The duty of care in the Contract Law and

The Duty of Care in Law

1. ِ
ميِحَّرلٱ ِنَمَّرلٱ ِللهٱ
ِ
مِبٰـۡح ۡس
ِ
ميِحَّرلٱ ِنَمَّرلٱ ِللهٱ
ِ
مِبٰـۡح ۡس

NEGLIGENCNEGLIGENC
EE

2. 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.
Definition of Negligence

3. 
““Negligence is the Negligence is the omissionomission to do something which a to do something which a
reasonable manreasonable man, guided upon those considerations , guided upon those considerations
which ordinarily regulate the conduct of human which ordinarily regulate the conduct of human
affairs, affairs, would dowould do; or ; or doingdoing something which something which a a
prudent and reasonable man would not do”.prudent and reasonable man would not do”.
PerPer Alderson B in Alderson B in Blyth v Birmingham Waterworks Co Blyth v Birmingham Waterworks Co
(1856)(1856)

4. 
And who is a reasonable man ? And who is a reasonable man ?

Judgment of the court whether a Judgment of the court whether a
man acted reasonably in the man acted reasonably in the
circumstances of the case.circumstances of the case.

Case by case basisCase by case basis

5. Negligence in Tort Law Negligence in Tort Law
Means….Means….
… …breach of a legal duty to breach of a legal duty to
take care, which results in take care, which results in
damage, undesired by the damage, undesired by the
Df, to the Pf.Df, to the Pf.
- Winfield- Winfield

6. Elements of NegligenceElements of Negligence
1. An existing 1. An existing duty of careduty of care owed by Df owed by Df

to the Pf (legal duty)to the Pf (legal duty)
2. Breach of that duty 2. Breach of that duty
3. Causation (damage to the Pf caused 3. Causation (damage to the Pf caused
by that breach) by that breach)
4. Damage 4. Damage

7. 1. Duty of Care (DOC)1. Duty of Care (DOC)

Means: An obligation or a burden Means: An obligation or a burden
imposed by law, which requires a imposed by law, which requires a
person to conform to a certain person to conform to a certain
standard of carestandard of care

Eg: Duty while drivingEg: Duty while driving

Duty towards children at schoolDuty towards children at school

Duty towards prisonersDuty towards prisoners

Duty towards neighboursDuty towards neighbours

8. 
Pf must establish that the Df owed to Pf must establish that the Df owed to
him a duty of care.him a duty of care.

Sometime it is so obvious Sometime it is so obvious

However, sometimes the facts are However, sometimes the facts are
complicated that DOC becomes an complicated that DOC becomes an
issueissue

If the Pf cannot establish that the Df If the Pf cannot establish that the Df
owed him a duty, Negligence suit owed him a duty, Negligence suit
might fail might fail

9. 
Eg: Eg: Bourhill v YoungBourhill v Young

Df (motocyclist) did not owe a duty Df (motocyclist) did not owe a duty
of care to the Pf who heard but did of care to the Pf who heard but did
not see the accident. not see the accident.
Outside the area of Outside the area of
foreseeable harmforeseeable harm

10. Test / Principle in Test / Principle in
determining DOCdetermining DOC

‘‘Neighbour Principle’Neighbour Principle’
laid down in the famous laid down in the famous
case of case of Donoghue v Donoghue v
Stevenson (1932)Stevenson (1932)

11. FactsFacts

Pf consumed a drink of ginger beer from a Pf consumed a drink of ginger beer from a
bottle.bottle.

When she poured out the remainder of the When she poured out the remainder of the
contents she found a decomposed snail contents she found a decomposed snail

She could not see the snail earlier because She could not see the snail earlier because
the bottle was opaque.the bottle was opaque.

She suffered shock and became ill.She suffered shock and became ill.

Sued the manufacturers for negligence Sued the manufacturers for negligence
altho’ there was no contract between them.altho’ there was no contract between them.

12. House of Lords held House of Lords held
(ratio):(ratio):

Manufacturers of the ginger beer Manufacturers of the ginger beer
owed a duty of careowed a duty of care to the Pf, as the to the Pf, as the
ultimate consumer or purchasers of ultimate consumer or purchasers of
the drink. the drink. This duty was to take This duty was to take
reasonable carereasonable care to ensure that the to ensure that the
bottle did not contain any bottle did not contain any
substances which was likely to cause substances which was likely to cause
injury to anyone who purchases itinjury to anyone who purchases it

13. 
HOL stated what was to be known HOL stated what was to be known
and widely accepted as the and widely accepted as the
Neighbour PrincipleNeighbour Principle or the or the Atkinian Atkinian
RuleRule as the principle was laid down as the principle was laid down
by Lord Atkin.by Lord Atkin.

14. Neighbour PPleNeighbour PPle

The rule that you are to love your The rule that you are to love your
neighbour becomes in law you must neighbour becomes in law you must
not injure your neighbour; and the not injure your neighbour; and the
lawyers question ‘who is my lawyers question ‘who is my
neghbour’ recieves a restricted reply. neghbour’ recieves a restricted reply.
You must take reasonable care to You must take reasonable care to
avoid acts or omissions which you avoid acts or omissions which you
can reasonably foresee would be can reasonably foresee would be
likely to injure your neighbour. likely to injure your neighbour.

15. Ctd’Ctd’

Who then, in law, is my neighbour?Who then, in law, is my neighbour?
The answer seems to be The answer seems to be persons who persons who
are so closely and directly affected by are so closely and directly affected by
my actmy act that I ought reasonably to that I ought reasonably to
have them in contemplation as being have them in contemplation as being
so affected when I am directing my so affected when I am directing my
mind to the acts or omission which mind to the acts or omission which
are called in question”are called in question”

16. DOC is owed to any…DOC is owed to any…
persons who are so closely and directly persons who are so closely and directly
affected by my actaffected by my act (proximity of relationship) (proximity of relationship)
that I ought reasonably to have them in that I ought reasonably to have them in
contemplation as being so affected when I contemplation as being so affected when I
am directing my mind to the acts or am directing my mind to the acts or
omission which are called in question omission which are called in question
(foreseeability)(foreseeability)
These are “neighbours” These are “neighbours”

17. Extension of the Extension of the
Neighbour PrincipleNeighbour Principle

Significance of D v S Significance of D v S

Laid down the foundation of the law of Laid down the foundation of the law of
negligence as a separate tort.negligence as a separate tort.

An action for negligence can be An action for negligence can be
brought brought even where no contracteven where no contract exists exists
between the partiesbetween the parties

It introduced the test to determine the It introduced the test to determine the
existence of DOCexistence of DOC

18. 
The Neighbour PPle came up for The Neighbour PPle came up for
consideration in the case of….consideration in the case of….

Home Office v Dorset Yatch (1970)Home Office v Dorset Yatch (1970)

19. Facts of Home OfficeFacts of Home Office

20. 
7 Borstal (prisons for young criminals) boys 7 Borstal (prisons for young criminals) boys
had escaped from an island where they had escaped from an island where they
were undergoing trainingwere undergoing training

Escape was due to negligence of the Borstal Escape was due to negligence of the Borstal
Officers who were sleeping contrary to Officers who were sleeping contrary to
orders. orders.

The boys caused damage to a yatch and the The boys caused damage to a yatch and the
owner commenced action against whom?owner commenced action against whom?

The Home OfficeThe Home Office

THINK !!!THINK !!!

21. 11
stst
issue - issue -

Did the Borstal Officers Did the Borstal Officers
owe a DOC towards the owe a DOC towards the
yatch owners?yatch owners?

22. Apply the Neighbour PpleApply the Neighbour Pple
persons who are so closely and directly persons who are so closely and directly
affected by my actaffected by my act (proximity of (proximity of
relationship)relationship)
that I ought reasonably to have them in that I ought reasonably to have them in
contemplation as being so affected when contemplation as being so affected when
I am directing my mind to the acts or I am directing my mind to the acts or
omission which are called in question omission which are called in question
(foreseeability)(foreseeability)

23. 
Held : Yes there was a DOC owed by Held : Yes there was a DOC owed by
the Officers towards the yatch the Officers towards the yatch
ownersowners

24. Lembaga Kemajuan Tanah Lembaga Kemajuan Tanah
Persekutuan v MariamPersekutuan v Mariam

FeldaFelda, a statutory authority, entered into an , a statutory authority, entered into an
agreement with agreement with contractorcontractor for maintenance of one for maintenance of one
of its land schemes. of its land schemes.

Without its permission, work was contracted to a Without its permission, work was contracted to a
sub-contractorsub-contractor, who employed a number of , who employed a number of
workers including one Nordin bin Abdullah ("the workers including one Nordin bin Abdullah ("the
deceased"). deceased").

The workers lived in a kongsi-house built on the The workers lived in a kongsi-house built on the
scheme by either the contractor or the sub-scheme by either the contractor or the sub-
contractor. contractor.

One night the kongsi-house collapsed. The One night the kongsi-house collapsed. The
deceased was killed in the accident.deceased was killed in the accident.

26. 
His dependants sue the contractor, His dependants sue the contractor,
sub-con and FELDA.sub-con and FELDA.

Does Felda owe the worker a duty of Does Felda owe the worker a duty of
care?care?

27. Yes DOC existedYes DOC existed

Although there is no contract between Felda and Although there is no contract between Felda and
deceased does not mean that FELDA does not deceased does not mean that FELDA does not
owe him a duty of care owe him a duty of care

The very fact that FELDA; The very fact that FELDA;

1. Was in 1. Was in control and supervision of the landcontrol and supervision of the land, ,

2. knew where the workers were staying, 2. knew where the workers were staying,
knowing that the workers needed a house,knowing that the workers needed a house,

3. allowed it to be erected, 3. allowed it to be erected,

4. all for the benefit of Felda, 4. all for the benefit of Felda,

they did nothing to keep it safe. they did nothing to keep it safe.

28. Lembaga Kemajuan Tanah Lembaga Kemajuan Tanah
Persekutuan v Mariam [1984] 1 MLJ Persekutuan v Mariam [1984] 1 MLJ
283283
Salleh 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.

29. THE CONTEMPORARY RULES:THE CONTEMPORARY RULES:
Caparo Industries pIc v DickmanCaparo Industries pIc v Dickman [1990] 2 [1990] 2
AC 605  House of LordsAC 605  House of Lords

Caparo Industries purchased shares in Fidelity Plc Caparo Industries purchased shares in Fidelity Plc in in
reliancereliance of the accounts which stated that the of the accounts which stated that the
company had made a pre-tax profit of £1.3M. In fact company had made a pre-tax profit of £1.3M. In fact
Fidelity had made a loss of over £400,000. Fidelity had made a loss of over £400,000.

Caparo brought an action against the auditors Caparo brought an action against the auditors
claiming they were negligent in certifying the claiming they were negligent in certifying the
accounts.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.

30. CONTEMPORARY CONTEMPORARY
REQUIEMENTS OF D.O.CREQUIEMENTS OF D.O.C

Caparo Industries PLC v Dickman (1990)Caparo Industries PLC v Dickman (1990)

1. 1. Foreseeability of harmForeseeability of harm (anyone to (anyone to
whom a risk is forseeable)whom a risk is forseeable)

2. 2. Proximity of relationship btw Pf and Proximity of relationship btw Pf and
Df Df (not necessarily physical closeness)(not necessarily physical closeness)

3. 3. Just Fair and Reasonable Just Fair and Reasonable to impose a to impose a
duty of care.duty of care.
and this includes and this includes Policy ReasonsPolicy Reasons

31. Caparo Industries pIc v DickmanCaparo Industries pIc v Dickman
[1990] 2 AC 605  House of Lords[1990] 2 AC 605  House of Lords

Lord Bridge (on the Caparo test)Lord Bridge (on the Caparo test)
–““What emerges is that, in addition to the What emerges is that, in addition to the
foreseeability of damageforeseeability of damage, necessary ingredients in , necessary ingredients in
any situation giving rise to a duty of care are that any situation giving rise to a duty of care are that
there should exist between the party owing the duty there should exist between the party owing the duty
and the party to whom it is owed a relationship and the party to whom it is owed a relationship
characterised by the law as one of characterised by the law as one of "proximity" or "proximity" or
"neighbourhood" "neighbourhood" and that the situation should be and that the situation should be
one in which the court considers it one in which the court considers it fair, just and fair, just and
reasonable reasonable that the law should impose a duty of a that the law should impose a duty of a
given scope upon the one party for the benefit of given scope upon the one party for the benefit of
the other.”the other.”

32. 
The element of The element of just, fair and reasonablejust, fair and reasonable
- enables the court to determine liability - enables the court to determine liability
based on policy.based on policy.

Therefore, although a case meets the Therefore, although a case meets the
requirement of requirement of forseeabilityforseeability and and
proximityproximity, the courts may find that there , the courts may find that there
is a is a sound public policy reason sound public policy reason for for
denying that claim or for establishing NO denying that claim or for establishing NO
duty of care.duty of care.

33. 
It was Caparo’s case that introduced It was Caparo’s case that introduced
this new approach in determining this new approach in determining
the existence of a duty of care. the existence of a duty of care.

It is called the incremental It is called the incremental
approach.approach.

34. Mark Rich v Bishop Rock Mark Rich v Bishop Rock
Marine Co. (1995)Marine Co. (1995)

35. Marc RichMarc Rich

Pf – owner of cargoPf – owner of cargo

D1 – owner of shipD1 – owner of ship

D2 - chartererD2 - charterer

D3 – Vessel Classification Society D3 – Vessel Classification Society

(VSC)(VSC)

36. 
Middle of the journey, ship developed a Middle of the journey, ship developed a
crackcrack

D1 called in the VCS to inspect the ship and D1 called in the VCS to inspect the ship and
determine its seaworthinessdetermine its seaworthiness

VSC - To repair in the dry dock – expensive VSC - To repair in the dry dock – expensive
and tediousand tedious

VSC said that the ship can travel with VSC said that the ship can travel with
temporary welding first but repair as soon temporary welding first but repair as soon
as the ship reaches its destinationas the ship reaches its destination

Ship then went on its journey and sank Ship then went on its journey and sank
losing $US 6 mil.losing $US 6 mil.

37. 
D1 – owner was sued for 500,000 – D1 – owner was sued for 500,000 –
contractcontract

D3 (VCS) – was sued for 5.5 MilD3 (VCS) – was sued for 5.5 Mil

Held : Not fair for them to suffer loss,Held : Not fair for them to suffer loss,

1. Non-profit oriented1. Non-profit oriented

2.acting for public welfare2.acting for public welfare

3. risk that in future they would decline 3. risk that in future they would decline
to survey high risk vesselsto survey high risk vessels

38. 
It is not difficult to see that the VCS It is not difficult to see that the VCS
was negligent, but despite this the was negligent, but despite this the
HOL held there was no duty of care HOL held there was no duty of care
as the imposition of such a duty as the imposition of such a duty
would affect the role of the would affect the role of the
classification societies and classification societies and
international tradeinternational trade

39. Majlis Perbandaran Majlis Perbandaran
Ampang Jaya v Steven Ampang Jaya v Steven
Phoa Cheng Loon (2006)Phoa Cheng Loon (2006)

40. Majlis Perbandaran Ampang Majlis Perbandaran Ampang
Jaya v Steven Phoa Cheng Loon Jaya v Steven Phoa Cheng Loon
(2006)(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.

41. 
MPAJ’s Fault was failure to MPAJ’s Fault was failure to
implement proper drainage master implement proper drainage master
plan or to stabilize the hilltop that plan or to stabilize the hilltop that
caused the collapse.caused the collapse.

Federal Court asked the question Federal Court asked the question
whether it was fair to impose whether it was fair to impose
liability on MPAJ for pure economic liability on MPAJ for pure economic
lossloss

42. 
Considering public policy and local circumstances, the Considering public policy and local circumstances, the
court said NO.court said NO.

The court sated;The court sated;

MPAJ has a host of dutiesMPAJ has a host of duties

Limited resources and manpowerLimited resources and manpower

Funded by the people (tax payers money)Funded by the people (tax payers money)

If they are required to pay compensation, all projects If they are required to pay compensation, all projects
would stall, local council may go bust,would stall, local council may go bust,

Is it just fair and reasonable to use tax payers money to Is it just fair and reasonable to use tax payers money to
the debts of MPAJ?the debts of MPAJ?

NONO

43. Rondel v WorselyRondel v Worsely

44. 
Policy demands that a barrister should be Policy demands that a barrister should be
immune from liability in negligence in the immune from liability in negligence in the
conduct of proceedings conduct of proceedings IN COURT IN COURT in the interest in the interest
of administration of justiceof administration of justice

An advocate An advocate cannot fulfill his public duty if he cannot fulfill his public duty if he
stands in fear of action stands in fear of action by a disgruntled client by a disgruntled client
and a suit against him would inevitably involve and a suit against him would inevitably involve
undesirable re-litigation of the matters in undesirable re-litigation of the matters in
dispute.dispute.

45. Rondel v. WorsleyRondel v. Worsley [1969] 1 AC 191 [1969] 1 AC 191

An advocate An advocate cannot fulfill his public duty if cannot fulfill his public duty if
he stands in fear of action he stands in fear of action by a disgruntled by a disgruntled
client and a suit against him would inevitably client and a suit against him would inevitably
involve undesirable re-litigation of the involve undesirable re-litigation of the
matters in dispute.matters in dispute.

46. However,However,

No immunity :No immunity :

Failure to inform of hearing dateFailure to inform of hearing date

Failure to file docFailure to file doc

Failure to to do land searchFailure to to do land search

Failure to appear in court on Failure to appear in court on
hearinghearing

47. MOHD NOR DAGANG V. MOHD NOR DAGANG V.
TETUAN MOHD YUSOF TETUAN MOHD YUSOF
ENDUT & ASSOCIATES ENDUT & ASSOCIATES

The plaintiff alleged the lawyer was The plaintiff alleged the lawyer was
negligent in not exercising due care, negligent in not exercising due care,
skill and diligence in defending it in skill and diligence in defending it in
a civil suit a civil suit

Does this limited immunity apply to Does this limited immunity apply to
the Df?the Df?

Yes as a matter of policyYes as a matter of policy

48. 
Held : that The lawyer had informed Held : that The lawyer had informed
the Pf of the new hearing date and the Pf of the new hearing date and
had no duty to remind him of the had no duty to remind him of the
samesame

His is only a duty to exercise His is only a duty to exercise
reasonable care and competence. reasonable care and competence.
There is no duty to be right.There is no duty to be right.

49. Hill v Chief Constable of Hill v Chief Constable of
West YorkshireWest Yorkshire

50. 
Yorkshire Ripper – committed serial Yorkshire Ripper – committed serial
murdersmurders

murdered a 20 year old studentmurdered a 20 year old student

Mother sues police alleging Mother sues police alleging
negligence in investigation and failure negligence in investigation and failure
to prevent her daughters murderto prevent her daughters murder

Does the police owe DOC to that ladyDoes the police owe DOC to that lady

51. 
Held : As a matter of Held : As a matter of policypolicy, no proximity existed , no proximity existed
between the police and the deceased girlbetween the police and the deceased girl

The deceased was a member of the public at large, The deceased was a member of the public at large,
thus: her risk is that of many other thousands of thus: her risk is that of many other thousands of
young women who could potentially have been the young women who could potentially have been the
ripper’s victim!ripper’s victim!

Policy questionsPolicy questions: Holding police to be negligent will:: Holding police to be negligent will:
–Have an inhibiting effect on the exercise of police’s Have an inhibiting effect on the exercise of police’s
judgment in their workjudgment in their work
–Lead to series of trials and re-trials at the courtLead to series of trials and re-trials at the court
–Distract police manpower to those retrials, reduce their Distract police manpower to those retrials, reduce their
crime prevention ability and burden the expenditures.crime prevention ability and burden the expenditures.

52. Policy issues and the Policy issues and the
policepolice

Qn – Whether the police failed to provide Qn – Whether the police failed to provide
protection following threats of violent attacks protection following threats of violent attacks
where victims have been injured.where victims have been injured.

Court held that as a matter of Court held that as a matter of policypolicy that the that the
public interest in having a police force which public interest in having a police force which
concentrated all its efforts on the concentrated all its efforts on the collective collective
welfare welfare outweighed any outweighed any private injustice private injustice in in
depriving an individual of a remedy.depriving an individual of a remedy.

Once there is a policy, other cases can follow .Once there is a policy, other cases can follow .

53. Contemporary Contemporary
requirements of DOCrequirements of DOC

1. Foreseeability1. Foreseeability

2. Proximity of relationship2. Proximity of relationship

3. Just Fair and Reasonable including 3. Just Fair and Reasonable including
policy considerationspolicy considerations play a part in play a part in
determining whether there is a DOCdetermining whether there is a DOC

But no.3, is only to be used in limited But no.3, is only to be used in limited
cases. Not every case in negligence.cases. Not every case in negligence.

54. Tenaga nasional Malaysia v. Batu Tenaga nasional Malaysia v. Batu
Kemas Industry Sdn Bhd (2018) 6 CLJ Kemas Industry Sdn Bhd (2018) 6 CLJ
683683

Federal CourtFederal Court

In Malaysia The JFR element is well In Malaysia The JFR element is well
established in cases concerning established in cases concerning economic economic
loss and public servicesloss and public services..

Where a case falls within one of the Where a case falls within one of the
established categories of liability, JFR will established categories of liability, JFR will
not arise. Example, motorists to road not arise. Example, motorists to road
users, manufacturers to consumers, users, manufacturers to consumers,
employer to employeeemployer to employee

55. DUTY OF CARE –DUTY OF CARE –
THE FORESEEABLE THE FORESEEABLE
AND UNFORESEEABLE AND UNFORESEEABLE
PLAINTIFFPLAINTIFF

56. DOC should be owed to DOC should be owed to
the particular Pfthe particular Pf

““Negligence in the air” or towards Negligence in the air” or towards
some other person is not enough.some other person is not enough.

The Pf cannot build a case on The Pf cannot build a case on
someone who is not responsible for someone who is not responsible for
the wrongthe wrong

57. Bourhill v Young (1943)Bourhill v Young (1943)

Eg: Df (motocyclist) did not owe a Eg: Df (motocyclist) did not owe a
duty of care to the Pf who heard but duty of care to the Pf who heard but
did not see the accident. did not see the accident.
Outside the area of Outside the area of
foreseeable harmforeseeable harm

58. 
Appellant, when getting off a tram, Appellant, when getting off a tram, heardheard the the
sound of a collision sound of a collision fifty feet awayfifty feet away. Shortly after, . Shortly after,
she saw blood on the road. She then suffered she saw blood on the road. She then suffered
N.S that resulted in a miscarriage.N.S that resulted in a miscarriage.

In order to succeed in her claim, Mrs Bourhill In order to succeed in her claim, Mrs Bourhill
had to establish a duty of care being owed to had to establish a duty of care being owed to
her by Mr Young. To find such a duty, the her by Mr Young. To find such a duty, the
claimant must be foreseeable, or proximate to claimant must be foreseeable, or proximate to
the scene of the accident.the scene of the accident.

The House of Lords denied that Mrs Bourhill The House of Lords denied that Mrs Bourhill
had been foreseeable to Mr Young, at the time had been foreseeable to Mr Young, at the time
of the accident. of the accident.

59. 
DOC only arises to individuals that DOC only arises to individuals that
are reasonably anticipated to be are reasonably anticipated to be
affected by the breach.affected by the breach.

Pf was not a foreseeable victimPf was not a foreseeable victim

60. Palsgraph v Long Island Palsgraph v Long Island
RailroadRailroad

61. 
Df’s servant negligently pushed X, Df’s servant negligently pushed X,
who was attempting to board a who was attempting to board a
moving train and caused X to drop a moving train and caused X to drop a
package.package.

The package exploded (fireworks The package exploded (fireworks
inside)inside)

Explosion knocked over some heavy Explosion knocked over some heavy
metal scales 20 feet away and struck metal scales 20 feet away and struck
the Pf injuring her. the Pf injuring her.

62. 
Did the Df’s servant owe DOC to that Did the Df’s servant owe DOC to that
Pf? Pf?

63. Does this package look Does this package look
dangerous ?dangerous ?

64. 
There was nothing in the appearance of There was nothing in the appearance of
the package to suggest to the most the package to suggest to the most
cautious mind that it would cause a cautious mind that it would cause a
violent explosionviolent explosion

Not reasonably foreseeable that the box Not reasonably foreseeable that the box
contained fireworkscontained fireworks

He did not owe DOC to the Pf, as she was He did not owe DOC to the Pf, as she was
not a foreseeable victim of the railway co’s not a foreseeable victim of the railway co’s
negligence.negligence.

65. Haley v London Electricity Haley v London Electricity
BoardBoard

66. HaleyHaley

Df’s (under Stat-Auth) excavated a Df’s (under Stat-Auth) excavated a
trench in a street. trench in a street.

They took precaution of ordinary They took precaution of ordinary
normal-sighted people normal-sighted people

but the PF was blind and he suffered but the PF was blind and he suffered
injury.injury.

Df owes DOC or not?Df owes DOC or not?

67. 
Yes.Yes.

There were sufficient blind people There were sufficient blind people
who used that street and the Df who used that street and the Df
should have had them in should have had them in
contemplation and take necessary contemplation and take necessary
precaution for them too.precaution for them too.

Pf was a foreseeable victimPf was a foreseeable victim

68. 
Pf must belong to a class of persons Pf must belong to a class of persons
to whom damage is reasonably to whom damage is reasonably
foreseeable.foreseeable.

69. ACTIONABLE ACTIONABLE
OMISSIONOMISSION

70. 
GR – omission does not give rise to GR – omission does not give rise to
duty of care, as the principle is that duty of care, as the principle is that
a person should not harm others . a person should not harm others .
He is under no duty to do He is under no duty to do
something for the benefit of something for the benefit of
another.another.

71. Exception – where the Exception – where the
omission gives rise to a DOComission gives rise to a DOC

1. when omission is contrary to an 1. when omission is contrary to an
existing duty (did not brake)existing duty (did not brake)

2. Special relationship exists (Dr and 2. Special relationship exists (Dr and
patient)patient)

3. Where the Df has control over a 3. Where the Df has control over a
third party who causes the damage.third party who causes the damage.

4. Df has control over the land or 4. Df has control over the land or
property where danger existsproperty where danger exists

72. Stansbie v TromanStansbie v Troman

73.     

Painter and decorator was carrying Painter and decorator was carrying
out work in Pf’s house. Pf told him to out work in Pf’s house. Pf told him to
lock the door when he leaveslock the door when he leaves

One day One day he left the house with the he left the house with the
door unlockeddoor unlocked

Thief entered and Pf’s things stolenThief entered and Pf’s things stolen

Painter liable in negligencePainter liable in negligence

(negligent omission)(negligent omission)

74. Chai Yee Chong v Lew Chai Yee Chong v Lew
Thai Thai [2004] 2 CLJ 321[2004] 2 CLJ 321

Pf “kepala” of the minePf “kepala” of the mine

Df manager – both co-workersDf manager – both co-workers

Heavy rain – Pf, after consulting Df Heavy rain – Pf, after consulting Df
went down the mine with tractor to went down the mine with tractor to
push up the bundspush up the bunds – dark night – dark night

Bunds collapsed and the tractor fell Bunds collapsed and the tractor fell
into the mining pit causing the into the mining pit causing the
plaintiff to sustain injury plaintiff to sustain injury

75. 
the plaintiff contended that as the the plaintiff contended that as the
defendant knew that work involving defendant knew that work involving
the tractor was not usually done at the tractor was not usually done at
night and that when it rains it would night and that when it rains it would
be dangerous to work, be dangerous to work, the the
defendant should have stopped defendant should have stopped
the plaintiff from proceeding to the plaintiff from proceeding to
raise the height of the bund. raise the height of the bund.

76. •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.

77. 
On appeal,On appeal,

Appl himself was doing the same workAppl himself was doing the same work

Both thought it was not inherently Both thought it was not inherently
dangerousdangerous

Resp did not object to itResp did not object to it

Resp himself had 16 years experience Resp himself had 16 years experience
and would have known the dangerand would have known the danger

78. 
Df not liableDf not liable

Omission was not actionableOmission was not actionable

79. Parimala a/l Muthusamy v. PLUS Parimala a/l Muthusamy v. PLUS
Highway (1997)Highway (1997)

Driver killed when car collided into Driver killed when car collided into
stray cows.stray cows.

Read Norchaya pg 114Read Norchaya pg 114