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
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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
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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
Liability
• To reduce
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 908
2. White v Jones [1993] 3 All ER 481
3. 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’
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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
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1) proximity (derived from foreseeability)
2) whether it is just and reasonable
3) fairness
4) policy consideration