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Tortious Liability

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

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  1. Tortious Liability By Kiril Ip

  2. Sources of liability • Statutes • E.g. Occupiers Liability Ordinance (Cap. 314) • Common law - negligence • Donoghue v Stevenson [1932]A.C. 562

  3. 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

  4. 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

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

  6. Who are my neighbour? • Reasonably foreseeable • Not too remote

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

  8. Yuen Kun Yeu v AG of HK 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?

  9. Arguments in favour of duty: • such loss is reasonably forseeable

  10. Held: - 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)

  11. Hill v Chief Constable Facts: Careless police investigation fails to catch serial murderer/rapist Q. Do police owe duty of care to plaintiff, whose daughter was murdered?

  12. Arguments in favour of duty: • another murder/rape was reasonably foreseeable

  13. Held: - 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

  14. JUSTICE AND REASONABLENESS

  15. Marc Rich 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?

  16. Arguments in favour of duty: • reasonable foreseeability of damage • proximity (defendant linked to plaintiffs)

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

  18. POLICY Hill v Chief Constable Facts: See above

  19. A further reason for no duty: 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

  20. DUTY OF CARE + 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)

  21. 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.

  22. Egg shell rule • 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.

  23. What if breach of duty? • Liable to pay damages • Protection • Public liability insurance

  24. Do whatever you like? • No! • Note the exceptions in insurance policies

  25. General exceptions • 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

  26. General exceptions continued • Pollution • Radiation • Due to aircraft, elevator, etc etc

  27. What if an accident? • Damage control • Collect favourable evidence • Report to insurance • Get a lawyer! • Thank you

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