Tort - Negligence, Occupier's Liability, Medical Negligence, Nuisance

Duty of care

Negligence/Occupier’s Liability/

• Generally, it is well-established that road users owe duty of care to each other

• [Tenaga Nasional Msia v Batu Kemas Industri] - the FC in this case confirmed that the test laid down in [Caparo v Dickman] is the correct test for duty of care in Malaysia

Medical Negligence

• doctor-patient relationship falls within the well-established category of presumed duty of care

3-fold test in Caparo

• whether there is proximity of relationship

• whether damage is foreseeable when there is negligence

• whether it is fair, just, and reasonable to impose a duty

MVA - breach of duty

• when the D’s conduct fell short of the standard expected of a reasonable competent driver

• [Nettleship v Weston] - a learner driver’s competence is to be assessed against the standard of an experienced driver

• only speed limit on PLUS Highway is 110km/h

• presumption - where when a vehicle was knocked by another vehicle from the rear - the latter is at fault

MVA causation

• but for D’s negligence, would the P be injured?

• establish chain of causation

MVA - causation at law

[The Wagon Mound No.1]

• is it reasonably foreseeable that an ordinary person would suffer xxx injuries if he was hit by D who was driving xxx?

novus actus interveniens

• chain of causation broken

  • something extraneous that disturbs the sequence of events

  • Eg: Act of God

• [Austin Height v Eco Water] - if the consequence of D’s wrongdoing is attributable to any independent act/event which supersedes the effect of the initial tortious conduct, D’s responsibilities may not extend to the consequences of the supervening event - break in the causal link

Contributory negligence - s12 CLA1956

Failure to wear helmet/ belt / pillion passenger

• P failed to take reasonable care for their own safety, which contributed to their injuries.

• onus on the D to prove

• [Siti Rohani v Haji Zainal] - had the D wore a helmet, might sustain significantly less severe injuries than without - there is CN

• [Chu Kim Seng v Abdul Razak] - the victim has no duty to minimize the effect of possible consequence on injury he might suffer due to D’s negligence

• also argue that failure to wear helmet and belt / to have more than one pillion passenger/ drink and drive is a violation under Road Transport Act 1987

Intoxication

• counter argument with acting on emergency on situation [Divian v Mohd Falil]

if successfully - crt may reduce damages awarded to P to account for his share of responsibility for their injuries or death

Volenti non fit injuria

[Jordan Saw v Low] -

• P willingly consented to accepting the danger

• consent was real - given without force

full defence - would render P’s claim failed if successfully raised

Sketch plan/ Bingham’s Table

[Mustapah v Basit] - admissible

[Tabarani v Chan] - heard screeching tyres - has tyre marks as evident in the sketch plan - tyre marks can be measure using Bingham’s Table

breach of duty of care - negligence (occupier)

• should’ve taken precaution in light of seriousness on injury that would entail if accident happen [Paris v Stepney Borough Council]

• likelihood of accident happening is high [Miller v Jackson]

• precaution expected to be taken by D is reasonable and practical [Latimer v AEC]

breach of duty of care - OL

Occupier’s Liability

• failure to exercise reasonable care and skills to ensure premise safe and fit for intended purpose

• [Shanta v Teik Joo Chan] - there might be more than one occupier - each has a duty of care to visitors for the purpose of occupier’s liability

NOTE: can sue negligence and OL

premise

[Lau Tin Sye v Yusuf] - all forms of buildings, land, vehicles used to carry persons or structures

occupier

[Wheat v Lacon] - has sufficient control over the premise

• contractual entrant - entered pursuant to contract - owe highest standard of care - A could be liable for OL even though danger is unusual or unknown to occupier

• invitees - authorised by law / business visitors - with potential to generate profit (eg: shopping mall) - if know of the unusual danger or unknown but ought to have knowledge - liable

• licensee - enters with occupier’s express or implied gratuitous permission - no economic gain - if unknown - not liable - if known but concealed - liable

• trespassers - lowest std of care - whether D is aware of the likelihood of the trespasser on his land - must either take measures to prevent entry or should eliminate danger - [TNB v Ranakrishnan] - trespassing kids electrocuted

Nuisance

Nuisance

• [Chin v Sunrise Alliance]

  • public nuisance - interfering and disturbing a person in the enjoyment of his right as a member of the public

  • private nuisance - interfering and disturbing a person in the enjoyment of his ownership or occupation of land or other right in connection with land

• Standard of care - whether or not such interference is unreasonable depends on ordinary usages of mankind in a particular society - mere inconvenience x suffice [Au Kean Hou v Persatuan Penduduk D’Villa]

Breach of duty of care - DBKL

DBKL - statutoty duty

• injury suffered within the ambit of the statute

• breach of statutory duty imposed under the Local Government Act 1976 or other

• unclear whether there is any ouster clause to protect DBKL from liability

• [Rosliza v Kerajaan Negeri Sgor] - affirmed decision in previous cases that ouster clauses are unconstitutional and gov cannot rely on them to escape liability

• followed in [Dinesh v Lembaga Pencegahan Jenayah] - ouster clause in Prevention of Crime Act to restrict judges from inquiring into grounds for detention - unconstitutional and void

Breach of duty of care - medical neg

Medical Negligence

• [Zulhasnimar v Dr Kuppu] - Bolam test still applies in Msia - acted in accordance with the practice regarded as proper by a reasonable, respectable and responsible body of medical professionals skilled in the particular art

• No such medical prof would regard D’s conduct as reasonable … fallen short of standard of care expected

Vicarious Liability

• negligent act committed during the course of D’s employment [Zakaria v Chooi]

• D is an employee

• If independent contractor [Dr Hari Krishnan v Megat Noor] - employer owed a non delegable duty to P to ensure reasonable care was taken in the surgery/ treatment services provided by the hospital

• assumed a positive duty to ensure reasonable care was taken in provision of the service by whomever the employer engaged to do

When there is more than one D

• whether both Ds have, on their part, materially contributed to the incident which caused P’s injury/ death

Rylands v Fletcher

• recognised as separate tort in Msia - [Yung Kong v HHH Tyre]

  • intentional accumulation of dangerous thing that would likely cause mischief if escape

  • non-natural use of land

• Damages caused by the escape must be reasonably foreseeable - [Cambridge Water v Eastern Counties]

Dependency Claim

a legal claim made by statutory dependents of the deceased for loss of support together with expenses reasonably incurred

• NOTE THE LIMITATION PERIOD - S7(5) CLA56’ - 3 YEARS FROM THE DAY OF DECEASED’S DEATH

Who are statutory dependents?

s7(2) CLA56’

• spouse

• parent

• child

• persons under disabilities

Conditions to satisfy to enable the dependents to claim under s7

• s7(3)(iv)(a) -

1. actual loss of support [Yap Ami v Tan]

   Eg: husband died, wife went back to work - can still claim because she is earning from her own labour - the loss of support accrues from her family relationship with the deceased -[Maylon v Plummer]

   • earn as a result of supporter’s death - cannot claim [Lim Chai Oon v Normah]

   • if continue to receive deceased’s income after death - no claim - Yap Ami

2. must be direct beneficiary of the deceased's income or support.

s7(3)(iv) CLA

1. Deceased must be below 60 years old

2. Deceased must be receiving earnings prior to his death

**can claim even if support provided by third party - [Hay v Hughes] where the grandmother was caring for the children when the deceased died

Can allowances being regarded as ‘earnings’ under s7(3)(iv)

Eg: wife dead, before wife did not work but gave allowance to parents using the money earned by husband

• not earned by own labour or other gainful activity

• argue purporsive approach - recognizing the contribution of housewife to the household that is equally important to the contribution of a breadwinner for the maintenance of a household - interpretation should evolve with societal perception

Assessing damages under loss of support

Multiplicand x Multiplier

• Multiplicand

  Earning method:

  • income + EPF contribution - tax payable and deceased’s personal living expenses

  • s7(3)(iv)(b) - prospect of earnings (how much he expects to earn) cannot be included

  • [Tey Chan v South East Asia Insurance] - personal living expenses irrelevant - only expenses incurred in earning the income will be deducted

    Contribution method

  • How much deceased used to contribute - personal expenses for his own benefit [Minachi v Mohamed]

  • [Chua Kim Suan] - Contribution from illegal earnings cannot be taken into account unless he does not play active role in the illegality - [Tay Lye Seng]

• Multiplier - s7(3)(iv)(d)

  • (60 - age of deceased) divided by 2

• s7(3)(iv)(b) - prospect of earnings (how much he expects to earn) cannot be included

• s7(3)(i) - no deduction for payment made by insurance, SOCSO, payment of gratuity or pension

Other matters in dependency claim

• s7(3) - other reasonable expenses incurred

  • can claim for funeral expenses

Loss of Services / Consortium

• s7(3)(iii) - cannot be claimed by parents or husband for the loss of services rendered by child or wife

Bereavement

• death of love ones

• s7(3B) - only claimable by spouse, children and parents

• s7(3A) - fix to 30k

• s7(3C) - amount divided equally between dependents under (3B)

Estate claim

s8 CLA

• for the benefit of the deceased’s estate

• NOTE LIMITATION PERIOD!!! - S6(1)(a) CLA56’ - 6 YEARS FROM DATE CAUSE OF ACTION ACCRUED

• can only be made by a personal rep who has extracted a grant of rep

• executor no need extract - [Meyappa Chetty v Subramaniam]

• provided the cause of action survived - not defamation, adultery, seduction or inducing one spouse to leave another

• usually when the deceased died after a period of stay in the hospital - if died instantly - under dependency claim

• s8(3) CLA56’ - no tort action against the estate unless action pending at the date of his death or action is taken not later than 6 months after the PR extracted the grant of representation

Damages claimable under estate claim

• Special Damages

  • s8(2)© CLA 56’ - funeral expenses of deceased

  • s8(2) CLA56’ - pre death loss of earnings - fixed amount at 30k

  • [Minachi v Mohamed Yusof] - cost of extracting grant

  • medical expenses, property damages and transportation [Mariah Bte Mohamed]

• General Damages

  • pain and suffering of deceased - when there is a lapse between accident and death - not immediate death - deceased was conscious - [Mariah Bte Mohamed]

  • loss of amenities - lapse between accident and death - no need be conscious - [Yeo Kim Kuan v Hamid]

Claimable expenses under personal injury

• special damages

• general damages - to be assessed

Special damages - medical cost

• actual pecuniary loss that are precisely quantifiable between date of accident and the date of trial

Eg:

• [Yaakub Foong v Lai ] - medical treatment in private hospital

• [Chai v Lew Thai] - medical treatment at gov hospital

• [Heng v Aphissit] - unreasonable for P to go to private - crt may give discount to D in respect of cost

• [Thirmalai v Mohd Masry] - future medical expenses - need to give evidence

• cost incurred in buying medical apparatus - [Appalasamy v Lee]

Cost of care

• [Chan v Karam Singh] - transportation cost for P’s family to visit/ take care of him

• [Liong Thoo v Sawiyah] - settled law that family members providing care ought to be compensated

  • prove a need for medical care - certified by doctor [Jamil v Yang Salbiah]

Calculations - multiplicand x multiplier

• Multiplicand - referring to the current value of the car service provided [Housecroft v Burnet] OR the loss of income suffered by carer [Donnelly v Joyce]

• Multiplier -

  cost of care claimed for period where P is unable to work

  • fixed multiplier if there is a timeframe as to when the P would recover

• cost of future care

  • statutory multiplier for loss of support under CLA - 30 year or below - 16 / (60 - age) divided by 2

  • judge’s discretion to use his own formula

  • statutory multiplier + contingency to account for inflationary costs [Asainar v Mohamad Salam]

  • consider life expectancy of Malaysians - [Bujang v Lai]

What if the expenses are covered by insurance

• s7(3)(i) - not deductible - claimable [Soo Cheng Lin v Sunway Medical]

• The insurance coverage for medical expenses were not gained at D’s expenses but at the expense of P himself as he paid the premium to enjoy the coverage

• Insurance policy is a collateral matter separate from P’s right of action

What if the expenses are covered by insurance

• if paid by employer pursuant to employer’s contractual obligation - deductible - [Browning v The War Office]

• argue contract of assurance

• If paid by employer gratuitously - not deductible [Lim Kiat Boon v Lim]

General damages - loss of future earnings

To claim: reduction in future earnings or unable to secure employment

s28A(2)©(i)

• below 60

• was receiving earnings

  (if not employed prior - but have secured a job - can fall under ‘receiving earnings’ - actual act of receiving can take place later

Limitations

• must have taken reasonable effort to mitigate his loss - if not might fail to claim for loss of future earnings - [Lim Eng Kay v Jaafar]

Calculations of damages for loss of future earnings

Multiplicand - earning prior to accident - earning method or contribution method

• s28A(2)©(ii) - future propect of increase in earnings cannot be taken into account

Multiplier - s28A(2)(d) -

loss of earnings claimed for period where P is unable to work

• fixed multiplier if there is a clear timeframe as to when P will recover/ recovered

loss of future earnings to be assessed

• 30 years of below - 16

  OR

• (60-age) divided by 2

• defect in policy - failed to take into account the life expectancy of Malaysians have increased over the years and the growing trend of delayed retirement age due to aging population

loss of earnings claimed for period where P is unable to work + loss of future earnings

Can the court award damages for loss of future earnings that was suffered not immediately but some time after the incident?

• [Kanan v Aman] - statutory multiplier starts from the day the P suffered the injuries from the accident. Multiplicand commenced at a later date

• There should not be a difference btw loss of future earnings suffered immediately and loss suffered some time after the cause of action accrued because either way - there is an actual loss of future earnings attributable to the accident that was caused by D’s negligence

Loss of earning capacity

[Sumarni v Yow] - real or substantial risk of her earning capacity being affected due to the disabilities sustained from the accident

General Damages - Pain & Suffering & loss of amenities

• [Lim Poh Choo v Camden] - can claim pain and suffering if conscious - quantum maybe reduced if lost consciousness subsequently

• [Lim Poh Choo v Camden] - can claim loss of amenities/ enjoyment of life even if unconscious - amount depends on the special abilities of P (claim for loss of enjoyment)

Property Damage

• as a result of the D’s negligence

  • cost of repair - reasonable amount excluding pre-existing damages

  • beyond economical repair - [Motor & General Insurance v Pok] - refer to market value of the car taking into account depreciation in value at the time of the accident due to principle of betterment [Chip Fong v Guardian Royal Exchange]

s28A(1)(a) - insurance payout not deductible

amendment in law with regards to multiplier

Pre 1/9/2019

• P must be below 55 - in good health

• s7(3A) - bereavement - 10k

• s7(3B) - if child married - parents unable to claim for bereavement

Post 1/92019

• s6(2) Civil Law (Amendment) Act 2019

  • P below 60

  • need not be in good health

  applies to s28A, s7

• s7(3A) - 30k

• s7(3B) - child married- parents can still claim for bereavement