TORT LAW - CASE REVIEW 2 23_8

CASE REVIEW 2 :

LAW OF TORT
DIL1233

Prepared by :
Nurul Aleeya Natasha Binti Hishammudin

(DIL 211028)
Prepared for :

Madam Fatihah

Semester 1 2022/2023

QUESTION :

Upon celebrating Chinese New Year, Lee Jin Ming, a fisherman, put up a gambling event
together with his friends at Tangkak riverfront. Unexpectedly, the policemen conducted raids
on boats where the majority of fishermen jumped into the river to escape from being arrested.

Police lined the river bank shouting at them to come up and to be arrested. Afraid by the
police, most of the fishermen came to shore and were arrested, except Lee Jin Ming, who was
having difficulty swimming in water.

Muthu, a fishing boatman passing by the riverfront, realized Lee Jin Ming was in distress and
tried to pull him up. Inspector Ramli, the police leader, shouts at him not to save Lee Jin
Ming or he will be arrested together with the other fishermen. Surprised by the threat, he
pulled away and left Lee Jin Ming struggling, then drowned in the water.

Upon dissatisfaction, Anthony, son of Lee Jin Ming was shocked with the news and decided
to take action against the policemen and the government. Advise Anthony.

ANSWER :
In the Lee Jin Ming case, where he died drowning in the riverfront as the result of the

policeman threatening the fisherman who wanted to help the deceased, The policeman said to
the fisherman that if the fisherman tried to save Lee Jin Ming, the fisherman would be
arrested as well. Scared by the threat, the fisherman left the deceased srtuggle in the water.

The issue in this case is whether Anthony, the deceased son can sue the goverment
and the policemen for negligence.

Negligence means a breach of duty of care, resulting in injuries or damage. In simpler
terms, it can be defined as the failure to oblige the legal standard or procedure or conduct.
There are 3 elements of negligence which are first element, there is duty of care on the
defendant behalf, secondly the duty of care is breached by the defendant and last element is
the breach resulting in damage to the plaintiff.

The first element is there must be a duty of care between the claimer and the
defendant. Duty in this term means duty as imposed by the law or legal duty. The principle
that has been taken into account in the existence of care in neighbourhood principle.
Neighbourhood principle means to someone who is close and directly affected by our act and
we must take reasonable action to avoid any act or omission that will cause injury to our
neighbour. For example, in the case of Donoghue v Stevenson [1932] AC 562, the defendant
is a ginger beer manufacturer and the plaintiff is the consumer of the beer. The plaintiff who
drank the beer found a decomposed snail in the beer. In the result of that, the plaintiff suffered
shock and was severely ill as a consequence. The court held that the defendant is liable and

owed duty of care to the plaintiff as it is tested that the plaintiff is the neighbour of the
defendant.

The second element is breach of duty, breach of duty exists when the defendant does
something that didn’t reach the below minimum standard of care that required. The standard
of care is determined through the standard of reasonable man or in other words is regarded as
reasonable behaviour varies according to the situation of the case. For instance in the case of
Mohamed Raihan bin Ibrahim & Anor v Government of Malaysia & Ors [1981] 2 MLJ 27.
The court held that the defendant was negligent as they failed to take reasonable action to
prevent the injury of the plaintiff as the plaintiff is under their duty of care. They also failed
to examine the tools and failed to give sufficient warning and the defendant failed to provide
a safe school environment to the plaintiff.

The last element is the damages or injury. The damage or the injury must be a direct
effect or caused by the act of breach of duty. In the case of Bradford v Robinson Rentals Ltd
[1967] 1 All ER 267, the plaintiff suffered from frostbite as the result of the plaintiff
employer's negligence to put heater in the van during winter.

In the Lee Jin Ming case, the fishermen were threatened to not save the deceased. We
can conclude that the policeman had committed negligence during his working period. The
police have the duty to protect citizens from any harm. But in the Lee Jin Ming case, the
defendant failed in duty of care by saving the deceased as the deceased were close and to the
defandent as in the neighbourhood principle.

Besides that, Inspector Ramli does something that is perceived to be below the
minimum standard of care required by him. In other words, Inspector Ramli did not act like
any reasonable man would act if they were in the situation. The result of the Inspector Ramli
breach of duty to care is that the deceased struggled in the water and died. As referred to Lok
Kwai Moi & Ors v Ramli bin Jamil & Ors & Government of Malaysia [1984] 1 MLJ 46 case,
the situation and Lee Jin Ming case is quite familiar. In the case, police conducted raids on
boats tied up where fishermen were gambling. Majority of the fishermen jumped into the
river to escape. The policemen asked them to come up to the river bank to be taken away.
Most of the fishermen came to shore and were arrested. But the deceased have difficulty in
the water. The defendant threatened the boatman who wanted to save the deceased and said
that he would also be aressted along with the deceased if he helped him. The court held that
the policeman who frightened the boatman should have known and predicted any sane person
and reasonable man would have known and aware that his threat would prevent the boatman
from performing the rescue. We can apply the same to the Lee Jin Ming case where the
fishermen were also threatened to not save the deceased. We can conclude that the policeman
had committed negligence during his working period.

In conclusion , Anthony may sue Inspector Ramli for negligence as the elements for
negligence in the Lee Jin Ming case were fulfilled.