LAW B262F BUSINESS LAW I

NOTES ON

UNIT 4
LAW OF TORT

Lecturers: Lana Tang (OUHK)

The Open University of Hong Kong

LAW B262F Law of Tort (1504) P. 1 of 21

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 (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 anothers property or the harming of ones 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 plaintiffs 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.

LAW B262F Law of Tort (1504) P. 2 of 21

(A) Negligence ()

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 plaintiffs loss caused by the defendants 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 ()
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? (?)
The answer can be found in the decision of the House of Lords in Donoghue v. Stevenson
[1932] AC 562. The plaintiffs 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

)
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 (
).

There were five Law Lords, three gave judgment in favour of the plaintiff, and two in
favour of the defendant. Lord Atkin mentioned in his judgment for the plaintiff that the

LAW B262F Law of Tort (1504) P. 3 of 21

 common law had no precedent authorities on a general duty of care. Therefore, judges in
the past considered assigning varying liabilities by reference to each defendants
occupation, e.g. landlords, tenants, vendors, customers, etc., whose duties differed due
to their distinct roles. Lord Atkin disagreed, and he then gave the most famous speech in
tort law:
At present I content myself with pointing out that in English law there must be, and is,
some general conception or relations giving rise to a duty of care, of which the particular
cases found in the books are but instances. The liability for negligence, whether you style
it such or treat it as in other systems as a species of culpa, is no doubt based upon a
general public sentiment of moral wrongdoing for which the offender must pay. 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 remedy. The rule
that you are to love your neighbour becomes in law, you must not injure your neighbour;
and the lawyers 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.
(
)

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.

Further development (for reference)

The scope of neighbour has continuously been broadened after Donoghue v. Stevenson.
In the 1977 decision of the House of Lords in Anns v. Merton Borough Council [1977] 2
All ER 492, Lord Wilberforce declared the Donoghue v. Stevenson precedent to be
mature and that we no longer needed to rely on cases with similar facts to determine the
existence of a duty of care. Instead, we would rely on the principles concluded below:

--Was there a sufficient relationship of proximity between the two parties that would
lead the defendant to reasonably foresee that his carelessness would harm the plaintiff?
If so, there is a prima facie duty of care.
--If there was a prima facie duty of care, were there any factors that would eliminate this
duty, or restrict its scope or the number of protected persons, or reduce the amount of
compensation?

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 (1504) P. 4 of 21

 In Anns v. Merton Borough Council, the plaintiffs house suffered from cracks in the
wall due to poor foundations work. The builder was negligent but had no money to pay
damages. The plaintiff thus sued the defendant council, as under local bylaws the
council had the power to inspect the finished foundations before the builder could
continue with the rest of the building work. However, the defendant counsel did not use
that power.

Applying the above two principles to the facts of the case, the court found a duty of care
on the part of the council towards the plaintiff, as the council should have reasonably
considered at the time whether to use their power of inspection.

The above two-stage test was at a time treated as a definition by courts of first
instance with the result of significantly expanding the scope of the duty of care and thus
imposing previously non-existent duties on parties in a possibly unfair manner. Quite a
few subsequent judgments criticised this approach, for example in the decision of the
Privy Council hearing an appeal from Hong Kong (Yuen Kun Yeu v. Attorney General
of Hong Kong [1988] AC 175 (PC)) where a deposit-taking company went bankrupt
and customers sued the government for inadequate supervision2. Although it looks
similar to Anns v. Merton Borough Council, the Privy Council was of the view that the
two-stage test in Anns v. Merton Borough Council should not be overemphasised. In
particular, one should not focus on reasonable foresight at the expense of sufficient
relationship of proximity. Otherwise, unreasonable results would occur: if a person
misstep and fell over a cliff, all those bystanders who did not warn him of the danger
would be liable. The Privy Council believed that the first stage was not generally
applicable, and the second stage was only applicable occasionally.

Later Murphy v. Brentwood District Council [1991] 1 AC 398 also had similar facts to
Anns v. Merton Borough Council, but the seven Law Lords who heard the case in the
House of Lords departed from the Anns two-stage test. For hundreds of years the
House of Lords treated its own decisions as binding, until 1966 when it was declared
that it could depart from precedent under special circumstances such as that of Murphy
v. Brentwood District Council.

More recent developmentadding 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.

2
The defendant was the Commissioner for Deposit-Taking Companies and was represented by the Attorney
General.

LAW B262F Law of Tort (1504) P. 5 of 21

 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 the cock loft. On
leaving Cham slipped at the top of a metal staircase which adjoined the restaurants 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. Ys appeal in 2010 was dismissed by the Courts of Appeal.

(b) Standard of care ()

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 duty of care is the reasonable mans 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 precaustions 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 MTRs 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. 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., that it 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.
There are no hard and fast rules, but below are a few principles to consider3:

--The standard of care is sometimes dependent on the circumstances of the case or the
status of the defendant.

Take the example of a person who tries to fix the broken handle of his front door

3
As laid out in Wells v. Copper [1958] 2 All ER 527.

LAW B262F Law of Tort (1504) P. 6 of 21

 himself. He repairs it poorly and the plaintiff injures himself upon using the handle.
According to the standard of a professional repairman, the defendant has definitely
breached the standard of care. However, he is not a professional and has acted
reasonably in repairing the door himself; many amateurs like to fix little things
around the house themselves. Hence, by the standard of care of an amateur he was
not negligent. Consequently, a reasonable standard of care will differ depending on
different circumstances. Generally, the more professional and specially trained the
defendant, the higher the plaintiffs 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 hospitals report declares that the symptoms of the patients 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 purchasers solicitors to the vendors (i.e. owners) solicitors. According to
the solicitors practice then, the purchasers solicitors would transfer the cheque for
the entire purchase price to the vendors solicitors in exchange for a written
undertaking; after clearing the cheque, the vendors solicitors would transfer the
sum to the vendor who would execute the deed of assignment for sending to the
purchasers solicitors. Here, the vendors 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 vendors
solicitors (which is not tantamount to the vendor having secured the sum) was in

LAW B262F Law of Tort (1504) P. 7 of 21

 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 vendors
solicitors absconding with the purchase money. The code of conduct for Hong Kong
solicitors was amended after this case.

--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 plaintiffs claim is based on the defendants 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 defendants car drove
outside the marked line, injuring the plaintiff and damaging his car. The plaintiff did
not adduce any oral evidence of the defendants 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 defendants 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.

--The defendants criminal conviction

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 ()
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. In many cases, causation is readily
apparent, but at times causation will be severed by intervening factors. If a driver injures
the plaintiffs leg, but the doctors negligent treatment leaves the plaintiff paralysed, there
is causation between his leg injury and the driver, but not for the paralysis as it was
caused by an intervening factor (medical negligence). Thus, the plaintiff ought to pursue
separate claims against the driver and the doctor.
LAW B262F Law of Tort (1504) P. 8 of 21
 The But for test can be applied here to determine the causation issue. The test asks
but for the negligence of the defendant, the plaintiffs injury or damage would not have
occurred. If the answer is yes, a causal link between the defendants negligence and
the plaintiffs injury and damage is established.
In Yuen Tat-cheong v. Urban Council [1987] HKLR 723, the judge held that as the illegal
hawker was not controlled by the Hawker Control Team and the Teams actions in that
particular case could not conceivably be causing the plaintiffs injury, the hawkers
behaviour was the intervening factor and the Team was not liable. It is also ruled in the
case of Barnett v Chelsea & Kensington Hospital Management Committee [1969] 1 QB
428 that if any injury or damage was not resulted from the defendants negligence, the
defendant will not be liable.
Facts of Barnett v Chelsea & Kensington Hospital Management Committee [1969] 1 QB
428
At 5 am, the plaintiffs husband, a watchman, shared some tea with two other watchmen.
After that, all three men started to vomit and that persisted until 8 am. They went to the
casualty department of St. Steven Hospital, but they were not seen by any doctor. The
doctor on duty was himself sick. They were advised to go home and call in their own
doctors. The plaintiffs husband died at 2 pm from arsenic poisoning. It was found that
the plaintiffs husband suffered from arsenic poisoning and it was fatal. The cause to his
death was not the negligence of the hospital. The court held that the plaintiff failed to
establish that the death of the deceased resulted from the defendants negligence.

If the plaintiffs injuries were caused by more than one person at once, he may claim
against them simultaneously. Under the Civil Liability (Contribution) Ordinance (Chapter
377), each will be liable, the proportion of which will be determined by the judge.
In Yuen Tat-cheong v. Urban Council [1987] HKLR 723, the judge held that as the illegal
hawker was not controlled by the Hawker Control Team and the Teams actions in that
particular case could not conceivably be causing the plaintiffs injury, the hawkers
behaviour was the intervening factor and the Team was not liable. However, the court
may come to an opposite decision where the situation is different.

(d) Remoteness ()
After the plaintiff has proven the defendant owed a duty of care, had breached the
standard of care, and there was causation related to the loss, if the loss is too remote, the
plaintiff will still be unable to claim damages. This is similar to what we have discussed
previously that the loss to be compensated cannot be too remote, as they are both based
on reasonable foreseeability.

What is reasonable foreseeability ()? In contract law, reasonable foreseeability

refers to the losses that could reasonably be foreseen by the contractual parties arising as
a result of any breach of contract. In tort law, the principle stems from whether the
negligent defendant could reasonably foresee that his negligence would cause losses.
Consider the following examples:
#Damage to property
If the defendant causes damage to property due to his negligence, he can reasonably
foresee that the plaintiff would have to repair (in traffic accidents where the damage is
light, it can be repaired) or exchange (if the damage is beyond repair) his property, or
suffer loss as a result of being unable to use said property.
#Harm to the person

LAW B262F Law of Tort (1504) P. 9 of 21

 If the defendants negligence causes bodily harm to the plaintiff, he can reasonably
foresee the plaintiffs injuries as well as his suffering, medical costs and loss of earnings
(both during recovery and in future, e.g. unable to resume previous job due to a
disability or only able to undertake lower paid work) and so on

Furthermore, if the plaintiffs type of loss was reasonably foreseeable by the defendant,
the defendant must be liable regardless of the extent of damage. For instance, if the
defendant could reasonably foresee his negligence (carelessly disposing of a cigarette)
would cause fire and cause loss, i.e. this type of loss was foreseeable, no matter what the
extent of damage (e.g. it causes either one or ten houses to burn down), he is wholly
liable.

Equally, if the plaintiffs type of loss is not reasonably foreseeable, the defendant is not
liable. In Overseas Tankship (UK) Ltd v. Morts Dock & Engineering Co Ltd [1961] 1
AER 404, a ship docked in Australia leaked crude oil which floated a few hundred miles
to another dock. Normally, floating oil on the seas surface is not flammable. However, a
dockyard worker who was welding lit up cotton floating on the sea which in turn ignited
the oil, burning the dock. The court held that the ship-owner could not reasonably foresee
the floating oil would catch fire, and so was not liable for the fire damage to the dock.

Nonetheless, the principle above has an exception: if the plaintiffs body is especially
weak, leading him to suffer more serious injury than a normal person, the defendant must
still compensate for all unforeseeable harm. This exception is the thin skull rule,
meaning that if you negligently hit a person who happens to have a thin skull and thus
cause him greater harm than to a normal person, you are liable for the whole extent.

In Tsang Mei Ying v Lam Pak Chin (2000) CA, Tsangs husband, X, was killed in an
accident for which Lam was liable. Before the accident Xs mother, M, looked after their
son. After the accident M suffered from depression and could not look after him. Tsang
gave up her job to look after him. Tsang claimed damages for, among other things, her
loss of earnings. It was held that Ms depression caused by Xs death was not sufficiently
proximate to the negligence and was not sufficiently reasonably foreseeable to be the
subject matter of a claim by T or M herself.

This is another example that a claim for damages failed for void of reasonable
foreseeability.

(2) Vicarious liability ()

In some special situations, where the defendant is not personally at fault, he/she is still
liable for others wrongs, it is known as vicarious liability. For example, in a
relationship of agency, the principal must bear responsibility for the agent, or when the
employee is negligent, the employer is vicariously liable.

In vicarious liability the defendant is liable to the plaintiff for the fault of a third partys
negligence; liability is transferred from one person to another (). This is not to say
that the plaintiff will successfully claim compensation as long as he has suffered loss.
The plaintiff must still follow the principles of the law of negligence to prove that the
third party (e.g. an employee) was negligent before he is able to sue the defendant (e.g.

LAW B262F Law of Tort (1504) P. 10 of 21

 an employer).

(3) Burden of proof ()

Contract and tort are the same in that the burden of proof falls on the one who asserts. If
the plaintiff asserts negligence on the part of the defendant then he bears the burden of
proving so. Conversely, if the defendant asserts the plaintiff was contributorily negligent,
or there was volenti non fit injuria, or relies on an exemption clause, then the onus of
proof falls on the defendant.

The burden of proof follows the general civil standard of proof, which is on the balance
of probabilities.

(4) Defences ()
If the plaintiff has proven the aforementioned duty of care, standard of care, causation and
remoteness, thus determining that the defendant was negligent, you must consider one last
question; which is whether the defendant has any defences. These include contributory
negligence, exemption clauses, volenti non fit injuria and burden of proof. They are
briefly outlined below:

(a) Contributory negligence of the plaintiff

Although the defendant is negligent, the plaintiff may also be negligent for breaching the
duty to minimise the extent of damage to oneself. The court will weigh the corresponding
liabilities of the plaintiff and defendant to decide the plaintiffs share of responsibility
according to the degree of the plaintiff's negligence. This doctrine is known as
contributory negligence.
The proportion of the plaintiffs contributory negligence varies and depends on the facts
of the case. In Au Cheung v. Choi Lai-fan [1979] HKLR 543, a pedestrian crossed a road
with markings at the traffic lights. A car hit him while the light for vehicles was green.
The court held that the green light only indicated that cars could drive through, but did
not mean that drivers had no obligation to be alert and drive carefully. As a result, the
pedestrian was only 20% contributorily negligent.

In the ancient common law systems, even the slightest measure of contributory
negligence on the plaintiffs part was enough to bar any claims against the defendant.
This led to many unjust situations. The later common law developed a series of
exceptional principles to help the plaintiff; however, they are ultimately not as just as a
direct apportioning of liability. Since 1945, English legislation has changed this situation
by enacting written laws to allow the courts to apportion liability. A similar Hong Kong
provision is the Law Amendment and Reform (Consolidation) Ordinance (Chapter 23)
section 21(1), as below:

(1) Where any person suffers damage as the result partly of his own fault and partly of
the fault of any other person or persons, a claim in respect of that damage shall not be
defeated by reason of the fault of the person suffering the damage, but the damages
recoverable in respect thereof shall be reduced to such extent as the court thinks just and
equitable having regard to the claimant's share in the responsibility for the damage:
Provided that
(a) this subsection shall not operate to defeat any defence arising under a contract;
(b) where any contract or enactment providing for the limitation of liability is applicable

LAW B262F Law of Tort (1504) P. 11 of 21

 to the claim, the amount of damages recoverable by the claimant by virtue of this
subsection shall not exceed the maximum limit so applicable.
Contributory negligence is not restricted to cases of road accidents and may be claimed
in any negilgence case (Mak Woon King v Wong Chiu [2000] 2 HKLDR 380 516).

(b) Exemption clauses ()

Exemption clauses are provisions used in contracts or statements to limit or exclude ones
liability. Whether these clauses are valid in tort are dependent on the type of harm
suffered; see section 7 of Control of Exemption Clause Ordinance (Chapter 71) discussed
in Unit 2. Death or injury cannot be excluded. 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.

(c) Volenti non fit injuria

No injury is done to one who consents, and so a plaintiff who is found to have
accepted the risk of injury can have no claim for damages: volenti non fit injuria.
Sometimes referred to as voluntary assumption of risk, this defence is a complete
defence, in the sense that if proved, the plaintiff will recover no damages, probably for
that reason more than any other, the defence is rarely successful. The judicial tendency
favours apportionment, and volenti does not permit apportionment. Where the plaintiff is
at fault, even seriously at fault, in causing his/her injuries, the court will usually prefer to
characterize the conduct as contributory negligence.
The defence of volenti is premised on the idea of consent or waiver, normally an implied
consent or waiver. It requires proof that the plaintiff, with knowledge of risks to his/her
safety created by the defendants conduct, and acting voluntarily, agrees to take the risk
and forego rights to compensation should the risk eventuate. The court will consider the
nature of the plaintiffs conduct in drawing the necessary inferences: in the words of
Lord Asquith in Dann v Hamilton [1939] 1 KB 509, was it like engaging in an
intrinsically and obviously dangerous occupation, intermeddling with an unexploded
bomb or walking on the edge of an unfenced cliff?
The waiver of rights can be done expressly, as in writing, or more commonly, impliedly,
by conduct. Where the waiver or agreement is express, the defence will be somewhat
easier to establish, although even here, there are difficulties, including, importantly, some
legislative restrictions on the availability of the defence and section 12 of the Motor
Vehicles Insurance (Third Party Risks) Ordinance (Cap 272).

(5) Remedies ()

For law of contract, common contractual remedies include damages, specific

performance and injunctions are discussed. Remedies in tort are very similar, the most
common being damages e.g. for trespass and conversion, and negligence. Injunction and
specific performance often appear in nuisance and defamation cases. Several common
remedies are discussed below.

(a) Damages ()
Unlike contract law, in tort the purpose of damages is to put the plaintiff back into the

LAW B262F Law of Tort (1504) P. 12 of 21

 position he would have been in had the tort not occurred, e.g. if the plaintiffs earning
capacity was reduced by a traffic accident, the defendant must compensate the plaintiff
for the loss of earnings. This principle aims to reasonably calculate the true loss suffered
by the plaintiff, and also indicates that the law does not approve of tortious behaviour.

Tortious behaviour comes in many forms, as does methods of compensation; general

damages, special damages, nominal damages, aggravated damages and exemplary
damages are examples.

(i) General damages

In normal circumstances, the harm that the plaintiff suffered must be reasonably
calculated so as to put the plaintiff back in the position he would have been had the tort
not taken place. General damages may include pain, suffering and so one. Judges follow
case law in deciding the amount of compensation.

(ii) Special damages

Special damages must be expressly pleaded by the plaintiff, and the specific amount must
be proven by him. Such damages include medical expenses, travel expenses, cost of
special foods, etc. This type of damages depends on the particular facts of the case, as
each case is different (e.g. differing medical expenses). Past case law is less relevant here;
the judge must consider whether the plaintiffs evidence is sufficient.

(b) Injunction
An injunction is an equitable remedy, often seen in nuisance and defamation; the reason
being money is insufficient to compensate the plaintiffs harm. In negligence cases, the
courts will very rarely order an injunction, as negligence is neither intentional nor a
continuous action.

LAW B262F Law of Tort (1504) P. 13 of 21

(B) Negligent misstatement ()
Most of the negligence acts discussed above involve the acts (or omissions) of the
defendant causing property loss or bodily injury to the plaintiff. What if the plaintiffs
loss was not in property or bodily injury, but was an economic (i.e. purely monetary,
excluding the above two types) loss caused by reliance on the defendants negligent
misstatement? Can there be a claim?
Recovery in tort for negligence in general is based on Donoghue v Stevenson (1932)
which requires the proof of the following four elements:
--the existence of a duty to take care to avoid acts or omission which could reasonably be
foreseen as injuring a neighbour
--the breach of the above duty
--the damages to the victim is caused by the above breach; and
--the damages or losses are reasonably foreseeable as consequential to the above breach

In Hedley Byrne & Co., Ltd v Heller & Partners Ltd. (1963) the House of Lords said that
liability for careless statement would result where it was
---reasonable for the person to whom the statement was made to rely on it and that
person did rely on it; and
---that the person making the statement was a professional person in the ordinary course
of business.
In the aforesaid case the professional giving the advice had a disclaimer of liability
clause in the contract therefore liability was avoided. After Hedley Byrne, the recipient
of negligent advice can recover his or her pure economic losses from the adviser in the
absence of any contractual relationship, provided that there is a special relationship
between the adviser and the recipient of the advice. Over the years, the courts have
adopted different approaches in applying these requirements. The Hedley Byrnes case
was followed in the Hong Kong case of Baron v Hartford Fire Insurance Co. & Others
[1998] 1 HKLRD 411. It was held in the case that in the ordinary course of business
including professional affairs, a person seeks advice or information from another, who is
not under any contractual or fiduciary obligation to give it, in circumstances in which a
reasonable man so asked will know that he is being trusted or that his skill or judgment is
being relied on and such person, without clearly disclaiming responsibility for it,
proceeds to give the advice or information sought, he accepts a legal duty to exercise
such care as the circumstances require in making the reply. For a failure to exercise that
care, an action in negligence will lie, if foreseeable loss or damage is resulted. The
recipient must establish that he had relied on the advice, opinion or information and
suffered loss. The adviser would be liable if he knew the purpose of inquiry and that
the plaintiff would rely and act on his advice.
However, the mere giving of negligent advice or information does not create liability on
the person giving such advice even though it is foreseeable that such advice or
information may result in financial loss to others. The plaintiff must establish that there
exists a special relationship between him or her and the other party. However, as to
what bring into existence of a special relationship is a subject of controversy. In Mutual
Life & Citizens Assurance Co. v Evatt [1971] 1 All ER 150, it was held that a special
relationship exists where the person giving advice is a professional adviser. However, a
special relationship only exists where the advice is given in a professional context but not
in social context. In the case of Chaudhry v Prabhakar [1998] 3 All ER 718, a friend
(the Defendant) found a car for another (the Plaintiff) who relied on the knowledge of the
Defendant. The court was of the opinion that it was not a purely social relationship.
In recent cases, the courts have also relied on the test of proximity and voluntary
LAW B262F Law of Tort (1504) P. 14 of 21
 assumption of responsibility in order to determine whether the the Hedley Byrne duty
exists or not. The test of proximity was referred to in Caparo Industries Plc v Dickman
(1990). The House of Lords said that liability for economic loss due to negligent
misstatement is limited to cases:
--where the statement or advice had been given to a known recipient;
--for a specific purpose of which the maker was aware; and
--where the recipient had relied on the statement or advice in acting to his detriment
This case has been followed in the Hong Kong case of Yue Xiu Finance Co., Ltd. &
Another v Dermot Agnew & Others [1995] 2 HKLR 186.

Negligent misstatements look like misrepresentations, but the two are distinct. For
misrepresentations, the representing party makes a false statement before or during the
formation of the contract to induce the other party to contact, causing that party to suffer
a loss. As for negligent misstatements, there may be a contractual relationship between
the plaintiff and defendant (e.g. a doctor-patient relationship) or there may not. If there is
a contractual relationship, the plaintiff can claim simultaneously in contract and tort; if
not, then only in tort.

(1) Special relationship

Another important concept related to negligent misstatement is the special relationship.
As statements are by nature easily transmitted, the application of the neighbour principle
differs from in negligence where the effect is normally limited to those in the immediate
vicinity4. In Hedley Byrne & Co Ltd v. Heller & Partners Ltd [1964] AC 465, the plaintiff
was an advertising company that promised to pay the upfront cost of advertising for a
client. In other words, the plaintiff company would first pay the cost for the client and
then request the funds; as this arrangement created a risk for the plaintiff, they would first
have their bank (i.e. the defendant here) inquire as to the status of the clients financial
affairs. The defendant was careless when reading information and wrongly reported a
favourable state of affairs for the client. This report was made free and bore the words
without responsibility on it. The plaintiff relied on said report and suffered loss. The
House of Lords held that the defendant owed a duty of care. To sum up subsequent House
of Lords jurisprudence, if the defendant (the representor) gives advice to the plaintiff (the
representee), the plaintiff can establish the existence of a special relationship by
proving four criteria:
--When the defendant gave advice, he was aware (or it was inferred) of the purpose of the
advice;
--The defendant knew (or it was inferred) that his advice would be known to the plaintiff
and be used to fulfil the purpose;
--The defendant knew (or it was inferred) that the plaintiff would rely on this advice;
--The plaintiff did rely on the advice and suffered loss as a result.

In Hedley Byrne & Co Ltd v. Heller & Partners Ltd, the case fulfilled the above criteria:
--The defendant knew the purpose of his advice was to provide the financial status of a
client;
--The defendant knew that the financial report would be made known to, and relied upon
by, the plaintiff for the aforesaid purpose;
--The defendant could at least infer that the plaintiff would rely on the report in acting;
--The plaintiff did rely and act on the report to his detriment.

4
See Caparo v. Dickman [1990] 2 AC 605, especially Lord Olivers judgment.

LAW B262F Law of Tort (1504) P. 15 of 21

 However, even though all criteria above were satisfied, as the defendant had clearly
declared its exemption from liability (the report bearing the words without
responsibility), there was no duty of care owed.

Based on Hedley Byrne & Co Ltd v. Heller & Partners Ltd, the vast majority of
commercial and consultative documents now carry the words without any responsibility
or liability whatsoever. Of course, these exemption clauses are ineffective in certain
situations, such as legal advice from a solicitor to a client, subject to certain exceptions.

(2) Auditors
As for auditors, after Hedley Byrne & Co Ltd v. Heller & Partners Ltd, their liability for
negligence was repeatedly expanded by many judgments until Caparo v. Dickman [1990]
2 AC 605, where the House of Lords refused to expand it any further. In this case, a
limited companys shareholder relied on an auditors report and bought many shares in
preparation for a buyout. It was only after the buyout that the plaintiff realised a mistake
in the report, after which he claimed against the auditor for his negligence. The House of
Lords held that the auditor under company law only owed a duty of care to his own
company, and not to shareholders, the general public or potential investors. The House of
Lords ruled that only after the four criteria above are satisfied could a special
relationship arise.
There are two further necessary criteria for auditors to owe a duty of care to the plaintiff:
--The auditor could reasonably foresee that the plaintiff would sustain a loss after relying
on the advice;
--It would be fair, just and reasonable to impose a duty in the circumstances. .
According to Caparo v. Dickman [1990] 2 AC 605, auditors only owe a duty of care to their
own company and not to shareholders, the general public or potential investors.

LAW B262F Law of Tort (1504) P. 16 of 21

(C) Defamation (for reference)
Freedom of speech is one that is essential to our legal system, which is set against
defamation. The law has strict provisions on defamation to prevent anyone (especially
public figures) abusing it to quash freedom of speech. The Hong Kong Court of Final
Appeal has continually reaffirmed that the common law should fully and generously
support the right of fair comment on matters of public interest (as per Chief Justice in
the Court of Final Appeal in Albert Cheng v. Tse Wai Chun Paul [2000] 4 HKC 1).

(1) Meaning of defamation

Defamation is the making of a false statement that harms the plaintiffs reputation, with
the statement being made to a third party by the defendant. What constitutes harm to
ones reputation? The traditional test is: would the words tend to lower the Plaintiff in
the estimation of right-thinking members of society generally? Pure mockery does not
count as defamation. In Berkoff v. Burchill [1996] 4 All ER 1008, it was explained that
there was a very fine distinction between mockery and defamation. In this case, an actor
was said to be physically unattractive. Amongst the three appeal court judges, two found
in favour of defamation, but the third did not. Since the plaintiff was an actor, as well as a
director and author, he did not solely rely on looks alone, and as he did not in his pleading
say that he primarily acted in romantic roles (it appears as if the judge believes romantic
roles rely on ones looks) and as the defendant had not criticised his acting skills, it was
only a case of mockery and not defamation.

The examples below further illustrate the definition of defamation.

(a) Eastweek, a magazine, reported that Professor Steven Cheung frequently cut classes
and refused to appear in photos with students; this was defamation (Cheung Ng
Sheong Steven v. Eastweek Publisher Ltd [1995] 3 HKC 601).
(b) A District Councillor stated that his opponent Mr Chan Chook Tim was convicted
last year and was still bound over to be of good behaviour; this was defamation
(Chan Chook Tim v. Wong Kwok Hung [2004] 1 HKC 18). However, note that as
this was an oral statement, it did not constitute libel. The defendant only said
bound over to be of good behaviour, but did not refer a crime punishable by
imprisonment (see Types of defamation below).
(c) News reporting that the police was investigating a person is not defamation
(although this may lead to associated thoughts: Lewis v. Daily Telegraph [1963] 2
All ER 151).

Even if the use of words by the defendant did not clearly show defamation, the charge
may still exist if there was indirect implication (known as innuendo).

Individuals, companies, organisations etc can all be plaintiffs, but government

organisations cannot. The English House of Lords declared in one case that any
government organisation should be open to public criticism without restriction. It would
affect freedom of speech if government organisations were allowed to bring defamation
claims. However, universities are not government organisations and so in Hong Kong
Polytechnic University v. Next Magazine Publishing Ltd (1997) 7 HKPLR 286, the court
allowed the university to be plaintiff of the claim.

(2) Types of defamation

Defamation can be divided into slander and libel. The former is oral defamation and the

LAW B262F Law of Tort (1504) P. 17 of 21

 latter is written defamation, including oral statements made on television or radio 5. For
libel, the plaintiff does not have to show actual harm, but does for slander. However, in
the situations below, the plaintiff does not have to show actual harm, even for oral
statements, to have a claim: (1) where the plaintiff is accused of involving in a crime
punishable by imprisonment; (2) where the plaintiff is alleged to be suffering from a
loathsome disease, such as leprosy, venereal disease or AIDS; (3) where the plaintiff is
accused of being unfit for an office; and (4) where a woman (not man) is accused of
unchastity, adultery or being rape.

(3) Defences
If any of the defences below are established, the defendant is not liable regardless of
whether there was indeed defamation.

(i) Justification
If the substance is true, the defendant is not liable. He does not have to prove that the
statement was completely true, only that it was true in substance. For instance if someone
commits a crime and is imprisoned for two weeks and a news report on this is correct in
substance but misstates his period of imprisonment as three months, it is not defamation
as the main substance is that he was imprisoned which was reported correctly6. Section 26
of the Defamation Ordinance has a similar rule:

In an action for libel or slander in respect of words containing 2 or more distinct charges
against the plaintiff, a defence of justification shall not fail by reason only that the truth of
every charge is not proved if the words not proved to be true do not materially injure the
plaintiff's reputation having regard to the truth of the remaining charges.

(ii) Privilege
The law encourages free discussion in certain situations, even as far as discussions
involving elements of defamation. These situations include all statements made by judges,
lawyers, jurors, and witnesses during court proceedings, any newspaper or broadcast
statements of open court hearings Legislative Council debates, etc. In the common law
tradition7, husband and wife were one entity, hence privilege includes communication
between the two. This is known as absolute privilege.

If the defendant has a duty (e.g. legal, moral or social) to make a statement on behalf on
himself or others, and does so honestly, this is known as qualified privilege. If citizens did
not enjoy this privilege when reporting to the police, the content of the report could
possibly be seen as defamation (e.g. claiming someone was committing a robbery).

(iii) Fair comment

Fair comment is the defence most commonly used by the media. If the discussion is in the
public interest and it was just, this is a valid defence. In Next Magazine Publishing Ltd v.
Ma Ching Fat [2003] 1 HKC 579, Next Magazine implied that Ma Ching Fat from the
Oriental Press was involved in improper stock trading Ma Ching Fat sued and Next
Magazine raised the fair comment defence as listed companies and public media were

5
Article 22, Defamation Ordinance (Chapter 21).
6
Alexander v. North Eastern Railways (1865) B&S 340.
7
Christians find the source of this common law rule from the Bible: For this reason a man will leave his father
and mother and be united to his wife, and they will become one flesh. (Genesis 2:24; NIV translation) Others
may think that the rule is evidence of unequal social status of the two genders in the old days.

LAW B262F Law of Tort (1504) P. 18 of 21

 involved.

The Court of Final Appeal in Albert Cheng v. Tse Wai Chun Paul [2000] 4 HKC 1 pointed
out that fair comment and qualified privilege were two completely different defences. An
easy way to distinguish the two is to see when they would fail. If the defendant relies on
the fair comment defence, then if he does not believe his own statements, the defence will
fail. On the other hand, if the defence of qualified privilege is used, it will fail if the
defendant was exploiting the occasion for other purposes. Thus, to have a defence of fair
comment five conditions must be satisfied: (1) it was on a matter of public interest; (2) it
was recognisable as a comment and not an imputation of fact; (3) it is based on fact which
were true or protected by absolute privilege; (4) the comment was explicitly or implicitly
indicated at least in general terms what were the facts on which the comment was made;
and (5) such comments would have been made by an honest person.

(4) Remedies for defamation

In defamation proceedings, the court may in addition to the remedies above also order the
defendant to apologise.
The thin skull rule mentioned above in negligence also applies to defamation. In Chu
Siu Kuk Yuen v. Apple Daily Ltd [2002] 1 HKLRD 1, the Apple Daily newspaper
reported incorrectly about the plaintiffs activities. Although it immediately published an
apology the following day, the pregnant plaintiff thus suffered great distress and gave
birth prematurely to a baby that was in a critical condition for some time. The judge held
that the thin skull rule was applicable and that damages were payable for psychiatric
harm and premature birth.

LAW B262F Law of Tort (1504) P. 19 of 21

(D) Limitation of action
The victim of a tort can pursue a claim to obtain a remedy, but as in contract law there is a
limitation period for actions. Section 27 of the Limitation Ordinance (Chapter 347) states
that the limitation period for negligence or nuisance causing personal injury is three years and
section 4(1) provides that for other general torts the period is six years. Both times are
calculated from the date when the cause of action first arose (i.e. the date of the tort) or when
the tort first came to the plaintiffs knowledge. The earliest date when the plaintiff was made
aware is when he was aware of all of the following:
1. He suffered significant harm (not meaning serious harm but not insignificant harm);
and
2. This harm was wholly or partially caused by the defendants tortious acts; and
3. The defendants identity (not the defendants background but only who to bring a claim
4. If the plaintiff considered that the tort was committed by a third party, when the plaintiff
knew of the third partys identity and other facts necessary to claim against him.

Glossary
causation
contributory negligence
damages (aggravated damages , exemplary damages ,
nominal damages )
defamation
duty of care
fair comment
negligence
nuisance
strict liability
tort
vicarious liability

Reference
Below are the materials that the editors of this Unit consulted.
Clark & Lindsell on Torts (2005) 19th ed., London: Sweet & Maxwell.
Charlesworth & Percy on Negligence (2002) 10th ed., London: Sweet & Maxwell.
Jackson & Powell on Professional Negligence (1997) 4th ed., London: Sweet & Maxwell.

[End of Notes]

LAW B262F Law of Tort (1504) P. 20 of 21