LAW 435 – LAW OF TORTS 1

WRITTEN ASSIGNMENT

CLASS ; LWB01

SUBJECT : LAW 435

PREPARED FOR : MADAM NURUL JANNAH MUSTAFA KHAN

NAME ID NUMBER
LEJEROD LIMPUONG 2018222704
ISSUE:

The issue that need to be consider in this case is whether P Tech Resources Sdn Bhd liable under the
tort of negligence towards the residents of Pasir Gudang .

LAW/APPLICATION:

Duty Of Care:

Negligence defined as breach of legal duty to take care, which results in damage, undesired
by the plaintiff. It is the failure to take a proper amount of care towards another person, namely the
plaintiff, which results in injury or damage to the latter. The first elements that the plaintiff needs to
prove in order to succeed in action for negligence is the defendant must owe the plaintiff a duty of
care. A person will only be liable negligence if he under a legal duty to take care.

The neighbour principle is derived from the case of Donoghue v Stevenson (1932) AC 562.
The issue in this case was, whether the manufacturer owed a duty of care to the plaintiff to take a
reasonable care that the product is free from any defect likely to cause injury to health. What actually
happen in this case was that, Mrs Donoghue and her friend went to Michella’s Café. Her friend
ordered her a “ginger beer float”. After taking a cap off the bottle, which was made of opaque stone
rather than transparent glass. Michella poured some of the ginger beer over the ice-cream in the
tumbler, Mrs Donoghue partook thereof. As some ginger beer was still left In the bottle, her friend
emptied it into the tumbler. A nauseating foreign body floated out, possibly something that had once
been a snail. Mrs. Donoghue was taken ill, poisoned by the drink or sickened by the thought of it, or
both.

Mrs Donoghue claimed that Stevenson, who had bottled the ginger beer and sold it to
Michella, was under legal duty of care to her: he should have had a system for keeping snails out of
the bottles and for inspecting the bottles before they were filled, and his breach of duty in these
respects had caused her illness.

It was held that, the defendant owed the plaintiff a duty of care to make sure the bottle did not
content foreign bodies which would cause her personal harm. Lord Arkin stated that neighbour seems
to be the persons who closely and directly affected by his act. The Atkin’s formula consist of two
parts.

Firstly, foreseeability test where the damage must be foreseeable from the act done by the
defendant. Lord Artkin stated that “ you must take reasonable care to avoid or omissions which you
can reasonably foresee would be likely to injure your neighbour”.

Secondly, proximity test where the person who directly and closely affected bby the
defendant’s act. For the post Donoghue v Stevenson case is Anns V Merton London Borough where a
block of flats to which the claimant were tenant suffered from a structural defect because of
foundation which were too shallow. The council was responsible for inspecting the flats during their
construction. House of Lords held that the council was responsible for inspecting the flats during their
construction. House of Lords held that the council owe duty of care, and established a two stage test
for duty of care. This then overruled by the case of Caparo v Dickman1, where a more restrictive
approach introduced. From this case there are three stage test for imposition of duty of care were
foreseeability of damage, proximity of relationship and the reasonableness or otherwise of imposing
duty.

In applying the legal principle derived from the case of Donoghue v Stevenson, there is a duty
of care arise whereby the residents of Pasir Gudang considered as “neighbour” as they were directly
affected by the defendant actions. The foreseeability and proximity test also have been fulfilled. For
the first test, which is foreseeability test fulfilled by Wan and yap, representing P Tech Resources sdn
bhd, when they dumb the toxic waste into Sungai Kim Kim, Johor. P Tech Resources sdn bhd. They
had conspiring with the lorry driver, N Maridas. The chemicals are believed to have been scheduled
waste in need of proper disposal due to the hazardous nature of that toxic waste. It is obvious that,
toxic which cause hazardous need a proper way to dispose. They should’ve know the effect of their
actions, not just to the environment but also towards the people around Pasir Gudang. Thus, it is
foreseeable that their actions may cause damage to the resident of Pasir Gudang.

The second test, which is Proximity, the resident of Pasir Gudang was those who directly
affected by the defendant’s action. According to the news, there are 1906 residents of Pasir Gudang
have been affected by the toxic fumes from Sungai Kim Kim, with 276 cases reffered to the Sultan
Ismail Hospital in Johor Bharu. On this case, 111 schools in Pasir Gudang area have been closed
down, along with 92 kindergartens and nurseries in Pasir Gudang, Tembrau and Tenggara. No death
has been reported, however there was 12 victims are being treated at intensive care units. This shows
the seriousness of the effect of they actions of the defendants. The main cause of this matter is the
fume from the toxic dumb by the defendants into Sungai Kim Kim. Thus, the second test fulfilled.

1
(1990) 1 All E.R.568
BREACH OF DUTY:

Once the element of duty of care is established, the next thing that need to be consider is
whether the defendant has breached the duty of care. Breach is violation of law or which is something
in breach. It occurs when the duty of care perceives by the defendant is below the standard of care
which is measured through the standard of reasonable man. There are two stages process need to
revise in order to determine whether there is a breach of duty. Firstly, the court will determine the
appropriate standard of care, and secondly, whether of balance probabilities, the defendant has failed
to meet the standard.

The landmark case for breach of duty of care is Blyth v Birmingam waterworks co. it was
stated by Anderson B, that the negligent is the omission to do something which a reasonable man
would not do. What is actually “reasonable man” mean here? Reasonable man is an ordinary man who
is not expected to have skill as that possessed by doctors, lawyers unless he is actually one. In order to
fulfil the element of breach of duty, there are few factors to consider which are the magnitude of risk,
the practicability of practice, the utility of the act of the defendant and the general approved practice.
For this case, we will only gone through magnitude of risk, practicality of precaution and the general
and approve practice.

The Magitude Of Risk

Firstly, the Magnitude of risk. It is the degree of care required of the defendant must be
weighed against the magnitude of risk or degree of risk created by the defendant’s conduct. This
involves the consideration of two factors which is, probability of the risk or injuring occurring and the
seriousness of the damage or injury. Meaning to say here, the higher the risk, the higher degree of care
impose.

This principal can be seen in the case of Bolton v Stone. In this case, the plaintiff was
standing on the highway in a road adjoining a cricket ground when she was struck by a ball which a
batsman had hit out of the ground. Balls had occasionally been hit out of the ground before. However,
there was a 7 foot fence around the cricket ground, there was quite a distance from the pitch to the
edge of the ground, and there was an upward slope of the ground in the direction in which the ball was
struck.

It was held that, in taking into account the distance from the pitch to the edge of the ground,
the presence of 7 foot fence and the upward slope of the ground in the direction in which the ball was
struck, the likelihood of injury to person in the plaintiff’s position was so slight that the cricket club
was not negligent in allowing cricket to be played without having taken additional precautions such as
increasing the height of the fence. Although the possibility of the ball of being hit on the highway
might reasonable have been foreseen, this was not sufficient to established negligence, since the risk
of injury to anyone in such place was so remote that a reasonable person would not have anticipated
it.

Next, the case of Paris v Stepney Borough Council (1951) 1 All ER 42, where in this case
the appellant was employed as a fitter in the garage of the respondent borough council. To the
knowledge of the respondent, he had the use of only one eye. While he was using a hammer to
remove a bolt on a vehicle, a chip of metal flew off and entered into his good eye, causing him to be
totally blind. The respondents did not provide goggles for the appellant to wear, and there was
evidence that it was not the ordinary practice for employers to supply goggles to men employed in
garages on the maintenance and repair vehicles.

It was held that, the condition of the appellant’s eyes, the knowledge of the respondents, the
likelihood of an accident happening, and the gravity of the consequences if an accident should occur,
were relevant facts to be taken into account in determining the question whether or not the
respondents took reasonable precautions for the appellant’s safety.

In applying the legal principle of Blyth v Birmingham Waterworks Co to the situation, the
actions of Wang and Yap, dumping the toxic into the Sungai Kim Kim is not what any reasonably
man would do, as they should find a proper way on how to dispose the toxic, so that it would not
harm others later on. Also, by applying to the case of Bolton v Stone, it was foreseeable that, the
defendants actions here which was threw the toxic into the river will cause water pollution, at the
same time directly effect the ecosystem, including human being. Due to their action, almost 2000 of
the resident around Pasir Gudang affected by the fume produced from the polluted river. Not just
health effected, at the same time the productivity of that area, as most of school and kindergartens and
nurseries has been closed down for a while.

Next, in applying legal principle of case of Paris v Stepney, the probability of the incidents
will happen is high. Thus the degree of care in this case was high too. It was reported by Zaki
Zainudin a water quality and modelling specialist, that the pollution had been an issue since 2012.
Plus, it was said that, Sungai Kim Kim does not function really well and tidally affected, which mean
it is more sensitive to pollution input. Thus, knowing the this fact, the defendant should not dumb
any more toxic into the river, because if they did not do so, nothing bad will happen.

Practicability of Precautions
 The next factor is, the practicability of precautions. Here, all precautionary measures
undertaken by the defendant will be taken into account in determining the reasonableness of the
defendant’s conduct. In the case of Latimer v AEC (1953) AC 643, whereby in this case, the
defendant’s factory was flooded due to heavy rain. The mixture of the water and the oil caused a part
of the floor of the factory to be slippery and sawdust was placed over the slippery parts. However, not
all areas was covered with the sawdust, and the plaintiff slipped and fell. The plaintiff contended that
the defendant should have shut the factory down. If the risk may considerably reduce with rather
lower cost, then the defendant would be unreasonable if he does not incur this low cost in order to
reduce the risk. In any case, the court will have to consider the practicability of precautions as against
the disadvantages.

In applying the legal principle of the Latimer v AEC, the defendant didn’t take any
practicality and precaution. On 7 march, Yap and Wang believed to be conspiring with the lorry
driver N Maridass, to dispose of scheduled Wastes into Sungai Kim Kim, without the approval from
Director-General of Enviroment quality. They didn’t even dispose the toxic in the right place. The
said toxic was believed to have been scheduled waste in need of proper disposal due to their
hazardous nature. Plus the amount of that toxic was a lot, which is about 2.43 tonnes. Thus, knowing
that it is a scheduled wastes, why would they proceed with their actions if the really take precaution
on it. Here, the defendant really abandoned the practicality and precautionary of disposing the toxic.

The General and Approved Practice

The last factor need to consider is the general and approved practice. In this matter, the
general rule is that if a defendant acted as reasonable man would do in the same situation, the
defendant is said to have act reasonably. Therefore, a defendant who has acted in accordance with the
common practice of those similarly engaged in the activity will be strong evidence to suggest that he
is not negligent. A defendant who acts differently from the general and usual practice will give rise to
presumption that he is negligent but this is not confirmation of him being negligent, especially if there
are few courses of action that may be taken in the particular situations and the defendant chooses to
exercise one of the available options.

Like In the case of, Gold v Haringey Health Authority (1987) 2 All ER 88, where in 1979,
the plaintiff who already a mother of two, became pregnant and agreed with her husband that they
would not have anymore children. She was reffered to a hospital run by the defendant health
authority, where the consultation obstetrician suggested sterilization but made no reference to the
alternative of the plaintiff’s husband having a vasectomy and gave no warning of risk of the
sterilization operation failing. The failure rate for sterilization was 20-60 per 10,000, which was
higher than the vasectomy , 5 per 10,000. The sterilization opereation was performed on the day after
the birth of the child but was not success, with the result of the plaintiff subsequently became
pregnant again and gave birth to the fourth child. She then brought an action for damages for
negligence against the health authority alleging, inter alia, that it had been negligent in not warning
her of the risk of the failure of the operation.

It was held that, the operation itself had not been performed but that, the defendant had been
negligent in failing to warn the plaintiff of the possibility of the failure of the operation. The plaintiff
was awarded the plaintiff damages of $19,000. The defendant appealed, and the appealed was being
allowed, because the standard of care required of medical practitioner was the same as that required of
the members of every profession or calling which required special skill, knowledge special skill,
knowledge or experience, namely the standard of care required or the ordinary skilled member of that
profession who exercised and professed to have that special skill. Where medical advice had been
given by a doctor the standard of care required of the doctor did not depend on the context in which
the advice was given but on whether there was substantial body of doctors who would have given the
same advice. Since in 1979, a substantial body of responsible doctors would not have warned of the
risk of failure of the sterilization operation. The health authority was not liable in negligence.

In applying the case of Gold v Heringey, the defendants didn’t acted as what a reasonable
man would do. Both defendants, has acted differently from the general and usual practice of any
reasonable man. Defendants have dumb the toxic into Sungai Kim Kim on 7 march. The toxic was
believed to have been scheduled waste in need of a proper disposal due to their hazardous nature. No
reasonable man or body that will dumb hazardous chemical into the river. It is not a common practice
for reasonably man to do so. A reasonably man will dispose the toxic as what has been provided by
the law. Unlike in the case of Gold, where the standard of care of doctor did not depend on the context
in which the advice was given but on whether there was substantial body of doctors who would given
the same advice. In the current situation, there was not even a substantial body who would act and
support the action of the defendants.

CONCLUSION

In conclusion, P Tech liable for Negligent duty of care, and has breach their duty of care.