BREACH OF

DUTY
• After DOC next step is to establish that the Df Breached that duty
• Breach occurs when the Df does something that does not conform
the standard of care required of a reasonable man.
 REASONABLE MAN TEST
• 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
- Blyth v Birmingham
• The standard of care required in deciding whether there has been a
breach of duty is that of a reasonable man.

• Who is the reasonable man?

• Fictitious character (fiction)

• Depending on who the defendant is, …… the question that will be
asked is
“would another person in the Df’s position have done the same
thing?”
• ‘Objective test’
 PROFESSIONALS
• However, the standard of care is different for people who have
special skill or expertise

• Eg: doctors, lawyers, engineers

• Imperitia culpae adnumerator

(Ignorance, or want of skill, is considered a negligence, for
which one who professes skill is responsible)
• What do you think is the standard of care required by these
professionals?

• They are expected to display a standard of skill expected from such

persons of such profession

• Higher the qualification the higher the Standard Of Care

 DOCTORS
• Bolam v Friern Hospital Management Com
• Facts:
• Pf broke pelvis during an electro convulsive theraphy at Df Hosp.
Pf said :
• 1. Should have been given relaxant drugs
• 2. staff should have held him
• 3. Df Should have warned him of the risk of the treatment
 BOLAM 1957
• NcNair J laid down the test to be applied;
• Bolam’s test
• “Where you get a situation which involves the use of some special
skill or competence…. The test is the Standard of the ordinary
skilled man exercising and professing to have that special skill.. He
need not possess the highest skill…sufficient if he exercises
ordinary skill of an ordinary competent man.
 BOLAM TEST CTD’
• This test is to apply to all professions – be it the banker, accountant
, doctor or solicitor –
• Per Barakbah LP – Fed Ct – in Swamy Matthews & Anor
 BOLAM TEST CTD’
• For the doctor, breach is failure to act in accordance with the
standards of medically competent doctors.
• There are one or more perfectly proper standards.
• Therefore, as long as he conforms to any one of there proper
standards then he has not committed a breach
 BOLAM TEST CTD’
• 2 limbs of bolam
• 1. The doctor has to exercise reasonable care and skill
• 2. the doctor will not be liable under the first limb, as long as he
has complied with a responsible professional practice, allowing for
the possibility that there might be more than one such practice.
 BOLAM’S CASE
• Doctor’s duty is…
• 1. Duty to diagnose
• 2. Duty to treat
• 3. Duty to disclose risk of treatment
• Therefore, in Bolam, Dr was not liable as there was a body of
professional doctors who would have done the same thing as the
Df doctor (altho there was another group that wouldn’t have)
 MALAYSIA USES BOLAM
TEST
• This test applied in Malaysia in the case of Chin Keow v GOM &
Anor 1967
• Df, prescribed procaine penicillin which caused the death of Pf’s
daughter.
• Trial the doctor admitted that he failed to ask about the medical
history of the patient
• Held : Df liable – reas doctor would have asked about history of
patient
 AUSTRALIA
• Rogers v Whitaker (1992)
• Facts : Given – doctor did not warn of risk
• Test : Whether the doctor conformed to the standard of reasonable
care demanded by law, which is to be decided by the court and not
delegated to a group of professionals / doctors
• Medical opinion would only assist the courts
• Malaysia Followed The Australian position
• 1997 – Tan Ah Kau v Gov Of Malaysia
• Pf paralysed after operation to remove a slow cancer growth
• Pf was asked to sign 2 blank forms before operation – not
informed of the risk of operation.
• Held – Dr is under a duty to warn the Patient of the risk
 FOO FIO NA V DR EDDIE
SOO FOOK MUN (2007)
FED CT
• Pf – cervical vertebrae was dislocated after a motor accident in
1982
• Dr told Pf that she needed minor surgery and she did not know that
she was consenting for major surgery.
• She became paralysed – spinal
cord damage
• Read the case (MUST)
 FOO FIO NA V DR EDDIE
SOO FOOK MUN (2007)
FED CT
• 1999 (trial) - Dr liable (Mr Justice Mokhtar Sidin) – following
Rogers
• 2001 (COA) – Dr not liable – changed back to Bolam (Mr Justice
Gopal Sri Ram) – allow Dr’s to be judged by their own peers
• 2007 (Fed Ct) – To follow Rogers v Whitaker (duty to disclose
risk) – Dr liable
 SITI NORMA YAAKOB CJ
• “the well known phrase that ‘doctors know best’ should now be
followed by the qualifying words ‘if he acts reasonably, logically
and gets his facts right’.
• ‘It is the court to set the S.O.C in negligence, based on the
evidence presented” -
• Fed Ct – made it clear that Roger is only applicable where there is
duty to disclose risk (standard of care demanded by law is a
question for the court to decide and not delegated to any opinion of
a professional body)
• As for duty to diagnose and treat, Bolam will be followed ( court
will follow the opinion of a professional body)
• Recently, the Federal Court in Zulhasnimar Hasan Basri v Dr
Kuppu Velumani P (2017) 8 CLJ 605 also followed Foo Fio Na
and clarified the uncertainty of whether Bolams test or rogers test
applies in Malaysia.
 DUTY OF LEGAL
PROFESSIONAL -
LAWYERS
• Solicitors liability towards his client lies both in contract and tort.

• A legal professional “owes a duty not to injure his client by failing to do that
which he had undertaken to do and which his client has relied on him to do”
(Yong & Co v. Wee Hood Teck Development)
• Duty to check the gazette notification, the register document of title and to write
officially to Land Office about the land status (Dato’ Leong Pow Kue v Gan Kim
Sing)
• Duty to remind client to attend court (Mohd Nor Dagang S/B v Tetuan Mohd
Yusof Endut)
• Duty to attend the court himself! (Sykt Siaw Teck Hwa & Developments v Malek
& Joseph Au)
• Neogh Soo Ah v Rethinasamy ( 1984)
• Pf engaged Df (lawyer) to purchase piece of land
• Df prepared Sale and Purchase Agreement and Pf paid (1976)
• However, land already acquired by gov in 1973
• Pf suffered damage of RM31,000 and sued lawyer for negligence
• He had failed in his duty to use reasonable care and skill in not
making a search at or an inquiry with the land office concerned.
• Failed to carry out duties as a normally competent and careful
practitioner.
 MOHD NOR DAGANG V
TETUAN MOHD YUSOF
ENDUT (2001)
• Lawyer sued for negligence in defending a case
• Liable /not ???
• Why ?
• 1. He had informed his clients about hearing date (no duty to
remind)
• 2. limited immunity of advocates applied in this case (principle of
Rondel)
 DUTY OF TEACHERS
AND SCHOOLS
• Government of Malaysia v. Jumat bin Mahmud
[1977] 2 MLJ 103

• Mohamed Raihan bin Ibrahim v. Government of

Malaysia [1981] 2 MLJ 27
 TEACHER
• GOM V Jumat bin Mahmud
• 11 year old student was injured in the eye when another student
suddenly poked him in the eye.
• Has she breached her duty?
• What is the standard of care of the teacher?
Trial Ct – Teacher liable
On Appeal – Raja Azlan Shah FJ:

The duty of care owed on the part of the teacher to P must

commensurate with his/her opportunity and ability to protect the pupil from
damages that are known or that should be apprehended and the duty of care
is such that which a careful father with a very large family would take of
his own children.

It is not a duty of insurance against harm but only a duty to take

reasonable care for the safety of the pupil.”
 MOHAMED RAIHAN V
GOM (1981)
• Student (Appl) - injuries – when a fellow pupil struck his head
with a hoe (cangkul) during a practical gardening class.
• Appl stated that Resp failed to provide proper supervision in
handling the hoe
• Fed Ct : Df liable
• The danger was foreseeable
to a reasonable teacher
 ZAZLIN ZAHIRA V LOUIS
MARIE NEUBE & 2 ORS
• Pf – Primary 1
• Music teacher asked them to sing a song relating to trains and to
form a human train.
• She told them to put in their chairs, no running around, no pushing
and to just sing and move round the classroom
• Pf falls and breaks her right hand
• Sues teacher, HM and school
• Not liable – injury not forseeable
 DRIVERS
• Very heavy duty on a driver
to keep a good look out while driving
• Able to judge when to stop
• Duty very high as he is in charge of the vehicle and capable of
doing great damage if he doesn’t stop
• Judged according to the standard of an ordinary skilled driver.
 KR TAXI SERVICE LTD V ZAHARAH
[1969] 1 MLJ 49
• Ong Hock Thye FJ
• A driver is not under duty to be a perfectionist in the
sense of being able to anticipate other drivers acting in a
negligent or irresponsible manner. However, he must not
put out of consideration the teachings of experience as to
the forms those follies commonly take.

• What form of folly is forseeable depends on the

surrounding circumstances of each case… The degree of
care required while driving along an open country road
is not quite the same as that which ought to be observed
in a crowded city street.”
 ROBERTS V
RAMSBOTTOM (1980)
• Df was completely unaware that he had suffered a stroke before
getting into the car
• He collided with the Pf
• Held – Df liable as he ought to have been aware that he was unfit
to drive
 ZAINAB V GAN ENG HWA
• Read
• Driver was negligent for driving at an excessive speed , which was
why she could not stop her car on time, when the car in front of her
had stopped - collission.
 ANALYSIS
• Breach of duty – Df judged by objective standards ( reasonable
man )

• What are the factors of objective standards ?

• 1. Playing football next to main road?
• Not reasonable standard – high risk
• 2. Speeding ?
• Not reasonable standard – high risk
• 3. Ambulance speeding ?
• Reasonable – importance of the end result
….. to save life
 FACTORS OF OBJECTIVE
STANDARDS
• 1. magnitude of the risk / likelihood of injury

• 2. Current knowledge

• 3. Importance of the purpose to be attained

• 4. Practicability of precautions

• 5. General and approved practice.

 1. MAGNITUDE OF THE
RISK / LIKELIHOOD OF
INJURY
• The law requires care which is proportionate to the seriousness of
injury or magnitude or the risk (gravity) or the likelihood of its
occurring (frequency)

• The higher the risk of harm, the higher the standard of care
required
BOLTON V STONE
 CTD’
• Pf hit by a cricket ball – that was hit out of the cricket field by the
Df
• This rarely happened (6 x in 30 years)
• Held: Taking into consideration the distance of the pitch to the
edge of the field and the 7 foot wall, this made the risk of injury
very low.
• Df not liable.
• Compare with Hilder v APCM
• Playing football next to main road
• Risk very high
MILLER V JACKSON
 CTD
• Cricket balls went over the high fence 8 - 9 x per season. The high
fence did not prevent the ball due to several reasons
• COA – Magnitude of risk / Likeihood of injury was so great, Df
liable each and every time the ball went over the fance and caused
damage
• [Note: Negligence and nuisance]
 PARIS V STEPNEY
• Employee was blind in one eye, employed where there was danger
of splinters – no goggles provided
• A splinter blinded the remaining eye
• Magnitude of the risk very high – employer should have exercised
a higher standard of care
 2. CURRENT
KNOWLEDGE
• A persons actions are also to be judged on current knowledge ie:
the foreseeability of harm depending on the knowledge at the time
of the occurrence
• A person cannot be blamed for not knowing, what was at that time,
unknown
ROE V MINISTER OF
HEALTH
 CTD
• Dr – (in 1947) injected patient with anesthetic for a
minor operation. Patient became paralysed
• Dr nor medical science were aware that cracks could
appear on the ampoule – this defect was only
discovered in 1951
• Dr not liable
• Reasonable standards will also be judged on current
practice and knowledge at the time of the alleged
breach
• COA – Df had not been careless in failing to guard against a little
known risk
• Denning LJ
• “ We must not look at the 1947 accident with 1954 spectacles)
 3. IMPORTANCE OF THE
PURPOSE TO BE
ATTAINED
• Sometimes social importance or utility will allow the Df to incur
some risk of injury in his undertakings, if the benefit of the Df’s
activity is more than the risk

• Eg: Speeding ambulance / fire brigade

• Objective standards also gives room for such social importance in
considering whether a person has acted reasonably
WATT V HERTFORDSHIRE
COUNTY COUNCIL
 CTD’
• Pf Fireman – answered a call of a lady trapped under a lorry
• The fire engine that carried a jack was no available, so brought the
jack onto a normal lorry
• On the way, the jack fell and the Pf was injured
• He sued the council
 CTD’
• Held : Df not liable as the risk had to be measured against the
importance of the purpose to be obtained – which was to save life
• Therefore, if the purpose is to save life, the high risk involved may
absorb the Df’s liablity
 DABORN V BATH
TRAMWAYS MOTOR CO.
LTD
• Held :
• The purpose to be served, if sufficiently important, justifies the
assumption of abnormal risk.
 4. PRACTICABILITY OF
PRECAUTIONS
• In deciding whether the Df has breached the duty, the court will
take into consideration, all measures of precaution taken by the Df
to eliminate or reduce or minimise a foreseeable risk
• Precautions should be proportionate to the risk.
 LATIMER V AEC LTD
• Due to Flood, the factory floor became slippery due
to oil and water.
• The Df placed saw dust on the slippery parts
• Pf slipped and fell on an uncovered part
• Sued the Df, stating that the factory should have
been closed
• Held : no breach of duty, as precautions had been
taken. Reasonable prudence did not demand that the
company ne closed in the circomstances.
 HAMZAH & ORS V WAN
HANAFI - FC
• Respondent injured when he attempted to get off a train before it
had stopped
• They argued that the Railway Auth was negligent for not taking
reasonable steps to prevent passengers from standing near the steps
– or to jump off before the train stops
 CTD’
• Held : The warnings placed in the train were reasonably adequate
• Knight v Home Office
• Mentally disturbed patient, known to be suicidal, hanged himself
despite being observed every 15 min by the staff.
• Was there a breach?
• Was sufficient precaution taken?
 5. GENERAL AND
APPROVED PRACTICE
• If the Df acted according to the common practice of those similarly
engaged in the activity, it is evidence that he has not acted
negligently.
• However, if the common practise is in itself dangerous and high
risk, the court may hold the Df liable.
 AIK BEE SAWMILL V
MUN KUM CHOW
• The Pf did not use crossbars to lift planks onto a lorry – planks fell
on him – injured
• Using crossbars was the normal practice and since the Pf was not
taught how to use it, Df was liable
• Df did not follow the approved practice
 GENERAL CLEANING
CONTRACTOR V
CHRISTMAS
• The Pf, A window cleaner, was cleaning windows 27 feet above
the ground. He fell from the ledge – injured
• HOL – Altough standing on the ledge was a common practice, the
Df was liable for not providing a safe system of work.