LAW245

NEGLIGENCE

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 LEARNING OUTCOMES
 Upon completion of this chapter, students shall
be able to:
 Explain the definition of negligence
 Discuss the elements of negligence
 Apply the legal principles.

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 INTRODUCTION

 Negligence is defined in Winfield and Jolowicz on

Torts as “the breach of a legal duty to take care
which results in damage, undesired by the
defendant, to the plaintiff”.
 The tort of negligence requires proof of specific
elements before the tort is established, despite
carelessness on the part of defendant, and injury or
damage sustained by the plaintiff.

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Introduction…

 In Lochgelly Iron and Coal Co v McMullan

[1934] AC 1, Lord Wright defined negligence
as:
 Negligence means more than heedless or careless
conduct…it properly connotes the complex concept
of duty, breach and damage thereby suffered by the
person to whom the duty was owing.

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 ELEMENTS OF NEGLIGENCE
 Elements to be fulfilled:-

Breached
ELEMENTS Of Duty
Duty of OF Of Care
Care NEGLIGENCE

Damage/
Injury
Suffered

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 EXAMPLE
 Duty : A person driving a car has a duty to
conduct the car in a safe and responsible
manner.
 Breach : If a driver runs through a red light,
the driver violated that duty.
 Damage : As it is foreseeable that running a
red light can result in a car crash, and that
people are likely to be injured in such a
collision.

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 1. DUTY OF CARE
 Duty = obligation recognised by law.
 The breach of the duty and the resulting damage
may give rise to liability in negligence.
 Defendant must owe duty of care to the plaintiff.
 Duty in the tort of negligence means legal duty
imposed by the law not moral or social duty.
 The duty must arise out of some relation or
some proximity between the parties; driver and
road user, manufacturer and consumer.

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Duty of Care…
Eg- A customer at a supermarket notice
banana skin on the floor of the supermarket
but he choose to walk past it, and B, who is in
a hurry slips on the banana skin and injures
himself.

A does not owe a legal duty to warn B or to

dispose of the banana skin. A only has a
social or moral duty, which is not enforceable
by the law. There is generally no duty to
rescue a stranger from danger.

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Duty of Care…

However, the proprietor of the

supermarket would not be in the same
position as A, for he is in a position
where he ought to know that leaving an
object on the floor of the supermarket
could well cause injury to a customer.

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Duty of Care…
Must arise from some “relation” or some
“proximity” between the parties. Eg-
manufacturer and consumers,

The primary test or principle used

in determining the existence of a
duty of care is the well-known
‘neighbour principle’.
This principle was laid down in the
landmark case of Donoghue v
Stevenson [1932] AC 562

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Duty of Care…
CASE

Donoghue v Stevenson [1932] AC 562

 A friend of the plaintiff had purchased a bottle of ginger

beer at a café. The plaintiff had consumed some of the
drink but when she poured out the remainder of the
contents of the bottle, a decomposed snail was found in
the drink. As the bottle was opaque, the plaintiff was
unable to see the contents much earlier. The plaintiff
suffered shock and subsequently became ill. She sued
the defendant (manufacturer) in negligence.
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Duty of Care…
CASE

 House of Lords held that the defendant being the

manufacturers of the ginger beer owed a duty of
care to the plaintiff; as the ultimate consumer or
the purchaser of the drink. This duty was to take
reasonable care to ensure that the bottle did not
contain any substances which was likely to cause
injury to anyone who purchases it in due course.

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Duty of Care…
CASE

 The neighbourhood principle was formulated by

Lord Atkin as follows:
 The rule that you are to love your neighbour becomes in
law, you must not injure your neighbour; and the lawyer’s
question ‘who is my neighbour’ receives a restricted reply.
 You must take reasonable care to avoid acts or omissions
which you can reasonably foresee would be likely to
injure your neighbour.
 Who then, in law is my neighbour? The answer seems to
be persons who are so closely and directly affected by my
act….

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Duty of Care…
CASE
Grant v Australian Knitting Mills
(1936) AC 85
 Plaintiffs complained of dermatitis resulting from
the use of underpants manufactured by the
defendant which contained excess sulphites. The
defendant produced evidence that he had
manufactured 4,737,600 pairs of underpants with
never a complaint. Yet the court held the plaintiff
should succeed.
 Held : that the manufacturer had to pay because
the pants were defective when it left the factory.
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 2. BREACH OF DUTY:
STANDARD OF CARE
For a defendant to be liable to negligence,
the defendant must not only owe a duty of
care to act reasonably to the plaintiff, but
must also breach that duty.

Eg- restaurant owes a duty to its customers

not to serve spoilt or unhealthy food because
it is foreseeable that the customer would fall
ill if he consume the spoilt/unhealthy food.
Hence, if the restaurant serves that kind of
foods then the restaurant breaches its duty.

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Breach of Duty..
 The test applied in order to determine foreseeability is the
test of reasonable person of ordinary prudence @
reasonable man test.

What is
Reasonable
man test?

whether the reasonable man

would have acted as the defendant
has done; if the reasonable man is
faced with the same
circumstances.
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Breach of Duty..
CASE

Blyth v Birmingham Waterworks Co

(1856) 11 Ex 781
 It was stated that negligence is the omission to do
something which a reasonable man would do, or
doing something which a reasonable man would
not do.

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Breach of Duty..
CASE
Thomas v Grand Hyatt Hotel
 Fact : The plaintiff brought an action alleging negligence
on the part of the defendant in connection with a slip and
fall incident at Grand Hyatt Hotel. During that incident,
the plaintiff was modeling clothes for Woodward &
Lothrop, which had leased a space from the defendant for
a fashion show. While the plaintiff was walking out of the
stage, she slipped and fell, injuring her left foot and ankle.
 Held : the plaintiff did not know what caused her to slip
and the defendant was unaware of a dangerous condition
that caused her to slip. Therefore, the defendant was not
in breach of the duty.

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 3. DAMAGE/INJURY
 In order to win a lawsuit, the plaintiff must prove
that he has suffered damage/injury as a result of
the defendant’s breach of duty.
What is
damage/
injury?

The injury could be It could also be a

bodily harm, such as a damage to property
broken arm or head (eg-car) or emotional
injury. or monetary loss.

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 DEFENCES
What are the Defences usually raised in a
suit of negligence?

(a) Volenti non (b) Contributory

fit injuria negligence

(c) Mechanical (d) Exclusion

defect cause

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a) Volenti non fit injuria
 Latin maxim that means that the plaintiff has voluntarily
assumed the risk of injury
 Generally, if the plaintiff has an agreement with the
defendant that the latter will not liable if he is negligent,
this agreement will allow the defendant to raise the
defence of volenti non fit injuria successfully.

Nattleship v Weston (1971) 2 QB 691

 The plaintiff agreed to give the defendant driving lessons
and was subsequently injured when the defendant hit a
lamp-post. The defence of volenti non fit injuria was
rejected as there was no agreement to assume the risk of
injury.
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b) Contributory negligence
 Failure by the plaintiff to take reasonable care of himself or
his property which consequently contributed or resulted on
his injury.
 The elements of contributory negligence are:
1) the plaintiff is required to act reasonably to avoid damage
to himself
2)the plaintiff ‘breached’ this duty by behaving unreasonably
3) the act of the plaintiff must be the cause of his injury.

Jones v Livox Quarries Ltd (1952) 2 QB 608

› The plaintiff disobeyed this employers instructions by
riding on the back of a traxcavators. Another vehicle hit
the back of the traxcavator and the plaintiff was injured.
The court held the plaintiff contributory negligent.
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c) Mechanical defect
 This defence is related to the issue of inspection and
maintenance of the vehicle based on the record of service
and that the vehicle is free from defect.

Che Jah bt Mohamed Ariff v C.C. Scott

(1952) 18 MLJ 69
› The plaintiff was a passenger in the defendant’s car that crashed
into a stationary car, she suffered injuries as a result of the accident.
› The defendant gave evidence that ten days prior to the accident he
had sent the car for service with particular attention to the brakes.
One day before the accident he had gone to test the brakes and the
brakes was found to be in order.
› The court held the defect in the brakes was latent and as the
defendant had employed skilled labour, no negligence could be
attributed to him.
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d) Exclusion clause
 Can liability for negligence be excluded by giving notice of it to
the plaintiff?
 Only if the clause is construed as clear and unambiguous,
defendant may escape liability.
Chin Hooi Nan v Comprehensive Auto Restoration Service
Sdn Bhd (1995) 2 MLJ 10
• The plaintiff paid some money to the defendant’s to have his car waxed and
polished. The car was damaged while one of the defendant’s employees drove it
down to the basement of the building. On the back of the receipt issued to the
plaintiff were the words:
“The company is not liable for any loss or damage whatsoever of or to the vehicle,
its accessories or contents. Vehicle and goods are left at owner’s risk.”
• The court held that the exemption clause did not exclude the defendants from the
burden of proving that the damage to the car was not due to their negligence and
misconduct. They must show that they had exercise due diligence and care in the
handling of the car, and since the defendant had failed to do this, they were held
liable to compensate the plaintiff for costs of repair, of hiring another car during
the repair period and of engaging an independent adjuster.
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THANK YOU

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