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Tort - Breach of duty
Breach of Duty
57
Law
Undergraduate 1
02/23/2010

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Cards

Term
After proving that D owes P a duty of care, what must P strive to prove?
Definition
that the D had been in breach of that duty.
Term
The test for determining whether the D had been in breach of that duty is the ?
Definition
test of 'reasonable man'.
Term
What is the basic question to be asked in the test of reasonable man?
Definition
whether the D's conduct fell below the standard of care which is expected of the reasonable man.
Term
In the test for reasonableness are D's own characteristics relevant?
Definition
No
Term
Persons who are engaged in profession requiring special skill or expertise are required not only to exercise reasonable care but must in addition measure up to ?
Definition
the standard of skill expected from persons of such profession.
Term
What is the name of the test for persons having special skill or expertise?
Definition
Bolam test
Term
What are the facts of the Case of Bolam?
Definition
  1. P broke his pelvis during an electro-convulsive therapy
  2. P claimed that the hospital should have given him relaxant drugs for the therapy session
  3. Held:Court held the D not liable
  4. Principle:Acted in accordance with the standards of reasonably competent medical men at the time
Term
Chin Keow v Government of Malaysia & Anor
Definition
  • Pr: Bolam
  • F:
    1.  D for prescribing penicillin which caused the death of the P’s daughter.
    2. Doc not make any inquiry to patient medical history
  • H: D liable
Term
Tan Ah Kau v Govt of Malaysia
Definition
  • Pr: Bolam
  • F:
    1. P was paralysed after a surgical operation
    2. P was asked to sign two blank forms before the operation 
    3. No explanation was given
  • H:  No consent was actually given by the P as he was not fully informed of the treatment.
Term
2 types of negligence in medical cases
Definition

 

  1. Diagnosis and treatment
  2. Failure to warn a patient of the risk
Term
Sidaway v Governors of Bethlem Royal Hospital
Definition
  • Pr:Bolam
  • F:
    1. 1% that Patient would be paralized
    2. Patient not informed
    3. Paralized
  • H:?
Term
Which test for professionals is followed today in Malaysia?
Definition
Roger vs Whitaker Test
Term
The roger whitaker test came as a result of which case?
Definition
Foo Fia Na vs Foo Sook Mun
Term
What does the roger whitaker test state?
Definition
It is for the courts to adjudicate on what is the appropriate standard of care
Term
Foo Fio Na vs Soo Fuk Mun
Definition
  • Pr: Roger Whitaker
  • F: P paralyzed and not been told about risk
  • H: D liable
Term
Neogh Soo Oh & Ors v Rethinasamy
Definition
  • Pr: Roger Whitaker
  • F:
  1.  
    1. D lawyer to P to act out in purchase of land
    2. P suffer loss due to Neg of D
  • H: D Liable

 

Term

 

Mohd Nor Dagang v Tetuan Mohd Yusof
Definition

P:roger whitaker to legal profession.

F: P claimed lawyer neg therefore held liable

H: princple of rondel. immunity of lawyers.

 

Term
Government of Malaysia v Jumat Mahmud & anor
Definition

p: roger whitaker

f:

  1. student pricked in thigh stabbed in eye
  2. teacher held liable.

H:

  1. not laible
  2.  teacher's duty is not a duty of insurance against harm but only a duty to take reasonable care
Term

 

Mohd.Raihan v Govt. of Malaysia
Definition

P: roger whitaker. 

—
H:  D liable. Not taking all reasonable and proper steps to prevent injury.
F: appellant struck by cangkul during gardening class.
Term

 

Zazlin Zahira v Louis Marie
Definition

P: Roger whitaker

F: student hurt in piano class.

H: 

—The court dismissed the P's claim as the nature of the music class was not one which posed danger and was not foreseeable to cause injury to pupil.
Term

 

Nettleship v Weston
Definition

P: Roger whitaker

H: liable. standard of care of learned and begginer are equal.

Term
Definition

P: Roger whitaker.

H:

  1. The driver was found liable in negligence even though when the accident occurred his consciousness was impaired by stroke.
  2. —
  3. The court felt that he ought to have been aware that he was unfit to drive.
Term

 

KR Taxi Service v Zaharah
Definition

 

—
  1. duty of a driver only to exercise reasonable care 
  2.  driver is not under a duty to anticipate the negligence of others.
H:
Term

 

Zainab v Gan Eng Hwa
Definition
  • P: Roger Whitaker
  • Exception: The case seems to place a higher standard of care.
  • F:
  1.  
    1. Road accident between bus and  car
    2. Happened when the driver of car pulled out to the right into the path of the oncoming bus in order to avoid accident with another car in front of him which suddenly stopped because of the parked lorry blocking his way.
  •  

    H: The court held that the driver was negligent for driving at an excessive speed, which was why he was faced with the emergency situation when the other car suddenly stopped.

     

Term
Factors of the objective standard
Definition

 

  1. Magnitude of the risk
  2. Current knowledge
  3. The utility of the D’s conduct
  4. Practicability of precautions
  5. General and approved practice
Term

 

The law does not require the highest possible degree of care, but that care which is proportionate with which two concepts of Magnitude of Risk? 
Definition
  1.  Gravity : seriousness of the injury 
  2. Frequency: likelihood of its occurring 
Term

 

Bolton v Stone
Definition

Pr: Magnitude of Risk

F:

  1. P hit by criket ball
  2. Happened 6 times in 30 yearsa

H: D not Neg due to min of risk.

Term
Miller vs Jackson
Definition

Pr: Magnitude of risk

F: criket balls continuly damaged property of P

H: D Neg due to magnitude of risk

Term
Paris v Stepney Borough Council
Definition

Pr: Magnitude of risk

 

F:

  1. P working in area with lots of splinters
  2. Suffered injury
  3. D did not provide googles

H:

  1. D liable
  2. Higher standard of care due to seriousness of injury
Term
Current knowledge
Definition

 

a person cannot be blamed for not knowing what has been at the time unknown
Term
In area such as Medicine and Tech, D is entitled to be judged against what kind of standards?
Definition

 

—According to the standards that were accepted at the time when the incident occurred due to the rappdily change nature of knowledge. Hence the principle of current knowledge applieds
Term
Roe v Minister of Health
Definition

Famous quote: 

We must not look at the 1947 accident with 1954 spectacles
F:
  1.  P paralyzed after syrgey due to leakage of Disinfectant
  2. At that time, was not known that the disinfectant can seep throught ampoules
  3. This was standard procedure

H: not liable

Term

 

The utility of the D's conduct
Definition

 

If the benefit of the D's activity is more than the risk, the court may hold the D not liable in negligence
Term

 

Watt v Hertfordshire Country Council 
Definition

Pr: Utility of Jacks conduct

F:

  1. Heavy jack needed to save women
  2. Fire fighter carried jack in unsuitable lorry
  3. Fire fighter hurt in proccess

H: 

the risk taken in transporting the jack was outweighed by the need  to get there quickly in order to save the woman’s life
Term

 

Hilder v Associated Portland Cement Management 
Definition

Pr:Utility of D's conduct

F: 

  1. D allowed children to play foot ball in feild
  2. Feild next to high way
  3. Motorcyclist killed by ball

H:

  1. D liable
  2. Risk of Social utility of keeping children of highway was not out weighed by the danger posed to ppl on the highway. 

 

Term

 

Practicality of precautions
Definition

 

  1. In deciding whether the D had breach the duty, the court will take into account the step taken by the D to reduce, minimize or avoid the risk.
  2. Generally precautions should proportionate to the risk.
Term

 

Latimer v A.E.C.Ltd
Definition

Pr: Practicality of Precautions

F:

  1. Heavy rain caused soil and water to be on floor of factory
  2. Precaution of sawdust
  3. P slipped and injured

H: Not liable as all precautions taken

 

 

Term

 

Hamzah & Ors v  Wan Hanafi
Definition

Pr: Practicality of precautions

F: Allegation that not enough precautions take for ppl to be away from steps of train

H: Non liable. Enough precaution of sign boards and warnings

Term
General and approved practice
Definition
In deciding whether the D has acted reasonably, the courts may look at the general practice in the relevant field
Term
General Cleaning Contractor v Christmas
Definition

Pr: General approved practise

F: Window cleaner fell

H: Although job was common practise. should have provided safer system. Liable

Term
Aik Bee Sawmill v Mun Kum Chow
Definition

Pr: General and approved practise

F:

  1. Did not use cross bar to lift plank
  2. Injured

H: Liable cuz neve taught how to use corssbar.

Term
Cases of Roger whitaker in the Legal profession
Definition
  1. Neogh Soo Oh & Ors v Rethinasamy (liable) 
  2. Mohd Nor Dagang v Tetuan Mohd Yusof (non liable)
Term
Cases Roger whitaker in the teaching profession
Definition

 

  1. Government of Malaysia v Jumat Mahmud & anor (non liable)
  2. Mohd.Raihan v Govt. of Malaysia (liable)
  3. Zazlin Zahira v Louis Marie  (non liable)
Term
Roger whitaker in the driving profession
Definition
  1. Nettleship v Weston (liable)
  2. Roberts v Ramsbotton (laible)
  3. KR Taxi Service v Zaharah (nonliable)
  4. Zainab v Gan Eng Hwa  (liable higher standard of care)

Term
Cases of Magnitude of risk
Definition
  1. Bolton v Stone (laible)
  2. Paris v Stepney Borough Council (liable)
Term
Cases of current knowledge
Definition
Roe v Minister of Health (nonliable)
Term
Cases of Utility of D's conduct
Definition

Watt v Hertfordshire Country Council  (laible)

Hilder v Associated Portland Cement Management  (liable)

Term
Cases of practicality of precautions
Definition
  1. Latimer v A.E.C.Ltd (non liable)
  2. Hamzah & Ors v  Wan Hanafi  (non liale)
Term
 cases of general and approved practise
Definition
  • General Cleaning Contractor v Christmas
  • Aik Bee Sawmill v Mun Kum Chow
Term
Cases or roger whitaker in legal profession
Definition
  1. Neogh Soo Oh & Ors v Rethinasamy
  2. Mohd Nor Dagang v Tetuan Mohd Yusof
Term
Roger whitaker in Teaching profession
Definition

 

  1. Government of Malaysia v Jumat Mahmud & anor
  2. Mohd.Raihan v Govt. of Malaysia
  3. Zazlin Zahira v Louis Marie  
Term
Roger whitaker in the Driving profession
Definition
  1. Nettleship v Weston
  2. Roberts v Ramsbotton
  3. Zainab v Gan Eng Hwa
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