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Tortious Liability. By Kiril Ip. Sources of liability. Statutes E.g. Occupiers Liability Ordinance (Cap. 314) Common law - negligence Donoghue v Stevenson [1932]A.C. 562. Negligence. In Donoghue, Lord Atkins

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Tortious liability

Tortious Liability

By Kiril Ip


Sources of liability
Sources of liability

  • Statutes

  • E.g. Occupiers Liability Ordinance (Cap. 314)

  • Common law - negligence

  • Donoghue v Stevenson [1932]A.C. 562


Negligence
Negligence

  • In Donoghue, Lord Atkins

  • such close and direct relations that the act complained of directly affects the person to whom the person alleged to be bound to take care would know would be directly affected by his careless act.

  • Love your neighbours


Morgan crucible co plc v hill samuel co ltd nlj november 16 1990 p 1605
Morgan Crucible Co plc v Hill Samuel & Co Ltd NLJ November 16 1990 p 1605

  • it was stated that not only should there be :

  • sufficient "relationship proximity" between plaintiff and defendant.

  • be "just and reasonable" to impose liability on the defendant for what has occurred" LJ Slade


Duty of care
Duty of care 16 1990 p 1605

  • You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour?.

  • Donoghue


Who are my neighbour
Who are my neighbour? 16 1990 p 1605

  • Reasonably foreseeable

  • Not too remote


Proximity
PROXIMITY 16 1990 p 1605

A response to the liberal effects of the foreseeability (neighbour) principle, especially as re-formulated in Anns v Merton


Yuen kun yeu v ag of hk
Yuen Kun Yeu v AG of HK 16 1990 p 1605

Facts: Gov’t Dept’s failure to deregister a deposit-taking company being conducted fraudulently by directors

Q. Does Gov’t Official owe a duty to plaintiffs whose deposits were lost due to the fraud of company directors?


Arguments in favour of duty: 16 1990 p 1605

  • such loss is reasonably forseeable


Held: 16 1990 p 1605

- reasonable foreseeability not sufficient; neighbour principle misunderstood by recent cases; duty also requires ‘proximity’, ie some characteristic in addition to reasonable foreseeability, specially linking plaintiff to defendant, as in Home Office (day-to-day control over third parties)


Hill v chief constable
Hill v Chief Constable 16 1990 p 1605

Facts: Careless police investigation fails to catch serial murderer/rapist

Q. Do police owe duty of care to plaintiff, whose daughter was murdered?


Arguments in favour of duty: 16 1990 p 1605

  • another murder/rape was reasonably foreseeable


Held: 16 1990 p 1605

- reasonable foreseeability is not sufficient; duty also requires proximity; some extra characteristic linking defendant and victim lacking here; case distinguished on facts from apparently similar case of Home Office



Marc rich
Marc Rich 16 1990 p 1605

Facts: Defendant surveyor’s careless survey and advice that ship is safe to sail

Q. Is duty of care owed to owners of goods on the ship?


Arguments in favour of duty: 16 1990 p 1605

  • reasonable foreseeability of damage

  • proximity (defendant linked to plaintiffs)


Held: 16 1990 p 1605

- no duty owed; not ‘just and reasonable’ to impose duty, having regard to international shipping law, contractual relations, and insurance arrangements


Policy
POLICY 16 1990 p 1605

Hill v Chief Constable

Facts: See above


A further reason for no duty: 16 1990 p 1605

Public policy requires that when conducting investigations of crimes the police be free of worries about being sued; such worries will cause them to be distracted, and if duty owed, police resources will be diverted to defending tort actions; therefore, not in public interest to impose a duty


Duty of care1
DUTY OF CARE 16 1990 p 1605

+

REAS. FORESEEABILITY OF HARM

(DONOGHUE, DORSET YACHT)

'PROXIMITY' (REDEFINED)

(ie SPECIAL INGREDIENTS)

(YUEN KUN YEU, HILL, MARC RICH)

+

JUSTICE and REASONABLENESS

(PEABODY, MARC RICH)

+

POLICY CONSIDERATIONS

(ANNS, HILL, MARC RICH etc)


NOTE: Not all cases require an analysis of all of these factors. Look to the facts of case to determine principles likely to be viewed by the court as relevant.


Egg shell rule
Egg shell rule factors. Look to the facts of case to determine principles likely to be viewed by the court as relevant.

  • This means that the wrongdoer must take his victim as he finds him

  • This means that if you injure someone you are liable to whatever harm he suffers even if greater than expected.


What if breach of duty
What if breach of duty? factors. Look to the facts of case to determine principles likely to be viewed by the court as relevant.

  • Liable to pay damages

  • Protection

  • Public liability insurance


Do whatever you like
Do whatever you like? factors. Look to the facts of case to determine principles likely to be viewed by the court as relevant.

  • No!

  • Note the exceptions in insurance policies


General exceptions
General exceptions factors. Look to the facts of case to determine principles likely to be viewed by the court as relevant.

  • Results from acts or omissions of Insured reasonably expected

  • Voluntary assumption by the Insured

  • Bodily injury of employees of campsite

  • Loss of property of insured

  • Injury due to mechanically propelled vehicles


General exceptions continued
General exceptions continued factors. Look to the facts of case to determine principles likely to be viewed by the court as relevant.

  • Pollution

  • Radiation

  • Due to aircraft, elevator, etc etc


What if an accident
What if an accident? factors. Look to the facts of case to determine principles likely to be viewed by the court as relevant.

  • Damage control

  • Collect favourable evidence

  • Report to insurance

  • Get a lawyer!

  • Thank you


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