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KALEEM BHATTI
When recoverable?
When Not recoverable?
Definition
Spartan Steel & Alloys Ltd v Martin & Co (Contractors) Ltd [1973]
C had a stainless steel factory which obtained its electricity by a direct cable from the power station. D were doing work on the ground with an excavator and negligently damaged that cable. As a consequence, the factory was deprived of electricity for 15 hours which caused:
YOU JUDGE!
physical damage to the factorys furnaces and metal, lost profit on the damaged metal and lost profit on the metal that was not melted during the time the electricity was off.
When recoverable?
Majlis Perbandaran Ampang Jaya v Steven Phoa Cheng Loon & Ors [2006] 2 MLJ 389
Steve Shim CJ: The third question postulated the consideration of whether pure economic loss is recoverable under the Malaysian jurisprudence in negligence and nuisance. In the law of negligence, there is no immutable rule that pure economic loss is not recoverable. All major Commonwealth jurisdictions recognize that pure economic loss is recoverable in negligence. Under English law, the general duty of care test enunciated in Caparo Industries Plc v Dickman [1990] 2 AC 605 is applicable to all negligence claims, including claims for pure economic loss.
Pursuant to this test, three questions have to be addressed, namely, whether the damage suffered by the plaintiff is reasonably foreseeable; whether there is a relationship of proximity between the plaintiff and defendant; and whether it is fair and reasonable that the defendant should owe the plaintiff a duty of care.
The. 'open-ended approach: if the facts of a particular case do not come within a recognized category of liability, a court could go further to look at the facts closely to determine if a duty of care should nevertheless be owed by the defendant to the plaintiff. Recent statements by the English courts confirm that the 'openended approach' can be used to recognize duties of care in new situations; supported by courts decisions in Australia, NZ and Singapore. Couort: Having had the benefit of reading the various authorities on this subject I would also endorse the view that caution should be exercised in extending the principle in Donoghue v Stevenson to new situations. Much would depend on the facts and circumstances of each case in determining the existence or otherwise of a duty of care. (So; favouring open-ended approach)
Court held: On the grounds so advanced, negligence would have been attributed to MPAJ and/or its predecessor. But, for the reasons already stated, they are however immunized against any liability under s 95(2) of Act 133.
THE END