THE BEST POSSIBLE WAY OF ESTABLISHING THE DUTY OF CARE PRINCIPLE IN MALAYSIA
HI guys...
wanna update this post with a lot of self-opinion & summarized notes...
hope u guys can used it up for your coming law journey or whatsoever...
JUST WANNA SHARE THIS NOTES SO THAT IT CAN HELP U GUYS IN GETTING STARTED TO KNOW SOME BASIC PRINCIPLE IN THOSE FOLLOWING LAW's FIELD...
WHATEVER IT'S BOOKS SEEM TO BE THE BEST SOURCES TO BE RELIED ON RATHER THAN BLOG & WHATSOEVER....
*If u know what i mean :)
THIS POST IS ABOUT MY SELF-OPINION ON THE BEST POSSIBLE WAY OF ESTABLISHING THE DUTY OF CARE PRINCIPLE IN OUR COUNTRY -BASED ON THE 3 PREVIOUS MAIN TEST: DONOGHUE, ANNS & CAPARO-
NEW
MODEL
As
all of the three tests have been examined carefully, it shall be fair and just
for us to lay down our suggestion on what actually matters in the scope of duty
of care. Here, the combination of the tests in the ‘Neighbour’s Principle’ which was derived from the case of Donoghue
v Stevenson[1]
and ‘Three-Fold Test’ which
was derived from the case of Caparo Industries v Dickman[2]
would be the main focus in order to construct the new model or test in which
can be applied both in general and specific ways. Meanwhile, the second element
in Anns test which was derived from Anns v London
Borough of Merton[3], in regards of the policy protection will be put under the
defence part.
This
new model designed would aim for an objective of being more systematic. Before
those combinations were being explained more in details, it is relevant for the
tests in all case, Donghue, Ann and Caparo above to be restated again;
Neighbour’s
Principle – Donoghue v Stevenson – only applicable for physical and property
harmed.
ü
Proximity
between the alleged wrongdoer and the person who has
suffered damage.
ü
Foreseeability
that the act of defendant in the views of reasonable man will cause harmful
effect upon the plaintiff.
ü
Prima Facie Duty of Care – Proximity
and Foreseeability
ü
Policy - whether there are any
considerations which ought to negative, or to reduce or limit the scope of the
duty of the defendant.
Three-Fold Test
- Caparo & Co. v Dickman – only applicable for pure economic loss.
ü
Proximity
between the alleged wrongdoer and the person who has
suffered damage.
ü
Foreseeability
that the act of defendant in the views of reasonable man will cause harmful
effect upon the plaintiff.
ü
If
both of above requirements had been answered affrimatively, it is now relevant
for the next element to be look at; “Is it fair, just and reasonable for such
duty to be imposed upon the defendant”.
Based
on the fact that both test have different approaches or aims, here we would
like to try to give a model, which can be used irrespective of types of loss
suffered by the plaintiff. This is important as the courts can directly apply
this concept when there is a negligence case being filed up. As for this new
model of test for duty of care, the elements and defence involved in general
will be such as below;
As
can be referred above, the first element involved is foreseeability. As per the
concept of foreseeability produced in Donoghue, the same thing applied here.
The concept of foreseeability would be in short is “whether a reasonable man in
the defendant’s side can foresee that his conduct in which he was negligent in,
would result in giving the plaintiff a harmful effect”, as the explanation upon
this concept has been done widely in the Donoghue’s case personally. But here,
it must be noted that the type of harm is totally irrelevant to be looked at,
i.e., there is no need for one to have a specific loss or harm in order for
him/her to bring an action upon the tortfeasor.
Back to the point of foreseeability, here, we
only give a slight emphasis on the second element from the neighbour’s
principle as we believed that once foreseeability factor had been fulfilled,
the proximity part also would be indirectly fulfilled. This can be seen for
example in the Donoghue’s case. Imagine if there is only one factor to be look
at that is foreseeability, and not proximity, the result will still be the
same. As we go along in seeking whether the act of Stevenson, the defendant as
the gingerbeer manufacturer that was negligent in inspection and also in making
sure that his product was safe to be consume, he does breached the duty of care
upon his customer. If we determine that concept of duty of care originally according
to the element prescibed in the case of Donoghue, we are actually indirectly
repeating our effort in seeking the first element while we are doing the second
element. This is because the relationship between the parties that must be
closely and directly affected by the defendant’s negligent act is totally
relevant point to be figured out via second element that is foreseeability. As
for that, it is very relevant for the first element that is proximity to be put
aside, as the element of foreseeability does already cover all of it.
Meanwhile,
the second element is extremely needed to cut off the floodgates opened via the
general usage of neighbour’s principle. The element of ‘Is it fair, just and
reasonable to impose such liability on the defendant is very important to be
applied. This is because through this element the floodgates of neighbour
pronciple can be controlled. This element can also help in making sure that the
defendant would only owe a duty of care upon the plaintiff if the situation
really does say so. If this element were absent, there are no controller upon
the usage of neighbour principle. Here, it must be noted that although this
element was derived from Caparo, it is not only meant to be for the pure
economic loss situation, in which the Caparo case was all about. The
application is wide, and generally can fit in every condition.
To test this up, it is relevant to use
Donoghue situation. Imagine if the first element of this new model, that is
foreseeability had already been fulfilled. Now our focus is on the application
of the second element that is, ‘is it fair, just and reasonable to impose such a
duty of care upon the defendant?’. Based on the facts of the case in Donoghue,
the relevant issue upon the second element would be, ‘Is it fair, just and
reasonble to make Stevenson liable for negligent in inspection and safety of
the product?’ The answer would be yes, as it will help to make other
manufacturer extra careful on the production of their goods that will be used
by their consumer. It is not limited to the situations of products for
consumers but, it can also be used in
situations that involved surveillance or custody such as in the case of Reeves v Commissioner of Police of
the Metropolis[4]
as had been discussed earlier. Thus, the application of this second
element is very important in seeking the more just, fair and reasonable methods
upon determining the existance of a duty of care.
However,
the elements in the Anns’ test will be put aside not just because it has been
overruled by Caparo’s, but also based on the fact that the elements that it had
laid down just make those test to be one of the way for the defendant to escape
from the liability of negligence done in
the name of policy protection. As this test seems to be bias and had make the
defendant to have an option to avoid the liability due to his/her negligent
act, it is relevant that the test to be put aside.
But
here, it must be noted that the fact that we put aside all the elements in Anns
test to redesign the model does not mean we only put our view only on the test
solely. Here, we would love to make a slight difference in the usage of this
test via making the third element in the Ann test, that is ‘whether there
are any consideration in which ought to negative, or to reduce or limit the
scope of the duty or the class of person to whom it is owed or the damages’
as a defence for the accused party, the
defendant. This is important as we generally believe that this element shall
act as a shield and not a weapon by the defendant. The fact that this third
element be included as one of the element in the test is quite irrelevant as in
our humble opinion it will just make the defendant to use it as one of the
weapon to kill the plaintiff against him/her as the unfulfillment for any
element would cause a failure in the case bring up in the court. But if we
treat the third element as a defence, it will seem to be more fair and just for
both parties as the plaintiff will be evenly treated upon their cause of
action, and at the same time give the option upon the defendant to defend
him/herself upon the tort accused.
As
for that, the new model seems to us to be the most simple, well-fitted and
systematic way in determining the existence of a duty of care. Although it only
varies in certain part, but still, small change can lead to a big difference.
As we go along with tort evolvement, this might be one of the positive way in
which the element of torts, specifically on the negligent part, can be developed.
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