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TORT OF NEGLIGENCE 05 12 20 26 Laws and application of negligence referring to the issue NEWS : KELANA JAYA LRT CRASH Issues on the case of the LRT Kelana Jaya collision NEW CASE LAW Applying decided case to the issue in newspaper cutting REFFERENCES lists of reference and resources CONTENTS
0 3 W h e t h e r t h e e i g h t ( 8 ) L R T u s e r s c a n s u e R a p i d R a i l S d n B h d a n d P r a s a r a n a M a l a y s i a B h d a n d c l a i m d a m a g e s a s t h e r e s u l t o f t h e t r a i n c r a s h t w o y e a r s a g o d u e t o n e g l i g e n c e ? Issue
Definition : An obligation or burden, imposed by the law, which requires a person to conform to a certain standard of conduct TEST But For Test & Causation in Law CASE Donoghue v Stevenson TEST But For Test & Causation in Law Negligence is defined as a breach of a legal duty of care that results in unfavourable damage to the plaintiff caused by the defendant. -Winfield and Jolowicz When does a cause of action in negligence arise? Negligence Tort of According to the case of Bank Bumiputra Malaysia Bhd v Tetuan Wan Marican Hamzah & Shaik & Lain-lain which as the following : On the date the loss suffered In cases where the damage is latent, the date the damage comes into existence and not the date when the damage is discovered LAW 04 01 02 03 Elements to Establish Negligence There has been a breach of that legal duty of care by the defendant As a result, the plaintiff has suffered damage The defendant is under a legal duty of care to the plaintiff Breach occurs when the defendant does something that is expected to be below the minimum standard of care required of him Even if the defendant had breached his duty of care, the P can only claim negligence if he can prove that he had suffered damage because of that breach. The damage caused by the breach must be foreseeable or can be anticipated, it must not be too remote. TEST Neighbour Principle TEST Reasonable Man Test TEST (But For Test) Barnett v Chelsea & Kensington Hospital Management Committee CASE Government of Malaysia & Ors v Jumat bin Mahmud & Anor TEST (Causation in Law)
According to Lord Atkin in the case of Donoghue v. Stevenson, a "neighbour" is someone who would be immediately impacted by our actions and who we ought to expect to be impacted. Legal Duty of Care Stevenson, a ginger beer manufacturer had sold ginger-beer in opaque bottles to a retailer Donoghue consumed half and poured the remainder into a glass and found a decomposed snail in the ginger beer the a friend of him purchased from the retailer Donoghue could not see the snail as the bottle is opaque Therefore, Donoghue became ill Stevenson as the manufacturer of the ginger-beer owed a duty of care to Donoghue as the consumer The duty included ensuring that the drink did not contain any noxious substances which can likely to cause injury to anyone drinking it It is not crucial that the defendant did not know the plaintiff as long as the plaintiff belonged to one of the classes within the area of foreseeable injury Held: Neighbour Principle Who is a Neighbour? Donoghue v. Stevenson A reasonable man is an ordinary person not expected to have any particular skill such as possessed by a lawyer or a doctor unless he is actually one Breach of P pr i a s c i t n ic ju a r l e g d a b rd y e a nin h g oe cla w s ie s. lded by a pupil during Duty of Care Plaintiff alleged the defendants had failed to give adequate supervision and instruction regarding the use of the gardening tools. The Federal court distinguished this case from Jumat’s case and held the defendant negligent as they failed to take reasonable steps to prevent injury to the plaintiff who is under their care. Facts: Held: Who is a Reasonable Men ? Mohamed Raihan bin Ibrahim & Anor v Government of Malaysia & Ors Reasonable Men Test 4 Factors in Reasonable Men Test Magnitude of risk The importance of the object to be attained General and approved practice Practicability or cost of precaution LAW 05
if the answer is : As a Result, Plaintiff suffers damages The plaintiff’s husband went to the defendant’s hospital when he started vomiting after drinking some tea in the early morning The nurse on duty telephoned the doctor who instructed the nurse to tell the plaintiff’s husband to go home and call his own doctor Later that afternoon, the plaintiff’s husband died of arsenic poisoning and the plaintiff sued the hospital for negligence for its failure to treat her husband The doctor had clearly breached his duty of care to the plaintiff’s husband However, his breach did not cause the death because even if the doctor had treated him with proper care, he still could not have been saved Facts: Held: But For Test But for the Defendant’s action/breach of duty, would the Plaintiff have suffered the injury or damage anyway? Barnett v Chelsea & Kensington Hospital Management Committee Then it can be concluded that the Defendant’s breach of duty did not cause the Plaintiff’s injury. Therefore, the Defendant is not negligent. Then it can be concluded that the Defendant’s action did cause the Plaintiff’s injury. Therefore, the Defendant is negligent Yes No If a reasonable man would not have foreseen any damage as the result of his action, then the defendant is not negligent However, if a reasonable man would have foreseen any damage as the result of his action, then the defendant is liable for negligent The defendant will only be liable if it is reasonably foreseeable that his conduct will cause some degree of damage to the plaintiff Causation in Law LAW 06
NURUL ATIKAH MUSTAFA KAMAL V. NURAZALINA SURIANI ZULKIFLY & ORS [2019] 9 CLJ 395 CASE REFFERED LEGAL ISSUES On 20th March 2013 at 7.30 a.m, plaintiff suffered injuries when a portable basket ball hoop/post snapped and collapsed onto her back while the plaintiff was sitting on the basketball court whilst attending a physical education conducted by the first defendant. The plaintiff is a Form 3 student at Maktab Rendah Sains Mara (MRSM) Terendak. The first defendant is a physical education teacher, the second defendant is the principal of MRSM Terendak, the third defendant is the body that is established under MARA who is responsible to operate MRSM and the last defendant is the owner and the operator of the MRSM built in Kem Terendak. MATERIAL FACTS LAW083 NEGLIGENCE 1. Whether the first, second, third and fourth defendant owes the duty of care to the plaintiff. 2. Whether the defendants had breached their respective duty of care to the plaintiff. 3. Whether the plaintiff can claim for damages due to personal injuries arising from negligence by the defendants. 07 RATIO DECIDENDI The first and second defendant owes a duty to take all reasonable and proper steps to ensure that all facilities and equipment provided for all the students' use at the MRSM by the fourth defendant is kept in state of good repair and is safe from injury to their person. All the defendants owes a duty of care to ensure that the damaged basketball hoop/post did not post danger to the MRSM students or cause injuries to them. The first and second defendants were aware that the basketball hoop/post posed a risk to students, but they failed to take the appropriate measures to stop them from using or approaching it. The second defendant, who was also the school's principal, ought to have either removed the damaged equipment entirely or put up appropriate notice alerting students to the risk. Despite this, physical education classes continued to be held close to the danger, putting the plaintiff and the other students at risk of harm. This disregard for safety measures amounted to a breach of duty of care by the defendants. Plaintiff has successfully established the elements of negligence thus the claim for damages were allowed.
In this case, the conduct of Rapid Rail Sdn Bhd according to the reasonable man test is subjected to the concept of risk in which is determined by the factors of practicability or cost of precaution before the incident and the magnitude of risk of the incident. There has been a breach of that legal duty of care by the defendant. Based on the Issue... The defendant is under the duty of care to the plaintiff Referring to the neighbour principle, Rapid Rail Sdn Bhd has a duty of care to the neighbours which in this case, the plaintiffs, as they are the ones who are closely related to the crash incident, and they are the ones who are directly affected by the lack of maintenance by Rapid Rail Sdn Bhd in ensuring that the train is safe for use by all the passengers. In this case, the duties that are needed to be fulfilled by Rapid Rail Sdn Bhd include ensuring that the LRT tracks are unobstructed by other LRTs, taking any necessary actions to ensure the safety of the passengers, and providing the necessary maintenance for the LRTs. Thus, Rapid Rail Sdn Bhd is under a legal duty of care to the plaintiffs. In addition, Rapid Rail Sdn Bhd also owed a duty of care to the plaintiffs as the customers that use the transportation service provided by Rapid KL Sdn Bhd, which is the LRT. Based on the Reasonable Man test, Rapid Rail Sdn Bhd has the duty of care towards all the passenger and any reasonable man who is in the position of Rapid KL Sdn Bhd would have ensure that the train is safe for use and have take any reasonable steps to prevent any incident to happen. In this situation, Rapid KL has failed to take any steps of precaution and thus resulting in the danger to all the passengers of LRT Kelana Jaya. Thus, they have breached the duty of care. Referring to the case of Mohamed Raihan bin Ibrahim & Anor v Government of Malaysia & Ors, it shows that Rapid Rail Sdn Bhd is negligent as they had failed to take reasonable steps of precaution as for example, in providing technical maintenance to avoid from the trains to collide with each other and thus endanger safety of the passengers who is under their care. 08 APPLICATION
Thus, in this situation, Rapid Rail Sdn Bhd has failed both of the tests, thus resulting in damage of injuries faced by the passengers (which is the Plaintiff in this case) as a result from the negligence from the side of the Rapid Rail Sdn Bhd and Prasarana in ensuring the safety of the passengers. Based on the case of Nurul Atikah Mustafa Kamal v. Nurazalina Suriani Zulkifly & Ors [2019] 9 CLJ 395, the plaintiffs can claim for damages due to negligence by Rapid KL Sdn. Bhd. and Prasana on their failure in ensuring the safety of the passengers of LRT Kelana Jaya. In this situation, all of the elements of negligence has been established as Rapid KL Sdn Bhd and Prasarana owned the duty of care to the plaintiffs, they had breached the duty of care and as a result of the breach of duty of care, the plaintiffs suffered damages in which in this case, they suffered injuries due to the train collision. According to the But for test, the question is whether the plaintiffs would have still suffered injuries if Rapid Rail Sdn Bhd did not breach their duty of care to the customer? The answer for this question is No because referring to the case of Barnett v Chelsea & Kensington Hospital Management Committee, if Rapid Rail Sdn Bhd and Prasarana did its duty of care which is to maintain the LRT line, the plaintiffs which were its customers wouldn't have suffered any damages by any chance. Thus, the defendant has failed the but for test. As a result, the plaintiff has suffered damage. The remoteness of damage test. Rapid Rail and Prasarana are liable as it is reasonably foreseeable that their breach of duty of conduct will cause some degree of damage to the plaintiffs which in this case will be injuries faced by the passengers due to the train collision. 09 Referring to the decided case...
Thus, the eight (8) LRT users can sue Rapid Rail Sdn Bhd and Prasarana Malaysia Bhd and claim damages as the result of the train crash two years ago due to negligence. References Goguen, D. (n.d.). Negligence, The “Duty of Care,” and Fault for an Accident. www.nolo.com. https://www.nolo.com/legalencyclopedia/negligence-the-duty-care-fault-accident.html Nurulhasni Shaari @ Mat Saman, Namirah Mohd Akahsah, Mohd Safri Mohammed Na’aim, Siti Marina Amit, Jusniza Abdul Jamal, & Farhah Abdullah. (2022, August). Introduction to the Law of Contracts, Torts and Crimes (6th ed.). Universiti Teknologi Mara. Nurul Atikah Mustafa Kamal v. Nurazalina Suriani Zulkifly & Ors [2019] 9 CLJ 395 CONCLUSION 09
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