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QUESTIONS :

Shahrol received a new Perodua Axia from her parents as


her 21 birthday present. Happy and excited with the
new car. Shahron drove to the playground nearby her
house and parked her by the road side. When Shahron
opened her car door, she knocked into Jazly who was
riding the bicycle. Jazly fell down and suffered minor
injuries on his elbows and knee Jazly intends to take a
legal action against Shahron for the injuries suffered.

Issue :
Whether Jazly can take legal action against Sharon?

General rules :
Negligence could be defined as conduct that falls below the standard of
behavior established by the law or reasonably prudent person acting under
similar circumstances. Every person has his own legal duty depends on
circumstances in order to protect others against unreasonable risk of harm.
Elements for Negligence
1) Existence duty of care
To sue for negligence, the plaintiff must prove to the court that the
defendant has a duty of care towards him.
Literally, under the law, the case of Donaghue v. Stevenson
(1932) AC 562 introduced the test to establish the duty of care by
the defendant. This test is known as the neighbour principle. The case
involved Mrs Donoghue who drank a bottle of ginger beer bought by
her friend. She fell ill when she found that the ginger beer. During that
time, in order to sue for negligence the plaintiff must have a contract
relationship with defendant. However,the judge in this case introduced
the neigbour principle, where now to sue for negligence, the plaintiff
must show that the defendant had a legal duty of care towards the
plaintiff. It was held that the manufacturer owed a duty of care to her
who was the consumer of ginger beer.
In hospitality, tourism and travel industries , children are also part
of their invitees and according to the case of Waugh v. Duke
Corp248 F.Supp. 626 (M.D. N.C 1996), the service providers owed
extra duty of care to children. This case involved a child who walked
into a glass panel connecting between the courtyard and the guest
room. The glass broke and the pieces injured the child that required
serious surgical operation. The Court held that the defendant wa
negligent due to the fact that the management failed to warn the child
and there were no guards to construct the panel.

2) Breach of Duty to Act Reasonably


Once the plaintiff able to prove that the defendant owed him a
duty of care, the next
element that must be shown is that the defendant has breached that
duty to act reasonably.
Marva Thomas v. Grand Hyatt Hotel957 F.2d is an
example of case where the plaintiff was not successful in the
negligence claim. The plaintiff was modeling clothes on a stage
prepared by Grand Hyatt Hotel. While the plaintiff existed the stage,
she slipped and fell which as a result she injured her foot and ankle.
She sued Grand Hyatt Hotel for negligence. It was held that the
plaintiff failed to show that there was a dangerous condition which the
defendant ought to notice but failed to eliminate the risk despite that
the defendant did have a duty of care towards her. Hence, there was
no breach of duty of care from the defendant.

3) Damages
The final element that must be shown by the plaintiff is that he has
suffered damage. Damage may include, physical injury, emotional injury,
monetary loss and property damage.
Although the plaintiff has suffered damage, the question that the
court would ask is whether there was foreseeable connection between the
damage suffered by the plaintiff and the defendants unreasonable action.
This test is called the foreseeability test.
Defence

Contributory Negligence

Is negligence made by the plaintiff where he owes duty of care


on himself. In other words, the injury suffered by the plaintiff is
partially caused by his own negligence.
Inevitable Accident
- Is a defence normally used when the negligence case involved
machines.

Volenti non fit Injuria


- Latin phrase that is translated as to a willing person, injury is
not done. The concept is that when someone willingly place
himself in a condition which he is aware of the risk to be harmed,
he may not able to claim for any Tort action later on if he did
sufferd harm.

Act of God
- Full defence whether how careful or dangerous condition being
eliminated by the defendant, the harmful situation still
happening.

Application :
-

In this case , Jazly can sue Sharon because Sharon has careless
when he opened his car door and dont look around so this
elements is in the existence duty of care.
Morever, Jazly can sue Sharon because Sharon not parked his car
to the right place because in this case Sharon parked the car on
the roadside which are danger to the people. He must parked the
car at the car park provided on the playground. This element can
be seen in breach of duty to act reasonably.
Lastly, Jazly can sue Sharon because he has fell down and
suffered minor injuries on his elbows. This can see on element
damage.

Conclusion :
Jazly can take legal action and sue against Sharon on the tort of negligence.