Torts (General+Negligence)

Definition

• Latin “tortus”-to twist/wrong

• private wrong committed by one against another, a wrongful act or omission not allowed by law

• Winfield;

  • tortious liability arises from breach of duty primarily fixed by law; duty is toward any person in general, breach is redressible by action for unliquidated damages

General Features of torts

• wrongful/unauthorised act or omission

• affects others interests/rights

• injured party has right to claim for damages

Sources of torts

• English common law, per s3 Civil Law Act 1956

• common law principles codified into local law

• local judicial decisions

Negligence Definition

Winfield and Jolowicz

• breach of legal duty to take care which results in damage, undesired by the defendant to the plaintiff

• Moral duty not included, no intent to harm

When does cause of action for negligence arise?

Bank Bumiputra Malaysia v Tetuan Wan Marican Hamzah & Shaik & Lain-lain [1994]

• on date loss is suffered

• when damage is latent, the date the damage came into existence-not when it is discovered

Elements of Negligence

1. defendant under legal duty of care to plaintiff

2. breach of duty of care

3. plaintiff suffered damage

Duty of Care Definition and Test

• obligation/burden imposed by law requiring a person to conform to a code of conduct (obligation to avoid conduct fraught with unreasonable risk of danger to others)

• Test to determine existence; Neighbour Principle

• Est in Donoghue v Stevenson [1932]

  • Held: manufacturer owed a duty of care to the consumer, included ensuring the drink contained no noxious substance which could cause injury

• Defined neighbour as

  • persons who are closely and directly affected by any act that ought responsibly to have them in contemplation as being so affected

Breach of Duty of Care

• When defendant does something perceived to be below the minimum standard of care required of him

  • per Blyth v Birmingham Waterworks (1856)

• measure through the reasonable man test

  • faced with the same circumstance, what would a reasonable man (of ordinary prudence, no specialized training) have done

  • Definition of reasonable man from Vaughan v Menlove (1837)

• Government of Malaysia & Ors v Jumat bin Mahmud & Anor [1977]

  • a pupil behind plaintiff pricked his thigh with a pin, plaintiff turned and eye made contact with sharp pencil held by pupil resulting in injury and loss of eye. High court held form mistress liable for negligence

  • Federal court held no breach of duty of care, injury was not foreseeable and no necessary steps able to be taken to prevent

• Mohamed Raihan bin Ibrahim & Anor v Government of Malaysia & Ors

  • plaintiff injured by hoe wielded by another pupil in practical gardening class, alleged defendant failed to adequately supervise and instruct

  • Fed Court distinguished from Jumat, held defendants liable due to failure to take reasonable steps to prevent injury

Plaintiff Suffered Damage

• damage must be foreseeable and must not be too remote

• 2 tests to determine;

  • But For and remoteness of damage

    • But For Test

    • Causation in law/remoteness of damage

But For Test

• but for the defendant’s breach of duty of care, would the plaintiff have suffered anyway?

• Bernett v Chelsea & Kensington Hospital Management Committee [1969]

  • plaintiff’s husband goes to defendant’s hospital for vomiting, nurse on duty calls dr who tells him to go home and call his doctor. Later husband dies due to arsenic poisoning

  • held; dr had breached duty of care in not treating, but that did not cause the plaintiff’s husband’s death

Causation in law/remoteness of damage

• defendant is only liable if its reasonably foreseeable that the action would cause damage to plaintiff

• The Wagon Mound [1961]

  • name of defendants chartered ship, anchored at C Oil Company to refuel, worker negligence causes some oil spill, spreads onto plaintif’s wharf where two ships were anchored for welding. Immediately stop welding work, advised its safe to continue, cautious about flammables nonetheless. 2 days later oil catches fire, causing extensive damage

  • experts say fire was unforeseeable, damage to parts via oil seepage however was foreseeable

  • held; not foreseeable to a reasonable man, defendant not held liable