LLB Year 1

Module: LIA1006: Tort II Tutorials

Year: 2022/2023 (Semester 2)

Lecturer: Dr. Sheila Ramalingam

https://law.um.edu.my/

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NEGLIGENCE

A. DUTY OF CARE

Essential pre-tutorial reading:

Donoghue v Stevenson [1932] AC 562

Dorset Yacht v Home Office [1970] AC 1004
Anns v Merton London Borough Council [1978] AC 728
Caparo Industries v Dickman [1990] 2 AC 605
Hill v Chief Constable of West Yorkshire [1989] AC 53
Marc Rich & Co Ag v Bishop Rock Marine Co Ltd (The Nicholas H) [1996] AC 211
Stovin v Wise [1996] AC 923

Additional reading:

Yuen Kun-Yeu v A-G for Hong Kong [1988] AC 175

Smith v Littlewoods [1987] AC 241
Bourhill v Young [1943] AC 92
Governors of the Peabody Donation Fund v Sir Lindsay Parkinson [1984] 3 All ER 529

Please prepare the following for discussion:

1. Before Donoghue v Stevenson legal liability for carelessness was generally confined to clear-
cut situations, such as if the activity was dangerous in themselves (eg defendant is dealing with a
loaded gun near the plaintiff). In Donoghue v Stevenson this restriction was lifted.

(a) Discuss the issues arising in the case of Donoghue v Stevenson. What is the ‘neighbour
principle’? What is a manufacturer’s duty, according to the rule in Donoghue v Stevenson?

(b) Discuss the neighbour principle and its applications by thinking of your own examples (check
with your tutor if your examples are within or outside the scope of the neighbour principle)

(c) What is the impact of this case on the issue of determining duty (or liability) in negligence?

2.(a) How does the duty test in Caparo Industries plc v Dickman differ from the test in
Donoghue v Stevenson? Why did the courts abandon the two-stage test?

(b) Is the three-stage test an improvement? Identify weaknesses and strengths of the three part
test.

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3. Asiya was driving home on the Bawang Merah Bawang Putih (BMBP) highway a few days
ago. This is her normal route home from work for the past two years. She works as a grooming
consultant with a private firm in Kuala Lumpur. On that particular afternoon, two of BMBP
workers, Siska and Rika were doing some repair works on the road. They had closed part of a
lane on the highway and had placed red cones near the closure and they had also informed the
road-users about the closure by putting a message up on the electronic message board (EMB).
Rika had arranged the red cones to form a diagonal line which closed the lane in a gradual
manner. Siska had forgotten to close the circuit wiring after setting the EMB.

On that particular day, the rain had made the roads wet. Upon approaching the EMB, water from
the wheels of Asiya’s car splashed onto the EMB and conducted electricity to her car causing her
car to come to an abrupt halt. The electronic system in Asiya’s Mercedes was short-circuited
resulting in costs of repair totaling RM4,000, a sum much higher than what would have been
incurred if the car was any of the Japanese-manufactured cars (between RM600-RM2,500).

Asiya was taken to the hospital and her pelvis was found to be located due to the very sudden halt.
This caused her to have difficulty in sitting up. Dr Ferdi conducted an operation on Asiya tocorrect
her pelvis. After the operation, Asiya discovered that she could not get up at all because her pelvis
was now permanently deformed. Dr Ferdi did not inform Asiya that there was a risk of this
occurring as a result of the surgery. However, many medical practitioners are of the view that
because the risk of permanent deformity occurring was only 5%, informing the patient was not
critical and would only frighten the patient unnecessarily.

Asiya was also hoping to do some part-time modeling for a giant cosmetics industry and she was
already short-listed for the final interview when the accident occurred. However, when the
company found out about her physical impairment, they called her up to say she has been struck
off the shortlist.

(a) Identify Asiya’s losses.

(b) Discuss the issues arising in each type of loss.
(c) How do you determine who is at fault for each loss?
(d) How does the law decide on the extent of the defendant’s duty of care towards Asiya?
(Be specific about which defendant you are referring to)
(e) Now that you have completed discussions within the existing legal principle, you are
allowed to ‘step out’ of them. Consider whether the solution you have arrived at is fair
and just. How would you go about determining this? What standards do you use?

(You might need to revisit this question as you deal with other issues in the tort of negligence
such as breach and causation)

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4. Read these cases:

• Pendaftar dan Pemeriksa Kereta Motor, Melaka v KS South Motor Sdn Bhd [2000]
2MLJ 540

• Uniphone v Chin Boon Liat [1998] 6 MLJ 441

• MPAJ v Stephen Phoa Cheng Loon [2006] 2 MLJ 389

• Tenaga Nasional Malaysia v Batu Kemas Industri Sdn Bhd and another appeal [2018] 5
MLJ 561

(a) Have a general consensus first and foremost, on the gist of the facts in these cases.

(b) In Pendaftar, identify the elements of foreseeability and proximity between the parties,
asheld by the court.

(c) Applying the “duty test” explain the court’s finding on whether imposing a duty on the
publicauthority was fair or unfair.

(d) Referring to Uniphone, what is different about the issues arising in this case? Is there a
moralelement in the judgement – and what would this be?

(e) In MPAJ the local authority as the public authority was held not liable. What was the
issuesurrounding foreseeability and proximity in these two cases? Can you reconcile these
two decisions? (Spend some time analysing the similarities and differences between these
cases)

(f) Discuss the grounds of the Federal Court decision in MPAJ. What are the significant
pointswhich formed the basis of the decision?

(g) Is the position on pure economic loss in Malaysia now changed in the light of the later
Federal Court decision in Tenaga Nasional Malaysia v Batu Kemas Industri Sdn Bhd case?

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B. BREACH OF DUTY

1. In order to determine whether a defendant is in breach of his duty of care, the law sets a
standard which effect is that the conduct of the defendant is compared to the conduct of the
reasonable man.
Who is the “reasonable man” in the eyes of the law? Would there be different types of the
“reasonable man”, leading to different standards? Is this fair?

2. Risk factors are taken into account by the courts in determining whether the defendant is
in breach of duty. Discuss the risk factors currently applicable in the law.

3. Read the following cases

• Bolam v Friern Hospital Management Committee [1957] 2 All ER 118
• Sidaway v Board of Governors of the Bethlem Royal Hospital [1985] AC 871
• Rogers v Whitaker [1992] 175 CLR 479
• Foo Fio Na v Dr Soo Fook Mun [2007] 1 MLJ 593
• Zulhasnimar Hasan Basri v Dr Kuppu Velumani P [2017] 8 CLJ 605

You are expected to be familiar with the following after reading the cases –

(i) Facts of the cases, and the judgements, particularly the dissenting judgement in
Sidaway

(ii) State the principle of law on the standard of care for doctors – analyse it.

(iii) What reasons can you think of, in defence of the open-endedness of the standard of
care? (You can also approach this question from this way – why is the standardof
care set against the opinion of “competent, respected professional opinion”? What
dangers would there be in allowing the average ordinary man like you and I, to set
the acceptable medical standards?

(iv) The main issue between Bolam and Whitaker is whether the standard ought to be
measured from the medical profession’s perspective or the reasonable patient’s
perspective. Consider the pros and cons of both perspectives.

(v) What is your view on our Federal Court decision to adopt the test on Whitaker as
the applicable standard for provision of information, in Malaysia?

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4. Steve and Martin are best friends. During the last Christmas break, they decided to go for
a vacation to Andalusia. They flew to Andalusia via Magnetic Airlines, the only airline
flying to Andalusia. The journey to Andalusia was scheduled to take about 15 hours and
the weather was forecasted to be pleasant throughout the journey.

About 12 hours into flight, the plane they were flying in started to shake violently. Some
overhead compartments burst open, causing the stored baggage to fall on several
passengers. All of a sudden, oxygen masks were released, causing more panic. Children
started to cry whilst adults started to cry, thinking that the plane was about to crash.

Steve was seated at the aisle row. During the chaos, a heavy piece of luggage stored in the
overhead compartment fell on him. Blood started to ooze out from a rather deep wound on
his head. He fainted. Martin was in the toilet when the shaking started. He triedto open the
toilet door but the latch was stuck. He tried again for several times but the door refused to
open. He shouted for help and even started banging on the door but no one heard him.
Since he is a claustrophobic, he started to sweat profusely after being confined for about
10 minutes. He felt that the walls were closing in on him and that he could not breathe. At
one point, he thought that he was going to have a heart attack.

After 15 long minutes of unstable flying, the shaking gradually lessened and eventually
stopped. The pilot then made an announcement, apologizing for the incident and tried to
reassure everyone that “…everything is fine. Not to worry. Everything is under control.
Please fasten your seatbelts and remain seated”. The plane was re-routed to Baronia airport
to avoid further incidences. Steve and Martin were sent to the local hospital for treatment.
Due to the seriousness of his injury, Steve is now suffering from short term memory loss.
Martin fully recovered but he vowed never to fly ever again.

When the Aircraft Safety Board investigated the incident, they found that an important
piece of the aircraft near the left wing of the aircraft, has dislodged sometime during flight,
affecting the plane’s cruising altitude. But although it was an important piece of the plane,
its absence should not have affected the plane like it did. At the most, the plane would not
be able to fly at a higher altitude.

A regular check for aircraft maintenance is once every one to three months. Practices differ
in different countries and different flight lengths of aircrafts, but the practice for Magnetic
Airlines is a safety check once every 90 days for all their aircrafts.

Discuss the issues arising here.

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C. CAUSATION AND DAMAGE

1. (a) Discuss the ‘but-for’ test and the reasonable foreseight test.

(b) Lemah was knocked down by Stone through his careless driving. Lemah is generally
unhealthy, and she developed many complications including severe respiratory complications post
treatment and she eventually died two months after the accident.
Can Stone limit his liability?

(c) Ban bought a special type of chicken feed from Didi. Didi in fact gave Ban the wrong type of
feed for Ban’s chickens, but this fact is unknown to both parties. As Ban’s chickens are of the rare
type, they could not tolerate the feed and became ill and died within a week of consuming the
feed.
Discuss the extent of Didi’s liability.

2. Bubbles organizes hot air balloon rides for the public. She has a number of hot air balloons
and supply of propane cylinders for heating the air in the balloon. Before and after each ride, she
checks the level of propane in the cylinder to see whether it needs refilling. Usually she does not
refill before every ride because a full tank can sustain a few rides before requiring to be refilled.

One afternoon a customer, Buttercup wanted a ride in a hot air balloon prepared by Bubbles. There
were a lot of people that day who wanted a ride so Bubbles did not have time to check the propane
level of Buttercup’s balloon. Nevertheless she let Buttercup lift off believing that there was
sufficient propane in the cylinder as the balloon had only just been used once. Unknown to
Bubbles, the propane level had fallen below the minimum level needed to fly and land safely
because the previous rider had used the burner inefficiently.

After Buttercup’s balloon reached the recommended height, she turned off the burner as earlier
instructed by Bubbles. Suddenly a flock of birds flew into the path of Buttercup’s balloon and
some birds which could not avoid her balloon stabbed their sharp beaks and claws into her balloon
causing it to rupture. Buttercup tried to reignite her burner but there was not enough propane to
light it. Her balloon began to plunge so she quickly tried to ignite the burner with a lighter in her
pocket. By then the vapours from the heating coil had accumulated in the burner because she left
it on, causing an explosion when the spark from her lighter ignited it. Buttercup suffered burns on
her face and arms but miraculously, her balloon landed safely on a stack of hayand caused her no
further injury.

4 months later…

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Although Buttercup appeared well after this experience and when her physical injuries have healed,
she was actually more traumatised than she had realized. She started suffering from travel anxiety
and whenever she drove or was a passenger in any vehicle she was extremely nervous.

She has been prescribed medication for “moderately severe emotional distress” and her doctor
Dr Blossom, said that Buttercup would need monitoring over the next 8 months or so to see if
her condition would improve. At the same time, evidence states that the mental state at four months
is highly predictive of mental state at one year.

(a) Identify the tort issues arising from the incidents above.
(b) Further identify the claims which are straightforward according to existing principles, and
the claims which need to take into account other factors before liability can be determined.
(c) Analyse each claim and apply the applicable legal principles.

3. When a plaintiff is trying to establish that the damage he suffers is “not too remote”, what is he
trying to do from the perspective of the law of negligence? Do you think that the test of remoteness
is rather unfair to the plaintiff?
D. DEFENCES

1. (a) What are the principles applicable in the defence of contributory negligence?

(b) What does volenti non fit injuria mean? How different is it from the defence of
consent?

(c) Parsley crossed a rather busy road in Petaling Jaya a few days ago and she misjudged
the speed of one of the two cars travelling on that road. The car could not brake in time and
hit Parsley.

Pedestrians in that part of town often cross the same road either at the crossing providedor
anywhere along the road. Drivers are often seen slowing down when driving in that area
due to shoppers crossing at all times.

Would you argue that Parsley has either contributed or has been volens towards her
injury?

2. Where the defendant’s negligence has put the plaintiff in a dilemma and the plaintiff in
the agony of the moment, tries to save himself by acting in a way that causes even more
injury, the defendant would still be liable to the plaintiff.

(a) Discuss at least one decided case in which this principle has been applied.

(b) Think of your examples and analyse whether the principle may be applicable.

(c) Your answers above would depend on your understanding of the standard involved in
this principle - “ reasonable apprehension of danger and the plaintiff’s reasonable method
of trying to avoid the danger”.

Would this be the same as the reasonable man test?

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OCCUPIER’S LIABILITY

1. In what special circumstances does the law relating to occupier's liability apply?

2. What is the distinction between an invitee and a licensee?

State the duty owed by the occupier to each of these categories of entrants.

3. Who is a trespasser and how does he differ from the "lawful visitor" category? What is the
duty owed to him if any?

4. Borhan owns a house which is surrounded by a fence made of wood. One portion of the
fence has a large gap in it because part of the wood had been destroyed by dry rot. Borhan
is aware of this condition in his fence and has been aware of this condition for quite some
time. However due to neglect and the fact that he is a busy businessman hefails to repair
the fence. Halim a child of 5 years old, goes to play at the compound of Borhan with
Borhan's child Bob. Halim frequently crossed the fence at the large gap for this purpose.
One day Halim was joined by a new-found friend from the neighbourhood,6 years old Siu
Kheng and together they crossed over the fence. They fall into a pond where Borhan rears
his fishes and drown.

Discuss.

5. Roslan invites Mohsen and Fuad to dinner at his home to celebrate his 21st birthday.
Mohsen and Fuad are entering the compound of Roslan's house, when Mohsen's foot gets
lodged in a hole unnoticed by both of them. As a result of this Mohsen falls down and
breaks his leg. Roslan on hearing the screams of help from Fuad runs out of the house and
both Roslan and Fuad help to carry Mohsen into the House. On climbing the stairs to the
house Fuad slips as a result of the newly applied polish on the floor and breaks his back.

Advise Mohsen and Fuad.

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VICARIOUS LIABILITY

1. How do you distinguish between an employee and an independent contractor? Illustrate

with cases.

2. When is an employee "acting in the course of his employment?"

3. Lim Ltd. (D1) engaged Haji Sahid and Co. Bhd. (D2) to build a new wing for Lim's factory.
Lim ordered its own lorries to assist Haji Sahid by transporting soil excavated from the
foundations. Kong, an employee of Haji Sahid and an incurable practical joker, tampered
with the brakes of a lorry driven by Lim's employee, Choo (P) in order to give him a little
scare.

While Kong was thus engaged, Choo's supervisor, Chan, asked Choo to drive into town to
pick up some tickets for a film that Chan and his wife planned to see that evening. Choo
protested at being sent on this errand, but Chan insisted, saying: `One more word out ofyou
and you're fired!' Choo started up the lorry and started to drive off, but as he approached
the gate the brakes failed and the lorry smashed into a guardhouse located on the property.

Advise all parties.

4. Tom works as a lorry driver for Sam. The previous week, Tom was ordered by Sam to
deliver vegetables to Melaka. The delivery was made under a contract of carriage with
Syarikat Bendi Ranum in Rawang.

During the delivery of the vegetables, Tom had asked his nephew Blu, who had just finished
the SPM examination, to drive the lorry while accompanying him to Melaka. Tomintended
to train Blu to become a lorry driver so that in future he could work with Sam. Tom’s action
was known to Sam but Sam had never admonished Tom so far, even thoughSam had warned
all his workers not to bring any helper whilst on duty.

When they approached Seremban, Tom told Blu to turn into the town from the highway.
Tom intended to deliver a parcel to his aunt who lives in Seremban. When in Seremban,
Blu did not stop at a traffic light. As a result he collided with Mona’s car. The car was badly
damaged and Mona suffered injuries to her head.

Since the lorry was not badly damaged, Tom continued their journey to Melaka. When they
arrived in Melaka, Tom made a mistake of delivering the vegetables to Syarikat Bayam
Merah. Actually, Tom was supposed to deliver them to Syarikat Bayam Hijau. The manager
of Syarikat Bayam Merah accepted the delivery even though he was awarethat Tom had
made a mistake. The manager immediately sold the vegetables on the same day.

Discuss the tortious liabilities that might arise from the events above.

(February/March 1999)

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