FACTS OF THE CASE

The client came to the firm to seek an advice on his and his son’s legal position
regarding an accident happened which involved one Mr. Richard Chong. 3 months
ago, he and his son, Syukri aged 15 went to the Everest Climbing Centre in Shah
Alam. They are regulars at the Centre. During the first visit, they were taught on how
to attach the harness to themselves properly while during the second visit, they will
attach the harness by their own and checked by the staff at the Centre. During
subsequent visits, they will not be checked as the staff has satisfied that they know
how to attach the harness properly.

During the visit when the accident happened, his son was climbing the wall while the
client was holding the safety rope of Syukri. This Mr. Richard Chong saw that
Syukri’s harness was not attached properly. He climbed to help but subsequently fall.
He shattered his right leg and has to wear metal braces.

ISSUES ARISE
If Mr. Richard Chong decided to file a claim against our client, there are several
defences that might be raised by our client.

• Contributory negligence (Chapter 9: 205)

o Mr. Richard Chang attached the harness by himself. As one of the
owner, and as he tried to help to fix Syukri’s harness, he must have
known how to attached the harness properly. So, his act of not fixing
the harness properly had somehow contributed towards his injury when
he falls down.
o He has breached his duty of care for his own safety as he had failed to
take reasonable care to himself which had consequently resulted in his
injury.
o Elements:
 Pp not required to have a duty of care to dd. He has duty of care
to act reasonably to avoid injury
 Pp breached by behaving unreasonably
 Act cause injury
 o Cases: Lai Yew Seong v Chan Kim Sang; pp 100% contributory
negligence for hitting a car from behind  contributory negligence =
failure to use reasonable care for his own safety and he is the cause of
the injury
o mohd zukhairi abd ghapar (an infant suing through his father and next
friend, abdul ghapar bin saad) v quek chiam kee

• Volunti Non Fit Injuria (Chapter 9: 195)

o Mr. Richard Chong himself volunteered to help Syukri to fix the
harness. Nobody instructed him or forced him to help Syukri. As one
of the owners of Everest Climbing Centre, the risk associated with wall
climbing activity must have been known by Mr. Richard Chong
o VNFI = pp has consented or voluntarily assumed the risk of injury [to
one who is willing no harm is done]
o Lee Geok Theng v Ngee Tai Hoo. Elements:
 The facts of which the pp was fully aware, gave rise to the
injury
 Pp understood risk of injury
 Pp voluntarily u/took to be responsible 4 the risk
o Case can be compared to the situation b4 hand. In that case, judge was
quoted as saying “accident beyond the control of the rider, so how can
the pillion consented to it”. But in the client’s situation, the accident
was not beyond the control of Mr. Richard Chong. He has a total
control and knowledge on how to attached the harness properly.

• Delegation of duties (Chapter 15: 356)

o If there is any kind of agreement which might existed between Mr.
Richard Chong and the client in which the duties of the Centre is laid
down, the defence of delegation of duty can be raised.
o During the first visit, staff @ Everest Climbing Centre will teach how
to attach harness. Second visit, they will attach by their own and the
staff will check. Subsequent visits, when the staffs are confident that
the customers can attach by themselves, they will not check.
o As such, they are delegating their duties to ensure that the harness is
properly attached to the customers. By right, as the operator of a
climbing centre where there are possibilities or risks of accidents,
Everest Climbing Centre has a greater duty to ensure the safety of
others, in particular the customers
o Hu Sepang v Keong On Eng & Ors > Elements of statutory duty:
 Injury suffered within ambit of statute
 SD imposes a liability to a civil action
 SD not fulfilled
 Breached of SD causes injury
o Everest Climbing Centre had delegated its duty to ensure the safety of
the customers to 3rd parties namely the customers themselves. Where a
duty is imposed by law on person/body of persons, they do not release
themselves by delegating that duty to another person to perform it
o Paterson v Municipal Commissioners
 PP’s horse was injured when one of the bridges which was
under the dd’s SD to maintain and repair, collapsed. Although
the duty to repair was contracted out to a 3rd party, the dd was
held liable.

o Counter claim > Nervous Shock (Chapter 6: 109)

o In case Mr. Richard Chong filed a claim against our client, we might
have a counter claim. Our client may claim that he suffered nervous
shock as a result of the incident
o This is due to the fact that the Everest Climbing Centre had failed to
provide safety measures which had led the accident occurred in front
of our client.
o However, this might not be a good claim since in Alcock v Chief
Constable of South Yorkshire, the court held that for a successful
nervous shock claim, two elements must fulfilled
o Client fulfilled the 2nd element  physical proximity btw the pp and
the victim in terms of time and space
 o H/ever, not the first element  reasonably foreseeable that the client
suffered nervous shock due to his close r/ship of love and affection
with the victim. This is due to the fact that Mr. Richard Chong is not in
a close r/ship with the client.
o Furthermore, he had gone to the Centre six times since the incidents
and as such, it might show that the client did not suffer any nervous
shock due to the accident

• There might be several damages that Mr. Richard Chong might claim against
our client
• However, it is still too early to determine what the damages that might be
claimed as there is still no news on behalf of Mr. Richard Chong and a case
against our client has yet to be filed.
• If Mr. Richard Chong decided to claim damages against our client, he might
file a claim of special damages [pre-trial pecuniary loss] such as medical
expenses incurred for his hospitalization and treatment.
• As we are yet to receive any information or medical report on Mr. Richard
Chong’s medical condition, it is too early to determine the quantum of
damages that he might claim
• He might also claim for the expenses incurred by his family members to visit
him at the hospital. [Although no proof, court assume they have done so as it
is a custom in this country – Mat Jusoh v Syarikat Seberang Jaya Takir SB =
Chapter 1 SD: 19]
• He might as well claim for general damages [non-pecuniary loss] such as pain
and suffering and loss of amenities. Again, as Mr. Richard has yet to file a
claim against the client, we may not know the exact amount that he might
claim for this head of damages.

• The limitation period for cases based on torts is 6 years from the date on
which the cause of action accrued (s6(1)(a) Limitation Act).

o Three months had passed. So, there’s another 5 years 9 months if Mr.
Richard Chong decided to file a claim against our client
• An issue of Guardian Ad Litem [for the time being] can also be raised. Since
Syukri is a minor as he is 15 y.o [s.2 Age of Majority Act 1971], Syukri can
only be sued through his guardin ad litem as provided for under Order 76 rule
2(1) who in this case is the client himself.

• Advice client not to be worried – mr Richard chong has yet to sue him or his
son.