Tort II Tutorial on Duty of Care 2022 PDF

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LLB Year 1Module: Tort II LawTutorialsSession: 2021/2022 (Semester 2)Lecturer: Dr. Faizah Nazri AbdRahmanDr. Sheila Ramalingamlaw.um.edu/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 C...

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LLB Year 1 Module: Tutorials

Tort II Law

Session: 2021/2022 (Semester 2) Lecturer: Dr. Faizah Nazri Abd Rahman Dr. Sheila Ramalingam

https://law.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 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. - Precedence. - Relationship-based category. (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? -

The opaque bottle – Hinders the last person from rechecking the bottle for the last time before marketed to the café. Neighbour principle created. Why? Prior to Donoghue v Stevenson, it was difficult to establish the person liable of the negligence since the friend was the person who bought the ginger-beer, since the plaintiff and the friend had no contractual relationship between each other.

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Can the plaintiff’s friend sue the manufacturer? No, because contractual relationship was between the friend and the café, because she bought the drink from the café, not directly from the manufacturer, as for Donoghue v Stevenson, plaintiff did not have the contractual deal with the café so she was free to sue the manufacturer instead. The bottle was opened in front of her, bottle was opaque, if not, café would have the knowledge of the contaminated drink. Pure economic loss (financial loss), damage – Can café sue the manufacturer if café finds out about the contaminated drink (by opening the bottle before serving)?

In the case of Donoghue v Stevenson, the defendant, a ginger-beer manufacturer had sold ginger beer to a retailer. The bottles which were opaque, was drank by the plaintiff after being given by her friend. When the friend refilled the glass, along with the ginger beer came the decomposed remains of a snail. The plaintiff had suffered shock and was severely ill as a consequence. The plaintiff had sued the manufacturer and claimed that the manufacturer had failed his duty of care in the course of his business, by ensuring that no snails had entered into his ginger beer bottles and ensured that all bottles were carefully inspected before they were filled with ginger beer. Issue: Whether the defendant had owned any duty of care towards the plaintiff. Decision: The House of Lords decided that the test on determining whether the defendant had such duty towards the plaintiff was to be determined by determining if the defendant was a neighbour to the plaintiff. The HOL held the defendant liable for two reasons, the court created a new category of duty owned by the manufacturer to the consumer and the consideration of new technology in mass production. In order to determine whether duty of care is insistent on the side of the defendant, the neighbourhood principle applies. The neighbourhood principle is an objective test conducted by the court by asking a hypothetical question on whether a reasonable man who would be in the same shoes and circumstance as the defendant, would have foreseen that his conduct would affect the plaintiff. If the answer is no, then the defendant is not a neighbour however if yes, then the defendant is a neighbour, hence duty of care arises on the defendant towards the plaintiff. Neighbour principle – Link 1. Defendant owed duty of care and 2. Proximity of relationship between plaintiff and defendant. In the case, the manufacturer should have had precautions as the effects sustained by the plaintiff that would have harmed her in some way was foreseeable. As a manufacturer of a consumable product, he has the duty of care to ensure that their products are not defective or could bring harm towards consumers. The duty of the manufacturer is to properly inspect their products before selling them to consumers to ensure that no harm would be inflicted towards them upon consuming the product.

(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 neighbourhood principle is an objective test conducted by the court by asking a hypothetical question on whether a reasonable man who would be in the same shoes and circumstance as the defendant, would have foreseen that his conduct would affect the plaintiff. If the answer is no, then the defendant is not a neighbour however if yes, then the defendant is a neighbour, hence duty of care arises on the defendant towards the plaintiff. As an example, a restaurant owner has the duty of care by ensuring that the restaurant, whether the front-house and the kitchen is always kept in a clean condition as it can be foreseen that their negligence in their service may affect or cause injuries to the customers. (Quality control: Ensuring no flies, anonymous objects unrelated to the ingredients of the food and the food itself is contained in the dish/food).

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

Whether the damage suffered by plaintiff is reasonably foreseeable to the defendant (foreseeability of damage) Whether there is a close and direct relationship or proximity between the plaintiff and defendant. A new category of duty of care is established, manufacturer and consumer. The court possesses the power to create a new duty situations expanding the area of liability

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? Caparo’s first purchase of share to F plc mula mula tak reach the predicted figure, sebab profit rendah. Then purchase for the second time, target reached so they masuk a takeover-bid. tapi turns out the audit report tak accurate. Pre-tax profit (before dikenakan tax) = 1.2 million pounds (ni yang not accurate) turns out the company was actually having loss = 400k pounds. so kalau salah, means the shareholder takboleh takeover the company, since target did not reach. = shareholder brought a claim of negligence on the auditors, on the grounds that they owed the DOC towards them.

Facts of the case Caparo had purchased shares in the company called Fidelity plc of which the audit report was needed as a part of a takeover bid of the company. However, it was later found that the pretax profit of 1.2 million pounds were misrepresented, where in fact the company had actually lost 400,000 pounds (worth of profit). A firm of auditors had appealed against the decision of the Court of Appeal in which they had decided that the auditors owed the duty of care to the appellant shareholders in producing the audit report required to be able to purchase the company. Decision of the case The House of Lords reversed the decision of the Court of Appeal and held that there is no duty of care owed to potential or existing shareholders. The only duty of care the auditors owed was to the governance of the firm, not to potential investors. Three factors had existed to establish the need of duty of care whereby, (1) Forseeability of damage, (2) Proximity and (3) the circumstances as a whole must be fair, just and reasonable for the imposition of a duty of care. Case Donoghue v Stevenson

Establish what? Duty of care

Anns v Merton London Borough Council

Duty of care

Caparo Industries v Dickman

Duty of care

Type of test Objective test If yes, neighbour principle. 1. Forseeability of the damage 2. Proximity of a relationship *applicable for injury cases only *applicable even if contractual relationship exist between p and d, if 2 of the elements are fulfilled. 2-stage test 1. Proximity of relationship 2. Policy considerations Liability arises once claimant has fulfilled reasonable foreseeability and proximity & defendant must demonstrate policy factors to negate liability. (too wide) *takleh guna in Malaysia, kalau tak floodgate of liability (limit the right to make claim for damages, this test is sorta…lenient on economic loss? Kalau tak ramai file civil claim just for the damages) 3-stage test 1. Forseeability of damage 2. Proximity of relationship 3. Imposition of duty of care is fair and reasonable in such cases *Policy factors must be put forward to impose liability of defendant *applicable for pure economic loss/physical

injuries/damage to property - duty of care here already in existent, but policy consideration is here to negate, burden of proof to prove policy in favour of not imposing any duty is placed onto defendant. - when answering question, no need to bring up the anns test dah.

(b) Is the three-stage test an improvement? Identify weaknesses and strengths of the three part test. Strength Yes. It is an improvement because the principle of liability may be too wide (like in Anns) and would be unfair and unjust to impose duty of care on defendants which may reasonably foresee the damage that may be imposed from either their acts or omissions. Not only that, the three-stage test will prevent floodgates of liability, limiting claimants to abuse the right to make claim for damages from nervous shock or pure economic loss. With this improvement, the court will look at the nature of the relationship between the two parties as a whole including policy considerations beforehand in order to measure whether there is a sufficient degree of proximity between the parties to establish the defendants owing of duty of care. Weakness No. The three-stage test may have weaknesses because it is difficult to identify a clear definition of the third element of the test such that consideration to policy would open gates for defendants to deny duty of care. (vague, the definition of just and unjust for each person would differ for everyone) 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 (medical negligence?). 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. - Her Mercedes car repair fees had totalled up to RM4000 due to short-circuit in the electronic system of her car. - The sudden halt of her car caused her pelvis to be dislocated. - Asiya not being informed by Dr Ferdi that her dislocated pelvis surgery would lead her to permanent deformity. - Asiya lost a job opportunity to model part-time. - Current employment is jeopardized (grooming consultant). (b) Discuss the issues arising in each type of loss. - Physical damage/Omission - Whether Asiya is able to recover the loss from the repairing of the electronic system of her Mercedes, which costed RM4,000 from Siska, Rika and the Bawang Merah Bawang Putih (BMBP) highway company. - Whether Asiya is able to claim for loss suffered from the accident which resulted her with a dislocated pelvis from Siska, Rika and the Bawang Merah Bawang Putih (BMBP) highway company. - Whether Asiya is able to recover damages suffered after the non-consensual pelvic operation conducted by Dr Ferdi which led her to a permanent deformity. - Whether Asiya may claim for damages for losing the chance of being a future parttime model due to the accident. (c) How do you determine who is at fault for each loss?

Economic loss – Use the three-stage test from Caparo Industries and person at fault for the loss will be liable when the 3 elements are established which are (1) Proximity of relationship, (2) Forseeability of damage, (3) the imposition of the duty of care must be fair, just and reasonable. - Break down to consequential economic loss (talk on Asiya’s current employment, earning capacity (employment in the future)) -

Foresight of a reasonable man is sufficient, does not have to be the foresight of the medical practitioners

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This fact can be raised when comparing Dr. Ferdi’s breach

Physical damage/injury – Use the two-stage test in Donoghue v Stevenson by establishing the foreseeability of damage and the duty of care to hold the person at fault liable. Omission Omission, in comparison with an act means an inaction on the part of the defendant that has caused harm to the plaintiff. An act on the other hand is a positive act of the defendant which causes harm to the plaintiff. The general rule of an omission is a person must not harm others whilst not owing any duty of care to do something for the benefit of the other. This can be illustrated in Smith v Littlewoods Organisation Ltd whereby the court did not hold the defendant liable as it was not reasonably foreseeable that a third party would enter an empty premise and later cause damage to the plaintiffs. Although the defendant did owe the duty of care towards the plaintiffs, they were not in breach as they were not required to provide 24-hour surveillance and were unaware of the previous incident. Thus, it was unwilling to impose liability for a deliberate act of a third party. However, there exist an exception of omission which gives rise to the owing of the duty of care during instances where the omission is contrary to an existing duty of care. In situations where the defendant has a duty of care, but does not do so, in result it gives rise to a liability. For instance, if a lorry driver who does not brake his lorry at a traffic light when the lights are red has clearly omitted an act, this omission may give rise to a liability if any damage is caused consequent to the lorry driver’s action. The neighbour principle The neighbour principle, originating from Donoghue v Stevenson, is an objective test conducted by the court by asking a hypothetical question on whether a reasonable man who would be in the same shoes and circumstance as the defendant, would have foreseen that his conduct would affect the plaintiff. Not only that, the proximity of relationship refers to the foresight of a reasonable man who is able to foresee that the plaintiff would be affected by the defendant’s act or omission. If both hypothetical questions are affirmed, then it establishes that the defendant owes a duty of care towards the plaintiff. To apply in the present case, the neighbour principle can be applied in the first and second issue because it should be in the contemplation of Siska and Rika as workers to think of

the safety risks of road users if the red cones were not placed properly and carefully by them. Therefore, Asiya may claim for damages due to the worker’s negligence which resulted into Asiya’s Mercedez suffering from a short-circuit in its electronic system and for the pelvic injury suffered by her. (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) Issue 1 : Wheter Siska and Rika owed the duty of care towards Asiya? Law - Neighbour principle - Forseeability of harm - Proximity and relationship - The foresight of a reasonable man towards a negligent act that may bring harm to the plaintiff -

Omission

Application It was foreseeable that Siska’s act of forgetting to close the circuit wiring of the EMB would bring reasonable harm to any reasonable man, where in this situation Asiya’s car had came to a sudden halt due to the conductivity of the electricity from the EMB with the wet highway which had short-circuited Asiya’s car. Even when they both had informed the roadusers about the closure of the road by indicating them through the EMB message, Asiya had suffered from a dislocated hip. Siska should have taken a better precaution to ensure the safety of the road as she works for the highway as proximity is present between the relationship between the road users and the workers that work at the following road. Conclusion In conclusion, Siska owed Asiya the duty of care and should be held liable foe negligence

Issue 2: Whether Dr. Ferdi owed the duty of care towards Asiya? Law -

Caparo Duty of care may exist where there is damage that is reasonably foreseeable and there was a direct and close relationship of proximity between the plaintiff and defendant.

Application

The relationship between a doctor and patient demonstrates a close and direct relationship of proximity between the plaintiff and the defendant. Dr. Ferdi had conducted an operation on Asiya to correct her dislocated pelvis however was discovered by Asiya that she was now permanently deformed. Dr Ferdi’s action of not informing Asiya that there would be a risk of permanent deformity after 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. Even when Dr Ferdi should have taken a precaution by telling Asiya that there is still the risk of permanent deformity after performing the operation, however the percentage of that is very low which is 5%.Therefore, the damage that could happen is not foresee by Dr Ferdi. In this case,only one element that is fulfilled. Therefore, there is no duty of care arise on Dr Ferdi’s part. Conclusion In a nutshell, Dr. Ferdi owed no duty of care towards Asiya.

(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...