Causation

The claimant must have caused or contributed to the harm occurs and it is on the
defendant to prove that. “But for test” is used in determining the causation link. In practice,
the court will focus on cause of damage instead of cause of accident.

The causation link will be broken if the claimant was unable to act when accident
happened. In Sundram a/l Ramasamy v Arjunam a/l Arumugam & Anor, the claimant
involved in an accident and fell off from his motorcycle to the middle of road. His leg was
then ran over by the car driven by the defendant. It was held that the defendant was liable as
he could have slow down his speed to prevent his car running over claimant’s leg. The
defendant had failed in defence of contributory negligence as the claimant was unable to get
up and run to the side of road. Thus, the claimant will still having his leg injured but for
claimant’s conduct.

The causation link will be broken if the claimant show that the damage will still take
place even though he exercised proper caution and care. In Dr Ks Sivananthan V The
Government Of Malaysia & Anor, the appellant and respondent was held liable for
negligent in giving treatment to the plaintiff which resulted his leg had to be amputated. Both
appellant and respondent had to share in paying compensation awarded to plaintiff. The
appellant appealed. On appeal, the High Court held that the respondent had failed in
establishing the causation link between the appellant and the damage suffered by plaintiff. On
facts, the plaintiff was attended himself by the respondent before he approached the appellant.
It was found out that respondent was negligent in giving immediate treatment when the
plaintiff’s leg was found in “fairly advanced inchaemia”. Instead, he allowed the plaintiff to
be discharged. When the plaintiff was attended himself to by the appellant, the condition had
become so worse that plaintiff’s leg will still could not be saved despite the appellant did not
delay the treatment. Thus, the appellant was not liable and the respondent had to pay all the
compensation including appellant’s part.

However, the defendant will still liable to pay some damage if both claimant and
defendant had contributed to the damage. In Affin Bank Bhd v Chandran G Nair & Ors,
the plaintiff had suffered monetary loss as judgement obtained against one Abdul Rashid
could no longer be enforced due to onset of time limitation. The plaintiff sued their acting
solicitor for negligence. It was found out that the defendant had failed in exercising proper
skill as ordinary competent solicitors. However, the court held that the defendant only liable
to 60% of amount claimed as plaintiff had also contributed to the loss by not instructing the
defendants in clear terms to file a proof of debt ('POD') against Abd Rashid when it knew that
the POD had to be filed.