

(a) Identify Asiya’s losses.

Asiya suffered pure exonomic loss where she has to pay a cost of repair totalling RM4000 due to
the short-circuited of the electronic system of her Mercedes. Besides, Asiya also fail to get the
chance to work as a part-time modelling for a giant cosmetics industr due to her physical
impairment after the accident and operation.

(b) Discuss the issues arising in each type of loss.

(i) Whether the loss suffered by Asiya to repair her car was a direct result of Siska’s
negligence.
(ii) Whether Asiya’s failure to get the job was a consequence of the doctor’s negligence

(c) How do you determine who is at fault for each loss?

Based on the case of Spartan Steel & Alloy, it was held that pure economic loss
independent of physical damage was irrecoverable. However, in Junior Books Ltd v
Vetichi Co Ltd, it was hheld that a relationship of proximity between the parties was
sufficient for the recoverbility of pure economic loss. In the preset case, the short-
 circuited of Asiya’s car was caused by Siska’s negligence of forgetting to close the circuit
wiring after setting the EMB. Since it was a direct consequence caused by Siska’
negligence act, it is most likely Siska’s fault for the lose suffered by Asiya to repair her
car.

For the second loss which is Asiya failed to get a new job because of her physical
impairment, it was most likely due to doctor’s negligence. In Hedley Byrne & Co v Hller
& Partners Ltd, the Pf claimed that the Df had been negligent in providing the advice as
the Df owd a duty of care to them. It was only arise if there is special relationship
between the Pf and the Df such a Pf is the party who seeking information and trusting the
Df. In the current situation, the doctor was negligent is giving advice to Asiya that there
is 5% risk of occuring permanent deformity.

(d) How does the law decide on the extent of the defendant’s duty of care towards Asiya?
(Be specific about which defendant you are referring to)

Based on the case of Junior Books Ltd v Veitchi Co Ltd, it was held that a relationship of
proximity between the partis was sufficient for the recverability of pure economic loss. In
the present case, the relationship between the parties were workers who repairing the road
and the road-user who driving on the road. It is clear that the negligence act caused by the
workers would give a direct effect towards the road-user. Thus, thehre was a relationship
of proximity betwee Asiya (road-user) and workers (repai road) thus it was sufficient for
Asiya to recover the pure economic loss.

In Hedly Byrne & Co v Heller & Partners Ltd, it was held that a duty of care wuld only
arise if there is special relationship between the Pf and the Df such as Pf is the party who
seeking information and trusting the Df. In this case, there is a relationship of doctor and
patient between Dr. Fredi and Asiya. Therefore, it is clear to conclude that Asiya would
rely on avice give by Dr. Fredi. Dr. Fredi has the duty of care to tell Asiya abot the risk
facing by her which was it might suffer from permanent deformity.

(e) Now that you have completed discussions within the existing legal principle, you are
allowed to ‘step out’ of them. Consider whether the solution you have arrived at is
fair and just. How would you go about determining this? What standards do you use?

(You might need to revisit this question as you deal with other issues in the tort of negligence
such as breach and causation)

My solution in the 1st issue where is betweem Siska and Asiya was fair and just as
Siska is the worker who ws responsible to make sure the process of repair is completely done
and safety towards the road-user. Thus, it is certainly that Siska had a duty of care towards
Asiya and was responsible to recover the loss suffered by Asiya.

For the 2nd issue, there might not be the fault of Dr. Fred at all on the point that he
did not tell Asiya about thr risk of permenant deformity. This is because many medical
practitioners are of the view that because the risk of permenant deformity occurring was only
5%, informing the patient was not critical and would only frighten the patient unnecessarily.
Dr. Fredi failed to tell Asiya about the risk was reasonable as he considered that the risk was
very low and he felt that it is unnecessary to frighten the patient at such a low risk.
4. Read these cases:

• Pendaftar dan Pemeriksa Kereta Motor, Melaka v KS South Motor Sdn Bhd [2000] 2
MLJ 540

• Uniphone v Chin Boon Liat [1998] 6 MLJ 441

• MPAJ v Stephen Phoa Cheng Loon [2006] 2 MLJ 389

(a) Have a general consensus first and foremost, on the gist of the facts in these cases.

(b) In Pendaftar, identify the elements of foreseeability and proximity between the parties,
as held by the court.

(c) Applying the “duty test” explain the court’s finding on whether imposing a duty on the
public authority was fair or unfair.

(d) In MPAJ the local authority as the public authority was held not liable. What was the issue
surrounding foreseeability and proximity in these two cases? Can you reconcile these two
decisions? (Spend some time analysing the similarities and differences between these cases)

(e) Discuss the grounds of the Federal Court decision in MPAJ. What are the significant points
which formed the basis of the decision?

(f) Referring to Uniphone, what is different about the issues arising in this case? Is there a
moral element in the judgement – and what would this be?