Negligence in Malaysia

Negligence law emanates from the law of tort. In any negligence action, the essential ingredients that should be present are firstly, a duty of care exists wherein there must be a wrongful and unauthorized act or omission by the Defendant and secondly, the act/omission in question affected the interests or rights of others. Lastly, the said acts/omissions caused the injured party or victim to have a right to damages.

Duty of Care
The principal test to determine the existence of the duty of care is to apply the objective test of the neighborhood principle i.e. would a reasonable man who is in the same circumstances as the Defendant foresee that his conduct will adversely affect the Plaintiff? If the answer is affirmative then the Plaintiff owes a duty of care to the Defendant.

Breach of Duty of care
Once a duty is owed the next step is to determine whether the Defendant has breached the said duty of care. A breach would be committed once the Defendant does something that falls beneath the minimum standard of care required of him/her and the minimum standard of care is one of a reasonable man. Therefore, the question to ask would be whether a reasonable man faced with the same circumstances of the Defendant would have acted the same way as the defendant. If the answer is no then the Defendant has breached the duty of care.

In determining the damages the court would enquire as to the chain of causation i.e. is there a link between the breach and the damages suffered by the Plaintiff. In determining this, the courts would apply the but-for test, the causes involved in the said negligent act and whether the Plaintiff had contributed to the said breach of duty of care.

Under section 101 of the Malaysia Evidence Act 1950 the burden of proof for negligence on the Plaintiff and the standard of proof is on balance of probability i.e. that it was more probable than not that the Defendant was negligent. However, in certain cases it would be an uphill task for the Plaintiff to prove everything in detail and in such a case he/she may rely on the maxim Res Ipsa Loquitor i.e. the thing speaks for itself. When this maxim is raised the Defendant does not automatically be liable for negligence, the Defendant still has the right to rebut the maxim by giving evidence that he acted reasonably in the circumstances.

The following are examples of actions in negligence:-

  • Personal injury, Road accident, Trespass to person- assault and battery, Medical negligence, False imprisonment;
  • Trespass to land- entering, remaining or placing object and interfering with the airspace of the Plaintiff’s land.
  • Trespass to goods- direct interference with goods of the Plaintiff.
  • Others-nuisance, breach of statutory duty, vicarious liability, occupiers liability

As for defamation, the substantive law can be found in the Defamation Act 1957. However, whether a word is deemed defamatory or not it has to fall within the general formulations illustrated under case laws.