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777 ENTERPRISE & ANOR v ABDUL SAMAT SALINRI [1993] MLJU 191

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777 ENTERPRISE & ANOR v ABDUL SAMAT SALINRI [1993] MLJU 191

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Facts:

The Respondent drove his car to the premises of the Appellant for a change of the engine, gear oil and greasing.

Upon completion of the servicing of the Respondent's vehicle by the Appellant's servant, the mechanic's hands were dirtied so he turned to the Respondent and asked him to help start the engine of the vehicle.

The ignition of the vehicle was located about 6 inches above the Respondent's head and he had attempted to drive his vehicle down from the hydraulic jack's ramp.

The Respondent paid for the services and drove the vehicle away.

There was no demand at that time that he should pay for the damage.

This is an appeal against the decision of the learned Magistrate dismissing the appellant claim against the respondent.

The Appellant had claimed against respondent the sum of MYR7,719.60 being specific damages caused by the negligent driving of Respondent.

Held:

The learned magistrate had found that the Respondent was not negligent and found that the Appellant, through his servant was the author of his own misfortune.

The learned magistrate had found that the servant of the Appellant had instructed the Respondent to switch on the engine which resulted in the damage. The Respondent did as he was told.

The argument that the Respondent should not have done what he was asked to do was rejected. He found that the accident was therefore caused by the negligent instruction to switch on the engine.

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Cost and Practicability / Cost of Taking Precaution

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Cost and Practicability / Cost of Taking Precaution

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The risk must be measured against the precaution that needs to be taken and all precautionary measures undertaken by the defendant will be taken into account in determining the reasonableness of the defendant’s conduct.

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Haley v London Electricity Board [1965] AC 778

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Haley v London Electricity Board [1965] AC 778

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Facts:

The defendant’s employees dug a hole in the pavement.

When they left the area on their break, they realised that they had not been provided with the necessary materials to fence off the area.

They thought it would be sufficient to leave an upright shovel near the hole as a warning to any pedestrians who passed through.

The claimant was blind and so did not see the warning.

As a result, he fell into the pit and sustained injuries.

Held:

The defendant was held to be in breach of their duty of care.

The  harm was a foreseeable consequence of the defendant’s actions was indeed a crucial factor when determining how a reasonable person would behave in the circumstances.

The court was not convinced that it was unforeseeable that a blind person would walk down the street. If it was sufficiently foreseeable that a disabled person would be at risk of harm, the defendant was obliged to take reasonable steps to protect them from harm.

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Bhamra v Dubb (T/A as Lucky Cateres) [2010] EWCA Civ 13

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Bhamra v Dubb (T/A as Lucky Cateres) [2010] EWCA Civ 13

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Facts:

Kuldip Singh Bhamra went to a wedding at a Sikh Temple in Forest Gate.

Mr. Dubb, who carried on a business under the name Lucky Caterers, provided the food.

One of the dishes served was ras malai.

According to the beliefs of Sikhism which forbids the consumption of meat, fish or eggs, Mr. Dubb understood that the food served should not contain any ingredients of that kind.

Mr. Bhamra suffered from an allergy to eggs as the ras malai was found to contain eggs.

Mr. Bhamra died as he suffered anaphylactic allergy.

Held:

At CA, the question was whether the nature of the occasion was such as to extend the scope of the ordinary duty of care to encompass personal injury caused through the consumption of food containing eggs.

Here, because there was an additional requirement that the food at the wedding should not contain ingredients prohibited by Sikhism, the defendant was responsible in making sure that the food does not contain eggs.

Mr. Dubb was found in breach of a duty of care in this case.

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English Case: Knight v Home Office [1990] 3 All ER 237

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English Case: Knight v Home Office [1990] 3 All ER 237

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Facts:

1. A prisoner with suicidal tendencies hung himself in his cell despite being observed in intervals of 15 minutes by prison guards.

2. His personal representatives contended that the prison authorities were negligent in providing adequate staffing.

Held:

Due to a lack of financial resources, they could not provide as many staff as in a private psychiatric prison hospital. A 15-minute interval was accepted to be a decision that a ‘reasonable’ skilled medical staff would have made in their position.

The benefit of appointing more staff to watch the prisoner was not justifiable by the risk of straining resources

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English Case: Hilder v Associated Portland Cement Manufacturers Ltd

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English Case: Hilder v Associated Portland Cement Manufacturers Ltd

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Facts:

1. The owner of the land (factory) had given permission to several children to play football regularly. The wall, which was only 4 feet (48 inches) high, was the only barrier between the goal and the highway.

1. A motorcyclist was knocked and subsequently killed by a ball kicked by the children over the wall. The plaintiff's wife claimed negligence.

Note: The motorcyclist did not wear a helmet however, the Highway Code at the time did not contain advice that motorcyclists should always wear a helmet.

Held:

The wall was not a sufficient precautionary measure to over the risk of injury to the plaintiff.

The risk of injury to by-passers was high.

The defendants were held liable.

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Malayisan Case: Susan Cheah v Mayban Finance

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Malayisan Case: Susan Cheah v Mayban Finance

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Facts:

1. Burglars dug a tunnel underground to reach the D’s strong room which contained safe deposit boxes.

2. The D contended that the method of breaking in was remote and unforeseeable.

Held:

Defendants have acted below the reasonable standard of care.

The branch was empty and there was no security guard on duty

The alarm was triggered but the security team and police could not enter the premises because the D(key holders) could not be contacted.

Defendants were liable for the plaintiff’s losses

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The President of Majlis Perbandaran Tawau v Amiruddin bin Rasake & 245 Ors and another appeal [2017] 3 MLJ 778, Court of Appeal

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The President of Majlis Perbandaran Tawau v Amiruddin bin Rasake & 245 Ors and another appeal [2017] 3 MLJ 778, Court of Appeal

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Facts:
Residents of a government housing project (‘the Taman’), who received their piped water supply from elevated water tanks situated within the premises of the Taman, were horrified to discover that the reason they were getting nauseous, foul-smelling water from their taps was a dead human body lying in one of the elevated tanks. The water tower was protected with barbed-wire fencing and the entrance to the tower was locked at all times.

Issue:

·      Whether the appellant owed a duty of care to prevent a third party from causing harm to the respondents by his own deliberate wrongdoing?

·      If the act of a third party falling into the water tank and dying not reasonably foreseeable as probable and highly unlikely

·      Is there any special circumstances that existed between the appellant and respondents.

Held: In allowing the appeal, it was held that NO special relationship exists between the appellant and respondents. Therefore, there is no duty imposed on the appellant to prevent harm caused by the deliberate act of a third party, over whom the appellant has no control except in specific circumstances which he identifies. It was also held that it is not reasonably foreseeable as probable, and that it was highly unlikely that anyone would deliberately die in the elevated water tank so as to contaminate the water consumed by the respondents in the Taman.

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If a person is able to prove that their behaviour in a certain situation was common practice, then it would be deemed that there is no breach of duty as their actions were reasonable.

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An action with considerable risk may be justified by weighing the public benefit against the the circumstances.

This is most applicable to emergency situations because there is a lower standard of care (Watt v Hertfordshire CC)

Social utility goes back to the 3rd element of negligence: Whether an action is fair, just and reasonable.

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Morris v West Hartlepool Steam Navigation: HL 1956

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Morris v West Hartlepool Steam Navigation: HL 1956

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Facts:
In the absence of a guard rail around the hatchway, the ship had a tendency to leave the between deck hatch covers off. The plaintiff, seaman fell into the hold. There was evidence that men were often sent down to the between decks on this ship. The shipowner used evidence to claim that it was common practice on ships at sea not to build guard rails in such situations.

Issue: Was the guard rails a necessity to provide a safe environment for the seamen?

Held:
The plaintiff had won the case after the trial court ruled in his favor. The Court of Appeal was split, but it upheld the appeal. The plaintiffs' appeal was successful, and the shipowner was found to have breach their common law duty of care to the seamen.

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- The magnitude of care that the defendant is liable for will be greater if the claimant is either very young, disabled in some way, aware of the seriousness of risk based of the time of the alleged breach of duty
- Thin skull rule

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The amount of risk that could be incurred by the act. The higher the risk, the greater the degree care which should be taken.

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With reference to decided cases list the factors taken into account by the courts when deciding whether to impose a duty of care in different cases. Discuss.