Forseeability of damages in negligence related to construction industry in Malaysia

Abstract

Negligence is a failure to take reasonable care to avoid causing injury or loss to another person and foreseeability of damages can be found after all the elements of negligence has been go through. Foreseeability only comes until the damages are done but how to determine the liability or damages except foreseeability of damages happened. Research found that reasonable foreseeability of damages could be determine by using reasonable foreseeability test. The aim of this research is to identify the reasonable foreseeability damages in construction in Malaysia. In order to achieve the research aim, the objectives are to identify the foreseeability test could or could not bring damages to be foreseen and to determine type of damages by using foreseeability test. This study was carry out by using a case study approach with 10 legal cases that having reasonable foreseeability damages as a claim towards defendants and as defends towards plaintiffs and using reasonable foreseeability damages in determine liability or damages rise by parties in construction industry in Malaysia. The development of research methodology comes after analysis the published literatures regarding the reasonable foreseeability damages in negligence and related legal cases to the topic. As for the finding, the aim of this research is to identify the reasonable foreseeability damages in construction industry in Malaysia has slightly achieved. The type of damages could determine by 30% of using foreseeability test but most of the cases cannot be determined. The damages could 50% be foreseen by using foreseeability test but most of cases used foreseeability to identify the relationship of duty of care between parties.