Negligence is the most important part of tort law. The modern version of negligence is establish and practiced in 1932 in the decision of Donoghue V Stevenson1. Negligence is also definite as ‘the breach of a legal duty to take care which result in damage, undesired by the defendant, to the plaintiff’. Thus, negligence has three main propositions that need to be determined:- 1. Duty of Care 2. Breached of the duty of care 3. Causation of Damage.

All of these factors must be satisfied. If even one is not satisfied then the plaintiff will not be able to establish that the defendant was negligent. In this case, Tony and Ann Soon have filed a person injury suit against the Flamingo Hotel. According to Soons, they checked in the suite at the Flamingo Hotel on a Friday Night. Their daughter Susan, who was 8 years old at the time, opened a sliding patio door and asked her parents if she could get in the hot tub that was part of suite. Upon entering the tub, she suffered third-degree burns over 80 percents of her body and her facial features were permanently disfigured because the water in the hot tub was 160 degree F but not 102 degree F. However, the maximum recommended by the tub’s manufacturer, and well above the 105 degree maximum dictated by local health codes. In order to in their claim against Flamingo Hotel, it is a must for them to prove the three main propositions. Firstly, the proposition of duty of care was established in the case of Donoghue V Stevenson1 where A manufacturer of ginger beer had sold to a retailer ginger beer in an opaque bottle. The retailer and then resold it to A who treated her friend (Ms Donoghue) to its content. The ginger beer bottle also contained the decomposed remains of a snail which had found its way into the bottle at the factory. Ms Donoghue alleged that she became seriously illness in consequence and sued the manufacturer for negligence. The manufacturer has their duty of care to make sure every of the ginger beer did not contain noxious water and he would be liable if that duty was broken. This first proposition must be proved and the test of duty of care 1. [1932] AC 562. (The ‘neighbor test’) was formulated by Lord Atkin in the case of Donoghue V Stevenson. It was held that we owe a duty of care to our neighbor while in law our neighbor is anyone whom we can reasonably foresee would be likely to be injured by our acts omission, i.e. ‘persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omission which are called in question’. Flamingo Hotel owned a duty of care and they are as an occupier. As stated by Lord Denning in Wheat V Lacon & Co Ltd2 said that an ‘occupier’ is person who has a sufficient degree of control over premises to put him under a duty of care towards who come lawfully upon the premises. Flamingo Hotel has their duty of care towards every visitor whoever visits to their hotel and has permission in order to access their facilities and services. Flamingo Hotel’s the very first duty of care is to provides or hold itself out as providing short or long term sleeping accommodation, food or drinks reward for all visitors without any special contract. Besides, they also need to make sure safety of every guest in the place itself. It is also necessary for Flamingo Hotel to notice or acknowledge to their visitors regarding about the safety and security issues. Furthermore, Flamingo Hotel has allowed Tony and Soon to check in to their hotel suite as their guests. It is Flamingo Hotel’s liability to own them a duty of care as Tony and Ann Soon also has given the permission to access to the hotel facilities. In the United Kingdom, the law relating to such liability is largely to be found in the Occupier’s Liability Act (for visitors) and Occupiers’ Liability Act 1984 (as regard to non-visitors). There is no such law in Malaysia which is equivalent to the Occupier’s Liability Act. In such situation, common law principles in United Kingdom will apply to Malaysian Law (section 3(2) Civil Law Acts 1956).

Once it is proven that the defendant owned a duty of care to the plaintiff, the plaintiff must prove that the defendant was in breach of the duty of care. In order to determine whether a duty of care has been breached the court will look first at all the standard of care that is expected in the circumstances. A test or principle is applied for deciding whether there has been a breach of duty is also laid down in the dictum of Alderson B. in Blyth V Birmingham Waterworks Co. Ltd.3 In this case, defendants

2. [1996] AC 552; [1996] 1 All ER 582, House of Lords. 3. [1856] 11 Ex.781,784 had installed water mains along the street with hydrants located at various point. However, one of the hydrants across from Plaintiff’s house developed a leak as a result of exceedingly cold temperatures and caused water damage to the house. Blyth sued for negligence. The court held that the installation of water mains by the defendants was done with adequate precaution that would have been exercised by reasonable man under the average circumstances. The frost of 1855 was extremely severe and penetrated to a greater depth than any which ordinarily occurs south of the Polar Regions. So, such as contingency no reasonable man could prepare against. A test or principle of what is ‘reasonable’ man what is not is an objective and impersonal one is left to the judge to decide what in the circumstances of the particular case, the reasonable man would have in contemplation.

In this case, Flamingo Hotel do a reasonable man would do, they wrote a warning on the tube’s side and saying that it was not to be used by persons under age 14. Hence, Flamingo Hotel did not breach their duty of care in this aspect. An investigation is also determined that the hot tub safety switch is designed to prevent accidental overheating and had been bypassed when some wiring repair was performed by the hotel’s maintenance staff. They did not make sure properly the wiring repair is done completely and they also did not check and make sure the heater of the tub is in safety temperature. Hence, Flamingo Hotel has breached their duty of care and they did not do what a reasonable man would do.

The third and the last proposition of the tort of negligence is that the plaintiff’s damage must have been caused by the defendant’s breach of duty and must not be too remote a consequence of it. This means that one has to ask whether the breach of the duty was the primary cause of the damage. ‘A but for test’ should establish, under which the defendant will be liable only if the claimant’s damage would not have occurred but for his negligence. Hence, if is not for the defendant’s negligence, the plaintiff will not have suffered damage. Causation damage also can be further explained by the case of Barnett V Chelsea & Kensington Hospital Management Committee4. The plaintiff had taken her husband who had been vomiting persistently

4. [1969] 1 Q.B. 428

after having consumed tea poisoned with arsenic to the hospital and the doctor on being told about the plaintiff’s husband relayed through his nurse that the plaintiff should take her husband to his own doctor the following morning. The plaintiff’s husband died and she sued the hospital for negligence. The court held that the hospital was negligent when it turned the patient away. However, it was not their negligence which had caused the husband death because it was found that at the point of death the level of poisoning in the husband’s body was already very high and he would have died anyway, even if the doctor had treated him. There is also a physical link between the Flamingo Hotel and Susan and the Susan’s damage. On the admission of liability, Tony and Ann Soon can claimed the remoteness of damage from Flamingo Hotel. Remoteness of damage is concerned with the question whether damages may be recovered for the particular items of the plaintiff’s loss. The reasonable foresee ability must be applied. This test has been practiced for years through the Wagon Mound Cases5. D carelessly discharged oil from their ship, the Wagon Mound into Sydney Harbour. The wind and tide carried the oil beneath C’s wharf where welding operations were being carried on by C’s employees. After being advised that they could safely weld, C’s employees continued their works. Some 55 to 60 hours after the original discharge, molten metal set some waste floating in the oil on fire, the flame quickly developed into a large fire which severely damaged the wharf and the oil also inhibited the use of C’s slipways. The court held that, the damage to the wharf by the pollution of C’s slipways was foreseeable. Damage by fire was not reasonably foreseeable. So, D was not liable for the fire but liable for the fouling. Hence, in this case Tony and Ann Soon can only claim for reasonable amount which only cover for medical bill.

Section 12 of the Civil Law Act 1956 (Revised 1972) provides to the effect that in a case of contributory negligence, the damages recoverable by the plaintiff are to be reduced ‘to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage’ To prove contributory negligence, one has to prove that the plaintiff has failed to take a reasonable care for his own safety and that the plaintiff’s lack of care for his own safety was a

5. [1961] A.C. 388

contributory factor to the accident which caused his damage. This can be further explained through the case Badger V Ministry of Defence6. D employed the deceased as a boiler maker. During the course of his employment, he had been exposed to asbestos, which caused him to develop asbestosis and he developed lung cancer which eventually killed him. D smoked and so contributed to the negligence that caused his death. The court held, D did not take reasonable care for his own safety but continue to smoke amounted to contributory negligence which was causative of lung cancer. A reasonably prudent man warned that there was a substantial risk that smoking would seriously damage his health, would stop smoking. C won damages reduce by 20%.In this case, Tony and Ann Soon’s liability also become a contributory factor to the cases. They allowed their child, Susan jumped into the hot bath tub without supervised her. Thus, Flamingo Hotel bear a majority of the responsibility for the accident. Thus, Tony and Ann Soon’s claimed shall not be defeated by reason of the fault of Susan suffering the burn but the damage recoverable in respect of there of shall be reduced to such extent. In a conclusion, Tony and Ann Soon can success in their claim towards the Flamingo Hotel. However, it has been proved that Tony and Ann Soon have partially fault to give the permission to their child, Susan to jump into the bath tub. Although Flamingo Hotel has placed a notice on the tube side to acknowledge their visitor but they should need to take the occupier’s liability because it relates to such liability as regards visitors and trespassers of property. It refers to the fact that an occupier of a property will owe a duty of care to the person who come on the premises and this duty is basically to ensure that such person are not harmed by the state of the premises. Flamingo Hotel did not take such care as in all the circumstances of the care is reasonable to see their visitor, Tony and Ann Soon will be reasonably safe while staying the hotel. Hence, the claimed towards Flamingo Hotel will not be defeated but the claimed will also be reduced regarding to the contributory negligence.

6. [2005]