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LAW OF NEGLIGENCE

DUTY OF CARE

Definition
The term 'negligence' has 2 different
meanings
It refers to the condition or state of mind of a
person at a given moment in time. In this
sense, the word means 'recklessness' or
'carelessness'.
Negligence is a name of an independent tort.

Legal definition
Winfield the breach of a legal duty to take care
which results in damage, undesired by the
defendant to the plaintiff.
Lord Wright in Loghelly Iron & Coal v M'Mullan
'negligence means more than heedless or careless
conduct. It properly connotes the complex concept
of duty, breach and damage thereby suffered by the
person to whom the duty was owing'.

3 principal elements

THE DUTY OF CARE


Duty means an obligation or a burden imposed
by law, which requires a person to conform to a
certain standard of conduct.
Whether a duty of care is owed in any given
circumstances is a question of law, to be
decided by the judge.
The concept of duty of care was 1st recognised
by the House of Lords in Donoghue v
Stevenson.

Pre-Donoghue v Stevenson
The 1st attempt to formulate a general principle
was made by Lord Esher in Heaven v. Pender
(1883).
The P was a ship painter in the D's dock. A
scaffolding erected by the D which the P was
using gave away and the P was injured.
Held since there was no contractual
relationship between the parties, the action
could not be maintained.

Lord Esher observed;


Whenever one person is by circumstances
placed in such a position with regard to another,
that everyone of ordinary sense who did not
think and would at once recognize that if he did
not use ordinary care and skill in his own
conduct with regard to those circumstances he
would cause danger or injury to the person or
property of the other, a duty arises to use
ordinary care and skill to avoid such danger.

Donoghue v Stevenson (1963)


A friend of the P had purchased a bottle of ginger
beer at a caf. The P had consumed some of the
drink but when she poured out the reminder of the
contents of the bottle, a decomposed snail was
found in the drink. As the bottle was black in
colour the P was unable to see its contents much
earlier. The P suffered shock and subsequently
became ill. She sued the manufacturer of the
ginger beer.

The ratio of D v S
The House of Lord held that the D being
manufacturer of the ginger beer, owed a duty
of care to the P, as the ultimate consumer of
the drink.
This duty was to take reasonable care to
ensure that the bottle did not contain any
substance which was likely to cause injury to
anyone who purchases it in due course

Neighbour principle
Lord Atkin in his dictum (dicta) enunciated what is
known is Neighbour principle
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 neighbour
receives a restricted reply. You must take
reasonable care to avoid acts or omissions which
you can reasonably forsee would be likely to injure
your neighbour..

Cont.
Who then, in the 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 my
contemplation as being so affected when I
am directing my mind to the acts or omission
which are called in question.

Significance of D v S
D v S laid the foundation of the law of negligence.
The most important aspects of the case are
Negligence is recognized as a separate tort
An action for negligence can exist whether or not
there is a contract between the parties it
destroyed the privity fallacy
It introduced a general test to determine the
existence of a duty of care using neighbour
principle which is based on reasonable
foreseeability and proximity of relationship.

Home Office v Dorset Yacht Co.


Ltd (1970)
Whether a duty situation exists in any given
case, Lord Atkins statement should be
regarded as a statement of principle /
general application unless there is some
justification or valid explanation for its
exclusion.

Fact
Seven borstal boys had escaped from an island
where they were undergoing training. The
escape was due to the negligence of the officers
who were in bed. The boys caused damage to
the P's yacht. The P sued the Home office.
Issue whether the home office and its officers
owed any duty of care to the owner of the yacht.
(Damage was caused by a 3rd party)

Decision
The court observed - 'when a new point
emerges, one should ask not whether it is
covered by authority but whether recognized
principle apply to it.'
Held the duty of care exists in such
circumstances.

LKTP (FELDA) v Mariam


A kongsi-house built on FELDAs land collapsed
and killed the deceased. He sued FELDA for
negligence in providing a safe kongsi-house.
FELDA contended that the deceased was the
employee of the sub-contractor. FELDA therefore
owed no duty of care to him at all.
Held Liability depending on contractual
relationship was abandoned by the House of Lords
in D v S. The D was held liable for negligence.

Present requirements of duty


of care

Laid down by the House of Lords in Caparo


Industries plc v Dickman (1990).
(a) a reasonable foreseeability of harm
(b) proximity of relationship between the
plaintiff and defendant
(c) it must be just, fair and reasonable to
impose a duty of care.

Foreseeability
The test of foreseeability is objective i.e.
what a reasonable person could have been
expected to foresee.
The P does not have to be individually
identifiable for the D to be expected to forsee
the risk of harming them.
It is sufficient if the P falls within a category of
people to whom a risk of harm was
foreseeable. E.g the end user of a product.

Proximity of relationship
Basically refers to the closeness of the
relationship between the defendant and the
claimant.
It does not necessarily mean physical
closeness.
The degree of closeness differs according to
the type of damage and other factors.

Lord Oliver in Alcocks case


observed;
.in the end, it has to be accepted that the
concept of proximity is an artificial one
which depends more upon the courts
perception of what is the reasonable area for
the imposition of liability than upon any
logical process of analogical deduction

Fair, just and reasonable


The fair, just and reasonable criterion
enables the courts to determine liability on
the basis of policy.
Thus, although a case meets the
requirements of foreseeability and proximity,
the courts may find there is a sound public
policy reason for denying the claim.

Caparo v Dickman
Caparo introduces a new approach in
deciding a duty of care called incremental
approach.
In using the incremental approach in
determining the existence of duty of care(a)the P must point to a direct precedent
(authority or to a closely analogous
precedent in which a duty of care has or has
not been imposed.)

Cont.
(b) In new cases in which no relevant authority
exist, the court shall apply the three factors
(i) Foreseeability
(ii) Proximity
(iii) Public policy

Marc Rich v Bishop


The House of Lords held that a classification
society ( an independent and non-profitmaking entity) did not owe a duty of care to
the owner of cargo on a vessel that had been
negligently certified as seaworthy when the
vessel subsequently sank.
The tripartite test for establishing a duty of
care promulgated in Caparos case is now to
be of universal application.

MPAJ v Steven Phoa


The Federal Court Followed Caparo and
decided that on the facts and the
circumstances of this case, it was not fair,
just and reasonable to impose a duty of care
on MPJA or other local councils in this
country in similar situations.

Policy consideration in
negligence
Winfield states that 'the use of the word
policy indicates no more than that the court
must not decide simply whether there is or is
not a duty but whether there should or should
not be one, taking into account both the
established framework of the law and also
the implications that a decision one way or
the other may have for operation of the law in
our society.'

Public policy
Public policy extends to moral, social,
economic and political factors.
Even though a duty of care is found to exist
on grounds of foreseeability and proximity,
liability is nonetheless excluded on grounds
of public policy.

Hill v Chief Constable of West


Yorkshire
Also known as 'Yorkshire murder case'. The
P's daughter was the last victim of the
'Yorkshire ripper'.
The mother sued the police department and
alleged that the police was negligent for their
failure to arrest the criminal.

DECISION
The House of Lords held that there was no
duty on the part of the police towards general
public to arrest an unidentified criminal.
It would be contrary to public policy if such a
duty was imposed upon them.

Rondel v Worsley
Held the advocates, whether barristers or
solicitors, were immune from a claim for
negligence by a disappointed client in
respect of the manner in which a case was
conducted in court. (litigation)
This immunity is founded on public policy.
Does not apply to other aspects of lawyers
job.

Mohd Nor Dagang v Tetuan


Mohd Yusof
The P alleged that the D (lawyer) was
negligent in defending his case. As a result
the P was held liable and ordered to pay a
sum of more than half million.
The court applying the principle in Rondel
held the D not liable as the principle of
limited immunity of advocates applies in this
case.

Duty and the foreseeable


plaintiff
Basic principle duty of care should be owed
to the plaintiff.
The D did not owe a duty of care to the
particular plaintiff if the plaintiff was
unforeseeable.
The P cannot rely on a duty that the D may
have owed to others.

Palsgraf v Long Island Railroad


US case but the principle has been adopted
in English cases.
Fact the negligence of railway employees
caused a passenger to drop a box of
fireworks. The fireworks exploded and
knocked over some heavy metal scales
several feet away, which struck the P.

Decision
The New York Court of Appeal rejected P
claim for damages, holding that if any wrong
had been committed, it had not been
committed against the P, because she was
not a foreseeable victim of the railway
companys negligence.
According to the jury, the P was beyond the
range of foreseeable peril

Bourhill v Young
The D motor-cyclist was killed in a crash
caused by his own negligence. The P heard
the crash but did not see it.
She only saw the scene of the accident after
the Ds body had been removed.
She suffered nervous shock and sued the D.

Decision
The House of Lords held the D not liable
because he did not owe the plaintiff a duty of
care.
Although it was foreseeable that negligent
driving might endanger other road users, the
particular injury to the plaintiff was not
foreseeable.

Haley v London Electricity


Board
The D's servants had excavated (dig up) a
trench in a highway and then placed some
notice boards and the handle of hammer on
the pavement. The handle could easily be
seen by a normal person. However the P
who was blind tripped over the handle and
injured himself.

Judgement
The House of Lords held that the D liable.
Although their warning was sufficient for
normal person, it was inadequate for blind
people. They should foresee that not all road
users are normal-sighted person.

Actionable Omissions
Another factor in deciding the existence of
duty of care is whether the act is in the form
of commission (positive act) or omission
(negative act).
As a general principle omission does not give
rise to a duty of care.
The principle is that a person should not
harm others but he is not under a duty to do
something for the benefit of another.

Stovin v Wise
The P was involved in a road accident at a
dangerous junction. The question arose whether
the local authority, which had resolved to carry out
improvement to the junction, could be liable for its
failure to do so.
By a 3:2 majority, the House of Lords held that the
local authority was not liable for its omission to act.
It had a statutory power to improve the junction, but
not a duty to do so.

Lord Hoffmann observed;


There are sound reason why omissions
require different treatment from positive
conduct. It is one thing for the law to say that
a person undertakes some activity shall take
reasonable care not to cause damage to
others. It is another thing for the law to
require that a person who is doing nothing in
particular shall take steps to prevent another
from suffering harm.

Lew Thai v Chai Yee Chong


The P was injured while trying to build an
embankment to prevent rising water from
flooding the mine. He alleged inter alia that
the D (co-worker) had failed to take any or
adequate precautions for his safety.
The court held the D liable as there was a
special relationship between the parties.

Parimala v PLUS (1997)


A driver of a car traveling on the highway was
killed when the car collided with a stray cow.
The court found the D as the highway
authority responsible for the maintenance and
safety of the highway, liable in negligence.
PLUS had failed to repair the hole in the fence
which the cow used to enter the highway.

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