TUTO 435 for chapter 1 PDF

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TUTO WEEK 3 TORT OF NEGLIGENCE - DUTY OF CARE 1. Why is it important to determine the scope of duty of care? Generally, in shorts, negligence is established when three elements are fulfilled, firstly that there is a duty of care on the part of defendant, secondly this duty is breached by the defendant and thirdly, the breach results in some damage to the plaintiff. As stated above, duty of care is one of the most important element that must been proven in order to establish negligence. Duty of care can be seen in the case of Heaven v Pender, the court held that, if a person contracts with another to use ordinary care or skill towards him or his property, that means there is a contractual obligation and need not be considered in the context of duty, however there may be the duty from one person to another person although there is no contract between them with regards to such duty. Once defendant owe duty of care, he/she must exercises reasonable skill and care to prevent negligence. In shorts, if there is no duty of care so there is no such liability upon the defendant in negligence. 2. How do you determine whether, in law, a person is your neighbour? In the case of Donoghue v Stevenson [1932] House of Lords decided that word ‘neighbour’ was referred to as those who are closely and directly affected by our act and that we have anticipated that they will be affected if we do or omit the act. Therefore in order In order to determine our neighbour, we need to apply foreseeability test and proximity test. The first one is Foreseeability test which to determine whether a person could reasonably have foreseen the harms that resulted from their actions. In order to identify who is the neighbour, we must question : would a reasonable man, who is in the same circumstances as the defendant, foresee that his conduct will adversely affect another person The second one is Proximity test which to determine a relationship between the plaintiff and the defendant. For example seller & buyer 3. Amin is a 35-year-old man who lives with his wife and two children at an apartment located on the second floor of a six-floor apartment block at Section 4 Shah Alam. He works as a firefighter at the Shah Alam Fire and Rescue Station. In his daily activities, who are Amin’s neighbours? Regarding to this case, we would first have to establish who is Amin's by applying the proximity and the foreseeability test on the situation. As we are well aware, Amin is a husband to his wife and a father to his two children. By applying the proximity test, this automatically proves that Amin has a duty to take care of his wife and his children in avoidance from any lability that may or may not arise. Amin is a father and a husband to his wife and both of his children; thus, it is a given that they are closely and directly affected by his actions. Therefore, If anything happens towards his wife and his children, Amin is clearly liable for any occurrences. Amin should also be well aware of the fact that any damages or injuries inflicted upon his wife and his two children due to his own actions or negligence are his burden to carry as Amin has a duty of care towards his wife and children in the first place which is stated in the foreseeability test. Secondly, the neighbours residing in Amin's apartment are also considered as his neighbours to whom he owes the duty of care to. We can further verify this fact by applying the foreseeability and proximity test. In alignment with the proximity test, as the community members residing in the same apartment as Amin, every single act

or omission that is acted upon by Amin is without doubt closely related to the neighbouring residents of the apartment. Nevertheless, when the foreseeability test is applied, it is noted that not every occurrence can be regarded or deemed as a lability on Amin's part. This can be seen in the case of Donoghue v. Stevenson, where the plaintiff was severely affected by the negligence of the defendant who was the manufacturer. The defendant had failed to ensure the cleanliness and the hygiene of the bottles for the ginger-beer before selling them to his customers, He clearly had a duty of care as the manufacturer to his customers during his course of business. His failure leads to a breach of duty and that he was held llable for the plaintiff's ill condition as a consequence after consuming his drink making the plaintiff someone who is directly affected by the negligence of the defendant. In Amin's case however, under different circumstances such as a kitchen burning due to the negligence of his neighbour and causes damages, he will not be held liable nor does he owe a duty of care toward} his neighbour. This is because he cannot foresee his actions may lead to the accident, thus Amin will not be the one to owe a duty of care. On the other hand, If Amin is able to foresee the consequences to his actions that leads to damages, he would then be legally responsible according to the Foreseeability test.

4. If a person is your neighbour, what’s the significance? According to Lord Atkin, if a person is your neighbour, you must not injure your neighbour and you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. As we can see in the case of Donoghue v Stevenson, the issue was whether the defendant owed a duty of care to the plaintiff. Then the court held that, in order to determine the existence or otherwise, of such a duty, was whether the plaintiff was the neighbour of the defendant through the neighbour principle test. Due to the test, the plaintiff was a neighbour to the defendant and supposedly the defendant must not injure the plaintiff and the defendant must take reasonable care to avoid acts or omissions which can reasonably foresee would be likely to injure the plaintiff. Therefore, the defendant owed à duty of care to the plaintiff....