Law of Tort Tutorial Week 9-10 Question 3 Topic: Duty of Care Presented by Charles and David

Question ‘The requirement of reasonable foreseeability of some harm to the plaintiff is a necessary but not a sufficient test of the existence of a duty of care in an action for negligence’ Discuss this statement by reference to decide cases.

Reasonable Foreseeability Donoghue v Stevenson (1932) AC 562 Neighbour principle Reasonable care Avoid acts or omissions Close and direct relationship

Neighbour principle 1.Basis for liability in negligence 2.But it is too wide Defendant can foresee numerous consequences arising from his act or omission

Element of proximity Yim Tai-fai v Attorney General (1986) HKLR 873 Plaintiff boy of 19 Commit suicide by hanging himself in the cells of Police station during bailment His life was saved Sue Commissioner of police for negligence But fail

Two-stage test Anns v Merton London Borough Council (1978) 2 All ER 492 Plaintiffs were lessees of some flats Structural movements of the flats Due to non-complying with building plan Lessees sue the Council for negligence Lack of inspection Council was held liable

Two-stage test 1) Sufficient relationship of proximity or neighbourhood Yuen Kun-Yeu v Attorney general of HK (1987) 2 All ER 705 Foreseeability of harm is a necessary ingredient but it is not the only one. Otherwise there would be liability in negligence on the part of one who sees another about to walk over a cliff with his head in the air, and forbears to shout a warning

Two-stage Test 2)Conditions that ought to negative or to reduce or limit the scope of the duty of care Policy consideration To negative To limit To reduce Liability

Policy Consideration Hill v Chief Constable of West Yorkshire (1988) 2 All ER Plaintiff’s 20 year old daughter was raped murdered by a serial killer If the murderer was not apprehended reasonably foreseeable more victims >Defendant was held not liable

Anns Case was Overruled 1.Murphy v Brentwood DC (1990) 2 All ER White v Jones [1993] 3 All ER Peabody Donation Fund v Sir L Parkinson & Co Ltd (1984) All ER 529  Defective drainage system was overlooked by Council  The council was not liable in negligence  Defective drainage system was caused by the architect but not the council  Inspection is to protect health & welfare not financial interest

Three elements To consider three elements: Reasonable foreseeability of loss Existence of a relationship of close proximity Existence of just and reasonable circumstances

Relevant Case on ‘just and fair’ Mobile Oil HK Ltd & Anor v HK United Dockyards Ltd (1991) 2 HKLR 62 Defendants repaired a ship The ship was lying afloat in the defendant’s Yard Typhoon>remove the ship to the harbour Ship broke loose and drifted and caused damage to plaintiffs’ oil jetty terminal and installations Defendant was held liable Owe a duty of care to have adequate preparations against typhoon

Conclusion Other than the necessary element, foreseeability, we should also concern about 1) proximity (derived from foreseeability) 2) whether it is just and reasonable 3) fairness 4) policy consideration