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LAW 435: Law of Torts 1

(Week 10)
Prepared by : Norziehan Muhamad Fauzi Nuraqilah Shuhada Shaharuddin Faculty of Law,UITM

Question:
Mat was an ambulance driver for Hospital Kelana Jaya. He had just collected Ben, a patient who required immediate treatment for burns he had suffered in an accident at his home. Mat accelerated to a high speed, and activated his siren and lights. Eric a newly qualified driver, panicked while trying to allow Mat to pass, lost control of his vehicle, and crashed into Mats ambulance. Mat suffered head injuries in the accident, and was taken by another ambulance to a nearby hospital. Mat required a large blood transfusion, but due to a shortage in the hospital of his blood type, a very rare blood type, he suffered permanent brain damage. Meanwhile, Andi, a motorcyclist, was also involved in that accident when he was knocked down by Eric, and suffered a broken thigh that left him with a limp and the necessity to use a walking stick. One day he was crossing the road when he had to hurry to avoid a motorcyclist who was approaching him at a very high speed. Because of his restricted movements, Andi panicked and fell over, injuring his back on the kerb. As a result of this, he suffered partial paralysis of his legs. The motorcyclist drove away and cannot be traced.

Advise the parties on the possible cause of action in negligence.

Who is the parties of the action? The Plaintiffs : Ben, Mat, and Andi The Defendant : Eric Issues : -Whether Mat has cause of action against Eric for the permanent brain damage suffered by him. -Whether Eric can be made liable if Ben suffered futher injuries from the accident. -Whether Andi has cause of action against Eric for the partial paralysis of his leg.

Negligence
It can be defined as the breach of legal duty to take care which results in damage, undesired by the defendant. 3 Elements that need to be proved in order to succeed in claim of negligence:
D owed duty of care (DoC) to P D breached that DoC towards P P suffered damage from that breached of DoC

Duty of Care
A person will only be liable in negligence if he is under a legal duty to take care. Examples: Duties owed by driver to other road users,employers DoC toward the safety of the employees. To prove DoC ,must applied the tests in neighbour principle: The damage is reasonably foreseeable A close & direct r/ship of proximity between P & D The circumstances as a whole must be fair,just and reasonable to impose a duty of care. In Malaysia,we apply the neighbour principle to determine the existence of DoC based on cases: Sathu v Hawthornden Rubber Estate Co Ltd(1961) Low Kwan Moi & Ors v Rambli bin Jamil & Ors & G. of Malaysia(1984) Uniphone Sdn Bhd v Chin Boon Lit & Anor (1998)

Breach of DoC
A breach of DoC can be determined by reasonable man test established in Blyth v Birmingham Waterworks Co. (1856):
Whether a reasonable man would do or would not do what the Ds did if he is in the Ds situation at that time.
(Alderson B.)

A reasonable man is just an ordinary man who is not expected to have any particular skill or expertise in some fields unless he is one.

Reasonable man test-Novices/Beginners


In Nettleship v Weston [1971]:
D was a learner driver.She was taking lessons from the P. The P checked that the Ds insurance covered her for passengers before agreeing to go out with her. On one of the lessons the D turned a bend, the P told her to straighten the wheel but D panicked and failed to straighten the wheel. She approached the pavement and the P grabbed the handbrake and tried to stengthen the wheel but it was too late. She mounted the pavement and hit a lamp post. The P fractured his knee. The D argued that the standard of care should be lowered for learned drivers. Held: A learner driver is expected to meet the same standard as a reasonable qualified competent driver. The P is liable for the Ds injury.

Damages suffered from breached DoC


Causation in fact
1) Single causes but for test Barnett v Chelsea & Kensington Hospital Management Committee [1968] Government of Malaysia v Jumat bin Mahmud [1977] Held : Defendant is not liable because the teacher already provide a reasonable care, and constant vigilance in the classroom would not have prevented the injury sustained by the plaintiff. Mohamed Raihan bin Ibrahim v Government of Malaysia [1981] Held : Defendant (teacher) had failed to take reasonable steps to prevent injury to the plaintiff who was under their care. The teacher did not examine the tools before class started. The school had failed to provide a safe system and environment of gardening techniques.

2) Multiple causes
The final damage sustained by the plaintiff is due to more than one cause. Kay v Ayrshire and Arran Health Board [1987] Plaintiffs son suffered meningitis. Defendant when treating him was negligently given an overdose of penicillin. As a result plaintiff recovered from meningitis but suffered deafness. Defendant testified that there had been no recorded case of an overdose of penicillin causing deafness, but deafness was a common consequence of meningitis. Held : Plaintiff failed to establish causation because, as an overdose of penicillin had never been known to cause deafness, it had to be regarded as resulting solely from the meningitis.

Hotson v East Berkshire Area Health Authority [1987]


The claimant as a school boy fell out of a tree from a height of 12 foot. He suffered fracture to his hip and was taken to hospital. The hospital failed to diagnose his fracture and sent him home. He was in severe pain so he was taken back to hospital 5 days later where an X ray revealed his injury. He was treated and suffered an avascular necrosis which resulted in him having a permanent disability and a virtual certainty that he would develop osteoarthritis. According to medical evidence, had he been correctly diagnosed initially there was a 75% chance that he would have still developed this condition, but there was a 25% chance that he would have made a full recovery. Held: The claimant had failed to establish on the balance of probabilities that the defendant's breach of duty had caused the necrosis since there was a 75% chance that it was caused by the fall. As it was the accident itself rather than the defendants delay which was more likely to have caused the plaintiffs illness, the defendant was not liable.

3) Consecutive or successive causes

Performance Cars Ltd v Abraham [1962] a


same part of plaintiffs car already had been damaged before collided with defendant and it had not been repaired. Held, the defendant not liable for the cost of respraying as he had damaged a car which was already damaged, therefore his negligence did not cause the damage.

Baker v Willoughby [1969] - The claimant suffered


an injury to his leg when the defendant ran into him in his car. He suffered pain and loss of amenity and had to take a lower paid job. He was employed sorting through scrap metal when he sustained a further injury to his leg. He was on his own when two men came in and demanded money. When he refused they shot him in his injured leg. As a result of the shooting, the claimant had to have his leg amputated. Held : Defendant is liable, Lord Reid stated that a person was compensated, not for physical injury that he has sustained, but for the loss that he suffered due to that physical injury. Plaintiff unable to enjoy the anmenities which depended on freedom of movement, and the inability to work and earn as much as he could have. The second injury did not lessen his suffreing, and therefore it should not wipe out the defendants liability. This is a successive torts.

Jobling v Associated Dairies Ltd [1981]


Mr Jobling, a butcher, slipped on the floor at his place of work due to his employer's negligence. He injured his back which caused him to reduce his earning capacity to 50% of what it was. He then developed an independent back condition which was unrelated to the injury which left him unable to work. The trial judge applied Baker v Willoughby and held that the claimant was entitled to recover damages beyond the onset to the back condition. The employer appealed. Held: The House of Lords distinguished Baker v Willoughby and stated where the victim is overtaken before trial by a wholly unconnected and disabling illness, the decision had no application.

Damages-Intervening Acts Novus Actus Interveniens


When the but-for test of causation is satisfied between the Ds negligence and the Ps damage, the P will still be denied recovery IF the D could prove there is a new intervening act that breaks the chain of causation. The chain of causation can be broken by 3 events: Intervening act by P Intervening act of the 3rd party Intervening natural event-act of God

Damages-Intervening Acts
Intervening Act of the 3rd Party
Common law principle states that an individual ought not to be held responsible for the act of a third party. If the Ds negligence is followed by the act of a 3rd party which caused further damage to the P,the D will not be held liable for this damage if he can prove that the intervening act of the 3rd party was a novus actus interveniens. To break the chain of causation, the intervening act of the 3rd party must be voluntary and must be independent of the breah of duty.

Damages-Intervening Acts rd Intervening Act of the 3 Party


In The Oropesa [1943]:
A collision occurred at the sea between the Oropesa and Manchester Regiment, whereby the latter vessel was so seriously damaged that the captain ordered the majority of the crew to take the lifeboats. He then decided to go with 14 of the crew to the Oropesa in another lifeboat. He hoped to persuade the captain of the Oropesa to take the Machester Regiment in tow or to arrange for salvage assistant and,in any event, yo arrange for messages for help to be sent out and to obtain valuable advice. This lifeboat capsized, as a result of which nine of the crews lost their lives. The personal representatives of the deceased men sued the owners of the Oropesa and contended that the death was a direct consequence of the negligent act of the Oropesa. The owners contended that the chain of causation is broken by the Manchester Regiments captain when he ordered the men to row to the Oropesa and the boat subsequently capsizing. Held: The action taken by the captain was a natural consequence of the emergency in which he was placed by the negligence of the Oropesa and therefore, there had been no break in the chain of causation and the seamens dead was a direct consequence of the negligent act of the Oropesa.

APPLICATION:
Whether Mat has cause of action against Eric for the permanent brain damage suffered by him. In order to prove Eric has conducted a tort of negligence towards Mat,he must established the 3 elements of negligence. DoC:
By applying the principle in Low Kwan Moi, Sathu & Uniphone Sdn Bhd,Eric has fulfilled the tests of neighbour principle because as a driver of a vehicle,he owed DoC towards the other road users as well as towards Mat. Any damages caused by his negligent act is reasonably foreseeable.There is also a close & direct r/ship of proximity between parties involved in the accident as Erics act will closely & directly effects the others. The whole situation is also fair,just and reasonable to impose DoC on Eric. Thus, Eric owed DoC towards Mat.

APPLICATION:
Whether Mat has cause of action against Eric for the permanent brain damage suffered by him. Breached of DoC: By applying the reasonable man test for novices from the case of Nettleship v Weston [1971], the standard of care is not lowered for Eric even though he is a learner driver. This is because a learner driver(Eric) is expected to meet the same standard as a reasonable qualified competent driver. Therefore,Erics negligent act has breached that DoC towards Mat.

APPLICATION :
Whether Mat has cause of action against Eric for the permanent brain damage suffered by him. Multiple causes is applicable in Mats case. Because the final damage suffered by him is caused by two factors. 1) The accident caused by Eric 2) Shortage of his blood type However, Eric is the one who should be made liable, because the accident is the main cause of the permanent brain damage suffered by Mat. Kay v Ayrshire and Arran Health Board [1987] Hotson v East Berkshire Area Health Authority [1987] The hospital should not be made liable because as a result of the accident caused by Eric, Mat already suffered head injuries and he required a large blood transfusion and blood provided in the hospital is not enough to cover all his blood lose, plus his blood type is very rare.

APPLICATION:
Whether Mat has cause of action against Eric for the permanent brain damage suffered by him. Intervening act of the 3rd party:
In this situation, there is a new intervening act by the 3rd party which is the hospital. However, by following the decision in The Oropesa, even though Erics negligence is followed by the act of the hospital that experiencing the shortage of Mats very rare blood type as he required a large blood transfusion causing permanent brain damage to him, Eric will still be liable for this damage as the act of the hospital did not break the chain of causation. This is because in the first place,if Eric was not negligent then the accident will not occurred and Mat would not suffer head injury which requires him a large blood transfusion and the hospital would not need to provide a big amount of his very rare blood type. Therefore, there had been no break in chain of causation and the damage suffered by Mat is a direct consequence of Erics negligent act.

APPLICATION:
Whether Eric can be made liable if Ben suffered further injuries from the accident.
By applying the principle in Low Kwan Moi, Sathu & Uniphone Sdn Bhd,Eric owed DoC towards Mat. Mat was driving an ambulance during the accident occurred. Ben was inside the ambulance. Therefore, Eric also has DoC towards Ben. Nettleship v Weston [1971]:Eric definitely has breached of that DoC when he lost control over his vehicle & crashed into Mats ambulance. Thus, if Ben suffered further injuries from the accident, Eric can be made liable for it..

APPLICATION:
Whether Andi has cause of action against Eric for the partial paralysis of his leg. Low Kwan Moi, Sathu & Uniphone Sdn Bhd:
Eric owed duty of care towards Andi as Andi was another road user and hes involved in the accident caused by Erics negligence. He suffered from a broken thigh which left him limp and the necessity to use a walking stick caused by Erics negligence. Thus,we need to prove that the damage suffered later by him which is partial paralysis of his leg due to he injured his back because of his restricted movement.

APPLICATION :
Whether Andi has cause of action against Eric for the partial paralysis of his leg.

The law involved in Andis case is successive causes. It should follow the judgment in the case of Baker v Willoughby. As a result of the physical injury he suffered,he unable to enjoy his freedom of movement, and since the second injury did not lessen his suffering, therefore it should not wipe out the defendants liability.

APPLICATION :
Whether Andi has cause of action against Eric for the partial paralysis of his leg.

Andis situation must be distinguished with the case of Jobling v Associated Dairies Ltd. In this case the plaintiff contracted myelopathy which was in no way related to the first accident. But in Andis situation, he suffered partial leg paralysis because of his restricted movements, which is the result of the accident caused by Eric negligence act. The accident left him with a broken thigh and he has to use a walking stick, and this has restricted his movement when he wants to avoid the motorcyclist. As a result, he fell over and injuring his back on the kerb and later suffered partial paralysis. This clearly shows that the partial paralysis is related to the first accident with Eric.

Conclusion : Eric has committed the tort of negligence.Thus,he is liable towards the damages suffered by Mat, Andi and Ben.

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