Negligence Breach of Duty Dr Sonny Zulhuda Elements

Negligence: Breach of Duty Dr. Sonny Zulhuda

Elements of Negligence DUTY OF CARE BREACH OF DUTY OF CARE Plaintiff must prove that there exists a duty of That duty of care is not care on the part of duly performed or defendant breached; i. e. by the commission or omission of the defendant DAMAGE Damage occurred and suffered by the plaintiff due to the defendant’s breach of his duty of care

When a duty of care was breached…

When is a duty breached? • 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.

The Objective Standard of a Reasonable Person • Q: Who is this “reasonable person”? • A: An objective standard of an ordinary person on the street. – In UK: “The man sitting on the back of the Clapham Omnibus” • See: Hall v. Brooklands Auto-Racing Club (1933) 1 KB 205 – In AU: “The man on the Bondi tram” • See: Papatounakis v Australian Telecommunications Commission (1985) 156 CLR 7 – In KL: “The one commuting on LRT? ”

How to measure the Standard of Duty? “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 Waterworks (1850) Omission & Commission An objective standard taking no account of the D’s incompetence… he may do the best he can and still be found negligent. – Blyth v Birmingham Waterworks (1850) Reasonableness; not perfection! Reasonable, not Fantastic Possibilities If the possibility of danger emerging is only a mere possibility which would never occur to the mind of the reasonable man, then there is no negligence in not having taken extraordinary precautions. People must guard against REASONABLE possibilities but they are not bound to guard against FANTASTIC possibilities. – Fardon v Harcourt-Rivington (1932) Idiosyncrasies are excluded! The degree of the care required on the particular facts depends on the accompanying circumstances, and may vary according to the amount of risk to be encountered – Glasgow v Muir (1943)

Standard of Duty for Professionals? Merely to describe something as an error of judgment tells us nothing about negligence; it depends on the nature of the error. If it is an error that such a reasonable competent professional man, acting with ordinary care, might have made, then it is not negligent. – Dr Chin Yoon Hap v Ng Eu Khoon [1998] Error of Judgment? Professional Standard? 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. – Swamy v. Matthews [1968] 1 MLJ 138 Which Professional Standard? There may be one or more perfectly proper standards; and if the medical man conforms with any one of those proper standards then he is not negligent – Bolam v Friern Barnet Hospital Management Committee (1957)

• 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.

Steven Phoa Cheng Loon v. Highland Properties [2000] 4 MLJ 200 • The 3 rd defendant, a qualified civil engineer, was found negligent having issued a notice of the drainage full compliance to obtain the CF, whereas in fact only 10% of the drainage implementation was completed! • Court: “I have reiterated my strong sentiments against this type of attitude of professionals whose only consideration is to guard and secure their own interest rather than their duties and obligations to those closely affected and the public on which so much faith and reliance are placed on them to carry out their professional duties…”

Diverse aspects of professional negligence • • Drivers Legal profession Teaching profession Medical profession

Duty of Drivers of Vehicles Ong Hock Thye FJ in KR Taxi Service Ltd v Zaharah [1969] 1 MLJ 49 • 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 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. ” • READ CASE: Zainap bte Abd Majid v Gan Eng Hwa [1995] 1 MLJ 801

Duty of Teachers • Government of Malaysia v. Jumat bin Mahmud [1977] 2 MLJ 103 • Mohamed Raihan bin Ibrahim v. Government of Malaysia [1981] 2 MLJ 27 • Sri Inai (Pulau Pinang) Sdn Bhd v Yong Yit Swee [1998] 3 CLJ 893

Duty of Teachers Raja Azlan Shah FJ: “It is accepted that by reason of the special relationship of teacher and pupil, a school teacher owes a duty to the pupil to take reasonable care, for the safety of the pupil. Government of Malaysia v. Jumat bin Mahmud [1977] 2 MLJ 103

Duty of Teachers 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. ” Government of Malaysia v. Jumat bin Mahmud [1977] 2 MLJ 103

Duty of Legal Professional • 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)

Medical Profession • Under Medical negligence cases, court looks at several categories of duties of care, among others: – Duty to give sufficient warning about the risk of medical treatment – Duty to conduct the treatment professionally • In Bolam v Friern Hospital [1957]: “Doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that medical act. ” • He is not negligent merely because there is a body of medical opinion that takes a contrary view Bolam principle

Bolam v Friern Barnet Hospital Management Committee (1957) QBD • Based on the facts of the case, there are few issues: – Whether the doctor had sufficiently given a warning to the plaintiff about the risk he was facing? – Whether the doctor was negligent in not providing certain procedure during treatment given to the patient? • D hospital gave electro-convulsive therapy that broke D’s bones. Some doctors would give relaxant drugs others would not.

Bolam v Friern Barnet Hospital Management Committee (1957) QBD • Facts: – The risk of fracture during therapy was 1 in 10, 000 cases – The patient was under mental illness, requiring electro-convulsive therapy for his brain – There was an evidence that the practice was accepted though it was open to different views • Held: A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art. • Defendant was not negligent there was the room for difference of opinion and practice. • COMPARE: Rogers v Whitaker (1992) 175 CLR 479; and Foo Fio Nia v Dr. Soo Fook Mun [2007] 1 MLJ 593

In determining the “reasonable man’s standard “of duty of care, consideration may be given to several factors… Current knowledge Magnitude of risk General and Practicability approved practices of the Importance precautions of the purpose REASONABLENESS?

“Magnitude of Risk” Bolton v Stone [1951] • P standing on the h’way next to cricket ground – struck by ball hit out by a batsman – Ho. L said the likelihood of injury was so slight taking into account the distance, the 7 ft fence and the slope – The ball must have travelled abt 100 yards; this happened only about six times in 30 yrs – D not negligent for not taking additional precautions. Paris v Stepney B. Council [1951] • P (one-eyed man) was employed by D to work in conditions involving some risk of eye injury without protection – goggle was not necessary for normal worker – P was injured and was totally blind – Crt held that P’s condition increased the risk – D was negligent. Miller v Jackson [1977] • P’s property was damaged due to the ball hit from cricket ground – the cricket club had earlier increased the height of the fence to nearly 15 ft high – Court held the risk of injury was so great that it had occurred frequently (in 8 or 9 occasions) – D was guilty of negligent.

“Current Knowledge” Roe v Ministry of Health [1954] • P was under minor operation - Doctor administered a spinal anaesthetic to him – the anaesthetic was contained in a glass ampoule kept in a solution phenol – phenol seeped into the cracked ampoule and contaminated the anaesthetic – injection of such contaminated liquid had paralysed the P. • Fact: the danger of crack was neither visible nor it was known to exist at the time (1947). • Court held D was not liable as one should “must not look at the 1947 accident through 1954’s spectacles. ”

“Importance of Purpose” Watt v Hertfordshire PP [1954] • D, local authority that ran the fire brigade. C a fire fighter was injured by equipment that slipped on the back of a lorry. The ordinary lorry was used to carry heavy lifting equipment needed at a serious road accident where a person was trapped. The special lorry, which usually carried the equipment, was engaged in other work at the time, and the fire officer ordered the equipment be loaded into the back of an ordinary lorry. • Denning, LJ: “. . . in measuring due care one must balance the risk against the measures necessary to eliminate the risk. [. . . ] The saving of life or limb justifies taking considerable risk. . . ". • Employer’s decision to load the heavy jack on the ordinary lorry in this case was justified for saving the trapped person. Thus there was no breach of standard of care. C lost. In Daborn v Bath Tramways, Crt said that “the purpose to be served, if sufficiently important, justifies the assumption of abnormal risk. ”

“Practicability of Precautions” • Latimer v AEC Ltd [1953] • D, a factory owner. P slipped on an oily film and injured his ankle. The sawdust put down to soak up liquid did not cover the entire floor. The oily film was due to water from an exceptionally heavy storm. • Court held: D had done all that a reasonable person would do in the circumstances; they could not have eliminated the risk completely without closing the factory. • Closing the factory was not impractical. D was not negligent, P lost the case.

“General Practices” Aik Bee Sawmill v Mun Kum Chow [1971] • P did not use crossbar to lift planks onto a lorry (which was the general practice) and injured himself due to the falling planks. Crt found D (employer) liable because he never taught P to use the crossbar. General Cleaning Contractors v Christmas [1953] • P (window cleaner) was cleaning a window 27 feet above the ground – stood on the ledge of the window which was 6¼ inches-wide – fell and injured – regardless the fact that it was a common practice, D (employer) was liable for not providing a safe system of work (So, complying with general practice per se is sometime not sufficient).

REVISION • What is meant by standard of duty of care? Why is it important? • What are the standards required by the law in determining the performance or breach of a duty of care in torts? • Who is a reasonable person? • What is the standard of duty of care for professionals? • Why do we need to look at the risk factor in determining the breach of duty of care? • Should general practice determine strictly the standard of duty of care?