Negligence under Law of Torts Malaysia

1. NEGLIGENCE
Law Of Torts in Malaysia
Slides by Florence A. Jefferson IV

2. WHAT IS NEGLIGENCE?
• The omission to do something which a reasonable man
or a right-thinking man would not do

3. NEGLIGENCE IS ESTABLISHED WHEN…….

4. HOW TO KNOW THE EXISTENCE OF DUTY
OF CARE?

5. TESTS OF DUTY OF CARE
a) Neighbour Principle
•Donoghue v Stevenson
b) The Caparo Test
•Only applies to cases on pure economic
loss

6. DONOGHUE V STEVENSON
• The plaintiff drank the ginger beer which was bought by her friend.
The ginger beer bottles were opaque. When her friend refilled the
glass, the decomposed remains of a snail came along with the
ginger beer. The plaintiff suffered shock and was severely ill as a
consequence.
• The Court held that the defendant liable for the failure to ensure that
the empty bottles were carefully inspected before they were filled
with ginger beer.
• “ Love your neighbour. You must not injure your neighbour”
• – Lord Atkin

7. CAPARO’S TEST (DR ABDUL HAMID ABDUL
RASHID V JURUSAN MALAYSIA
CONSULTANTS)
•Plaintiff constructed a double-storey house. Several
years after the house was built it began to collapse due
to a landslide and Hamid was forced to evacuate. He
brought an action in tort against the defendants engaged
in erecting a house on the neighbouring land. The
defendant objected his claim.
•The court held that this was pure economic loss as it
would be grossly inequitable with justice not being served.

8. NEGLIGENT MISSTATEMENT (ESSO PETROLEUM CO
LTD V MARDON)
•The defendants were experienced and
had special knowledge in estimating the
contents of petrol at a patrol station.
•The Court held that a duty of care was
imposed on the defendants.

9. LIMITATION OF DUTY OF CARE (HILL V CHIEF
CONSTABLE OF WEST YORKSHIRE)
• The plaintiff claimed that the defendant was negligent
for failing to ensure that his subordinates arrested the
murderer of her daughter.
• The Court held that there was no duty of care for the
police to arrest an unidentified criminal. The police is
given immunity from any negligence as a result of
interrogation and arrest of criminals.

10. Medical Negligence/Psychiatric
Illness

11. CONSIDERED FACTORS FOR SECONDARY VICTIM

12. ALCOCK V CHIEF CONSTABLE OF SOUTH
YORKSHIRE POLICE
• The defendant was sued in a tragedy causing ninety-five people
died and hundreds of people were injured where part of a stadium
collapsed, due to their negligence in allowing too many spectators
to enter a confined area of stadium. The plaintiffs argued that a duty
was owed to them if damage in the form of psychiatric illness was
reasonable foreseeable.
• The Court held that one of the plaintiffs failed to prove that he did
had a close relationship with the victims. The plaintiffs’ claim failed as
they only saw the body nine hours after the tragedy.

13. PAGE V SMITH
• Plaintiff involved in an accident but suffered no physical
injury. However, this triggered his chronic fatigue
syndrome (ME) when he was actually in the process of
recovering. As a result, he could not work anymore.
• The Court held that it was foreseeable that he would be
exposed to physical injury. He may recover for both
physical harm and psychiatric illness arising from the
accident.

14. PENDAFTAR & PEMERIKSA KERETA-KERETA
MOTOR V KS SOUTH MOTOR SDN BHD
•The plaintiff found out that the car bought was
actually a stolen car.
•The Court held that the defendants were liable as
there was foreseeability and proximity between the
parties. A duty arise towards a paying class of
persons who would clearly rely on defendant’s
information.

15. DULIEU V WHITE (PRIMARY VICTIM)
•The plaintiff suffered shock which resulted in a
miscarriage when the defendant’s van
crashed into a public bar when she was
serving drinks.
•The Court held that the defendant liable for
causing her to be in fear of her own personal
safety.

16. MCLOUGHLIN V O’ BRIAN (SECONDARY VICTIM)
• Plaintiff’s husband and her children met an accident. One
of the children died and the others were seriously injured.
Plaintiff suffered nervous shock when she saw the condition
of the husband and children.
• The Court held that the defendant did not owe a duty of
care to someone who was not at the scene. The
foreseeability of injury by shock alone is insufficient.

18. GLASGOW CORPORATION V MUIR
• A large tea urn was being carried along the corridor by two
adults, to the main room of the tearoom. For a reason which
was not explained, the hold of one of the bearers slipped so
that tea was spilt and scalded several children.
• The Court held that it was not reasonably foreseeable that
allowing the children to come into the premises would result
in one of them being scalded. A reasonable man would not
have foreseen such an accident in the circumstances.

19. PHILIPS V WILLIAM WHITELEY
• Plaintiff contracted a disease which she would
not have contracted if her ears had been
pierced by someone with medical skills.
• The Court held that the standard of care required
of a jeweller when piercing a person’s ears for
purposes of wearing earrings is that of a skilled
and competent jeweller doing such work not that
of a competent surgeon.

20. ROBERTS V RAMSBOTTOM
•The defendant was completely unaware
that he had suffered a stroke before
getting into his car. He then collided and
injured the plaintiff.
•The Court held that although he was
unaware of his health condition at the
time of accident, defendant liable.

21. BOLAM V FRIERN HOSPITAL MANAGEMENT
COMMITTEE
• Plaintiff’s pelvis was broken during receiving medical
treatment. The defendant did not warn plaintiff of the
risks involved and did not give any relaxant before
the treatment. Defendant also did not hold down the
plaintiff’s body while the treatment was being
administered.
• The Court held that the defendant was not liable as
he followed the standard of reasonable doctors.

22. BOLTON V STONE
•The plaintiff was hit by a cricket ball. The
incident was foreseeable as the defendant
knew that cricket balls had been hit out on
previous occasions although rarely happened.
•The Court held that defendant was not liable.
Life would be inconvenient if precautionary
measures are to be taken for all foreseeable
risks.

23. HILDER V ASSOCIATED PORTLAND CEMENT
MANUFACTURERS LTD
•The plaintiff who was riding his motorcycle on
the highway was killed when a football went
onto the highway.
•The Court held that the defendant liable for
allowing the children to play football as the
likelihood of injury to passers-by was greater
than in Bolton’s case.

24. PARIS V STEPNEY BOROUGH COUNCIL
•The plaintiff was completely blind when a
piece of metal hit his good eye when he was
working.
•The Court held that employer had a duty of
care to ensure the safety of the employees.
Googles should have been provided for the
plaintiff. The risk of injury to the plaintiff is higher.

25. HAMZAH V WAN HANAFI
•The plaintiff, a passenger jumped off from the
train and injured himself before the train fully
stopped.
•The Court held that the defendant was not
liable because they had taken all the
reasonable & sufficient to safeguard the
passengers’ safety. There were written notices
and oral warnings in the train.

26. Negligence (DAMAGE)
Causation in
Fact
Causation in
Law

28. BUT-FOR TEST (BARNETT V CHELSEA & KENSINGTON
HOSPITAL MANAGEMENT COMMITTEE)
• Three security guards went to the defendant’s hospital
when they started vomiting after drinking tea. The nurse on
duty telephoned the doctor who then instructed the nurse
to tell them to go home and to call their own doctors. In the
afternoon, plaintiff’s husband died due to arsenic
poisoning.
• The Court held that the doctor had breached his duty for
not treating the patients. However, the evidence showed
that the patient would still have died if the doctor had
treated them. The defendant was not liable.

29. MULTIPLE CAUSES (WILSHER V ESSEX AREA HEALTH
AUTHORITY)
•The plaintiff’s blindness could have been
caused by one or more of different agents and
it was not proved that the blindness was caused
by the failure to prevent oxygen being given to
him.
•The Court held that plaintiff had failed to
discharge the burden of proof required of him.

30. CONCURRENT CAUSES (FITZGERALD V LANE)
•1st defendant hit plaintiff when he was
crossing a pelican crossing causing the
plaintiff was thrown onto the bonnet of the
car and back onto the road where plaintiff
was hit by the 2nd defendant.
•The Court held that although it could not
be established which of the cars caused
his injury, both defendants were held liable.

31. CONSECUTIVE CAUSES (PERFORMANCE CARS V
ABRAHAM)
•The defendant’s car collided into plaintiff’s car and
the damage required part of the plaintiff’s car to be
resprayed with new paint. The same part of the
plaintiff’s car was already damaged by an earlier
accident and the damage had not been repaired.
•The Court held that defendant was not liable as
plaintiff’s car had already damaged. His negligence
did not cause the damage.

32. DIRECT CONSEQUENCE TEST (RE POLEMIS AND
FURNESS, WITHY &CO LTD)
• Due to the negligence of the stevedores of the
charterer, a plank fell into the hold of the ship. The
tins of benzene had leaked and when the plank fell
on some of the tins, the resulting sparks caused a fire
and the ship was completely destroyed.
• The Court held that the charterers liable for all the
loss which was a direct consequence of the
negligence amounted to $1 million although the loss
could not have been foreseen.

33. REASONABLE FORESIGHT TEST

35. FORESEEABLE DAMAGE (BRADFORD V
ROBINSON RENTALS LTD)
•The van which the plaintiff was driving did
not have a heater causing the plaintiff to
suffer from frostbite.
•The Court held that frostbite was a type of
illness that was a foreseeable as a
consequence of exposure to cold
weather. The defendant held liable.

36. DAMAGE IS IRRELEVANT (VACWELL
ENGINEERING V BDH CHEMICALS)
• The defendant sold a chemical to the plaintiff without
informing him that it might explode if it came in contact
with water. The plaintiff placed several test-tubes
containing the chemical in a sink and while washing
the test-tubes, one of them fell and broke. It exploded
and killed the plaintiff.
• The Court held that the defendant held liable because
the damage was initially foreseeable.

37. Damage is irrelevant
Eggshell skull
rule
The plaintiff’s
impecuniosity

38. EGGSHELL SKULL RULE (SMITH V LEECH-BRAIN)
•Due to the defendant’s negligence, the plaintiff’s
husband was burnt on the lip by a piece of molten
metal. The plaintiff’s husband had a tendency to
contract cancer and the burn caused a
cancerous growth from which he died three years
later.
•The defendant held liable. Healthy person would
not have developed cancer in the same situation.

39. PLAINTIFF’S IMPECUNIOSITY (LIESBOSCH
DREDGER V EDISON SS)
•Principle : The plaintiff could not claim
for the additional cost as it was not an
immediate physical effect of the
defendant’s negligence. If the
damage is foreseeable can the
damage be recovered.

40. Intervention Act
A
natural
event
Third
party
Plaintiff

41. NATURAL EVENT (CARSLOGIE STEAMSHIP CO V
ROYAL NORWEGIAN GOVERNMENT)
•Principle : Defendant held not liable for
the damage to the plaintiff’s ship
caused by bad weather as the damage
was not a consequence of the 1st
collision. The 2nd damage was a natural
intervening event. Thus defendant was
not liable.

42. THIRD PARTY (SCOTT V SHEPHERD)
• The defendant threw a lighted squib into open market
and two other defendants, one after the other, picked up
and threw the squib and finally hit and injured the
plaintiff.
• The Court held that the act of the 2nd defendant was an
act of self preservation which was reasonable and
foreseeable and therefore the injury to the plaintiff was
caused by the 1st defendant.

43. PLAINTIFF (MCKEW V HOLLAND)
• Due to defendant’s negligence, the plaintiff suffered some
injuries on his leg. A few days later, he was descending the
steps and suddenly lost control. In order to avoid from
falling, he jumped down and fractured a bone.
• The House of Lord held that to jump in an emergency
situation did not necessarily break the chain of causation.
However in this case, the plaintiff had broken the chain of
causation as he had placed himself in the emergency
situation. His conduct was unreasonable.

44. PROOF OF NEGLIGENCE

46. VOLENTI NON FIT INJURIA
A man
consents
cannot be
considered
an injury
Consent/
assumpti
on of risk
The
consent or
assumption
of risk must
be
voluntary
Full
knowledge

47. The facts of
which the
plaintiff was
fully
appraised,
gave rise to
the injury.
The plaintiff
voluntarily
undertook to
be responsible
for the risk.

48. CONSENT/ASSUMPTION OF RISK (SLATER V CLAY
CROSS CO LTD)
•The plaintiff was walking along a tunnel on a
railway track which was owned by the
defendants. Due to defendant’s negligence,
plaintiff was injured.
•The Court held that the plaintiff could be said to
have voluntarily assumed the risk of danger,
she could not be said to have agreed to the risk
of negligence by the driver.

49. FULL KNOWLEDGE (LEE GEOK THENG V NGEE TAI
HOO)
• The plaintiff was a pillion rider of a motorcycle which was
involved in an accident. The plaintiff claimed for general
and special damages against the first and second
defendants, who were the registered owner and rider
respectively of the motorcycle. The defendants raised the
defence of volunti non fit injuria.
• The Court held that the second defendant was negligent
beyond reasonable doubt. Every rider of a motorcycle
owes a primary duty of care to his pillion unless expressly
waived for some inexplicable reason and in the most
extraordinary circumstances. The defendants held liable.

50. BOWATER V ROWLEY REGIS CORPORATION
• The defendant ordered plaintiff, despite his protests
to take out a horse known by the former to be
dangerous. The plaintiff was injured when the horse
bolted and the plaintiff was thrown off the cart.
• The Court held that the defence of volenti non fit
injuria was rejected as the work in which the plaintiff
was normally engaged in did not involve an element
of danger.

51. WOOLDRIDGE V SUMNER
•The plaintiff was a spectator cum
photographer in a horse-racing
competition. He sustained some injuries
when one of the horses skidded.
•The Court held that defendant not liable
because he had taken reasonable
precautions and had discharged his duty
of care.

52. HAYNES V HARWOOD
•The defendant left his horse and
carriage at the side of a busy street.
The horse bolted onto the road. The
plaintiff was injured when he tried to
calm the horse down.
•The Court rejected the defence and
held that defendant liable.

53. DANN V HAMILTON
• The claimant was injured when she was a willing
passenger in the car driven by the Mr Hamilton. He had
been drinking and the car was involved in a serious
crash which killed him. In a claim for damages the
defendant raised the defence of volenti non fit injuria in
that in accepting the lift knowing of his drunken
condition she had voluntarily accepted the risk.
• The Court held that he still owed duty of care towards
plaintiff although he was drunk. Therefore, volenti failed.

54. Elements of Contributory
Negligence
The plaintiff is not
required to have
a duty of care
towards
defendant. The
defendant
should act
reasonably.
The plaintiff has
failed to take
reasonable care
of himself.
The act/omission
must be the
cause of his
injury which must
be foreseeable.

55. JONES V LIVOX QUARRIES LTD
•The plaintiff disobeyed his employer’s
instructions by riding on the back of a
traxcavator. Another vehicle hit the back
of the traxcavator and the plaintiff was
injured.
•The Court held that plaintiff was
contributorily negligent because it was a
consequence of the plaintiff’s behaviour.

56. DILEMMA (JONES V BOYCE)
•The plaintiff reasonably believed that the
coach in which he was a passenger was
about to overturn due to the negligent driving
by the defendant. He jumped off from the
coach and broke a leg. The coach however
did not overturn.
•The Court held that the plaintiff was not
contributorily negligent as his reaction was
reasonable in the circumstances.

57. CHILDREN (YACHUK V OLIVER BLAIS)
•The plaintiff was nine-year old who bought
the gasoline from the defendant. Plaintiff
lied by saying that he bought it for his
mother. He eventually hurt himself when
the gasoline was lit.
•The Court held the defendant liable
because the plaintiff was least aware that
he was not supposed to play with gasoline.

58. MECHANICAL DEFECT/EVITABLE
ACCIDENT (CHE JAH V CC SCOTT)
•The plaintiff was injured when defendant’s
car hit a stationary car. The defendant
gave evidence that he had sent the car
to the workshop and the brakes were
functioning well.
•The Court held that the defendant was
not negligent as he had employed skilled
labour.

59. EXCLUSION CLAUSE (BUCKPITT V OATES)
•The plaintiff saw a notice of exclusion clause
before took a lift in a defendant’s van where
he bound to take his own risk and defendant
would not be liable for any loss. The plaintiff
subsequently suffered some injuries due to
defendant’s negligence.
•The Court held that the plaintiff bound to the
notice.