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.