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

• [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

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 and to have more than one pillion passenger is a violation under Road Transport Act 1987

Intoxication

sketch plan

[Mustapah v Basit] - admissible

breach of duty of care

Occupier’s Liability

• failure to exercise reasonable care and skills to ensure the safety of premises

• [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

DBKL - statutoty duty

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

• 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

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 reasonable depends on ordinary usages of mankind in a particular society - [Au Kean Hou v Persatuan Penduduk D’Villa]

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

Causation

Dependency Claim

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

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

   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]

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

3. Deceased must be below 60 years old

4. Deceased must be receiving earnings prior to his death

Assessing damages under loss of support

Multiplicand x Multiplier

• Multiplicand

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

  • 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