TORT Damage - hope it helps PDF

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Summary

Borhan owns a house which is surrounded by a fence made of wood. One portion of the fence has a large gap in it because part of the wood had been destroyed by dry rot. Borhan is aware of this condition in his fence and has been aware of this condition for quite some time. However due to neglect and ...

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Borhan owns a house which is surrounded by a fence made of wood. One portion of the fence has a large gap in it because part of the wood had been destroyed by dry rot. Borhan is aware of this condition in his fence and has been aware of this condition for quite some time. However due to neglect and the fact that he is a busy businessman he fails to repair the fence. Halim, a child of 5 years old, goes to play at the compound of Borhan with Borhan's child Bob. Halim frequently crossed the fence at the large gap for this purpose. One day Halim was joined by a new-found friend from the neighbourhood, 6 years old Siu Kheng and together they crossed over the fence. They fall into a pond where Borhan rears his fishes and drown. Discuss. Issue: Whether or not damage suffered by Halim and Siu Kheng caused by Borhan's breach. Law: Causation in law means that the defendant is only liable if it is reasonably foreseeable that the defendant's conduct will cause some damage to the plaintiff. Initially, the test that was used was a direct consequent case, in which the defendant was held liable for all losses incurred as a direct result of his breach. In Re Polemis & Furness, the court held that the direct consequence test has two stages which the firstly, the damage is foreseeable as a result of the defendant's conduct, and if the answer is affirmative, the defendant will be liable for all direct consequences of his conduct, even if the type or extent of damage is unforeseeable. The reasonable foresight test is currently being used. The court held in The Wagon Mound that the reasonable foresight test involves two principles which firstly, the damage must be foreseeable as a result of the defendant's conduct, and secondly, the type of damage must be foreseeable (Jaswant Singh v Central Electricity Board & Anor). If the damage that occurs differs from what was predicted, the defendant will not be held liable. Furthermore, the extent of damage is irrelevant (Vacwell Engineering Co Ltd v BDH Chemicals Ltd) and the method by which the damage occurs is not important (Hughes v Lord Advocate) as long as the type of damage is foreseeable in the circumstances. Application In the current case, Borhan could have reasonably foreseen that anyone crossing over the large gap of the fence would almost certainly cause injury, and it would be obviously more harm if the person doing so was a child, especially given the possibility of the child falling in the pond at the side of the fence. Besides that, he could predict it would happen to the children because his child's friend, Halim, always went to play to his house compound by crossing the fence. Here, t he type of damage that could reasonably be foreseen is the consequences that a child would face when crossing over the large gap in the

fence, which in real caused Halim and Siu Kheng fall and drown in the pond. Since it is forseeable, the extent of the damage and the method in which the damage occurs is irrelevant in this case. He was supposed to repair the fence as soon as he realised that one section of it had a large gap in it because part of the wood had been destroyed by dry rot, as this would endanger even his own child. His negligent act resulted in the deaths of two innocent children, Siu Kheng and Halim. Conclusion: In conclusion, Borhan is liable for his negligent omission in repairing the wooden fence which has caused the death of Siu Kheng and Halim....