1. Alvin’s parents can sue Boyle, on Alvin’s behalf, for negligently caused the accident.
According to Alderson B, negligence is the omission to do something which a reasonable man would do or doing something which a reasonable man would not do. The landmark case for negligence is the case of Donoghue v Stevenson. In this case, the court had laid down neighbourhood principle in which a person is said to owe a duty of care to his or her neighbour. (someone who could be reasonably affected by the person’s acts or omissions). 2.
The second element is that there is a breach of the duty of care. The general rule that the defendant is judged by the standard of reasonable man can be exempted in cases where the defendant drives a vehicle, the requirement is a skilled driver.3. The third element is that the plaintiff has suffered loss or damage. The fourth element is causation in which the plaintiff has to prove his damage or loss was the direct consequence of the defendant s conduct. Contributory negligence4. In our situation, the main discussion is on the issue of contributory negligence.
Contributory negligence means that the plaintiff has failed to take reasonable care for his own safety or his property, and this caused his damage or injury. Hence, if the plaintiff failed to take reasonable precautions and such failure resulted in damage or injury, the plaintiff should share the responsibility for the damage and the damages recoverable may be reduced.5. To establish contributory negligence, plaintiff must not owe a duty of care to the defendant. The defendant have the duty of care to act reasonably to avoid damage to himself. The second element is that the plaintiff had failed to take reasonable care of himself due to unreasonable behaviour.
Lastly, the act or omission done by the plaintiff is reasonably foreseeable. However, there is different for contributory negligence of children. 6. In Lee Seng Kee v Sukatno & Anor, the court stated two matter that must take into consideration. First, the negligence of defendant, then the contributory negligence of plaintiff.
Contributory negligence imposes in not taking action to avoid the consequence arising from the negligence of the some other person when there is means and opportunities afforded to do so. 7. In Hamizan bin Abd Hamid v Wong Kok Keong & Anor as the disregard to his own safety by the unreasonable behaviour of plaintiff which causes a foreseeable damage to himself. For example, in the case of Jones v Livox Quarries Ltd, the plaintiff, ignoring the instructions of his employer, rode on the back of a traxcavator. The traxcavator got hit by a car from behind which caused injury to the plaintiff.
The court held that there is contributory negligent by the plaintiff as the injury that he suffered was reasonably foreseeable as a consequence of his behaviour. 8. In the case of Lai Yew Seong v Chan Kim Sang, the plaintiff was convicted for contributory negligent for hitting a car from behind as he should have exercised reasonable caution to avoid the foreseeable outcome.
The test of contributory negligence is based entirely on the conduct of the plaintiff. 9. In Mohd Rozan Alias v Norhashmi Azizan & Anor, stated that the defendant must proved two element. First the plaintiff had failed to take reasonable care of himself and second, his failure to take care himself was a contributory cause of the accident. The reasonableness of care is depend on the circumstances and the condition at the material time of the incident.
10. In Azman bin Sulaiman v Muhammad Aqil Afdhal, a 5 year old child went out of his house unattended by his father and met an accident. The court held that a 5 year old child should not be imputed with any liability or duty of care as a 5 year old kid will not be able to exercise the same degree of caution as a school-attending children. Similarly in the case of Jones v Lawrence, a 7 year old child was held not liable for contributory negligence by crossing a road and caused an accident.
The judge stated that the child merely acts as what a normal child will act, thus fulfilling the reasonable standard of care for a child.11. In the case of Abraham v Choo Jit Fung & Anor, the respondent was a 7 year old at the time of the accident.
The court stated that the respondent acted as how a child similar to his age will do. Children will not be required to have the same degree of caution as an adult. Thus the respondent is not liable for contributory negligence as she had acted reasonably. 12. In the case of Roshini Sockalingam v Gurmukh Singh Amar Singh, the 8 years old plaintiff was knocked down by a car in a school compound.
The court, considering the age of the plaintiff, held that there was 75% liability on the defendant and only 25% liability on the plaintiff. 13. In the case of Wong Li Fatt v Haidawati Binte Bolhen & Anor, the court stated that the plaintiff was only a two years old infant, thus it is impossible to impose a duty of care on such a young infant. A two years old infant will not be reasonably expected to judge the distance or speed of cars. 1.
In the case of Mohamad Safuan bin Wasidin v Mohd Ridhuan Bin Ahmad, the 4 year old respondent was knocked down by the appellant’s motorcycle. The court decided that the appellant was 100% liable. The court laid down the principle that the standard of duty of care of a children differs from an adult. The older a child is, the higher the standard of duty of care will be on him. 2. Nevertheless, there are also instances whereby children can be liable for contributory negligence. For example, in the case of Eng Lee v Lim Lye Soon, the plaintiff was a 8 year old kid who ran across a path which is designed specifically for vehicles, is knocked by the lorry.
The court held that the plaintiff in this case is liable for contributory negligence because he ought to exercise reasonable care by avoiding the use of the lorry’s path. It is also within his capacity to foresee that particular danger. 3. Next, with regards to parental liability, the general rule is that parents will not be liable for failure to monitor each and single action of their children.
For example, in the case of Donaldson v Mc Niven, the court laid down the principle that it is not an obligation on parents to look after their children all day every day. Parents will not be liable for the torts of their children. Application4. The issue before the court is that whether Boyle can rely on contributory negligence by children in order to escape or reduce the liability of knocking Alvin. 5. The main consideration of the contributory negligence of children is the age of the child. Whether normal child at the plaintiff age would have acted as the plaintiff has done. S.
2 of the Age of Majority Act 1971 stated that the age of majority is 18 years old. 6. The legal principle of children contributory negligence derived from the case of Fleming v Kerry County Council. The court held that children of tender years cannot be expected to take any reasonable precaution of their own safety. 7. An objective test will be applied on the child.
The court had to consider the age and mental development of the child of same age in order to determine what precautions are expected to be taken out by the children for his own safety. If he fails to take the reasonable precaution, he will be held contributing to the negligence and the defendant might escape liability or reduce the amount of compensation. 8. For objective test, we need to consider the precaution which will be taken out by children of 8 years old in order to determine whether Alvin has contributed to the negligence. By assuming that Alvin’s mental development is as other normal child, he could not be expected to have taken the precaution as a boy of 8 years old could not reasonable foresee that there is a risk of running across the road. Even though Boyle is driving slower that the average speed, he can still be held liable as a driver need to take all conditions which will happen on the road into consideration.
9. However, there is no guideline to determine whether the child has fell short of the reasonable precaution which expects from him. Some of the cases adopted subjective approach and the others adopted objective test.
10. In the case of Gough v Thorne, the children were waiting to cross the road and they were beckoned by the lorry driver to cross the road. The children followed the gesture and one of the children was hit by a car because she failed to check for the oncoming traffic. The issue was whether the girl had contributed to the negligence. The defence counsel argued in order to decide whether the child can be held contributory negligence, the court need to consider a child of that age could have taken the precaution for his own safety. The high court held that the girl had contributed to the negligence but the Court of Appeal overturned the decision as a 13 years old girl would not be expected to take the precaution.
11. For the age of Alvin, he could not be expected to take the precaution by applying the case of Gough as in this case, a 13 years old which is supposed to be more mature than a 8 years old child could not be expected to take the reasonable precaution, hence, Alvin could not be held liable for contributory negligence.12. In the case of Banks v United States, an 8 years old child was injured when he rode on a gate and the state contended that there was contributory negligence. The court held that in order to determine whether there was contributory negligence, we need to determine whether the child had taken reasonable precaution and the level of precaution was determined according to his age, experience, intelligence and ability. This has showed that the court had applied subjective approach in order to determine whether there is contributory negligence and has been applied in a recent case. 13.
In the case of Rehman v Brady, the defendant argued that the characteristics of 7 years old claimant put her in a better position an ordinary child of her age to appreciate the risks of crossing a road. 14. To identify contributory negligence by subjective approach, the age, development and mentality of Alvin has to be consider. Assuming Alvin is of normal development of an 8 years old kid, he could not be expected to carry out the reasonable precaution or appreciates the risk of running across the road. Hence, he could not be held liable of contributory negligence.15.
In the case of Toropdar v D, the victim was a 7 years old child and he had been knocked by the defendant’s vehicle when he ran out from behind a parked car and the defendant was driving faster than the average speed. The defendant contended that the victim had been taught on how to cross the road and hence he had contributed to the negligence. The court held that a 7 years old infant could forget what had been taught and hence the victim could not be expected to assume the risk on the reason that he had been taught on how to cross the road.16. The facts silent on whether Alvin has been taught of crossing the road. Even though Alvin has been taught on the method of crossing the road, he could not be held liable for contributory negligence by applying Toropdar case as Alvin might forget what has been taught to him and hence, he could not assume the risk of crossing the road negligently.17.
From the discussion above, the most appropriate test should be applied in order to determine the liability of Alvin should be subjective test. This is because there is no guideline in objective test in order to determine whether the children has taken sufficient and reasonable care in order avoid the accident. Hence, it would be more appropriate for us to apply subjective test in our current case. 18. Therefore, we need to consider the mental capacity of Alvin in order to determine whether he has taken sufficient precaution.
The facts is silent on the mental capacity of Alvin and we assume that Alvin is as the same of the child of 8 years old. By applying the case of Banks v United State, the court said that we need to take the child’s age, experience, intelligence and ability in order to determine the level of precaution required from the child. By applying the subjective approach to our current case, Alvin could not be said to have contributed to the accident as he, as an 8 years old child, taking into consideration of his mental capacity, could not have foreseen the consequences in running out of the road. 19.
In the 2017 case of Dean, he was 10 years old and he was hit by the defendant while crossing the road. The court held that Dean was not contributory negligent and the defendant appealed to the court. The court held that Dean could not be said to have experience in crossing the busy street and the judge applied the legal standard of reasonably prudent 10 years old kid in order to determine whether the child was liable for contributory negligence. The court held that the child was not liable.20. In our current case, Alfred is an 8 years old child and by applying the reasonable standard of care of a 8 years old child, Alfred could not be expected to assume the risk and carried out the reasonable precaution and hence he could not be held liable. 21.
In the case of Jackson v Murray, the child was knocked down by the bus when she stepped out from the minibus. The defendant was driving very fast and he had seen the bus but he did not keep a proper look out and hence hit the child. Initially, the court held that the child was liable for the contributory negligence and the victim appealed to the Supreme Court and the court held that if the driver had kept a proper look-out, he would not have hit her and hence, the girl could not be held contributory negligence. 22. According to the principle laid down in the case of Jackson, if Boyle has kept a proper look out, he would not hit Alfred and hence Alfred could not be held liable for contributory negligence. 23. In the Malaysian Case, Wong Chew Ling & Wong Liang Fong v Nur Aleeya Yusri, the victim was aged 7 and she was hit by the defendant while crossing the main road.
The court held that the defendant had breached the duty of care on her part as she had admitted the presence of the children cycling along the speed and the accident could have avoided if she reduced the speed. The child could not be held liable for contributory negligence.24. In the case of Muhammad Syakir Ab Wahab v Tengku Muhammad Hidyatullah Tengku Amran, the victim was 9 years old and he was knocked down by the appellant when he was crossing the road. The court held that the defendant was 100% liable for the negligence and the defendant appealed to the high court. The court affirmed the lower court decision on the reason that if the defendant was only riding with a speed of 40km/h, he will be able to stop the motorcycle and hence the contention of the defendant was not valid and hence the victim could not be held liable for contributory negligence.
25. By applying Wong’s case, the accident might be avoided if Boyle reduced the speed. However, Boyle was contended that he was driving slower than the average speed. Following the ratio of Muhammad’s case, if Boyle was driving at a slow speed, he could stop the car and avoid the accident. Hence, Alvin could not be held liable for contributory negligence and Boyle has breached the duty of care.
Conclusion26. In conclusion, Boyle cannot rely on the defence of contributory negligence as the elements of the defence cannot be established. Furthermore, after considering the age of Alvin, Boyle cannot rely on the defence because Alvin could not be expected to take reasonable precaution for his own safety.