Negligence: Duty of Care

Meaning:

Damage suffered as a result of another person’s careless conduct/action or inaction may give rise
to tort of negligence.
Blyth v Birmingham Waterworks Co

Alderson B: negligence is the omission to do something which a reasonable man, guided upon
those considerations which ordinarily regulate the conduct of human affairs would do; or doing
something which a prudent and reasonable man would not do.
Lochgelly Iron and Coal Co v McMullan

Lord Wright: Negligence means more than heedless or careless conduct… it properly connotes the
complex concept of duty, breach and damage suffered by the person to whom the duty was owing.

Elements to be fulfilled:
1) There is duty of care on part of def toward plf (duty of care)
2) That duty is breach by def (breach of duty)
3) The breach resulted in some damage to the plf (damage suffered as a result of the breach)

(1) Duty of care

A duty of care is a legal obligation, which is imposed on an individual to take proper/ reasonable
care while performing any acts that could foreseeably harm/injure others. It is the first element that
must be established to proceed with an action in negligence.

An individual may owe a duty of care to another, to ensure that they do not suffer any unreasonable
harm or loss. If such a duty is found to be breached, a legal liability is imposed upon the tortfeasor
to compensate the victim for any losses they incur.
Heaven v Pender

H: May be the obligation of duty from 1 person to another although no contract btw them with
regard to duty. Existence of duty is independent of contractual duty.

A1) Neighbour principle

Case: Donoghue v Stevenson

Facts: The D, a ginger beer manufacturer, had sold ginger beer to a retailer. The bottles were
opaque. A bought a bottle and entertained her friend (P) who drank the beer. It was alleged that
when A refilled the glass, along with the ginger beer came out the decomposed remains of snail.
P was shock and was severely ill consequently. P sue manufacturer and claimed he had a duty in
the course of his business prevent snails from entering the bottles and ensure all bottles were
inspected before filled.
Issue: Whether D owed duty toward P?
Held: The D is liable. Lord Atkin formulated a neighbour principle:

“You must take reasonable care to avoid acts or omissions which you can reasonably foresee
would be likely to injure your neighbour. Neighbour is the persons who are so closely and
directly affected by my act that I ought reasonably to have them in contemplation as being affected
when I am directing my mind to the acts or omissions which are called in question.’’
2 important decision in this case:
1) A new duty is created (manufacturer to consumer)

2) Pre-existing contractual relationship between parties before a duty could arise is no longer the
case. Hence, categories of negligence become wider and not limited.

A2) Objective Test

The court will ask the hypothetical question: would a reasonable man, who is in the same
circumstances as the defendant, foresee that his conduct will adversely affect the plaintiff:
No: the plaintiff is not a neighbour of the defendant and no duty of care arises

Yes: means that the plaintiff is a neighbour of the defendant and the latter owes the former a duty
of care
Case: Home Office v Dorset Yacht Co Ltd
F: 7 boys (borstal trainees) had escaped from an island due to negligence of some borstal officers.
The boys caused damage to a yacht and its owner sued the Home Office.
H: D liable because neighbor principle.
Case: Anns v Merton London Borough Council

F: P bought a house from a developer and later, wall of house cracked and floor became uneven.
These were due to defect in the foundation of the house. P sued builders and local authority for
negligence for failure to inspect and detect defect of the foundation.
H: D liable bcoz own duty of care toward P.
Two-stage approach in Anns:

(i) Existence of duty if it is reasonably foreseeable that the defendant’s act or omission may cause
damage to the plaintiff;
(ii) The duty is only reduced or negative if there are policy factors

Criticism in Anns
Case: Governors of the Peabody Donation Fund v Sir Lindsay Parkinson & Co Ltd

F: A drainage system to a building was defective and the local authority which was in charge of
overseeing the construction of the drainage system was found to have been aware of the fact that
the approved plan to the drainage system was not adhered to with the result that the completed
drainage system had to be reconstructed. P, the owner of building sue the local authority, alleging
that the latter breach their duty in not ensuring that the approved plans were adhered to.

H: Local authority does not owned duty. Foreseeable per se not automatically give rise to duty of
care. It also stated that the relationship of proximity/neighbourhood principle laid by Lord Atkin
must be proved before duty of care is said to exist. The scope of duty is dependent on the facts of
each case.

(2) Caparo (composite) test

Case: Caparo Industries plc v Dickman
Establishing a duty of care based on the kind of harm suffered by the plaintiff.

F: P purchased shares in reliance of accounts stated that company made pre-tax profit, but actually
loss of $400,000. Hence brought action against auditors for negligence.
H: No duty of care. Not proximity sufficiency btw Caparo and auditors.
Conclusion of Caparo Test - Duty of care may exist when the following factors exist:
i) The damage is reasonably foreseeable, and

ii) There is a close and direct relationship of proximity between the plaintiff and the defendant,
and

iii) The circumstances as a whole must be such that it is fair, just and reasonable for the imposition
of a duty of care
(3) The situation in Malaysia
The application is more straightforward in Malaysia
The application of neighbour principle in case of Sathu v Hawthornden Rubber Estate Co Ltd
Case: Sathu v Hawthornden Rubber Estate Co Ltd

F：19 heads of cattle which belonged to P strayed into estate of D whilst grazing. Estate had been
sprayed with sodium arsenate a few days earlier and complete herd die after grazing the
contaminated grass. P alleged D had committed a breach of their common law duty to a ‘neighbour’
under principle in Donoghue v Stevenson.
H: Not reasonably foreseeable by D, need not own duty of care toward P.
Foreseeability of damage continued to be the pre requisite for the imposition of a duty `
Case: Lok Kwan Moi & Ors v Ramli bin Jamil & Ors v Government of Malaysia

F: During CNY, the police conducted raids on boats tied up at the Muar river front where a number
of fisherman were gambling. Majority of fishermen jumped into river and the police party lined
the bank shouting at them to come back. Most of them returned and arrested, except the deceased,
who had difficulties in water. A passing boatman tried to save the deceased but the police shouted
that if he had interfered, he will be arrested. The boatman went away and the deceased wen down
the water.

H: Policeman who uttered the words ought to known and foresee any reasonable man would have
known and foresee, that his act can deter the rescue. Police and government were liable.