QUESTION 1

Definition duty of care according in case of Heaven v Pender1 where Brett MR held that a duty of care exists in normal circumstances whereby if a person does not take the usual degree of precaution another person or his property may be injured or damages 2. That means duty of care need a usual degree precaution toward another person or property to avoid occur any damage or injured in normal circumstances. Moreover, duty in the tort of negligence means duty as imposed by the law, or legal duty. It is only the breach of this kind of duty and its resulting damage that may give rise to liability in negligence3 Duty in tort of negligence can forced by legal duty of law whereby if someone breach of duty that he owe and causes any damage or injury because breach that duty, legal action under negligence can takes towards him. Duty of care based on the dictionary of law is a duty to use due care toward others in order to protect them from unnecessary risk of harm 4. In my view from all the above definition duty of care is everyone has a general duty to exercise reasonable care and has degree precaution to take care but if he or she failed or breaches that duty and causes any damage and shall take legal action. Duty of care is one element in negligent. Without this element, legal action under negligent cannot takes. Example duty of care can I give as a person that conduct the ceremony of marriage at their house have duty of care to make sure all the place safe and they have degree of precaution toward the guest that become the visitor at that day.

[1883] 11 QBD 503 Talib,Law of Tort in Malaysia,Second edition; 87 3 Norcahaya Talib,Law of Tort in Malaysia,Second edition;87 4 http://dictionary.findlaw.com/definition/duty
1 2Norcahaya

Lord Atkin was formulate the neighbor principle to judge case law of Donoghue v Stevenson5The fact of this case is the plaintiff who drank the ginger beer whereby the bottle of beer that opaque appearance contained the decomposed snail and she alleged that she become seriously ill as a result of drinking the contents of the bottle. That beer she bought from the retailer of shop. She then sued the manufacturer in negligence. The court was held the manufacturer was liable because owe a duty to take care and ensure the bottle did not contain any noxious matter. The judge was formulated neighbor principle based on this case. This principle is about the person should take a reasonable action to avoid acts or omission which we can rational predict that things will happen and give injured or damages to neighbor. The neighbor principle is an objective sense where the hypothetical question will ask by court such as would a reasonable man do that things, who is the same situation as the defendant and whether the things that a person conduct can foresee and will badly affected to the plaintiff. If the answer if no the plaintiff not said as a defendants neighbor and no duty of care exist between plaintiff and defendant but if the answer is yes the defendant have a duty of care towards the plaintiff. So, one element action under negligent which is duty of care is exist and have two more element should exist and next, legal action can take under negligent acts. The neighbor principle involves the person that is closely and directly affected by the defendants acts or omission. The word closely and directly affected means the omission of the defendant closely and directly affected to the plaintiff. Not only that the defendant is able to foresee what will affected to the plaintiff as the reasonable man when the defendants omission exist. Example the situation that directly affected to the plaintiff such the mother of the children that directly affected by the omission of the doctor that causes more bad injury toward her children and she is going fall sick due to omission of the doctor. Here can see the omission of the children will also closely and directly affect to the mother. Means, the doctor also have duty of care to the childrens mother because the omission he did is closely and directly effect to the mother and this is common happen as a reasonable man if something bad happen when having the close relationships.

[1932] AC 562

This neighbor principle need not be can applied in all cases while to determine a duty of care because certain circumstances the court have recognized the existence of a duty of care. The neighbor principle can apply towards the classic example such duty that owed by a teacher to his pupil, doctor to patient and driver to a road user. The illustration case law can see in case of Haley v London Electricity Board6whereby the claimant fell into the hole in the pavement left by the defendant were sufficient for a sighted person but the claimant was blind. The claimant was injured when he fell into the trench. 7The court was held that there was a duty of care owed to a blind person as they were within the category of people who should have been in the foresight of the defendant as someone likely to walk the streets. Mean here the defendants were liable the injury of claimant because he is blind and the defendant have duty of care towards him because the injury also has been in the foresight by the defendant that likely to walk the street. The case above also judgment using the application of neighbor principle whereby the defendant is the plaintiff neighbor and owed duty of care since the plaintiff gets injured when fell into the hole in the pavement left by the defendant. Defendant fails to take a reasonable care to avoid acts or omission which the defendant can reasonably foresee the hole that would be likely causes the injured to the blind person which is the plaintiff. The defendant also closely to the defendant and directly affected when the defendant have a degree of duty precaution towards plaintiff since the plaintiff is blind person. In addition, element duty of care has been decided using the Anns test in case of Anne v Merton London Borough Council8.The fact of this case Merton Borough Council permitted the building of a block of flats in Wimbeldon. After a few years, it became apparent that the two story building was not well structurally and cause faulty foundations. Some of the lessees take an action for negligence against the builders and the council. The Council, although under no obligation to do so, had not used its good judgment to check the foundations under by laws.

[1964] 3 ALL ER 185 Jon Rush and Micheal Ottley,Business Law,Thomson;144 8 [1978] A.C. 728
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After discussion about whether the action should be statute-barred, the case concerned whether the defendants owed a duty of care about the negligent of the building. Initially, it was held that no duty of care was owed. But this was reversed at appeal and affirmed by the House of Lords. This Anns test that expounded by Lord Wilberforce that fixed the limit of duty of care that once it is reasonably foreseeable that the defendants act or omission may cause damage to the plaintiff. This duty will only be reduced if there are policy factors which require the reduction of that duty. The Anne test received heavy criticism in case of Leigh & Sillavan Ltd v Aliakmon Shipping Co Ltd9 it was held that the Anns as expounded by Lord Wilberforce should not be treated as a universal test in determine the scope duty of care in the tort of negligence10.That means Anns test not suitable to use to determine the scope of a duty of care in tort of negligence. Right now Anns test does not use anymore to judge any case. The judge more prefer uses the neighbor principle to determine the scope duty of care in tort og negligence cases. In my opinion, I also agree Anns test cannot use anymore because the judgment using Anns test not relevant to determine the scope of duty of care. The limitation judgment duty of care make this test cannot treat as universal test to determine duty of care. I also agree applied the neighbor principle to determine duty of care because it is more relevant compare Anns test. For me neighbor principle is perfect principle that considers all the factor not just between defendant and plaintiff but also have a duty if the injury is closely and directly affected to other person that have close relationship.

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[1986] 2 ALL ER 145 Norcahaya Talib,Law of Tort in Malaysia,Second edition;90

QUESTION 2 Based on the case given, the issues that need to be determine whether or not Boston Cricket Club can be liable for negligence. Negligence is the most important area of tort law. Negligence is defined in Winfield and Jolowicz on Tort as the breach of a legal duty to take care which result in damage, undesired by the defendant, to the plaintiff11.Means here, negligence will occur whereby the defendant that owed a duty to take care towards the plaintiff breach that duty and cause the damage to the plaintiff. The definition of negligence according to legal dictionary is a failure to exercise the degree of care expected of a person of ordinary prudence in like circumstances in protecting others from a foreseeable and unreasonable risk of harm in a particular situation12.In my understanding from this definition of negligence is a someone fail to exercise the obligation of a duty that has been given to protect other person whether in a foreseeable and reasonable risk of circumstances. Based on two definitions above, I can conclude the definition of negligence in my understanding is the omission to do something which a defendant owed a duty of care but failure to exercise the degree of care and causes damage or injury to plaintiff due to breach a duty which a prudent and reasonable person would not do. There have three elements that a person should measure before take action under negligence. First is duty of care which everyone has a duty to exercise reasonable care toward other people and their property. Duty of care can be defined in cases law of Heaven V Pender13 which duty of care exist in normal situation where if a person does not take the usual level of precaution can causes the injury to other person. In my view of the definition of duty of care when someone has obligation to other person to take care and give the usual degree of precaution to avoid any injury occur to that person.

Lee Mei Pheng and Ivan Jeron Detta,Business Law,Oxford;230 http://dictionary.findlaw.com/definition/negligence.html 13 1883] 11 QBD 503
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Duty of care also can be test using the neighbor principle that first uses in the case of Donahue v Stevenson14. The judge Lord Atkin makes a decision which refers in this principle. The fact of this case is about the manufacturer of ginger beer sold to a retailer ginger beer in opaque bottle. The plaintiff get a sick and become seriously ill when drink the ginger beer that contained the decomposed remains of a snail which had found in the bottle at the factory. Then plaintiff takes action toward the manufacturer for negligence. The court decides by the applying the neighbor principle that the manufacture is liable and owed a duty to make sure the bottle in good condition to pass through to all consumers. It should take a reasonable care to avoid an injury to the consumers life or property. The principle of neighbor is relevant to use when applying to judge any case. This is because the neighbor means that we must not injure our neighbor and take a reasonable care to avoid acts or omission which we can predict it will be occur and directly give injured to our neighbor. This neighbor principle is refer to a person that are closely and directly affected by my act that I ought reasonably to have them in my consideration as being affected when I commit the act or omission. Lord Atkins neighbor principle was approved in Home Office v Dorset Yacht Co Ltd15. where it was stated that the neighbor principle ought to be used in order to determine the existence of a duty of care unless there are good reason or justification for its exclusion 16. Means here the neighbor principle should to use to find out the existence duty of care and exist an exclusion when have a good reason or justification about the cases. In the example that applied the neighbor principle, the teacher that brings his student visit the museum and suddenly one of his students lost from his attention. The first question that must be resolved is whether the teacher owed a duty to his student. In other words, a court would need to decide whether the teacher and the student had a relationship such that the teacher was required to exercise reasonable care in handling his entire student during visit a museum. The student found in death because involves an accident. The consequences of that, mother of that student suffer the illness because shock with the news and cannot accept the death of her son. The teacher also liable toward the illness of the mothers student because the omission of teacher is directly affected towards a mother and this kind of situation a reasonable man can foresee.

[1932] AC 562 [1970] AC 1004 16Norcahaya Talib,Law of Tort in Malaysia,Second edition; 87

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The second element of negligence is breach of duty. The meaning of breach according legal dictionary is a violation in the performance of or a failure to perform an obligation created by a promise, duty, or law without excuse or justification17.Means here breach of duty the failure of a person to exercise his duty that responsible to him. Breach occurs when the defendant does something that is perceived to be below the minimum standard of care required of him which measured through the standard of reasonable man. The illustration in case of Blyth v Birmingham Waterworks Co18.it was stated that negligence is the omission to do something which a reasonable man would do or doing something which a reasonable would not do. A reasonable man has been describe as the ordinary man that not have any special skill such as the lawyer, surgeon and other that have specialized skill. There have categories of tortfeasor to observe the existence breach of duty. It will exist when defendant do something below the minimum standard as required to him that count from the act of reasonable man. Determine whether breach of duty created by ordinary man will based on the reasonable man test. The test measures with the normal norm of activities that usually the ordinary man would do. The something seems reasonable tone to judge may become something unreasonable to another person. The illustration case in Glasgow Corporation v Muir19.The fact of this case is defendant spilled hot tea on some children and the issue here whether the defendant should have foreseen that injury that occur when he brought a big container of tea through the corridor of the premises. The court held in the negative as a reasonable man would not have foreseen that accident will occurs in the circumstances. In the reasonable man test make all the test is based on the normal norms and their activities is consider in determining reasonableness of tortfeasors conduct. This category also charge based the common activity what the ordinary would do in reasonable circumstances.

http://dictionary.findlaw.com/definition/breach.html [1856] 11 Ex 781 at 784 19 [1943] AC 448

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The second category of tortfeaser is professional. It refers to a person that has some particular skill that certain person has in the scope specialization of work in daily life. Example professional category are doctor, banker, engineering an others professional expertise. This category not judge similar with ordinary man. There have differences between the reasonable man test and professional man test which for ordinary man used the reasonable man test while for professional category used the reasonable professional test of the standard of care. It naturally required the higher level then that required of the ordinary man on the street. The illustration case of Bolam v Friern Hospital Management Committee20 determining the standard of care of a professional defendant. In this case the plaintiffs pelvis was broken during an electro-convulsive treatment (ECT) and the plaintiff alleged negligence on three reasons. First reason because the defendant cannot warn the plaintiff about the risk having the ECT treatment, secondly, the defendant cannot give the plaintiff any relaxant before the shock were given to him and lastly because of the defendant did not hold down the plaintiffs body whilst the treatment was being administered. The thirdly category of tortfeaser is a person who possess special skill. The person that has special skill or expertise in a particular area will be judge as against other people who have the same skill. This person will be judge according the special skill that he belongs not a professional skill like a doctor or lawyer that have a higher range compared the person that just ability of special skill. The illustration case of Philips v William Whitely
21.The

court was held that a standard of care

required of a jeweler when piercing but a persons ears is that of a competent jeweler not that of a competent of surgeon. Based on this cases the jeweler was held not liable when the plaintiff contracted disease which she would not contracted because her ear not pierced by a person who have a medical skill like the surgeon and doctor that have a professional of work specialized.

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[1957] 2 ALL ER 118 [1938] 1 All ER 56

Lastly the category of tortfeasor is a child. Child will fall under special category. The standard of care required of a child doing something in the standard range of childrens age that usually others child would reasonable make. The illustration example of case in Mchale v Watson22.The fact of this case defendant as a children in aged twelve, threw a piece of welding rod which had been sharpened at one end and hit the plaintiff. The High court of Austria was held not found in liable because his act was not something that can be foreseen and the behavior of the children is not an ordinary children for twelve years old boy expected to do it. The last element of negligence that plaintiff need to prove is that damage was caused by the defendants breach of duty. In order to prove causation, there must be proof that the defendant's actions actually led to the harm suffered by the plaintiff. The element of causation is broken down into two separate issues which is causation in fact and causation in law. If the harm would not have occurred without the wrongful act and the damage did not directly the caused by breach of duty, then the act is the cause in fact. To prove cause in law, there must be a close connection between the wrongful act and the harm caused. The harm that resulted must have been foreseeable and directly affected from the wrongful act. The illustration case can be see of the case of Robinson v Post Office23.The fact of this case is a doctor who did not conduct tests to find out whether the plaintiff was allergic to anti-tetanus injection was not liable when latter contracted encephalitis as a reaction to such injection, as even if a test had been done, the allergy would not have been discovered in time24. Means here the plaintiff still be contracted with encephalitis even if the test of anti-tetanus was not conducted. The illustration case law for the causation in law is case in The Wagon Mound25 which the defendant chartered the ship of The Wagon Mound which was anchored at C oil Co for refueling but due to negligence of the defendants stevedores, some oil had spilled onto the water and the oil spread to the plaintiffs wharf which about 600 feet away. This situation is reasonable foresight that can cause damage because two day later the plaintiffs jetty was extensively damage when the oil caught a fire.

[1966] 115 CLR 199 [1974] 2 ALL ER 737 24 164 25 [1961] AC 388
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The conclusion, the workers should careful to doing something to avoid any damage occurs that we can reasonably foresight that damage and also it can directly affected injury or damage towards a person that have a reasonable care or their property. Based on the case study of whether or not Boston Cricket Club can be liable for negligence act. In my opinion when study further about the element of negligent that can make a plaintiff can take action towards defendant, for me Boston Cricket Club is liable for negligence act. This is because the Boston Cricket Club consists of three element of negligent which is duty of care, breach of duty and damage. The Boston Cricket Club owed a duty of care towards his player that have an intensive training with Boston Cricket Club .So, what ever happen to their player, the Boston Cricket Club should liable. They also have the usual degree of precaution to care of player cricket to avoid any injury or damage happen to other person. The illustration example case of Home Office v Dorset Yacht Co Ltd26.The fact of this case is seven boys which is borstal trainees had escape from an island due to the negligence of some borstal officers. The boy caused damage to a yacht and its owner sued the Home Office. The court was held the Home Officer owed a duty of care to the owner of the yacht. This case law above seem similar with the situation of case study that the owner should be responsible with the damage happen whereby in the case study Boston Club Cricket owed duty of care toward his player even though the injury of the jogger making by their player. The owner should responsibility because they owed a duty of care towards the player. Moreover, in the case study also involve the element breach of duty where Boston Cricket Club failure to exercise the duty that to ensure the place to play a cricket is suitable port. The illustration example case law of Paris v Stepney Borough Council27.This fact of this case is the plaintiff who was blind in one eye worked for the defendant and the working conditions were such that there was risk of injury to the eyes. A piece of metal hit his good eye when he was working and completely blind afterwards. The court held that the employer had a duty to take a reasonable care to ensure the safety of the working environment of his employees.

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[1970] AC 1004 [1951] 1 ALL ER 42

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From the case law, I can make a judgment that Boston Cricket Club had a duty to take a reasonable care to ensure the safety of their player and make sure they are not cause injury to other people. Boston cricket club should know either the place is safety and suitable to playing cricket. I think the place is not suitable to play cricket because it is nearest the park whereby many people come for jogging and relaxing place. I think Boston Cricket Club fails to ensure the safety of place and Boston Cricket club had a duty to take a degree precaution towards the player and the place of Boston Cricket club. Boston Cricket Club had been breach a duty that it owed. So, the second element of negligence of breach of duty completely exists. Lastly the element of damage or injury also exists in the case study negligence of Boston Cricket Club. The effect of breach duty of care that causes the injury is one element of negligence. Due to failure of Boston Cricket Club to ensure the safety of place and take a degree of precaution towards his player then causes damage to other person. This damage in my opinion is causation in law whereby we can reasonable foresight the damage maybe occurs. This is because the place is not suitable to playing cricket that nearest with the park that reasonably many people come for the outdoor activities at there. It causes danger to public people because we cannot limit the movement of ball when hitting. The illustration case in Overseas Tankship (UK) Ltd v Miller Steamship Co Pty Ltd, the Wagon Mound (No 2)28the owner of the ship which destroyed in the same fire claimed from the defendant. The plaintiff success to claim towards defendant because the basic damage in the form of fire which can foreseeable occurs. Based on the case study it can relate with the case law above when the plaintiff success to claim because the damage is foreseeable to occurs. Same like the case study whereby the Boston Cricket Club can the foreseeable the damage occur when the place of the playing cricket not suitable that can causes injured the public people around the park since the Boston Club nearest with the park. The conclusion is The Boston Cricket club is liable of negligent because consist the three element of negligence. If one element is not consist so the negligence act cannot takes towards the defendant.

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[1967] 1 AC 617,PC.

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This three element of negligent is very important to determine either the defendant liable or not with the plaintiffs claimant. When one of three elements does not exist is hard to judge the case. Example if duty of care not exists but just only occurs of damage. So, there is completely not liable to plaintiff to take action towards the defendant. Duty of care identify either we owed a duty or not with the particular circumstances. Without duty of care also we cannot assist either a person breach of duty or not. So here I can tell all the three element of negligent is important to classified and judge any case that have related with the negligence.

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