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.