Legal duty of care (Neg) Legal duty of care (Neighbour Breach of legal duty of care Breach of legal duty
re Breach of legal duty of care
Waugh v. Duke Corp.
-In the defendant’s motel there
were floor to ceiling glass panels.
-A child walked into the glass
panel and suffered injuries.
-The hotel failed to construct
guards or verbal warning that a
panel exists.
-The court held that the duty
owed by adults to act reasonably
is usually greater when young
children are involved.
Breach of legal duty
(foreseeability test)
Mohamed Raihan bin Ibrahim &
Anor v Gov of M’sia
Facts- The plaintiff was injured by
a hoe wielded by a fellow pupil
during a practical gardening class.
The plaintiff alleged the
defendants had failed to give
adequate supervision and
instructions regarding the use of
gardening tools.
principle)
Donoghue v. Stevenson
Fact -The D, a ginger-beer
manufacturer, had sold ginger-beer
drinks to a retailer. The ginger-beer
bottles were opaque. A bought a
bottle and entertained a friend, the
P, who drank the ginger-beer.
When A refilled the glass, along
with the ginger-beer came the
decomposed remains of a snail.
The P suffered shock and was
severely ill as a consequence.
Held-The test to determine the
existence or otherwise, of such a
duty, was whether the plaintiff was
the neighbor of the defendant.
- The defendant being the
manufacturer of the ginger-beer
owed a duty of care to the plaintiff
as the consumer.
-The duty includes ensuring that
the drink did not contain any
noxious substances that is most
likely to cause injury to anyone
drinking it.
Damage (But-For Test)
Barnett v Chelsea & Kesington
Hospital Management Committee
Facts- The P’s husband went to the
D’s hospital when he started to
vomiting after drinking some tea.
The doctor instructed the nurse to
tell the plaintiff’s husband to go
home and call his on doctor.
Subsequently, the husband died of
arsenic poisoning and P sued the
hospital for negligence.
(foreseeability test)
Thomas v. Grand Hyatt Hotel
Fact- The plaintiff brought an
action alleging negligence on the
part of the defendant in connection
with a slip-and-fall incident at the
Grand Hyatt Hotel.
-The plaintiff was modelling clothes
on the space provided by the
defendant. While the plaintiff was
walking out of the stage, she
slipped and fell and injured herself.
Held- The plaintiff did not know
what caused her to slip and the
defendant was unaware of a
dangerous condition that caused
her to slip.
-The defendant was not in breach
of the duty to act reasonably to the
plaintiff.
Damage (Causation in
law/Remoteness of damage)
The Wagon Mound
Facts- Due to the negligence of
the D’s workers, who was working
on the ship that was anchoring at C
Oil Company for re-fuelling, some
oil had split onto the water and the
oil spread to the plaintiff’s wharf.
-The manager of the plaintiff upon
seeing the oil ordered the welding
work to stop. He asked C Oil
(foreseeability test)
Gov of Msia & Ors v Jumat bin
Mahmud & Anor
Fact- A pupil who was sitting
behind the plaintiff pricked the
plaintiff’s thigh with a pin. The
plaintiff turned around and his
eye came into contact with the
sharp end of a pencil which the
pupil was holding. The eyes
were badly injured and had to be
removed.
Held- FC held that in
considering whether or not the
Ds were in breach of their duty
of care, it was necessary to
consider whether the risks of
injury to the P were reasonably
foreseeable. Assuming it was,
the next question was whether
the Ds had taken reasonable
steps to protect the P against
those risks. In this case, the
court found that the particular
form mistress did not expose the
P to injury that was reasonably
foreseeable. Further, constant
vigilance in the classroom would
not have prevented the injury
sustained by the P.
Public Nuisance
AG for Ontario v Orange
Productions Ltd
Held- The organization of a rock
festival which generated
excessive noise, traffic and
apprehension was constituted a
public nuisance.
Private Nuisance
Elements of private nuisance
(Substantive)
Woon Tan Kan (Deceased) & 7 Ors
v. Asian Rare Earth Sdn Bhd.
Fact- The plaintiffs (residents of
Bukit Merah) alleged that the
activities from the factory
produced dangerous radioactive
gases harmful to the residents.
Held- Private nuisance was
established. Plaintiff's health was
being affected harmfully, to a
substantial degree.
Elements of private nuisance
(Unreasonableness)
Syarikat Perniagaan Selangor Sdn
Bhd v. Fahro Rozi, Mohdi & Ors.
Fact- The appellant who had lease
over a piece of land had agreed
and promised to use the land as
skating area, restaurant and
cinema. The A subsequently built
an open stage and staged some
shows. He also opened a night
club.
Held- A people who lived in the
urban area must be prepared to
accept a lot of noise from their
neighbours and he himself may
make noise; but no one has a right
to create excessive noise. The
appellant liable for nuisance.
Assault (Mere words does not
amount to assault)
R v Meade & Belt
Held- No words or singing are
equivalent to an assault.
Assault (Mere words does
amount to assault)
R v. Wilson
Held – The court held that tone of
voice, facial expression and gesture
are factors that should be
considered in determining whether
words can be seen as an assault.
Assault (Mere words does
amount to assault)
Read v Crocker.
Held- The words “if you do not
leave, we will break your neck”
constituted as an assault.
(Element of assault) Mental
State of the Defendant
Tuberville v. Savage
Fact- Savage had made some
insulting comments to Tuberville.
In response, Tuberville grabbed
the handle of his sword and
stated, "If it were not assize-
time, I would not take such
language from you." Tuberville
brought an action for assault to
which Savage pleaded
provocation.
Held- Tuberville’s express words
were precisely that he was not
going to harm Savage because
the justices of assize were in
town. Therefore, there could be
no assault. There is neither
intent nor an act, at least one of
which being required to
establish an assault. Thus,
Tuberville succeeded in his
action
The Effect on Plaintiff
(Element of assault)
R v St George.
Held- Pointing an unloaded gun
at a person constituted an
assault.
The Effect on Plaintiff
(Element of assault)
Blake v. Barnard
Held- The gun had to be loaded
before assault could be
established.
Element of battery (The
mental state of the
defendant)
Scott v. Shepherd
Facts: A lighted squib was thrown
by the defendant into an open
market area. A picked it up and
threw it upon B, who then picked
it up and threw it away. The squib
hit the plaintiff whereupon it burst
into flames.
Held: the defendant was liable
for the tort of trespass to person
although his initial gesture did not
directly affect the plaintiff.
According to the court, A and B
reacted for their own safety, and
so they did not have the required
‘intention’ to commit the act.
Capability to carry out the
threat (Element of assault)
Stephen v Myers
Facts: Defendant threatened to hit
the plaintiff and he advanced with
clenched fists upon the plaintiff. He
was stopped by a third party just
before he could reach the plaintiff.
Held: Assault was established as
there was a capability on the
defendant to carry out his threat if
he was not stopped by the third
party a few seconds before he hit
the plaintiff.
Element of battery (The
defendant’s act was under his
control)
Gibbons v. Pepper
Facts: The defendant was riding a
horse when someone hit the horse
from behind causing the horse to
bolt. The horse collided with the
plaintiff.
Held: The defendant was not liable
as the act of the horse bolting and
colliding with the plaintiff was
outside the defendant’s control.
Capability to carry out the
threat (Element of assault)
Thomas v National Union of
Mineworkers (South Wales Area)
Facts: There was a picketing miner
who threatened some other miners
who did not join in the picketing.
The picketing miners were in fact
controlled and observed by the
police.
Held: There was no assault as
there was no capability on the part
of the picketing miners to commit
any physical contact on the non-
picketing miners because of the
presence of police.
Element of battery (Physical
Contact)
Collins v. Wilcock
Facts: A police officer held a
woman’s arm with a view to
restraining her when the woman
declined to answer questions.
Held: The contact was a battery
since it was hostile as the police
officer did not have the authority to
detain her.
Bodily movement (Element
of assault)
Innes v Wylie.
Facts: A policemen, acting
under an instruction, prevented
the P from entering a room.
Held: if the policemen were
entirely passive and simply
obstructed the entrance of the P,
it will no assault. The question
was whether the policemen took
active measures to prevent the P
from entering the room, or did
he merely stand in the doorway,
passive and not move at all.
Thus, the court held that there
was no assault on the P as there
was no positive act of
obstruction from the policemen.
Element of battery (Without
the plaintiff’s consent)
Nash v Sheen
Facts: The plaintiff went to a
hairdressing salon where the
defendant used a tone-rinse
without first obtaining the
plaintiff’s consent. The plaintiff
unfortunately developed some
skin complications due to an
adverse reaction to the tone-
rinse.
Held: the consent given by the
plaintiff did not include the tone-
rinse and its consequences.
Battery was established.
Element of battery (Without
the plaintiff’s consent)
Tiong Pik Hoing v. Wong Siew Gieu
Facts: The defendant was liable
for battery for scratching the
plaintiff’s face and hitting her,
due to her jealousy of the
plaintiff’s friendship with her
husband.
Element of battery (Touching
that is presumed to be
applied consent.)
Donelly v Jackson
Fact: A police constable tapped
the accused on the shoulder to
stop him so as to talk to him. The
accused then retaliated by
striking the police constable with
some force. In his defence, the
accused claimed that his action
was justified as self defence since
the constable had bettered him.
Held: The act of tapping the
accused on the shoulder did not
constitute as battery. The court
held that the accused’s action
was not justified.
Element of false imprisonment
(Intention of defendant)
W Elphinstone v Lee Leng San
Held- False imprisonment cannot
be established through negligence.
Intention of the doer is a
prerequisite.
Element of false imprisonment
(Intention of defendant)
Warner v Riddiford
Facts: The defendant after
dismissing the plaintiff as resident
manager of beer-house prevented
him from going upstairs to collect
his belongings.
Held- This amount to false
imprisonment.
Element of false imprisonment
(Restraint must be a direct
consequence of the
defendant’s act)
Harnett v Bond
Facts – P live in asylum run by D2.
P was given a month’s leave but D2
was given the discretion to call the
P back if he felt that the P could not
look after himself during that 1
month. On his second day out, the
P went to an office to pay a visit to
some people. D1 who was there,
was of the opinion that the P was
acting strangely. He called D2, who
asked D1 to make sure that the P
stayed there, as D2 would send a
car round to fetch the P. The car
arrived some three hours later and
the plaintiff was brought back to
the asylum. D2 found the P to be
insane and did not let him out. For
9 years thereafter, the P was sent
from one institution to another. He
was finally proven sane and
released. The jury was of the
opinion that the P was sane 9 years
previously at the time of committal
to the institution.
The Court of Appeal found the D1
liable for false imprisonment during
the 3 hours’ restrain, and D2 for
the 9 years’ restrain.
Element of false
imprisonment (The restraint
must be complete)
Bird v Jones
Facts: Part of a public road had
been closed for spectators of a
boat race. Bird (P) wanted to
enter but he was prevented by
Jones (D) and other policemen
because he had not paid the
admission fee. Jones directed
him to take another route in
order to proceed to the other
side of the bridge. Bird refused
and remained there for half an
hour.
Held: No FI as the restraint was
not complete. P could have left
but chose not to. D did not
totally restrict his movements. D
merely did not allow P to go
where he wanted to go.