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Negligence: Factors affecting negligence (part 2) - Coggle Diagram
Negligence: Factors affecting negligence (part 2)
Factors determining the SOC
The courts will look at the following factors when deciding what is "reasonable"
The likelihood of injury/harm
The seriousness of the risk
Cost and Practicability
Social utility
Common practice
A)
The SOC: The likelihood of injury/harm
The
degree of care
that is exercised
depends on the amount of risk
If there's a high risk of injury/harm then greater care must be taken
But if the risk of injury/harm is low then the degree of care needed is less
Bolton v Stone (1951):
Facts: Claimant was hit by a cricket ball that had been hit out of the cricket ground. It hit C who was standing on the pavement outside her house. The ball travelled about 100 yards to the edge of the field which is covered by a 7ft wall and such things happened rarely
Held: Although a reasonable man may foresee many risks, life would be inconvenient if precautionary measures are to be taken for all foreseeable risks. C lost.
Per Lord Normand: "It is not the law that precautions must be taken against every peril that can be foreseen by the timorous".
Miller v Jackson (1977):
Facts: Cricket ball is hit out of the fence of the cricket field about 8-9 times per season, and claimant's property was damaged a couple of times
Held: Risk of injury to the claimant was high and the defendant is liable each time the ball damaged the claimant's property. Precautionary measures used by the defendant was insufficient to overcome risk of injury to the claimant
Susan Cheah v Maybank Finance (2003):
Facts: A break in occurred in the strong room of the defendant's premises where the safe deposit box by the claimant's was there.
Held: Defendant liable for claimant's loss of valuables. Defendant acted below the reasonable SOC by not installing advanced security system in their premises
B)
The SOC: Seriousness of the Risk
The degree of care which should be exercised may be
greater if claimant is:
Very young/children
Senile
Disabled in some way
Paris v Stepney Borough Council (1951):
Facts: Claimant (blind in 1 eye) got totally blind as a result of a metal chip entering the other during his employment. Defendant negligent as he failed to provide goggles although its not usual to do it
Held: Defendant liable. Duty of an employer must have regard for potential risk of injury to each employee. Injury to claimant was more serious compared to someone with vision for both eyes
C)
The SOC: Cost of Taking Precaution
Risk must be
measured against precaution
that needs to be taken and all precaution
measures done by the defendant
will will be considered in
determining the reasonableness
of the defendant's conduct
If
cost greatly outweighs risk, then defendant will probably not be in breach of his DOC
Latimer v AEC Ltd (1953):
Facts: Flooding occurred in a factory owned by defendants during an unusual spell of rain which left the floor slippery. Defendant covered the wet parts with sawdust but not enough used. Claimant injured where he slipped on an uncovered area and sued.
Held: HoL agreed that the only way to get rid of danger was to close the factory. But given the level of risk (given that the slippery part was clearly visible) such precaution would be too minor. Hence defendant not liable
Hamzah & Ors v Wan Hanafi bin Ali (1975):
Facts: Claimant, a passenger in the train was injured when he got off the train before it has fully stopped. Defendant negligent for not taking steps to ensure passengers were not standing near the door, as defendant is aware that passengers get off before the train fully stops.
Held: Claim failed as defendant done reasonably and sufficiently to safeguard passenger safety. Written notices are also everywhere in train
Social Utility - What are the benefits of taking the risk?
There is lower SOC when reacting to emergency situations
The
degree of risk must be balanced with importance to society of the defendant's action
The
more important an action
may be for the
public benefit
, courts will consider that it's
reasonable to run some risk
This is consistent with the 3rd element of negligence: fair, just and reasonable
Watt v Hertfordshire CC (1954):
Facts: Claimant is a fireman who answered an emergency call for a woman trapped under a lorry. A fire-jack was used but it fell and hurt the claimant and he was hurt. Claimant claimed that DOC is breached and brought action against employer
Held: Employers are not liable as the risk must be measured against the importance of the object to be obtained (rescuing the woman)
Mahmood v Govt of Malaysia & Anor (1974):
Facts: Police officer is alleged to have negligently and unlawfully shot the claimant
Held: Police not negligent at shooting claimant as police had reasonable suspicion that an offence is being committed at the accident. Shots are justified to prevent him from escaping
SOC: Common Practice
If defendant can show that his
behavior is common practice
for that situation (what a reasonable man would do in that situation), then no breach of DOC
General Cleaning v Christmas (1953):
Facts: Claimant was cleaning a window above the ground. He fell from the ledge of the window and injured himself
Held: HoL held that even though standing at window ledge is a common practice for window cleaners, it is still a dangerous practice and the defendant as employer is liable for not providing a safer system of work
Aik Bee Sawmill v Mun Kum Chow (1971): - Facts: Claimant did not use crossbar to lift planks onto lorry in the process planks fell on him. The general practice is that crossbars are used to lift planks
Held: Since plaintiff was not taught to use the crossbar, defendant is liable
Res Ipsa Loquitur
Definition:
Means
"When the facts speak for themselves"
.
When the facts are so obvious against the defendant, that the claimant can rely on the mere happening of the accident as evidence of negligence
Burden of proof shifts to defendant where he has to introduce new evidence to explain why there is no negligence on his part
Application of the maxim
:
Damage is caused by
something under the responsibility/control of the defendant
Event could not have happened without negligence
(if there's another explanation for the event, the maxim will fail)
3.
If defendant can show reasonable explanation for event that won't involve his negligence
, the maxim will fail
Scott v London & St. Katherine Docks Co (1861-1873):
Facts: Claimant a customs officer was in-charge of weighing goods at the defendant's warehouse. He was suddenly and violently hit by a bag of sugar where he suffered serious and permanent injuries
Held: Claimant did not adduce sufficient evidence of negligence on the defendant's part, claim failed
David Chelliah @ Kovilpillai Chelliah David v Monorail Malaysia Technology Sdn Bhd & Ors (2009):
Facts: Claimant was standing at a road divider directly below a train track. A safety wheel from the train fell and hit the claimant where he suffered serious injuries
Question was whether the claimant was entitled to rely on res ipsa. If not the claimant would have to prove how the wheel came off the train to prove negligence of defendant
Held: As the defendants were unable to give a reasonable explanation on how the wheel came off, Court held negligence is proven against them and hence they are liable to he claimant