Negligence

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TORT
The Law of Tort is almost
entirely based on case
law, although there is
legislation which affects
certain aspects of tort
law. Accordingly, with
some exceptions,
Singapore tort law relies
on and largely follows
English case law.
Consider this situation:
Mr Fish and his wife booked into Suredie Hotel.
They requested for a double-bed room for Mr
Fish and his wife. When Mrs Fish was
showering in the room the facet of the shower
head came loose and hit her in the face. There
was a sudden gush of hot water that scalded her
body. Mrs Fish had to be hospitalized. Mr Fish
had lunch in the hotel cafetaria. He ordered
some scramble eggs. Owing to lack of hygeine
Mr Fish suffered from salmonella poisoning and
he too had to be hospitalized. Advise Mr and
Mrs Fish as to what they can do.
As Sally was entering the ladies restroom – she
did not notice that the floor was wet. Janet the
cleaner had just cleaned the floor of the restroom
and it was wet and slippery. Because of the
slippery floor – Sally fell and hit her head
against the toilet bowl and had to be sent to the
hospital to treat for her head injuries. Sally now
wants to sue Janet. Can she do so?
What is the case of Donaghue v Stevenson all about?
The appellant’s friend bought a bottle of
ginger beer for her. The appellant drank it.
At the bottom of the bottle, she found a
partially decomposed snail. She claimed she
suffered gastroenteritis as a result of the
presence of the snail in the bottle.
She could not sue in contract
because she did not buy the ginger
beer. She sued in tort. The House of
Lords held that the manufacturer of
the ginger beer was liable in
negligence.
Lord Atkin referred to the parable of the Good Samaritan in St
Luke’s Gospel and thereafter enunciated his famous ‘Neighbour
Test’
“The rule that you are to love your neighbour
becomes in law, you must not injure your
neighbour…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.”
Duty
of
Care
Damages
Negligence
DONAGHUE
V
STEVENSON
Remoteness of
damage
Breach
Of
Duty of care
Duty
of
Care
Blyth v Birmingham Waterworks
(1856)
Negligence
Breach
Of
Duty of care
Example:
Jonathan invited his friends to
his house for a party. He told his
friends to be careful when they
come to his house as there is a
deep pothole in the garden. He
even put up a sign to indicate the
pothole. Steven did not pay
attention to Jonathan’s warning
fell into the pothole and injured
himself badly. In this case
Steven cannot sue if Jonathan
can show that he has taken all
reasonable steps to prevent such
injuries from occurring.
Example:
If Jonathan’s son who is 9 year
old invites his friends to the
house and Jonathan tells them to
be careful of the pothole and puts
up a sign to warn them – this
might be insufficient as being 9
year old children they may not
understand the magnitude of the
danger involved and thus if one
of them falls, Jonathan may be
liable. In this case, he has to
take extra precaution to ensure
that such injuries does not occur.
Level of Skill
As a general rule, the level of skill
required is that of the reasonable man
in the shoes of the defendant. If the
defendant is a doctor, then the standard
of care expected is that which a
reasonably competent doctor will
exercise; if the defendant is a
pediatrician, then the standard of care
expected is that of a reasonably
competent pediatrician. It follows that
if a defendant follows the accepted
practice in his profession, there is a
strong likelihood that he has met the
standard of care expected of him.
Bolton v Stone (1951)
The plaintiff was struck by a cricket ball
while standing on the street outside her
Generally if the likelihood of injury
house. Her house was located near a cricket
to the plaintiff is high, then the
field operated by a cricket club represented
court will require a higher standard
by the defendant. Normally, batsmen on
of care upon the defendant.
the field did not hit the cricket ball so hard
Correspondingly, if the likelihood of
that the ball would reach her house.
the injury occuring is low or
Evidence showed that such good batting
negligible, the standard of care is
was rare- it occurred six times in the past
lower.
30 years. The House of Lords, held that,
although there was a duty of care owed to
the Plaintiff, the duty was not breached.
The chances of such accidents were too
small for the cricket club to take steps to
prevent them.
Seriousness of Injury
Paris V Stepney Borough Council (1951)
The P, who had only one good eye,
was employed by the D. The D
failed to provide goggles to the P
for his work. While working, the P
injured his one good eye and sued
his employer. The HL held that
the failure to provide goggles may
be overlooked in the case of other
employees who has two good eyes.
However, the failure to provide
goggles for the P was a breach of
duty because the P only had one
good eye.
Daborn v Bath Tramways Motor Co. (1946)
During the last war in England a number of ambulances
on the road had been imported from USA with left
hand drive. Evidently the resources were not available
to convert them to right hand drive. As electrical
indicators did not then exist it was impossible for
drivers of these vehicles to indicate that they were
turning right. On one such occasion an accident
ensured and the driver was sued for negligent driving.
Damages
Negligence
Causation
Just as in the law of contract, the damage suffered
by the P who is making his claim in negligence
must have resulted from the breach of duty by the
D. In other words, causation must be established.
A common test used to determine causation is the
‘but-for test’. According to this test, if the P would
not have suffered damage but for a certain event,
then that event is a cause of the damage.
Barnett v Chelsea & Kensington Hospital (1969)
The P’s husband, a night watchman, was poisoned
with what turned out to be arsenic. He was taken to
the hospital casualty department but the hospital
doctor was negligent and failed to examine him. The
doctor told the nurse, by phone, to send the husband
home. The husband died at home five hours later.
The P sued the hospital. The court held that there
was a duty of care owed by the hospital to the
husband and this duty was breached. However, the
doctor’s negligence did not cause the husband’s death
because, even if the correct medical treatment has
been given, death would have taken place anyway.
What is Remoteness of Damage?
• This is when a person
suffers injury or
damage which is so
uncommon that the
courts feels that the
defendant should not
be held responsible.
See Wagon Mound case.
Owing to his negligence, Sam spilt some chemical
on the floor near the doorway. Sally, Jane and Peter
came by and not realising the floor was slippery
owing to the chemical spill, slipped and fell down.
All three of them suffered from broken bones and
had to be hospitalised. After, one month, Peter
developed a rash on his skin. Test from the hospital
showed that this was due to a severe skin allergy
cause by the chemical contact. This kind of allergy
only affect one in 100 000 people. It so happened
that Peter was the unfortunate one. In this case,
Sam will be liable for the broken bones suffered by
all three but he may not be liable for the skin rash if
it is held to be remote and therefore unforeseeable.
Re Polemis (1921)
The plaintiff owned the ship, Polemis,
which was chartered to the D. The D
allowed a plank to fall into the hold of the
ship. The hold happened to contain some
petrol vapour. The vapour ignited because
of a spark created by the plank falling into
the hold. The ship was subsequently
destroyed and the P sued the D. The court
held that the presence of the petrol vapour
in the hold was not foreseeable.
Nevertheless, the D was held liable for the
total loss of the ship because the fire was a
direct result of the D’s breach of duty in
allowing the plank to fall into the hold.
This is the direct consequences test.
The Wagon Mound
The defendant were charterers of a ship,
were careless when loading fuel oil into a
ship at the plaintiffs wharf and split a large
quantity of it on to the water. The oil
spread to another part of the plaintiff’s
wharf where welding was taking place.
Welding sparks ignited the oil and the
wharf was burnt. The court held that
although it was foreseeable that the oil may
foul the wharf, it was unforeseeable that
the oil would catch fire and burn the
wharf. Damages were therefore not
awarded for damage caused by the fire as
the damage was too remote.
What is the impact of the Wagon
Mound decision?
The decision in the case of
Wagon Mound is that although
there may be a negligent action
that leads to damage, the
damages is not recoverable if it is
not reasonably foreseeable that it
can happen. This is to ensure
that the defendant is not
subjected to unnecessary
lawsuits.
In foreseeing the damage, it is not necessary to
foresee the exact damage actually suffered by the P
as a result of the D’s breach of duty. It is sufficient
if the type or kind of damage is reasonably
foreseeable. As to what this encompasses, reliance
must be placed on judicial discretion in view of the
unique facts of each case.
Bradford v Robinson Rentals Ltd (1967)
The D sent the P driver on a long drive in an unheated van
during very cold weather. As a result, the P suffered
frostbite and sued the D in negligence. The court held that
the injury from the cold weather was foreseeable,
although frostbite was not. However, frostbite is a type of
injury, which arises from cold weather. Accordingly, the P
was allowed to recover damages for frostbite.
Smith v Leech Brain & Co (1962)
The P had a pre-malignant cancer on his lips. The D
negligently allow the P, in the course of his work, to
be burned around his mouth. The burn triggered the
P’s cancer and he subsequently died. The P’s estate
sued the D in negligence. Lord Parker CJ held that a
D has to accept the P as the D finds him. Here, the P
has an existing pre-disposition to cancer. Although it
was not generally foreseeable that a burn around the
mouth could lead to cancer and death, the P’s existing
pre-disposition meant that the damage was not too
remote. The P’s physical weakness (hence the term
‘egg-shell skull’) exarcebated his injury and the D
had to accept this fact.
Contributory
Negligence
Example ofContributory Negligence
Sambo was crossing the road when the
‘Red Man’ signal was still on and
Rambo was driving his bus at 70 kph
when the speed limit was only 40 kph.
Rambo crashed his car into Sambo
severely injuring him. In this case
Rambo was negligent and can be sued
by Sambo. But it could also be said that
Sambo was contributorily negligent as
well. In such a case, Sambo’s claim
will probably be reduced.
See: Ng Weng Cheong v Soh Oh Loo case.
Scott v London & St Katherine Docks (1865)
As the P was entering the doorway of
the defendant’s warehouse, six sack of
sugar fell from a crane onto him. The
P sued in negligence. The court held
that negligence was established
without having to establish the fact
that the D breached its duty of care to
the P.
Res Ipsa was established
because the sacks of sugar were under
the control of the D and the accident
could not, in the ordinary course of
things, have occurred without the
negligence of the defendant.
Teng Ah Kow & Another v Ho Sek Chui & Others (1993)
The two appellants were cooks employed by the first two
respondents in the respondents’ restaurant. They suffered severe
burns on 13 September 1986 when an explosion occurred in the
restaurant kitchen because of a defective gas cylinder supplied
by the third respondent, Mobil Oil Singapore Pte Ltd. In
allowing the appeal, the Singapore Court of Appeal said that res
ipsa loquitur is a rule of evidence. The essence of res ipsa is that
an event which in the ordinary course of things was more likely
than not to have been caused by negligence by itself is evidence
of negligence. The effect of res ipsa is to shift the burden of
proof to the employers such that they must show they were not
negligent. Here the employers could not show that they took
reasonable care in providing a safe workplace. Hence they were
liable.
GENERAL DEFENCES IN LAW
OF TORT
• Volenti Non Fit
Injuria (Voluntary
Assumption of Risk)
• Necessity.
• Inevitable Accident.
[Act of God]
• Statutory Authority.
• Contributory
Negligence
What is Vicarious Liability?
This doctrine states
that in some
circumstances the
employer is
responsible for the
tort done by the
employee especially
in the course of the
business.
Why is Vicarious Liability important?
Usually between the employer
and the employee the employer
is in a better position to pay off
for the damages or injuries
caused by his employee.
Further, as the employee is
under the direct control of the
employer, it is the employer’s
responsibility to ensure that the
employee does the job properly.
Is the employer always responsible for every
wrongful act of the employee?
The
employer
is
only
responsible to those wrongful
act that the employee does in
the course of his employment.
The employer is not responsible
when the employee does
something which is considered
to be a frolic of his own. That is
it was done without furthering
the employer’s business.
Is the employer still responsible if he tells
the employee not to do a certain wrongful
act and the employee still persist in doing it?
Yes! As long as the employee is working for the
employer, the employer has got the duty to ensure
that the employee does not do any wrongful act. The
employer must take reasonable step to ensure this and
if necessary reprimand and or punish the employee
accordingly. Failure to correct the action of the
employee is considered as if that the employee had the
permission to the wrongful act by the employer.
Negligence
Negligence
Mis-statement
Negligent Act
General Rule:
Injured party can sue the
Tortfeasor for the damage
Sustained as long as it is
Not too remote
Physical Injury
Nervous Shock
General Rule:
Damages may be
claimable if it can be
proven that it was
because of mis-statement
Damages
Economic Loss
Damages
Physical Injury
Injury to person
Nervous
Shock
Economic Loss
Pure Economic Loss
Consequential Economic Loss
Loss of Profit
Loss incurred by the direct
consequent of the
Negligent act or MS
Not claimable
Claimable
Hedley Byrne & Co Ltd v Heller (1964)
CONFIDENTIAL
The P was an advertising agent.
For your private use and
Through its bank, it requested
without
from the D, another
bank, responsibility on the
part
information on
theof the bank or its officials.
[in reply to you
creditworthiness of a company
inquiry…regarding]
Easipower
called Easipower Ltd,
one of the
constituted
D’s banking customers. Ltd.
The Respected
P was
company,
considered good for
doing some advertising
work for
ordinary business
Easipower and wished toits
know
engagements.
Easipower’s financial
standing Your figures are
larger
before continuing with
the than
work.we are acccustomed
In response to the query made byto see…
the P’s bank on behalf of the P, the
D wrote:
Caparo Industries v Dickman & Others (1990)
C was a shareholder in a listed company – Fidelity
PLC. C claimed that, in reliance upon negligently
audited accounts, it brought additional shares in F
and subsequently made a successful takeover of F.
F’s accounts were audited by the D, a firm of
auditors. The issue was whether the D owed a duty
of care to C. The HL held that the D did not owe a
duty of care to C as an individual shareholder. The
accounts, being statutory accounts, were intended
to be used at F general meeting. It was not intended
to be used by individual shareholders or potential
investors when making investment decisions. Thus,
the duty of care is owed to the shareholders in a
general meeting, not to individual shareholders.
Accordingly, the auditors were not liable to C.
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