QUESTION

Abu who is a contractor, was engaged to for a

repair and maintenance work for a lift at Sura
Putera Apartment last month. He then left the lift
at noon with the intention of coming back after
lunch hour to continue with his repair work.
However, no sign of warning or any kind of
barricade was put at the lift to warn people that the
lift was out of order. While Abu was away, Joe
entered the lift and was badly injured when he fell
down the lift shaft. Joe now wishes to take a legal
action towards Abu.

ISSUE

GENERAL
RULES

Whether Joe can take legal action against Abu under the
law of tort.

Definition of Tort: It is the body of rules which determines in

what situation a person is liable to compensate the injured
party. The definition of Tort by Winfield, tortious liability from
the breach of duty primarily fixed by law, this duty is towards
a person generally and its breach is repressible by an action
for unliquidated damages.

Negligence as a tort is the breach of a legal duty to take

care, which results in damage, undesired by the defendant,
to the plaintiff. In the case of Blyth v Birmingham
Waterworks Co., negligence is the omission to do
something, which a reasonable man, guided upon thus
consideration which ordinarily regulate the conduct of
human affairs, would do; or doing something which is a
prudent and reasonable man would not do.

In the case of Lochgelly Iron and Coal Co. v. McMullan,

negligence can be defined as beyond careless conduct of
duty and it properly connotes the complex concept of duty,
breach and damage thereby suffered by the person to
whom the duty of owing.

There are three elements of negligence which is duty of

care, breach of duty of care, causation and damages.

Duty of care exists in normal circumstances whereby if a

person does not take the usual degree of precaution
another person or his property maybe injured or damaged.
The primary test to determine the existence of a duty of care
is known as the neighbor principle. The neighbor principle
can be tested using the Reasonable Man Test.
According to Lord Atkin, you must take reasonable care to
avoid acts or omissions which you can reasonably foresee
would be likely to injure your neighbor. The neighbor
mentioned above is the persons who are so closely and
directly affected by ones act. It consists of 2 parts which is
the foreseeability test and proximity test. Foreseeability test
determines whether you take reasonable care to avoid acts
or omissions in which you can reasonably foresee that
would likely injure your neighbour. As for proximity Test, it is
to identify the neighbours as in those who are directly
affected by the defendants act. In the case of Home Office
v Dorset Yacht co ltd (1970). In the house of lords, Lord
Reid emphasis on foreseeability. The taking by the trainees
of a nearby yacht and the causing of damage to the other
yacht which belonged to the respondents ought to have
been foreseen by the borstal officers as likely to occur if
they failed to exercise proper control or supervision. Hence,
they are liable.

Second element is the breach of duty of care. Breach is

determined through the Reasonable Man Test would a
reasonable man have acted as the defendant has done if
the reasonable man was forced with the same
circumstances as the defendant. The usual norm and
activities in a particular society or a particular profession will
be considered in determining the reasonableness of the
defendants conduct.

In the case of Bolam v. Friern Hospital Management

Committee, in the judgement of this case, Per Mcnair J.
explained that negligence does not involve any special skill.
Negligence means the failure to do some act which a
reasonable man in the circumstances would do, or doing
some act which a reasonable man in the circumstances
would not do and if that failure or doing of that act results in
injury, then there is cause of. Negligence means failure to
act with the standards of reasonably competent medical
men at the time. There may be one or more perfectly
standard and if he conforms to one of those proper
standards, then he is not negligent.

In the case of Kow Nan Seng v. Nagamah & Ors. The

Federal Court held that the duty of a doctor towards his
patient was that he must adhere to the reasonable standard
of care and expertise. If there were differences in opinions in
terms of the types of plasters that may be used, the
defendant would not be liable for negligence as long as he
opted for a treatment that was generally accepted within the
profession.

The standard of duty of care for doctors under the

professional defendant who are specialized in particular
skills are considered professionals and they are bound to
exercise the care and skill of ordinary competent practitioner
in that profession

The third element, damage is a loss or injury suffered that

caused the defendants breach of duty.

As propounded in Barnett v. Chelsea & Kelsington Hospital

Management Committee. It was held that the doctor had
breached his duty of care for not treating the patient. It was

however found that the breach did not cause the plaintiffs
husbands as evidence showed that the patient would have
still died even if the doctor had treated him. The defendant
was accordingly held not liable.

APPLICATION

Therefore in this case, Abu has a duty of care towards Joe.

As he his directly affected by his negligent. Also, Abu filled
both proximity and foreseeability test as to why he is liable
to his negligent. Abu was required to put safety measures
warning signs around the area of the construction site as a
reasonable man would have done the same. By not placing
safety measures abu has fail the reasonable man test thus
failing to meet the standard of care required by him. So a
breach of duty was established.
The test to determine the existence of duty of care is, the
plaintiff must be the neighbour to the defendant and this is
known as Neighbour Principle. According to Lord Atkin, the
neighbour is the person who are so closely and directly
affected by defendants act whereby defendant should
anticipate that his act or omission will adversely affect the
plaintiff. In this case, there is a neighbour relationship
between Joe and Abu because Joe is the resident
Therefore, Abu is under a duty to take care of the residents
since their action could definitely affect them.

In addition, there is a breach of duty of care Joe and Abu.

Breach is determined through the Reasonable Man Test
would a reasonable man have acted as the defendant has
done if the reasonable man was forced with the same
circumstances as the defendant. In this matter, the
defendant owes a duty to the plaintiff to take precautions as
it is foreseeable that the plaintiff would likely to be injured as
a result. If the defendant did not take precautionary actions
by putting a signboard or give a simple warning signs, the
defendant is considered as breaching their duty to act

reasonably towards the defendant as he knew the

consequences of it is that it would likely to injure the
residents. Therefore, Abu should have acted reasonably by
giving a warning signs before leaving the construction area
because it has caused Joe to fell down the lift shaft and
become injured.

The third element is when the breach of duty becomes the

direct cause of another person's injuries. The type and
severity of injuries must be related to a failure to act in a
reasonable way. The source of the breach could be a
person, business, organization, or other entity. In this case,
Joe has a legal right to claim for a remedy because she has
been aggrieved by the act of the defendant. Damages are
monetary awards. In in a legal sense, damages refers to
monetary compensation that is claimed by a person or
awarded by a court in a civil action to a person who has
been injured or suffered loss because of the wrongful
conduct of another party. Example of damages that can be
claimed under negligence are physical injury, property
damage, economic loss and nervous shock. Basically, to
win a lawsuit, a plaintiff must have suffered injury as a result
of the defendants breach of duty. In this matter, Joe had
suffered from injury by the act of defendant for not giving a
warning signs that caused Joe to fell down the lift shaft and
caused him injuries.To determine whether the plaintiff
suffered damages owing to the breach of duty, the
Foreseeable Test will be implied. The principles of these test
are that the damage must be foreseeable or can be
anticipated as well as it must not be toe remote
consequences of the defendants conduct and the type of
damage must be foreseeable. Thus if the damage that
occurs is of a different nature than what is foreseeable, the
defendant will not be liable. This test is based on the
compensation principle in that liability is only extended to
reasonably foreseeable damage. Based on the case of
Donoghue v Stevenson, the plaintiff had suffered shock and

became severely ill after drinking ginger beer from a bottle

which had a decomposed snail in it. Hence, it is evident that
the plaintiff suffered injury due to the defendants
negligence. Hence, Joe, as a claimant is entitled to
damages for actual and prospective pain that she is
suffering caused by the negligent of Joe because it
attributed her to seek for a medical treatment.

CONCLUSION

Abu is liable for negligent as he met all the criteria as he

failed to execute his conduct with proper manner and
reasonable care.