Tort Law in Malaysia

INTRODUCTION


Torts are legal wrongs that one party suffers at the hands of another. Negligence is a form of tort which evolved because some types of loss or damage occur between parties that have no contract between them, and therefore there is nothing for one party to sue the other over.

In the 1932 case of Donoghue v Stevenson, the House of Lords decided that a person should be able to sue another who caused them loss or damage even if there is no contractual relationship. Donoghue was given a bottle of ginger beer by a friend, who had purchased it for her. After drinking half the contents, she noticed that the bottle contained a decomposing snail and suffered nervous shock as a result. Under contract law, Donoghue was unable to sue the manufacturer because her friend was party to the contract, not her.

However, the House of Lords decided to create a new principle of law that stated everyone has a duty of care to their neighbour, and this enabled Donoghue to successfully sue the manufacturer for damages.

In order to prove negligence and claim damages, a claimant has to prove a number of elements to the court.These are:

• the defendant owed them a duty of care
• the defendant breached that duty of care, and
• they suffered loss or damage as a direct consequence of the breach.

Even if negligence is proved, the defendant may have a defense that protects them from liability, or reduces the amount of damages they are liable for.

Duty of Care

The concept of a duty of care was created in the Donoghue case. The House of Lords stated that every person owes a duty of care to their neighbour. The Lords went on to explain that ‘neighbour’ actually means ‘persons so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected’. The later cases of Anns v Merton London Borough Council (1977) and Caparo Industries plc v Dickman (1990) restricted the definition a little by introducing ‘proximity’ and ‘fairness’.

Proximity simply means that the parties must be ‘sufficiently close’ so that it is ‘reasonably foreseeable’ that one party’s negligence would cause loss or damage to the other. Fairness means that it is ‘fair, just and reasonable’ for one party to owe the duty to another.

Breach of Duty of Care

In many cases brought before the courts it is evident that a duty of care exists between the defendant and the claimant. The real issue is whether or not the actions of the defendant were sufficient to meet their duty. To determine this, the court will set the standard of care that they should have met.  This ‘reasonable’ standard may be adjusted given the actual circumstances of the case.

Circumstances which may be taken into account include whether:

• The actions the defendant took are in line with common practice or industry recommendations.
• There was some social benefit to the defendant’s actions.
• There were practical issues that prevented reasonable precautions being taken, or unreasonable cost would have been involved in taking them ; and many more.

Loss or damage as a result of the breach

In this element the claimant simply has to prove that the loss or damage was a direct consequence of the defendant’s breach of duty of care. In other words that there is a chain of causality from the defendant’s actions to the claimant’s loss or damage.   A simple test, called the ‘but for’ test is applied. All the claimant has to prove is that if it were not ‘but for’ the actions of the defendant then they would not have suffered the loss or damage. Where there is more than one possible cause of the loss or damage, the defendant will only be liable if it can be proved that their actions are the most likely cause.

The loss itself must not be ‘too remote’. It is an important principle that people should only be liable for losses which they should have reasonably foreseen as a potential outcome of their actions. The Wagon Mound (1961) is a case often cited in explanation of this principle.

Defences

There are two defences a defendant can use where they are found liable for negligence. One will exonerate them completely while the other reduces the level of damages they are liable for. 

Volenti non fit injuria simply means the voluntary acceptance of the risk of injury. If a defendant can prove the claimant accepted the risk of loss or damage, they will not be liable. Acceptance can be express (usually by a consent form being signed) or implied through the claimant’s conduct.

Contributory negligence takes part of the blame away from the defendant if it can be proved the claimant contributed in some way to their loss or damage. The defendant is still liable, but will face a reduced damages payout.