Introduction

Rules and laws have been in existence since the dawn of civilisation. Laws exist to establish some semblance of order, familiarity, and predictability. It establishes what is legally appropriate and what is not. It gives people their rights and privileges in their respective societies. It imposes recourse whenever certain rights and privileges are encroached by another individual. It is an important element of society as it provides people social justice and establishes some form of equality. Earlier civilisations have a legal system that is manifested in a harsh and unforgiving manner. For instance, the Hamurabi Code espouses equal retribution for a harm done to an individual (“an eye for an eye”). However, recent developments in law and improvements in social norms have softened significantly. Thus, an act made evil by law or public morals will not entail the person charged to suffer a grotesque punishment such as losing a limb. However, there are instances where the acts done are culpable, which means that these acts are done with negligence and without the intention of doing harm. This paper seeks to answer the general question “what are the defenses on negligent acts?” For the purposes of this paper, the discussions shall focus on the civil wrongs that are implicated by negligent acts.   


Tort Laws in Hong Kong

As a general rule, a tort is defined as a civil wrong. Normally, these torts tend to the vested rights of people in their personal capacity as well as their respective properties. Tort laws are usually mistaken with the principles of contract law. (Simpson 1996, 106) However, there are certain differences between the two. Unlike contractual law, liabilities in torts law are not founded on agreements which are binding to the parties involved. The obligations provided in the laws of tort intimate the rights and duties which are indebted to any individual that the court may deem as a neighbor. In any case, those who have been aggrieved by a tortuous act have recourse as provided by law. It seeks to give compensation to the aggrieved party so as the acts done against him/her induces any loss or harm. These obligations are primarily stated by law. Such examples of these tort laws in Hong Kong include Sale of Goods Ordinance and Unconscionable Contracts Ordinance.  Looking at these examples, it appears that the intention of tort law is to provide compensation to the aggrieved individual by restoring his/her status before the tort was made.


The definition of tort laws and the subsequent distinction of the said area of law to contract law appear to show some likeness with criminal law. (Markesinis 1999, 37) However, one must realise that the action that is involved in this scenario is between private parties. Thus, the plaintiff is a private individual possessing private rights and the defendant similarly a private entity. Unlike criminal law, the laws of tort points to compensation and not punishment of wrong behaviour.  


In essence, the tort of law seeks to protect the physical reliability of individuals as well as their respective properties. (Ibbetson 1999, 134) It also exist to as a deterrence for other people in doing tortuous acts that may impel injury or do harm to other people and property. It gives the public a reason to take legal action provided that they are aggrieved and to rectify the civil wrong implicated by the imposed tort. In the case of Hong Kong, the laws of tort establish several requirements for legal action based on common law. These include duty of care, breach of duty, causation and remoteness of the damage. These elements are also included in determining cases involving tort of negligence.


Duty of Care

One of the major components of the tort of negligence is one’s duty of care. In its simplest sense, the duty of care imposed in common law reflects the exercise of diligence and reasonable care. (Birks 1996, 51) This is an assumed responsibility to the common citizen so as to veer away from risk and eliminate the possibility of harm in the both the individual and his/her property. This is an important element in cases involving tort as an individual would not have a cause of action to another if it has no duty of care to the same.


In common law regimes like Hong Kong, the case of Donohue v Stevenson is the prevailing case law in the practice of duty of care. In this case, the principles espoused are that a person owes a duty of care to people who; one may reasonably foresee, be cause injury or harm by his/her actions. As seen in the facts of the said case, the manufacturer of the beverage is aware of the fact that someone will eventually consume it. Hence the manufacturer of the beverage owes a duty of care on the consumer.


This principle has evolved throughout the numerous interpretations of the concept of duty of care. The current approach recognises several requirements in determining the existence of such duty. (Von Bar 1998, 29) Common laws accept that for duty of care to be recognised, there should be the foreseeable harm present. It is also required that an existing proximate relationship involving the plaintiff and the defendant be established, otherwise, there will be no cause for action. Third, there should be fairness, justice and reasonableness in the imposition of duties involved in the case.   


Breach of Duty

Upon the failure to exercise the necessary duty of care, another element of tort of negligence takes place, this is breach of duty. (Birks 1997, 25) To a certain extent, mere failure to satisfy the standards will suffice in this case. It is this element that adds up to the overall “negligence” of the tort imposed in the case. It highlights the omission of the defendant to take the necessary actions to prevent the foreseeable harm.


Following this line of reasoning, the two elements important in consideration of breach of duty of care is the foreseeability of the harm and the breach being able to recognise by a reasonable man. (Birks 1996, 51) In the case of foreseeability, the level of risk as well as the consequent injury and its gravity is determined. Looking at this description, it appears that the foreseeability element affords the defendant some leeway in his/her accusation. In this area, he is given the chance to justify his/her actions based on the risks that caused the tort.   


In the context of the reasonable man requirement, common law dictates that a breach of duty should be foreseen by a reasonable person has he been in the position of the defendant. (Birks 1997, 25) This person may include individuals that possess the same expertise as that of the defendant. In case, the defendant failed to establish the fact that the harm done by his/her action is foreseeable by a reasonable man, liability ensues.


Causation

Causation is another important component in determining the liability in tort of negligence. This element is known also as proximate cause. This element serves as the bridge that attaches the negligence done to the damage implicated. As a general rule, common law provides that the defendant is legally responsible to the loss of the applicant provided that it is established that the defendant’s negligent act actually caused the injury. (Cane 1996, 141) To this end, it is vested on the court’s wisdom whether or not the loss is entirely connected to the cause of the injury or loss. In this context, the courts will have the duty to determine whether there is an intervening event or another factor that largely caused the injury. Common law also provides the courts a means to determine the causation in the case. (Cane 1996, 141) This is deemed as chain of causation. It is the task of the defendant to establish that there is an intervening event that caused the actual injury hence taking away the liability of the defendant. Otherwise, if the courts see that there is no break in the link, then the element of causation is present. It is important to note that the general rule in this sequence of events is that the intervening event explicitly perturbs the series of events. However, liability is not given to the defendant if the said intervening events are foreseeable.    


Remoteness of Damage

The first two elements, duty of care and breach of duty, are important in determining whether or not there is a cause of action on the part of the plaintiff. (Cane and Stapleton 1998, 124) After establishing if there is an actual case, the next step is to establish whether or not the plaintiff can recover the loss he/she has acquired as provided by law. This is the attempt of common law to provide some equality in the process. The determination on whether or not there is an act foreseeable provides a limitation in the extent of liability on the part of the defendant.


This suggests that the defendant will not be liable for the entire damage that the plaintiff acquired. He shall be liable only to those acts which were reasonably foreseeable. (Cane and Stapleton 1998, 125)  However, if the defendant is proven to have done the act and has foreseen that such instances of damages and injury has taken place, then the entire brunt of the legal liabilities is afforded to the defendant.


In common law, courts allow to recover damages from physical or personal injury. However, there is still an impending reservation in the legal system in providing for damages due to mental or psychological distress and economic loss. (Cane and Stapleton 1998, 126) In the case of mental or psychological distress, the courts still avoid to give judgements to such cases on claims of damages given that the said harm is hard to prove. Some of the remote judgments on the issue are given in favour of the plaintiff because the psychological effects were concretely proven.   


 Economic loss is also another means on which the plaintiff can seek redress. It is important to highlight that liability entirely based on unadulterated economic loss is not existent. (Cane and Stapleton 1998, 126) Cases involving claims for economic loss are generally based on a result of personal injury or damage to property. This means that common law courts will have the tendency to impose judgement on consequential economic loss as opposed to pure economic loss.


  


Defences

The discussions above have established the elements that constitute the acquisition of liability in torts of negligence. However, it is the nature of law that gives ascendance to the rights of the parties involved. In this regard, the defendants in the case are given the chance to defend themselves from possible unfounded claims. Aside from giving the onus of proof on the plaintiff, the following parts have been given by common law courts in the aid of justice and due process. In this manner, the defendant is given a fair chance to vindicate himself from the charges against him.  


Contributory Negligence

In its simplest sense, contributory negligence is established when the actual injury or loss is attributed to the negligence of the plaintiff and not the defendant. (Cane 1996, 141) In the context of common law, if there is a manifestation of even a minute contributory negligence, then the defendant is absolved of the charge. This is also true regardless on whether the defendant has actually committed some negligence.


Looking at these definitions, it appears that the principle surrounding contributory negligence is unforgiving. However, legislations can bend the system a little. For instance, the Law Amendment and Reform (Consolidation) Ordinance of Hong Kong indicates in s21(1) that the court may give the defendant liability for the damages if it sees that they deserved to be liable. It must be emphasized though that the importance of contributory negligence and its use as a defense on the part of the defendant is still in place. The said legislation only changes the legal consequences provided.


 


Assumption of Risk

As a general rule in the law of torts, there is no injury done to an individual if the same consents to the risk involved. This basically means that there is no liability present if the defendant has openly provided for the risk involved and the possibility of negligence in the process, despite having done so, the plaintiff accepts. (Markesinis 1999, 37) In this scenario, the defense involves the knowledge of the plaintiff as well as the voluntary nature in the process. However, such cases are construed liberally in favor of the plaintiff and strictly against the defendant. This is done to provide the plaintiff the ample amount of time to present his/her case without readily being deprived of this right. In the case of Hong Kong, the Control of Exemption Clauses Ordinance indicates that the acceptance of the term of the contract that limits the liability of negligence is not an expressed manifestation of the acceptance of the risks of the plaintiff. This is normally seen in the case of exemption clauses that are infused in contracts.   


Inevitability of the Accident

Another defense is the inevitability of the accident. This defense takes place when an actual event turned into an accident which the use of ordinary care would not have prevented it from happening. (Simpson 1996, 106) However, for this defense to actually be heard by the courts, it is imperative that certain unusual incidents took place in the case. For instance, in order to save a boat from sinking, the crew jettisoned some of its cargoes. This fits the requirement of the defense. In the same regard, the absence of intent is important. Otherwise, the act is culpable for some other offence.  


Conclusion

The discussions above show that the legal system in Hong Kong caters to both continuity and change. It has established that the existing legal system in the administrative region holds true to its common law roots. This is manifested in the application of the laws on torts on negligence. It is also implicated in the way the courts construe their decisions. As intimated above, the decisions are highly based on the doctrine of stare decisions. This reflects the element of continuity in the legal system in Hong Kong. In the same manner, the tort laws in the administrative region embrace change. As seen above, the legal consequences of tort of negligence has been altered to the favor of the plaintiff and the defences strictly construed against the defendant. This is manifested in the ordinances discussed above. In the same manner, the tort laws in Hong Kong holds true to the aims of social justice by ensuring that both applicants and defendants in tort cases are given the chance to due process and equally vindicate themselves in the process.


References

Birks, P. (1996) Wrongs and Remedies in the Twenty-First Century. Oxford: Clarendon Press.


Birks, P. (1997) The Classification of Obligations. Oxford: Oxford University.


Cane, P. (1996) Tort Law and Economic Interests. Oxford: Clarendon Press.


Cane, P., and Stapleton, J. (1998) The Law of Obligations: Essays in Celebration of John Fleming. Oxford: Clarendon Press.


Control of Exemption Clauses Ordinance. Available in: www.hklii.org/hk/legis/en/ord/71/ [Accessed10 November 2008]


Donohue v Stevenson [1932] AC 562


Ibbetson, D. (1999) A Historical Introduction to the Law of Obligations. Oxford: Oxford University Press.


Law Amendment and Reform (Consolidation) Ordinance. Available in: www.hklii.org/hk/legis/en/ord/23 [Accessed10 November 2008]


Markesinis, B. and Deakin, S. (1999) Tort Law. Oxford: Clarendon Press.


Sale of Goods Ordinance Available in: www.hklii.org/hk/legis/en/ord/26/ [Accessed10 November 2008]


Simpson, B. (1996) Leading Cases in the Common Law. Oxford: Oxford University Press. 


Unconscionable Contracts Ordinance. Available in: www.hklii.org/hk/legis/en/ord/458 [Accessed10 November 2008]


Von Bar, C. (1998) The Common European Law of Torts: The Core Areas of Tort Law, Its Approximation in Europe, and Its Accommodation in the Legal System. Volume 1.  Oxford: Clarendon Press.


 


 



Credit:ivythesis.typepad.com


0 comments:

Post a Comment

 
Top