a) How would you decide the case?

i. Issue
Kathy who was driving had knocked into Mr. Kung, who was a pedestrian at the
time of the incident. According to Kathy, she saw Mr. Kung who was walking across
the road, however was too excited as it was her new car that she had forgotten to step
on her break to avoid Mr. Kung. Mr. Kung who could have easily saw Kathy’s car
approaching also did not stop and wait until Kathy had passed by. Therefore, neither
did Mr. Kung who was walking across the road, nor Kathy who was driving took any
evasive action that could have prevented this incident.
Another issue arise is that passer-by, Mimi who was 4 months pregnant had
witnessed the accident. She was in a taxi that was travelling from the opposite
direction. As a result of the shock she received from the accident, she had suffered a
miscarriage and lost her baby.
ii. Principle

Negligence by both party here had resulted in the outcome of the incident.
Negligence is a form of tort that could be form to determine any forms of legal
1
liabilities which causes harm to a certain party or individual in a particular situation.
The tort committed may not have been included in the activities or a specific doings
and action, but it may and could have contributed to the cause with the manner of the
2
way things were executed and carried out. Omission can be best defined as
something neglected or left undone; or apathy towards or neglect of duty. 3 According
to S. 36 of the Penal Code Act 574, wherever the causing of a certain effect, or an
attempt to cause that effect by an act or by an omission is an offence, it is to be
understood that the causing of that effect partly by an act and partly by an omission is
the same offence. 4

Haynes v Harwood [1936] 1 KB 146 5

Within a police station, situated in a busy street, the complainant was a police
constable on duty, frequently visited by numerous civilians, including children. The
defendants owned a two-horse van which was left in the same street unattended by its

1
(Law Unit | Saito University)
2
(Lim, 2018)
3
(Merriam-Webster, 2021)
4
(Malaysia: Penal Code, 1997)
5
(Lawteacher, 2013)
owner. The driver placed a chain on one of the van's wheels that had eventually
broken down. For whatever excuse, they raced down the busy street alongside the
van, apparently because a stone was hurled at the horses. The police constable saw
them from the police station, got out and tried to stop them, but suffered injury, for
which he sought compensation.

The boy’s act did not sever the casual connection between the negligence of
leaving the van unattended and the plaintiff’s damage. It was negligent to leave the
van unattended in a place where there were childrens precisely because a mischief
child might do something to cause the horses to bolt.

In the case of Kathy and Mr.Kung , both of them had commited negligence.
Kathy’s omission as a driver is to drive safely and have full focus on the road. In the
other hand, Mr. Kung he did not wait nor stop for Kathy’s car to pass by although he
had saw her coming from a distance. Thus, both of them are liable for negligence and
had cause the misscarage to the woman.

Duty of Care and Third-Party Actors6

For the vast majority of cases, the actions of third parties will not impart liability
on claimants, and will usually be held as a novus actus interveniens.

The general rule is that there is no duty of care to prevent the actions of a third
party. There are, however, exceptions to this rule, set out in the case of Smith v
Littlewoods 1987. These exceptions include where there is a special relationship
between the claimant and the defendant, where there is a special relationship between
the defendant and a third party, where a source of danger is created by the defendant,
and where the defendant fails to take steps to deal with a known risk created by a third
party.

In the case of Kathy and Mr.Kung , both of them had created risk to themselves
but the pregnant woman was in a safe distance from the incident. The pregnant
woman had a duty of care towards herself and the miscarriage baby as where she was
vulnerable and must accept the nature of fact that any unwanted or natural incidents
when she steps out of her home.

6
(Lawteacher, Duty of Care Lecture, 2021)
 iii. Analysis

Both has been believed to commit an act of omission, and that had resulted in the
outcome of the incident. It was because of Kathy that had failed to apply her brakes
although she saw Mr. Kung walking across the road. The act of not applying her
brakes to slow down is considered an act of omission where she had neglected to slow
her car down. Mr. Kung too had committed an act of omission as he did not wait nor
stop for Kathy’s car to pass by although he had saw her coming from a distance. He
too had neglected to consider the fact that Kathy may not have saw him walking along
the road. With this, both had committed an act of omission and negligence for not
performing a reasonable action which by a person would have taken in order to stay
safe.

iv. Conclusion

Therefore, it is safe to conclude that the incident was caused due to the fact that
both parties had a breach of duty and negligence to participate in whatever actions
that were needed to be taken in order to avoid such incident. Both party had a role and
action to fulfil but neither had performed it the way it should have been, therefore
resulting in the outcome of the incident.
 B) Advice Mimi whether she can sue Kathy for the loss of her baby.

I. Issue

Mimi, who was 4 months pregnant, witnessed the accident as she was travelling in
a taxi coming from the opposite direction. Because of the accident, Mimi suffered
from shock as a result of which she lost her baby. The issue arisen here is that Mimi
believes that her miscarriage was a direct effect of the incident that happened between
Kathy and Kung. However, there was not intention nor omission that has a direct
consequences to the claims of Mimi.

II. Principle/Rule

According to this case we can refer to the case of Bourhill v Young 7 (1943) AC
92. On 11 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." 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.

III. Analysis

As the result, Mimi is unable to sue Khathy for the loss of her unborn child. This
is because Kathy did not swerved her vehicle to the opposite of the lane which could
hit the taxi where Mimi is in it. Also, the taxi where Mimi is used for traveling did not
involve in any car accident. However, she lost her 4 months baby due to the shocked
she witnessed where the accident happened just on the opposite of the road. Judging
from this, Khathy would not be liable to Mimi.

7
(Lawteacher, Bourhill v Young - 1943, 2013)
IV. Conclusion 

To win a lawsuit, a plaintiff must have suffered injury as a result of the

defendant's breach of duty. The injury might be bodily harmed, such as broken bones
or ligament or body parts injury. In this case, Kathy is not liable for any harm that
Mimi might have suffered as the result of the accident. It was not reasonably
foreseeable to Kathy that she would be injured. Mimi was physically outside the area
of foreseeable danger. So the defendant owned no duty for the plaintiff and therefore
not guilty of any negligence in relation to her. So, Mimi couldn't sue Kathy in this
case