MATERIALS AND READING LIST:

NEGLIGENCE

CLASS 5

NEGLIGENCE: DUTY OF CARE; OMISSION

CORE READINGS:

 W. E. PEEL & J. GOUDKAMP, WINFIELD & JOLOWICZ ON TORT,

(CHAPTER 5)
 DR. R. K. BANGIA, LAW OF TORTS, (CHAPTER 11)

5.1 INTRODUCTION TO NEGLIGENCE

5.1.1 Donoghue v Stevenson: The neighbour principle

 Donoghue v Stevenson [1932] AC 562

5.1.2 Caparo three-fold test

 Caparo Industries plc v Dickman [1990] 2 AC 605

5.1.3 Requirements for imposing liability in negligence since Caparo

Liability in negligence is imposed when the following three factors coalesce:

(1) the plaintiff’s injury or damage was foreseeable by the defendant and that
there was proximity of relationship between the plaintiff and the defendant;
(2) the situation was such that it would be fair, just and reasonable to impose
liability on the defendant; and
(3) there were no policy considerations against imposing liability on the
defendant.

5.1.4 Foreseeability
  Bourhill v Young [1943] AC 92

5.1.5 Proximity

 Yuen Kun Yeu & Ors v AG [1988] AC 175

 Chung Ki-Lung and Chung Kwok- Keung v AG [1991] 1 HKLR 338

5.1.6 Fairness, Justice and reasonableness

 White v Jones [1993] 3 All ER 481, CA; [1995] 1 All ER 691, HL

 McFarlane v Tayside HB [1999] 3 WLR 1301

5.1.7 Policy consideration

5.2 OMISSION

5.2.2 Non-feasance

5.2.3 Misfeasance

5.2.4 Duty to control others

 Carmarthenshire County Council v Lewis [1955] 1 All ER 565
 Home Office v Dorset Yacht Co Ltd [1970] UKHL 2
 Chan Wai Nga v Tam Chi Wai & Anor [2006] HKEC 1226

5.2.5 Types of Plaintiffs

5.2.6 Types of Defendants

5.2.7 Duties to the Unborn
5.2.7.1 Damages

5.2.8 Claims for wrongful life

 Mckay v Essex Area Health Authority [1982] 2 QB 116

5.2.9 Claims for failure to improve wrongful life

 Lee Fai (An Infant) & Anor v Tung Wah Group of Hospitals [1997] 2 HKC
396

5.2.10 Claims for loss of parental autonomy

 THE EXISTENCE OF A DUTY OF CARE

Donoghue v Stevenson
[1932] AC 562
The plaintiff drank a bottle of ginger beer manufactured by the defendant. The ginger beer was
bought by her friend from a retail shop. The bottle was sealed with a metal cap and was made
of opaque glass. Some of the ginger beer was poured over the ice-cream in a tumbler and the
plaintiff drank it. As some of the ginger beer was still left in the bottle, her friend emptied it
into her tumbler. A foreign body flowed out of the bottle. It looked like the remains of a dead
snail. The plaintiff became ill. She either suffered food poisoning or became sick by the sight
of what she saw, or both.

The plaintiff claimed damages from the manufacturer of the ginger beer who had sold it to the
retailer. The plaintiff could not sue the retailer because she did not have a contract with the
retailer as the ginger beer had been bought by her friend.

Held:

(1) The manufacturer of the ginger beer was liable. It owed a duty of care to the ultimate
consumer to see that there was no noxious matter in the articles which would cause
injury to the consumer.
(2) “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?” The answer seems to be—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”.
(Lord Atkin)
 Luen Hing Fat Coating & Finishing Factory Ltd v Waan Chuen Ming
(2011) 14 HKCFAR 14
A factory owner engaged a competent independent contractor to repair the calendering unit of
a machine. The factory owner lent the independent contractor equipment, namely two pallet
jackets and bearing trolley which were used to transport cloth. The factory owner’s supervisor
knew what the equipment would be used for and the dangers involved in using it but did not
warn the independent contractor. In order to repair the unit, it was detached from the machine
and then moved some five or six metres to another part of the factory. After the repairs were
completed, the independent contractor and the plaintiff wanted to move the unit weighing some
1.5 tonnes back with a view to reinstalling it with the machine. While the plaintiff and the
independent contractor were reinstalling the unit, it fell on the plaintiff crushing both his legs.

Held:

(1) Whether a duty of care existed required a holistic view of foreseeability, proximity and the
need to be satisfied that it would be fair, just and reasonable to impose a duty of care. The
elements of the threefold test were labels and their usefulness was limited. It was worth
remembering that whatever formula was used, the outcome in a grey area case had to be
determined by judicial judgment and that formulae could help organise thinking but that
they could not provide answers. As for “proximity” and “the requirements of fairness,
justice and reasonableness”, there was no real demarcation between them. These two
headings were no more than two labels under which the court examined the pros and cons
of imposing liability in negligence in a particular type of case.
(2) Here, the factory owner owed a duty of care to the plaintiff.
(3) There was no doubt that the harm was foreseeable: First, it was obvious that the operation
was dangerous. Second, proximity existed between the plaintiff and the factory owner: the
plaintiff was on the factory owner’s premises doing work which his employer, the
independent contractor, had been engaged to do for the factory owner and the plaintiff was
using equipment on loan from the factory owner. Third, it was fair, just and reasonable to
hold that the factory owner owed to the plaintiff a duty of care. The factory owner had
loaned the independent contractor the pallet jacks and bearing trolleys and knew or ought
reasonably to have known that they would be used to do the work by an unsafe method.
The factory owner also chose to engage an independent contractor who had to borrow
makeshift equipment from it, rather than one who had the equipment needed to do the work
in a safe manner. That would presumably have been more costly. But safety was not a
thing on which to cut costs like this.
 FORESEEABILITY OF HARM

Palsgraf v Long Island Railroad Co

248 NY 339 (1928)
While a person was running to catch a train, he was negligently pushed by an employee of the
defendant railway company. He was carrying a package containing fireworks, which dropped
and exploded, causing a metal scale on the other side of the platform to tumble, injuring the
plaintiff who was waiting for a train.

Held:

(1) To impose liability on the defendant, it was not enough to prove that its negligence caused
injury to the plaintiff. It was also necessary to prove that it was foreseeable that its
negligence would cause injury to the plaintiff. The defendant owed no duty of care to the
plaintiff as his injury was not foreseeable.
(2) "If no hazard was apparent to the eye of the ordinary vigilance, an act innocent and harmless
did not take to itself the quality of a tort. … The orbit of the danger as disclosed to the eye of
reasonable vigilance would be the orbit of the duty”. (Cardozo J)
 PROXIMITY

Yuen Kun Yeu v Attorney-General

[1987] HKLR 1154
The plaintiffs deposited substantial sums of money with a deposit-taking company registered
under the Deposit-Taking Companies Ordinance. The deposit-taking company went into
liquidation and as a result, the plaintiffs lost their deposits. The Commissioner of Deposit-
taking Companies had various regulatory powers over the registration and de-registration of
this deposit-taking company. The plaintiffs brought an action against the Attorney-General
representing the Commissioner. They contended that the Commissioner was negligent since
(1) he knew or ought to have known that the affairs of the company were being conducted
fraudulently, speculatively and to the detriment of its depositors; (2) he failed to exercise his
powers under the ordinance so as to secure that the company complied with the obligations and
restrictions imposed on it; and (3) he should either never have registered the company or have
revoked its registration before the plaintiffs made their respective deposits with it in order to
save them from the effects of the company’s eventual liquidation.

Held:

(1) Foreseeability of harm did not of itself and automatically lead to a duty of care. There
must also be proximity.
(2) The key question in this case was whether there was a relationship of proximity between
the Commissioner and the depositors.
(3) At the time the depositors chose to deposit their money with the deposit-taking company
in question, there was no relationship between the depositors and the Commissioner. There
was also no special relationship between the Commissioner and the deposit-taking
company. Therefore, there was no proximity between the depositors and the
Commissioner.
(4) The duty of the Commissioner was not aimed at an individual member of the public. It was
designed to protect the public in general against unscrupulous managers of deposit-taking
companies. “The Commissioner did not have any power to control the day-to-day
management of any company, and such a task would require immense resources … [It] is
doubtful if any supervision could be close enough to prevent it in time to forestall loss to
depositors. In these circumstances, their Lordships are unable to discern any intention on the
part of the legislature that in considering whether to register or deregister a company, the
commissioner should owe any statutory duty to potential depositors”. (Lord Keith)
 FAIRNESS, JUSTICE AND REASONABLENESS

White v Jones
[1995] 2 AC 207
The defendants were solicitors. They were instructed by the plaintiffs’ father, aged 78, to draw
up a will giving the plaintiffs £9,000 each. The solicitors delayed in carrying out the father’s
instruction. After a month, the father again asked the solicitors to draw up the will and again
the solicitors failed to do so. The father died without executing the will. The plaintiffs had no
remedy against the estate of their father so they sued the solicitors.

Held: It was fair, just and reasonable that the defendants should be liable to the intended
beneficiaries, otherwise there would be no sanction in respect of a solicitor’s breach of his
professional duties. If the defendants were not held to be liable, they would go scot-free, which
could not be right.
 POLICY IMMUNITIES

Hill v Chief Constable of West Yorkshire

[1989] AC 53
A rapist and murderer had committed 13 murders and eight attempted murders of women
within a period of five years in West Yorkshire. The serial killer was finally arrested. The
mother of the last victim claimed damages in negligence on behalf of her deceased daughter’s
estate from the police. She argued that the police had failed to use their best endeavours to
apprehend the killer and failed to protect members of the public who might be the killer’s future
victims. At issue was whether the police, in the course of carrying out their functions of
controlling and keeping down the incidence of crime, owed a duty of care to individual
members of the public who might suffer injury through the activities of criminals.

Held:

(1) The police did not owe a duty of care to individual members of the public to apprehend a
criminal.
(2) The police should be immune from an action of this kind. Imposition of a duty of care on
the police could lead to their “function being carried on in a detrimentally defensive frame
of mind”. “[A] great deal of police time, trouble and expense might be expected to have to
be put into the preparation of the defence to the action and the attendance of witnesses at
the trial. The result would be a significant diversion of police manpower and attention from
their most important function, that of the suppression of crime. Closed investigations
would require to be reopened and retraversed, not with the object of bringing any criminal
to justice but to ascertain whether or not they had been competently conducted”. (Lord
Keith)
(3) If this action lies, every citizen will be able to require the court to investigate the
performance of every policeman. If the policeman concentrates on one crime, he may be
accused of neglecting others. If the policeman does not arrest on suspicion a suspect with
previous convictions, the police force may be held liable for subsequent crimes.
(4) The threat of litigation against a police force would not make a policeman more efficient.
The necessity for defending proceedings, successfully or unsuccessfully, would distract
the policeman from his duties. (Lord Templeman)
CLASS 6
PRODUCT LIABILITY; PSYCHIATRIC ILLNESS

6.1PRODUCT LIABILITY

6.1.1 Introduction
 Donoghue v Stevenson [1932] AC 562
 Grant v Australian Knitting Mills [1936] AC 85

6.1.2MEANING OF MANUFACTURER
 Andrews v Hopkinson [1953] 3 All ER 422

6.1.3MEANING OF PRODUCT
 Grant v Australian Knitting Mills [1936] AC 85
 White v Jones [1995] 1 All ER 691, HL

6.1.4MEANING OF ULIMATE CONSUMER

6.1.5PRODUCT MUST REACH IN THE FORM IT LEFT THE

MANUFACTURER
 Grant v Australian Knitting Mills [1936] AC 85

6.1.6 NO POSSIBILITY OF INTERMEDIATE EXAMINATION

6.1.7 ABSENCE OF REASONABLE CARE IN THE PREPARATION OR

PUTTING UP OF THE PRODUCT
6.2 Introduction to Psychiatric Illness

6.3 Recognized Psychiatric Illness

6.3.1 Post Traumatic Stress Disorder (PTSD) & Other Psychiatric Injuries
 Mcloughlin v O’Brien [1982] 2 All ER 298

6.4 Primary Victims

 Dulieu v White & Sons [1901] 2 KB 669
 Page v Smith [1996] AC 155

6.5 Secondary Victims

 McLoughlin v O’Brian [1982] 2 All ER 298

6.5.1 Psychiatric injury must be foreseeable in the circumstances

6.6 Shock from danger or destruction to property or some object

PRODUCT LIABILITY

Grant v Australian Knitting Mills Ltd [1936] AC 85

This case furnishes another excellent example of manufacturers’ liability in

negligence to the ultimate user of their product. The defendant was a
manufacturer of woollen underpants. The plaintiff bought some underpants
manufactured by the defendant from a retail shop. After wearing the underpants,
the plaintiff suffered from dermatitis. This happened because the defendant was
negligent in that it had allowed excess of bisulphite of soda to remain in the
underpants. The defendant was held liable for the plaintiff’s medical problem.
 BREACH OF DUTY AND CAUSATION:
 W. E. PEEL & J. GOUDKAMP, WINFIELD & JOLOWICZ ON TORT,
(CHAPTER 6)
 DR. R. K. BANGIA, LAW OF TORTS, (CHAPTER 11)

Reasonable Man:

1. Vaughan v. Menlove, 1832 Eng. Rep. 490 (C.P. 1837)

2. Brown V. Kendall, 60 Mass. 292 (1850)
3. Roberts v. Ring, 173 N.W. 437 (Minn. 1919)
4. United States v. Carroll Towing Co., 159 F.2d 169 (2d Cir. 1947)
5. Fletcher v. City of Aberdeen, 338 P.2d 743 (Wash. 1959)

Emergency situations and Duty of Rescue

Unreasonable risks

CAUSATION AND FORESEEABILITY:

IMPORTANT CASES:
1. Scott v. Shephard, 96 Eng. Rep. 525 (K.B. 1773)
2. Stone v. Bolton, [1950] 1 K.B. 201 (C.A.)
3. Veeran v. Krishnamurthy, AIR 1966 Ker 172
4. Blyth v. Birmingham Water Works, 156 Eng. Rep. 1047 (Ex. 1856).

Proof of Negligence

Duty in Ordinary Cases

1. Byrne v. Boadle, Ct of Exchequer, ENG 1863

Duty of Care in Some Special Cases

Occupier’s Liability

Cases on duty towards children

1. Herrington v Railway Board ( UK)
PROFESSIONAL NEGLIGENCE
 DR. R. K. BANGIA, LAW OF TORTS, (CHAPTER 12)

1. Bolam test
2. Laxman B. Joshi v. Trimbak B. Godbole, AIR 1969 SC 128-
3. Philips India Ltd. V. Kunju Punnu, (1974) 77 BLR 337: AIR 1975 Bom
306
4. A.S. Mittal v. State of U.P., 1989 3 SCC 223
Class7-9

DEFENSES TO NEGLIGENCE

1. DEFENSES
a. Contributory negligence- [Read Bangia Text].
b. Assumption of Risk/Volenti Non Fit Injuria – [Read Bangia Text]
c. Exclusion of Liability
d. Illegality or ex turpi causa non oritur actio
e. Insanity

Cases
1. Smith v. Charles Baker and Sons (1891) AC 325 (HL)
2. South Indian Industrial Ltd., Madras v. Alamelu Ammal, AIR 1923 Mad.
565
3. Haynes v. Harwood (1935) 1 KB 146
4. Ramchandangram Nagaram Rice & Oil Ltd. v. Municipal Commissioners
of Purulia Municipality, AIR 1943 Pat. 408
5. Manindra Nath Mukherjee v. Mathuradas Chatturbhuj, AIR 1946 Cal. 175
6. Hall v. Brokands Auto Racing Club (1932) 1 KB 205
7. T.C. Balkrishnan v. T.R. Subramanian, AIR 1968 Ker. 151.
8. Vidya Devi, R&D p 570
9. Morris v Murray [1990] 3 All ER 801
10.Breunig v. American Family Insurance, 173 N.W.2d 619 (Wis. 1970).
RESCUERS; PURE ECONOMIC LOSS

7.1 INTRODUCTION TO RESCUERS

7.2 RESCUER’S DUTY

7.3 DUTY TO RESCUER

 Videan v British Transport Commission [1963] 2 QB 650.

7.4 RESCUE OF PROPERTY

 Hyett v Great Western Rly Co [1948] 1 KB 345

7.5 DEFENCES

7.6 INTRODUCTION TO PURE ECONOMIC LOSS

 Spartan Steel and Alloys v Martin & Co (Contractors) Ltd [1972] 3 All ER
557

7.7 NEGLIGENT ACT

 Spartan Steel and Alloys Ltd v Martin & Co (Contractors) Ltd [1972] 3 All
ER 557

7.8 PURE ECONOMIC LOSS AND CONSTRUCTION OF BUILDINGS

AND INSTALLATION OF FITTINGS

7.9 NEGLIGENT STATEMENTS

7.9.1 INTRODUCTION

 Hedley Byrne & Co Ltd v Heller & Partners Ltd [1963] 2 All ER 575
7.9.2 THE HEDLEY BYRNE PRINCIPLE

7.9.3 IN WHAT CIRCUMSTANCES DOES THE HEDLEY BYRNE DUTY

ARISE

7.9.4 HOW FAR DOES THE DUTY EXTEND BEYOND THE DIRECT
RECEPIENT OF THE INFORMATION/ADVICE?

7.9.4.1 Statements made to the public

7.9.5 Negligent service or conduct by professionals

 White v Jones [1993] 3 All ER 481

7.9.6 Reliance on negligent statement causing pure economic losses to a third

party

 Spring v Guardian Assurance Plc [1995] 2 AC 296

 PURE ECONOMIC LOSS
Hedley Byrne & Co Ltd v Heller & Partners Ltd
[1964] AC 465

The plaintiff was a firm of advertising agents. It was engaged by its client, Easipower Ltd, to
conduct an advertising campaign. The plaintiff placed, on behalf of Easipower, substantial
orders on credit terms for advertising time on television programmes and advertising space in
certain newspapers. The plaintiff was to be liable should Easipower fail to pay. Becoming
doubtful of Easipower’s financial position, the plaintiff asked its bank to enquire with the
defendant bank as to the creditworthiness of Easipower as Easipower banked with the
defendant bank. The defendant bank replied that Easipower was a “respectably constituted
company, considered good for its ordinary business engagements”. The defendant’s reply to
the plaintiff was given under a disclaimer of liability clause. However, this advice was
negligently given because Easipower was not in a good financial position. Relying on the
defendant’s advice, the plaintiff spent money for Easipower and lost £17,000 when Easipower
went into liquidation. The plaintiff sued the defendant to recover its loss, alleging that the
defendant had given its advice negligently in breach of its duty to exercise due care.

Held:

(1) A negligent misrepresentation might give rise to an action for financial loss caused even if
the maker of the statement and the recipient do not have any contractual or fiduciary
relationship, provided that the maker of the statement and the recipient had a “special
relationship”.
(2) A “special relationship” arose where:
(a) the plaintiff sought some advice or information from the defendant who possessed
special skill;
(b) the defendant knew or ought to have known that the plaintiff would rely on such
information and advice;
(c) the plaintiff, in fact, acted on such advice or information and suffered loss; and
(d) it was reasonable for the plaintiff to seek the advice and information from the defendant
and act on them. (Lord Reid and Lord Morris of Borth-y-Gest)
(3) A duty to take care also arose where there existed a relationship which was “equivalent to
contract”, that is, where there was an assumption of responsibility in circumstances in
which, but for the absence of consideration, there would be a contract. (Lord Devlin)
(4) The defendant would have owed a duty of care to the plaintiff if it had not included the
disclaimer of liability clause in its advice. By doing so, the defendant clearly indicated that
it did not undertake any duty of care for its advice. It was accordingly not liable.
CLASS 9-10

BREACH OF DUTY; CAUSATION

 W. E. PEEL & J. GOUDKAMP, WINFIELD & JOLOWICZ ON TORT,

(CHAPTER 7)
 DR. R. K. BANGIA, LAW OF TORTS, (CHAPTER 11)

8.1 INTRODUCTION
Negligence is the omission to do something which a reasonable man, guided upon
those considerations which ordinarily regulate the conduct of human affairs, would
do, or doing something which a prudent and reasonable man would not do.

8.2THE REASONABLE PERSON

8.2.1 Knowledge

8.2.2 Skills
 Bolam v Friern Hospital Management Committee [1957] 2 All ER 118

8.2.3 Age and infirmity

 McHale v Watson (1965) 111 CLR 384

8.2.3 Acting in situations of peril

8.2.5 Sports Activities

8.3 THE REASONABLE PERSON IN ACTION

8.3.1 Foreseeability of injury

8.3.2 Seriousness of injury

8.3Importance of the end served by the defendant’ activities

 Daborn v Bath Tramways Motor Co Ltd [1946] 2 All ER 333

8.4The cost of avoiding injuries

 Wagon Mound (No 2) [1966] 2 All ER 709

8.5Frequency of accidents

8.6The common practice followed by a profession

 Bolam v Friern Hospital [1957] 2 All ER 118

8.7PROOF OF NEGLIGENCE

8.7.1 Res ipsa loquitur

8.7.1.1 Accident, and exceptional occurrence

8.7.1.2 The things causing damage must be under defendant’s exclusive

control

8.7.1.3 Defendant’s negligence must be the only probable inference

8.7.1.4 Effect of the application of res ipsa loquitur

8.2CAUSATION IN FACT

8.2.1 But for test

 Barnett v Chelsea Hospital Management Committee [1969] 1 QB 428
 Fairchild v Glenhaven Funeral Services Ltd & Ors [2003] 1 AC 32
8.2.1.1 Multiple causes
 Fairchild v Glenhaven Funeral Services Ltd & Ors [2003] 1 AC 32

8.2.2 Simultaneous causes

8.2.3 Consecutive events

 Baker v Willoughby [1970] AC 467
 Performance Cars Ltd v Abraham [1962] 1 QB 33

8.3CAUSATION IN LAW
 Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd (The
Wagon Mound) [1961] 1 All ER 404

8.3.1 Kind of harm

 Hughes v Lord Advocate [1963] AC 837

8.3.2 Extent of the harm

8.3.3 “Eggshell skull” principle

 Smith v Leech Brain & Co [1961] 3 All ER 1159

8.3.4 How the damage occurred

 CAUSATION IN FACT

Barnett v Chelsea & Kensington Hospital Management Committee

[1969] 1 QB 428
At 5 am, the plaintiff’s husband, a watchman, shared some tea with two other watchmen. All
three men started to vomit which 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 plaintiff’s husband died by 2
pm from arsenic poisoning.

Held:

(1) The defendant’s casualty officers were negligent. However, the plaintiff had failed to
establish her claim, on the balance of probability, that the death of the deceased
resulted from the defendant’s negligence. Even if all care had been taken, the deceased
would have died anyway.
(2) “There has been put before me a timetable which I think is of much importance.
The deceased attended at the casualty department at five or ten minutes past eight
in the morning. If the casualty officer had got up and dressed and come to see the
three men and examined them and decided to admit them, the deceased … could
not have been in bed in a ward before 11 a.m. I accept Dr. Moulding’s evidence that
an intravenous drip would not have been set up before 12 noon, and if potassium
loss was suspected it could not have been discovered until 12:30 p.m. Dr. Lockett,
dealing with this, said: ‘If this man had not been treated until after 12 noon the
chances of survival were not good’”. (Neild J)
 CAUSATION IN LAW
Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd
(The Wagon Mound)
[1961] AC 388
The plaintiff carried on the business of ship building, ship repairing and general engineering
work at Sydney Harbour. The plaintiff used a timber wharf about 400 feet in length and 40
feet wide. The defendant was a charterer of the ship, The Wagon Mound, an oil-burning
vessel. It was moored at a distance of about 600 feet from the plaintiff’s wharf. The
defendant’s employees negligently allowed the spill of a large quantity of furnace oil into
the Sydney Harbour. The oil spread to the plaintiff’s wharf where a ship was being repaired.
The plaintiff was carrying out welding operations at that time and asked the defendant’s
engineers whether it was safe to do so. The plaintiff was assured that the oil, when
discharged over cool water, was unlikely to ignite. According to the best available scientific
opinion at that time, the defendant’s opinion was correct. The plaintiff continued its welding
work. Some molten metals fell onto a piece of floating waste. It ignited the oil and a fire
spread rapidly, damaging the plaintiff’s wharf and the ship.

Held:

(1) A person was only liable for damage which was reasonably foreseeable.
(2) The damage to the plaintiff (i.e. property damage by fire) that resulted directly from the
defendant’s negligence was not foreseeable. The defendant was, therefore, not liable to the
plaintiff.

“It does not seem consonant with current ideas of justice or morality that for an act of
negligence, however slight or venial, which results in some trivial foreseeable damage the actor
should be liable for all consequences however unforeseeable and however grave, so long as
they can be said to be ‘direct’. It is a principle of civil liability … that a man must be considered
to be responsible for the probable consequences of his act. To demand more of him is too harsh
a rule, to demand less is to ignore that civilised order requires the observance of a minimum
standard of behavior”. (Viscount Simonds)
 “EGGSHELL SKULL” PRINCIPLE

Smith v Leech Brain & Co

[1962] 2 QB 405
The plaintiff’s husband suffered a burn on his lip at work when some molten metal fell on it.
The burn was cured, but it triggered cancer because the plaintiff’s lip was already in a pre-
malignant condition. The plaintiff’s husband died. The plaintiff’s husband would never have
suffered from cancer and eventual death were it not for the burn injury.

Held: The defendant employer was liable for the death of the plaintiff’s husband
notwithstanding that such a burn on an ordinary robust person would not have developed into
a cancer. Tortfeasors must take their victims as they found them.
CLASS 9
DEFENCES TO NEGLIGENCE

9.1INTRODUCTION

9.2CONTRIBUTORY NEGLIGENCE

9.2.1 Meaning of contributory negligence

9.2.2 Contributory negligence and causation

9.2.3 Plaintiff’s standard of care

9.2.3.1 Professionals
 Wheeler v Copas [1981] 3 All ER 405

9.2.3.2 Children

9.2.3.3 The infirm

9.2.3.4 Employees

9.2.4 Proof of contributory negligence

9.2.5 Damages in contributory negligence

9.3VOLENTI NON FIT INJURIA

9.3.1 Development of the doctrine

9.3.2 Meaning of “voluntas”

9.3.3 Knowledge and consent

9.3.4 Agreement to run the risk

9.3.4.1 Volenti non fit injuria and drunk driving

 Dann v Hamilton [1939] 1 KB 509

9.3.5 Exclusion of liability

9.4ILLEGALITY
 Marles v Philip Trant & Sons [1954] 1 QB 29

9.4.1 The “public conscience test”

 Kirkham v Chief Constable of Greater Manchester [1990] 2 QB 283, CA

9.4.2 Plaintiff’s conduct must be causally related to the tort

9.4.3 Reluctance of the courts to set the standard of care

 Vellino v Chief Constable of the Greater Manchester Police [2002] 1 WLR
218

 Pitts v Hunt [1991] 1 QB 24

 CONTRIBUTORY NEGLIGENCE

Lilley v Hong Kong and Kowloon Ferry Ltd

[2012] 1 HKLRD 916
P boarded a ferry travelling from Central to Lamma Island. The next day, P’s body was
retrieved from the sea off Tsing Yi Island. An autopsy found that the cause of P’s death was
drowning. The autopsy also found there was a significant amount of alcohol in P’s blood. P’s
widow sued the defendants, the operator, and the captain and master of the ferry, alleging
negligence on their part.

Held:

(1) The ferry’s aft or tail deck was inherently dangerous. Passengers accessing the aft desk to
use the toilet could trip in the dim light or on the coil rope on the tail deck. There was no
effective system of monitoring passengers accessing the aft deck. It was not adequately
supervised, protected or made safe. The passengers were also allowed to access the aft
deck unsupervised. There was no warning to the passengers of the dangers and risks of
approaching the bulwarks of the aft deck while the vessel was subject to rolling and
pitching or when it was dark at night other than, in an emergency.
(2) A passenger had a duty to take reasonable care of his own safety. P as a regular user of
the ferry service should have been aware of the rolling and pitching likely to be
encountered on the ferry when it was sailing. If he had taken adequate care and paid due
heed on the aft deck, he should have been able to hold onto the roof of the deck, or to
properly hold the side of the bulwark, to avoid falling on the deck, or over the bulwark.
The bulwarks were not so low in height as to cause anyone passing by to fall over easily,
despite due care and attention.
(3) P had contributed to his accident to the extent of 50%.
 ILLEGALITY
Pitts v Hunt
[1991] 1 QB 24

The plaintiff was 18 and the defendant was 16. They had spent the evening together drinking
at a disco. They then set off for home on a motorcycle driven by the defendant. The defendant
was not insured to use the motorcycle on the road and did not have a license. The plaintiff was
sitting at the back. The plaintiff encouraged the defendant to drive at an excessively high speed.
They were shouting and blowing the horn and engaged in conduct calculated to frighten other
road users. The defendant was riding his motorcycle recklessly and dangerously. The
motorcycle collided with a car. The plaintiff was seriously injured and the defendant died. The
plaintiff claimed damages in negligence from the defendant’s estate.

Held (by majority):

(1) The plaintiff’s claim was barred by the maxim of ex turpi causa non oritur actio because
it was not possible to lay down a standard of care for a course of criminal conduct.
(2) The plaintiff was playing a full and active part in encouraging the defendant to commit
offences. If a death other than that of the defendant himself had occurred, the plaintiff’s
conduct would have amounted to manslaughter by the commission of a dangerous act done
with the intention of frightening other road users. The plaintiff was precluded on grounds
of public policy from recovering compensation for the injuries which he sustained in the
course of very serious offences in which he was participating.