LAW Negligence PDF

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Summary

Jojo, a lorry driver, was delivering building construction materials to Bina Sdn Bhd, aconstruction company which was erecting a high-rise residential building in Shah Alam.Suddenly, a brick fell from a crane operated by one of the employees of Bina Sdn Bhd, shatteringthe windscreen on Jojo’s side o...

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Jojo, a lorry driver, was delivering building construction materials to Bina Sdn Bhd, a construction company which was erecting a high-rise residential building in Shah Alam. Suddenly, a brick fell from a crane operated by one of the employees of Bina Sdn Bhd, shattering the windscreen on Jojo’s side of the lorry, resulting in serious injuries to Jojo’s face and eyes. An investigation carried out to determine the cause of the incident revealed that the cords used to secure the bricks to the crane were old and were not regularly inspected for wear and tear.

The issue is whether Jojo can take a legal action against the Bina Sdn Bhd under the tort of negligence. The principles of law for negligence are: Negligence can be defined as the breach of a legal duty to take care which result in damage, to undesired by the defendant to the plaintiff. The elements of negligence that need to be fulfilled are: a duty of care owed by the defendant to the plaintiff, breach of duty of care by the defendant and consequential damage to the plaintiff. The first element is duty of care. Duty of care can be defined as an obligation recognized by law to avoid conduct fraught with unreasonable risk of danger to others. Defendant must owe duty of care to the plaintiff. Duty must arise out of some relation or some proximity between the parties: driver and road user, manufacturer and consumer, builder and buyer. The primary test or principle used to determine the existence of a duty of care is the famous neighbour principle. This principle was laid down in the land mark case of Donoghue v Stevenson. The court held that the defendant being the manufacturers of the ginger beer owed a duty of care to the plaintiff, as the ultimate consumer or purchaser of the drink. Neighbour principle is an objective test: would a reasonable man, who is in the same circumstances as the defendant, foresee that his conduct will adversely affect the plaintiff. If the answer is no, the plaintiff is not the neighbour, and if the answer is yes the plaintiff is a neighbour of the defendant. The second element of negligence is breach of duty of care by the defendant. Breach occurs when the defendant does something that is perceived to be below the minimum standard of care required of him, which is measured through the standard of a reasonable man. A standard of the reasonable man can be classified as an ordinary defendant and professional defendant. In the case of the Nettleship v Weston, the court held that the standard of care required of a learner driver was the same as other experience drivers.

The third element of negligence is consequential damage to the plaintiff . The plaintiff needs to prove is that damage was caused by the defendant’s breach of duty. Two issues need to be addressed: causation in fact and causation in law. The causation in fact is whether the defendant’s conduct has in fact caused the damage suffered by the plaintiff. The test used is but for test. In the case Barnett v Chelsea Kensington, the court held that the doctor had breached his duty of care for not treating the patient, but that breach did not cause the plaintiff’s husband’s death as evidence showed that the patient would still have died even if the doctor had treated him. In causation in law or remoteness of damage is a defendant will only be liable if it is reasonable foreseeable that his conduct will result in some damage to the plaintiff. There are two test of remoteness: Direct consequence test and reasonable foresight test. The reasonable foresight test involves two principles such as damage must be foreseeable as a consequence of the defendant’s conduct and the type of damage must be foreseeable. By applying the first element duty of care in the Jojo case the Bina Sdn Bhd had a duty of care to Jojo to ensure their employees be carefull whenever operated the crane to avoid a brick fell. By applying the second element on the fact the employees of Bina Sdn Bhd has breach the duty of care to Jojo because a brick fell from a crane, shattering the windscreen on Jojo’s side of the lorry. By applying the element of causation of damage on the case of Jojo on the facts is resulting in serious to Jojo’s face and eyes. In conclusion, J ojo can take a legal action against the Bina Sdn Bhd under the tort of negligence.

Siasatan yang dijalankan untuk menentukan punca insiden itu menunjukkan bahawa tali yang digunakan untuk mengamankan batu bata ke kren sudah tua dan tidak diperiksa secara kerap untuk haus dan lusuh....