Discuss about the Court That The Prima Facie Position Of Plaintiff.
The applicability of res ipsa loquitur rule in the situation between Panca (Palintiff) and Diamond (agent) and Emma (Principal) is at issue in the given scenario so that it can be identified whether the onus of proof should be on the defendant or the plaintiff.
In rare circumstance it is identified by the court that the prima facie position of the plaintiff is so strong that it is evident that negligence has been caused due to the breach of Duty by the defendant. Where the court is able to identify such situation it makes a ruling that the onus of proof should be on the defendant of showing before the court that there was no breach of Duty committed on their part. This ruling made by the court has been given the legal term of res ipsa loquitur. This rule is applied in circumstances where the cause of the harm is prima facie in the control of the defendant and if the defendant would have taken proper standard of care the injury would not have taken place (Pheng & Detta, 2014). This rule has been discussed by the judges in the case Mahon v Osborne  1 All ER 535. The plaintiff in this case was a patient and the defendant was a surgeon. While conducting a surgery the defendant had my mistake left a swob inside the body of the plaintiff. The court in this case applied the rule of res ipsa loquitur by giving a reason that there are no chances of such injury taking place without the breach of the duty of care by the defendant. Therefore the defendant is made liable to show that he has taken reasonable care to avoid injury.
The Doctrine has been further analysed and discussed through Byrne v. Boadle 2 H. & C. 722, 159 Eng. Rep. 299. The plaintiff in this case had been injured while working for the defendant as something fell on his head while working. The court made a ruling in this case that the nature of injury caused to the plaintiff was such that it would not have taken place until the defendant breached the duty of care.
Application of law
The rules analysed above have to be applied in order to find out the outcome of the issue which is to analyse the applicability of the doctrine of res ipsa loquitur in situation between Emman and Diamonad. As discussed above the Doctrine had been discussed and analysed in the case of Byrne v. Boadle by the courts. Through the application of the doctrine the court made it clear that it was not necessary on the part of the plaintiff to provide proof with respect to the breach of duty of care by the defendant. It was found by the court that where the element of injury was within the control of the defendant and the defendant was also in control of the person causing the injury which at the first sight has caused harm to the plaintiff the Doctrine is to be applied. There is no burden placed on the plaintiff in case the application of the Doctrine has been analysed by the courts and the shift of the burden is done towards the defendant which is generally the opposite. There are four elements which has been analysed to this case to be used for the purpose of deciding the applicability of the doctrine.
- The character of the harm must be such that it would not have taken place where there is no negligence
- There was a exclusive control which the defendant exerted on the person causing the injury via the principles of agency
- Any form of contribution to the harm has not been done by the plaintiff
- The explanation provided by the defendant is not convincing with respect to compliance with the duty of care
The facts state that the plaintiff in this case was found to have been standing on the curb when she met an accident with the motorcycle rode by Diamond and got injured. The four elements which have been provided by the court in the Byrne case if applied to the facts can provide an outcome which would resolve the issue. It is clear that a bike will not it a person standing on the curb where there has been no negligence involved in the situation. Thus the first element has been satisfied. In the relation to the second element it is provided that there was an exclusive control which the defendant exerted on the person causing injury by the principles of agency. The fact provides that Diamond is the employee of Emman and was in the course of employment when the accident took place and therefore it can be stated that the second element of the Doctrine is also established. That was only standing on the curb like a reasonable person would have done and therefore it can be stated that she did not contribute towards the house which had been caused to her. Therefore the third element is also satisfied. In relation to the fourth element Emman does not have a convincing argument and therefore this element is also satisfied which will make the court apply the doctrine in the situation.
From the above discussion it can be concluded that the court will apply the doctrine of those in the situation between
- Whether Panca can make a valid claim for negligence against Aloff
- Whether Panca can make a valid claim of negligence against Emman
The judges in the case of Blyth v Birmingham Waterworks Company (1856) stated that when a party has failed to act in a reasonable manner which subsequently results in a hard to another party it give rise to the tort of negligence.
In Malaysia the common law principles used in the United Kingdom applicable for the purpose of determining the success of a claim for negligence (Trakic et al. 2014).
The English principles of negligence can be traced down from the case of Donoghue v Stevenson  AC 562. This famous case applied and analysed the elements of negligence in a situation where one party was injured because of the actions of another party. In this case a person consuming a beer had found a snail in the bottle. The person sued the manufacturer because of illness suffered by him after the consumption. There was no contractual relationship between the manufacturer and the plaintiff as the beer was purchased from a cafe. The judge used the principles of duty of care to make the manufacturer liable for the injury which has been caused to the defendant because of consuming the beer. The court also give out for the elements of negligence which breach of duty of care and harm caused by the breach of Duty. After this case these elements have been applied in various courts to address the issue related to negligence including courts in Malaysia.
Many tests have been identified by the courts while addressing the issue of negligence. One of such test is known as the proximity relationship test or the foreseeability test which has been applied by the court in the case of Sundram a/l Veeriah v Magnificient Diagraph Sdn Bhd (t/a Carrefour Malaysia)  5 CLJ 821 for the purpose of determining the presence of a duty of care. The proximity between the person who has caused the injury and the person who has been injured is analysed through the proximity test by appointment of a reasonable person in place of the defendant. The foreseeability of such reasonable person is deemed to be the foreseeability of such person. It is not necessary for the proximity in context to be physical.
When a person has committed a failure which a reasonable person being in similar position would not have committed while taking care to avoid and injury it is deemed by the courts that such person has not acted reasonably and has breached the duty of care. This approach taken by the courts to analyse the second element of negligence is known as the objective test. The test had been applied to resolve the issue with arose in the case of Vaughan v Menlove (1837) 3 Bing. N.C. 467.
There are also various sub elements which needs to be identified in relation to the application of the objective test. The sub elements have been analysed in various cases. The probability of the injury of taking place has to be taken into consideration while determining the breach of Duty as pointed out in the case of Bolton v. Stone  AC 850. That extent of injury resulting out of the breach of duty is also taken into consideration while determining the breach of Duty as pointed out in the case of Paris v Stepney  AC 367. The effort required in relation to taking the reasonable care is also considered by the courts while determining the breach of the duty of care as done in the case of Latimer v AEC  AC 643.
There are special measures which are supplied by the courts for the purpose of finding out whether a professional person has contraband a duty of care or not. These measures had been used by the court in Lamphier V Phipos (1838) 8 C & P 475. The court define professional negligence as an act where a professional was found to have a duty of care which he or she did not comply with like a professional person in the same situation. Therefore the element of professional negligence is that there must be a professional service provided in the situation and the standard of the service provided was not as good as it would have been provided by other reasonable professionals in the same position. Where the plaintiff has been injured because of poor standard of care observed by a professional a professional negligence claim can be made. Unlike normal negligence the breach of duty is not analysed by the application of a reasonable person but the application of a reasonable professional person in the situation.
One of the most important elements of negligence is “causation”. Causation can be analysed by using the but for test. The principles of this test state that in order to make a claim for negligence the injury caused to the plaintiff must have resulted out of the negligent action and would not have taken place is reasonable care had been observed. The primary case in which the test had been deployed by the court is Barnett v Chelsea & Kensington Hospital  1 All ER 1068.
Further the principles of vicarious liability state that when an act is committed by an agent in the course of employment the principles can be sued in relation to the act. The relationship between an employee and an employer is also that of an agent and principal as per Maslinda Ishak v. Mohd Tahir Osman & Ors  6 CLJ 653
There are two defences which are applicable against a claim of negligence
- Voluntary assumption of risk
- Contributory negligence
When a person has assumed voluntary risk which resulted in an injury then such person has no right to make a claim for negligence against such injury as stated by the court in the case of Vitaton (M) Sdn Bhd & 3 Ors (Appellants) v Amrita Kaur A/P Prem Singh 
When a person has made a contribution to the injury which has been caused to him then such person has no right to make a claim for negligence against such injury as stated in the case of MURUGASAN KUPPUSAMY & ANOR V. CHIEW ENG CHAI  1 CLJ 42. The person being contributory negligent is analysed by the elements of negligence itself. In this situation damages are apportioned on the basis of the contribution.
Diamond has been hired by Emman for the purpose of operating foodpanda services. There has been significant care taken by Emman before she allowed Diamond to deliver food on motorcycle which included providing extensive motor vehicle training and getting him physically examined by a doctor. The doctor in this case has concealed the facts from her that Diamond has a sleeping disorder. Through the application of the Sundram a/l Veeriah v Magnificient Diagraph Sdn Bhd case it can be stated that Diamond had a duty of care to Panca. This is because he was in very close proximity to any person on the road while he was riding the motorcycle. Any reasonable person in the position of Diamond would foresee that if he does not take proper care he may cause harm to others on the road. Therefore by the application of the proximity test and the reasonable foreseeability test Diamond has a duty of care to Panca. The duty of care has also been breached by Diamond as by the application of the objective test provided by Vaughan v Menlove it can be concluded that no reasonable person will ride a motorcycle when he has a sleeping disorder. The element of causation in the situation is also present as by applying the “but for” test it can be concluded that Panca would not have been injured if the sleeping disorder had not caused the accident. However the principal has the duty of care to ensure that reasonable there is taken and not a duty to prevent harm. In the given situation Emman had taken significance levelof care with a reasonable person would have taken in her position. There for Emman has not violated the duty of care which she had towards Panca being the principle of Diamond. Therefore it would be more feasible for Panca to make a claim against Aloff.
Aloff being a professional doctor has a duty of care to anyone who relied on his advice and to anyone who could be injured because of wrong advice provided by him as per the proximity and the reasonable foreseeability test. This means that he had a duty of care to Panca as a reasonable doctor in his place could have foreseen that the sleeping disorder may cause accident and injure both Diamond and anyone on the road. By not providing inaccurate advice to Emman, Aloff has violated the duty of care as per the objective test as a reasonable doctor would not give wrong advice in any situation. Further if Aloff did not provide is a wrong advice Emman would not have given permission to Diamond to ride the motorcycle and the accident would not have taken place. The damages which have been caused to cause to Panca directly result of the breach of duty. Therefore Aloff is liable for the injury caused to Panca.
In addition a reasonable person in place of the plaintiff would not be able to reasonably assume that a bike may hit him or her while standing on the curb. Therefore there is no voluntary assumption of risk or contributory negligence made by Panca.
It would be more feasible for Panca to make a claim for negligence against Dash as there are much more chances of success.
Adnan Trakic, Nagiah Ramasamy, Cheah You Sum, et al, 2014 Law for Business Sweet & Maxwell.
Barnett v Chelsea & Kensington Hospital  1 All ER 1068
Bolton v. Stone  AC 850
Byrne v. Boadle 2 H. & C. 722, 159 Eng. Rep. 299
Donoghue v Stevenson  AC 562
Lamphier V Phipos (1838) 8 C & P 475
Latimer v AEC  AC 643
Lee Mei Pheng & Ivan Jerone Detta, 2014, Business Law, 2nd edition, Oxford University Press
Mahon v Osborne  1 All ER 535
Maslinda Ishak v. Mohd Tahir Osman & Ors  6 CLJ 653
MURUGASAN KUPPUSAMY & ANOR V. CHIEW ENG CHAI  1 CLJ 42
Paris v Stepney  AC 367
Sundram a/l Veeriah v Magnificient Diagraph Sdn Bhd (t/a Carrefour Malaysia)  5 CLJ 821
Vaughan v Menlove (1837) 3 Bing. N.C. 467.
Vitaton (M) Sdn Bhd & 3 Ors (Appellants) v Amrita Kaur A/P Prem Singh