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INTERNATIONAL ISLAMIC UNIVERSITY OF MALAYSIA

MAIN CAMPUS GOMBAK

CASE LAWS RESEARCH on


STANDARD DUTY OF CARE OF DRIVERS
SEMESTER 1, 2010/2011
DR SONNY ZULHUDA
SECTION 1
TUTORIAL WED, 2-3PM

Member’s Name Matric No.


Naeemah Munirah binti Abdullah (1011100)
NoorKhairunnisa binti Kamaruzaman (1012734)
Nadra Fatima binti Mannan (1016122)
Mashitoh binti Mat Isa (1013896)

INTRODUCTION

I
n torts, the law has drawn a line at each acts or omissions of wrong doings with aim
to compensate the injuries or damage suffered by a person. That line in the cases of
negligence is standard of care varying to reasonable persons and circumstances.
Hence, whoever that cross the line can be liable for negligence, i.e breach of duty. The
principle of standard of care of reasonable man established in Glasgow Corporation v.
Muir [1943] AC 448, at 456:

The degree of the care required on the particular facts depends on the
accompanying circumstances, and may vary according to the amount of risk
to be encountered. Those who are engaged in operations inherently
dangerous must take precautions that are not required of persons engaged in
the ordinary routine of life.

Driver also does not exclude from this principle as his also has standard of care to other
road-users. Accident is occurred frequently that mainly due to man’s negligence as
fallen below the standard of care of competent and prudent driver. It is important to
have and identify standard that ‘eliminates the personal equation and is independent
of the idiosyncrasies of the particular person whose conduct is in question.’1
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1
Per Lord Macmillan in Glasgow Corporation v Muir [1943] 2 ALL ER 44 at 48
CASE REVIEW on
ROBERTS AND OTHERS V RAMSBOTTOM [1980] 1 ALL ER 7

MATERIAL FACTS:
Plaintiffs : Arthur Ramsbottom
Defendants : 1st Owner Jack Roberts
nd
2 Driver Jean Roberts (his wife)
rd
3 Passenger Karen Jane Roberts (their 16 years old daughter)
Judges : Neill J
Court : Queen’s Bench Division at Manchester

One morning a 73 year old accountant was about to drive his wife to the office some 2
½ miles away when he suffered a quite unheralded stroke which impaired his consciousness
considerably. He forgot all about his wife and drove off. He managed to negotiate a few
corners but then struck a parked van. He told the van- driver he felt all right and continued his
progress. Next he knocked a boy off his bike and finally rammed the plaintiff’s stationary car
and injured the family by it. He was held liable despite his curious condition because it fell
short of automatism and complete loss of consciousness, and because after striking the van he
should have realised that he was unfit to continue driving.

ISSUE
Whether the defendant’s physical condition absolved him from liability for negligence?

PRINCIPLES
1. Every driver must drive in a good manner with skill experience and care, which is
sound judgment, good sense of eyesight and hearing and is free from infirmity.2
2. The liability of a driver is not a strict liability as dangerous driving is an absolute
offence. It is must be proven sufficiently the fault, a falling below the care or skill of a
competent and experienced driver.3
3. Defence is provided for dangerous driving if in the circumstance of sudden event;
sudden affliction or defect in the vehicle.4
4. Driver should have realised that he was unfit to drive.5
5. Defence of automatism must be total loss of consciousness not impairment of
consciousness (malfunction. Driver is remains liable albeit imperfect control if he
below the required standard of care which made his position is the same as a driver
who is old or infirm.6

RATIO DECIDENDI (JUDGEMENT)


Held - the defendant was liable on the ground that he had continued to drive when he
was unfit to do so and should have been aware of his unfitness:

1) He was not able to escape liability unless he in the state of automatism.


2) He remained liable in the same way as a driver who was old or infirm if he retained
some control albeit imperfect and his driving judged objectively, was below the
required standard.

2
See at 13. Per Lord Denning MR in Nettleship v Weston [1971] 3 ALL ER 581 at 586, 589
3
See at 13. Per Megaw LJ in R v Gosney [1971] 3 ALL ER 220 at 224
2

4
See at 13, 14. Per Salmon J in R v Spurge [1961] 2 ALL ER 688 at 690
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5
See at 14. Per Lord Clyde in Waugh v James K Allan Ltd [1964] 2 Lloyd’s Rep I at 2
6
See at 15. Refer in Hill v Baxter [1958] I ALL ER 193
CASE REVIEW on
K.R. TAXI SERVICE LTD. & ANOR. V. ZAHARAH [1968] 1 MLJ 49

MATERIAL FACTS:
Appellants : 1st Driver
nd of the Taxi
2 Owner
Defendants : Driver of motorcar
Judges : Ong Hock Thye, Suffian and McIntyre F.JJ
Court : Federal Court of Kuala Lumpur

The deceased was a passenger in the appellant’s taxi traveling from Kuantan to
Temerloh along the Maran trunk-road when a private motor-car, owned and driven by the
respondent, going in the opposite direction, suddenly crossed the path of the taxi in order to
turn off into a minor side-road on his right leading to Chenor. In the resultant collision, the
deceased suffered fatal injuries. Appellants appealed against the apportionment of liability.

ISSUE
Whether a driver of motor vehicle should take into consideration the possibility of the
common follies of drivers or not.

PRINCIPLES
1) The duty of a driver is only to exercise reasonable care; he is not under a duty to be a
perfectionist in the sense of being able to anticipate other drivers acting in a negligent
or irresponsible manner.7
2) Driver is not bound to anticipate folly in all its forms but he must not put out of
consideration the teachings of experience as to the forms dos follies commonly take.8

RATIO DECIDENDI (JUDGMENT)


Held - appeal was allowed in respect of the 2nd appellant liability for contributory
negligence:
1) It was held that the duty of a driver is only to exercise reasonable care; he is not under
a duty to be perfect in the sense of being able to anticipate other drivers acting in a
negligent or irresponsible manner.
2) In this case there was no evidence to show that the taxi driver failed to exercise
ordinary care and skill and therefore he could not be held to blame for the accident
3

7
See at 53. Per William LJ in Edwards v. Nobbs (1963), 1st Supplement to Bingham’s All the Modern Cases
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on Negligence (2nd Ed.) unreported Court of Appeal decision.


8
See at 53. Per dicta of Lord Uthwatt in London Passenger Transport Board v. Upson [1949] AC 155 at 173
CASE REVIEW on
ZAINAP BTE ABD MAJID & ORS V GAN ENG HWA & ORS [1995] 1 MLJ 801

MATERIAL FACTS:
Plaintiffs : The injured passengers of motor car driven by one Encik Taib
Defendants : 1st Driver of the lorry which parked on the wrong side of the road
nd along highway for loading oil palm
2 Owner
rd
3 Driver
th of the Express bus
4 Owner
Judges : Richard Talalla J
Court : High Court (Muar)

A loading lorry parked along the highway had caused obstruction. A motor car which
carried the plaintiffs was driven by Encik Taib at excessive speed. The motor car collided
with oncoming bus (Express) when overtaking Muar Express caused by trying to avoid the
obstruction. Encik Taib and three of his passengers were killed. The plaintiffs suffered
injuries and claimed damages against the driver and owner of the lorry (the first and second
defendants, respectively) in negligence and/or nuisance; and the driver and the owner of the
Express (the third and fourth defendants, respectively) in negligence.

ISSUES:
1. What is the standard of care for drivers of vehicle?
- Whether Encik Taib is negligent in his driving or not
- Whether the lorry driver is negligent in his parking to cause obstruction or
not.
2. Whether the cause of damage due to the obstruction of lorry is remote or not
towards the accident.

PRINCIPLES:
1. Driver who is fallen below the standard of care by driving at an excessive speed in
some circumstances and failed to ascertain the situation is safe before overtaking
other vehicle.
2. Road user (driver) must keep a proper look-out when parking his vehicle without to
cause obstruction to others.9
3. Driver should reasonably have foreseen any possibilities that could resulted damage
to others due to his act or omission and had a duty to take reasonable care to avoid
it.10
4. The cause of damage by driver’s negligence must be not too remote.11

9
See at 808. As to the finding of negligence, Richard Talalla followed the dissenting judgment of Per Ong CJ
in appeal case of Chan Loo Khee v Lai Siew San & Ors [1971] 1 MLJ 253, at 254 and 255:
10
See at 809. (By referring the famous test of Lord Atkin in Donoghue v Stevenson [1932] AC 562 at 580.
11
See at 810. Per Lord Denning in the of Lloyds Bank Ltd v Budd & Ors [1982] RTR 80, at 83 by
4

referring to the principles laid down in Harvey v Road Haulage Executive [1952] 1 KB 120 and Rouse v
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Squires [1973] 2 All ER 903; [1973] 2 WLR 925.


RATIO DECIDENDI (JUDGEMENT):
Held - finding the third defendant completely not negligent and apportioning liability
equally between the first and second defendants on the one part, and Encik Taib on the other
part:

1) Encik Taib was negligent in driving at an excessive speed and failing to ascertain
that the situation was safe before he overtook the Muar Express.
2) However, in cases where a vehicle is parked in such a way so as to cause
obstruction and peril to the other road-users, that vehicle, by negligence and
nuisance, is also to blame. It is trite law that an alternative claim in negligence and
nuisance is permissible.
3) The lorry was parked on the road needlessly and selfishly and in such a way as to
cause obstruction and danger to other road-users. The first defendant should
reasonably have foreseen that a collision such as that which actually happened, would
occur and therefore, he had a duty to take reasonable care to avoid it. Any person with
common sense would not have parked the lorry on the Muar-Batu Pahat main road,
day or night, facing the wrong way, as it could set a trap for overtaking vehicles
proceeding in the direction of Muar and could cause confusion.

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COMPARISON BETWEEN ENGLISH AND MALAYSIAN CASES

Comparison was made between a English case, Roberts & Ors v Ramsbottom [1980]
and two Malaysian case, K.R. Taxi Service Ltd. & Anor. v. Zaharah & Ors. [1968] and
Zainap bte Abd Majid & Ors v Gan Eng Hwa & Ors [1995] based on material facts and the
principles pertaining standard of care of drivers that applied in each case.

The similarities between these cases are collision involves two vehicles and the
defendants are liable for their negligence or contributory negligence to the accident. Most
importantly each case followed the same high standard to be applied every driver must drive
in a good manner with skill experience and care including to drivers who are old or ill.

The differences are the circumstances that lead to the accident as in Roberts & Ors v
Ransbottom, the collision is between a static car and a moving car due to unfitness of the
defendant meanwhile in K.R. Taxi Service Ltd. & Anor. v. Zaharah & Ors., the collision
between a car and taxi in during the car turning across the path of oncoming traffic. In
Zainap bte Abd Majid & Ors v Gan Eng Hwa & Ors, also has different scenario as collision
between an oncoming bus and a motor due to driver speeding added with obstruction of a
lorry. Moreover, the conditions of road as in Roberts & Ors v Ramsbottom happened on the
busy road meanwhile the other two Malaysian cases happened on highway. Besides that, in
Roberts & Ors v Ramsbottom is concerning the issue of physical and mental condition of the
driver meanwhile the other two Malaysian cases are concentrating the issue of normal
mental state of reasonable person to exercise reasonable care and attention on the road.

THE APPLICATION OF STANDARD OF CARE OF DRIVERS IN MALAYSIAN CASES

As a conclusion, the application of standard of care of drivers in Malaysian case is on


the line laid down by the same principles of English law. As one of the landmark cases in
Malaysia is K.R. Taxi Service Ltd. & Anor. v Zaharah & Ors., which is Federal Court case
is an authority case that establish a important principle regarding the duty of a driver is only
to exercise reasonable care; he is not under a duty to be a perfectionist in the sense of being
able to anticipate other drivers acting in a negligent or irresponsible manner. Plus, he is not
bound to anticipate folly in all its forms but he must not put out of consideration the teachings
of experience as to the forms dos follies commonly take.

Nevertheless, the case of Zainap bte Abd Majid & Ors v Gan Eng Hwa & Ors, a High Court
case should not be set aside as the principle that has been established is from the extent of
‘neighbourhood principle’ of the famous test Lord Atkin in Donoghue v Stevenson. This
case has signifies an important principle which is road user (driver) must keep a proper look-
out when parking his vehicle without to cause obstruction to others. And he should
reasonably have foreseen any possibilities that could resulted damage to others due to his act
or omission and had a duty to take reasonable care to avoid it.
Lastly, both cases are relevant authority and precedent in order to establish the standard
of care of drivers and to apply in other cases which are related to.
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APPENDIX

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