Tutorial WEEK 6 Q3 - Tort II PDF

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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 ...

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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. 1. Electronic system in Asiya’s Mercedes was short-circuited resulting in costs of totalling RM4000 for repair. 2. Asiya’s pelvis is dislocated which cost her medical bills for the treatment. 3. Asiya’s pelvis is now permanently deformed as a result of the surgery Dr Ferdi conducted which jeopardises Asiya’s future career as a part time model. (b) Discuss the issues arising in each type of loss. 1. Whether BMBP is responsible is responsible for Asiya’s Mercedes’ condition? 2. Whether Dr Ferdi is responsible for Asiya’s pelvis because he did not inform her of the risk? (c) How do you determine who is at fault for each loss? (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)

(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? Pp;p (You might need to revisit this question as you deal with other issues in the tort of negligence such as breach and causation) In order to determine who is at fault for each loss it is important to recognise whether there is a duty of care on the part of the defendant and to what extent. For the first loss, the issue is, whether BMBP owes Asiya a duty of care to keep the road safe for her to drive? To determine duty of care, there are 3 stages, which are reasonable foreseeability, proximity and whether it is fair, just and reasonable. According to Caparo Industries v Dickman, a duty of care may be imposed if three requirements are satisfied; the claimant must be reasonably foreseeable, there must be a relationship of proximity between the claimant and defendant and it must be fair, just and reasonable in the circumstances for a duty of care to be imposed on the defendant. First Subissue and Law Hence, the first subissue is, whether BMBP worker can reasonably foresee that if she did not close the circuit, it will cause harm to any drivers driving in BMBP highway? The test for reasonable foreseeability is objective in nature which concerned with what the reasonable person in the position of the defendant could have reasonably foreseen prior to the injurious interaction between parties. What must be reasonably foreseen is the possibility that if a care is not taken, injury may be caused to a certain class of persons. Application In this case, the Bmbp workers could have reasonably foresee that if they did not take precautions, it will cause harm to any road users. We can see this because they actually took the time to put red cones in a diagonal manner and notify the drivers through the EMB. From here, we can see that they went out of their way to make sure that drivers will not use the route because there are many dangers that comes with road constructions, including not closing particular circuits. Siska, who is responsible for closing the circuits, would and should have known know that by not closing the circuit, the current would not flow where it’s supposed to flow and the EMB would not have light up & be doing its job of notifying the road users hence jeopardising their safety. Not closing the circuit can also cause electric shock due to high voltage, especially when it comes in contact with water. Conclusion The BMBP workers could have reasonably foresee that that if she did not close the circuit, it will cause harm to any drivers driving in BMBP highway?

Second Subissue and Law Second subissue is whether there is a relationship of proximity between the BMBP worker and Asiya, the frequent user of the highway? According to Donoghue v Stevenson, ‘neighbourhood’ and ‘closeness’ is a synonymous concept. According to the neighbour principle, you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Neighbour in law means persons who are so closely and directly affected that when you think about your act, you know that it will affect the person. In short, proximity is concerned with the factual relations between the parties which signified the potential for the defendant to cause harm to the claimant. It is because of the closeness between the parties that pathways to harm are created. Application In the present case, applying Donoghue v Stevenson, there is closeness in the relationship between Asiya and BMBP worker because she is a frequent user of the road and BMBP worker are the workers who are directly responsible for the highway maintenance during that time. In fact, those BMBP workers has relationship of proximity on every user of the highway. From the facts given, BMBP worker are working to keep the road users safe hence every act that they do, must me directed into keeping drivers safe including keeping Asiya from getting into accidents and costing her so much damage on her and her property. Conclusion In conclusion, there is a relationship of proximity between BMBP worker and Asiya. Third Subissue Third subissue is whether it is fair, just and reasonable in the circumstances to impose a duty of care towards BMBP? It was previously noted that in the immediate wake of Anns, policy factors is invoke by the courts to justify the non-imposition of a duty of care. However, after Caparo, it has become clear that consideration of of fairness, justice, and reasonableness can also be employed to ground the imposition of a duty of care either in circumstances in which no such duty has previously existed, or in circumstances where a duty has previously been denied. For instance, in the case of Marc Rich & Co v Bishop Rock Marine, their Lordship held that it would not be fair, just and reasonable to impose a duty on the Defendant because duty of care case in this case would subvert that balance of risks with severe potential consequences for both marine insurance and freight costs.

Application In this case, applying Marc Rich & Co v bishop, it would be unfair to impose a duty of care on the BMBP because BMBP would have to spend a huge sum of money in order to

pay for the lawsuit when the money should be used to do some repair works for the road instead which would benefit other road users. Moreover, in assessing the facts, it would also be unfair to impose a duty of care to those workers because of the salary comparison between those BMBP workers and Asiya. Asiya is a grooming consultant in Kuala Lumpur which makes about RM1500-RM2500 PER day which is what those BMBP workers make per month. Comparing both of their salary, it is unjust to impose a duty of care because Asiya can just repair her car within 3 days of getting her salary for each day but these workers would lose their job, their reputation would have been tainted and would have no means to live. Conclusion It would be unjust to impose a duty of care on BMBP. Issue The next issue Whether Dr Ferdi is responsible for Asiya’s pelvis because he did not inform her of the risk? In order to determine the existence of duty of care, it is important to fulfil the 3 stage test as laid down in Caparo which are foreseeability, relationship of proximity and fair, just and reasonable. First Subissue and Law Whether Dr Ferdi could reasonably foresee that if he did not inform Asiya of the risk, he would cause injury to her pelvis? The test for professionals highly differ from any reasonable man. In cases involving professionals like doctors, Bolam Test from Bolam v Friern Hospital Management Committee applies. This test expects that standard of care follow in accordance with responsible body of opinions such as fellow medical practitioners. The objective question would be whether a group of medical professionals in the same field would consider the act as acceptable or reasonable? If the answer is yes, then the doctor would not be liable. Application In applying Bolam Test in the present case, Dr Ferdi did not tell Asiya because it is generally accepted by many medical practitioners that the risk is very low and informing the patient would frighten the patient unnecessarily. Hence, it is acceptable for Dr Ferdi not informing Asiya of the risk in order to smoothen the process of surgery. Dr Ferdi could not have foreseen the injury because other medical experts believe that the risk of deformity is very low. Conclusion Dr Ferdi could not have reasonably foresee that the surgery could affect Asiya’s pelvis badly. Second Subissue and Law

Whether there is a close proximity between Dr Ferdi and Asiya? According to the neighbour principle formulated in Donoghue v Stevenson, you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Neighbour in law means persons who are so closely and directly affected that when you think about your act, you know that it will affect the person. Application In applying the neighbour principle, Dr Ferdi and Asiya has a close proximity of relationship because she is a direct patient of Dr Ferdi. Dr Ferdi is directly in contact with her to treat her and get her pelvis better as he was assigned by the hospital to help the patient which is Asiya Conclusion Dr Ferdi and Asiya has a close proximity of relationship. Third Subissue and Law Whether it is fair, just and reasonable to impose a duty of care towards Dr. Ferdi? The requirement of fair, jusr and reasonable is pertinent as stated in the Caparo Industries v Dickman. in the case of Marc Rich & Co v Bishop Rock Marine, their Lordship held that it would not be fair, just and reasonable to impose a duty on the Defendant because duty of care case in this case would subvert that balance of risks with severe potential consequences for both marine insurance and freight costs. Moreover, Bolam Test provided that, standard of care by doctors to follow in accordance with responsible body of opinions such as fellow medical practitioners. The objective question would be whether a group of medical professionals in the same field would consider the act as acceptable or reasonable? If the answer is yes, then the doctor would not be liable Application In applying the Bolam test, it would not be reasonable to impose a duty of care on Dr Ferdi because many medical practitionars are of the opinion that the risk is low and informing the patient could just make them scared unnecessarily. Hence, Dr Ferdi was only doing what was the standard practice done by other fellows medical practitioners. In applying Marc Rich & Co v Bishop, imposition duty of care would not be fair to other medical practitioners who thinks that the risk is low and does not want to scare the patient because this would disrupt most of the surgery as the patients would be too scared to undergo the surgery....