Negligence – 1.

One fails to take reasonable care to avoid causing

Duty of Care damage to another person

2. Negligence law requires the defendant to compensate

the parties who have suffered loss / damage

3. Elements of the tort of negligence, a claimant /

plaintiff must establish that
- The defendant owes a duty of care towards the plaintiff
- The defendant has breached the duty of care
- The plaintiff has suffered damage in consequence of
the breach

4. Duty of care
- Makes a person responsible for taking reasonable care
to avoid harm being caused to another
- Exists due to the nature of the relationship between the
parties
- Duty of care arises when there is;

i. Fiduciary relationship
- One party has a substantial degree of control / reliance
over the actions of another
- Example ; lawyer-client, teacher-student

ii. Common relationship

- Includes duty owed by a driver to other drivers
5. Test / principles to establish/ascertain duty of care
i. Prior Donoghue (Bernett MR)
ii. Neighbour principle in Donghue (identifying class
of people)
- Lord Atkin ruled out the neighbour principle as a
threshold test in negligence claim
- ‘You must take reasonable care to avoid acts /
ommissions, which you can reasonably foresee, would
be likely to injure your neighbour. Who then in law is
my neighbour? The answer is persons who are closely
and directly affected by my act’
- Two requirements of neighbour principle
• Reasonable foreseeability
• Relationship of proximity
- Types of proximity
• Physical proximity
- Between the person or property of the plaintiff and the
person/ property of the defendant
• Circumstantial proximity
1. Heaven v Pender
2. Donoghue v Stevenson [1932]
- The appellant sued the respondent to claim damages for
a decomposed snail in the bottle the respondent has
manufactured. The bottle was made of dark opaque
glass.
- The appellant had no reason to suspect that the the bottle
contained anything but pure ginger beer
- The appellant consumed the drink and suffered from
shock and severe gastro-entritis
- The appellant’s claim on breach of contract failed but
then she appealed under negligence
3. Hedley Byrne v Heller [1964]
4. Home Office v Dorser Yacht Co Ltd [1970]
- Lord Atkin’s neighbour principle was approved in this
case
- Borstal boys under supervision of prison officers were
encamped (settling / retreat) on an island. Some of them
attempted to escape from the island boarded a yacht.
While maneuvering, they damaged it
- Overriding relationship between employer-employee,
professional-client
• Causal proximity
- Sense of closeness/directness of the causal
connection between the defendant’s act and the loss
sustained by the plaintiff
iii. Two-stage test in Anns
- Lord Wilberforce introduced this test
- ‘One has to ask whether there is a sufficient
relationship of proximity or neighbourhood, and
whether there are any considerations which ought to
reduce the scope the duty or the class of person to
whom it’s owed’
- Thus, it is to establish
• Whether there is a sufficient relationship of proximity
based upon foreseeability
• To consider the reasons why there should not be a
duty of care or class of persons to whom the duty is
owed
iv. Three stage in Caparo
- To establish the existence of duty of care
• Whether the damage is reasonably foreseeable
- It was held that there was a close and direct relationship
between the officers and the owner of the yachts
- The officers had duty to take reasonable care to prevent
them from interfering with the yachts and damaging them
5. Anns v Merton London Borough [1978]
- The plaintiffs are flat lessees in double-storey building
that was built by the local authority
- The block of flats were found to be defective due to
structural defects
- The plaintiffs sued the defendant for negligence in
approving the foundations and for failing to inspect them
- The court held the duty of care did exist and was owed to
the owners and tenants of the houses
- The negligent resulting in cracks to the building
amounted to material physical harm
6. Caparo Industries v Dickman [1990]
- Anns two-stage was rejected in Caparo
 • Whether there is a close and direct relationship of
proximity between the plaintiff and the defendant
• Whether it would be fair and reasonable to impose
a duty of care in such circumstance
• Will not apply in established situations like doctor-
patient, employer-employee
• The court will look whether there is an
established legal position between the two
parties, examine whether a new duty of care
should be created
6. Criteria for establishing duty of care (Caparo stage)
7. Murphy v Brentwood District Council [1991]
- The claimant purchased a house from a house-builder
who had built a large estate
- The house was built on a concrete raft foundation that
subsequently failed
- It was held that there was no general duty of care on local
authorities to ensure the compliance with building by-
laws
- The claimant sold the house less than its value if it
doesn’t have defects, and sought the difference in value
from the council
- The defendant council did not owe the claimant a duty to
safeguard him against pure economic loss
• Lok Kok Beng v Loh Chiak Eong [2016]
• Whether the damage suffered by the plaintiff is - The appellant under the SPA terms and condition would
reasonably foreseeable to the defendant obrain vacant possession of the units purchased within
24 months
- The appellant sued the developers and the architects
under negligence for financial loss due to the late delivery
of vacant possessions of their industrial units
- It was held that architect was not responsible for delay in
obtaining approval, it was not within their scope. Was not
reasonably foreseeable
- It is unfair to impose the duty of care on the architect to
be responsible for what isn’t in their jobscopes

• Ku Pon v Pemandangan Sinar Sdn Bhd [2004]

- The plaintiff claimed that the defendant has published
untrue article regarding certain family members of the
plaintiffs who were kidnapped
- Defendant’s negligence has led the kidnappers to
demand additional ransom money which Plaintiff could
not raise
- It was held that the P’s claim was dismissed as no
reasonable person could foresee that the plaintiff could
be injured by such reporting

• Majlis Perbandaran Ampang Jaya v Steven Phoa

Cheng Loon & Ors [2006]

• Whether there is close and direct relationship or
proximity between the plaintiff and the defendant
• Whether it is fair, just and reasonable that the
defendant should owe the plaintiff duty of care
- The court in Caparo Industries Plc v Dickman
formulated three-fold test that harm caused should be
fair, just and reasonable
- there can be no recovery of pure economic loss against
a local authority on grounds of public policy
• Donoghue v Stevenson [1932]
• Yuen Kun-Yeu v AG of Hong Kong [1988]
- The plaintiff sued the defendant for negligence that the
commissioner ought to have registered the companies
that later went into liquidation
- It was held that there was no proximity established
between the commissioner-taking companies and the
depositors
• Marc Rich v Bishop Rock Marine [1996]
• Master Brisbane ak Itang v Robinson Lee [2014]
- The COA stated that it was unfair to impose a common
law duty of care on the department/ministry of health that
the appellant be immunized against the Japanese
encephalitis virus since;
- There was no recent outbreak nearby the school prior to
incident
- Immunisation program has been held nationwide
- There shortages of vaccines
- Would open a floodgate of litigation
Specific Duty Of 1. Pure Economic Loss
Care - Incurred as a result of physical injuries or damage to
property, hence it is recoverable
- Loss suffered by a plaintiff due to the negligence of the
defendant which does not arise from them is not
recoverable
- A claim for this is only recoverable if it is due to
consequential damage to the person / property
1. Spartan Steel Alloys v Martin [1973]
- The defendant cut off an electric cable that caused power
failure at the plaintiff’s factory, a steel alloys manufacturer
- It has caused the value reduction of melt, the plaintiff
claimed for the profit due to the damaged melt and due to
electricity cut as well as expected salary
- The court held rejected the third claim, it was pure
economic loss, must be from physical damage

2. Tenaga Nasional Berhad Malaysia v Batu Kemas Industri

Sdn Bhd (and Another Appeal) [2018]
- The Public Works Department appointed a contractor to
execute works at R&R area. They asked TNB to remove
and relocate the electrical lines and cables from the site
- It was not executed, and caused a power disruption to the
plaintiff’s factory, then loss
- The claimant entitled to recover the profits because the
losses were the result of physical damage to his property

Can a purchaser of a defective premise claim pure economic

loss?
Non-recoverable claims : 3. Murphy v Brentwood District Council [1991]
1. Defective premise - The plaintiff bought a house and sold it cheaper than the
market price because it has defective foundation
 - The plans for the building of the house was approved by
the Council, but they didn’t know that there had been
calculation error which caused the defect
- Whether the defendant owed a duty of care to prevent
loss the plaintiff has suffered (result of their approval)
- It was economic loss, but not physically, thus the
defendant was not liable in negligence.
- There would be an unacceptably wide liablility if the
decision is to allow damages for the money lost on the
sale of the property

4. Majlis perbandaran Ampang Jaya v Steven Phoa Cheng

& 81 ors [2006]
- following Caparo to determine liability of local authority
regaring defective premises
- The FCJ held that it is unfair for MPAJ to be liable, as to
impose the duty of executing the plan to stabilise the hill
slop on Arab Malaysian Land. Thus, it is a burden / unfair
to allow claim on pure economic loss against them

5. Hedley Byrne & Co v Heller [1964]

- The plaintiff is an advertising agent who went into a
contract with the defendant, which is bankers
Recoverable claims : - They asked the defendant’s information on a credit
1. Negligent misstatement reference to protect themselves
 - Reasonably relied on the proper statement / - They relied on the advise but then suffered loss when
performance of defendant’s service their client went liquidated
- The plaintiff belongs to a particular class of person - The court found that the defendant’s disclaimer of duty of
- The defendant knows his advice will be relied on care was sufficient to not impose liability on them

Factors to determine special relationship

(to rise duty of care) :
- The plaintiff believes and relies on defendant’s
information / advice
- The defendant knows the plaintiff relies on his advice
- It is reasonable that the plaintiff relies on the advice

6. Mutual Life & Citizen’s Insurance v Evatt [1971]

- The plaintiff is a policy holder of the defendant’s company
- He asked for an advice on the soundness of finance of P
Ltd
- Then plaintiff invested but lost his money
- The defendant was not liable as it was not his duty of
care, and was not his business to give advice

7. Kerajaan Malaysia v Cheah Foong Chiew [1993]

- The plaintiff claim damages on the defendant’s
negligence during their supervision on constructing a
building
Pure Economic loss in Malaysia
 - The plaintiff argued that they failed to supervise and
caused loss in the repair
- The loss was not recoverable, according to Murphy’s
case

2. Nervous Shock
- Generally there’s no compensation
- There’s distinction between primary and secondary
victim
Primary Victim ;
- Within the range of physical injury
- Not required to prove reasonable foreseeability
- Sufficient to show the defendant could reasonably
foresee the plaintiff would suffer due to his careless
manner
- Still considered a victim even doesn’t suffer physical
injury but still within the range

I. Alcock v Chief Constable of South Yorkshire

- A part of stadium collapsed and caused 96 killed, 450
injured
Elements to prove secondary victim suffers from nervous - Broadcasted live on tv and radio
shock :
I. Had a close tie of love and affection with the person - Uninjured people who were not physically injured
injured suffered shock (sit in the area of collapse, watched
- The plaintiff establish there is a close tie between him through tv and radio)
and the injured person - The court dismissed their claims

Can a bystander claim for nervous shock?

II. Bournhill v Young [1993]
- The defendant negligently ride his motorcycle, collided
with a car and he himself suffered injuries
- The plaintiff heard the crash and she witnessed the
aftermath
- She was pregnant and suffered nervous shock and stress
due to the negligence of the defendant
- Whether the defendant owed a duty of care to the plaintiff.
Reasonably foreseen that he might cause a psychiatric
damage to a person who saw the crash
- The defendant was not liable as it was not foreseeable,
nor it was sufficient that the plaintiff is of any proximity to
the accident

III. McFarlane v EE Caledonia [1994]

- The claimant was on a vessel, attending a serious fire
that had broken out on oil rig, owned by the defendant
- The fire caused significant loss of life and serious injuries,
and the claimant did not witness these

- He was close to the accident in terms of time and
space
- But he suffered psychiatric injury, and brought action
towards the negligence of the defendant
- Whether the D owed a duty of care towards C
- No duty of care owed, the defendant did not participate
as a rescuer and he couldn’t be a victime, let alone
considering C as a secondary victim
IV. McLoughlin v O’Brian [1983]
- The claimant’s husband and children got into a road
accident, collided with a lorry driven by the first defendant
but owned by the second defendant
- The claimant (C) was informed and was drove by her
neighbour to get to the hospital
- She arrived and acknowledged that her daughter died
and witnessed the injuries suffered by her husband and
other children
- C suffered severe shock resulted in psychiatric ilness,
and claimed for negligence
- Whether the defendants owed duty of care towards C
- The court held that there is duty of care of D to C, the
court extended the class of proximity to those who come
within the immediate aftermath of the event
V. Dooley v Cammel Laird & Co Ltd [1951]
- The claimant (C) was a crane operator, he loaded
material from a quay onto a ship, when its rope snapped.
- The load dropped in to the hold of the ship but he cant
see where workers were standing.
- Nobody was injured but C suffered shock due to the
thought that anybody can be injured
- The said shock affected his pre-existing neurasthenia
and he was unable to go back to work
- He was entitled to damages for the psychiatric injury. The
defendant provided a weak rope for the said task and
caused the injury

VI. Jaensch v Coffey [1984]

- The defendant’s husband was injured due to the
claimant’s negligent driving
- The defendant suffered nervous shock after
acknowledging her husband might pass away and seeing
his condition
- Her husband survived but there was already damage
after the mrs coffey saw her husband’s treatment
- The claim was allowed, the aftermath of an accident
includes treatment of the injured.

VII. Alcock v Chief Constable of South Yorkshire

VIII. McLoughlin v O’Brian
 - He directly perceived the accident instead of hearing
from a third person
IX. Mohd Ridwan Abdul Razak v Asmah Mohd Nor
- The defendant loged a complaint against the plaintiff, to
the employer that she had been sexually assaulted
- The defendant filed a counterclaim, she had suffered
serious mental stress and was ill
- The act that caused psychological effect to the victime
can rely on the liability rule in Wilkinson v Downton

• Wheat v E Lacon Co Ltd [1996]

• Lembaga Kemajuan Tanah Persekutuan v Mariam [1984]
3. Occupier’s Liability • Sri Inai (Pulau Pinang) Sdn Bhd v Yong Yit Swee [2003]
- Occupiers Is the person who has control over premises
- Relates to injuries caused to them by dangerous states of
the premises

Categories of Entrants :
- Contractual = Enter a premise under a contract
- Invitees = Enter on business of interest such as a customer
entering a shop
- Licensees = Enter with implied permission such as guest of
a dinner
- Wheat v Lacon (E) & Co Ltd
- Trespasser = enter premises unlawfully
- Lau Tin Sye v Yusuf Muhammad, Lee Lau & Sons Realty
v Tan Yah
Duty To Entrants - Datuk Bandar Dewan Bandaraya KL v Ong Kok Peng,
- Contractual Edwards v Railway Executive
 - Invitee
- Licensee
- Trespasser
Breach of Duty - Once there is a duty of care, the claimant must
prove there is a breach of duty.
- The court will impose a reasonable man’s test
1. The objective standard – reasonable man test
- Assess what would a reasonable person would have
done or not done in the particular incident.
2. Specific Cases
I. Motor Vehicle Accident
- The defendant’s duty is to exercise reasonable care and
skill
- Plaintiff must prove the defendant has breached
standard of care as a competent driver
- Lembaga Letrik Negara v Ramakrishnan [1982], Sinuri
Tubar v Syarikat East Johore Sawmills Sdn Bhd [1987],
british Railway v Herrington [1972]
1. Glasgow Corporation v Muir [1943]
- The court stated that there is no absolute standard, as the
standarad of care varies with the risk involved. Those who
engaged in operations associated with danger must take
precautions which are not required with operations of
ordinary daily routine.
2. Bolton v Stone [1951]
3. KR Taxi Service Ltd v Zaharah [1969]
- A driver is not under a duty to be a perfectionist to
anticipate other drivers being negligent in driving
- The degree of care is not the same between driving on an
open country road and a crowded city street
4. Chan Peng Fook v Kan Pak Lee [1974]
5. Poi Kuen Mun v Ng Wei Choo [1983]
II. Medical Negligence
- Bolam-Bolitho Standard o Case of Bolam-Bolitho, Chin Keow
o Duty to diagnose o Case of Roger v Whitaker, Foo Fiona
o Duty to treat o Cases of Bolam-Bolitho, Elizabeth Choo
o Duty to warn / advise

6. Lok Kok Beng v Loh Chiak Eong [2015]

III. Professional Negligence 7. Steven Phoa Cheng Loon v Highland Properties [2000]
- Architects, engineers, housing developers