NEGLIGENCE Definition: Blyth v Birmingham Waterworks Co Negligence is the omission to do something which a reasonable man guided upon such

h considerations which ordinarily regulate the conduct of human affairs, would do; or doing something that a reasonable man would not do. Alderson B Lochgelly Iron and Coal Co v McMullan Negligence means more than careless conduct and properly states indirectly the concept of duty, breach and damage suffered by the person whom the duty was owing. Lord Wright Cause of action arises 1. On the date the loss is suffered by plaintiff : Bank Bumiputra Malaysia Bhd 2. For building (inner damage), it exists on the date that damage comes into existence

DUTY OF CARE If a person contracts with another to use skills towards him or his property, its an contractual obligation and no need considered in context of duty (Heaven v Pender) There may be obligation of duty from one to another even theres no contract between them A duty arises when a person placed in one position which everyone of ordinary sense who think that if he did not use ordinary care and skill in his own conduct with regard to such circumstances, he would cause danger or injury or damage to another. Lord Esher Duty : duty as imposed by law or legal duty. Breach of such duty will give rise to liability in negligence, but not breach of moral or social duty. Stovin v Wise Mr Stovin was injured when Mrs Wise negligently drove her vehicle from a junction without looking properly. It was alleged that the highway authority had been in breach of its duty to road users because it had failed to improve the sight lines of the junction by removing a bank of earth. The highway authority had the power (provided by section 39(2) of the Road Traffic Act 1988) to serve a notice on the owner of the land situated adjacent to the highway requiring the removal of the obstruction but had failed to do so. An action based on the negligent failure by the local authority to exercise this power failed.

TEST OR PRINCIPLE IN ASCERTAINING THE EXISTENCE OF A DUTY Neighbor Principle (Objective test) In determining the existence of a duty of care, known as the primary principle Donoghue v Stevenson D, a ginger beer factory had sold ginger beer to a retailer. Ginger beer bottle were opaque. A bought a bottle and entertained her friend, the plaintiff who drank the ginger beer. It was alleged when A refilled the glass along with the ginger beer came the decomposed remains of a snail.

Plaintiff suffered shock and was ill as consequence. Plaintiff sued the manufacturer, and claimed that the manufacturer had a duty in the course of his business. D liable. One must take reasonable care to avoid acts or omissions which will injure his neighbour and that neighbour is the person who are closely and directly affected by ones act. To determine ones whos neighbor or not : Will a reasonable man, whos in same condition as defendant, forsee that the act will affect plaintiff? If yes, then he is a neighbor, vice versa. Classic examples that dont need apply this test : teacher to pupil, doctor to patient, driver to road user and banker to his customer. Theres denied duty, you have freedom in not warn me that the chair that I intend to sit is broken. Home Office v Dorset Yacht Co Ltd Borstal trainees had escaped from an island due to the negligence of some borstal officers. The boys caused damage to a yacht and its owner sued the Home Office. Held: Borstal authorities owed a duty of care to the owners of property near the camp. There were no good reasons of public policy for allowing the Crown any special immunity in this respect. Liability restricted to the property-owners in the immediate vicinity their loss was foreseeable, and would not have extended to others further a field. C won. Its also stated that neighbour principle ought to be used in order to determine the existence of a duty of care unless therere good reasons or justification for its exclusion. The neighbour test for establishing a duty of care can be broken down in to two requirements: 1. Reasonable foresight of harm 2. A relationship of proximity Anns Test Anns v Merton London Borough [PG 100] P bought a house from a developer, 8 years later the cracks appeared on the wall of the house and the floor become uneven. It was due to the defect in the foundation of the house. Plaintiff sued builders and the local authority for negligence, for failure to inspect the foundation of the house and its negligence in failing to detect the defect when conducting examination of foundation Requirements 1. Forseeability and proximity between the parties 2. Defendant may put policy considerations to negate any liability Once its reasonable forseeable that the defendants act or omission may cause damage to the plaintiff, theres a presumption of the existence f a duty of care. And it will be only reduced or negative if there are policy factors which require reduction or negation of that duty. Governors of the Peabody Donation Fund v Sir Lindsay Parkinson

Drainage system of a building was defective, and the local authority which as in charge overseeing the construction of it, wasfound that the approved plan was not adhered to the result. P, owners of the building, sued the local authority, alleged that they had breached their duty in not ensuring the approved plan were adhered to.

Held, local authority is not liable. Relationships of proximity in accordance with the neighbor principle must be proved before a duty was said to exist, but the scope was depending on the facts. The court must consider whether it is just and reasonable to do so. The plaintiff have to justify on policy grounds that a duty exists.

Curran v Northen Ireland Co-ownership Association Ltd The claimant bought a property. The previous owner had had it refurbished, but it now appeared that the work had been defective. He sought damages in negligence from the defendant grant paying authority for having paid out the full amount of the grant without having withheld under the Order a sum to cover the necessary works of repair. Held: The statutory power to withhold part payment was exercisable in favour of the defendants only, and they had no duty of care to a subsequent purchaser of the property.

Held, Anns test should not be regarded as a universal test in determining the duty of care. In the process of claiming, the claimant must have a current prioprietary interest in the damaged property. Yuen Kun-Yeu v AG of Hong Kong P deposited large sum of money with deposit taking company. The deposit taking company was registered as such by a statutory officer [defendant]. The company then went into liquidation and P lost all their money.P alleged that the D know that the company conducting fraudulently and therefore D should not registered them.

Held, D did not owe such duty to P as the loss was caused by third party [deposit taking company] and D did not owe duty to protect public against such loss.

The Caparo test Caparo Industries Ltd v Dickman D auditors of company accounts. C, Caparo bought shares and then discovered that the accounts did not show the company had been making a loss. C alleged that in negligence a duty was owed to Caparo. Requirement 1. Forseeablilty 2. Sufficient proximity between the parties 3. Whether the duty is fair, just and reasonable enough

Chances of the plaintiff succeeding in establishing the existence of duty depends on the kind of harm he suffered.

General rule : a plaintiff that suffers physical damage to his property will nothave difficulty in establishing a duty of care. Marc Rich & Co v British Rock Marine Co Ltd Vessel belongs to D1 was carrying Ps cargo, mid voyage the ship developed a crack. D1 called marine classification society, D3. A surveyor from it certified that the ship is fit to continue in voyage, lastly the ship sank. P got part of sum from D1, and balance from D3.

Held, the negligence in the D3s surveyor caused the forseeable situation which the ship sank. However, D3 found no duty of care, for it is a forseeable, it was a number of policy factors, insurance being a primary consideration. The court must look at the case as a whole and be satisfied that it is a fair, just and reasonable to impose a duty of care

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