THE PALACE OF JUSTICE CIVIL APPEAL NO. P-02-2074-2011 ...

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This is, indeed, a bold attempt by Lord Wilberforce’s to refine the neighbour principle to enable it to be universally applied to ever new and more far-reaching factual contexts. The two-stage test as advocated was applied by Lord Roskill subsequently in the House of Lords decision in Junior Books Ltd v Veitchi Ltd [1983] 1 AC 520. However, in 1985 the High Court of Australia declined to apply Lord Wilberforce’s two-stage test in Sutherland Shire Council v Heymann [1985] 60 ALR 1, 43. Brennan J criticized the possibilities for a ‘massive extension of a prima facie duty of care’ which Ann v Merton appeared to create. Instead, Brennan J advocated for an incrementalist approach to novel categories of negligence that were to be developed ‘by analogy with established categories’. The learned Judge said (at p. 44): I am unable to accept that approach. It is preferable, in my view, that the law should develop novel categories of negligence incrementally and by analogy with established categories, rather than by massive extension of a prima facie duty of care restrained only by indefinable ‘considerations 30
which ought to negative, or to reduce or limit the scope of the duty or the class of person to whom it is owed’. And three years later, in Yuen Kun Yei v Attorney-General of Hong Kong [1988] AC 175 (PC), the Privy Council hearing an appeal from the Hong Kong Court of Appeal ruled that the two-stage test in Anns v Merton should not be regarded as in all circumstances a suitable guide in determining whether or not a duty of care was owed. In the words of the Privy Council (at p. 194): In view of the direction in which the law has since been developing, their Lordships consider that for the future it should be recognized that the two- stage test in Anns v Merton is not to be regarded as in all circumstances a suitable guide to the existence of a duty of care. Instead, according to the Privy Council, it was necessary to have regard to whether a close and direct relationship between the parties existed and this involved consideration of all the circumstances, including the reasonable contemplation of injury or damage being caused to the plaintiff by the defendant’s failure to exercise 31
Page 1 and 2: IN THE COURT OF APPEAL OF MALAYSIA
Page 3 and 4: Introduction Defendants (1) Rakyat
Page 5 and 6: (Rakyat Corporation Sdn Bhd) to be
Page 7 and 8: The Vendor shall do all acts and th
Page 9 and 10: y the vendor failing which the vend
Page 11 and 12: developer proceeded to construct th
Page 13 and 14: (b) the refusal on the part of the
Page 15 and 16: architects for the project, resulti
Page 17 and 18: CFOs under the SPA. As the learned
Page 19 and 20: … speak, short circuiting the con
Page 21 and 22: 4 CLJ 508 (but see now the Federal
Page 23 and 24: The above proposition was cited wit
Page 25 and 26: From the evidence in this case, I f
Page 27 and 28: consequences. The case law authorit
Page 29: First one has to ask whether, as be
Page 33 and 34: contemplate would be affected by hi
Page 35 and 36: ‘neighbourhood’ and that the si
Page 37 and 38: certainly owe a duty of care to the
Page 39 and 40: 128 ALR 163), New Zealand (for exam
Page 41 and 42: that the layout plan necessitated e
Page 43 and 44: Peculiarity of High Court’s Order
Page 45: Date of decision: 5 January 2012 Da

THE PALACE OF JUSTICE CIVIL APPEAL NO. P-02-2074-2011 ...

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