Duty of care-negligence

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Under the duty of care, there is another test used by the court in determining whether there is negligence in carrying out the duty of care which lead to the other person suffering from the damage as a consequences of the act. The test said in the above is called the Caparo( composite) test. This test is based on the principle established in the case of Caparo Industries plc V Dickman. In the case, Lord Bridge acknowledged that the law’s tendency had been reverted to the traditional categories of recognizable situations in the imposition of a duty of care. In accordance to this principle, instead of the plaintiff needing to establish a duty, proving that his situation falls squarely into any of the recognized categories, the plaintiff only needs to established that the duty of care arises in his situation because it accords with existing policy and decisions in other comparable cases.[1] The general rule of this principle is that a plaintiff who suffers physical damage to his property will not have difficulty in establishing a duty of care. This situation is seen in the case of Marc Rich & Co AG V British Rock Marine Co Ltd. In the case, it involve a vessel belonging to the first defendant carrying the plaintiff’s cargo. In the mid of the voyage, the ship had developed a crack. The first defendant called in the marine classification society, the third defendant, which then surveyed the ship and eventually gave the ship a certified proof to continue its voyage. Unfortunately, after a several days, the ship sank, in consequence the plaintiff’s cargo which worth about six million pound was lost. Part of the sum was recovered from the first defendant, the balance is claimed from the third defendant.[2] In the case above, it is not difficult to see that the surveyor had acted in negligent while inspecting the ship before giving the green light for the ship to continue its voyage. It is also foreseeable in the case that the said act could possibly cause the ship to sink, causing physical damage suffered by the plaintiff after his goods was lost. But in this case, the House of Lord, in a majority judgment founded that the third defendant did not owe any duty of care, this decision is according to policy factors, primarily insurance plays a bigger role. As a result from the case, the principle was established in the development, from its establishment the English court are more cautious when faced with cases involving facts showing duty of care and facts not showing the duty of care. By referring to the case of March Rich, it is decided that in cases like this there are three factors that must be fulfilled to established a duty of care. First is the damage is reasonably foreseeable. Second, is there a close and direct relationship of proximity between the plaintiff and the defendant and third, the circumstances as a whole must be such that it is fair, just and reasonable for the imposition of a duty of care. Under the principle, it uses the foreseeable concept to measure, the court will determine whether or not the plaintiff is a foreseeable victim or not. This concept also involve the use of proximity between the parties, is it close enough to satisfy the proximity that is needed to establish the duty of care. In Malaysia, the application of this test is straight forward, in ascertaining the existence of the duty of care. For the first element, an early example of its usage in Malaysia is in the case of Sathu V Hawthornden Rubber Estate Co Ltd. In this case, it involve nineteen heads of cattle which belonged to the plaintiff strayed onto the estate of the defendant while grazing. The estate had been sprayed with sodium arsenate a few days before and resulting in the death of the plaintiff’s cattle grazing in the area of the estate. In this case, the plaintiff alleged the breach of common law duty to a ‘neighbour’ committed by the defendant under the principle from the case of Donoghue V Stevenson. It was held that the principle cannot be apply in this case because the death of the cattle was not foreseeable because the defendant does not know that the plaintiff’s cattle would stray into the estate.[3] The above case is used in the test that the circumstances must be just and reasonable, it is the same as in the case of Lok Kwan Moi & Ors V Ramli B. Jamil & Ors & Government of Malaysia. The case involve the arrest of fisherman who are gambling, they all jumped into the river but was arrested in upon reaching the land, but one particular fisherman having difficulty swimming was drown. It was alleged that before the drowning another fisherman was trying to help but was chased off by the police, in the circumstances it was thought to be foreseeable for any reasonable man to foreseen that the fisherman would likely drown. It was held that the policeman and the Government were liable to the death of the fisherman. [4] For the second element, it involve the use of the neighbor principle as used in the case of Donoghue V Stevenson and used in the case of Sathu V Hawthornden Rubber Estate Co Ltd. This can be seen also on the case of Abdul Malik bin Idrus & Ors V Tan Jee Han. This case uses the neighbor principles in proving the duty of care of the first appellant towards the respondent had been breached. This can also be seen in the case of Syarizan bin Sudirman & Ors V Abdul Rahman bin Bukit & Anor. In this case, it involve the plaintiff receiving injury caused by a pursuing policeman, kicking his motorcycle in order to force him to stop, which caused him to crash and sustain serious injury. The question before the court was whether the policeman had breach his duty of care towards the plaintiff when he kicked the motorcycle, the court in this case found in favor of the plaintiff that the policeman did not exercise care and skill as was reasonable in all circumstances.[5] In the two cases of Abdul Malik bin Idrus & Ors V Tan Jee Han and Syarizan bin Sudirman & Ors V Abdul Rahman bin Bukit & Anor it could also be used in determining the existence of the third element, which is whether the circumstances as whole must be such that it is fair, just and reasonable for the imposition of a duty of care. For example in the two cases, the court established in what situation is the policeman is liable to have breach their duty of care and when do the duty of care is impose on them. There is also questions raised, whether in using this principle does it apply in cases involving damages which is purely economic in nature. In the case of Arab-Malaysian Finance Bhd V Steven Phoa Cheng Loon & Ors, it involves the collapse of several block after a continuos rainfall for ten days many lost their lives as a consequence to the collapse. There were three blocks of apartment involve in this litigation, the 2nd and 3rd block brought an action against ten defendants because the first block caused the collapse of the two blocks. Some defendant was dismissed, there is only a few defendant left the local authority, the owner, the engineer, another owner of the adjacent land and the person who provides management services. In this case it did not refer to the case of Uniphone Sdn Bhd V Chin Boon Lit & Anor in determining the duty where the loss occasionally was purely economic, in this case it was thought that the foreseeability test and neighbor principle was sufficient in proving the duty of care towards the plaintiffs.[6]
[1] [1990] 1 All ER 568, HL [2] [1995] 3 All ER 307, HL [3] [1961] MLJ 318 [4] [1984] 1 MLJ 46 [5] [2010] 8 MLJ 530 [6] [2003] 2 AMR 6, CA
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