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

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expressed the judicial policy element in determining the existence of a duty of care in the following terms: So in determining whether or not a duty of care of particular scope was incumbent upon a defendant it is material to take into consideration whether it is just and reasonable that it should be so. In the early 1990s, there were further attempts by Judges of the House of Lords to formulate a general principle by which to determine the existence of a duty of care. For instance, in Smith v Eric S Bush [1990] 1 AC 831 (HL(E)) Lord Griffiths enunciated a test based on (i) foreseeability; (ii) proximity; and (iii) justice and reasonableness. In the House of Lords case of Caparo Industries Plc v Dickman (a case that we have mentioned earlier) Lord Bridge of Harwich summarized the principle on duty of care as follows: What emerges is that, in addition to the foreseeability of damage, necessary ingredients in any situation giving rise to a duty of care are that there should exist between the party owing the duty and the party to whom it is owed a relationship characterized by the law as one of ‘proximity’ or 34
‘neighbourhood’ and that the situation should be one in which the court considers it fair, just and reasonable and that the law should impose a duty of a given scope upon the one party for the benefit of the other. In the House of Lords case of Barret v Enfield London Borough Council [2001] 2 AC 550 (HL(E)) Lord Browne-Wilkinson said: In English law the decision as to whether it is fair, just and reasonable to impose a liability in negligence on a particular class would-be defendants depends on weighing in the balance the total detriment to the public interest in all cases from holding such class liable in negligence as against the total loss to all would be plaintiffs if they are not to have a cause of action in respect of the loss they have individually suffered. Now, having gone through the case law, let us revert to the facts of the present case. In the present case, it is our judgment that, considering the facts of our case and the judicial authorities (none of which is on all fours with the facts of the present case), it would not be just and reasonable to impose a duty of care on the defendants/architects to ensure that 35
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 and 30: First one has to ask whether, as be
Page 31 and 32: which ought to negative, or to redu
Page 33: contemplate would be affected by hi
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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