Negligence consists of a legal duty of care, breach of that duty and damages.
[ It depends on the marks allocation. If the marks are higher, then you should explain more of each elements.]
2. (a) In the case, it states the neighbour principle, which is the test of reasonable foresight. It says that you owe a duty of care to your neighbour. A neighbour is person who is so closely and directly affected by one's act and one ought to have them in contemplation before such act is done.
2. (b) In the case, the plaintiff husband is sick and the plaintiff sends her husband to hospital but the doctor refuses to treat her husband and asks her to bring her husband to her own doctor. Eventually her husband died. The plaintiff sues the doctor for not treating her husband.
Here, there is a duty of care but that duty is not breached because the plaintiff's husband death is not due to negligence of the doctor. The plaintiff husband is died due to arsenic poisoning.
3. Neighbour principle is the test of reasonable foresight. Under this test, a duty of care exists if it was reasonably foreseeable that the plaintiff would be injured as a consequence of the defendant's acts or omissions. Neighbour is person who is so closely and directly affected by my act that i ought to have them in contemplation before such act is done.
4. It is the reasonable man test. Would the reasonable man have done the same thing?If yes, there is no breach of duty. If no, there is a breach of duty.
5. When there is a breach of duty, there are 3 factors to be considered:
(a) Magnitude of risk
- The likelihood that injury will be incurred and the seriousness of the injurt that is risked- Bolton v. Stone
- If the plaintiff suffers from some disability, which is or should be known to the defendant, which increases the magnitude of the risk to him, that the disability must be taken into account - Paris v. Stepney Borough Council
(b) The importance of object to be attained
If the purpose in taking the risk is justified then the defendant is not liable - Watt v. Herdfordshire County Council
(c) The practicability of precautions
The risk must be balanced against the measures necessary to eliminate the practical measures which the defendant could have taken must be considered - Latimer v. A.E.C.
6.The test for remoteness of damage is named Reasonable Forseability Test - The Wagon Mound.
The damage would consider to be remote if the reasonable man would not have foreseen them. Thus the plaintiff must show that he suffered loss which was caused by defendant's breach of duty and was not too remote a consequence of it.
7. A break in the chain of causation can be due to:
(a) Intervening natural event
- which occurs independantly of the defendant's breach of the duty but which would have caused the plaintiff no damages of the breach of duty has not occurred, the defendant is not liable for such loss.
(b) Intervening act of a third party - If the act of third party as not truly independant then, the defendant act will be liable
(c) Intervening act of the plaintiff
- If the plaintiff has done something which severes the injury or damages not truly, the defendant only liable for his part.
8. (a) Volunti Non Fit Injuria - no harm can be done to someone who consents it.
(b) Inevitable event - an accident which is beyond control of the defendant or no intention to do it.
(c) Necessity - if the injury was done to prevent a more severe injury
(d) Private Defence - self defence in order to prevent injury or damages from happening
(e) Act of God - something happened independently due to natural event which severes the damage.
(f) Act of Stranger - if chain of causation is broken by stranger, the plaintiff wil bear loss caused by the stranger.
(g) Contributory negligence - Section 12 Civil Law Act, 1956 provides that if plaintiff himself contribute to the damages, the plaintiff will be liable for his own act.
9. If a third party asks a professional for advice, and the professional gives the advice, knowing very well that the third party is going to rely on that advice. Third party relies on it and changes his position then the professional can be sued when the third party suffer damages, unless there is disclaimer. The professional is liable for negligence but not liable due to presence of disclaimer.
10. Professional negligence is defined as whether a professional person can be liable for what he says.
For a professional to be liable, three things must be proved, of which there is duty of care, breach of duty of care, and damages.
Elements of the cause of action for professional negligence are:
- Professional made a statement to a third party , knowing very well that third party is going to rely on it
- Third party relies on it
- Third party changes his position
- Third party suffers damages
- There is no presence of disclaimer
This principle in Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd. is then reaffrimed in Caparo Industries v. Dickman.
11. Negligence is defined in Winfield and Jolowicz on Tort as the breach of a legal duty of care, which results in damages, undesired by the defendant, to the plaintiff.
For a professional to be liable, he must prove three things, of which the duty of care, the breach of duty of care and damages.
When See Bok has appointed Keera as his accountant to advise him on financial matters, is there a duty of care? Lord Atkin in Donoghue v. Stevenson stated that you owe a duty of care to your neighbour. A neighbour is person who so closely and directly affected by my act and i ought to have them in contemplation before such act is done. In this case, See Bok is Keera's neighbour, therefore, there is a duty of care.
To determine whether there is breach of duty of care, there are 5 elements to be looked into. Is there a statement made by professional, knowing very well that third party is going to rely on it? Yes. Keera did advice See Bok, knowing that he has great confidence on her and will rely on her advice. Is there reliance by third party? Yes. See Bok relies on Keera's advice. Does the third party change position? Yes. See Bok acted on the advice given by Keera. Does the third party suffer damages? Yes. See Bok lost RM300000 because he acted on Keera's advice. Can See Bok sue Keera for professional negligence? Yes unless there is a disclaimer. In this case, is there any disclaimer? No. Therefore See Bok can sue Keera for professional negligence.
This is the last tutorial for Business Law...
Wish all of you good luck in this paper. To score this paper, you need to work hard. So don't you do revision for this paper last minute... It does you no good..