APRIL 2011, PART B, QUESTION 1.

Boncet bought a set of slimming products consisting of slimming

pills and slimming lotion
called "De Montel De Cornel" from Keanggunan Abadi Sdn Bhd, a
company well known for
the manufacturing of slimming products. A week after using both
products, Boncet suffered
severe stomach ailment and found that blisters and rashes has
developed on her abdomen.
Later, Boncet learnt that her illness was due to the usage of the
slimming products. Dr. Jimi
further informed her that the manufacturer used some chemicals
that had been banned by
the Ministry of Health. As a result, Boncet now is suffering from an
excessive damage to her
internal organs.
Advise Boncet whether she has any cause of action against
Keanggunan Abadi Sdn Bhd.
(100 marks)

There is a main issue that needs to be discussed in the current problem.

The issue is related to the topic of negligence. Negligence is defined in Blyth
v. Birmingham Waterworks Co. as the omission to do something that a
reasonable man would do or doing something that a reasonable man would not do.
There are several elements that need to be proved in order to use negligence as a
cause of action.
ISSUE: The first element is duty of care. The issue is whether Keabadian
Abadi Sdn. Bhd. has any duty of care towards Boncet.
PRINCIPLE: In the landmark case for negligence, Donoghue v Stevenson,
the neighbourhood principle was established. Under this principle, a man is under
duty of care towards his neighbour. Neighbour as stated by Lord Atkin in this case is
persons who are so closely and directly affected by a mans act that he should have
seen it when he was doing the act in question. In other word, if a person is affected
by a mans act, then he is under duty of care of the latter. In Donoghues case, the
plaintiff drank a bottle of ginger-beer manufactured by the defendant which she
later found that it contained decomposed remains of a snail. In this case, the court
has decided that there is special relationship between manufacturer and consumer.
As such, defendant has duty of care towards the plaintiff.

APPLICATION: Applying to the present case, Boncet used a set of slimming

product manufactured by Keanggunan Abadi Sdn Bhd. So, it can be said that the
relationship between the parties is manufacturer and consumer. Thus, the principle
in Donoghue can be applied and as a result, Keabadian Abadi has duty of care
towards Boncet.
CONCLUSION: In conclusion, the first element of negligence is exist in the
current case because under neighbourhood principle, Boncet is neighbour of
Keabadian Abadi.
ISSUE: The second element is breach of duty of care by defendant. Whether
Keanggunan Abadi has breached their duty of care towards Boncet.
PRINCIPLE: In order to successfully sue someone on the ground of
negligence, merely proving the existence of duty of care is not enough. The plaintiff
must be able to prove that the defendant has breached that duty. In order to
determine the breach, reasonable man test could be applied. Reasonable man test
means that the court will consider whether an ordinary man would have acted as
the defendant in a similar circumstance. If the answer is yes, then there is no
breach of duty. But if the answer is negative, then the defendant has breached his
duty towards the plaintiff. In Glasgow Corporations case, the court decided that
the defendant who spilled hot tea on some children was not liable since a
reasonable man would not have foreseen such accident in such circumstances.
APPLICATION: Applying to the present case, the side effect suffered by
Boncet is not the ordinary or normal effect of using slimming products. The effect is
result of Keanggunan Abadi using some chemicals that had been banned by the
Ministry of Health in their product. Since it is not a normal practise of manufacturer
to use banned chemical in their slimming product, by using reasonable man test, it
is clear that Keanggunan Abadi has breached their duty of care towards Boncet.
CONCLUSION: In conclusion, the second element which is breach of duty of
care by the defendant is satisfied in the current case.
ISSUE: The last element that needs to be proved is there is some damage
resulting from the breach of duty. Whether the damage suffered by Boncet is the
result of Keanggunan Abadis act.
PRINCIPLE: The plaintiff must show to the court that the damage suffered is
no other that result of the defendants act. If there is any break of chain of
causation whereby the defendant in not the sole reason for the damage, then he
might be not liable. This test is called but-for test. In Barnetts case, where the
plaintiffs husband died of arsenic poisoning, the court decided that even though the
defendants doctor refused to treat the deceased, since there was evidence to show
that he would die even if the doctor had treated him, the defendant is not liable.
This is because the breach is not the sole factor of the damage.
APPLICATION: In the present case, Boncet suffered the side effect after
using the slimming product manufactured by Keanggunan Abadi. There is evidence

by Dr.Jimi that the effect is resulting from the usage of the slimming product. So
there is no breach of causation in this case. Applying the but-for test, Keanggunan
Abadis product is the only reason for the damage suffered by Boncet. As such,
Keanggunan Abadi is responsible for the damage.
CONCLUSION: In conclusion, the last element also has been fulfilled since
the slimming product manufactured by Keanggunan Abadi is the only cause for
Boncets suffering.
To conclude, Boncet has negligence as a cause of action against Keanggunan
Abadi for the damage suffered by her.