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tort - negligence : duty of care
Transcript of tort - negligence : duty of care
to ascertain the existance of
duty of care neighbour principle : Landmark case :
Donoghue v Stevenson Anns v Merton London Borough Council (Anns test) Lord Wilberforce: In order to determine whether a duty of care existed in particular situation, the facts need to fit into existing category in which a duty of care has been held to exist. whether there is sufficient relationship
of proximity or neighborhood
between the alleged tortfeasor(wrongdoer)
and the person who has suffered the loss. if the answer to the above is the affirmative,
the court then has to examine
whether there are any consideration
that may negate, reduce or limit DEFINITION : Oxford
Dictionary Negligence Omission v Omission EXCEPTIONS : omission will
not be found liable
in law When the omission contrary to the duty to act. Special relationship Control over the third party. Control over the land, or property Parimala a/l Muthusamy & Ors v
Projek Lebuhraya Utara Selatan Fails to perform the promise. Even there is no contract
or an agreement
between the parties Example of Case : Important points from this land mark case : Donoghue
v Stevenson Negligence may exists even there is no contract between parties
The need to prove the three elements of negligence
‘neighbour principle’ must be applied Rowling v Takaro Properties Ltd Yuen Kun-Yeu v AG of Hong Kong Leigh & Sillavan Ltd
v Aliakmon Shipping Co Ltd Governors of the Peabody Donation Fund
v Sir Lindsay Parkinson & Co Ltd the Anns test received heavy criticism.
the court warned against treating the Anns test as being definitive. held that the Anns test as expounded
by Lord Wilberforce should not be treated
as an universal test in determining the scope
of a duty to take care in the
tort of negligence. Lord Keith :
That the Anns test as laid down by Lord Wilberforce had given more importance than it ought to and that in future cases.
This test need not be applicable and relevant in establishing the existence of duty of care.
two possible interpretations to the first stage of the Anns test the court was of the view that before concluding that a duty of care should be imposed, all the relevant circumstances need to be considered.
A too literal application of the Anns test may lead to failure to have regard to, and to analyse and weigh all the relevant consideration in considering whether it is appropriate to impose a duty of care. First, there was a reasonable foreseeability of damage, then it would give rise to a relationship of proximity or neighborhood, and a duty of care would arise.
Second, in order to decide whether the proximity existed, it was necessary to consider the whole relationship between the plaintiff and the defendant, which included reasonable foresight and in particular the closeness and directness of the relationship as well as any policy considerations.
The Privy Council felt that this second interpretation was the correct interpretation. The Caparo Test;
An Incremental Approach
Derived from the case of
Caparo v Dickman  bye! The claimant was a resident of Bangladesh, who had been made ill by drinking water contaminated with arsenic.
The water came from wells near his home, and his reason for suing the defendants was that, some years earlier, they had carried out a survey of the local water system, and had neither tested for, nor revealed the presence of arsenic.
The claimant argued that the defendants should have tested for arsenic, or made public the fact that they had not done so, so as not to lull local people into a false sense of security. The House of Lords, however, held that the defendants had no duty of care to users of the water system, as there was insufficient proximity.
The defendants had :
no connection with the project that had provided the wells.
no duty to the people or the government of Bangladesh to test the water for anything.
were simply doing general research into the performance of the type of wells that happened to be used in that area.
The fact that someone had expert knowledge of a subject did not impose on them a duty to use that knowledge to help anyone in the world who might require such help. FORESEEABLE AND
UNFORESEEABLE PLAINTIFFS Elements of Negligence Duty of reasonable care Foreseeability Foreseeability : a plaintiff is foreseeable if he was in the zone of danger created by the defendant The duty of care must be toward a foreseeable plaintiff Palsgraf v Long Island Railroad Co Plaintiff is the one who was injured. Distinguish foreseeable plaintiff from unforeseeable plaintiff. Kris Angsana Sdn Bhd v Eu Sim Chuan A neighbour might be a foreseeable victim if activity on one's land gives physical damage to his neighboring property. A teacher and a pupil Zazlin Zahira Haji Kamarulzaman
(an infant suing by his father and next friend, Hj Kamarulzaman bin Mohd Ali) v Louis Marie Neube RT Ambrose s/o J Ambrose & Ors  4 CLJ 637 Bourhill v Young Foreseeability does not necessarily mean physical nearness Does not mean that the plaintiff must be identified by the defendant.
Enough to be member of a class of person to whom damage is foreseeable. teacher and
pupil doctor and patients a driver and
pedestrian a landlord and lawful visitors a stockbroker
and a purchaser Duty of care was readily imposed by the courts A landlord and
lawful visitors Sri Inai (Pulau Pinang) Sdn Bhd v
Yong Yit Swee  1 MLJ 273 Stockbroker and a purchaser Ho Kam Seong v Arab Malaysian Securities Sdn Bhd  6 MLJ 641 Why the duty of care is limited or denied? It's all because of public policy... Moral Political Social Economic Decision of legislature Courts' decisions