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
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.
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