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 RM 4000, a sum much higher than what would have been incurred if the car
was any of the Japanese-manufactured cars (between RM 600-RM 2500). 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 to correct 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.

 Economic loss - Until the 1970s the rules on liability for economic loss as a result of negligent
acts were simple to state: there was generally no liability in respect of 'pure' economic loss.
There are two broad categories of case in which the claimant sustains economic loss as a
result of a negligent act:
 Damage of physical injury – Before operation, pelvis was found to be located due to the
sudden halt where it causes her to have difficulty in sitting up. After operation, pelvis
permanently deformed, cannot get up
 Consequential financial loss -
(b) Discuss the issues arising in each type of loss.
 Whether Asiya is able to take legal action towards Siska under tort of negligence to claim for
the economic loss that she suffered
 Whether Asiya is able to take legal action towards Dr Fendi under tort of negligence to claim
for the damage of physical injury that she suffered

(c) How do you determine who is at fault for each loss?

 In order to prove negligence and claim damages, a claimant has to prove a number of
elements to the court.
 These are: The defendant owed them a duty of care, the defendant breached that duty of
care, and they suffered loss or damage as a direct consequence of the breach.
 Even if negligence is proved, the defendant may have a defence that protects them from
liability, or reduces the amount of damages they are liable for.
(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