Law of tort is a civil wrong other than a claim for breach of contract; and for which a right civil action for damages may arise.
Negligence is defined by Winfield and Jolowicz as

“Tortious liability arises from the breach of duty primarily fixed by the law; this duty is towards persons generally and its breach is redressible by an action for unliquidated damages”. (Roger, W.V.H., 2006)

In Malaysia, the law of tort is largely derived from common law in England. In the law of tort, negligence is the most widely used tort in the legal system.
In order for a claimant who is seeking for remedy to successfully bring a claim in a negligence case, they must first prove these 3 factors:

* The defendant held a legal duty against the claimant. Therefore, the defendant owed the claimant a duty of care. * The defendant had breach of that duty. * The claimant are suffering damages resulted in that breach of duty.

These three factors will sometimes be shortened as duty, breach and damage.

Duty of care

This important factor of negligence came from a famous case of Donoghue v Stevenson (1932). In this case, the claimant, Ms Donoghue went to the Minchella’s Wellmeadow Café in Paisley with her friend. Her friend ordered a bottle of ginger beer that was contained in an opaque bottle. When she poured the remained ginger beer, a decomposed snail came out with her ice cream. Ms Donoghue became ill as she has consumed the contaminated beer. She could not sue the café under the rule of contract as she did not buy the beer herself. Therefore, she did not own a contract with the café. As a result, she sued the manufacturer of the ginger beer using the tort of negligence. Ms Donoghue won the case in the House of Lords.

In this case Lord Atkins defined negligence as;

"You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbor” (John Hodgson, John Lewthwaite, 2012)

Lord Atkin explained that your neighbour in terms of law was whoever would be so directly affected by the act or omission that you ought reasonably to have them in contemplation.

Later the concept of duty of care extended to numerous other situations such as;

* One road user to another * A solicitor to their client * A doctor to their patient

In the early 90’s a modern test for a duty of care came from the case of Caparo Industries v Dickman (1990). In this case, the defendant, Dickman is an auditor of company accounts. The claimant, Caparo bought shares and later discovered that the accounts did not show that the company had been making a loss. Caparo claimed that in negligence, Dickman owed the claimant a duty of care. It comes to three stages of the test of negligence established in this case;

* “Reasonable foreseeability – that, on account of the defendant’s behavior, the injury suffered by the claimant was a reasonably foreseeable consequence of that behavior. * Sufficient degree of proximity between the parties – that the relationship between the defendant and the claimant was sufficiently close in terms of time, location and context. * Whether it is fair, just and reasonable to impose such a duty – that all the factors of the case need to be considered in view of the scope of the negligence duty and the need for justice to be achieved.” (Andrew Mitchel, Minel Dadhania, 2003)

These 3 questions were later known as the Caparo test. This test states that, in order to establish a duty of care these 3 questions had to be proved. At the end, the defendant lost the case as the claimant did not have a sufficient proximity relationship with the defendant. Therefore, the defendant could not be reasonably be expected to have the claimant in mind was.

Another case that revolved around the duty of care is the Bourhill v Young (1943) case. In this case, a motorcyclist crashed on Mrs. Bourhill’s car and passed away. Mrs. Bourhill who was pregnant at that moment heard the crash but she did not see that happened. She saw some blood on the road and she suffered shock and subsequently a miscarriage. She sued the motorcyclist, claiming that he owed her a duty of care. However, the court held that the motorcyclist did not owe a duty of care to her as she was not his neighbour. Furthermore, the motorcyclist could not reasonably foresee that the accident would result her to suffer such injuries. In the other hand, the motorcyclist do owed a duty of care to the other road users as their relationship was sufficiently proximate.

In recent case of Bhamra v Dubb (2010), a caterer, Mr. Dubb supplied ras malai that contained eggs at a Sikh wedding occasion. Egg is a food prohibited by the Sikh religion and as a result, the guests suffered allergic and later died after consumed those dishes. The trial judge found that Mr. Dubb owed the guests the duty of care and was liable in negligence. Later, Mr Dubb appealed to the High Court. However, the court found out that Mr. Dubb knew the ras malai contained eggs. Therefore, it is obvious enough that Mr. Dubb failed to take responsible care. However the court did not use res ipsa loquitur on this case as the ras malai provided by the defendant did contained eggs under his reasonable knowledge.
“The Court of Appeal held that in this context, it was reasonably foreseeable that the guests would assume that no egg was present in food, and so the damage which resulted was within the scope of the defendant’s duty of care.” (Vera Bermingham, Carol Brennan, 2012)
Breach of duty

Under the tort law, there will be no liability in negligence unless the defendant owed the claimant a duty of care and there has been a breach of that duty. The defendant is considered in breach of that duty towards the claimant if his or her conduct does not meet the expected standard. Therefore, the jury will find out whether the defendant’s conduct fell upon a ‘reasonable man’ as determined by the relationship. When determining whether the defendant did fell below that of a reasonable man or not, the jury will consider a few risk factors as follows; First, the magnitude of risk, second, the importance of the object to be attained and lastly, the practicability of precautions.

The test in deciding whether there has been a breach of duty is objective. In the case of Blyth v Birmingham Watermarks Co (1856), the defendant, Birmingham Waterworks Co. installed water mains and fire plugs on the street that the claimant, Blyth lived. After 25 years, a cold frost caused one of the plugs opposite the claimant’s house to freeze and subsequently leaked. A massive quantity of water flowed to claimant’s house. The claimant sued defendant for damages due to negligence and claimant won the case. However, the defendant appealed saying that the severity of the frost in 1985 was unforeseeable. At the end, the previous judgment was reversed as a reasonable man cannot be held liable for a event that is unforeseeable.
From this case, Baron Alderson defined negligence as;

“Negligence is the omission to do something, which a reasonable man, guided upon those considerations, which ordinarily regulate the conduct of human affairs, would do, or doing something, which a prudent and reasonable man would not do.” (O'Malley, 2009)

In the burden of proof, whether or not the defendant has conducted his duty below the standard of “a reasonable man”, it is the duty of the claimant to prove this fact. However, in certain occurrence it is impossible for a certain event to occur without the defendant’s negligence. This occurrence is called “the thing speak for itself” (res ipsa loquitur) and it is the defendant’s duty to show that the fact causing the damage was not attributable to his negligence. The claimant can raise res ipsa loquitur to shift the evidential burden to the defendant and must meet the following criteria: First, his incident occurred in and unexplainable fashion, second, the incident would not have occurred in the ordinary course of events if not defendant’s negligence, and lastly, the defendant(s) had control of the object that caused the injury.

Remoteness of damage
“The term ‘remoteness of damage’ refers to the legal test to decide which types of loss caused by the breach of contract may be compensated by an award of damages. In the absence of an express clause in the contract as to how damages are to be assessed, the ‘remoteness of damage test’ will be applied.” (Adam Rose, et.al., 2001)

In this factor, the defendant’s breach of duty must have caused the claimant’s damage and must not be too remote. Remoteness is designed to further limit on a cause of action to ensure that the liability to pay damages is placed appropriately on the defendant.

Contributory negligence

In common law, if the claimant’s damage was partly caused by the negligence of the defendant and partly caused by his own negligence, the claimant will not be able to recover anything. However, if the act of the third party was not truly independent, the defendant will be liable.
Contributory negligence can be seen in the case of Vellino v Chief Constable of Greater Manchester (2002). In this case, the claimant who was a criminal jumped from the second floor window during an arrestment effort by the police officers. The claimant suffered a fractured skull, brain damage and tetraplegia which caused him to be totally dependent on others for support. He sued the police saying that they owed him duty of care to prevent him from jumping from second floor. However, the judge decided that the incident happened during an arrest effort. Therefore, the claimant should collaborate with the police officer and stop running. Therefore, the claimant lost the case.

Professional negligence

Professional negligence is a subset of the general rules on negligence to cover the situation in which the defendant has represented him or herself as having more than average skills and abilities. In professional negligence, the legal liability of negligence incurred when a professional personnel breach the duty of care owed to some persons. There are five elements in order for to establish a professional negligence. First, the negligence shall be committed in the ordinary course of business or professional affairs. Second, one person must seek information or advice from other professional personnel and that person may not necessary be the professional's client. Third, the person giving the information or advice is not under contractual or fiduciary obligation to give the information or advice. Fourth, a reasonable man must know that the information or advice asked is given in a circumstances that his skill or judgment was being relied on. Lastly, a reasonable man chooses to give information or advice when being asked. There must be no disclaimer or a clear qualification which show that the giver is not accepting responsibility.

In a recent medical negligence case of Leung v. Verdugo Hills Hospital (2012), the claimant, Aidan Ming- Ho Leung suffered irreversible brain damage six days after his birth. It started when claimant’s mother noticed that his eyes look yellow and his lips were chapped. Claimant's mother called the pediatrician’s office to ask about her son condition. She was told not to worry and the matter will be discussed with the doctor. The mother asked whether to see the doctor in that day or wait until the appointment date and she was advised to wait for the schedule. Few days later, the claimant was so exhausted and would not wake up for his mother to breastfeed him. His mother called the doctor. She was asked to take Aidan to the emergency room immediately. However it was too late, Aidan has suffered a severe brain damage. Aidan's family members then sued the hospital for giving inappropriate advice. At trial, the jury found that both the defendant and the defendant's hospital were negligence. The jury apportioned negligence as follows: 55% as to the pediatrician, 40% as to the hospital, and 2.5% as to each of Aidan’s parents. Therefore, the claimant won the case. In my opinion, I disagreed with the jury decision of apportioning 2.5% of negligence rate to each of Aidan's parents. The jury made this kind of decision might be due to the failure of Aidan's parents to send him earlier to the hospital despite of his serious situation. However is it not fair to the claimant's parents as they did not have a deeper knowledge on medical field. Besides Aidan's mother decided to send Aidan's on the appointment day after advised by medical personnel. Hence, the 2.5% of negligence to each Aidan’s parents should separate to the pediatrician and the hospital.

Another medical malpractice case is AJ v Cwm Taf Local Health Board (2008) . The claimant, AJ underwent a surgery to remove the gallstones after diagnosed with stones in his gallbladder and bile duct. He felt recurring pain and illness after the surgery. He was readmitted to hospital and tests revealed that his gallbladder has become inflamed and need to be removed. A surgery has been conducted and shortly after AJ began to suffer consistent abdominal pain. Another test were performed and found out that fluids that were believed from the bile duct had leaked into the abdominal part. AJ suffers a major injury in his bile duct following the removal of his gallbladder. AJ went through reconstructive surgery but due to the complications of initial removal surgery, AJ continues to suffer health issue and may require further surgery. AJ considered this as gallbladder negligence and sued Cwm Taf Local Health Board. Later a secondary medical expert confirmed that the defendant gave an improper medical advice which is a breach of duty. The defendant then admitted that the surgery had caused inflammation and prolonged illness to the patient. A settlement of £190,000 awarded to the claimant as a result of the case.

Another professional malpractice is accounting negligence. In Rubenstein v. HSBC PLC (2012), the claimant is Mr. Rubenstein and the defendant is HSBC bank. In this case, the bank has caused the claimant to lose money in a recommended financial plan. This is due to the claimant has not been told that he was actually investing in bond instead of cash deposit. Claimant relied to the financial advice provided by the defendant that there will be no capital loss.

“The Court of Appeal considered this an “unpromising context” in which to find that a loss suffered as a result of following a recommendation to enter into an unsuitable investment, when that loss came about because of the very factor which made the investment unsuitable (namely its inherent susceptibility to risk from market movements), was too remote to be recovered from the defaulting advising bank.” (Damien Byrne-Hill, et.al., 2012)

Therefore, in the final judgment, the judge held that the bank was liable for the loss of the claimant. Defendant owed a duty of care to Mr. Rubenstein since he was seeking for a financial consultation. The breach of duty established where it was a duty for defendant to clarify the financial product that being invested by the consumer. Thus, claimant suffered from the consequences damages where he had capital loss. In my opinion, I agreed with the judgment. The negligence of this case occurs due to the dishonesty and irresponsibility of the bank. As a financial expertise, the bank should be able to provide reliable financial advice based on a calculated risk. Furthermore, the bank should inform clearly to their investor on what type of investments are being conducted, the risks and the effect of the economic turmoil.

In Ross v Caunters (1979), the defendant is a solicitor who is preparing a will for his client. The solicitor sent the will to his client for signature. However, in this case, the solicitor failed to inform his client that his signature should not be witnessed by his spouse which is a beneficiary. Eventually, the will was exposed to the client's wife. As the result, the contract was in breach of probate law and the intended beneficiary was unable to receive her inheritance. The beneficiary later sued the solicitor. The defendant admitted negligence but denied that they were liable to the beneficiary who is a third party and not his client. Therefore, by applying the Donoghue v Stevenson (1932) case, the solicitor should be able to foresee the injuries that the third party may suffer as a result of his negligence. Eventhough the beneficiary is not a client of the solicitor but his act of negligence has directly causes the claimant unable to receive her inheritance. Furthermore, by applying Caparo Industries v Dickman (1990), there is a direct and sufficient proximity relationship between the claimant and the defendant. It is fair, just and reasonable for the law to impose the duty of the given scope upon the one party for the benefit of the other. The court decided that such an extension on the scope of duty of care from the client to the beneficiary was reasonable. There was a duty of care and it is the solicitor's duty to ensure that the will would have taken its effect as expected. Solicitor held liable to pay damages to the disappointed beneficiary.

Table of Cases 1. AJ v. Cwm Taf Local Health Board (2008) 2. Bhamra v. Dubb (2010) 3. Blyth v. Birmingham Watermarks Co (1856) 4. Bourhill v. Young (1943) 5. Caparo Industries v. Dickman (1990) 6. Donoghue v. Stevenson (1932) 7. Leung v. Verdugo Hills Hospital (2012) 8. Ross v. Caunters (1979) 9. Rubenstein v. HSBC PLC (2012) 10. Vellino v. Chief Constable of Greater Manchester (2002)

Table of Statute 1. Financial Services and Markets Act 2000 2. Code of Civil Procedure Section 877, 1957 3. Company Act 1985 4. Contract (Right of Third Parties) Act 1999 5. Joint Tort Feasors Act 1935 6. Section 15 of the Will Act 1958 7. Social Security Administration Act 1992 8. The Law Reform (Contributory Negligence) Act 1945 9. Act of Parliament

References

Adam Rose, David Leibowitz, Adrian Magnus. (2001). Getting Out of a Contract: A Practical Guide for Business. Gower Pub Co, pp.111.

Andrew Mitchel, Minel Dadhania. (2003). AS Level Law (first edition ed.). Routledge-Cavendish, pp.252.

Damien Byrne-Hill, Harry Edwards and Ralph Sellar. (22 Oct 2012). Court of Appeal overturns finding that customer’s investment loss was too remote. (online) available at: http://www.lexology.com/library/detail.aspx?g=1943f3eb-13a7-4efa-9b13-637d353f9461 (Accessed: 20 Nov 2012)

John Hodgson, John Lewthwaite. (2012). Tord Law (Second Edition ed.). Oxford University Press, pp.3.

O'Malley, P. (2009). The Currency of Justice: Fines and Damages in Consumer Societies (Critical Approaches to Law. Routledge-Cavendish, pp.123.

Roger, W.V.H. (2006). Winfield and Jolowicz on Tort. London: Sweet & Maxwell.

Honourable Justice Peter Underworld . (1999). Negligence & Foreseeability: Doctrine of Law or Public Policy. (online) available at: http://www.supremecourt.tas.gov.au/publications/speeches/underwood/negligence
(accessed 20 Nov 2012)

Vera Bermingham, Carol Brennan. (2012). Tort Law Directions (Directions Series) (3rd edition ). U.S.A: Oxford University Express.

Bibliography

Adam Rose, David Leibowitz, Adrian Magnus. (2001). Getting Out of a Contract: A Practical Guide for Business. Gower Pub Co.

Andrew Mitchel, Minel Dadhania. (2003). AS Level Law (1st edition ). Routledge-Cavendish.

Damien Byrne-Hill, Harry Edwards and Ralph Sellar. (22 Oct 2012). Court of Appeal overturns finding that customer’s investment loss was too remote. (online) available at: http://www.lexology.com/library/detail.aspx?g=1943f3eb-13a7-4efa-9b13-637d353f9461
(Accessed: 20 Nov 2012)

Honourable Justice Peter Underworld . (1999). Negligence & Foreseeability: Doctrine of Law or Public Policy. (online) available at: http://www.supremecourt.tas.gov.au/publications/speeches/underwood/negligence
(accessed 20 Nov 2012)

Jenny Steele (2007) Tort Law: Text, Cases, & Materials USA: Oxford University Press

John Hodgson, John Lewthwaite. (2012). Tord Law (2nd edition). Oxford University Press.

O'Malley, P. (2009). The Currency of Justice: Fines and Damages in Consumer Societies (Critical Approaches to Law. Routledge-Cavendish.

Professor Arthur Best, David W. Barnes (2007). Basic Tort Law: Cases, Statutes, and Problems (2nd edition). Aspen Publishers

Roger, W.V.H. (2006). Winfield and Jolowicz on Tort. London: Sweet & Maxwell.

Vera Bermingham, Carol Brennan. (2012). Tort Law Directions (Directions Series) (3rd edition ). U.S.A: Oxford University Express.

V.H. Harpwood. (2008) Modern Tort Law (7th edition) Routledge-Cavendish

William P. Statsky (2011) Essentials on Torts (3rd edition) Delmar Cengage Learning

William P. Statsky (2010) Torts: Personal Injury Litigation (5th edition) Delmar Cengage Learning

Appendix

AJ v. Cwm Taf Local Health Board (2008)

The claimant (AJ) underwent surgery in 2001 after being diagnosed with stones in his gallbladder and bile duct. AJ underwent a procedure known as endoscopic sphincterotomy to remove the gallstones. After the procedure he began to suffer recurring pain and illness and over four years later in November 2005 was readmitted to hospital. Tests revealed that the gallbladder had become inflamed and required removal. AJ was placed on a waiting list for gallbladder removal surgery and given antibiotics as a course of treatment.
In January 2006, surgery was performed to remove the inflamed gallbladder and shortly after AJ began to suffer consistent abdominal pain. Tests were performed, which highlighted abnormalities in liver function, prompting further investigation. An ultra sound scan showed that fluid, believed to have come from the bile duct had leaked into the abdominal area.
AJ began to deteriorate further and was transferred to the Queen Elizabeth Hospital Birmingham where he underwent additional surgery. It became apparent that he had sustained a major injury to the bile duct following removal of his gallbladder, which required reconstructive surgery. Due to complications from the initial removal procedure, AJ will continue to endure health issues. He is susceptible to further complications and may require additional surgery.
AJ issued a complaint against the Cwm Taf Local Health Board for what he considered to be gallbladder negligence. In response they cited that an inflamed gallbladder had made the surgery difficult and that the injury sustained was “forgivable”. AJ continued to pursue his complaint and instructed solicitors, who on receipt of an expert medical report, advised that a claim could not be made!
It was suspected that improper legal advice had been given which was confirmed by a secondary medical expert. AJ then instructed Andrew Davies of Hugh James Solicitors Cardiff to act on his behalf. Following the intervention by Andrew, on August 7th 2008 Cwm Taf Local Health Board admitted that surgery had caused harm and prolonged illness to the patient, which led to a settlement of £190,000 being awarded.

Bhamra v. Dubb (2010)

On 24th August 2003 Mr. Kuldip Singh Bhamra attended as a guest a wedding at the Ramgarhia Sikh
Temple, Forest Gate. The appellant, Mr. Dubb, who carries on business under the name 'Lucky Caterers', provided the wedding feast pursuant to a contract with the bride's father. Among the dishes served was ras malai, some of which was eaten by Mr. Bhamra. Mr. Bhamra was allergic to eggs and shortly after eating the ras malai he became ill as a result of an anaphylaxic reaction. He was taken to hospital, but unfortunately died a few days later on 27th August. As a result his widow and personal representative, the respondent, brought proceedings against Mr. Dubb seeking damages for personal injury caused by his breach of contract and negligence in serving food that contained egg. The claim was tried by His Honour Judge Charles Harris Q.C.. He dismissed Mrs. Bhamra's claim under the Contracts (Rights of Third Parties) Act 1999 and, since there has been no attempt to challenge his decision on that point, it is unnecessary to say any more about it. However, the judge found in favor of Mrs. Bhamra on her claim in negligence and entered judgment for her in the agreed sum of £415,000. Mr. Dubb now appeals against the judge's decision.

Blyth v. Birmingham Watermarks Co (1856)

The defendants, Birmingham Waterworks Company, were the water works for Birmingham and had been incorporated by statute for the purpose of supplying Birmingham with water. The statute provided that: the company should, upon the laying down of any main-pipe or other pipe in any street, fix, at the time of laying down such pipe, a proper and sufficient fire-plug in each such street, and should deliver the key or keys of such fire-plug to the persons having the care of the engine-house in or near to the said street, and cause another key to be hung up in the watch-house in or near to the said street. By sect. 87, pipes were to be eighteen inches beneath the surface of the soil. By the 89th section, the mains were at all times to be kept charged with water. The defendants derived no profit from the maintenance of the plugs distinct from the general profits of the whole business, but such maintenance was one of the conditions under which they were permitted to exercise the privileges given by the Act. The main-pipe opposite the house of the plaintiff was more than eighteen inches below the surface. The fire-plug was constructed according to the best known system, and the materials of it were at the time of the accident sound and in good order.
The defendant had installed a fireplug into the hydrant near Mr. Blyth's house. That winter, during a severe frost, the plug failed causing a flood and damage to Mr. Blyth's house. Blyth sued the Waterworks for negligence.

Bourhill v. Young (1943)

On the 11th of October, 1938, Mr. Young had been negligently riding a motorcycle along a road, and was involved in a collision with a car, fatally injuring him. At the time of the crash, Mrs. Bourhill was about to leave a tram which she had been riding, around 50 ft from the scene of the accident. Mrs. Bourhill heard the crash, commenting "I just got in a pack of nerves, and I did not know whether I was going to get it or not."[1] Following the removal of Mr. Young's body from the road, she approached the scene of the accident, seeing the blood remaining from the crash. Mrs. Bourhill, at the time eight months pregnant, later gave birth to a stillborn child, and claimed she had suffered nervous shock, stress and sustained loss due to Mr. Young

Caparo Industries v. Dickman (1990)

A company called Fidelity plc, manufacturers of electrical equipments, was the target of a takeover by Caparo Industries plc. Fidelity was not doing well. In March 1984 Fidelity had issued a profit warning, which had halved its share price. In May 1984 Fidelity's directors made a preliminary announcement in its annual profits for the year up to March. This confirmed the position was bad. The share price fell again. At this point Caparo had begun buying up shares in large numbers. In June 1984 the annual accounts, which were done with the help of the accountant Dickman, were issued to the shareholders, which now included Caparo. Caparo reached a shareholding of 29.9% of the company, at which point it made a general offer for the remaining shares, as the City Code's rules on takeovers required. But once it had control, Caparo found that Fidelity's accounts were in an even worse state than had been revealed by the directors or the auditors. It sued Dickman for negligence in preparing the accounts and sought to recover its losses. This was the difference in value between the company as it had and what it would have had if the accounts had been accurate.
On a preliminary issue as to whether a duty of care existed in the circumstances as alleged by the plaintiff, the plaintiff was unsuccessful at first instance but was successful in the Court of Appeal in establishing a duty of care might exist in the circumstances. Sir Thomas Bingham MR held that as a small shareholder, Caparo was entitled to rely on the accounts. Had Caparo been a simple outside investor, with no stake in the company, it would have had no claim. But because the auditors' work is primarily intended to be for the benefit of the shareholders, and Caparo did in fact have a small stake when it saw the company accounts, its claim was good. This was overturned by the House of Lords, which unanimously held there was no duty of care.

Donoghue v. Stevenson (1932)

May McAllister was born on 4 July 1898 in the Glasgow parish of Cambuslang; she was the daughter of James and Mary Jane McAllister. McAllister married Henry Donoghue on 19 February 1916 and had four children with him; however, all but one, Henry, were born prematurely and lived longer no longer than two weeks. The couple separated in 1928 and McAllister, now Donoghue, moved into her brother's flat at 49 Kent Street, Glasgow.
On the evening of Sunday 26 August 1928, during the Glasgow Trades Holiday, Donoghue took a train to Paisley, Renfrewshire, located seven miles east of Glasgow; the journey would have taken around thirty minutes. In Paisley, she went to the Wellmeadow Café. At approximately 20:50 a friend, who may have travelled with Donoghue, was with her and ordered a pear and ice for herself and a Scotsman ice cream float, a mix of ice cream and ginger beer, for Donoghue. The owner of the café, Francis Minghella, brought over a tumbler of ice cream and poured ginger beer on it from a brown and opaque bottle labelled "D. Stevenson, Glen Lane, Paisley".Donoghue drank some of the ice cream float. However, when Donoghue's friend poured the remaining ginger beer into the tumbler, a decomposed snail also floated out of the bottle. Donoghue claimed that she felt ill from this sight, complaining of abdominal pain. According to her later statements of facts (condescendences), she was required to consult adoctor on 29 August and was admitted to Glasgow Royal Infirmary for "emergency treatment" on 16 September. She was subsequently diagnosed with severe gastroenteritis and shock.
The ginger beer had been manufactured by David Stevenson, who ran a company named after his identically-named father and produced both ginger beer and lemonade at 11 and 12 Glen Lane, Glasgow, less than a mile away from the Wellmeadow Café. The contact details for the ginger beer manufacturer were on the bottle label and recorded by Donoghue's friend.
Donoghue subsequently contacted and instructed Walter Leechman, a local solicitor and city councillor whose firm had acted (albeit unsuccessfully) for the claimants in a factually similar case,Mullen v AG Barr & Co Ltd, less than three weeks earlier.
Despite the ruling in Mullen, Leechman issued a writ on Donoghue's behalf against Stevenson on 9 April 1929. The writ claimed £500 in damages, the same amount a claimant in Mullenhad recovered at first instance, and £50 in costs. The total amount Donoghue attempted to recover would be equivalent to at least £27,000 in 2012.

Leung v. Verdugo Hills Hospital (2012)

On Monday, March 24, 2003, Aidan Ming-Ho Leung, of East Asian descent, was born at Verdugo Hills Hospital in Glendale, Los Angeles County. He was born at less than 38 weeks' gestation (37 weeks and two days). On the day of his birth, his mother, Nancy Leung, tried to breastfeed him five or six times, but she could not tell whether he was taking in milk. At least three times she expressed her concern to two of the attending nurses; two entries in Aidan's hospital medical chart indicated problems with breastfeeding.
The next day, Aidan's pediatrician, Steven Wayne Nishibayashi, examined Aidan at the hospital. Dr. Nishibayashi told the parents that Aidan was a healthy baby that two bruises on the side of Aidan's head were nothing to worry about, that it was safe to take Aidan home, and that a followup appointment should be made for the next week. Later that morning, about 24 hours after his birth, Aidan was discharged from the hospital. The hospital gave Aidan's parents a manual entitled "Caring For Yourself and Your New Baby," and the nurses told the parents to consult the manual if there were problems. When the parents arrived home, Aidan's mother made an appointment for a followup visit with Dr. Nishibayashi for March 31, seven days after Aidan's birth.
On Thursday, March 27, 2003, Aidan's parents noticed that his eyes looked yellow and that his lips were chapped. They checked the care manual that the hospital had given them. The manual said that jaundice is common in newborns, that in most cases jaundice can be ignored, and that although jaundice can be dangerous, it rarely is so, depending on various factors such as age, premature birth, and "any other medical conditions." The manual also stated that any bruises on the head were not dangerous and would heal in a few days, and that any questions about the baby's jaundice should be directed to the baby's treating physician.
That same day, Aidan's mother telephoned the office of pediatrician Nishibayashi and told the responding nurse about Aidan's yellowish tint. The nurse told her not to worry but said she would check with the doctor. When the nurse returned to the telephone, she asked whether Aidan was "feeding, peeing, and pooping." Aidan's mother responded, "Yes." After saying that Aidan seemed fine, the nurse suggested putting Aidan in the sunlight. When Aidan's mother mentioned his chapped lips, the nurse told her to apply lotion. When the mother asked whether she should bring Aidan in that day or wait for the scheduled appointment with Dr. Nishibayashi four days later, the nurse said to wait until that appointment.
The next day (Friday) and the day thereafter (Saturday), Aidan's mother continued trying to breastfeed him and, as suggested by Dr. Nishibayashi's office, put him in the sunlight, but the jaundice remained. By Saturday evening, Aidan appeared lethargic. Early Sunday, Aidan was very sleepy and would not wake up to be fed. His mother telephoned Dr. Nishibayashi's office and left a message with his answering service. An on-call physician returned the call and, after listening to a description of Aidan's symptoms, said to immediately take Aidan to the emergency room at Huntington Memorial Hospital in Pasadena. There Aidan was given a blood-exchange transfusion to reduce the level of bilirubin, but it was too late. Aidan had already developed kernicterus, resulting in severe brain damage.

Ross v. Caunters (1979)

In this first instance decision, solicitors were held to be liable to a group of beneficiaries under a will for having failed to warn the testator that the will should not be witnessed by the husband of one of the intended beneficiaries. When the disappointed beneficiaries under the ineffective will sued the solicitors, they admitted negligence but argued that the only duty they owed was to the testator. However, Megarry VC held that a duty of care was owed to the beneficiaries as well, since a sufficient relationship of neighborhood or proximity had existed between the parties. In other words, there had been sufficient proximity between the solicitors and the beneficiaries, who in effect had relied on their legal expertise to create a valid will.
The House of lords re-affirmed this decision in White v Jones (1995), where it held that by accepting instructions to draw up a will a solicitor thereby entered a 'special relationship with those intended to benefit under it' and this, in consequence, imposed a duty on the solicitor to 'act with due expedition and care' on behalf of the beneficiaries.

Rubenstein v. HSBC PLC (2012) This is a case about the claim of a consumer (someone who is described in the Financial Services and Markets Act 2000 as a "private person"), against a bank, for negligent advice in the recommendation of a financial investment. In August/September 2005 the investor wanted to find a safe place for the proceeds of the sale of his home pending the purchase of another property. He wanted to find an investment, if that were possible, that provided a higher interest rate than a standard bank deposit, but he emphasized that he could not afford to risk his capital at all. He said that the prospective time scale was unlikely to be longer than a year, but in the event he had been unable to find another home three years later, so that, when the market turmoil which surrounded the collapse of Lehman Brothers in September 2008 occurred, he was still invested. His claim has been brought for breach of statutory duty, and in contract and tort. The judge found that the bank was negligent in the advice which it gave, and in breach of various statutory duties, and that the investor relied on the bank's advice. However, the judge also found that the loss suffered by the investor was not caused by the bank's negligence or breach of duties: it was rather caused by unprecedented market turmoil, and was unforeseeable and too remote. The investor was therefore awarded merely nominal damages in contract.
The judge gave permission to both parties to appeal. He gave permission to the investor to appeal against his conclusions as to causation, foresee ability and remoteness. He gave the bank permission to appeal his conclusions as to the existence of any contract, as to negligence, and as to breach of the statutory duty as to the suitability of the investment. It is not clear to me that the bank needed permission to appeal. I treat its notice of cross-appeal as a respondent's notice.
The bank disputed every possible issue at trial: for instance, in addition to the issues which arise on appeal, issues no longer relevant as to whether any advice had been given at all and as to whether the investor had relied on any advice. Those last two issues are no longer live. It is now accepted that the bank provided advice (albeit not it is said pursuant to any contract) and not merely information; and it is accepted that the investor relied on that advice. Nor is it said any longer, as it had been said at trial, that Mr Rubenstein had selected the investment for himself. However it is submitted that the investor got what he wanted and cannot complain, that at any rate in September 2005, at the time of the investment, the investment could have been regarded as safe, and that the judge was in any event right to say that no damages flow from any breach.
The investor resists the cross-appeal and submits that the judge was wrong to hold that no loss flowed from the established breaches. He had been told that the recommended investment carried no risk of capital loss because it was the same as a cash deposit: in the event, he had suffered a loss of capital, for the very reason that it was not the same as a cash deposit, and carried no obligation to return the capital invested but only an aliquot share of a fund invested in products which, apart from cash, varied in value with the market. He was therefore not only misled but suffered loss of a type which should have been foreseen, and was in fact foreseen but not explained. The fact that the size of the loss may have been greater than could have been expected was beside the point.

Vellino v. Chief Constable of Greater Manchester (2002) The claimant, Carlo Vellino, was something of a folk hero in his local community. He was frequently in trouble with the police and had a string of convictions for such offences as burglary and theft, drugs and motoring offences, occasional violence, and also for failing on numerous occasions to appear at court or surrender to bail. Given that record, he was inevitably very well known to the police. He lived at 159, Grange Avenue, which was a flat on the second floor, together with his girlfriend, Tracy Peel, and two children, the younger of who was his own child. The claimant was frequently arrested at his flat but often, when the police came to arrest him, he would seek to evade arrest by jumping from the windows of his flat to the ground floor below. This was obviously a foolhardy and potentially highly dangerous activity. Generally it seems that he would descend by lowering himself from a balcony which adjoined the kitchen in the flat and, once by hanging from the balcony. He would drop to the ground below. Exceptionally it seems that he had even been known to jump from the second floor window without having the benefit of first being able to reduce the risk by hanging from the balcony. It is plain from the evidence that I have heard that his propensity for escaping by this method was very well known both to neighbors’ and friends within the community, and to the local police.
On the evening of 17 September 1994 at about ten-thirty p.m. the claimant was arrested pursuant to a warrant issued by the Magistrates at Stockport on 12 September 1994 for failure to appear in court on that day. Almost immediately thereafter the claimant jumped from a second floor bedroom window of the flat, which was adjacent to the kitchen, and suffered an extremely tragic accident. Amongst other injuries, the claimant fractured his skull, suffered severe brain damage and tetraplegia. He is now totally dependent upon others for all his needs.
He alleges that the defendant, who is the Chief Constable of Greater Manchester, is vicariously liable for negligent acts of certain police officers, namely Constable Illidge and Proudlove who, it is said, stood idly by as he was making his escape and let him jump from the flat to the ground below