Tort II Tutorial on Duty of Care 2020 PDF

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LLB Year 1Modul e: Tort II Law Tut orialsYear: 2020 (Semest er 2)Lect urer: Dr. Fai zah Nazri AbdRahmanhttps: //law. um. edu. my/NEGLIGENCEA. DUTY OF CAREEssential pre-tutorial reading:Donoghue v Stevenson [1932] AC 562 Dorset Yacht v Home Office [1970] AC 1004 Anns v Merton London Borough Council [...

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LLBYe a r1 Modul e :

Tor tI ILa w Tut or i al s

Ye ar :

2020( Se me s t e r2)

Le c t ur e r :

Dr .Fai zahNazr iAbd Rahman

ht t ps: / / l a w. um. edu. my/

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 clearcut 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 ( m/s 9,10 ) , the facts of the case are as such. The defendant, a ginger - beer manufacturer, has sold ginger - beer to a retailer. The ginger beer bottles were opaque. The plaintiff then drank that ginger beer bottle when it was given by her friend, A . When A refilled the glass, along with the ginger beer came the decomposed remains of a snail. The plaintiff suffered shock and was severely ill as a consequence. The plaintiff sued the manufacturer and claimed that the manufacturer had a duty in the course of his business, to prevent snails from entering into his ginger beer bottles and the manufacturer had the duty to ensure that all the empty bottles were carefully inspected before they were filled with ginger beer. The issue in the case was whether the defendant owned any such duty to the plaintiff. The House of Lords decided that the test to determine whether such duty existed was to see if the defendant was a neighbour to the plaintiff. The HOL decided that the defendant was liable on two reasons. Firstly, the court created a new category of duty owned by the manufacturer to the consumer. Secondly, the consideration of new technology in mass production.

The neighbour principle is an objective test where the court would ask a hypothetical question whether a reasonable man who is in the same shoes and circumstances as the defendant could foresee that his conduct would affect the plaintiff. If the answer is no, the the defendant is not a neighbour but if it is yes then he is a neighbour and there arises the duty of care. In this case, the manufacturer should have had precautions as the effects of the defendant would affect the plaintiff as it is something foreseeable. A manufacturer has a general duty of care to make sure that their products is not defective or causes harm towards their final consumers. The manufacturers duty is to properly inspect these products before selling them to the consumers to ensure no foreign harm or objects would be in the product itself. (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 where the court would ask a hypothetical question whether a reasonable man who is in the same shoes and circumstances as the defendant could foresee that his conduct would affect the plaintiff. If the answer is no, then the defendant is not a neighbour but if it is yes then he is a neighbour and there arises the duty of care. An example would be, if I was driving a car, and I did not properly take care of the car by sending it to maintenance monthly . This caused the car to be faulty and eventually caused me to get into an accident with Rafiq. This can fall under the neighbour principle as it was something that was foreseeable and when I am driving I have a duty of care towards other drivers. Just like in Donoghue v Stevenson, I did not take precautions in taking care of my own car which eventually led to the accident. (c) What is the impact of this case on the issue of determining duty (or liability) in negligence? Before this, a formal contract would need to exist between the defendant and plaintiff where it is stated that the plaintiff has a duty of care towards the defendant. With this case, there is no more need to just rely on specific circumstances where a duty of care already exist. The neighbour principle in donoghue v stevenson which is the forseeability of harm can be used in determining whether a duty of care exist in cases now.It created a new

category of duty, owed by the manufacturer to the consumer,

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 fatal weakness of the two-stage point was that the court once prove that it was reasonably foreseeable that the defendant’s act or omission may affect the plaintiff, the court would impose a duty on the defendant, without having much consideration as to the fairness and justice to impose such duty in the particular situation which may adversely affect the policy in certain field. The main difference in the duty test in Caparo Industries ( m /s 104 ) is that unlike in the neighbourhood principle in Donoghue v Stevenson where the defendant only needs to prove whether the damage is foreseeable and there is a close and direct relationship of proximity between the plaintiff and defendant, the defendant must also prove that the circumstance as a whole must be such that it is fair, just and reasonable for the imposition of a duty of care. The duty of care must arise from situations because it accords with existing policy and decisions in analogous cases. The court abandon the two stage test due to the reason being that once the court decided that the damage is foreseeable and there is a close and direct relationship of proximity between the plaintiff and defendant , according to the two stage test the court would hold the plaintiff liable without considering if it was fair and just or according to existing policies. (b) Is the three-stage test an improvement? Identify weaknesses and strengths of the three part test. Overall, the three stage test also known as the Caparo test is an improvement to the test. The difference of the Caparo test and the Anns test is that unlike the Anns test where the defendant only needs to prove whether the damage is foreseeable and there is a close and direct relationship of proximity between the plaintiff and defendant, the defendant must also prove that the circumstance as a whole must be such that it is fair, just and reasonable for the imposition of a duty of care. The duty of care must arise from situations because it accords with existing policy and decisions in analogous cases. One of the criticism in the Anns test can be seen in the case of Governors of the Peabody Donation Fund v Sir Lindsay Parkinson & Co Ltd, where the court said in determining whether a duty of care exist on the defendant, it must also be just and reasonable to do so. In the Caparo test, duty of care can only exist when the circumstances is somewhat fair to impose a duty of care towards the defendant. By doing so, in cases where plaintiff may sue a defendant because of an existence of duty of care and close proximity alone is not enough. Hence we can see that the three stage test is more specific and reasonable in placing a duty of care towards a defendant. The weakness of the Caparo test can be seen in terms of the expanding of the general definitions of foreseeability. It does not provide definitions to the terms such as ‘foreseeability’ and ‘proximity’. In Anns, these two terms are treated as synonyms; by breaking them into two categories, it may appear that Caparo treats them as conceptually distinct. In actuality, it is acknowledged by the House of Lords that these terms are not

‘precise definitions’. Hence although this test does add another requirement to place a duty of care towards its defendant, it has failed in actually explaining or expanding on the first two requirements. Hence, the true problem which is the definition of foreseeability of damage is still somewhat vague.

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 dislocated 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.

Damage to property (Asiya’s car was short-circuited resulting in costs of repair totalling RM4000), physical injury (Asiya could not get up at all because her pelvis was permanently deformed after the operation) and Pure economic loss (Asiya lost a job ( modelling job ) opportunity after the accident and physical impairment). Consequential economic loss (the medical bills and payment for car damages). She is a grooming consultant. – Consequential economic loss as she is not able to work anymore. (b) Discuss the issues arising in each type of loss. 1. Whether the BMBP workers (Siska) was negligent and caused Asiya’s car to short circuit. Either use Caparo or Donoughue 2. Whether Dr. Ferdi owed a duty of care to Asiya regarding the surgical operation. Whether Dr Ferdi owed a duty of care to tell Asiya on the risks of the surgical operation that may cause a permanent deformity and losing a job before the surgery 3. Whether Dr. Ferdi’s negligence during the surgical operation had caused the pelvis injury.

(c) How do you determine who is at fault for each loss? 1. Existing duty of care between Siska and Asiya. 2. Existing duty of care between Dr. Ferdi and Asiya.

For the financial loss for the repairment of Asiya’s car, Siska is at fault. Siska had forgotten to close the circuit wiring after seting the EMB. The rain made the roads wet

and caused Asiya’s car to be electrocuted and made it stop functioning. Siska is also at fault for causing Asiya’s physical injury. As for the psychiatric damage, Dr.Ferdi may be liable as he did not inform Asiya that the operation may cause deformity. However, according to the case of Bolam v Friern Hospital Management, specialists shall not be judged according to the reasonable man principle.Specialists will be judged according to the practices of their professional field.

(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) 1. For the BMBP workers (Siska) as defendant. According to Donoghue v Stevenson, the neighbour principle is formulated in which one must take reasonable care to avoid acts or omissions which one can reasonable foresee would be likely to injure one’s neighbour. In this situation, it’s reasonably foreseeable that the unclosed circuit wiring of EMB would conduct electricity in the rain. Siska should have closed the circuit (reasonable care) so as to avoid any damages to cars that uses the roads. Thus, it is reasonably foreseeable that the damage that occurred in Asiya’s car (short-circuit).

2. For Dr. Ferdi as defendant. There is a special relationship between Dr. Ferdi and Asiya because they are doctor-patient.

(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)

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.

Pendaftar dan Pemeriksa Kereta Motor, Melaka v KS South Motor Sdn Bhd ( m/s 112 ) The respondent who is in the business of buying and selling motor vehicles both new and used ones. On 8 July 1980, R was approached by two brokers who wanted to sell a second hand car. The car was registered in the name of one Tay Book Kok with registration number, MF9857. R then took up the offer by paying the deposit of Rm 4000, and was informed that the RIMV file pertaining to the car had already transferred to the second appellant. Two weeks later, the R sold the car to Su for the purpose of gaining profit. 7 months later, sometime in February 1981, the police informed R that the car was a stolen car as it was reported missing in Petaling Jaya on 26 June 1980. The police revealed the facts that the car was originally allotted a RN of NM6617, MF9857 was the registration number of a motor Vespa, allotted by the first appellant to a man named Teoh. The file pertaining to the motor Vespa together with all relevant files are no longer traceable. They have varnished into thin air. A file on MF9857 was created in the office of the first appellant to replace the original file. All the owners names in the registration book of the car were false, and no such persons. In July 1982, R commenced proceedings against the three appellants in order to claim back their commercial loss. After looking at the facts, the court of appeal dismissed the appeal, and held that those files which the first and second appellants say were kept under lock and key and no unauthorized person had access to them. Yet they have conveniently gone missing or untraceable. The impression that is created in our minds is that the registries of the first and second appellants have been penetrated into by person or persons unknown. Both the first and second appellants had the absolute control of the management and the fact that files had gone missing is proof enough that there had been lack of supervision on the part of the first and second appellants and that omission we say points to there being lack of due diligence in the management and running of the two registries.

MPAJ v Stephen Phoa Cheng Loon [2006] 2 MLJ 389 The factual matrix relevant to the issues can be briefly stated. The Highland Towers consisted of three blocks of apartment known as Blocks 1, 2 and 3 situated on Lots 494, 495 and 635 Mukim Hulu Klang. These apartment blocks were built in front of a steep slope. The hill slope was originally owned by Highland Properties Sdn. Bhd., the developer who also developed Highland Towers. Highland Properties initially intended to construct three apartment blocks on the Highland Towers site and bungalows on the hill slope. Ultimately, only the three apartment blocks were built. This was between 1975 and 1978. No bungalows were constructed on the hill slope. In 1991, Highland Properties transferred ownership of the bungalow lots on the hill slope to Arab Malaysian Finance Bhd (AMFB) as part of a set-off for unpaid loans. On the hill slope was a stream which was referred to at the trial as the 'East stream'. The East stream originated from land that was being developed by Metrolux Sdn Bhd and MBF Property Services Sdn Bhd. This land was referred to as the 'Metrolux land'. On 11 December 1993, a landslide occurred resulting in the collapse of Block 1 and the subsequent evacuation of the respondents from Blocks 2 and 3. The respondents then filed a suit in the High Court against various parties including MPAJ, the appellant herein, for negligence and nuisance. After a lengthy hearing, the learned trial judge found the appellant who was the fourth defendant in the case to be 15% liable for negligence in respect of the appellant's acts and omissions prior to the collapse of Block 1 of the Highland Towers. However, he held that s 95(2) of the Street, Drainage and Building Act 1974 ('Act 133') operated to indemnify the appellant of any pre-collapse liability but provided no protection to the appellant for postcollapse liability. Dissatisfied, both the appellant and respondents appealed to the Court of Appeal. The Court of Appeal allowed the appellant's appeal on post-collapse liability. They also allowed the cross-appeal by the respondents against the order of the High Court on the indemnity issue under s 95(2). Against that decision, the appellant and the respondents have lodged their appeal and cross-appeal respectively. As I have said, leave to appeal and crossappeal were granted.

Uniphone v Chin Boon Liat [1998] 6 MLJ 441 The plaintiff was a manufacturer and operator of public telephones using telephone cards. The first and second defendants were the editor and the

proprietor of a newspaper called 'New Life Post' ('the Post'). The defendants published an article ('the article') in the Post which narrated in detail a method by which discarded telephone cards were used to make free phone calls from public telephone booths. Whilst admitting to the truth of the contents of the article, the plaintiff contended that the defendants had by the publication breached their duty of care to the plaintiff causing damages to the latter. The plaintiff further alleged that the defendants ought to reasonably foresee the loss that would be suffered by the plaintiff by the publication of the article. On the other hand, the defendants submitted that they owed no duty of care to the plaintiff and that the publication was grounded on public interest. The court held that there is no foreseeable damage because the damage had already happened before the publication of the article.

(b) In Pendaftar, identify the elements of foreseeability and proximity between the parties, as held by the court. The court of appeal rejected the defendants argument that to impose a duty on them to ensure that particulars of registered vehicles are accurate would be too burdensome. The duty to ...