TORT OF NEGLIGENCE

TORT OF NEGLIGENCE

1. Definition: “Breach of legal duty to take care which result in damage, undesired by the defendant to plaintiff”

   • omission to do something, which a reasonable man would do or doing something which a prudent and reasonable man would not do

2. ELEMENTS OF NEGLIGENCE

   • The modern law of negligence may be said to date from the case of Donoghue v Stenvenson [1932] AC 562
     • Lord Atkins in this case illustrates the following elements of negligence that had to be proven in all actions of negligence.

3. A plaintiff suing in negligence must prove the following 4 elements:

   • DUTY OF CARE
     • A person is only liable for negligence if he is under a legal duty to take care, means when he failed to exercise reasonable care and skill.
       • Duty of care – obligation or burden, imposed by the law, which requires a person to conform to a certain standard of conduct.
         • To whom this duty to take care is owed? The test to ne used is a neighbor principle
           • Who is your neighbor? “person who are closely and directly affected by my act that ought reasonably to have them in contemplation as being so affected.”
             • It is not important that the defendant did not know the plaintiff but such duty owes only to those who would foreseeably be injured by act one’s action.
               • Case: Donoghue v Stevenson It was held that the defendant being the manufacturer of ginger beer, owed duty of care to the plaintiff as the customer. The duty included ensuring that the drink did not contain any noxious substance, which likely to cause injury to anyone using it.
   • BREACH OF DUTY OF CARE
     • For defendant to be liable for negligence, the defendant must not only owe a duty of car toward plaintiff, but must also breach that duty.
       • The test to determine that the defendant had breached the duty is reasonable man test.
         • Reasonable man – an ordinary person who is not expected to have any particular skill
           • Example – a restaurant owes a duty to its customers not to serve rancid food because it is foreseeble that the customers would become ill as a result.
           • Case: Blyth v Birmingham Waterworks Negligence is the omission to do something which reasonable man would do, or doing something which a reasonable man would not do. Question to be ask – would a reasonable man have acted as defendant has done if the reasonable man was faced with the same circumstances as defendant?
           • Case: Scollen v Leisure Holidays Limited
             • Case: Wong Mee Wan v Kwan Kin Travel
               • Case: Thomas v Grand Hyatt Hotel
   • PROXIMATE CAUSE
     • A proximate cause is the direct and immediate foreseeable connection between breach of duty and a resulting breach.
       • The injury must have been caused by the breach of duty (cause and effect relationship).
         • The connection must be direct or immediate, so that a reasonable person can foresee the potential danger of the careless act.
           • Case: Thomas v Grand Hyatt Hotel
   • INJURY TO THE PLAINTIFF
     • A plaintiff must have suffered injury as a result of the defendant’s breach of duty.
       • Injury could be:
         • a) bodily harm
         • b) damage to property

4. DEFENSES-SELF DEFENCE

   • Even if the plaintiff succeeds in proving all the elements of negligence this does not necessarily mean that he will win the case, because defendant may raise defence which may absolve him from liability.
     • Defences that normally raised in negligence suit are:
       • a) Volunti non fit injuria
         • -No harm done to those who consent -Harm suffered voluntarily does not constitute a legal injury and is not actionable.
           • Case: Lee Geok Theng v Ngee Tai Hoo VNFI simply means that to which a man consents cannot be considered an injury. Consent must be real and given without force, fear or fraud.
             • Example: a) Medical treatment b) Sport spectator c) Rescue cases
       • b) Contributory negligence
         • Plaintiff contribute to his own injury by failure to take necessary precaution
           • Case: Froom v Butcher A collision took place due to the defendant’s negligence. The plaintiff, who was not wearing his seatbelt, suffered head and chest injury besides a broken finger. It was held that the damages were reduced by 25% because of the contributory negligence on the part of the plaintiff.
       • c) Act of God (inevitable accident)
         • An act occasioned exclusively by violence of nature without the interference of any human agency. A natural necessity proceeding from physical causes alone without the intervention of man. It is an accident which could not have been occasioned by human agency but proceeded from physical causes alone.
           • Some occurrence which the defendant had no control and the effect of which he could not have been avoided by the greatest skill and care.
             • The occurrence must be so unexpected that no human can anticipate its occurrence.

5. OCCUPIERS LIABILITY

   • • The difference between an ordinary negligence claim and a negligence claim for occupiers’ liability rests in the standard of care required of the defendant occupier.
       • The meaning of occupier “ someone that had sufficient control over the premises, which is control associated with and arising from presence in and use of, or activity on the premises.”
         • Liability is not based on ownership and control need not be absolute or exclusive.