Chapter 12 – Law of Tort
1
Tortious liability arises from the
breach of a duty primarily fixed by the
law; this duty is towards persons
generally and its breach is redressible
by an action for unliquidated damages
 The law of tort in Malaysia is largely
derived from the common law of
England

2

Tort covers subjects such as: -
◦ Trespass to the person (e.g. assault and
battery and false imprisonment)
◦ Negligence
◦ Defamation
◦ Trespass to land
◦ Nuisance
◦ Trespass to goods
3


Negligence is defined as ‘the breach of a
legal duty to take care which results in
damages, undesired by the defendant, to
the plaintiff’
The ingredients of negligence are: -
◦ A legal duty on the part of A towards B to exercise
care in such conduct of A as falls within the scope
of the duty
◦ Breach of that duty
◦ Consequential damage to B
4


Not every careless act done by a person
results in his being held responsible in law
He will only be liable in negligence if he is
under a legal duty to take care
5

The general principle as regards the criterion of duty is that
which was given by Lord Atkin in Donoghue v Stevenson
which reads 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 that I ought reasonably to have them in
contemplation as being so affected when I am directing my
mind to the acts or omissions which are called in question.”
6
Donoghue v Stevenson [1932] A.C. 562, 580
A manufacturer of ginger-beer had sold to a retailer gingerbeer in an opague bottle. The retailer resold it to A who
treated her friend to its contents. The ginger-beer bottle also
contained the decomposed remains of a snail which had found
its way into the bottle at the factory. A’s friend alleged that she
became seriously ill in consequence and sued the manufacturer
for negligence.
Held: Although there was no contractual duty on the part of the
manufacturer towards A’s friend, the manufacturer owed her a
duty to take care that the bottle did not contain noxious matter
and it would be liable if that duty was broken
7


The test for the existence of a duty owed to
the plaintiff is the ‘neighbour’ principle
stated by Lord Atkin in Donoghue v
Stevenson, i.e. the foresight of the
reasonable man
One therefore asks the question whether
the injury to the plaintiff was reasonably
foreseeable consequence of the defendant’s
acts or omissions
8

The Atkinian test was applied by the Malaysian
courts in
 Lim Kar Bee v Abdul Latif bin Ismail ,
 Wu Siew Ying v Gunung Tunggal Quarry &
Contructions Sdn. Bhd. & Ors.
 Lembaga Kemajuan Tanah Persekutuan v Maniam
 The Court of Appeal in Arab-Malaysian Finance Bhd. v
Steven Phoa Cheng Loon & Ors.
9

In deciding whether a duty of care is owed
by a defendant to a plaintiff in a given case,
it is necessary to consider the facts and
circumstances of that case (Canadian
National Railway Co. v Norsk Pacific
Steamship Co.)
10


It is not required that the plaintiff must be
identifiable by the defendant
It is enough if the plaintiff is one of a class
within the area of foreseeable injury
11
Haley v London Electricity Board
Ds excavated a trench in the street. They took precautions for
the protection of passers-by which were sufficient for normal
sighted persons. However, P, who was blind, suffered injury
because the precautions taken by Ds were inadequate for him.
Held: the number of blind persons walking about the streets
alone was sufficient to require Ds to have them in contemplation
and take precautions appropriate to their condition.
12


The defendant must not only owe the
plaintiff a duty of care, he must be in breach
of it
The test for deciding whether there has
been a breach of duty is laid down in the
dictum of Alderson B. in Blyth v Birmingham
Waterworks Co.:
“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”
13



Who is a ‘reasonable man’?
A reasonable man has been described as ‘the man
on the omnibus’.
In other words, a ‘reasonable man’ means an
ordinary man who is not expected to have any
particular skill such as that possessed by a
surgeon, a lawyer or a plumber unless he is actually
one
14

In Fardon v Harcourt-Rivington, Lord Dunedin put
the test as follows:
“If the possibility of the danger emerging is
reasonably apparent, then to take no precautions is
negligence; but if the possibility of danger
emerging is only a mere possibility which would
not occur to the mind of a reasonable man, then
there is no negligence in not having taken
extraordinary precautions … In other words,
people must guard against reasonable
probabilities, but they are not bound to guard
against fantastic possibilities.”
15

Lord Macmillan, in Bourhill v Young
formulated the relevant test in this way:
“The duty to take care is the duty to avoid
doing or omitting to do anything, the doing
or omitting to do which may have as its
reasonable and probable consequence to
others and the duty is owed to those to
whom injury may reasonably and probably
be anticipated if the duty is not observed.”
16




The standard of what is ‘reasonable’ is an
objective one
Varies with the circumstances
Judge to decide – in the circumstances of the
particular case, the reasonable man would have
in contemplation, and what accordingly the
party sought to have foreseen
Example: a passer-by who renders emergency
first aid after an accident is not required to
show the skill of a qualified doctor
17


In some cases, however, the question of
foreseeability of an event will depend upon
whether or not a particular item of knowledge is to
be imputed to the reasonable man
The reasonable foreseeability of a consequence is
determined by the knowledge and experience
which is to attributed to the reasonable man in the
circumstances
18
Roe v Minister of Health [1954] 2 Q.B. 66
Facts: In 1947, Roe was a patient in a hospital. Dr.
G, an anaesthetist, administered a spinal
anaesthetic to him in preparation for a minor
operation. The anaesthetic was contained in a
glass ampoule which had been kept before use in
a solution of phenol. Unfortunately some of the
phenol had made its way through an ‘invisible
crack’ into the ampoule this contaminating the
anaesthetic. As a result Roe became permanently
paralysed from the waist dow. Dr. G had
subjected the ampoule to a visual examination
before administrating the anaesthetic but he did
not add a colouring agent to the phenol so that
contamination of the anaesthetic could have been
observed.
19
Held: Dr. G was not negligent in not causing the
phenol to be coloured because the risk of invisible
cracks had not been drawn to the attention of the
profession until 1951 and ‘care has to be exercised to
ensure that conduct in 1947 is only judged in the
light of knowledge which then was or ought
reasonably to have been possessed. In this
connection, the then existing state of medical
literature must be had in mind.’
20



In deciding whether there was a breach of duty, a
balance must be truck between the magnitude of
the risk and the burden to the defendant in doing
(or not doing) what is alleged he should (or
should not) have done
In every case where a duty of care exists, the
court must consider whether the risk was
sufficiently great to require of the defendant
more than he has actually done
The 3 factors the courts must consider are:
◦ The magnitude of the risk;
◦ The importance of the object to be attained; and
◦ The practicability of precautions
21

2 elements:
◦ Likelihood that injury will be incurred; and
◦ Seriousness of the injury that is risked
22
Bolton v Stone [1951] A.C. 850
Facts: P was standing on the highway in a road
adjoining a cricket ground when she was struck by
a ball which a batsman had hit out of the ground.
Balls had occasionally been hit out of the ground
before. However, there was a seven-foot fence
around the cricket ground, there was quite a
distance from the pitch to the edge of the ground,
and there was an upward slope of the ground in the
direction in which the ball was struck.
23
Held: Taking into the account the distance from
the pitch to the edge of the ground, the
presence of a seven-foot fence and the
upwards slope of the ground in the direction in
which the ball was struck, the likelihood of
injury to a person in P’s position was so slight
that the cricket club was not negligent in
allowing cricket to be played without having
taken additional precautions such as increasing
the height of the fence.
24
Hilder v Associated Portland Cement
Manufacturers Ltd. [1961] 1 W.L.R. 1434
Facts: P’s husband was riding his motorcycle
along a road outside a piece of open land
occupied by Ds and where children were
permitted to play football. A ball was kicked
into the road causing P’s husband to have an
accident
25
Held: In view of the likelihood of injury to
passers-by, Ds are liable for having permitted
football to be played on their land without
having taken any additional precautions
26



It is necessary to balance the risk against the
consequences of not taking it
In Daborn v Bath Tramways, where it was held
that a left-hand-drive ambulance driver
during the emergency period of war was not
negligent in turning right without giving a
signal
Thus, where the purpose to be served in
talking the risk is sufficiently important to
justify the taking of that risk, the defendant is
not liable (Watt v Hertfortshire County
Council)
27


The risk must be balanced against the measures
necessary to eliminate it, and the practical measures
with which the defendant could have taken must be
considered (Latimer v A.E.C. Ltd)
Latimer v A.E.C. Ltd. [1953] A.C. 643
Facts: A factory floor became slippery after a flood. The
occupiers of the factory did everything possible to get
rid of the effects of the flood. Nevertheless, P was
injured and then sought to say that the occupiers
should have closed down the factory.
Held: The risk of injury created by the slippery floor was
not so great as to justify so onerous a precaution as to
close down the factory.
28



P’s damage must have been caused by D’s
breach of duty and must not be too remote a
consequence of it
Remoteness of damage is concerned with the
question whether damages may be recovered
for particular items of P’s loss
This means that one has to ask whether the
breach of duty was the primary cause of the
damage
29
Barnett v Chelsea and Kensington Hospital
Management Committee
Facts: Early one morning P’s husband went to D’s
hospital and complained of vomiting after drinking tea.
The nurse on duty consulted a doctor by telephone and
the doctor said that he should go home and consult his
own doctor later in the morning. P’s husband died of
arsenical poisoning.
Held: In failing to examine the deceased, the doctor was
guilty of a breach of his duty of care, but this breach
was not a cause of the death because, even if the
deceased had been examined and treated with proper
care, the probability was that it would have been
impossible to save his life. P’s claim therefore failed
harkiranpals@help.edu.my
30



In The Wagon Mound [1961] A.C. 388, the
Privy Council that the foresight of the
reasonable man alone can determine
responsibility.
Test – reasonably foreseeable
In negligence, foreseeability is the criterion
not only for the existence of a duty of care
but also for remoteness of damage
harkiranpals@help.edu.my
31

The Wagon Mound [1961] A.C. 388 test of
reasonable foreseeability of harm has been
applied by the Malaysian Courts in: ◦ Government of Malaysia & Ors v. Jumat bin
Mohamed & Anor
◦ Jaswant Singh v. Central Electricity Board & Anor
◦ Arab-Malaysian Finance Bhd. v. Steven Phoa Cheng
Loon & Ors.
harkiranpals@help.edu.my
32




Whether a particular harm was reasonably foreseeable is a
question of fact that depends upon the peculiar facts of each
(Jolley v. Sutton London Borough Council)
Applying the general principles given above in respect of
remoteness, it is clear that consequences which are intended
are never too remote
Lord Lindley in Quinn v. Leatham said, ‘The intention to injure
the plaintiff … disposes of any question of remoteness of
damage’
Example: ◦ If a man throws some fire crackers intending it as a joke and P’s
eye is injured as a result, he would be liable
◦ If a woman hits a man on the head with a hammer, she cannot
raise the defence that the man’s head wad hurt badly because he
had a ‘thin skull’
harkiranpals@help.edu.my
33


Contributory negligence
Volenti non fit injuria
harkiranpals@help.edu.my
34


At common law, if P’s injuries have been
caused partly by the negligence of D and
partly by his own negligence, then, P can
recover nothing
It is clear that this rule is a harsh one and
hardship is cause especially where P’s
negligence was not the major cause of the
accident
harkiranpals@help.edu.my
35

S12 of the Civil Law Act 1956 provides:
“Where any person suffers damage as the result partly of his
own fault and partly of the fault of any other person or
persons, a claim in respect of that damage shall not be
defeated by reason of the fault of the person suffering the
damage but the damages recoverable in respect thereof shall
be reduced to such extent as the Court thinks just and
equitable having regard to the claimant’s share in the
responsibility for the damage.”
By the same section ‘fault’ means negligence, breach of
statutory duty, or other act or omission which gives rise to
liability in tort or would, apart from the act, give rise to the
defence of contributory negligence
harkiranpals@help.edu.my
36



All that is required to provide contributory
negligence is that P has failed to take reasonable
care for his own safety and that P’s lack of care for
his own safety was a contributory factor to the
accident which caused his damage
P is not guilty of contributory negligence if his
conduct could not have been foreseen as likely to
result in his own injury
A person is guilty of contributory negligence if he
ought reasonably to have foreseen that, if he did
not act as a reasonable prudent man, he might hurt
himself and in his reckonings he must take into
account the possibility of others being careless
harkiranpals@help.edu.my
37




As provided in s12 of the Civil Law Act 1956, in
the case of contributory negligence, the
damages recoverable by P are to be reduced ‘to
such extent as the court thinks just and
equitable having regard to the claimant’s
share in the responsibility for the damage’
In apportioning the damage, the court is
directed to do what is ‘just and equitable’
The matter is thus one for the discretion of the
court
The courts generally consider the extent of P’s
lack of care for his own safety as a major factor
harkiranpals@help.edu.my
38


100% defence
Plaintiff is 100% at fault for his own injury
harkiranpals@help.edu.my
39
40