‫ِيم‬

‫ِ‬ ‫ح‬ ‫ٱلر‬

‫َّ‬ ‫ن‬
‫ِ‬ ‫ـ‬
‫ٰ‬ ‫م‬
‫َ‬ ‫ۡ‬
‫ح‬ ‫ٱلر‬
‫َّ‬ ‫هلل‬
‫ِ‬ ‫ٱ‬ ‫م‬ ‫ۡ‬
‫ِب ِ‬
‫س‬

‫‪NEGLIGENCE‬‬
Definition of Negligence

Legal
•It means 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
Per Lord Wright in Lochgelly Iron & Coal v M’Mullan
[1934] AC 1.

•The absence of such care, skill and diligence as it was the

duty of the person to bring to the performance of the work
which he is said not to have performed.
Per Willes J. in Grill v General Iron Screw Co (1860) 35
LJCP 330.
 “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”.

Per Alderson B in Blyth v Birmingham Waterworks Co

(1856)
 And who is a reasonable man ?
 Judgment of the court whether a man
acted reasonably in the circumstances
of the case.
 Case by case basis
Negligence in Tort Law
Means….
…breach of a legal duty to take
care, which results in damage,
undesired by the Df, to the Pf.

- Winfield
Elements of Negligence

1. An existing duty of care owed by Df

to the Pf (legal duty)

2. Breach of that duty
3. Causation (damage to the Pf caused
by that breach)
4. Damage
1. Duty of Care (DOC)
 Means: An obligation or a burden
imposed by law, which requires a
person to conform to a certain
standard of care
 Eg: Duty while driving
 Duty towards children at school
 Duty towards prisoners
 Duty towards neighbours
 Pf must establish that the Df owed to
him a duty of care.
 Sometime it is so obvious
 However, sometimes the facts are
complicated that DOC becomes an issue
 If the Pf cannot establish that the Df
owed him a duty, Negligence suit might
fail
 Eg: Bourhill v Young
 Df (motocyclist) did not owe a duty of
care to the Pf who heard but did not
see the accident.

Outside the area of

foreseeable harm
Test / Principle in
determining DOC
 ‘NeighbourPrinciple’ laid
down in the famous case
of Donoghue v Stevenson
(1932)
Facts
 Pf consumed a drink of ginger beer from a
bottle.
 When she poured out the remainder of the
contents she found a decomposed snail
 She could not see the snail earlier because the
bottle was opaque.
 She suffered shock and became ill.
 Sued the manufacturers for negligence altho’
there was no contract between them.
House of Lords held
(ratio):
 Manufacturers of the ginger beer
owed a duty of care to the Pf, as the
ultimate consumer or purchasers of
the drink. This duty was to take
reasonable care to ensure that the
bottle did not contain any substances
which was likely to cause injury to
anyone who purchases it
 HOL stated what was to be known and
widely accepted as the Neighbour
Principle or the Atkinian Rule as the
principle was laid down by Lord Atkin.
Neighbour PPle
 The rule that you are to love your
neighbour becomes in law you must
not injure your neighbour; and the
lawyers question ‘who is my neghbour’
recieves a restricted reply. You must
take reasonable care to avoid acts or
omissions which you can reasonably
foresee would be likely to injure your
neighbour.
Ctd’

 Who then, in law, is my neighbour?

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 omission which are
called in question”
DOC is owed to any…
persons who are so closely and directly
affected by my act (proximity of relationship)

that I ought reasonably to have them in

contemplation as being so affected when I am
directing my mind to the acts or omission
which are called in question (foreseeability)
These are “neighbours”
Extension of the
Neighbour Principle
 Significance of D v S
 Laid down the foundation of the law of
negligence as a separate tort.
 An action for negligence can be brought
even where no contract exists between
the parties
 It introduced the test to determine the
existence of DOC
 The Neighbour PPle came up for
consideration in the case of….

 Home Office v Dorset Yatch (1970)

Facts of Home Office
 7 Borstal (prisons for young criminals) boys
had escaped from an island where they were
undergoing training
 Escape was due to negligence of the Borstal
Officers who were sleeping contrary to orders.
 The boys caused damage to a yatch and the
owner commenced action against whom?
 The Home Office
 THINK !!!
1st issue -

 Didthe Borstal Officers

owe a DOC towards the
yatch owners?
Apply the Neighbour Pple

persons who are so closely and directly

affected by my act (proximity of
relationship)

that I ought reasonably to have them in

contemplation as being so affected when I
am directing my mind to the acts or
omission which are called in question
(foreseeability)
 Held : Yes there was a DOC owed by
the Officers towards the yatch owners
Lembaga Kemajuan Tanah
Persekutuan v Mariam
 Felda, a statutory authority, entered into an
agreement with contractor for maintenance of one
of its land schemes.
 Without its permission, work was contracted to a
sub-contractor, who employed a number of workers
including one Nordin bin Abdullah ("the deceased").
 The workers lived in a kongsi-house built on the
scheme by either the contractor or the sub-
contractor.
 One night the kongsi-house collapsed. The
deceased was killed in the accident.
 His dependants sue the contractor,
sub-con and FELDA.
 Does Felda owe the worker a duty of
care?
Yes DOC existed
 Although there is no contract between Felda and
deceased does not mean that FELDA does not owe
him a duty of care
 The very fact that FELDA;
 1. Was in control and supervision of the land,
 2. knew where the workers were staying, knowing
that the workers needed a house,
 3. allowed it to be erected,
 4. all for the benefit of Felda,
 they did nothing to keep it safe.
 Lembaga Kemajuan Tanah
Persekutuan v Mariam [1984] 1
Salleh MLJ 283
Abas CJ:

• The decision of Donoghue abandoned a long notion

that tortuous liability depends upon contractual
relationship.

• establish that a person owes a duty of care even to

persons who have no contractual relationship with
him, and that his liability to an injured person
depends upon whether the injury was caused by his
act or omission.

• The duty… was not derived from the contract.. But

one which is cast by law in that because the danger
is created by him, he must take a reasonable care to
ensure that visitors were not exposed to it.
 THE CONTEMPORARY RULES:
Caparo Industries pIc v Dickman [1990]
2 AC 605  House of Lords

 Caparo Industries purchased shares in Fidelity Plc in

reliance of the accounts which stated that the
company had made a pre-tax profit of £1.3M. In fact
Fidelity had made a loss of over £400,000.
 Caparo brought an action against the auditors claiming
they were negligent in certifying the accounts.

Held: No duty of care was owed.

There was not sufficient proximity between Caparo and the auditors
since the auditors were not aware of the existence of Caparo nor the
purpose for which the accounts were being used by them.
CONTEMPORARY
REQUIEMENTS OF D.O.C
 Caparo Industries PLC v Dickman (1990)
 1. Foreseeability of harm (anyone to
whom a risk is forseeable)
 2. Proximity of relationship btw Pf and Df
(not necessarily physical closeness)
 3. Just Fair and Reasonable to impose a
duty of care.
and this includes Policy Reasons
Caparo Industries pIc v Dickman
[1990] 2 AC 605  House of Lords

 Lord Bridge (on the Caparo test)

– “What emerges is that, in addition to the foreseeability
of damage, necessary ingredients in any situation
giving rise to a duty of care are that there should exist
between the party owing the duty and the party to
whom it is owed a relationship characterised by the
law as one of "proximity" or "neighbourhood" and that
the situation should be one in which the court
considers it fair, just and reasonable that the law
should impose a duty of a given scope upon the one
party for the benefit of the other.”
 The element of just, fair and reasonable -
enables the court to determine liability
based on policy.
 Therefore, although a case meets the
requirement of forseeability and proximity,
the courts may find that there is a sound
public policy reason for denying that claim
or for establishing NO duty of care.
 It was Caparo’s case that introduced
this new approach in determining the
existence of a duty of care.
 It is called the incremental approach.
Mark Rich v Bishop Rock
Marine Co. (1995)
Marc Rich

 Pf – owner of cargo
 D1 – owner of ship
 D2 - charterer
 D3 – Vessel Classification Society
 (VSC)
 Middle of the journey, ship developed a
crack
 D1 called in the VCS to inspect the ship and
determine its seaworthiness
 VSC - To repair in the dry dock – expensive
and tedious
 VSC said that the ship can travel with
temporary welding first but repair as soon as
the ship reaches its destination
 Ship then went on its journey and sank losing
$US 6 mil.
 D1 – owner was sued for 500,000 –
contract
 D3 (VCS) – was sued for 5.5 Mil
 Held : Not fair for them to suffer loss,
 1. Non-profit oriented
 2.acting for public welfare
 3. risk that in future they would decline to
survey high risk vessels
 It is not difficult to see that the VCS
was negligent, but despite this the
HOL held there was no duty of care as
the imposition of such a duty would
affect the role of the classification
societies and international trade
Majlis Perbandaran
Ampang Jaya v Steven
Phoa Cheng Loon (2006)
Majlis Perbandaran Ampang
Jaya v Steven Phoa Cheng Loon
(2006)
 On 11 December 1993, a landslide occurred resulting in the
collapse of Block 1 and the subsequent evacuation of the
respondents from Blocks 2 and 3 (economic loss). The
respondents then filed a suit in the High Court against various
parties including MPAJ, the appellant herein, for negligence
and nuisance.

 After a lengthy hearing, the learned trial judge found the

appellant who was the 4th defendant in the case to be 15%
liable for negligence in respect of the appellant's acts and
omissions prior to the collapse of Block 1 of the Highland
Towers.
 MPAJ’s Fault was failure to implement
proper drainage master plan or to
stabilize the hilltop that caused the
collapse.
 Federal Court asked the question
whether it was fair to impose liability
on MPAJ for pure economic loss
 Considering public policy and local circumstances, the court
said NO.
 The court sated;
 MPAJ has a host of duties
 Limited resources and manpower
 Funded by the people (tax payers money)
 If they are required to pay compensation, all projects
would stall, local council may go bust,
 Is it just fair and reasonable to use tax payers money to
the debts of MPAJ?
 NO
Rondel v Worsely
 Policy demands that a barrister should be immune
from liability in negligence in the conduct of
proceedings IN COURT in the interest of
administration of justice

 An advocate cannot fulfill his public duty if he

stands in fear of action by a disgruntled client and
a suit against him would inevitably involve
undesirable re-litigation of the matters in dispute.
Rondel v. Worsley [1969] 1 AC 191

 An advocate cannot fulfill his public duty if he

stands in fear of action by a disgruntled client
and a suit against him would inevitably involve
undesirable re-litigation of the matters in
dispute.
However,

 No immunity :
 Failure to inform of hearing date
 Failure to file doc
 Failure to to do land search
 Failure to appear in court on hearing
MOHD NOR DAGANG V.
TETUAN MOHD YUSOF
ENDUT & ASSOCIATES
 The plaintiff alleged the lawyer was
negligent in not exercising due care,
skill and diligence in defending it in a
civil suit
 Does this limited immunity apply to
the Df?
 Yes as a matter of policy
 Held : that The lawyer had informed
the Pf of the new hearing date and
had no duty to remind him of the
same
 His is only a duty to exercise
reasonable care and competence.
There is no duty to be right.
Hill v Chief Constable of
West Yorkshire
 Yorkshire Ripper – committed serial
murders
 murdered a 20 year old student
 Mother sues police alleging negligence
in investigation and failure to prevent
her daughters murder
 Does the police owe DOC to that lady
 Held : As a matter of policy, no proximity existed
between the police and the deceased girl
 The deceased was a member of the public at large,
thus: her risk is that of many other thousands of
young women who could potentially have been the
ripper’s victim!
 Policy questions: Holding police to be negligent will:
– Have an inhibiting effect on the exercise of police’s
judgment in their work
– Lead to series of trials and re-trials at the court
– Distract police manpower to those retrials, reduce their
crime prevention ability and burden the expenditures.
Policy issues and the
police
 Qn – Whether the police failed to provide
protection following threats of violent attacks where
victims have been injured.
 Court held that as a matter of policy that the public
interest in having a police force which concentrated
all its efforts on the collective welfare outweighed
any private injustice in depriving an individual of a
remedy.
 Once there is a policy, other cases can follow .
Contemporary
requirements of DOC
 1. Foreseeability
 2. Proximity of relationship
 3. Just Fair and Reasonable including
policy considerations play a part in
determining whether there is a DOC
 But no.3, is only to be used in limited
cases. Not every case in negligence.
Tenaga nasional Malaysia v. Batu
Kemas Industry Sdn Bhd (2018) 6
CLJ 683
 Federal Court
 In Malaysia The JFR element is well
established in cases concerning economic
loss and public services.
 Where a case falls within one of the
established categories of liability, JFR will not
arise. Example, motorists to road users,
manufacturers to consumers, employer to
employee
DUTY OF CARE –
THE FORESEEABLE
AND UNFORESEEABLE
PLAINTIFF
DOC should be owed to
the particular Pf
 “Negligence in the air” or towards
some other person is not enough.
 The Pf cannot build a case on
someone who is not responsible for
the wrong
Bourhill v Young (1943)

 Eg: Df (motocyclist) did not owe a

duty of care to the Pf who heard but
did not see the accident.

Outside the area of

foreseeable harm
 Appellant, when getting off a tram, heard the
sound of a collision fifty feet away. Shortly after,
she saw blood on the road. She then suffered
N.S that resulted in a miscarriage.
 In order to succeed in her claim, Mrs Bourhill
had to establish a duty of care being owed to
her by Mr Young. To find such a duty, the
claimant must be foreseeable, or proximate to
the scene of the accident.
 The House of Lords denied that Mrs Bourhill
had been foreseeable to Mr Young, at the time
of the accident.
 DOC only arises to individuals that are
reasonably anticipated to be affected
by the breach.
 Pf was not a foreseeable victim
Palsgraph v Long Island
Railroad
 Df’s servant negligently pushed X, who
was attempting to board a moving
train and caused X to drop a package.
 The package exploded (fireworks
inside)
 Explosion knocked over some heavy
metal scales 20 feet away and struck
the Pf injuring her.
 Did the Df’s servant owe DOC to that
Pf?
Does this package look
dangerous ?
 There was nothing in the appearance of the
package to suggest to the most cautious
mind that it would cause a violent explosion
 Not reasonably foreseeable that the box
contained fireworks
 He did not owe DOC to the Pf, as she was
not a foreseeable victim of the railway co’s
negligence.
Haley v London Electricity
Board
Haley

 Df’s (under Stat-Auth) excavated a

trench in a street.
 They took precaution of ordinary
normal-sighted people
 but the PF was blind and he suffered
injury.
 Df owes DOC or not?
 Yes.
 There were sufficient blind people who
used that street and the Df should
have had them in contemplation and
take necessary precaution for them
too.
 Pf was a foreseeable victim
 Pf must belong to a class of persons to
whom damage is reasonably
foreseeable.
ACTIONABLE
OMISSION
 GR – omission does not give rise to
duty of care, as the principle is that a
person should not harm others . He is
under no duty to do something for the
benefit of another.
Exception – where the
omission gives rise to a DOC
 1. when omission is contrary to an
existing duty (did not brake)
 2. Special relationship exists (Dr and
patient)
 3. Where the Df has control over a third
party who causes the damage.
 4. Df has control over the land or
property where danger exists
Stansbie v Troman
  
 Painter and decorator was carrying out
work in Pf’s house. Pf told him to lock
the door when he leaves
 One day he left the house with the
door unlocked
 Thief entered and Pf’s things stolen
 Painter liable in negligence
 (negligent omission)
Chai Yee Chong v Lew
Thai [2004] 2 CLJ 321
 Pf “kepala” of the mine
 Df manager – both co-workers
 Heavy rain – Pf, after consulting Df
went down the mine with tractor to
push up the bunds – dark night
 Bunds collapsed and the tractor fell
into the mining pit causing the plaintiff
to sustain injury
 the plaintiff contended that as the
defendant knew that work involving
the tractor was not usually done at
night and that when it rains it would
be dangerous to work, the
defendant should have stopped
the plaintiff from proceeding to
raise the height of the bund.
• High Court (1997): P was being under the
control of the D. D failed to take any
precaution for the safety by exposing him
to risk of injury. Such precaution includes
‘not to instruct P to work under such risk’.

• D failed to take precaution by failing to ask

P to stop work. Also failed to tell P not to
drive a tractor there for work in view of the
prevailing great danger.
 On appeal,
 Appl himself was doing the same work
 Both thought it was not inherently
dangerous
 Resp did not object to it
 Resp himself had 16 years experience
and would have known the danger
 Df not liable
 Omission was not actionable
Parimala a/l Muthusamy v. PLUS
Highway (1997)

 Driver killed when car collided into

stray cows.

 Read Norchaya pg 114