Chapter 6

Law of Torts
&
Professional
Negligence
MUHAMAD IKHWAN BIN MOHD ZAIN
UiTM PERAK BRANCH TAPAH BRANCH

Intention during class: "O Allah, increase my knowledge" (20:114)

At the end of the topic, you can
a) Explain the meaning of tort.

b) Identify the major torts.

c) Explain the tort of negligence including the duty of care and its breach.

d) Explain the meaning of causation and remoteness of damage.

e) Discuss defenses to an action in negligence.

f) Explain the concept of professional negligence.

g) Explain or analyse the duty of care of accountants and auditors

Intention during class: "O Allah, increase my knowledge" (20:114)
MATERIAL
1. Lecture Notes
2. Textbook
3. Youtube

Intention during class: "O Allah, increase my knowledge" (20:114)

ASSESSMENT & REFLECTION
1. FINAL EXAM TOPIC (10%)

Intention during class: "O Allah, increase my knowledge" (20:114)

 Agenda
Definition
of Tort
01 02 Tort of
Negligence
The Major Tort 3 elements of
negligence

Defence
03 04 Professional
Negligence
Contributory Negligence Accountant
Auditor

Intention during class: "O Allah, increase my knowledge" (20:114)

01
Definition
of Tort

Intention during class: "O Allah, increase my knowledge" (20:114)

Meaning of Tort

Latin phrase Legal Term Winfield

Tortus= Twisted @ Wrong A legal wrong which the Tortious liability arises
law provides legal remedy when there is breach f a
duty primarily fixed by the
law and redressible by an
action for unliquidated
damages

Intention during class: "O Allah, increase my knowledge" (20:114)

 Types of Tort
Trespass to
person Negligence
Eg: Assault, Battery, Neptune is the farthest
False Imprisonment planet from the Sun

Trespass to
Land Defamation
Despite being red, Mars
is a cold place

Trespass to
Goods Nuisance
Pluto is considered a
Conversion and Detinue dwarf planet
Intention during class: "O Allah, increase my knowledge" (20:114)
02
Definition of
Negligence
The breach of a legal duty to
take care which result in
damaes to the plaintiff
undesired by the defendant

Intention during class: "O Allah, increase my knowledge" (20:114)

 Blyth v Birmingham
Waterworks Co
(1856)
“Negligence is the omission to do
something which a reasonable man,
guided upon those considerations which
ordinarily regulate the conduct of human
affairs, would do; or doing something
which a prudent and reasonable man
would not do”.
Lochgelly Iron &
Coal v M’Mullan
[1934]
“More than heedless or careless conduct,
whether in omission or commission; it
properly connotes the complex concept of
duty, breach and damage thereby suffered
by the person to whom the duty was owing”
Intention during class: "O Allah, increase my knowledge" (20:114)
3 elements of Negligence

01 02 03
DOC BODOC COD
Plaintiff must prove That duty of care is DAMAGE occurred
that there exists A not duly performed and suffered by the
DUTY OF CARE on or BREACHED; i.e. plaintiff due to the
the part of by the commission defendant’s breach
defendant or omission of the of his duty of care
defendant

Intention during class: "O Allah, increase my knowledge" (20:114)

1. DUTY
OF CARE
APPLYING NEIGHBOUR PRINCIPLE!

Are they neighbour to each other?

If yes → there is duty of care!

Donoghue v. Stevenson [1932] AC 562

“You must take reasonable care to avoid acts
or omissions, which you can reasonably
foresee, would be likely to injure your
neighbour…”

Intention during class: "O Allah, increase my knowledge" (20:114)

Neighbourhood Principle
Would a reasonable man, who is
in the same circumstances as
the defendant, foresee that his
conduct will adversely affect the
plaintiff?
If ‘No’, P is not D’s neighbour =No
duty
If ‘Yes’, P is D’s neighbour = Duty
arises
Intention during class: "O Allah, increase my knowledge" (20:114)
The answer seems to be–
“persons who are so closely and directly
affected by my act that I ought
reasonably to have them in
contemplation as being so affected
when I am directing my mind to the
acts or omissions which are called in
question…”
Donoghue v Stevenson [1932] AC 562
 2. Breach of
Duty of Care
● A duty is said to have been complied at certain
point/yardstick/standard.
● If this standard is not successfully reached,
that means such duty has been breached.
● The next task to do is to identify that Standard
of Duty that has to be complied with at the
particular circumstances in which a duty of
care arises.
● An ordinary or unqualified person who holds
himself out as possessing certain skill – Which
standard applies: ordinary or professional?
● James Foong J. in Steven Phoa Cheng Loon v.
Highland Properties [2000] 4 MLJ 200: The law
would judge him by the standards of a
reasonably competent qualified person.

Intention during class: "O Allah, increase my knowledge" (20:114)

 Factors

1. 2. 3.
Magnitude Importance of Practicability
of the risk the purpose of Precaution
Paris v Stepney Borough Watt v Hertfordshire Latimer v AEC Ltd
Council
PP [1954] [1953]
P (one-eyed man) was employed by Closing the factory was
D to work in conditions involving
Daborn v Bath Tramways not impractical. D was
some risk of eye injury without “the purpose to be served, not negligent, P lost the
protection – goggle was not if sufficiently important, case.
necessary for normal worker – P justifies the assumption of
was injured and was totally blind – abnormal risk.”
Crt held that P’s condition
increased the risk – D was
negligent.
Intention during class: "O Allah, increase my knowledge" (20:114)
3. REMOTENESS OF DAMAGE
Whether damages may be recovered for particular item.

Causation?
Plaintiff is required to also show/establish the CAUSAL
LINK between the breach of duty of care AND the
damage itself.

That causal link must be present, unbroken and not too

remote.

It must be proven that the defendant’s negligent act or

omission was the effective cause of the injury or
damage suffered by the plaintiff!

Intention during class: "O Allah, increase my knowledge" (20:114)

Existing states of affairs
1 3
Pecuniary amount
of the damages 2 Egg-Shell Skull
Principle 4
If the injured person is a
high-income earner, the
loss will be great Extent “Defendant must take his Plaintiff
victim as he finds him” Impecuniosity
Def should foresee the Chin Keow v Govt. of the
type of damage Fed. of Malaya
regardless the H: Doctor was liable for Is Plaintiff suffer more
seriousness and giving a patient (allergic damages, such loss is
manners. to penicillin) an injection too remote.
Vacwell Engineering Co. of procaine penicillin
Ltd. v BDH Checimals from which the patient
Ltd. died within an hour.
Intention during class: "O Allah, increase my knowledge" (20:114)
Intervening Acts or Events:
No causation
Novus Actus
Interveniens (NAI)

Intention during class: "O Allah, increase my knowledge" (20:114)

 1. Natural Event
Carslogie Steamship Co. Ltd. v Royal Norwegian
Government [1952]

2. 3rd Party
Steven Phoa Cheng Loon v Highland Properties
[2000]

3. Act of the Plaintiff

McKew v Holland & Hannen & Cubitts (Scotland)
Ltd [1969]

Intention during class: "O Allah, increase my knowledge" (20:114)

Professional
Negligence
Swamy v. Matthews [1968] 1 MLJ 138
A man or a woman who practices a profession
is bound to exercise the care and skill of an
ordinary competent practitioner in that
profession – be it an accountant, a banker, a
doctor, a solicitor or otherwise.

Bolam v Friern Barnet Hospital

Management Committee (1957)
There may be one or more perfectly proper
standards; and if the medical man conforms
with any one of those proper standard then he
is not negligent.
Intention during class: "O Allah, increase my knowledge" (20:114)
 Elements

1 2 3
Commit negligence in the Seek information or The person give info or advice
ordinary course of business advice from anotherr is not under a contractual or
or professional affairs. fiduciary obligation to give

:. If fulfilled all
4 5 elements, then the
The info or advice is The person asked for professional is
relied on info or advice said to do
chooses to give that negligence
Intention during class: "O Allah, increase my knowledge" (20:114) info
Duty of Care for Professional

Accountant Auditor
Can be liable if;
Can be liable if:
1. The negligence from the auditor made the
1. Detect a fraud but falied to report.
company failed to avoid the damages.
2. She aware of the reliance from third party.
2. Company have avail itself to the opportunity.
3. Prepare a report but misleading
3. The lost opportunity had an economic value.
Intention during class: "O Allah, increase my knowledge" (20:114)
Defence to action

1 2 3

No No No
Negligence DOC Financial
Loss
There has been no No duty of care was owed In the case of actions in
negligence to the plaintiff in the tort, no financial loss
circumstances has been suffered by the
plaintiff.
Intention during class: "O Allah, increase my knowledge" (20:114)
 Contributory Negligence
Effect?
Prevent the plaintiff to
claim or recover nothing.
What? Plantiff failed to take his
Common law absolute reasonable care which
defense to a claim cause damages.
based on negligence by
the defendant.

How? Different with

Plaintiff have his own Contribution
negligence contributed to Def seek the third
cause the damages they party to pay some to
inccured as a result of the Plaintiff.
Defendant’s negligence.
Eg: Pedestrian vs driver
Intention during class: "O Allah, increase my knowledge" (20:114)
Checklist to establish the TON
✓ P must fulfill ALL elements of the Duty of Care, Breach of
Duty by D and Damage caused by D to P.
✓ If any of the three is not fulfilled, the suit fails.
✓ Duty of Care exists between P&D if they are “neighbours
in law”
✓ The court will use a Reasonable Man’s standard in
assessing the breach of duty
✓ If the breach of duty exists but not proven to be the
operative cause of the damage to the P, then Causation
is not there. Therefore, the suit fails.
✓ In assessing the above, understanding specific
circumstances of the case is critical.

Intention during class: "O Allah, increase my knowledge" (20:114)

Thank You!
“ONE QUOTE ONE TOPIC”

Intention during class: "O Allah, increase my knowledge" (20:114)