Discussing The Diamond Aloff For Professional Negligence

Discuss About The Diamond Aloff For Professional Negligence.

In exceptional cases that they find that the facts of a situation are so overwhelming towards the plaintiff that it may impose the burden of proof to show that there was no negligence on the part of the defendant.

The legal term which has been provided to this doctrine is res ipsa loquitur. The Doctrine is applicable in the situation where the reason for the exit what are the defendants control and the injury would not have been caused where proper care has been taken by the defendants. One of the primary cases in which the Doctrine has been applied is the case of Mahon v Osborne [1939] 1 All ER 535. In this case the defendant surgeon has left a swab inside the patient’s body who had made the claim. The court in this case applied the doctrine to impose the burden of proof on the doctor to show that he was not negligent.

The first English tort law case in which the Doctrine has been applied is the case of Byrne v. Boadle 2 H. & C. 722, 159 Eng. Rep. 299 (Exch. 1863). In this case from the second story loft a barrel of flour fell and cause injury to the plaintiff on his head. The injury had been seen by two witnesses however how the barrel fell on the plaintiff was not seen by any witness.

In  the  Byrne v. Boadle  case the court applied the doctrine of res ipsa loquitur and stated that the plaintiff was not required to show direct evidence in relation to whether a responsible person who is the owner of such barrel had Contravened the duty of care or not. The court in this case determined that the barrel was in custody of the person who owned the premises. Any person who owns the premises is to be held liable for the actions of his servant. Thus in this case in the light of the prima facie evidence in relation to negligence the court apply the Doctrine in favor of the plaintiff to allow him not to show that the injury was caused to him because of negligence. Further in this case four elements required for the purpose of establishing the Doctrine had been provided by the court. Firstly the injury must have such a nature that it does not take place without the presence of negligence. Secondly the reason for which the injury has been caused is because of an agency which was under the defendants’ exclusive control. Thirdly there is no contribution or voluntary action in relation to the injury which has caused by the accident on the part of the plaintiff. Finally the non negligent explanation of the defendant is not able to comprehensively explain why the plaintiff has been injured.

The doctrine of res ipsa loquitur

It has been provided by the facts that Panca was standing on the curb while she had been hit and injured by Diamond. In order to ensure that the doctrine is applicable or not in relation to the facts the elements of the doctrine as provided by Byrne v. Boadle has to be applied. The injury must have such a nature that it does not take place without the presence of negligence. In this case without the negligence of the other party there is no way in which she would have been injured. The second element states that the reason for which the injury has been caused is because of an agency which was under the defendants’ exclusive control. In the given situation Diamond Diamond who was the employee of Emmann would be deemed to be under the exclusive control of Emman as the accident took place in the course of employment. The third element states that there must be no contribution or voluntary action in relation to the injury which has caused by the accident on the part of the plaintiff. Here standing on the curb is not a contributory negligence or Volenti non fit injuria and thus the third element is also satisfied. However there is issue in relation to the application of the fourth element. In this case it has been stated that Emman took all necessary steps to provided training to Diamond in relation to motor bikes. She also ensured that a medical test is conducted on which she actually relied. In this case it can be stated that Emman can make a valid explanation for a defense thus the application of the doctrine in the scenario would be difficult. However in this situation trough the application of the case of Mahon v Osborne it can be stated that the doctrine will be applicable. This is because the facts of the situation are so overwhelming towards the plaintiff that the burden of proof  to that show there was no negligence is shifted on the defendant.

Thus from the abive analyzes it can be stated that Panca can rely on the doctrine of res ipsa loquitur against Emman.

The issue in this part is to identify the arguments which can be made by Panca along with the possible defenses in relation to the negligence of

Negligence is the state where there has been a failure on the part of a party to act reasonably and consequently injuring another party as per Blyth v Birmingham Waterworks Company (1856)

Applying the doctrine to the case of Diamond and Emman

There is a step by step process to provide negligence against the other party. In Donoghue v Stevenson [1932] AC 562 the court stated three elements of proving negligence. These are that the defendant owning a duty of care, he breached the duty and it resulted in damages which are not too remote. The neighbour principle was also defined by the case. A neighbour is any person who can reasonably foresee that his actions may harm the other.

In the case of Sundram a/l Veeriah v Magnificient Diagraph Sdn Bhd (t/a Carrefour Malaysia) [2011] 5 CLJ 821 the reasonable foreseeability test and the proximate relationship test were applied to determine the duty of care.

Under the reasonable foreseeability test it is not the person in context whose foreseeability is analyzed but a reasonable person in the same position.

Under the proximate relationship test there must not necessarily be physical proximity.

The provisions of professional duty of care had been analyzed by the case of Lamphier V Phipos (1838) 8 C & P 475. This is a kind of negligence which takes place on the part of a professional providing service to others. Here negligence is not analyzed by the skills of a reasonable man but a person in the same profession.

The duty has also been analyzed in the case of Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465 where the court held that the presence of a disclaimer signified that no duty was owed by the defendant professional.

The breach of duty is analyzed to have been taken place when the defendant has failed to observe a standard of a reasonable man in relation to the care. In case it has been found that there was a special skills person involved his actions would be compared to another special skilled person as per Vaughan v Menlove (1837) 3 Bing. N.C. 467

Probability of harm as stated in Bolton v. Stone [1951] AC 850

Seriousness of harm as stated in Paris v Stepney [1951] AC 367

Preventive measures required to mitigate the harm as stated in Latimer v AEC [1953] AC 643

In the case of Barnett v Chelsea & Kensington Hospital [1968] 1 All ER 1068 the court stated that there has to be a connection between the damages which have been suffered and the negligent action. The link is found by the “but for” test stated in the case. Only if the harm is caused because of the breach and not otherwise can the link be found.  Further in the case of Arab Malaysian Finance v. Steven Phoa Cheng Loon & Ors [2003] 1 CLJ 585 the court stated that the defendant only has to pay compensation which are not very remote rather are foreseeable.

Principles of negligence

In Maslinda Ishak v. Mohd Tahir Osman & Ors [2009] 6 CLJ 653 the court held that the employer is liable for the negligence committed by the employee in the course of employment.

In the case of Vitaton (M) Sdn Bhd & 3 Ors (Appellants) v Amrita Kaur A/P Prem Singh [2010] it was ruled that a person who assumes risks voluntarily cannot make a complaint.

In  Sukatno v Lee Seng Kee [2009] 3 MLJ 205 the court stated that when the injury is caused to the plaintiff because of the defednat’s as well as own contribution it is contributory negligence and here damages can be reduced.

Emman is the employer of Diamond and thus as per the principles of vicarious liability she will be liable for his actions committed in the course of employment.

Diamond by the application of the case of Sundram a/l Veeriah v Magnificient Diagraph Sdn Bhd  has a clause proximity to Panca and also a reasonable person in his position can foreseen injury to any person on the road due to an accident with the motorcycle. Thus Diamond has a duty of care to Panca.

Diamond has not acted as a reasonable person as evident by applying the case of Vaughan v Menlove as a reasonable person would not ride a motor cycle by having a sleeping disorder. Here the risk of injury was high, there was a chance of serious injury and there could have been easy preventive measures taken by Diamond.  Thus in this situation the duty of care has been breached by Diamond and injury has been caused to Panca.

However here there has been no duty of care which has been breached by Emman. Like a reasonable person in the same position would have done, Emman ensured that she took all necessary steps to provided training to Diamond in relation to motor bikes. She also ensured that a medical test is conducted on which she actually relied. However even where in this case Emman has not committed the breach of duty due to the principles of vicarious liability she may be successfully sued by Panca.

As per the case of donoghue v Stevenson a neighbour has a duty of care to the other neighbour. A person is a neighbour if he can reasonable foresees harm to other because of his actions. A reasonable doctor in place of  Aloff could have foreseen that his wring advice may case an accident on the road.  Thus Aloff has a duty of care to Panca.

As Aloff is a doctor the standard of care to be taken by him will be compared to a doctor in the same position. Any reasonable doctor would not provide a wrong advice where the probability of risk of harm and the seriousness of harm is so high as per Lamphier V Phipos. In addition the burden of providing a correct advice was also not much on Aloff. Thus in this case he has breached the duty of care.

By the application of the “but for” in situation of Panca and Aloff it can be stated that if Aloff would have not provided a wrong advice than Diamond would not have been provided with the Job and the injury would not have been caused to Panca. Thus link between causation and injury is established. In injury caused to Panca are also not too remote.

Here the defence of contrcibuty negligence and Volinti non fit injuria are also not applicable as there was no fault if Panca.

Thus Panca can make a successful claim against Aloff

Conclusion

Thus it can be stated that Panca can make a successful claim for negligence against Emmann as per vicarious liability For Diamond and from Aloff for professional negligence.

References

Arab Malaysian Finance v. Steven Phoa Cheng Loon & Ors [2003] 1 Management 585

Barnett v Chelsea & Kensington Hospital [1968] 1 All ER 1068

Blyth v Birmingham Waterworks Company (1856)

Bolton v. Stone [1951] AC 850

Byrne v. Boadle 2 H. & C. 722, 159 Eng. Rep. 299 (Exch. 1863)

Donoghue v Stevenson [1932] AC 562

Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465

Lamphier V Phipos (1838) 8 C & P 475

Latimer v AEC [1953] AC 643

Mahon v Osborne [1939] 1 All ER 535

Maslinda Ishak v. Mohd Tahir Osman & Ors [2009] 6 CLJ 653

Paris v Stepney [1951] AC 367

Sukatno v Lee Seng Kee [2009] 3 MLJ 205

Sundram a/l Veeriah v Magnificient Diagraph Sdn Bhd (t/a Carrefour Malaysia) [2011] 5 CLJ 821

Vaughan v Menlove (1837) 3 Bing. N.civil-engineering. 467

Vitaton (M) Sdn Bhd & 3 Ors (Appellants) v Amrita Kaur A/P Prem Singh [2010]