ESSAY ON DEFAMATION

O : According to Lord Atkin in Sim V Stretch said that, ”statement (oral , temporary or permanent) which injuries the reputation of another by exposing him to hatred , contempt and ridicule or which tends to lower him in the esteem of right thinking member of society” Defamation is divided into Libel (written , permanent or visible form) and Slander (oral and temporary ). Libel is actionable per se whereby action can be taken without having to prove any damage. Slander on the other hand is not actionable per se where damage must be proven before action can be taken except imputation of a criminal offences punishable by imprisonment , adultery to a women , imputation of certain contagious disease and imputation calculated to disparage the plaintiff in any “ office , profession or trade”

I : Issues arising out of the fact are whether the words complained of were defamatory ,whether the words referred to the plaintiff, Nona Bedah , whether there is publication to the third party and whether Wan Jelite has any defense towards the case? Each element shall discuss in turn.

P : On the issue of whether the words complained of were defamatory , it was held in Hasnul Abdul Hadi V Bulat Muhamed (1978), ‘ the court held that by calling a person a liar , Abu Jahal , is defamatory. The words of Abu Jahal are actionable and thus the defendant was liable.’ In case of Luk Kai Lam V Sim Ai Leng (1978) , the court held that the words ‘prostitute’ called by defendant and statement that plaintiff had been sleeping with Sia in the nursing home for over a year before they got married is a defamatory.

A : On the fact in the cases , it can be seen that the words complained of must be defamatory as the defendant , Wan Jelita has stated in the Kampung Pisang’s bulletin that words of ‘conservative’ and usage of ‘black magic’ by Nona Bedah to retain her position is considered as defamatory words.

C : It is submitted that based on the ratio in the case of Hasnul Abdul Hadi V Bulat Muhamed and case of Luk Kai Lam V Sim Ai Leng , Wan Jelita had publish a defamatory words towards plaintiff through Kampung Pisang’s bulletin as plaintiff was a conservative leader and had been use black magic to retain her position as a president in Single Mother Association.

P : The second element of defamation is whether words complained of must refer to the plaintiff and it must clearly to plaintiff and not to other person ,real or imaginary. The state or purpose of defendant’s mind is not important. The defendant can held liable where his statement is true of one person but in fact the defamatory of another person of the same name or the same description. The court held that in Newstead V London Express Management ,a news item published had been a defamatory to another Camberwell man about a bigamy. The plaintiff’s contention that the words published could be understood to refer to him was upheld although there are two Camberwell man that resided also in same area.

A :On the fact in this case, the statement of Wan Jelita ‘we need no longer a leader who is conservative’ in the bulletin is referred to Nona Bedah because Nona Bedah had been as a president or leader for four years consecutively in Kampung Pisang.

C : It is submitted that based on case of Newstead V London Express Management , statement of Wan Jelita in the bulletin is understood by all villangers that statement is refers to Nona Bedah. This can damage the reputation of Nona Bedah as the president of SMA The defamation towards Nona Bedah is under Libel,so she can use the article in the bulletin as a prove to the courts.

P : The third element of defamation is whether it is publish to the third party. Publication means ‘making known of defamatory matter after it has been written to some person other than the person of whom it is written’. It is not a publication if it is communication between spouses about the third party. A statement not heard if it is made to a deaf, or a language that not understand or it is obviously referable to the plaintiff is not considered as having published. However, the communication by a third party to one spouse is a publication. It was held that in Theaker V Richardson, the defendant had placed the defamatory letter in the Theaker’s husband letterbox in Manila. The jury found that the defendant liable because it is reasonable that the letter would be opened and read by the plaintiff husband

A : On the fact of the case, Wan Jelita wrote an article in the Kampung Pisang ‘s bulletin stating that “ we no longer need a leader who is conservative and do not use black magic to retain in position. Wan Jelita is liable to defamation because she had published the article to public and it is reasonable that every villagers can read the post.

C : It is submitted that based on the ratio in case of Theaker V Richardson , Wan Jelita had published a defamatory statement through the Kampung Pisang bulletin which can acess by all members of Single Mother Association. In my point of view , Nona Bedah should prove that the post is really exist by printing it out or taking picture.

O : Defences are the method or the way for the defendant ,the people that made the defamatory to the plaintiff, whose had accused in the case and should prove if the defamation is true or not. Besides that , defences also used to protect defendant from legal action taken by plaintiff.

I : The defend arising in several method in the case of fact whether , the Wan Jelita that responsible as a defendant can justification the defamatory to the Nona Bedah , whether fair comment made by Wan Jelita for the Kampung Pisang , whether the defendant’s words is only a privilege about Nona Bedah , whether Wan Jelita can make apology to Nona Bedah and lastly whether Wan Jelita have to offer the amends to Nona Bedah. Under Section 10 , the apology made a defendant may plead the publication of opology was made without malice , the apology was published at the earliest opportunity and that compensation has been paid into court.

A : On the fact of this case , the plaintiff ,Nona Bedah is the president of SMA of Kampung Pisang being upset when the bulletin wrote a defamation about her, that ‘we need no longer a leader who is conservative. We need a new leader who do not need any black magic ‘.The words conservative and black magic show the defamatory because it is refers to Nona Bedah who is holding the position for four years back.

C : The best and safe way in this case,the defendant should make apology to Nona Bedah that stated under Section 10. In my opnion , Nona Bedah totally want Wan Jelita to clear up her name due to defamation made by defendant. The apology is the compensation towards Nona Bedah injuries.


MLAW245 A MEMBERS:

NUR HANISSA BT ABDUL HALIM
NUR ALYA ATIQAH BT JAAFAR
NUR NAJIHAH BT ABU HASSAN
NURUL FATEHAH ASSYURAH BT SANUSI
NUR ATIQAH BT ITHNIN

DISCUSS FUNDAMENTAL LIBERTIES AS GUARANTEED BY THE FEDERAL CONSTITUTION.

QUESTION: DISCUSS FUNDAMENTAL LIBERTIES AS GUARANTEED BY THE FEDERAL CONSTITUTION.

It is name given to the freedoms that completely protect the individual from government. Fundamental liberties set limits for government so that it cannot abuse its power and interfere with the lives of its lives of citizens.

The Fundamental rights of a person are guaranteed by the Constitution. Since the Fundamental rights are written in the Federal Constitution, it cannot altered in ordinary way but requires two third majoriy of the total number of the Legislature. The Fundamental right of a person is not guaranteed by ordinary law, but  by the part II of the Federal Constitution. Some of the liberties are absolute, while others are subject to the qualification which makes them more illusionary than real. Fundamental liberties are those freedoms which are, or should be, guaranteed to persons to protect an area of non interferefrom others, particularly power holder and legal authorities.

The acts that impose restrictions on fundamental liberties are the Internal Security Act 1960, the Universities & Universities Colleges Act 1971, the Police Act 1967, the Presses and Printing Act, the Official Secret Act 1957, and other acts.

The first article that states the right of the fundamental liberties is Article 5 of the Federal Constitution regarding the liberty of the person.

Clause (1) of Article 5 stated that no person shall deprived of his life & personal liberty saves in accordance with law.

Clause (2) stated that when a person is arrested, he shall be informed on the ground on his arrest and shall be allowed to consult and be defended by a legal practitioner of his choice.

Clause (3) stated that when a person is arrested and not released, he shall be without unreasonable delay, in any case within 24 hours (excluding the time for any  necessary journey) being produced before the magistrate authority. As in case Lee Mau Seng v Minister for Home Affair, it was held the person who is arrested must give his Constitutional right of being represented and the right must be granted to him within a reasonable time.

Article 6 of the Federal Constitution provides that slavery and forced labour are prohibited. In this article , it was stated that no person shall be held in slavery and all forms of forced labour are prohibited, but the parliament may by law provides for a public service for national purposes.

Article 7 of the Federal Constitution provides is protection against retrospective effects of criminal law and repeated trials. Clause (1) of the article stated that no person shall be punished for any act or offences which are not punishable at the time it was done or made and there shall be no person who will get greater punishment other that what is prescribed in the law at the time the offences was committed. The Article also stated that no person shall be tried for the second time with same offences except the first trial has been quashed and there is an order from court for a retrial.

 As in case Zakaria v Ketua Polis Negara, it was held that even though the offender has been charge for two disciplinary proceedings in different provision, it was still under the same conduct which makes the offender is charge under double jeopardy.

The Article 8 of the Federal Constitution discuss about equality. It was stated that all person are equal before the law. Everybody must be granted with their rights to be treated fairly by the law. As in case Rethana v Government Malaysia, it was held that Rethana suing the SUSCO cannot sue their employers  if any accident happens in their field of work.

Article 9 of the Federal Constitution discuss about the Prohibition from banishment and freedom of movement. In this article it was stated that no one shall be banished from the federation except for any law relating to the security of the federation, public order, public health or criminal offences. Every person also have the right to move freely throughout the federation and can resided in any part of the federation except for any law relating to the security of the federation, public order, public health and criminal offences. As in case Assa Singh v Menteri Besar Johor, it was held that no person shall be banished from the federation because of any other interest except from what had stated above.

Article 10 of the Federal Constitution provides on the Freedom of Speech, Assembly and Association. It provides that every person has their own right to speech and expressed their opinion and has peaceful assemblies and associations. The speech, assembly and associations must be safe and are held without any weapons. However the freedom of speech is restricted to the speech which might be sensitive to the public interest. As in case Mahdevan v Public Prosecutor, the licence for the public meeting to discuss the result of M.C.E Examination and the status of Bahasa Melayu as the national language have been pulled back, the party appealed and saying that it has contravened their right of freedom of speech, it was held that the condition on the license of public meeting was not contravened of Article 10.

Article 11 of the Federal Constitutions stated about the freedom of Religion. In the Article 11 Clause (1), it was stated that every person can profess and practice their own religion, subject to Clause (4) to propagate it. Clause (2) stated that no person shall be compelled to pay money, which the money are fully or only part of it will be used for religions purposes other than your own religion. Article 10 also stated that every religious group has the right to establish & maintain institution for their children for the purposes of religion or charitable purpose. As in case Dalip Kaur v Pegawai Polis Daerah Bukit Mertajam, it was held that a Sikh man is dead and the question before the court whether the deceased is still Muslim when he died? His relatives claim that he had prayed at the Sikh temple and continue to eat pork. But he has registered his name as Muslim and he was engaged to marry a Muslim girl then the court held that he remains a Muslim.

Article 12 of Federal Constitution stated every person can have their own freedom for basic education. Every person in the country has their right to get the basic education. Event in the Article 11 of the Federal Constitution stated that every religious group has their right to establish and maintain an institution for their children for the purpose of education. As in case Jakob Renner v Scott King, the Chairman of the Board of Directors of International School of Kuala Lumpur, plaintiff was expected to be transferred to the Ampang Campus to continue his study in middle school, however his entry to the school board being rejected and plaintiff filled an application to sue the defendant and his servant from hindering, precluding and preventing to get his education in the middle school.

Article 13 of Federal Constitution stated that every person has the right to own a property and if the property is taken from the owner, the owner must be compensated with a suitable amount of compensation. As in case Adong Kuwau v Kerajaan Negeri Johor, it was held that the plaintiff must be compensated with a suitable amount of compensation because the land of his aborigin and ancestral is taken from him.

In a conclusion, the rights of liberty under Federal Constitution are guaranteed. Some of the right is absolute and some have limitation. The right cannot be interfere even by power holders.

TORT OF DEFAMATION

ZULAMIRUL AIMAN BIN ZULKIFLI

CASE STUDY

Senah and Milah dream to be famous actresses. They took part in a reality program "Pilihpilih". Milah became the champion and Senah won the second place. Senah was not satisfied with the result and revealed to the press that Milah's victory was due to her close relationship with one of the judges. The next day the press published Senah's statement in its front page. Milah was upset as the allegations made by Senah were false.

Advise Milah on possible legal action against Senah.

Defamation can be defined in case Sim v Strech,  Lord Atkin stated that a statement whether oral, temporary or permanent which injure a person’s reputation by exposing  him to hatred, contempt and ridicule or which tends to lower him in the esteem of right thinking members of society. Defamation divided into libel and slander, libel refer as written, permanent or visible form while slander refer oral and temporary form. However , there are exception for slander are imputation of criminal offence punishable by imprisonment, imputation of unchastity or adultery to a women or a girl, imputation of certain contagious diseases and imputation calculated to disparage the plaintiff in any “office, profesion or trade” . In order to prove claim action as defamation, there are certain elements of defamation that should be fulfil are words complained of must be defamatory, words complained of must be refer to the plaintiff and there are publications to the party.

First element of defamation is words complained must be defamatory, in order to claim damges, the plaintiff must prove that the words complained of are defamatory. Words which are merely abusive, however crude and hurtful, cannot be considered as defamation. As in case Hasnul Abdul Hadi v Bulat Muhamed, the court held that by calling a person a liar, Abu Jahal is defamatory. The words of Abu Jahal are actionable per se and thus, the defendant was liable. As in case Dato’ Musa Hitam v S.H Alattas, the defendant says in an article in challenge “ Siapa Lawan Siapa ” that Dato’ Musa is responsible for killing 14 innocent Muslim in a incident in Memali . The defendant was liable as the words content defamatory words.

In case Senah v Milah, the defendant had  threw out word like Milah's victory was due to her close relationship with one of the judges . The word is defamatory because Senah’s words cause Minahreputations became down and bad. The words also make Milah suffered mental breakdown and  upset.

Second elements is words complained of referred to the plaintiff. In order to claim as defamations,  the plaintiff must prove that the words complained of are refer clearly to the plaintiff. It state of the defendant’s mind is not relevant. It also can be consired as defamation as if it refers to another person who has the same description, name, address and place. As in case Newstead v London Express Newspaper, local newspaper published a letter denouncing the alleged acruelty with which factory workers were treated. The verdict in favour of the owner of the factory was upheld because there were special circumtancess which enabled the court to identity the factory belonging to the palintiff. The plaintiff.  As in case Le Fanu v Malcomnson, in this caseit has been stated that the factory worker’s is been treated. However court held that the defendant was liable as the factory belongings to the plaintiff.

In case Senah v Milah, the defendant has referred her words to the plaintiff by mention plaintiff’s name in his statement to the press. The defendant’s words is clear and understanding most likely refer to the plaintiff .

Third element is there is publication to the third party. Publication means ‘ making known the matter of defamation to the other person ’. The communication between spouses about the third party is not considered as publication. However, a communication between the third party and the spouses is considered as publication.  As in case Theaker v Richardson,  a letter consists of defamatory words has been made in a letter and put in the letter box. Its envelope which is similar with the election materials. The plaintiff’s husband that open the letter and read it as he assumes that the letter is election material. So, the court held that the defendant is liable. As in case Anwar Ibrahim v Abddul Khalid Bakar Shah & Anor, the plaintiff was a Deputy Prime Minister, sometime in 1988. The defendant has wrote a book title “50 Dalil Mengapa Anwar Tidak Boleh Jadi PM? ” and distributes the book to all people who attend1988 UMNO General Assembly Meeting. The content of the book is not true about Anwar. That is why Anwar wanted to sue the defendant. The court held that the defendant was liable.

As in case Senah v Milah, the defendant had commit a defamatory words to the plaintiff by gives a statement to the press “Milah's victory was due to her close relationship with one of the judges. The next day the press published Senah's statement in its front page ”. The defamatory words by the defenfant had been publish by press to the public people and  defendant reputation’s go down.

In this cases,  the defendant  (Senah) had fulfill element of demafatory are words are defamatory words by said the plaintiff  (Milah) had close relationship with one of the judges due that she win on that competititon, words refer defamatory words to the plaintiff by mention plaintiff words to the press “Milah's victory was due to her close relationship with one of the judges ” and there was a publication because the defendant make that statement to the press and next day it came out on the front page.

In this cases , the plaintiff (Milah) had suffered a bad reputation due action of defendant so that it shall give right to plaintiff to claim this action as defamatory and plaintiff can take an action on the defendant.

There are defences that the defendant can made on the plaintiff under section 10 – Apology. The defendant can apologizes to the plaintiff and make sure that the word did not have any make or gross negligence.

To conclude, Milah can claim for defamation ( libel ) as all the three elements of the defamation has been fulfilled.    

TORT OF NEGLIGENCE

ZULAMIRUL AIMAN BIN ZULKIFLI

CASE STUDY

Al and Jan, who were on their honeymoon, went to U Water World, a recreational park. They

both took rides on the roller-coaster. During the second ride, the safety belt around Jan's

waist snapped and she was thrown out. Jan was paralyzed as a result of the accident. On

that day, U Water World did not provide workers to supervise those who rode the rollercoaster.

Advise Al and Jan.

Negligence can be defined in Winfield and Jolowicz on tort as breach of duty of care which results in damage, undesired by defendant, to the plaintiff. As in case Blyth v Birmingham Company, Alderson stated that negligence is the omission to doing something which a prudent and reasonable man would not do. In order plaintiff to claim negligence, plaintiff must prove three element in negligence that had fulfill by defendant are plaintiff under legal duty of care defendant, existing element breach of duty by defendant and damage suffered by plaintiff. It is because not all action that done by person can be claim as negligence until it proven negligence by court.

First element, plaintiff under legal duty of care.  Duty means obligation imposed by law which requires comfort to the certain standard of conduct. Not all careless done by a person results in being held responsible in law. In order to prove duty of care owed by defendant, we must using concept of  “Neighbour Principle”.  As in case Donoghue v Stevenson, Lord Atkins that rules in law is to love your neighbour and lawyer question, who is your neigbour ? receives a restricted reply. Neighbour is the person who is closely to you and directly affected by act of person. In this case, a friend of plaintiff buy a ginger beer. The plaintiff drank some of that drink and finally noticed a decomposed a snail bottom of that bottle. The plaintiff suffer of ill and shocked and want to sued the manufactures. The court held that manufactures owed a duty of care, which caused plaintiff suffered injuries using the ‘ Neighbour principle’. As in cases, Home Officer v Dorset Yacht, seven Borstal boys had were escaped from undergo training from the Island, from training centre and cause damage to one of the yacht. The escaped due negligence of officer that contrary to order, was in bed. The owner sued Home Officer on negligence until cause damage on plaintiff. The court held that Home Officer and his officer owed a duty of care on plaintiff.

In cases Al and Jan v U Water World , defendant ( U Water World ) owed of duty on care on plaintiff ( Al and Jan ) because plaintiff were their customer and customer of their water park must be take care and should get standard services from them. It foreseen when you refer case Donoghue v Stevenson.

Second element is defendant must breach of duty towards plaintiff. In order to prove negligence, there must be a breach of duty and we used reasonable man test to prove it. As in case Bolam v Erien, Mc Nair stated that reasonable man is the top man in the street or the top of Clampham omnibus. It means that reasonable man not the perfect citizen but is expected to guard against reasonable responsibilities. There are certain principle that must be foreseen are magnitude of risk, seriousness of injury, practicability and general or approved practice. In order to foreseen towards magnitude of risk, we can refer case Bolton v Stone, plaintiff was hit by cricket ball that came out from a cricket ground. The defendant stated that he knew that the cricket ball cross over fence previous occasions which are rarely. The court held that defendant not liable because he had surrounded his cricket ground with 7 foot walls. In order to foreseen towards seriousness of injuries, we can refer case Elizabeth Choo v Government of Malaysia, The court held that a professional will not deemed as negligence if he had taken step that would normally be taken by others who are in the same positions. In order to foreseen towards practicability, we can refer case Latimer v E.A.C. In this case, the factory was flooded by heavy rain. The mixture of oil and water spilled in factory, defendant had took standard safety measurement by provided covered floor with saw dust. The plaintiff had slipped and fell. The court held that defendant not liable because defendant had taken safety measurement to avoid that injuries happen on plaintiff. In order to foreseen towards general and approved practice, if the defendant does as a reasonable man would do in the same situation, then the defendant will not be liable but if the defendant who act differently from general and usual practice will give rise to percentage negligent happen will be assume as negligence example in standard of reasonable man for private swimming pool, there must be four safeguard in busy time and two safeguard in normal time but owner of X pool only provide one safeguard all the time and if the incident happen in his pool, the owner of X pool assume a negligent because he fail to fulfill the safety.

As in case Al and Jan v U Water World, we can claim defendant’s actions as negligence because defendant had breach on duty by using two major principles are magnitude of risks and general and approved practiced. It is because defendant can be liable by using reasonable man test stated that defendant not check safety belt of plaintiff with proper ways and defendant do not provide workers to supervise plaintiff.

Third element of negligence is damage suffered by plaintiff, the plaintiff must prove damage consequences by actions of defendant. The damaged must be foreseen based on two principles, damage must be foreseeable as consequences of defendant’s action and type of damage must be foreseeable. As in case School Division of Assiniboine v Hoffer, a father was held liable for lending a snowmobile to his 14 years old son, who in the course of driving had hit a gas riser which ultimately leaked as a results of the impact. As in case Bourhill v Young, An accident between motorcyclist and a car occurred. A pregnant fishwife who stops nearby was shocked because she sees a pool of blood. Due to that she was miscarriage his child. She then wants to claim for negligence. However the damage was too remote and unforeseeable.

In case of Al and Jan v U Water World, defendant’s action had suffered plaintiff paralyzed due that incident. The damage must be for a long period and can be foreseeable as result of damage consequences of defendant’s action.

Using Neighbour  principle, Al and Jan ( plaintiff ) were under legal duty of care of the U Water World (defendant ) because they were their customers. The defendant should take full reasonable care in provide their service on them. It had been their duty of care but failure of defendant in giving that reasonable care had make breach in duty can take on them. The defendant had not check plaintiff’s sit belt with a proper ways and not provide any workers to supervise them was real mistake that can claim as negligence. Due their action, plaintiff had suffered paralyzed that make a long live punishment on plaintiff. This damage was real and foreseeable by eyes and had a physical effect.

In this case, using reasonable test defendant is liable because defendant do not meet standard safety measurement for Water World Park that can harm any customers of them. This shows breach of duty as the water world park can risk anyone that want any memorable and enjoyable moment. This action also can make plaintiff suffered a shock and mental traumatic.

In this case, plaintiff suffered injuries, he suffered paralyzed. This shall give plaintiff right to take an action for negligence.

As action of defenses, U Water World may put forward the defend of inevitable incident and contributory negligence. In defend of inevitable incident, some occurrence over which the defendant no control. It is because defendant had may tight plaintiff sit belt for first ride and unfortunately plaintiff lose the tight on second rides causes he meet an incident. In defend of contributory negligence, plaintiff not take care of his own protection because he noticed they were no workers that supervised them so they must care by their own safety. As in case Eroom v Butcher, a collisions took place due to the defendant’s negligence but plaintiff not wearing sit belt, suffered head and chest injury besides a broken finger. The damages were reduced by 25% because of contributory negligence by plaintiff.

LAW 245

ZULAMIRUL AIMAN BIN ZULKIFLI                                                         

The issues arising out of the facts of Mrs. Reena and Dr. Kamal of Permaipura Private Hospital are, whether Mrs Reena was Dr. Kamal's ( the defendant) neighbour so that Dr. Kamal owes Mrs. Reena ( plaintiff ) a duty of care, whether the defendant breached the legal duty by failing to inform her of her condition, and, finally whether that failure caused the damage suffered by the plaintiff's baby. On the facts of this case, Mrs Reena is a patient of Dr Kamal. Dr. Kamal ought to have Mrs Reena and her baby's safety in contemplation before he decided not to tell Mrs Reena the condition of her womb.

 Legal Issues:

1) Whether the defendant was under a legal duty of care to the plaintiff ?
2) Whether the defendant has been breached of duty of care towards ?
3) Whether the plaintiff has any right to take action against the defendant for negligence ?
4) Whether the defendant  has any defend towards cases ?

Winfield and Jolowicz on tort define negligence as a breach of legal duty of care which results in damage, undesired by the defendant to the plaintiff.

Alderson B in Blyth v Birmigham Waterworks Co. state negligence is the omission to doing something which a reasonable man would do or doing something which a prudent and reasonable man would not do.
Furthermore, negligence only happen if all the element appear. In order to plaintiff to claim negligence. he has to prove that all these three elements:

• The defendant was under a legal duty of care to the plaintiff
• That there had been breach of that duty
• That as a result the plaintiff suffers damage

  
First element: Duty of care

Duty means obligation that imposed by law which requires the person to comfort to the certain standard of conduct.  This means not all careless acts by a person results in being held responsible in law . Plaintiff must prove defendant was under legal duty of  take care . In order to decide to whom the duty of care owned, we will use “ Neighbour Principle ”.


As in case Donoghues v Stevenson,  Lord Atkins state that “ the rule is to love your neighbour becomes in law ” . Then the lawyer question, ‘ who is your neighbour ? ’ receives a restricted reply.  Neigbour is person who is so closely and directly affected by act of a person.

As in case Home Office v Dorset Yascht , seven Borstal boys were escaped by training centre and cause damage to one of the yacht .The escaped due negligence of Home Office officers were contrary in bed . The court held that  the defendant owed a duty of care to the owner of the yacht .

Second element: Breach of duty

In order to claim for negligence , there must been a breach of duty . To determine breach of duty, we will use ‘ reasonable man ’ test.

As in case Mc Nair Lin Bolan v Erien Hospital Management state that  reasonable man is the street or the man on top of Clapham Omnibus. It means reasonable man is not the perfect citizen but is expected to guard against responsibilities.

There are certain principle that should be seen:

1)      Magnitude of risks – probability of the injury occurring

As in case Bolton v Stone, the plaintiff was hit by cricket ball which had been hit out a cricket ground. The defendant knew the incidents happen although it rarely only 7 times in 100 years. The court held that defendant not liable because cricket ground had surrounded by 7 foot wall.

2)      Seriousness of the injury

As in case Elizabeth Choo v Government of Malaysia, the court held that all the professional could not claim as negligent if he has taken all the responsible step same with other person who is in the  same position.

3)      Practically or cost of precautions to the defendant

As in case Latimer v E.A.C, all precautionary measures undertaken but the incident also happen too. The court held that defendant not liable because he took all necessary and reasonable steps to avoid the injury.

4)      General approved practice

If the defendant does as a reasonable man would do in the same situation, then the defendant will not be liable but if the defendant who act differently from general and usual practice will give rise to percentage negligent happen will be assume as negligence example in standard of reasonable man for private swimming pool, there must be four safeguard in busy time and two safeguard in normal time but owner of X pool only provide one safeguard all the time and if the incident happen in his pool, the owner of X pool assume a negligent because he fail to fulfill the safety.

Third element: Damage

In order to claim for negligent, plaintiff has to prove damage conduct by defendant. It means the result of damage that suffers by plaintiff by defendant breach of duty.  The damage must be foresight test must depend on two principles:

• Damage must be foreseeable as a consequences of the defendant’s conduct
• The type of damage must be foreseeable

As in cases School Divison v Assiniboine South v Hoffer, A father was held liable by lending a snowmobile to his 14 years old son, who is course in driving the vehicle had subsequently hit a gas riser which ultimately leaked as a result as a result of the impact. The escaping gas then entered an air duct of a neighbouring school which later blew up.

 

Application:

The issues arising out of the facts of Mrs. Reena and Dr. Kamal of Permaipura Private Hospital are, whether Mrs Reena was Dr. Kamal's ( the defendant) neighbour so that Dr. Kamal owes Mrs. Reena  ( plaintiff ) a duty of care, whether the defendant breached the legal duty by failing to inform her of her condition, and, finally whether that failure caused the damage suffered by the plaintiff's baby. On the facts of this case, Mrs Reena is a patient of Dr Kamal. Dr. Kamal ought to have Mrs Reena and her baby's safety in contemplation before he decided not to tell Mrs Reena the condition of her womb.

Using “ Neighbour Principle ” that stated by Lord Atkins in cases Donoghues v Stevenson , Neigbour is person who is so closely and directly affected by act of a person so Dr. Kamal was neighbor of Mrs. Reena. Mrs. Reena is under duty of care of Dr. Kamal because Mrs. Reena is a patient of Dr. Kamal. The plaintiff’s baby is legal duty of care Dr. Kamal because defendant was plaintiff’s doctor and he should take a reasonable action that by inform plaintiff about condition of her baby. The plaintiff had not noticed any change of her baby and continues doing her daily routine. Mrs. Reena felt cheated and betrayed by action of Dr. Kamal. Mrs. Reena miscarriages will a breach of duty by Dr. Kamal.

In this case, using reasonable test, Dr. Kamal is liable as he do not inform Mrs. Reena about condition of her womb. This shown the breach of duty of care as the failing of inform about plaintiff condition of womb. The defendant’s action causes miscarriage of plaintiff’s baby. 

In this case, the plaintiff (Mrs. Reena) suffered injuries; she miscarriage of her baby. This shall plaintiff    (Mrs. Reena) the right to take an action for negligence.                  

Defences of Neglience:           

Dr. Kamal as the defendant may put forward the defend of Volenti non fit injuria – “ no harm done to one who consent ” and contributory negligence. In these cases, Dr. Kamal can said that harm suffered by Mrs. Reena does not constitute a legal injury and is therefore not actionable. The plaintiff take an advise from defendant and defendant had right to inform in order to precautions to avoid miscarriage immediately. Plus, Mrs. Reena failure to meet the standard of care required for his own protection, which failure is a contributory cause his own injured. There were several factor of miscarriage if plaintiff can prevent it so injured will not happen. This can reduced damaged that suffered by plaintiff.

To conclude, Mrs. Reena can claim for negligence as all the 3 element is fulfillied. However there some defences that Dr. Kamal can make.

QUESTION 1 / LAW245 / JANUARY 2012 - ZULAMIRUL AIMAN BIN ZULKIFLI

Zahra suffers diabetes mellitus. She went to see Dr.Akmal, a dietician to seek for advice to
control her eating habits. Dr. Akmal recommended her a new diet solution in the market
known as "LooseMore" to be taken twice a day before meal for a period of three months.
Dr.Akmal knew there is a risk on the patient's kidney if taken for a prolonged period.
However, Dr.Akmal did not inform Zahra on this risk
After two months usage, Zahra was admitted to the hospital due to kidney problem. Zahra
was informed by the doctor in-charge that "LooseMore" is not suitable for diabetic patient.
She wanted to take legal action against the doctor.

Legal Issues:

1) Whether the defendant was under a legal duty of care to the plaintiff ?
2) Whether the defendant has been breached of duty of care towards ?
3) Whether the plaintiff has any right to take action against the defendant for negligence ?
4) Whether the defendant  has any defend towards cases ?

Winfield and Jolowicz on tort define negligence as a breach of legal duty of care which results in damage, undesired by the defendant to the plaintiff.

Alderson B in Blyth v Birmigham Waterworks Co. state negligence is the omission to doing something which a reasonable man would do or doing something which a prudent and reasonable man would not do.
Furthermore, negligence only happen if all the element appear. In order to plaintiff to claim negligence. he has to prove that all these three elements:

• The defendant was under a legal duty of care to the plaintiff
• That there had been breach of that duty
• That as a result the plaintiff suffers damage

  
First element: Duty of care

Duty means obligation that imposed by law which requires the person to comfort to the certain standard of conduct.  This means not all careless acts by a person results in being held responsible in law . Plaintiff must prove defendant was under legal duty of  take care . In order to decide to whom the duty of care owned, we will use “ Neighbour Principle ”.


As in case Donoghues v Stevenson,  Lord Atkins state that “ the rule is to love your neighbour becomes in law ” . Then the lawyer question, ‘ who is your neighbour ? ’ receives a restricted reply.  Neigbour is person who is so closely and directly affected by act of a person.

As in case Home Office v Dorset Yascht , seven Borstal boys were escaped by training centre and cause damage to one of the yacht .The escaped due negligence of Home Office officers were contrary in bed . The court held that  the defendant owed a duty of care to the owner of the yacht .

Second element: Breach of duty

In order to claim for negligence , there must been a breach of duty . To determine breach of duty, we will use ‘ reasonable man ’ test.

As in case Mc Nair Lin Bolan v Erien Hospital Management state that  reasonable man is the street or the man on top of Clapham Omnibus. It means reasonable man is not the perfect citizen but is expected to guard against responsibilities.

There are certain principle that should be seen:

1)      Magnitude of risks – probability of the injury occurring

As in case Bolton v Stone, the plaintiff was hit by cricket ball which had been hit out a cricket ground. The defendant knew the incidents happen although it rarely only 7 times in 100 years. The court held that defendant not liable because cricket ground had surrounded by 7 foot wall.

2)      Seriousness of the injury

As in case Elizabeth Choo v Government of Malaysia, the court held that all the professional could not claim as negligent if he has taken all the responsible step same with other person who is in the  same position.

3)      Practically or cost of precautions to the defendant

As in case Latimer v E.A.C, all precautionary measures undertaken but the incident also happen too. The court held that defendant not liable because he took all necessary and reasonable steps to avoid the injury.

4)      General approved practice

If the defendant does as a reasonable man would do in the same situation, then the defendant will not be liable but if the defendant who act differently from general and usual practice will give rise to percentage negligent happen will be assume as negligence example in standard of reasonable man for private swimming pool, there must be four safeguard in busy time and two safeguard in normal time but owner of X pool only provide one safeguard all the time and if the incident happen in his pool, the owner of X pool assume a negligent because he fail to fulfill the safety.

Third element: Damage

In order to claim for negligent, plaintiff has to prove damage conduct by defendant. It means the result of damage that suffers by plaintiff by defendant breach of duty.  The damage must be foresight test must depend on two principles:

• Damage must be foreseeable as a consequences of the defendant’s conduct
• The type of damage must be foreseeable

As in cases School Divison v Assiniboine South v Hoffer, A father was held liable by lending a snowmobile to his 14 years old son, who is course in driving the vehicle had subsequently hit a gas riser which ultimately leaked as a result as a result of the impact. The escaping gas then entered an air duct of a neighbouring school which later blew up.

Application:


Zahra v Dr. Akmal


Using “ Neighbour Principle ” ,  Zahra is under duty of care of Dr. Akmal because defendant was her advisor before she take any types of diet solution in market. The defendant should take a full responsibility on what damage and suffer that cause by his actions. The defendant advises Zahra to take that diet solution but did not tell her about the risk that will happen to her. The defendant should tell her about the risks and plaintiff can avoid that diet solution but defendant not react like a professional doctor.
In this case, using a reasonable test, Dr. Akmal is liable as he did not inform plaintiff about the risks of that diet solution and choose wrong diet that for plaintiff although defendant knew that plaintiff suffers diabetes mellitus. This shows breach of duty of care as the defendant could risk plaintiff life and total damages to her body system and by letting plaintiff to take wrong diet solution , cause plaintiff had a kidney problem.

As in case Elizabeth Choo v Government of Malaysia, the court held that all the professional could not claim as negligent if he has taken all the responsible step same with other person who is in the  same position.

In this case, the plaintiff ( Zahra ) suffered injuries ; she had kidney problem after take diet solution that advised by ( Dr. Akmal ) defendant. This shall give Zahra right to take an action for negligence.

Defences of Neglience:


1)  Volenti non fit juria – “ no harm done to one who consent ”

It means that harm suffered voluntarily does not constitute a legal injury and is therefore not actionable such as spectator sports cases, car cases, employment cases, medical treatment and rescue cases.

In this case Zahra v Dr. Akmal, the defendant ( Dr. Akmal ) can defence himself by state that Zahra take diet solution by its own interest and defendant only advise her what types of diet solution that she can takes. In that situation, Zahra should ask and know full details about diet solution that she will take.

LAW 245

EXPLAIN THE DIFFERENCES BETWEEN LAW AND MORALITY

According  to John Austin ,  law refers to law as the command of the sovereign authority in a society and command is backed by sanction  . According  evolutionary psychologists ,  Haidt , Hauser and De Waal in Stanford Encyclopedia of Philosophy , they refer morality as any code of conduct that a person or a group takes as most important . They also refers it as a code of conduct that applies to all who can understand it and can govern their behavior by it . There major different between law and morality such as structure , authority and acceptability .

 Firstly , law had a rigid structure . It means it cannot be change and tolerated by any coincidence . It must been amend because it is a rules and regulations that had been enacted by our state in order to restructure a good behavior of our citizenship. Law refers to rules and regulations that control our action with no bias or action that over limit our rules in a state . Morality had a different approach , it is because morality is a flexible rules . It can be tolerated and changes over some coincidence . It refers to act from a sense of ethical duty and inner life of human .It is natural behavior of human in order to live in an organizing society while law is absolute subjection to its rules and command . Example of law , Article 32 it state that YDPA is a supreme head of federal constitution . It means no leader above YDPA . Example of morality in Golden Rule , one should treat others as one would like to others treat oneself .

Secondly ,  law must be follow immediately as guidelines in order to overcome a positive results to state. It means law must be follow without no argue and questionable action from people that under it. Law is selective rules that must be enforcing derived from state . Law refers to rules and regulations that been enacted in branch of government in order to maintain peace and harmony situations in the state . It also regulates men’s relation with others and society . It  had high authority to regulate rules and regulations inside it . Morality had nominal authority , it is because morality refers to good or bad behavior by people that had be repeated in frequently period . These rules and regulations can be tolerated and fine or punishment can be decrease due to several factors . It is because every people is free agent in order to overcome a different morality to its tribe or races . It flexible and can be determine after a long observations by expertise .

Thirdly , acceptability . Law and morality had a huge acceptability . It is because law cannot easily to follow by people because it maybe cross border people power and believe . Law in a certain states cannot easily can be follow by its citizenship because it maybe to strict and burden people to do it . Law not concern people psychology and environment because it make to ease work by governor to admin the state. Morality easily to be acceptable by people because it follow by usually  action or behavior by it certain races or tribe . Morality also overcome naturally from people , it means morality synonym to human . It easily to be understand because human born with it and it can be follow without any argumentative actions by its people . It also refers to good and spontaneous actions by people in order to increase their standard of living life .

DEFINE LAW AND LEGAL PHILOSOPHIES OF LAW .

According to John Austin , law refer command that backed by sanctions , It means every law that been enacted had every punish to everyone that do not follow it properly . According to Rodee , Christol and Greene , law refer to process with a purpose and its is an constitutions contributing to the realization of balanced individual and social value oriented goals . According to Oxford English Dictionary , law refer to body of people that enacted or customary rules recognized by a community as binding . According Moten and Islam , law refer to general rule of external human action enacted and enforced by a sovereign legitimate authority . According to Wikipedia , law refer to system of rules and usually enforced through set of constitutions . In my opinions , law refer to general rules of state that control citizen behavior in order to restructure a good community and maintaining peace and harmony situation of state .There are several legal philosophies such as natural law , positivist view , realist view , sociology view , Marxist law and feminism .

Firstly , natural law holds that law and morality are connected . Law not simply what is enacted to statues and if legislation is not moral , then it is not law and has no authority . Natural law refer to law that over limit human behavior if law is over limit and under circumstances as human being , it cannot acceptable as law to be enforcing in daily life . According St Thomas Aquinas , natural law refer to perversion of law . It also asserts that there is essential connection between law and morality .  Thomas believe man made the law still exists even natural law holds it to be inferior . In my opinion , natural law refer as law that usually be implement in human being without ignore human right and we as human being born with it . Example LGBT cannot be acceptable as law  because it had over limit principle of life , it is because usually human being live on earth in partner as man and women not with his own kind of species .

Secondly , positive view or positivism . According to legal positivists  , law is man-made , or posited by the legislature . Where natural law theories may say that if a law not moral there is no obligation to obey it , by appealing to moral or religious principles , but positivists hold that until a duly enacted law is remains law , and should be obeyed . According to Jeremy Bentham , law had little time for natural law and version of legal positivism is his pupils . According to Hana Kelsen in Kelsen version of legal positivism was there not is no necessary connection between law and morals and that law did not require moral validation to be legitimate . In my opinion , positivism refer law as law as law and must be acceptable by people under it without questionable and action must be done as law state or enacted in that certain state . These view believe that law makers had make law and we must execute it without any action to argue it . Example , if law said people that had killed others must be hang until die then we must accept the law without said about relevant or not through that issues .

 Thirdly , realism view or  legal realism refer as view that we should understand the law as its practiced in the courts , law officers and police stations rather than as it is set by forth in statues or learned treaties . According to Oliver Wendell Holmes , law were merely a system of rules , we would not need lawyers conducting adversarial proceedings because judges could just apply the rules . In fact , judges have discretion with which they can decide a case in a number of ways .  In my opinion , realism view refer as rule of conduct laid down by person that directly involved in judicial branch of the government .

Fourthly , sociology  or utilitarianism refer as law that can benefit to society in the state . Law are rules and regulations that can fit and suit society in order to implement it in daily life. According to Jeremy Bentham law should create “the greatest happiness of the greatest number’’.  Bentham believe that law must fulfill needs by major society in the state . Although law not beneficial to minor society but it can be applied because it is relevant and legal in the state . According to Professor Hart stress ruler and their pedigree as the essential element of a legal system but this Ronald Dworkin disagrees and said law involves principles as well as rules .  In my opinion , utilitarianism view most likely  seen as law is rules and regulations that can beneficial society in a state . Example Article 11 ( 1 ) in Federal Constitution state Islam is official religions in Malaysia but other religions can be practiced in same time . This law can benefit to all citizen in Malaysia and can avoid unsatisfied feeling towards one races to another .

Fifthly , Marxist view refer to ideology or theories by Karl Marxist . Marxist state that law an instrument used by the wealthy class ( capitalist ) to dominate and exploit the weaker and laboring class . It means that people that had economic power can control law and persuade law makers to make law that can helps them to enhance rapidly in gaining profit from their business . These elite group that had money and some high knowledge can manipulate law makers to make law that only suit themselves without think others prospect or rights .This theory mostly  be practiced in industrial century . Whereas the company’s owner persuade law makers to make law that do not protect any right of workers instead only protect company’s owner to pay little salary to them. In my opinion,  Marxist view is suitable in that time because it necessary in order the company to compete in making profit for their own sake . Now , this theory not more relevant because that century had long gone.

Lastly , feminism view refer to theories that there were gender bias in order to make certain law . It had proven that this theory state that law makers only make law that only benefit and suit to man . Law not protect women right and give their chance to involve directly in law making process . It state that major people that worked in government is man so that most law give benefit to them and law are decrease their right to do something their want . In my opinion , feminism view most likely want to protect their right and seek their power or position in making law . This community that fight for it only want to sustain their right .