Duty of care

1. Introduction Tort: “Wrong” (a civil wrong) Three main types: • Intentional torts (Beating somebody up. ) • Negligence (Recklessly driving a car and hitting somebody. ) • Strict liability (E. g. Vicarious liability) 3 Types of Liability in Torts (antisocial behaviour) ? ? ? ? ? ? Negligence (?? ): wrongs to persons or property, breach of duty of care Trespass (???? ): wrongs to property Assault (?? )/ false imprisonment (???? ): wrongs to person Nuisance (?? ): wrongs to persons Defamation (?? ): wrongs to reputation Privacy (?? ): wrongs to persons 4 Crime v. Tort • Punishing the wrongdoer.

• Compensating the victim. Contract v. Tort Relationship based on • Duties imposed by the contract: One law: One is liable to party is liable to all persons. another. • 5 Tort of Negligence The plaintiff must prove all the below elements to prove the defendant’s negligence: 4. Duty of Care – that the defendant owed to him a legal duty of care, and Breach of duty – that the defendant has been guilty of a breach of that duty, and Causation – that damage has been caused to the plaintiff by that breach, and Remoteness of damages ? The burden of proof is placed on the plaintiff. 1. 2. 3. 6 2.

The General Principles of Liability for Negligence 2. 1 Duty of Care • • Landmark case: Donoghue v. Stevenson (1932) Before 1932, the law recognised only a few “duties”: – Innkeepers owed a duty of care to their guests; – Surgeons to their patients; – Attorneys to their clients, etc. 7 Neighbor Principle • (1) (2) (3) Under the neighbor principle, a “duty of care” can be established if three elements are satisfied: Is the damage foreseeable? Is there a close and direct relationship of proximity? Is it just and reasonable to impose a duty of care? 8 (1) Forseeability Palsgraf v. Long Island Railroad.

248 NY 339 (1928) (per Cardozo J. ) Bourhill v. Young [1943] AC 92 T v. Kan Ki Leung [2002] 1 HKLRD 29 • . (2) Proximity 9 (3) Fairness, Justice and Reasonableness • • • • • In Donoghue v. Stevenson, it will be unfair if Plf. had no remedy in contract against the manufacturer. Because if no remedy in tort were available, Def. would go without any punishment. These are factors within the court’s discretion. White v. Jones [1995] 2 AC 207 Hemmens v. Wilson Browne (a firm) [1993] 4 All ER 826 10 2.

2 Breach of Duty • An Objective Standard – Test of Reasonable Person: • A person breaches a duty of care if he fails to do something which a reasonable person would do, or has done something which a reasonable person would not have done. A reasonable person should foresee the harm of his action or omission. If someone should have foreseen but not foreseen, he is not acting as a reasonable person, and he breaches the duty of care • • • • Bolton v. Stone [1951] AC 850 11 Miller v. Jackson [1977] QB 966 2. 3 Causation (a Causal Link) The “but-for” test: • It means “but-for the negligence of Def. , Plf. ’s injury or damage would not have occurred”.

• The “chain of causation” should not be broken. • But if a subsequent event/act (an intervening act) breaks the chain of causation, what would happen? 12 2. 4 Contributory Negligence • Where Plf. ’s injury has been caused partly by Def. ’s fault, and partly by his own. • The damages shall be reduced to such extent with regard Plf. ’s share in the responsibility. • Au Cheung v Choi Lai-fan (1979) 13 Exemption clauses ? Whether these clauses are valid in tort are dependent on the type of harm suffered. ?

Death or injury cannot be excluded. (section 7(1) of Control of Exemption Clause Ordinance) ? As for other types of losses (such as economic loss), the exemption clause is not valid unless it satisfies the reasonable standards. ? If the clause does fall within the scope of reasonableness, the burden of proof falls on the party relying on said clause. 14 Volenti non fit injuria (consent) ?????? ? A person has no remedy for harm done to him if he has expressly or impliedly consented to suffer the actual harm inflicted, or has consented to run the risk of it = If the plaintiff accepts a risk, he cannot pursue a claim that the defendant put him in a dangerous situation and caused him to suffer loss; this is known as volenti non fit injuria. 15 Novus Actus Interveniens (an intervening act breaks the chain of causation).

• If the subsequent wrong constitutes a novus actus interveniens (an intervening act) which breaks the chain of causation, the original wrongdoer is not liable for the extra damage. Lamb v Camden Borough Council (1981) • Knightley v. Johns [1982] 1 All ER 851 16 The “Thin Skull” Rule Def. must take Plf. as he finds him Smith v. Leech Brain & Co Ltd [1961] 3 All ER • • • • Suffered a burn on his lip; Triggered cancer; The lip was already in a pre-malignant condition. Yip Mau Leung v.

University of Hong Kong [2003] 3 HKLRD 198 17 GENERAL DEFENCES If the plaintiff has proven ? ? ? ? duty of care, breach of duty and causation and Remoteness of damage thus determining that the defendant was negligent, we must consider one last question, which is whether the defendant has any defences: 1. Contributory negligence 2. Exemption clauses 3. Volenti non fit injuria (consent) 18 4. Novus Actus Interveniens 3. Product Liability Donoghue v. Stevenson [1932] AC 562 Plf. drank a bottle of ginger beer bought by her friend from a retail shop. Some of the ginger beer was poured over the ice-cream in a tumbler, and Plf. drank some of it. As some of the ginger beer was still left in the bottle, her friend emptied it into her tumbler.

A foreign body flowed out of the bottle. It looked like the remains of a dead snail. • • • • 19 • • Plf. became ill. She became sick by the sight of what she saw. Plf. claimed damages from the manufacturer (Def. ). Held: (1) The manufacturer was liable. • It owed a duty of care to the ultimate consumer to see that there was no noxious matter in the articles which would cause injury to the consumer. 20 Held (2): A Duty of Care to Your Neighbour • The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer’s question, Who is my neighbour? Receives a restricted reply.

” • “You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. ” 21 • • “Who, then, in law is my neighbour? persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions. ” 22 Criminal Liability for Defective Products • Consumer Goods Safety Ordinance (Cap 456): – Imposes a duty on manufacturers, importers and suppliers of goods to ensure the goods supplied are reasonably safe. • Toys and Children’s Products Safety

Ordinance (Cap 424): – Imposes even more onerous duties on the manufacturers of toys and other products likely to be used or encountered by children. 23 4. Liability for Negligent Misstatement • • • Where there is a special relationship between the representor and representee, the representor has a duty of care not to make any representation which he has no reasonable grounds to believe. “Special relationship” such as solicitors, accountants, surveyors and valuers, etc. Remedies: Rescission and/or damages. 24 Hedley Byrne & Co Ltd v. Heller & Partners Ltd [1964] AC 465 • A “special relationship” arose where: – Plf.

sought some advice or information from Def. who possessed special skill; – Def. know or ought to have known that Plf. would rely on such information and advice; – Plf. , in fact, acted on such advice or information and suffered loss; and – It was reasonable for Plf. to seek the advice and information from Def. and act on them. 25 Liability of auditors ? An auditor’s duty is to carry out ‘such investigations as will enable them to form an opinion’ as to whether: ? ? ? Proper books of accounts have been kept by the company and The balance sheet and profit and loss account are in agreement with the books of accounts and returns.

The court may grant any relief from liability for negligence, default, breach of duty, etc where an auditor has acted both honestly and reasonably. 26 Re Kingston Cotton Mill Co (No 2) [1896] City Equitable Fire Insurance Co Ltd [1925] Re Thomas Gerrard & Sons Ltd [1968] 27 “Blowing the whistle” ? Duty: to inform the Financial Secretary or other regulatory bodies e. g. the SFC, without the knowledge or consent of the directors. 28 Auditor’s liability for misstatement in report ? Liable to the company ? In contract ? In tort ? Liable to other parties who rely upon the auditor’s report 29 Whether a duty exist to the Plaintiff ?

The test is whether the auditor knew or reasonably should have foreseen at the time the accounts were audited that a person might rely on those accounts for the purpose of deciding whether or not to take over the company and therefore could suffer loss if the accounts were inaccurate. JEB Fasteners Ltd v Marks Bloom & Co [1983] 30 Not liable to shareholders and potential investors in a public co. Caparo Industries plc v. Dickman [1990] 31 May be different for a private company Morgan Crucible Co plc v Hill Samuel & Co Ltd [1991] ? There was a relationship of proximity.

32 Duty to holding company Barings plc v. Coopers and Lybrand [1997] Held: C & L Singapore owed a duty of care to both Barings plc and its Singapore subsidiary; ? liable to loss suffered by the holding company of the Singapore subsidiary. 33 See also: • Esso Petroleum Ltd v. Mardon [1976] QB 801 • 34 Yuen Kun-yeu v. Attorney-General 5. Vicarious liability (?????? ) ? ? ? ? where the defendant is not personally at fault, but is still liable for others’ wrongs, it is known as vicarious liability The general rule is that an employer is not liable for the tort of his independent contractor.

However, an employer is liable for the torts committed by his employees committed in the course of employment only. Lam Min v. You On Construction Co (1981) 35 Vicarious liability ? The tortious act must be a wrongful way of doing what the employee is employed to do. Limpus v London General Omnibus Co (1862) Contrast: Beard v London General Omnibus Co (1900) The employer may be liable even if the employee acts contrary to clear instructions. Rose v Plenty (1976) 36 Unauthorized Tortuous Acts – “Close Connection” Criterion • Ming An Insurance Co (HK) Ltd v. Ritz-Carlton Ltd (2002) • Cheung Ping v. Sin Chung-yee (1984) 37.