ISSUE: The issue is whether Mah Lang has the rights to sue Choo Wai under negligence.

LAW: There is no definite definition for negligence but it happens when there is a breach of a
legal duty when the defendant caused undesired damage towards the plaintif. We can see the
cause of action for negligence in the case of Bank Bumiputra Malaysia Bhd v Tetuan Wan
Marican Hamzah & Shaik & Lain-lain. The cause of action rises when the negligence happened
on the date of when the loss is suffered. If it was hidden, the cause of action rises on the date
when the damage comes into existence. Next, there are 3 essential elements for negligence which
are first the defendant is under a legal duty of care to the plaintiff, second there has been a breach
of that legal duty of care by the defendant and third the plaintiff has suffered damage from the
breach of that legal duty.

For the first element, the Neighbour Principle test will be used to determine whether the
defendants owe the plaintiff the duty of care. In the case of Donoghue v Stevenson, the defendant
who is a ginger beer manufacturer, sold his beer in an opaque bottle to a retailer. Then, the
plaintiff purchased the ginger beer and consumed half of the beer and poured the remainder into
a glass. He then found a decomposed snail in it. As the result, the plaintiff became ill. It was held
that the defendant owed a duty of care to the plaintiff as the manufacturer, and it was his duty to
make sure the drinks did not contain any noxious substance which can cause injury to anyone
drinking it.

For the second element, breach occurs when the defendant does something that is perceived to be
below the minimum standard of care. Reasonable Man test will be used to determine whether the
defendant has breached the legal duty of care. The conduct of this test is subject to the concept of
risk by looking at 4 factors which are magnitude of the risk, cost of precaution, the importance of
the object to be attained and general and approved practise. In the case of Government of
Malaysia & Ors v Jumat bin Mahmud & Anor, the plaintiff was pricked on the thighs with by a
pupil sitting behind him. When he turned around, his eyes came into contact with the sharp end
of the pencil that the student was holding. The eye was badly injured and had to be removed. It
was held by the federal court that the injury suffered by the plaintiff was conceivable they had to
see whether the defendant had taken precautions to avoid that matter.

For the third element, the plaintiff must prove that he suffered damage because of the plaintiff’s
actions. The first test that must be used to prove this is called The But-For test which argues
about the question “But-For the breach of duty by defendant, would the damage be suffered by
the plaintiff anyway?” if the answer is yes, it can be concluded that the defendants breach did not
cause the injury to the plaintiff. In the case of Barnett v Chelsea & Kensington Hospital
Management Community, the plaintiff’s husband started vomiting after drinking tea in the
morning and went straight to the defendant’s hospital. The nurse on duty telephoned the doctor
and he instructed the nurse to tell the plaintiff call their own doctor. The plaintiff’s husband died
of arsenic poisoning and she sued the hospital for negligence. It was held that the doctor
breached his duty of care, but did not cause the death because he would have been died even if
he was treated by the doctor. The second test is being used if the first test failed. If the reasonable
man has been expected to do any damage as the result of his or her breach, the defendant is prone
to negligent. This can be seen in the case of The Wagon Mound where the defendants ship was
anchored at C Oil Company for re-fuelling. However due to negligence, some of the workers had
spilled some oil in the water it has spread to the plaintiff’s wharf which was about 600 feets
away. The C oil company insisted that it was safe to continue the work. 2 days later, the pier
caught on fire and was extensively damaged. It was held that the test should be whether a
reasonable man in the defendant’s position would foresee the damage that has occured. Since it
was not foreseeable that the breach of duty would cause a fire, the act of the defendant was held
not liable.

APPLICATION: In the case above, Choo Wei is under the legal duty of care because as a result
from speeding up and crossing the red light, she had caused danger to Mah Lang and damage to
his car. From the neighbour principle test, it was proved that Mah Lang was affected by the act
of Choo Wei because he was there in the situation. In the case of Donoghue v Stevenson, the
court held that the defendant had the duty of care to the plaintiff as the consumer and the duty
included of ensuring that the beer will not cause any injury to the consumers. This explained that
even though Mah Lang did not know Choo Wei, the only thing mattered was Choo Wei was
probable to an injury.

Next, Choo Wei has also breached the legal duty of care. By using the reasonable man test, we
can say that any reasonable person would have stopped at the red light because it was one of the
main road regulations. Therefore, hie action is considered to be a breach of duty of care. This can
be seen in the case of Mohamed Raihan bin Ibrahim & Anor v Government of Malaysia & Ors
where the federal court held the defendant’s negligent as they had failed to take reasonable steps
to prevent injury to the plaintiff.

Lastly, Choo Wei has also caused Mah Lang to suffer damage. The damage caused by the Choo
wei was very serious since Mah Lang car was recked. To determine the damage, we can use the
but-for test. In this situation, the resut from the but for test will be as a no since Choo Wei’s
breach of duty has caused the Mah Lang to suffer damage. Another test that can be taken is the
remoteness of damage test where the defendants act will be liable if the act will predict a sort of
damage.

CONCLUSION: In conclusion, Choo Wei is guilty of negligence as she has fulfilled all the
requirements of the elements of negligence.
ISSUE: The issue is whether or not Steve has the right to sue Shariff due to the nuisance caused
by him.

LAW: The direct meaning of nuisance annoyance. Well in a legal definition nuisance means an
unlawful action that results in the inconvenience of others. There are 2 categories of nuisance
which is public nuisance under crime ad tort and private nuisance. Firstly, public nuisance is an
act which goes against the state and considered as a crime if found guilty. A legal definition
according to the case of AG v PYA Quarries ltd is when an act of the defendant can affect the
comfort and peace of a life in a society. If there is a case of nuisance, it does not require the
plaintiff to have any interest over the land, they must prove the damage suffered. According to
the case of AG for Ontario v Orange Productions Ltd, it was held that the rock festival has
created excessive noise and traffic and was established the offence of public nuisance.

The section category of nuisance is private nuisance. To what extend that it is unlawful? It rises
when there is an interference with a person’s comfort, enjoyment, and interest that they might
have over their land. There must be a proof over the nuisance created by the other person and
that the plaintiff has interest over their land which will make them able to sue them for nuisance.
According to the case of MPPP v. Boey Siew Than, a private nuisance disturbs the peace and
the interest the person has over their own land which is caused by harmful substance, loud
noises, smoke, or unpleasant odour.

Next to establish private nuisance there are 2 factors that must be satisfied first. The first factor s
substantial interference. This means that there is damage that have been suffered by the plaintiff
for the claim of damages to be made. The interference made must be with the use of comfort and
interest of the land, a minor interference does not result in nuisance. Next the damage caused
must be physical and significant to be recoverable. The second factor is unreasonableness. The
nuisance cause must be reasonable. There are a few guidelines that the court does that
determines whether the nuisance or interference made is reasonable or not. First is by looking
damage of the location on the plaintiff and defendants’ premises. Next is the benefits the public
gets by the act of the defendants and the sensitivity of the plaintiff about the interference. The
interference also must the in a continues mode and the temporary interference or isolated
incident that had happened. Lastly is any kind of act of malice. In a private nuisance, it must be
remembered that the plaintiff must prove the interference that happened over his land and must
have had interest over his land. Therefore, they also must be able to prove the damage suffered.

APPLICATION: The case above is related to private nuisance as it involves 2 private

individuals which is Steve and Shariff. Steve’s interest on the land was genuine and he moved to
that area for a quite and serene lifestyle but Shariff has interfered with Steve’s peace when he
had live band put into his café that plays until midnight. Plus the smell from the café also
interfered with Steve’s peace. As we can see from the case of MPPP v. Boey Siew Than, a
private nuisance is when it disturbs the interest of the plaintiff over his own land that is caused
by harmful substance, loud noises, or smell. Because of the loud noises, Steve’s suffers
headaches and nausea every morning due to the restless sleep he has every night. Also, he has
begun to lose focus at work and worried that he might get fired from his job. These can be
damages caused by the nuisance made by Shariff and Steve can claim damages in court.

CONCLUSION: In conclusion, Shariff is guilty of nuisance under the private part where he has
caused interreferences with the harmony of Steve and damage.