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 . 

LAW 245

EXPLAIN APPLICATION OF ENGLISH COMMON LAW AND EQUITY.

In pre-independence century, British had five difference of administrative in Malaya like Federated Malay States , Unfederated Malay States, Straits Settlements , Sabah and Sarawak. The Federated Malay States (FMS) was a federation of four protected states in the Malay Peninsula — Selangor, Perak , Negeri Sembilan and Pahang. It was established by the British government in 1895 and lasted until 1946.The United Kingdom was responsible for foreign affairs and defense of the federation. Although the states were officially responsible for their domestic policies, they were bound by treaty to follow the advice of the British Resident General. Kuala Lumpur, which was then part of Selangor, was the capital of the federation. The first Resident General was Sir Frank Swettenham.

The Federation states, along with the other Malay states of the peninsular and British possessions, were overrun and occupied by the Japanese during World War II. After the liberation of Malaya, together with the Straits Settlements and the Unfederated Malay States, the four protected states entered the Malayan Union. The federal form of government was subsequently used as a model for consolidating the independent Federation of Malaya and later evolution into Malaysia in 1963, with the inclusion of Sabah (North Borneo), Sarawak and Singapore. The Treaty of Federation was drawn up and signed on the 1st of July 1896, whereby the four rulers agreed to a federation and centralized administration of the states. By this treaty and the previous acceptance of the British Residents System in Selangor (1875), Perak (1874), Negeri Sembilan (1873) and Pahang (1888); the FMS were officially turned into a nominally independent protectorate of Great Britain (not to be confused with the British possessions like the territories of the Straits Settlements) The Malay Rulers effectively surrendered their political power in their states. All decisions were officiated only after consulting and with the due consent of their respective Residents. However, the United Kingdom pledged not to interfere in matters relating to native Malay traditions and Islamic affairs. British established the Federal Council in 1889 to administer the FMS. It was headed by the High Commissioner (The Governor of the Straits Settlement), assisted by the Resident-General, the Sultans, the four state Residents and four nominated unofficial members. This structure remained until the Japanese invaded Malaya on 8 December 1941. From 1896 to 1936, administrative power was held chiefly by the Resident-General, later known as the Chief Secretary of the Federation, but after this period, authority over the states shifted to the High Commissioner.

The Unfederated Malay States comprised five British protected states in the Malay Peninsula in the first half of the twentieth century. These states were Johor, Kedah,Kelantan, Perlis, and Terengganu. In contrast with the four neighboring Federated Malay States of Selangor, Perak, Pahang, and Negeri Sembilan, the Unfederated Malay States were not bound by a common institution, and did not form a single state in international law. When the Straits Settlement was dissolved in 1946, Penang and Malacca were grouped together with the five Unfederated Malay States and the four Federated Malay States to form a unitary Malayan Union. In 1948, the Malayan Union was reconstituted as a federation of eleven states known as the Federation of Malaya. Nine continued as British Protected States, while two of them, Penang and Malacca remained as British colonies. The Federation of Malaya gained full independence from the UK in August 1957. Originally established in 1826 under the authority of the British East India Company, the Straits Settlements came under direct British control as a crown colony on 1 April 1867. The colon subsequently was dissolved as part of the British reorganization of its South-East Asian dependencies following the end of the Second World War. The original individual settlements were Malacca, Penang (also known as Prince of Wales Island), and Singapore. From 1907, Labuan, off the coast of Borneo, was included in the group. With the exception of Singapore, these territories now form part of Malaysia.

The Kingdom of Sarawak was a state in Borneo founded by Sir James Brooke in 1842. Brooke obtained independent kingdom status for the land from the Sultanate of Brunei as a reward for countering piracy and insurgency. In 1888, his successor Charles Anthony Johnson Brooke accepted a British Protectorate for the region. This status lasted until 1946, when the third ruler Charles Vyner Brooke ceded his jurisdictional rights to the United Kingdom. Since 1963, Sarawak has been a state of Malaysia. North Borneo was a British protectorate under the sovereign North Borneo Chartered Company from 1882 to 1946. After World War II, it became a crown colony of the United Kingdom from 1946 to 1963, known as British North Borneo. Currently, it is known as the state of Sabah, East Malaysia. These all administrative had contributed a huge effect in application of common law and equity in Malaysia.

 The law of Malaysia is mainly based on the common law legal system that means that English law forms part of the laws of Malaysia. In Article 160 of the Federal Constitution states the definition of law which includes ‘the common law in so far as it is in operation in the Federation or any part thereof’ that concerns the extent to which the English law is applicable in Malaysia. In the Section 3 of the Civil Law Act 1956 (Act 67) (Revised 1972) gives the meaning of the English law which means ‘the common law of England and the rules of equity’ and, in prescribed circumstances, English statutes. The common law is the body of rule developed by the old common law courts - Court of Exchequer, Court of Common Pleas and Court of King’s Bench – that distinct from the old Court of Chancery and were extinct today’s world. Before Norman Conquest in 1066, the common law was applied in England and based essentially on customs common throughout England in contrast to local customs. The common law is the unwritten or unenacted law of England and it based solely on decisions of the courts.

Equity means ‘fairness’ and is the body of rules developed first by the Lord Chancellor and by the old Court of Chancery in the end of the fifteenth century. Equity, unlike the common law, is not a complete body of rules which can exist on its own and it merely filled the gaps in the common law and softened the strict rules of common law. Furthermore, equity is a discretionary system of justice. An equitable remedy is not available as of right; it may not be granted if the plaintiff considered morally undeserving. The equitable remedies offered were injunction, specific performance, rescission and rectification that the major contributions of equity are the trust concept.

In 1963, which when Malaysia was formed, there were three separate statutes authorizing the application of English Law which are the Civil Law Ordinance 1956 (CLO 1956) in Peninsular Malaysia, the Application of Laws Ordinance 1951 in Sabah as well as the Application of Laws Ordinance 1949 in Sarawak with effect from 1 April 1972, after the formation of Malaysia, the CLO 1956 was extended to Sabah and Sarawak by the Civil Law ordinance (Extension) Order 1971. The Civil Law Act 1956 (Act 67) (Revised 1972) (CLA 1965) being incorporate to all the three earlier statutes that are the statutory authority for the application of English law in today Malaysia. The extent of the application of English law is prescribed in the following three sections which are Section 3 and Section 5. In Section 3 (1), it provides for the general application of English law. It states that save so far as other provision has been made or may hereafter be made by any written law in force in Malaysia. In West Malaysia or any part thereof, apply the common law of England and the rules of equity as administered in England on the 7th day of April, 1956. In Sabah, apply the common law of England and the rules of equity, together with statutes of general application, as administered or in force in England on the 1st day of December, 1951. In Sarawak, apply the common law of England and the rules of equity, together with statutes of general application, as administered or in force in England on the 12th day of December,1949 , subject however to sub-section 3(ii) provided always that the said common law, rules of equity and statutes of general application shall be applied so far only as the circumstances of the States of Malaysia and their respective inhabitants permit and subject to such qualifications as local circumstances render necessary.

In short, section 3(1) provides that the courts in Malaysia shall apply the common law as well as rules of equity existing in England in the absence of written law on 7th April 1956 in West Malaysia, 1st December 1951 in Sabah and 12th December 1949 in Sarawak. In sub-sections (1)(b) and (1)(c) of section 3 states that English statutes of general application Sabah and Sarawak shall be applied. The difference in wording between these subsections on the one hand and subsection (1)(a) on the other hand perpetuated a controversy which earlier arose from section 3(1) CLO 1956 which was word for word the same as section 3(1)(a) CLA 1956. Are English statutes of general application applicable in West Malaysia. Two views, each as cogent as the other, exist. Professor Bartholomew, writing on section 3(1) CLO 1956, holds that such English statutes are applicable.39 Joseph Chia, in discussing the corresponding provision in the CLA 1956, expresses a contrary opinion.40 Judicial opinion supports the Joseph Chia view.

As in case of Jamil Harun v Yang Kamsiah & Anor ( 1984 ), the Privy Council held that, it is for the courts in Malaysia to decide, subject always to the statue law of the Federation, whether to follow English Law. Modern English maybe authorities, but not binding. In determining whether to accept their guidance, the courts will have regard to the circumstances of the states of Malaysia and will be careful to apply them only to the extent that the written law permits, and no further than, in their view, it just to do so. As in case Karpal Singh v Anor v Public Prosecutor ( 1991 ) MLJ 564, the Supreme Court held to the effect that English Law cannot be applied in criminal procedure, which in Malaysia is governed by the Criminal Procedure Code.

In Sarawak, apply the common law of England and the rules of equity, together with statutes of general application, as administered or in force in England on the 12th day of December,1949 , subject however to sub-section 3(ii) provided always that the said common law, rules of equity and statutes of general application shall be applied so far only as the circumstances of the States of Malaysia and their respective inhabitants permit and subject to such qualifications as local circumstances render necessary. Section 3(1) provides that the courts in Malaysia shall apply the common law as well as rules of equity existing in England in the absence of written law on 7th April 1956 in West Malaysia, 1st December 1951 in Sabah and 12th December 1949 in Sarawak. In sub-sections (1)(b) and (1)(c) of section 3 states that English statutes of general application Sabah and Sarawak shall be applied. The difference in wording between these subsections on the one hand and subsection (1)(a) on the other hand perpetuated a controversy which earlier arose from section 3(1) CLO 1956 which was word for word the same as section 3(1)(a) CLA 1956. Are English statutes of general application applicable in West Malaysia.

As in case of Seng Djit Hin v Nagurdas Purshotmudas Co. ( 1023 ) A.C 444, which the facts is for action of damages resulting from failure to deliver good caused by a shortage of ships. The British government had requisitioned ships during war time. The issue was the application of English Defense of  Realm ( Amendment ) Act 1915 and the Courts ( Emergency Power ) Act 1917. The English statues cited above were not part of the Mercantile Law which they thought was the law to be administrated in term of Section 5 of the ordinance. The question to be decided in the Colony is a question as to the law of sales. No one can doubt that the law of sales is part of Mercantile Law. If the same question as to sale had to be decided at the same time in England, it is clear beyond all doubt that the above cited statues of 1915 and 1917 could be pleaded if the facts allowed of their application.

 In a conclusion, Section 3 and 5 of the Civil Law Act 1956 are applicable when the court has found no laws to be applied in determine certain cases in Malaysia. These English common law and equity can be applied if no more existing law that can determine decision for the cases

LAW 245

EXPLAIN APPLICATION OF DOCTRINE BINDING JUDICIAL DECISION

A precedent which must be followed by all lower courts is called a binding precedent. If there was a precedent set by an equal or superior court, then a judge should obey that precedent. Binding precedents rely heavily on the legal principle of stare decisis. Judicial precedent means alike cases must be alike.      If there is a precedent set by an inferior court, a judge does not have to follow it, but may consider it.          A precedent set by courts lower in the hierarchy is called a persuasive precedent. Persuasive precedents may be persuasive, but are not binding - they can be overruled by a superior court's decision or an act of Parliament. The doctrine works in two ways vertically and horizontal therefore vertically means superior out binds all courts subordinate to it while horizontal means a court is bound its own previous decisions , decisions of its predecessor and decision of court of coordinate jurisdiction . In my opinion, superior courts had a wide field in making decision by its own and it not bound by its own decision. However, horizontal courts had limited field in making decision because they had precedent cases that must be follow in making decision for certain cases.

Besides that, courts in Malaysia had a proper structure in order to make a good and fast decision for cases. The cases that be finalized by judges must follow a certain procedure before it be penalties. The cases that are decide its punishment will be precedent cases that be refer in order to make decision for cases that related with it. The structures of Malaysia’s court are superior courts and subordinate courts. Superior courts consists Federal Court, Court of Appeal and High Court in Malaya also Sabah and Sarawak. Subordinates courts under high court of Malaya are Session Court, Magistrate Court And Penghulu’s Court while high court of Sabah and Sarawak consists Session Court, Magistrate Court And Anak Negeri Court. Superior courts consists of the High Court of Malaya, the High Court of Sabah & Sarawak, the Court of Appeal and the Federal Court. The Federal Court is the highest court of the land. High Courts have general supervisory and revisionary jurisdiction over all the Subordinate Courts and hear appeals from the Subordinate Courts in civil and criminal matters. They hear matters relating to the validity or dissolution of marriage (divorce) and matrimonial causes, bankruptcy and companies winding up matters, guardianship or custody of children, grants probates of wills and letters of administration of deceased persons, injunctions, specific performance or rescissions of contracts, legitimacy of any persons and generally actions of which the claim exceeds RM250,000-00 (except motor vehicle accidents, landlord and tenant and distress). The High Courts have powers to hear all criminal matters. Court of Appeal Generally, the Court of Appeal hears all civil appeals against decisions of the High Courts except where against judgment or orders made by consent. In cases where the claim is less than RM250,000-00 or the judgment or order relates to costs only or against decisions of a judge in chambers on an interpleader summons on undisputed facts, leave of the Court of Appeal must first be obtained. The Court of Appeal also hears criminal appeals against decisions of the High Courts. Federal Court all civil appeals from the Court of Appeal are heard by the Federal Court only after leave is granted by the  Federal Court. The Federal Court also hears criminal appeals from the Court of Appeal only in respect of matters heard by the High Court in its original jurisdiction.

 Furthermore , Subordinates courts consists of the Sessions Courts, the Magistrates' Courts and in West Malaysia the Penghulu's Courts. Penghulu's Courts Generally, the Penghulu's Courts hear civil matters of which the claim does not exceed RM50-00 and where the parties are persons of Asian race and speaking and understanding the Malay language. The Penghulu's Court’s criminal jurisdiction is limited to offences of a minor nature charged against a person of Asian race of which is specially enumerated in his power which can be punished with a fine not exceeding RM25-00. Magistrates' Courts hear all civil matters of which the claim does not exceed RM25,000-00. Generally in criminal matters, the Magistrates' Courts have power to try all offences of which the maximum term of imprisonment does not exceed 10 years or which are punishable with fine only but may pass sentences not exceeding 5 years imprisonment, fine not exceeding RM10,000-00 and/or whipping up to 12 strokes. The Magistrates' Courts also hear appeals from the Penghulu's Courts. Sessions Courts hear all matters of which the claim exceeds RM25,000-00 but does not exceed RM250,000-00 except in matters relating to motor vehicle accidents, landlord and tenant and distress, where the Sessions Courts have unlimited jurisdiction. The Sessions Courts have powers to hear all criminal matters except for offences punishable with death and may pass any sentences allowed by law except the sentence of death. Small Claims Civil claims not exceeding RM5,000-00 where the party pursuing the claim is an individual (i.e. not a company or agent/assignee of debts) are brought before the Magistrates' Courts pursuant to the small claims procedure where legal representations are strictly prohibited. You may fill in the Form 164 (Summons and Statement of Claim) which is available upon request at the Subordinate Courts Building by following the instructions found on the Form. You may also consult a lawyer but you cannot be represented by him at the hearing.

Briefly, decision of the Federal Courts binds all courts. The Courts of Appeal is bound by decision of decision of the Federal Courts and its decision and its decisions bind the two High Courts and the Subordinates courts. The High Court is bound by decisions for the Federal Courts and the Courts of Appeal and their decisions bind the subordinate courts. Decisions for the subordinate courts are, of course, not binding. Every court in the hierarchy must follow the prior decisions if courts higher than itself.  These several courts had different field and cases that can held under them. It must follow requirement under certain courts before it can failing under that courts. These courts settle cases and   ratio decidendi from that case that be refer by other judges in make same decision with similar cases that are held under them. Ratio decidendi (Latin plural rations decidendi) is a Latin phrase meaning "the reason" or "the rationale for the decision". The ratio decidendi is "the point in a case which determines the judgment" or "the principle which the case establishes". In other words, ratio decidendi is a legal rule derived from, and consistent with, those parts of legal reasoning within a judgment on which the outcome of the case depends. It is a legal phrase which refers to the legal, moral, political, and social principles used by a court to compose the rationale of a particular judgment. Unlike obiter dicta, the ratio decidendi is, as a general rule, binding on courts of lower and later jurisdiction—through the doctrine of stare decisis. Certain courts are able to overrule decisions of a court of coordinate jurisdiction—however, out of interests of judicial comity, they generally try to follow coordinate rations. The process of determining the ratio decidendi is a correctly thought analysis of what the court actually decided—essentially, based on the legal points about which the parties in the case actually fought. All other statements about the law in the text of a court opinion—all pronouncements that do not form a part of the court's rulings on the issues actually decided in that particular case (whether they are correct statements of law or not)—are obiter dicta, and are not rules for which that particular case stands.

In the case of Donoghue v Stevenson, Stevenson manufactured the ginger beer and sell to the café in Paisley. Donoghue is the shop assistant who meets his friend in the cafe. He bought the ginger beer to have share with his friends. When Donoghue drank, he found there is “remaining of decomposing snail” in the bottle. He shock, and got food poisoning. So, Donoghue was take action to sue the manufacturer, Stevenson. The chance for Donoghue sued for win was low. It is because there is no contract, so there could not be breach. However, The Court said that the Stevenson has to take reasonable care to avoid acts or omissions that would be reasonably likely to injure anybody who might be affected by them. There was an exit duty of cases independent is each cases. As in cases PP v Datuk Tan Cheng Swee & Anor (1988) , it is necessary to reaffirm the doctrine of stare decisis which Federal Court accepts unreservedly and which it expects the High Court and other inferior courts in a common law system such as ours to follow similarly . The doctrine of judicial precedent involves an application of the principle of stare decisis (to stand by the decided). In practice, this means that inferior courts are bound to apply the legal principles set down by superior courts in earlier cases. This provides consistency and predictability in the law. However, even though precedents are binding on later cases, there are ways in which judges can avoid following precedents set by previous judges because of several factor are per incuriam and ground of appeal. Per incuriam means  decision which is reached per incuriam is one reached by carelessness or mistake, and can be avoided while ground of appeal means A higher court can overrule a decision made in an earlier case by a lower court. For example, the Court of Appeal can overrule an earlier decision made by the High Court. Overruling can occur if the previous court did not correctly apply the law, or because the present court considers that the previous ratio decidendi is no longer applicable.

In a conclusion, applicable of doctrine binding judicial procedure had been applied in Malaysia a long time ago because that why our judicial branch can make a good and brilliant decision in decide several critical cases. It is because this factor can help in making a good decision making as unwritten law in Malaysia .