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7/31/2019 Negligence 411
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LAW OF TORT
Prepared by
Ms Mardiah Hayati Binti Abu Bakar
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THE LAW OF TORTS
Winfield : a wrong the victim of which is entitled toredress
AIMS To determine when a person has to pay
compensation for harm wrongfully caused. Eg, itallows P seeks monetary compensation (damages)
for the injuries suffered.
To determine what conduct may be stopped orregulated by order of court. Eg, It allows P seeks aninjuction to prevent the occurrence or repetition ofharm in the future.
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EXAMPLE
A contractor violates a building code whenconstructing a house. The house thencollapses, injuring somebody. The violation of
the building code establishes negligence perse and the contractor will be found liable, solong as the contractor's breach of the codewas the cause (proximate cause and actualcause) of the injury.
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NEGLIGENCE
Duty of care
1)Reasonableforeseeable
2) Directrelationship of
proximity
Breach of dutyof care
Reasonablemantest
The degree of
probability ofdamage
The skill
Social values
Magnitude ofharm
Damages
Not too remote
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Negligence
Elements of Negligence
1. Duty Of care
2. Breach of Duty Of care
3. Damage has been caused by Ds breach of
duty.
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1st Elements
Existence of Duty Of Care Definition: legal obligations imposed on an
individual requiring that they adhere to areasonable standard of care while performingany acts that could forseeably harm others.
A Defendant will only be liable to the plaintiff innegligence if he owes the plaintiff a duty to take
care EG: duty owed by drivers to the road users,
duties of employers in respect of safety of theirworkers, duties of doctors to patients, duties ofan occupier of land to visitors.
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DONOGHUE V STEVENSON
Held: D is under a legal duty to the ultimatepurchaser or consumer to take reasonablecare that the article is free from defect likely to
cause injury to health. D owes a duty to consumers and users of his
products not to cause them harm.
D is liable.
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NEIGHBOURHOODPRINCIPLE
Test required:
A. reasonably foreseeable & fair ground
B. direct relationship of proximity
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1st Test: reasonably foreseeable
Whether the injury to the P was reasonablyforeseeable consequence of Ds acts oromissions.
It is not required that P must be identifiable byD. Enough if P is one of a class within the areaof foreseeable injury.
P in the zone of danger that is created by Dscarelessness and the injury must be a typethat is likely to occur in the circumstances.
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The plaintiff has to establish that the duty wasowed to him.
Bourhill v Young[1943) AC 92( pg. 34)
Motorcyclist carelessly collided with anothermotor vehicle. P who was pregnant sufferednervous shock at witnessing the aftermath of
the accident and saw blood.Held: No duty of care owed to her. She is
outside the area of foreseeable danger.
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2nd test: direct relationship of
proximity
Whether there is a sufficient relationship ofproximity or neighbourhood between thetortfeasor and the person who has suffered the
loss. Bourhill v Young[1943) AC 92( pg. 34)
P was not in the proximity of the bad driving of
D a motorcyclist who crashed before P cameon the scene. D owed duty of care to the cardriver he collided with. He reasonably foreseethat if he rode his bike too fast he is likely to
crash into a vehicle on the road. P saw the
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Example of reasonable
A drives his car negligently with the result thathe crashes into a group of small childrenwaiting to cross the road outside a primary
school.Few persons suffers nervous shockupon viewing the incidents.
It would not be just and reasonable to imposeduty on the persons with no directrelationships of proximity.
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Example 2
Failure to services car, breaks down, causeshorrified traffic jam.Some victims of jam, mightbe late and received warning letter, loose a
valuable contract..etc Un ended story
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Breach of duty and proof of
negligence
The reasonable man test
Negligence is the ommission to do somethingwhich a reasonable man guided upon those
considerations which ordinarily regulate theconduct of human affairs, would do, or doingsomething which a prudent and reasonableman would not do.
Q: Would a reasonable man have acted as
the Defendant has done if the reasonable
man was faced with the same
circumstances as the Defendant?
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Cases:Nettleship v Weston(1971)
The P gave the D driving lessons.D had beencareful but on her third lesson the car struck alamp post and P was injured.
Held: although D a learner driver, she would bejudged by standard of the average competent
driver. She must drive in as good a manner as adriver of skill, experience and care. She hadtried to control the car to the best of her ability.But since she did not meet the required
standard of care, she is liable.
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Glasgow Corp v Muir{1943}
The appellants allowed a church picnic partyto use their tea room on a wet day.Members ofthe party had to carry the tea urn through a
passage where children were buying icecreams. For unexplained reason the urn wasdropped and children were scalded by the tea.
Whether D should have foreseen that injurywould occur when he brought the urn throughthe passage.
Held: No, because a reasonable man would not
have foreseen such an accident in that
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Factors determining Negligence
1. The skill which the defendant professes tohave. E.g solicitor, plumber, architect
Wells v Cooper[1958]
The D fixed a door handle onto a door. He didthe job as well as an ordinary carpenter woulddo it. The handle came off in the Ps hand and
he was injured Held: D had exercised such care as was
required of him and was not liable.
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3. The magnitude of harm likely
The court will take into account not only the risk of anydamage to P but also the extent of damaged that isrisked
*** probability of the injury occuring
Withers v Perry Chain Co. Ltd The P was prone to dermatitis and was given the most
grease free job available. Despite this she contracteddermatitis. D employers were held not liable as theyhad done all that was reasonable, short of refusing to
employ her at all. *** The seriousness of the injury
Paris v Stepney Borough Council(1951)
-employees with one blind eye should be given anextra precaution to avoid injury.
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4. The importance of the object tobe attained by Ds activity
The social importance or utility of thedefendants actions will allow him to incur risksof injury in his undertakings.
Daborn v Bath Tramways[1946] D drove left-hand drive car and due to his
negligence signalling, an accident occurred.Held: D was not liable as the car was used as
an ambulance during the war period. Thesocial importance of Ds act outweighed theimportance of his duty of care to othes.
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3rd Element : Damages
The Ps damage must have been caused by
Ds breach of duty and the damage must not
be too remote.
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A 50 year old man goes to hospital for astomach operation and after the operation, it isdiscovered that he has suffered brain damage.
To bring an action of negligence, the patientmust establish that the hospital of its agents(doctors,nurses) caused him to suffer a brain
damage. If following the brain damage, he undergoes
severe personality changes as a result ofwhich he losses his job, his wife divorces himand he can no longer lead an independent life,the rule of remoteness of damage will beapplied to determine to what extent he can be
compensated.
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THE END