LAW B262F (1704) Notes on Torts PDF

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LAW B262F BUSINESS LAW I NOTES ON UNIT 4 LAW OF TORT Lecturer: Lana Tang (OUHK) Peter Yip (VTC) © The Open University of Hong Kong SOME BACKGROUND INFORMATION In this unit, first of all you will be introduced to the nature of torts and the various kinds of tortious actions. Then you will be explaine...

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LAW B262F BUSINESS LAW I

NOTES ON

UNIT 4 LAW OF TORT

Lecturer: Lana Tang (OUHK) Peter Yip (VTC)

© The Open University of Hong Kong

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SOME BACKGROUND INFORMATION In this unit, first of all you will be introduced to the nature of torts and the various kinds of tortious actions. Then you will be explained in details on the most important issues like negligence, negligent misstatement and the relevant defences. Dafamation will be covered in brief. Remedies of tortious acts are delat with at the end of the unit. Nature of tort 侵權法 (for reference) When viewed purely from the acts committed in tort, the nature of tort is similar to that of criminal law, for instance in the taking of another’s property or the harming of one’s person. Definition of tortious acts (for reference) “Tort” is derived from the Latin “tortus”, meaning to be bent or twisted. Tort law ensures that a victim has remedies available if his personal or property rights have been violated. The parties who litigate on matters of tort may or may not also have a concurrent contractual relationship. For example, if you hire a lawyer to handle a transaction but his carelessness causes you loss in violation of your rights, you may claim those losses based on the terms of the contract between you and your lawyer (whether such terms are expressed or implied). At the same time, you may also have a claim in tort against your lawyer. . Of course, this merely indicates that you may have two different reasons (or known as “causes of action”) to initiate proceedings, and does not mean that you can receive double compensation. On other occasions, a plaintiff may still claim in tort even though he has no contractual relationship with the defendant. For example, when a person crosses the road and is carelessly hit by a car. Obviously, there is no contractual relationship between the driver and the victim and here, the victim can only claim against the driver in tort. Types of tortious liability (for reference) Numerous types of tortious liability have emerged over time. The common ones include: (1) Negligence: the most common tort, it includes negligent acts and negligent misstatements, as well as professional negligence (such as with lawyers, doctors, etc.) (2) Product liability. (3) Occupiers liability: persons occupying a property causing injury to others residing in the property. (4) Trespass to person: e.g. assault, battery, etc. (5) Trespass to property: trespassing upon the plaintiff’s land, property or chattels without their permission. (6) Breach of statutory duty: breaching a duty under written law. (7) Deceit. (8) Malicious prosecution. (9) Trespass to land. (10) Nuisance. (11) Rylands v. Fletcher: this is a type of nuisance regarding land use, from Rylands v. Fletcher (1866) LR 1 Ex 265; 18680 LR 3 HL 330. (12) Defamation.

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(A) Negligence (疏忽) Negligence is the causing of harm to others due to carelessness. This can be said to be the minimum standard that society imposes on individuals, and any behaviour failing to meet this standard will incur a responsibility to compensate. Essential elements Not all careless acts will constitute a tort, and neither will they give rise to an obligation to compensate. A plaintiff must, when deciding to sue someone in tort, consider the circumstances in which he can obtain damages. Below are five essential elements for proof of a tortious act: --Duty of care: did the defendant have a duty of care to the plaintiff? --Standard of care: how high is the standard of care? Did the defendant breach this standard? --Causation: was the plaintiff’s loss caused by the defendant’s breach of his duty of care owed to the plaintiff, i.e. was there causation? --Remoteness: is the loss suffered by the plaintiff too remote? Defence Does the defendant have a defence? Was there contributory negligence on the part of the plaintiff? Is the loss actionable? (Tort law does not allow claims for grief, emotional loss, loss of friendship, etc.) (1) Essential elements (a) Duty of care (謹慎責任) Regardless of how negligent a person is or what loss he has caused the victim, if he owes no duty of care to the victim, there is no tortious liability. Whether a person owes a duty of care to another depends on their relationship. What type of relationship can give rise to this duty? (誰向誰有謹慎責任?) The answer can be found in the decision of the House of Lords in Donoghue v. Stevenson [1932] AC 562. The plaintiff’s friend bought her a bottle of ginger beer, which was later discovered to contain a dead snail. The plaintiff fell sick after drinking some of the beer and sued the manufacturer. If the plaintiff had bought the beer to drink for herself, there would have been a claim arising from her contractual relationship with the defendant. However, as there was no such contractual relationship, only a claim in tort could be attempted. Before this case, there was no case law confirming a general duty of care – only one arising in special circumstances such as fraudulent misrepresentation or intentional tort. Without a clear precedent, how did the House of Lords handle this case? Everyone owes a duty of care to his/her neighbours (neighbour 在此處並非解釋為住 在隔壁的人這樣簡單 在隔壁的人這樣簡單) The rule is that a person must take reasonable care to avoid acts or omissions which he/she can reasonably foresee would be likely to injure his/her neighbour (你必須合理地 小心避免任何行動或不作為可能合理預見傷害你的鄰舍). After in depth debats between the judges, Lord Atkin gave the most famous speech in tort law: “….. But acts or omissions which any moral code would censure cannot in a practical world be treated so as to give a right to every person injured by them to demand relief. In this way rules of law arise which limit the range of complainants and the extent of their

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remedy. 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.” 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 which are called in question.” (一些受我的行動緊密和直接地影響的人，當我想到我的行動或不作為時，我是應該合 理地預計到他們會受影響) Simply put, Lord Atkin introduced the moral principle of “love thy neighbour” into the law1. He admitted that the law must take a stricter approach than morals, hence restricting the scope of “neighbour” to those whom the defendant should reasonably have foreseen would be affected by his act or omission.

More recent development—adding fair, just and reasonable ground The recent Caparo v. Dickman [1990] 2 AC 605 case, again by the House of Lords, addressed the issue of whether the auditors of a publicly listed company owed a duty of care to its shareholders. The House found no single foolproof test to determine the existence of such a duty. Lord Bridge said: “What emerges is that, in addition to the foreseeability of damage, necessary ingredients in any situation giving rise to a duty of care are that there should exist between the party owing the duty and the party to whom it is owned a relationship characterised by the law as one of ‘proximity’ or ‘neighbourhood’ and that the situation should be one in which the court considers it fair, just and reasonable that the law should impose a duty of a given scope on the one party for the benefit of the other.” This can be said to be a “three-stage” test, namely: --reasonable foresight of harm --a sufficient relationship of proximity or the neighbourhood principle --whether it is fair, just and reasonable Recent cases often involve accidents in restaurants. The following case shows that owners of restaurants owe a general duty of care to customers in ensuring that the access to the restaurant is safe: In Cham Cheung Sing v Yung Pak Wa [2007] 3 HKLRD 33, Yung owned a restaurant at premises consisting of the ground floor and a cock loft. Yung was not licensed to operate the cock loft as part of the restaurant but it was practice of the restaurant to serve customers in the cock loft if the ground floor was full. Cham and his family had dinner in 1 Christian morality prevailed in English society at the time. From the Bible: For the entire law is fulfilled in keeping this one command: “Love your neighbour as yourself.” (Galatians 5:14) “Teacher, which is the greatest commandment in the Law?” Jesus replied: “‘Love the Lord your God with all your heart and with all your soul and with all your mind.’ This is the first and greatest commandment. And the second is like it: ‘Love your neighbour as yourself.’ All the Law and the Prophets hang on these two commandments.” (Matthew 22:36-40) (from NIV) LAW B262F Law of Tort (1704)

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the cock loft. On leaving Cham slipped at the top of a metal staircase which adjoined the restaurant’s cock loft to the ground floor and was severely injured. The stairs were narrow, wet and strewn with food. The stairs were also obstructed by boxes. In considering the common duty of care the court explained that Yung owed a general duty of care to his customers using the staircase to ensure that it was safe as an access and egress to and from the cock loft. Yung should exercise a reasonable degree of care and vigilance and, in particular, ensure that the staircase was clean and uncluttered and place warning notices at both the bottom and the top of the stairs. It was held that Yung was liable to Cham under the Occupiers Liability Ordinance and in negligence. Y’s appeal in 2010 was dismissed by the Courts of Appeal. (b) Standard of care (謹慎標準)

(i) Even if there was a duty of care, if the defendant did not breach the standard of care required, he is not liable for negligence. The test to be applied by the courts to determine whether the defendant is in breach of the standard of care is the reasonable man’s test. The defendant is judged not by what he did but by what a reasonable man would have done in the same situation. If a defendant does not act as the reasonable man would have acted, he would be “at fault”. The court will consider factors like whether reasonable and practical precautions had been taken and the practices of the relevant industry or profession. In So Cho Yin v MTR Corp Ltd [2008] 4 HKLRD H5, So was injured while standing on an escalator in Kwai Fong MTR station which was operated by the MTR when the escalator suddenly stopped. The MTR’s records showed no other person were injured, that the escalator was maintained on a regular basis. A loose screw had become jammed in the lower landing of the escalator had triggered the braking device. Mr. So alleged that the MTR was negligent. It was held that, on the evidence, there was no basis for finding negligence by the MTR i.e., there is no evidence showing that the MTR had failed to ensure that the escalator was functioning properly and safely at the time of the accident. The MTR was not in breach of its duty of care and were not liable for her injuries.

(ii) The standard of care is varies accoding to the circumstances of the case or the status of the defendant as laid down in the case of Wells v. Cooper [1958] 2 All ER 527. In this case, the defendant, Mr Cooper fixed a new handle to his back door. The plaintiff, Mr Wells, a visiting tradesman was leaving Cooper's house by the back door. When he pulled the door strongly in order to shut it, the handle came off and Wells fell, injuring himself. Expert evidence was given that Cooper should have used longer screws when attaching the handle. The Court of Appeal held that the degree of care and skill required of a householder undertaking his own repairs was to be measured by reference to the degree of care and skill which a reasonably skilled amateur ( 業餘--非受過專業訓練 ) carpenter might be expected to apply to the work in question. The safety of their work (the work of a householder, not professional carpenter) was not to be judged by reference to standard of a professional carpenter working for reward since that would be too high a standard. Therefore, Mr Wells lost the case because the trial judge found that in this case, Mr Cooper satisfied the standard of a reasonably skilled amateur carpenter.

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How about the standard of Professionals? Generally, the more professional and specially trained the defendant, the higher the plaintiff’s expectations of his skills, and thus the higher the standard of care.

Although professionals have a high standard of care, they are not liable for every single mistake. Pure errors in judgment without negligence are exempt from liability. For instance, a patient wishes to commit suicide but fails and injures himself. He sues the hospital for not discovering his depression and preventing his suicide attempt. The hospital’s report declares that the symptoms of the patient’s depression were very hard to detect, even by an experienced medical professional. Therefore although the medical staff had a duty of care, they had not breached the standard of care, and thus were not liable. --If the professional has followed the applicable code of conduct, he will ordinarily be taken to have satisfied the standard of care. In Wharf Properties Ltd v. Eric Cumine Associates, Architects, Engineers & Surveyors [1991] 2 HKLR 6, a Hong Kong property developer firm appointed architects to design the rebuilding of Harbour City in Tsim Sha Tsui. The developers considered the architects had wrongly calculated the plot ratio, and failed to obtain government exemptions on building density. The developers sued the architects. The Privy Council held that as the defendants had followed the architects’ codes of conduct, they had not breached the standard of care. --Sometimes professionals may have to do more than merely complying with their code of conduct to satisfy the standard of care. On special occasions, the standard of care is even higher than the code. In Edward Wong Finance Co Ltd v. Johnson Stokes & Master [1984] 2 WLR 1, the plaintiff finance company granted a loan for a purchaser to purchase property. During the transaction, the purchase price (including the loan) would be transferred from the purchaser’s solicitors to the vendor’s (i.e. owner’s) solicitors. According to the solicitors’ practice then, the purchaser’s solicitors would transfer the cheque for the entire purchase price to the vendor’s solicitors in exchange for a written undertaking; after clearing the cheque, the vendor’s solicitors would transfer the sum to the vendor who would execute the deed of assignment for sending to the purchaser’s solicitors. Here, the vendor’s lawyers misappropriated the purchase money and fled, rendering the completion of the deal impossible. As the plaintiff had lost its loan, it instructed its own solicitors, Johnson Stokes & Master (the defendant), to recover the sum (the firm was at the same time also acting for the vendor). The Privy Council considered although the defendant firm followed the trade practice of the time in transferring the purchase money to the vendor’s solicitors (which is not tantamount to the vendor having secured the sum) was in breach of the standard of care. The defendant firm was held to be liable to the plaintiff. It was reasonably foreseeable that there was a risk of the vendor’s solicitors absconding with the purchase money. The code of conduct for Hong Kong solicitors was amended after this case.

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How about the Standard of care for players in sports activities? Normally for competitive sports activities, the standard of care is lower than theat expected in ordinary daily activities.The reasons are as follows:  Participants impliedly consent to greater risks; and  During heated competition ( 在如火如荼的比賽中), there is not enough time for well thought assessment of the situation, the standard of care should allow for errors of judgments by participants In the case of Dickson Poon v Kan Wai Yu and Hong Kong Jockey Club [2002] HCA 20262 of 1998, the parties were engaged in the professional sport of horse racing. The plaintiff is the owner of one of the horses in the competition. The plaintiff sued the defendants and one of them is Miss Kan Wai Yu. She is a competing rider and the plaintiff sued her for damages in negligence arising out of an accident in which the plaintiff’s horse was injured. On the face of evidence, the injury to the horse was due to the defendant’s careless riding. The Judge ruled that in sports activities, whether professional sports or not, it requires very exceptionally reckless actions to breach the standard of care. The standard of care is low compared to that for daily life.

For reference [The doctrine of presumed liability -For some accidents, if the only reasonable explanation is that the defendant was negligent, this is deemed “res ipsa loquitur” (“the facts speak for themselves”). In other words, the defendant is presumed to be liable. If the plaintiff relies on this doctrine, he does not shift the burden of proof onto the defendant. This merely creates a presumption that the defendant may rebut. The plaintiff must still discharge his duty to adduce evidence to the court. By way of example, if the plaintiff’s claim is based on the defendant’s presumed liability of causing a traffic accident, the defendant can adduce rebutting evidence to prove his own innocence or point to a third party as the cause. But even without producing such evidence, the defendant may not necessarily lose the case. In Ng Chun-pui v. Lee Cheun-tat [1988] 2 HKLR 425 (PC), the defendant’s car drove outside the marked line, injuring the plaintiff and damaging his car. The plaintiff did not adduce any oral evidence of the defendant’s negligence, only relying on the doctrine of res ipsa loquitur. The defendant rebutted the claim, arguing that he wanted to avoid a suddenly overtaking car and thus went outside the line. The judge in admitting the defendant’s evidence held that his behaviour was reasonable and, considering the plaintiff had adduced no evidence of negligence, he could not rely on res ipsa loquitur. Conversely, in The Kowloon Motor Bus Co (1933) Ltd v. Chung Tak Hi [2002] 1 HKLRD 21, the facts were similar except for the unreasonable behaviour of the defendant which meant that the plaintiff could rely on the doctrine of res ipsa loquitur and succeed in the claim.] For reference [The defendant’s criminal conviction

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Under Section 62 of the Evidence Ordinance (Chapter 8), if the defendant has been previously convicted of an offence, he shall be taken to have committed the offence unless the contrary is proved. For instance, in a traffic accident, if the defendant driver had already been convicted of careless driving for the incident, the plaintiff could adduce the conviction as evidence of a breach of duty without the need of adducing any further evidence.] (c) Causation (因果關係) Even if it is successfully proven that the defendant owes a duty of care to the plaintiff and has breached the standard of care, the plaintiff must still prove that the breach was the cause of his loss, i.e. there must have been causation. That is, the plaintiff must prove that the breaching of the duty of care of the defendant (i.e. the careless action of the defendant) is a direct cause to the injury of the plaintiff. The court will apply the “But for test” to determine the causation issue. The test asks “but for the negligence of the defendant, the plaintiff’s injury or damage would not have occurred.” If the answer is “yes”, a causal link between the defendant’s negligence and the plaintiff’s injury and damage is established. It is ruled in the case of Barnett v Chelsea & Kensington Hospital Management Committee [1969] 1 QB 428 that if a...