Breach of Duty

Semester I 2011, 2012

 A. What is a breach of duty?
The defendant, who owes a duty of care
towards the plaintiff has acted below the
minimum standard of care required by
him, and caused the plaintiff to suffer harm
The measurement of standard is the
standard of a reasonable man
If D had acted below the standard of a
reasonable man, the law says that he has
breached his duty of care towards P
 The reasonable man test
Case:BLYTH V BIRMINGHAM
WATERWORKS CO [1856] 11 Ex 781

negligence is the omission to do something

which a reasonable man would do or
doing something which a reasonable man
would not do
 The question

Would a reasonable man have acted as the

defendant has done if the reasonable man
was faced with the same situation as the
defendant?
 I. Who is a reasonable man?
The reasonable man does not mean the
perfect man or the model citizen
The usual norms and activities in a
particular society or a particular profession
will be considered in determining the
reasonableness of the defendants conduct
The personal characteristic of the
defendant will not be taken into account
(generally)
 The court would consider
What is the course of action that would be
taken by a reasonable man in that
situation?
Had the defendant foresee what will
happen in that circumstances?
Had D foresees what will happen, did he
takes a reasonable steps to prevent it
from happening?
Case: NETTLESHIP V
WESTON [1971] 2 QB 691
CA
P was injured by the
negligent driving of a
learner-driver, P. P argued
that she had control the
car to the best of her
ability.
HOL: the standard of a
learner-driver is similar to
an experienced driver. P
was liable.
 Case: A pupil was sitting
GOVERNMENT behind P, prick Ps thigh
OF MALAYSIA & with a pin. P turn around
ORS V JUMAT
BIN MAHMUD &
and his eyes came into
ANOR [1977] 2 contact with the sharp
MLJ 103, FC end of a pencil which the
pupil was holding. The
eye was badly injured
and has to be removed.
P sued D, the classroom
teacher for negligence.
 On appeal
The issues to be considered
Whether the risk to P was reasonably
foreseeable
Whether the defendant had taken
reasonable steps to protect P against
those risk
 Case: MOHAMED RAIHAN BIN IBRAHIM &
ANOR V GOVERNMENT OF MALAYSIA & ORS
[1981] 2 MLJ 27

A pupil was injured by a hoe wield by a

fellow pupil during a practical gardening
class.
P alleged that D failed to give adequate
supervision and instructions with regards to
the use of gardening tools during the class
 The teacher should have appreciated that
the pupils were handling dangerous
gardening tools
The teacher did not give sufficient warning
as to the use of the tools to the students
The teacher ought to have taken steps to
see that the pupils were positioned within
such distance between them as to avoid
injuries.
 II. How intelligent should the reasonable
man be?
The reasonable man is not expected to be perfect
He is not expected to possess a high standard of
intelligence
A reasonable man is a man on the street
How to assess?: the defendants action must
conform to the criteria expected of a person of
normal intelligence
If D possesses a higher level of intelligence, the
reasonable man is not expected to reach the
higher level of intelligence as of the defendant
III. What if the defendant possesses a particular
knowledge or expertise in a particular field
If the defendant possesses some special and
particular knowledge in a particular field,
the reasonable man is expected to be
someone possessing the same knowledge
and expertise as of the defendant
Example: NETTLESHIP V WESTON
 Case: WILSHER V ESSEX AREA HEALTH
AUTHORITY [1987] QB 730
A junior doctor wrongfully inserted a catheter
into a vein instead of an artery of a
premature baby and caused an inaccurate
reading of the oxygen level. The doctor
administered more oxygen to the baby with a
consequence that the baby became blind.
The doctor raised a defence that he was a
junior and inexperience and the standard of
care should be of an inexperienced doctor.
 COA: the standard of care should be
related to the post that he holds, not of his
individual level of knowledge or
experience

Case: WELL V COOPER [1958] 2 All ER

527
The standard of care required is similar
to a reasonably competent carpenter.
D represents himself as someone with some
skills or experience
The law requires him to demonstrate the
standard of care that he claims to have
Case: CHAUDHRY V PRABHAKER [1988]
3 ALL ER 718
P asked D to find a second-hand car for her
to buy with a condition that the car never
involved in an accident. D suggested a car
which had involved in an accident, poorly
repaired and not roadworthy.
 Case: ANG TIONG SENG V GONG HUAN
CHIR [1970] 2 MLJ 271
Due to the negligence of first and second
defendants, P suffered injuries on his hand.
He went to the third defendant, a sinseh
who applied bandage on his hand with 3
sticks of bamboo. When he suffered pain
later on, he went again to the sinseh who
then applied an ointment. P suffered a
great pain after that and the sinseh referred
him to the hospital where his hand had to
be amputated.
 A sinseh is not required to demonstrate a
standard of care as medical practitioner
who is registered under the Medical Act
1971.
The standard of care required of him is of a
reasonable sinseh
He was liable as the treatment was
administered carelessly.
 IV. Defendant is incapacitated or infirm
Two types
Mental incapacity
Physical incapacity
Question: What is the standard of care for
a person who has physical and/or mental
incapacity
General rule: personal characteristic of the
defendant is not relevant in assessing
standard of care
 a) Mental incapacity
Mental illness refers to manifestation of a
behavioral, psychological, or biological
dysfunction which is often present when a
person is experiencing delusions,
hallucinations, severe alterations of mood,
or other major disturbances of
psychological functions.
Cannot make rational choice
 The standard of care: Conduct of a
mentally ill defendant is similar to the
standard of care of a reasonable man
Reasons:
(i) When 2 innocent persons involve in an
accident, the person who caused the
accident should be liable for resulting
the damage
Based on compensatory basis as the
aim of law of tort
Criticism: no fault basis
(ii) Difficult to ascertain the extent of a
persons mental illness/persons ability to
act in a reasonable manner
may be used for the purpose to avoid
liability
Criticism: advanced study in mental
illness
(iii) Relieving mentally ill person of their
liability will result in their increased
isolation, a community members will
avoid contact with them for fear of
harm without compensation
 Case: FIALA V. CECHMANEK [2001] A.J.
No. 823 Alberta Court of Appeal
The test to relieve liability of mentally ill
defendant:
As a result of his or her mental illness, the
defendant had no capacity to understand or
appreciate the duty of care owed at the relevant
time; or
As a result of mental illness, the defendant was
unable to discharge his duty of care as he had no
meaningful control over his actions at the time
the relevant conduct fell below the objective
standard of care.
 b) Physical incapacity
Standard of care: a person with a physical disability is
held to the standard of a reasonable person with that
same disability
May opt for the defense of contributory
negligence
A person with physical incapacity ought to have
taken extra precaution not to cause harm to
another person
A person who experience sudden and unforeseeable
incapacitation may be relieved from liability
BOP on D to show evidence that the
incapacitation is unforeseeable
Case: MANSFIELD V WEETABIX LTD [1998]
1 WLR 1263
D suffered a hypoglycemic state induced by
a malignancy while he was driving. The
partially lost consciousness but was
complete unaware of these events, which
resulted in a collision with P.
COA: D was not and could not reasonably
have been aware of his condition
His disability and infirmity must be taken
into account
 IV. A child as a defendant
Children may be liable in negligence and
are judged by what might be expected of a
reasonable child of the defendants age
Qs: Should maturity and experience of the
child be taken into consideration too?
In California, age, intelligence and
experience is taken into account
Subjective test- not just an average
child of the same age
Case: MCHALE V WATSON [1966] 115 CLR
199
A 12 year old child threw a piece of welding
rod which had been sharpened at one end,
at a wooden post.
HC: The court applied the foresight and
prudence of an ordinary 12-year old boy.
D was not guilty
 Do intelligence and experience of a child
matter?
Kitto J

It is no answer for him (a child), any more

than it is for an adult, to say that the harm
he caused was due to his being abnormally
slow-witted, quick-tempered, absent-
minded and inexperienced
Case: MULLIN V RICHARDS [1998] 1 All ER
920
Two 15 year old schoolgirls were fencing with
plastic rulers during mathematics lesson. One of
the rulers broke and entered one of the girls
eyes. She became blind.
COA: The child was not liable
Qs; Whether an ordinarily prudent 15 year old
schoolgirls in Ds situation would have realized
that her actions would give rise to a risk of injury
There was no basis of attributing the foresight of
the significant risk of the likelihood of the injury.
 Issue: What if the child engages in adult
activities?
No formal rule that a child held in a higher
standard of care if he engages in adult activities
However, the care demanded of a child is
effectively the same as demanded of an adult in
the circumstances where the child engages in a
adult activity
The standard is the same: a reasonable, ordinary
prudent child of the same age
But, to discharge the duty it is the same as
required of an adult
 A. Mullis & K. Olipham on Torts (3rd Ed
2003) 122

A child under 17 who is unable to drive

lawfully on a public road by reason of age,
may be properly held to the same standard
if he chooses to drive (on a public road or
not) and has sufficient understanding to
the need of care
 Case: TAURANGA ELECTRIC-POWER
BOARD KARORA KOHU [1939] NZLR 1040
A 17-year old motorist owed the same duty
of care as an adult motorist
 V. Driver of a vehicle
The standard of ordinary skilled driver
Exception: under disability or infirmity

Case: KR TAXI SERVICES LTD & ANOR V

ZAHARAH & ORS [1969] 1 MLJ 49
The duty of care of a driver was only to
exercise reasonable care and a driver is not
under a duty to be perfect in the sense of
being able to anticipate the negligence of
others.
 Case: WONG LI FATT (AN INFANT) V
HAIDAWATI BTE BOLHEN [1994] 2 MLJ 497

A driver must be in reasonable control of the

vehicle he is driving at all times and if the
driver knows or ought to know that the
area in which he is driving is inhabited,
then he must anticipate that he may be put
in an emergency situation at any time
while passing that area. This also means
that the driver must be prepared to halt
the vehicle in the event of such an
emergency occurring.
 VI. Professional defendants
Definition of professionals:
A person whose work is skilled and
specialized.
He holds some special qualifications
derived from training or experience and
conforms to high standard of
performance and work ethics
He normally belongs to a regulatory
body which prescribes common rules of
conduct and standards of practice
(a) Duty to exercise reasonable skill and care
The duty of professionals is usually based
on contracts and also under torts
Express condition in the contract:
utmost skill and care and professional
standard of care and diligence.
No express term?
the court will imply that professional is
subject to a general and basic duty to
employ reasonable skill and care
 Issue: When does tortious liability arise?
Case: CAPARO INDUSTRIES PLC V DICKMAN
[1990]
What emerges is that, in addition to the
foreseeability of damage, the necessary
ingredients in any situation giving rise to a duty
of care are that there should exist between the
party owing the duty and the party to whom it is
owed a relationship characterized by the law as
one of proximity or neighborhood and that
the situation should be one in which the court
considers it fair, just and reasonable that the law
should impose a duty of a given scope upon the
one party for the benefit of the other
 (b) Professional standard of care
(i) Reasonably skilled and competent
The professional standard of care must be
compared to his peers with similar skills and
expertise
Professional negligence is the failure to come up
to the standard of a reasonable skilled man of
the relevant profession
Assessment of liability
Whether D conform to the reasonable
professional standard of care
Case: ECKERSLEY V BINNIE & PARTNERS [1988] 18
Con LR 85
Bingham LJ
Should command the corpus knowledge of his
profession, just like the other member of the
profession
Should not lag behind any new advances, discoveries
and development of his field
Should be alert with hazards and risks inherent in any
professional tasks that he undertakes
Must bring to any professional task he undertakes no
less expertise, skill and care than other ordinarily
competent members would bring but need bring no
more
The standard is that of the reasonable average
 The test
Case: LIM TECK KONG V DR ABDUL
HAMID ABDUL RASHID [2006] 3 MLJ 213

The legal principles to be applied in this

claim of negligencemust certainly be that
of BOLAM V FRIEN HOSPITAL
MANAGEMENT COMMITTEE since this is
a claim based on professional negligence.
 (ii) The Bolam Test
Case: BOLAM V FRIEN HOSPITAL
MANAGEMENT COMMITTEE [1957] 2 All ER
118
The test is the standard of the ordinary skilled
man exercising and professing to have that skill
The test indicates:
A doctor is not guilty of negligence if he has
acted in accordance with a practice accepted as
proper by a responsible body of medical men
skilled in that medical actPutting it the other
way round, a doctor is not negligent, if he is
acting in accordance with such practice, merely
because there is a body of opinion that takes a
contrary view
 The limbs in Bolams test

First Exercise reasonable care

The practice is an accepted
limb practice in the profession

The accepted practice is

regarded as proper by a
Second responsible
profession
body of

limb It does not matter whether

there are more than one
practices existed.
Application BOLAMs test in BOLITHO
of
(ADMINISTRATIX OF THE ESTATE OF BOLITHO
(DECEASED) V CITY AND HACKNEY HEALTH
AUTHORITY [1997] 4 ALL ER 771

The modification of BOLAMs test

If it can be demonstrated that the

professional opinion is not capable of
withstanding logical analysis, the judge is
entitle to hold the body of opinion is not
reasonable or responsible
 iii. Professional Hopefuls or wannabes
Where D is an unqualified person who
represented himself as qualified and competent,
he must be judged by professional standard.

Case: STEVEN PHOA CHENG LOON 7 ORS V

HIGHLAND PROPERTIES SDN BHD & ORS
[2000]
If a man is unqualified but holds himself out to be
professing a skill, he will be judged by the
standards of a reasonably competent qualified
person
iv. Practice and knowledge at the time of the
alleged breach
Case: ROE V MINISTER OF HEALTH [1954] 2 QB
66, CA
P was paralyzed from the waist down after an
operation because the solution which was used
for the required injection was mixed with
phenol, another solution that was placed around
the container containing the injection solution.
Evidence showed that the container containing
the injection solution was cracked but it could
not be detected according to the state of
knowledge at that time.
 Lord Denning
The standard of care must be based on the
current medical knowledge at the time of the
alleged breach, not at the time of the trial.
In the case, the test to ascertain the possibility of
cracks was only discovered in the medical field in
1951 whereas the incident took place in 1947
 Case: THOMPSON V SMITHS
SHIREPAIRERS (NORTH SHIELD) LTD
[1984] QB 405
P suffered hearing problems due to the
noise in Ds work place because D did not
provide ear-protectors to P. D started
providing ear-protectors to the employees
including D after 1963 when the Ministry
of Labour published a pamphlet on the
danger of noise for workers.
Held: D not liable
Case: DR CHIN YOON HIAP V NG EU KHOON &
ORS AND OTHER APPEALS [1992] 1 MLJ 57
P became blind as a result of excessive oxygen
being administered to him. Ps parents claimed
that D failed to inform them that there is a
possibility of loss of vision through the
administration of excess oxygen.
COA: During the time where P received treatment,
there was no other preventive or curative
treatment available for the Ps condition.
Whether or not D alerts the parents would not
change the situation that the only treatment
available was the administration of excess
oxygen.
D was not liable.
 B. The concept of risk
The degree of risk must be assessed in order to
determine whether Ds action in the
circumstances is reasonable
If damage is not reasonably foreseeable D is not
required to take reasonable steps to prevent
injury
A person is only required to take precautions
when damage or injury is probable and
foreseeable
The conduct of a reasonable man is subject to
the concept of risk; the risk test
 The risk test
Test: What is the chance of harm or risk
caused to P as a result of Ds conduct?
If there is a possibility that Ds conduct will
cause P to suffer damage, D is required to
exercise proportionate degree of care to
avoid the harm from materialising
D would be held negligence/ in breach
of his duty if he fails to do that
 Factors to determine the risk
(a)Magnitude of the risk
(b)Practicability or cost of precautions to D
(c)The importance of the object to be
attained
(d)General and approved practice
 (a) Magnitude of risk
The degree of care is balanced with the
degree of risk

Two factors
(i) probability of injury occurring
(ii) seriousness of the injury
 (i) Probability of injury occurring
Case: BOLTON V STONE [1951] AC 850
P was hit by a cricket ball which had been hit
out of a cricket ground. The distance
between the place where the ball was hit
to the edge of the field was surrounded by
a 7 foot wall. There was a foreseeability by
D that the ball would fall over the fence as
it were in previous occasions although it
was rare.
 The injury to P was too remote
A reasonable man may foresees many risks
but it would be inconvenient to take
precautions for all foreseeable risks
A person must only take reasonable steps
against risk that may materialized
 Case: MILLER V JACKSON [1977] QB 966
Cricket balls were hit out of the fence of
the cricket field about 8 to 9 times per
season, and Ps property had been
damaged several times. Even though there
was a high fence surrounding the field,
there was only a short distance between
the fence and the pitch, the place where
the ball was hit.
 The risk injury to P was high and D was
liable each time the cricket ball damaged
Ps property
The precautionary measures adopted by D
were not sufficient to overcome the risk of
injury to P
 (ii) Seriousness of the injury
PARIS V STEPNEY BOROUGH
Case:
COUNCIL [1951] 1 ALL ER 42
P was blind in one eye and he was
working at Ds workplace. The condition
of the workplace were such that there was
risk of injury to the eyes. A piece of metal
hit his good eye when he was working and
he was completely blind afterwards.
 Principle: if D knew and ought to know that
the risk of injury to P is higher than usual,
then he must take extra precautions to avoid
the potential injury
HOL: the employer had a duty of care to
take reasonable care to ensure the safety of
the working environment to the employees.
He must take into account the probability of
injury occurring to the particular employees
as well as the gravity of the consequences to
that particular employee if an accident did
occur.
(b) Practicability or cost of precautions to D
The precautions to be taken by D must
take into consideration the issue of
practicality and cost
If the cost of taking the precaution is higher
than the damage it self or if the precaution
is not practical, then Ds conduct could be
considered as reasonable based on facts
and circumstances of each case
 Case: LATIMER V AEC [1953] AC 643
Ds factory was flooded due to the heavy
rain. The mixture of water and oil caused a
part of the floor of the factory to be
slippery and sawdust was placed over the
slippery parts. Not all the slippery part was
covered and P slipped and fell. P
contended that D should have closed the
factory.
 If the risk may be considerably reduced
with a rather low cost, the D would be
unreasonable if he does not incur this low
cost in order to reduce the risk.
If the risk of injury is low, it would be
unfair to require a lot of expenses on the
part of D to reduce the risk
If the risk is low and no extra costs is
required to reduce the risk, D will be acting
below the required standard of care for
not taking precautions to reduce the risk
 Case: HAMZAH & ORS V WAN HANAFI
BIN WAN ALI [1975] 1 MLJ 203, FC
P, who was a passenger on a train hopped
off and injured himself before the train
fully stopped. P claimed that the Railway
administration should have ensured that
no passengers were standing near the
doors, as they should know that passengers
liked to jump off from the train before it
fully stopped.
 Federal Court
There were written notices and oral
warnings by D that passengers were not to
stand near the train doors or to jump off
before the train fully stopped.
The train service is a cheap and efficient
form of transport and if D is required to
take extra precautionary measures, this
would mean placing a guard at every
single door on the trains.
It would incur extra cost to D
 (c) Importance of object to be attained
Case:WATT V HERTFORDSHIRE
COUNTY COUNCIL [1954] 2 ALL ER 368
P was a fireman who answered an
emergency call for a woman who was
trapped under a lorry. The fire-engine
which usually carried the jack was not
available at that time and so the jack was
brought onto a normal fire engine. On the
way to the emergency scene, the jack fell
and hurt P
 The object involves saving of anothers life
and the existence of a high risk may still
absorb Ds possible liability
 (d) General and approved practice
General rule: If D does as a reasonable man
would do on the same situation, the D will have
acted reasonably
If D has acted in accordance with the common
practice of those similarly engaged in the
activity, he would not be negligent
Not a strict rule as the common practice of
people may not absolve D from liability
Similarly, if D had acted not in accordance with
common practice of people, it does not
necessarily mean that he is negligent
Other factors is also taken into consideration
 Case: GENERAL CLEANING
CONTRACTORS V CHRISTMAS [1953] AC
180
P was cleaning window at 27 feet above
the ground where he fell from the ledge on
the window which was 6 and inches in
width and injured himself.
Principle: even if an act is a general and
common practice, liability will still be
imposed if the act is dangerous and gives
rise to a considerable degree of risk of
injury
 Case: AIK BEE SAWMILL V MUN KUM
CHOW [1971] 1 MLJ 81
P did not use a crossbar to lift planks onto
a lorry with the result that the planks fell
onto him. The general practice was that a
crossbar would normally be used to lift the
planks. P was never taught to use the
crossbar.
 When the nature of a particular job is
dangerous, then a person need not follow
given instructions wholly.
D who does not take extra precautions
when instructing a dangerous job will be
liable if the worker suffers injury.
D may act more than what a reasonable
man would do but not less than what a
reasonable man would do.