Negligence and duty of care

Duty of care

Duty of care is the first element of negligence and therefore, in order to discuss further on duty of care, one would have to first define the tort of negligence. In Blyth v Birmingham Waterworks Co,[1] the courts defined negligence as an omission of something which a reasonable man would do and the doing of an act which a reasonable man would not do. In Heaven v Pender,[2] the courts held that the presumption of duty of care arises when one person is placed in a position with regard to another person or property, it is in ordinary sense that if he does not use reasonable ordinary care in his conducts, he would cause danger or injury towards the other person or property. Therefore, ordinary care is required to prevent the occurrence of such danger. In Stovin v Wise,[3] the courts explained that generally there is no duty to rescue a stranger from danger. The duty mentioned above is regarding duty that is imposed by law or in other words, it is a legal duty.

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Test to determine the standard of duty of care

There are a few test that is used in determining the existence of duty of care. The primary test is the neighbour principle established in the well-known case of Donoghue v Stevenson.[4] In this case, Lord Atkin laid down that the rule that you are required to love your neighbours becomes a law by itself and it requires one to take a reasonable care to prevent any acts or omissions that can be reasonably foreseen to be likely to cause injury to your neighbour. The question posed to this principle is regarding who is one’s neighbour in law. The courts held that neighbour in law is someone who is directly affected by one’s act or omission. It is a reasonable man’s test whereby the courts would have to determine whether a reasonable man would foresee that his conduct would affect the plaintiff adversely. If the answer to this hypothetical question is yes, then the plaintiff is considered to be his neighbour and he owes a duty of care to the neighbour.[5]

It is essential to note here that the neighbour principle requires the defendant to be a foreseeable victim and thus, in order for the defendant to be a foreseeable victim, there has to be a close proximity. Therefore, the neighbour principle requires the plaintiff to be of a close proximity with the defendant. The plaintiff would not be a foreseeable victim if there is no proximity between the plaintiff and defendant.

In the case of Home Office v Dorset Yacht Co Ltd,[6] the courts held that the principle laid down in Donoghue v Stevenson should be regarded as a milestone in determining whether there exist a duty of care. This principle significantly assist the development of the law of negligence. Prior to the case of Donoghue v Stevenson, there was vagueness in the law regarding civil liability for carelessness.[7] In an 1889 textbook, there was a list containing fifty-six various duties of care.[8] Therefore, the judgment in Donoghue v Stevenson brought an end to the chaotic situation and had introduced the law of negligence as a separate civil wrong.

The next test used by the courts to determine whether duty of care is established is the Anns test laid down by the courts in Anns v Merton London Borough Council.[9] This is a two-stage approach laid down by Lord Wilberforce whereby the first is to determine whether there is a relationship of proximity between the alleged tortfeasor and the person who had suffered the loss. If it foreseeable that the carelessness of the tortfeasor would lead the other party to suffer damage, then a duty of care would on prima facie be established. The second stage of this test requires the court to take into account any considerations that may negate the said duty or to reduce and limit the scope or group of persons that the duty will be imposed upon. This two-stage approach in essence is to determine whether it is reasonable to foresee that the defendant’s act or omissions will cause any damage to the plaintiff. If it is reasonable to foresee that the defendant’s act would cause harm to the plaintiff, then there exist a presumption of duty of care.[10]

This test receive heavy criticism in Governors of the Peabody Donation Fund v Sir Lindsay Parkinson & Co Ltd.[11] The courts in this case held that the neighbour principle laid down by Lord Atkin should be proved before the duty of care is presumed to exist but the scope of the duty depends on the facts of the case. The courts should consider whether the duty of care imposed on the defendant is just and reasonable. In Curran v Northern Ireland Co-ownership Housing Association Ltd,[12] the learned judge, Lord Keith, held that the Anns test has been given more importance than it should have been given and held that the test need not be applicable in future cases in establishing the duty of care.

The third test used in determining the duty of care is the Caparo test which is derived from Caparo Industries plc v Dickman.[13] In this case, there were three factors that is needed to be fulfilled to establish duty of care. The first is the courts must determine whether the damage caused is reasonably foreseen, the second is whether there is any policy to negate the duty of care and the third is whether it is just and reasonable. If this requirements are fulfilled, then duty of care is established.[14] It is important to note here that all three elements under the Caparo test needs to be fulfilled in order for duty of care to be established.

Development in Malaysia

In Malaysia, the courts have used all of the above test. However, the test that is currently used by the courts is the three stage test which is the Caparo test. This can be seen in the case of Majlis Perbandaraan Ampang Jaya v Stephen Phoa Cheng Loon & Ors.[15] In this case, the Federal Court had referred to the Caparo’s case do determine whether duty of care exist. The issue that arises in this principle is whether this principle only applies to economic loss or it may extend to all situations. The courts used the foreseeability test and held that this test applies to all situation. The courts only had to determine whether the duty of care which is imposed upon the defendant is just and reasonable. The courts went on stating that it would be rare for the outcome of the test to be not just and reasonable.

This test is used in a more recent Malaysian case which is Projek Lebuh Raya Utara-Selatan Sdn Bhd v Kim Seng Enterprise (Kedah) Sdn Bhd.[16] In this case, the courts reiterated that the standard of care to determine negligence is that of the reasonable man and it is an objective test. Another recent case is the case of Jordan Saw Yu Huan v Low Suan Chuan & Ors.[17] In this case, the high court applied the Caparo’s test and the courts were of the view that it was just and reasonable to impose such duty of care upon the defendants and held that the defendants in this case had breached such duty of care.

Therefore, it is clear that the recent development in Malaysia regarding the standard of care required to establish duty of care is more inclined towards the three-stage approach which is commonly known as the Caparo’s test. The courts in Malaysia had followed the Caparo’s test because this test requires that the damage caused to the plaintiff to be reasonably foreseen by the defendant. The defendant would not owe a duty of care if he cannot reasonably foresee the damage. Therefore, this test more straight forward as compared to the other test laid down earlier.

[1](1856) 11 Ex 781 at 784.

[2](1883) 11 QBD 503 at 507.

[3][1996] AC 923 at 930-931.

[4][1932] AC 562 at 580 (HL).

[5]Norchaya Talib, Law of Torts in Malaysia (3rd edn, Sweet & Maxwell Asia 2011) 98.

[6][1970] AC 1027.

[7]Dato’ Mohd Hishamudin Yunus, ‘JUDICIAL ACTIVISM — THE WAY TO GO?’ [2012] 6 MLJ xvii.

[8]Thomas Beven, ‘Principles of the law of negligence’ (1889).

[9][1978] AC 728.

[10]Norchaya Talib, Law of Torts in Malaysia (3rd edn, Sweet & Maxwell Asia 2011) 100.

[11][1984] 3 All ER 529 (HL).

[12][1987] 2 All ER 13, 710.

[13][1990] 1 All ER 568 (HL).

[14]Norchaya Talib, Law of Torts in Malaysia (3rd edn, Sweet & Maxwell Asia 2011) 106.

[15][2006] 2 MLJ 389 (FC).

[16][2013] 5 MLJ 360 (CA).

[17][2013] 4 MLJ 137.