LAW OF TORT SERIES : NEGLIGENCE

NEGLIGENCE LAW OF TORT SERIES AINIZA SILIM SITI RAWAIDAH RAZIKIN NOORHANEYZA MAT NOOR

LAW OF TORT SERIES : NEGLIGENCE --------------------------------------------- FIRST EDITION 2023 COMMERCE DEPARTMENT @JABATAN PENGAJIAN POLITEKNIK DAN KOLEJ KOMUNITI KEMENTERIAN PENDIDIKAN TINGGI

ALL RIGHT RESERVED. No part of this publication may be reproduced, distributed or transmitted in any form or by any means, including photocopying, recording or other electronic or mechanic method, without the prior written permission of Politeknik Sultan Salahuddin Abdul Aziz Shah. LAW OF TORT SERIES: NEGLIGENCE Authors Ainiza Silim Siti Rawaidah Mohd Razikin Noorhaneyza Mat Noor e ISBN 978-967-0032-66-5 First Publication 2023 Published by: UNIT PENERBITAN Politeknik Sultan Salahuddin Abdul Aziz Shah Persiaran Usahawan, Seksyen U1 40150 Shah Alam Selangor Telephone No. : +60351634000 Fax No. : +60355691903

PREFACE I This eBook is written to give readers an overview of negligence, one kind of wrongful tort. It provides an outline of negligence, including its essential elements, relevant instances, reported cases and defences. As a fundamental concept in tort law, negligence has wide-ranging effects in a variety of situations, including motor vehicle accidents, medical malpractice, premises liability, product liability, and more. In order to encourage accountability, encourage responsible behaviour, and provide a means of redress for those who have suffered harm due to the negligence of others, it is essential for legal professionals, individuals seeking compensation for injuries, and society at large to understand the principles of negligence. As such, the goal of this eBook is to improve readers' comprehension of the basic principles of negligence. Any suggestions, comments or feedbacks for further improvement are most welcome. Ainiza Silim Siti Rawaidah Mohd Razikin Noorhaneyza Mat Noor

Ainiza Binti Silim Commerce Department [email protected] Diploma in Education (MPBP) LL.B (Hons.) (UIAM) LL.M (Corporate Law (UiTM) Polytechnic Lecturer Noorhaneyza Binti Mat Noor Commerce Department [email protected] Diploma Banking (ITM) BBA (Hons.) Insurance (UiTM) Master in Education (Technical) (UTM) Polytechnic Lecturer Siti Rawaidah Binti Mohd Razikin Commerce Department [email protected] Bachelor in Risk Management and Insurance (UUM) Master in Business Administration (UiTM) Polytechnic Lecturer ABOUT WRITERS II

Bourhill v Young (1943) AC 92 Chin Keow v Government of Malaysia & Anor (1967) 1 WLR 163 Kow Nan Seng V Nagamah & Ors (1982) 1 WLR 163 Zulhasnimar bt Hasan Basri & Anor v Dr Kuppu Velumani P & Ors [2017] Government of Malaysia & Ors v Jumat b Mahmood (1977) Mohd Raihan & Ors v. Government of Malaysia & Ors. (1981) 2 MLJ 103 CHAPTER THREE : CASES 10 Define Law of tort Explain tortious liability Differentiate tortious liability with CHAPTER ONE :LAW OF TORT contractual liability 02 Define negligence Explain the elements of negligence CHAPTER TWO : NEGLIGENCE 21 Conclusion III TABLE OF CONTENT PREFACE ABOUT WRITERS TABLE OF CONTENT i ii iii Describe the defences available to negligence: CHAPTER FOUR : DEFENCES a. Contributory negligence b. Assumption of risk c. Inevitable accident 30 REFERENCES 45

03 CHAPTER 1 LAW OF TORT

Law of Tort Define law of tort Explain tortious liability Differentiate tortious liability with contractual liability 1. 2. 3. CHAPTER 1 : 02 COURSE LEARNING OUTCOME:

A tort is a civil wrong by one party that puts another party at risk of loss or harm and resulting the party who did the tort legally liable. Tortious liability resulted from the breach of duty fixed by law which give right to the claimant's to claim his loss towards the tortfeasor. Tortfeasor : the party who cause the tort Claimant: the party who suffers the loss Tort falls under the types of Civil Law. The Plaintiff is the injured person whereas the defendant is a tort feasor. The plaintiff will normally claim the remedies in order to cover his loss. LAW OF TORT 03 What is tort? What is tortious liability? Which category of law is the law of tort? CHAPTER 1 :

Breach of duty fixed by law The claim of damages is to put the plaintiff in a position before the tort happen 1. 2. Breach of contract The claim of damages is to cover the loss due to the breach. 1. 2. LAW OF TORT Tortious liability: Contractual liability: 04 Tortious liability vs Contractual liability VS CHAPTER 1 :

LAW OF TORT 05 There must be a wrongful or unauthorized d act or omission This act affects the interest or rights of others The injured party/victim has right to a claim for damages 1. 2. 3. THE AIM OF THE LAW OF TORT The most important function is compensation or loss distribution. The tortfeasor needs to pay monetary compensation to share the burden of victim's loss. "Thelaw of tort is concerned withtheredressof wrongandinjuries (other thanbreachesof law) by meansof civilactionbroughtbythevictim. " ACCORDING TO ROGER: General Features of Tort CHAPTER 1 :

An accident is one example of tort. 06 Victim (plaintiff) will sue defendant (tortfeasor) for compensation of loss. Car A caused loss to car B Car A is a totfeasor whereas Car B is a victim. Tort feasor need to compensate the victim. Example of Tort LAW OF TORT CHAPTER 1 :

NEGLIGENCE NUISANCE TRESPASS DEFAMATION STRICT LIABILITY In this book, we will discuss on NEGLIGENCE. 07 Types of wrongful Tort LAW OF CHAPTER 1 : TORT

8 What does it mean by 'tort'? Whatis tortious liability?. Differentiate between tortious liability and contractual liability. List 5 types of wrongfultort. scan for answer Chapter1

03 CHAPTER 2 NEGLIGENCE

10 Negligence Define negligence Explain the elements of negligence 1. 2. COURSE LEARNING OUTCOME: CHAPTER 2 :

Literally : carelesness Legally: a breach of legal duty by one person who fail to avoid what a reasonable person would regard as a foreseeable risk and cause injury/damage to the other. 1.Tortfeasor/ defendant: the one who breach the duty. 2.Victim/ plaintiff: the one who suffers loss/injury due to the breach. Negligence is the most significant wrongful tort. It might happen in our daily life. Accidents such as motor vehicle accidents, construction accidents, wrong prescription of medicines etc. NEGLIGENCE 11 What is negligence? Who are the parties to negligence? The nature of negligence CHAPTER 2 :

Duty of care Forseeability Injury/damage Breach of duty of care If one of the elements is absent, the claim for negligence might fail. FOUR Elements of Negligence All four elements need to be established by plaintiff in order to succeed in a claim of negligence towards defendant https://youtu.be/IkvILEZJCdM Watch a video: CHAPTER 2 : NEGLIGENCE 12

Duty of care Forseeability Injury/damage Breach of duty of care The parties have a duty of care to each other. Example: Driver & road users. Tortfeasor breaches his duty to take care. Example: accident occured. Injury or damage occurs as a result of the breach. it causes loss to the victim. Example: bodily injuries due to accident. The injury or damage suffered is expected to happen if such breach is occured. Example: If there is motor vehicle accident, the person affected might be injured. FOUR Elements of Negligence NEGLIGENCE 13 CHAPTER 2 :

NEGLIGENCE 14 This is legal duty not to injure other person. It is NOT a legal duty to do good to others. 1 DUTY OF CARE that the defendant owed a plaintiff a duty of care Example: The drivers need to drive carefully in order not to involve in an accident which might cause injury to third party. Example: Ali saw someone who was drowning. Ali has no duty under the law to help that person. FOUR Elements of Negligence CHAPTER 2 :

NEGLIGENCE 15 The defendant has breached his duty of care towards the plaintiff. The breach happens when the defendant does something that he is supposed not to do or has not done something that he was supposed to do. . 2 BREACH OF DUTY OF CARE The defendant had breached this duty of care Example: The car driver failed to stop at red light and caused an accident with other motor vehicle. Example: Ali saw someone who was drowning. Ali has no duty under the law to help that person. FOUR Elements of Negligence CHAPTER 2 :

The victim/ plaintiff must suffers property loss or bodily injury. NEGLIGENCE 16 If the negligence cause no injury or loss, no action for negligence can be taken towards tortfeasor. I T b h N re e a re J ch m U . us R t b Y e in O jury R or d D am A ag M e du A e t G o th E e3 Example: A car driver recklessly knocked down a pedestrian and caused him injury. A pedestrian has right to sue the driver for negligence. Example: A cyclist slightly knocked down a pedestrian. If no injury or damaged suffered, claim for negligence will not succeed. FOUR Elements of Negligence CHAPTER 2 :

NEGLIGENCE 17 The victim/plaintiff must suffers property loss and/or bodily injury which were expected to happened if the breach of duty occurred. If the injury suffered is too remote, it will not be covered under the claim for negligence. Remoteness of injury means as a reasonable man, the injury is not expected to happen. F T h h a O e pp i R n e ju n E r d y S u s e u E f t f o E er t e A h d e B m br u I e s L a t I c b T h e . Y exp O ect F ed I t N o JURY4 Example: If A knocked down B, B was expected to suffer the injury. C who is not involved in the accident is not expected to injure. Therefore, only B can sue for negligence. C is outside the area of forseeable danger. He cannot sue for negligence FOUR Elements of Negligence CHAPTER 2 :

a driver hit a redlight and knocked another road user. A doctor failed to observe the patient properly and caused severe injury. an employer did not provide a safety equipment to the workers and caused an accident. NEGLIGENCE 18 Examples of Negligence CHAPTER 2 :

19 What does it mean by 'tort'? Whatis tortious liability?. Differentiate between tortious liability and contractual liability. List 5 types of wrongfultort. Chapter 2

03 CHAPTER 3 CASES 07

Cases Bourhill v Young (1943) AC 92 Chin Keow v Government of Malaysia & Anor (1967) 1 WLR 163 Kow Nan Seng V Nagamah & Ors (1982) 1 WLR 163 Zulhasnimar bt Hasan Basri & Anor v Dr Kuppu Velumani P & Ors [2017] Government of Malaysia & Ors v Jumat b Mahmood (1977) Mohd Raihan & Ors v. Government of Malaysia & Ors. (1981) 2 MLJ 103 1. 2. 3. 4. 5. 6. 21 LIST OF CASES: CHAPTER 3 :

Bourhill v Young (1943) AC 92 Facts Defendant (D) was responsibleforacollision withcar in whichhe himself sufferedfatal injuries. At thetimeof thecrash, theplaintiff (P) was intheprocessof leavingatram about50feetaway.Plaintiff heardthecrashand witnessedtheimmediateaftermath.Plaintiff was8 monthspregnantat thetimeof theincidentandlatergave birthtoastillbornchild.Plaintiff broughtanactionagainst defendant'sestate, claimingshehadsufferednervous shock, stress andsustainedlossduetothenegligence. Issue: Whether Defendantowedadutyof caretotheplaintiff? Didplaintiff's sufferings wereforeseeable? Court's Decision: D wasnot liableforanypsychiatricharm thatP mighthavesuffered asaresultof theaccident. It wasnot foreseeablethatP wouldsuffer psychiatricharm asaresultof D negligentlycausingaloudtraffic accident,nor wasPsufficientlyproximatetothesceneof thecrash itself. D, therefore, couldowenodutyof caretoP. CASES 22 Duty of care -foreseeability CHAPTER 3 :

23 CASES Chin Keow v Government of Malaysia & Anor (1967) 1 WLR 163 Facts Thedef.prescribedpenicillin whichcausedthedeathof theplaintiff’s daughter withinanhour. Here, thedefendant failedto makeany inquiryintothe medicalhistoryof thepatient. Issue: Whether there wasabreachastandardof care bythedoctor towardshispatient? Court's Decision: Defendant wasnegligence. Ifhe madeinquiries,he wouldhave discoveredthat thedeceasedpatient wasallergic topenicillin Medical negligence- standard of care CHAPTER 3 :

Kow Nan Seng V Nagamah & Ors (1982) 1 WLR 163 Facts Def was injuredinroadaccidentandgeta medical treatment in hospital, which wasattendedby medicalofficer. A plasterappliedto his legbutowingtolackof skillandobservationin monitoringit, the legturnedtoblackand wasamputated. Issue: Whether there wasabreachastandardof care bythedoctor towardshispatient? Court's Decision: Theclaim fornegligence was successful. Theplaintiff sufferedinjury duetothebreachofdutybydefendant whichcausedhim tolosehis leg. Medical negligence- standard of care- injury 24 CHAPTER 3 : CASES

Zulhasnimar bt Hasan Basri & Anor v Dr Kuppu Velumani P & Ors [2017] Facts Plaintiff,a36 weekpregnant ,admittedtohospitalduetoabnominal painandhighbloodpressure. Medicine wasgiven.She was then collapsedandthebaby wasbornbycessarian. TheBabysuffered severebirthasphyxiacausingcerebral injury. Issue: Whether there wasabreachastandardof care bythedoctor towards hispatient? Court's Decision: Theclaim fornegligence wasnot succeed. Thedoctorshaddonethe proceduresaccording medical standardrequired. Medical negligence- no breach of duty 25 CHAPTER 3 : CASES

Government of Malaysia & Ors v Jumat b Mahmood (1977) Facts Theplf. injuredhis righteyeduetocontact withthesharpendof the pencilholdingbyhis friend. Hiseyeneedtoberemoved. Theplf.brought anactionallegingthat there wasalackof supervisionbytheteachers resultingintheaccident. Issue: Whether there wasabreachofdutybyteacher? Does theinjury was reasonablyforeseeable? Court's Decision: Theinjuryisnotdirectlycausedbythelackof supervision. There wasa remotenessof injury. Theteacherdidnotexposethestudents tothe risks. Therefore, thedefendant wasnot liable. Negligence- forseeability of injury 26 CHAPTER 3 : CASES

Mohd Raihan & Ors v. Government of Malaysia & Ors. (1981) 2 MLJ 103 Facts Theplf. wasaccidentlystruckontheheadbyachangkol wieldedbyhis fellow pupilduringapracticalgardeninglessons. Hesufferedsevere injuryandsuethedef. for lackofproper supervision. Issue: Whether there wasabreachofdutybyteacher? Does theinjury was reasonablyforeseeable? Court's Decision: Defendants wereliable. Warning wasnotenough. Negligence- forseeability of injury https://prezi.com/p/_vwm9qzul0hl/case083/ 27 CHAPTER 3 : CASES

28 What does it mean by 'tort'? Whatis tortious liability?. Differentiate between tortious liability and contractual liability. List 5 types of wrongfultort. Chapter 3

03 CHAPTER 4 DEFENCES

Defences Describe the defences available to negligence: 1. a. Contributory negligence b. Assumption of risk c. Inevitable accident 30 COURSE LEARNING OUTCOME: CHAPTER 4 :

Contributory negligence Assumption of risk Mechanical Defect Inevitable Accident Defences are available to the defendant to avoid liability in negligence 31 What is the purpose of defences? CHAPTER 4 : DEFENCES

Contributory negligence The plaintiff also contribute to his injury. what is contributory negligence? A plaintiff's fail to exercise the standard of care which he is required to do for his own protection and it becomes a legally contributing cause, together with the defendant's default, in causing his own injury. Contributory negligence is a partial defence. The court will look on how much the plaintiff contributed to his own injury. 32 CHAPTER 4 : DEFENCES

Contributory negligence EElleemmeennttss Duty of care of plaintiff to himself The breach of the duty The injury must be of a type of reasonably foreseeable. 33 CHAPTER 4 : DEFENCES

Contributory negligence 34 DEFENCES Example: A motorcyclist was not wearing helmet. He was knocked down by a car which hit a red light. The motorcyclist failed to exercise care to himself and contributed to his own injury. If the claim succeed, the court might reduce the damages based on the propotion of the contributory negligence. He has a duty to wear helmet to protect himself from injury. He fails to wear helmet. He suffered severed head injury due to the negligence of a car driver. This injury is expected to happen when he fails to wear a helmet when the accident happen. 1. 2. 3. CHAPTER 4 : Contributory negligence happen if the motorcyclist fulfills THREE (3) elements :

Contributory negligence CASES Ang Chai Ha & Ors v Sri Jaya Transport Co(PTM) Bhd (1974) 1 MLJ 87 Deceased died when the car collided with the bus driven by defendant ‘s servant. The deceased brought in the boot of the car 11 4- galoon tins of petrol. He died due to severe burnt. Court: the fire would in all probability have happened as a direct consequence of the collission notwithstanding the tins of the petrol in the dec’s car. Therefore the damage was not too remote. 35 DEFENCES CHAPTER 4 : Lai Yew Seong v Chan Kim Sang (1987) 1 MLJ 403 Court: plaintiff 100% contributory negligent from hitting a car from behind. CN means the failure by a person to use reasonable care for the safety of himself /his property so that he becomes the author of his own wrong.

Assumption of Risk The plaintiff has voluntarily assumes the risk what is assumption of risk? It is based on the Latin maxim of: "VOLENTI NON FIT INJURIA" which means "to a willing person, it is not a wrong" According to this legal principle, a person who willingly and deliberately puts themselves in danger cannot sue for any damages that may arise. If the plaintiff assumes the risk involved in an obviously dangerous activity, but proceeds to engage in the activity, he or she may not be able recover damages for injuries. The defendant can use this defence if the plaintiff consented to the act of the defendant. 36 DEFENCES CHAPTER 4 :

Assumption of Risk EElleemmeennttss 1. Consent 2. The consent must be voluntary 3. Full knowledge I suffered injury while hiking with you. You asked me to join you, then you need to bear my injury. but, you voluntarily agree to join me. You know all the risks, right. You already assume the risk, you consented on it. So you cannot claim from me. 37 DEFENCES CHAPTER 4 :

Assumption of Risk The plaintiff has assumed the risk, but consented to proceed with the act. The plaintiff therefore may not able to recover any injury suffered due to the act. The plaintiff need to have agreement with the defendant that the latter will not be liable if he is negligent. If no written agreement, court will look into the facts of the case to determine whether there is an implied consent. 38 DEFENCES 1.Consent Nettleship v Wetson(1971) The plaintiff agreed to give the defendant driving lesson and was subsequently injured when the defendant hit the lamp post due to the inexperience. The defence of volenti was rejected by the court. EElleemmeennttss CHAPTER 4 :

Assumption of Risk Plaintiff's consent must be freely and voluntarily given. the plaintiff must not be forced to consented on the risk EElleemmeennttss 2. The consent must be voluntarily Bowater v Rowley Regis Corporation (1944) A person is said to be voluntarily assuming the risk if he is in a position where he has a choice.He must fully knows the circumstances in which he must to make a choice and not under any duress or coercion. 39 DEFENCES CHAPTER 4 :

Assumption of Risk 40 DEFENCES Mere knowledge of the existence of risk is insufficient. He must have a full knowledge of the nature and extent of the risk of injury. If the plaintiff does not know of the risk but that he should have known about it he is said to be not volenti but may be considered to be contributorily negligent. 3. The plaintiff must have full knowledge of the risk EElleemmeennttss CHAPTER 4 :

Mechanical Defect & Inevitable Accident If the motor vehicle accident happened due to mechanical defect, the defendant may used it as a defense. To use this defence, A defendant must prove that the malfunction was neither preventable or detectable by reasonable vehicle inspection or maintenance. The claim will success if the defendant can prove through his record of service that the vehicle is free from defect. 41 DEFENCES CHAPTER 4 :

Mechanical Defect & Inevitable Accident An inevitable accident refers to those accidents which could not be prevented, under general circumstances. If this accident was unforeseeable and could not have been prevented despite the defendant using reasonable caution, it is referred to as an inevitable accident. Only when an event is unexpected and has unavoidable consequences despite taking reasonable care and safeguards is this defence of inevitable accident available. The argument of inevitable accident will not hold up if the occurrence in question is preventable and predictable, such as flooding, and the resulting damage may be prevented with reasonable preventions. 42 DEFENCES CHAPTER 4 :

Mechanical Defect & Inevitable Accident The defendant’s servant was driving his horses on a public highway, where they were startled by a dog’s barking. As a result, the horses became unmanageable and despite the servant’s efforts, they injured the plaintiff. In this case, the defendant was held not liable and his servant was considered free from all blame. The plaintiff was a passenger in the in the defendant’s car which crashed with another car causing injury to the plaintiff. The def gave evidence that due to the brakes failure, it has been sent previously to a competent workshop which found it then to be in order. Court: The defect in the brake was a latent defect and as the def. had employed skilled labour, no negligence can be attributed to him. Holmes v. Mather (1875) Che Jah binte Mohamad Ariff v CC Scott (1952) 43 DEFENCES CHAPTER 4 :

44 What does it mean by 'tort'? Whatis tortious liability?. Differentiate between tortious liability and contractual liability. List 5 types of wrongfultort. Chapter 4