Common Law (22034)Presentation 2 - Assessment No 8

Presenter: MUHAMMAD FADHIL BIN ISMAIL

ID: SHT 09-07 1912

Class: HND 2C

Instructor: MR. AHMAD SHAHRIMAN BIN AHMAD TEKMEZI

What is Negligence???Means that someone was careless and

as a result of being careless, (careless conduct). It is also a breach of careless duty to take care which result in damage, undesired by the defendant to the plaintiff

It falls below the recognized standards of behavior established by low for the protection of others against unreasonable risks of harm.

A person has acted negligently if he/she has departed from the conduct expected of a reasonably courtesy person acting under the same or similar circumstances

There are 3 steps in proving negligence, the plaintiff must prove:

Must take care the duty of care, (legal duty to take care)

Behaviour of defendant in the circumstances did not meet the standard of care which a reasonable person would meet in the circumstances (breach of duty)

A plaintiff has suffered injury for which a reasonable person in circumstances which might have been expected to predict (remoteness of damage)

Legal duty to take care The element determines whether the type of loss suffered

by the plaintiff in all the circumstances of the case is actionable.

Towards the person in the surrounding Must done the neighborhood test, closely & directly

affected by the defendant. E.g: Case Donaghue v Stevenson (1993)

The customer claims compensation from the manufacturer as he found decomposed remains of snail in his ginger beer.

Breach of dutyThis element is concerned with the standard of

care that have been adopted in all the circumstances of the cases, and assesses the extent to which the standard of care exercised by the defendant fell short of that expected.

Responsible Test, to determine the below minimum standard requirementSkillKnowledgeExperience

E.g: Case ROE v Minister of Health (1954)Using responsible test, knowledge Dr.G already take precaution, he is not negligent

because of skill/knowledge at that time.

Remoteness of damageThis element covers the issue of fact and

an issue of the law.Issue of fact – the extent to which the

actions of the defendant were the factual cause of the plaintiff’s loss

Issue of law – the extent to which the law recognizes the loss sustained by the plaintiff and provides compensation for such loss

E.g: Cases Barnett v Chelsea and Kensington Hospital Management Committee (1968)

The man vomit after drink a tea, go to doctor and the doctor ask to go home, the man died because of arsenic, the possibly for him to live is impossible.

BEHRANG: Four people will forever be remembered as good Samaritans who died trying to rescue their friends trapped in a bus that skidded and keeled over when a sand-laden trailer ploughed into it in a gruesome accident along the North-South Expressway. The four are SMK Air Merah Form Three students Khairul Anwar Azhan and Maysarra Zaidi, both 15, their teacher Siti Hajar Mohamad, 33, and Kampung Alor Teja Wanita Umno branch chief Basarah Saad, 45. The students and teacher were on their way from Kulim to Kuala Lumpur when their bus overturned. It was then rammed by the trailer at the 382nd kilometre of the North-South Expressway, 100m from the rest area here, at about 4.20am yesterday.

Case Study Given

Case Study Given

Khairul, Maysarra and Siti had crawled out and were doing their best to pull the others out. Basarah, who was on another bus, had got off the vehicle to help the teachers and students in the overturned bus when the trailer rammed into it. The trailer which hit Khairul, Maysarra, Siti and Basarah also overturned. Siti was decapitated and lost her leg while Maysarra was buried in the sand. Rescue personnel pulled out Maysarra's body out of the sand six hours later, but that, too, by accident they were looking for Siti's leg. Tanjung Malim acting OCPD Supt Md Tahir Kasim said the bus involved in the accident was carrying 36 students and three teachers.

“There were two drivers on board. Initial investigations showed that the driver at the wheel lost control of the bus after one of the front tyres burst. “The bus swung to the left and overturned. While attempts were being made to get the students and the teachers out, a trailer hit the stationary bus from behind,” he said. Supt Md Tahir said the drivers of the bus and trailer escaped with slight injuries.

Case Study Given

As for my opinion, first, the one who liable for this tragic accident is the 1st bus which after investigation showed that the bus is in lost control after one of the front tyre burst, this can be refer to the breach of duty. It is because the driver bus should do the responsible test which he had already know that they are going to travel in a long way from Kulim to Kuala Lumpur, by seeing to the skill, knowledge and experience the bus driver must take precaution to check all the parts of the bus before travelling, for the tyre, he should check as if the tyre has worn out or the retread tyre is outdated. According to the case of ROE v Minister of Health (1954), the doctor has already take precaution but the accident happen because of lack of knowledge at that time.

Case Study Answer

Then, the second is the Lorry, it is stated that “4.30am lorry rams into back of bus, overturns and lands ditch in front of bus spilling sand on the bus passengers outside”. According to the time flow of the accidents, the lorry should have seen the accidents earlier before it rams into the bus and the driver should avoid it at that time, but he certainly did not avoid the bus and hit it. It is an omission which the lorry driver not performing the emergency brake or avoid the bus (breach of duty), a failure to act can also occur in this situation. For example, someone causes an accident as a result of an omission, as for example when someone fails to brake as traffic ahead slows, he/she can be considered as legally liable for the injuries incurred. The law generally determines that people have a duty to avoid dangerous situations and to take action if someone is in danger, which means that failure to do so can have legal consequences if injuries occur.

Case Study Answer

So, as for conclusion, I conclude that the lorry driver is the one who should be liable for any damages that happen in the accident, the most reason we can see in this situation is omission by the lorry driver, an omission is often a mistake which is innocent in nature and unintentional. Even though the lorry driver is not guilty, but he omitted and have to liable in this situations. The lorry driver has breach the duty of care, by seeing on the responsible test the lorry driver should have his own skill and knowledge about controlling the lorry himself and the accident will not getting worst if the lorry driver avoid the busses. So, finally the lorry driver is a negligence and the driver must be liable for any consequences and injuries that happen in the situation.

Case Study Answer

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