Occupiers Liability

Concerned with harm to a visitor, trespasser, children on land Duty of care that is owed by the person who controls the land fixed or movable structures

Occupiers Liability Ordinance - Section 2(1) statute replaces the common law for technical rules legislation not just confined to static defects - Section 2(2) common law rules in considering who is an occupier, visitor, invitee, licensee - Section 3(1) owes common duty of care to visitors free to restrict duty by agreement - Section 3(2) common duty of care owed to visitors duty to take care in circumstances where it is reasonable to see that a visitor will be reasonably safe in using the premises - Section 3(2) common duty of humanity owed to trespassers - Section 3(3)a children are less careful than adults - Section 3(3)b visitors exercising their calling to guard against special risks incidental to it - Section 3(4)a Warnings needs to be reasonable and not too general Australian Safeway Stores pty Ltd v Zaluzna - Example of tort law being subsumed into negligence New Zealand Insurance Co - Commits suicide with poison leaves poison on table family drinks it and dies - Not decided whether this is negligence or occupiers liability but judge made a statement that this should be occupiers liability Wong Tung Ming - Person allows mother in flat to light joss sticks causes fire and injures plaintiff - A case of occupiers liability Li Hoi Sheun - HK company with factory in mainland HK employee gets murdered by mainland employees - Not a case of occupiers liability where activities of a third party consumes the situation occupier not responsible for the actions of third parties on the premises Wheat v Lacon - An occupier is a person who exercises an element of control over premises Tomlinson v Congleton BC - D controls a park with lakes and beaches warning signs not to dive trespassers dives and injures himself - No duty owed to trespassers warnings signs present risks for swimming gin pond obvious trespasser takes personal responsibility for their own negligence Roles v Nathan - Exercising Calling chimney sweepers exercising their calling does something stupid to injure self - No duty owed to visitors exercising their calling if they do something extremely stupid Phipps v Rochester Corp - Children child played on developing land and fell in a hole - D entitled to assume that they would take primary control over safety of their children D could not have foreseen the risk

Chan Kwa Ngor v Leung Fat Hang - Warnings customer at restaurant walked into kitchen to get food and slipped even though there was a slippery sign - Warnings cannot be too general and needs to be reasonable Hsu Li Yun v Incorporated Owners of Yuen Fat Building - Contributory Negligence exercising their callings AC installers - Visitor exercising their calling must take reasonable care for the safety and healf of themselves and others affected by their work Titchener v BRB - Volunti non fit injuria P was a 15 year old boy struck by a train and he was aware of the risks of walking on the tracks - Level of care expected will depend upon nature of the risk and the age and awareness of the child also volunti non fit injuria Wong Wing Ho v HK Housing Authority - Trespasser child injured while trespassing to construction site to fetch ball notices not sufficient - Held that D breached a duty of common humanity to trespassers no contact information on the signs did not need to expend much to provide higher fences D could reasonably foresee trespassers going into their land

Breach of Statutory Duty

Common law liability inferred by courts where statute does not specifically provide a remedy in tort and is silent to civil action the most usual case If statute bars an action in for damages defense to an action in tort If statute expressly gives an action for damages creates statutory cause of action independent of negligent Must show: the statutory duty; breach of the duty; and damage to the plaintiff Interests protected in statutory duty closely resembles those found in tort

When does Legislation create a duty for which its breach is actionable in tort? X v Bedfordshire CC - Three types of statutes: o 1 Statute stipulates that injury suffered by breach does not give rise to an action for damages o 2 Statute stipulates that injury suffered by breach gives an action for damages Creates statutory cause of action independent of negligence. Most common in consumer protection laws. o 3 Statute silent as to civil liability. The most usual case. Statute must have intended/ implied that breach of the statutory duty would give rise to an independent civil action in tort for damages. Cause of action independent of negligence. - Where a statutory discretion is conferred on a public authority, nothing the authority could do within the ambit of that discretion was actionable at common law. Reluctance to allow breach of statutory duty Saskatchewan Wheat Pool v Canada - Statutory duty was subsumed into negligence by SCC in Canada negligence is based on moral liability but if you impose a strict statutory standard then liability is imposed without fault this is why negligence has been subsumed into negligence in Canada reluctant to allow civil claim When will the courts infer an action?/ Reluctance to infer an actionable claim? Atkinson v Newcastle Waterworks - D breached duty to ensure that water pressure was adequate in Ps house to fight fire house burnt down - Court refused to allow plaintiff to sue in breach of statutory duty Groves v Lord Wimborne - Will allow plaintiff to sue in breach of statutory duty where personal injury had occurred to a workman by the employer contrary to Factory and Workshop Act Estinah v Golden Hand Employment Agency - D made P pay exuberant domestic helper agency fees contrary to statute - Statute was made to protect a class of persons Tse Lai Yin v Incorporated Owners of Albert House - Object falls off building and injures person on highway no action for breach of statutory duty as Buildings Ordinance was intended to ensure that standards of construction are met and did not give rise to independent causes of actions to passers by Phillips v Britannia Hygenic Laundry Co - Reluctance to infer that a statute was passed for benefitting a particular class P suffered injury as a result of defective car manufacturing contrary to Motorcars Construction Order

No private cause of action allowed Order intended only to be enforced by penalty imposed for breach of it

Considerations taken into account Danns v The Department of Health - The statute must create a duty as opposed to a power or discretion - D failed to provide information as to the risks of vasectomy Lonrho v Shell - Statutory duty unlikely to arise where it concerns a matter of high policy that does not create a public right - Diplock: Where the obligation or prohibition was imposed for the benefit or protection of a particular class of individuals, and where the statute creates a public right and an individual member of public suffers particular damage Matteogreassi SpA v Airport Authority - Where a public body is involved in making commercial decisions P claimed that Gorris v Scott - Reluctance to allow a cause of action in breach of statutory duty for pure economic loss When a statute creates a duty with the object of preventing a mischief of a particular kind, a person who, by reason of anothers neglect of the statutory duty suffers a loss of a different kind, is not entitled an action

Rylands v Fletcher
Liability for the escape of dangerous things Facts - D constructed a reservoir which flooded Ps mineshafts. D employed a competent engineer and a contractor, to construct the reservoir. P had use of some mines under Ds land. Some old unused passages ran vertically up to Ds land but they were blocked with clay and earth. No care was taken to block up these shafts, and shortly after water had been introduced into the reservoir it broke through some of the shafts, flowed through the old passages, and flooded Ps mine. Held - P was entitled to recover damages from B in respect of this injury, although there was no precedent. Principle - An occupier of land who brings and keeps on it something that is not related to the natural use o the land and is likely to do damage of it escapes, is liability for the foreseeable consequences of its escape even if they had not been negligent in allowing it to escape. Discussion - Is it similar to strict liability? Should be it regarded as a separate tort? Is it like nuisance because it is concerned with land use? - Rylands has not succeeded in a lot of cases and has not been used a lot Ingredients Something must be brought on to the land for the defendants own purpose not for anothers purpose: Rainham Chemical Works v Belvedere Fish Guano Co - Landownder liable together with Ministry of Munitions for explosion on land where explosive were manufactured on land pursuant to contract The thing must be likely to do mischief if it escapes no defined class has included water, gas, explosives, poisonous trees, and cold air: Bulmer v Electronics There must be a non natural user of land: Rickards v Lothian - D was not liable when an unknown person blocked a basin on his property and caused a flood, which damaged the flat below Cambridge Water Co v Eastern Counties PLC - Definition of non natural user of land remains elusive HL also makes it clear that harm has to be foreseeable - Implied that Rylands is not an independent tort that it was a sub set case of nuisance Transco v Stockport MBC - P sued D for repairs underneath one of its pipes the ground beneath the gas pipe had washed away when Ds waterpipe leaked - Protected Rylands v Fletcher rule but works in very strict confines - Non natural use is not a test to be inflexibly applied a use may be extraordinary and unusual at one time or in one place but not so at another time or another rplace

There must be an escape from the land Read v Lyons - P was an inspector of munitions of Ds factory in wartime she was injured while inspection as a shell exploded - Could not recover as she suffered injury inside the premises injury was not caused by an escape Plaintiff must have some interest in the land to which the offending thing escaped Cambridge Water Co v Eastern Counties PLC - This follows if Rylands is a sub- set case of nuisance Personal Injury is not within the rule: Transco v Stockport MBC Damages are only recoverable for reasonably foreseeable injury: Cambridge Water Co v Eastern Counties PLC Nature and Future of the Rule - Subsumed as a sub category of nuisance - Absorbed by negligence Australian approach - Strict liability for ultra hazardous activities US and Indian approach o Meta v Union of India discharge of toxic gas from factory useful as a form of environmental protection? In the UK - Cambridge Water Co treats Rylands as an extension of nuisance limited scope of Rylands to special uses of neighbouring land, involving deliberate accumulation of dangerous things - Articulated the requirement for foreseability - Transco Rylands is good law but is a sub species of nuisance confirmed in Cambridge Water Co In Australia - Burnie Port Authority v General Jones absorbed by principles of ordinary negligence with all its difficulties, uncertainties, qualifications, and exceptions - Qualification There may remain cases in which it is preferable to see a defendants liability in Rylands situation as lying in nuisance (or even trespass) and not in negligence In Hong Kong - Hui Yeung Gong v Mok Mo Yin nuisance caused by the work at Ds premises form the independent evidence of the numerous complaints lodged at the management of the company - Chan Ying Wah v Bachy Soletanche Group Found Rylands to be strict liability, nuisance, and negligence - Leung Tsang Hung and Lee Wai Yu v Incorporated Owners of Kwok Wing House it is established that as with negligence, D is not liable in public nuisance unless injury caused to the plaintiff is of a foreseeable type Against being subsumed to negligence - Rule has been part of English law for 150 and it is against gradual incrementalism to simply abolish the rule - Similarity between negligence and Rylands is exaggerated o In negligence contractors are liable for negligent actions and non contractors are liable for his her/ employees negligence

o In Rylands contractors are liable for all actions and non contractors are liable for all non strangers actions, not only negligent actions There is a real need for Rylands o Evidential burden P who are individuals may face evidential burdens that are insurmountable when injured by big buginsess o Environmental/ safety reasons o Difficulties of codification flexibility of common law and circumventing unfair pressure o Negation of parliamentary intentions It makes economic sense to keep Rylands o Lord Hoffman argued that people should be encouraged to insure their own property rather than seek to transfer the risk to others by means of litigation and therefore we dont even NEED Rylands v Fletcher. However, this cant be completely true. o Lord Hobhouses counter-argument, it seems just that those who bring something dangerous onto their land should be required to insure against any loss it causes, whether the loss is to the owners own property or anothers.

Why it should be subsumed into negligence - Negligence has progressively assumed dominion areas once ruled by Rylands can be ruled under negligence o Foreseeability test in negligence covers known to be mischievous rule in Rylands o Standard of care owed under Rylands is very high; but we can say in negligence, standard of care to control dangerous things is also much higher o Defenses such as contributory negligence and volunti non fit injuria overlap o Landover liable for contractors fault in negligence under non delegable duty the type of case in which a landowning defendant would be strictly liable under Rylands would also usually be the type on the case in which the same defendant would be liable in negligence under the concept of non delegable duty since the inherent risk involved in bringing the offending thing onto his land would probably mean that he would not be able to delegate its control to any other person - The rule in Rylands was a separate strict liability tort was not developed with sufficient authority and it has not been adequately supported by subsequent cases the rule in Rylands is vague in application - Cambridge Water Co and Transco suggested that Rylands is actually a sub tort of nuisance but the application of rylands does not cover all nuisances, only ones that are dangerous and does mischief - Difficulty to prove fault tort of negligence has been developed with the concepts such as foreseeability and proximity and res ipsa loquiter as available tools to help claimants assume the defendants duty of care and breach of standard - It is better for strict liability to be codified so that people know exactly what rules to follow - Also for strict liability based on social concerns such as environmental protection, its better to rely on statutory intervention since legislators are in a better place with the empirical information and resources they have Rylands may not be the best guardian of the environment

Nuisance
Focused on interests in land not negligence things perceived to be offensive or annoying Public Nuisance - If bought through the AG, can only get injunction o Must show real risk of infringing their rights o D has to know that nuisance presented a real risk - If brought privately, show that the individual suffered more than the public at large covers miscellany of interferences with public rights: selling impure food; obstruction of highways - Common law crime involving a state of affairs that endanger lives, safety, health, property, or comfort of the public; obstructs the public enjoyment of any right common to the public Ribeiro J Leung Tsang Hung v Incorporated Owners of Kwok Wing House - The AG restrains the nuisance at the instance of the public (a relator action) must go to the AG about the public nuisance - (1) D must have known or ought reasonably foresee that an act or omission which resulted in a nuisance have presented a real risk (not a trivial one) to the public - (2) The defendants act or omission has resulted in a nuisance hazard presenting a real risk of harm to the public by act or omission - For omissions: Ds abilities/resources to neutralize the nuisance are taken into account - Occupiers include: incorporated owners; owners and tenants of flats; but all depend on the facts Private individuals only have an action if they have suffered damage beyond that suffered by the public at large: Id. AG v PYA Quarries - Nuisance must have impact on a sufficiently large class of people to warrant proceedings to stop it AG v Hastings Corp - Noise from occasional car racing affected a sparsely populated area not enough to stop the nuisance Halsey v Esso Petroleum - D operated oil depot near Ps house in a partly residential area P complained of acid smuts damaging his laundry, smuts damaging his car, nauseating smell, noise from lorries, noise from tankers - The test is whether the act complained of is an inconvenience materially interfering with the ordinary physical comfort of human existence - Held that damage to his car was a public nuisance as it was parked on public roads and not in his private lot, clothing was private nuisance, smell was private nuisance, noise was private and public nuisance Private Nuisance - Local residents interest in land can sue if they can show that act or omission denied their property rights - Interference with interest in land: loss/interferences of amenities caused by smell, noise, vibrations, etc - (1) Actionable where D is responsible for the state of affairs causing physical injury to land in which the plaintiff has an interest, or substantially interfering with Ps right to use and enjoyment of such land; (2) and the interference or injury is unreasonable Bolton v Stone (1) - Nuisance is causing or permitting a state of affairs form which damage is likely to result Schwab v Costaki (1)

Neighbour operated brothel and lowered Ps value of house D liable not because emanation of the prostitutes constituted nuisance rather it was considered so offensive as to constitute an actionable nuisance in and of itself

Hunter v Canary Wharf (1) - Building interferes with TV signals building got permission to be built - Not nuisance as nothing emanated from Ds land there was not right to receive TV signals uninterrupted to begin with Bridlington Relay v Yorkshire Electricity Board (1) - Affirms Hunter v Canary Wharf Victoria Park Racing v Taylor (1) - In relation to use of land, it must be a recognized proprietary interests that is to be protected - There is no right to view and prosper from your land Bradford v Pickles (1) - Water flowing onto land case acts of intention and malice generally not relevant P had no right to receive the percolating water to begin with though D was maliciously stopping water from flowing St Helens Smelting Co v Tipping (2) - Action for nuisance arising from noxious vapours the operations must have caused material damage to property to have a cause of action if operations cause mere discomfort it is no grounds to complain Capital Properties v Sheen Cho Kwong (2) - Shower at midnight case has to be unreasonable interference with property rights to have cause of action held not unreasonable for HK residents to shower late at night Silver Fox Farm v Emmett - Use of shotgun in rural areas not unreasonable but if it is used deliberately and with malice then it is different D used shotgun deliberately to ruin Ps foxes Here, malice was taken into account contrasting Bradford v Pickles Korasandjian v Bush - Silent phone calls family members can sue overruled Hunter v Canary Wharf - Members of the owners family cannot sue if you dont have an interest you dont have an action Artco Properties v Yau Chun Wing - Persons with a fleeting connection with land cannot sue P must have a right or interest in land Liability attaches to the creator of the nuisance but can also be liable if D did not create the nuisance but failed to take reasonable steps to remove it Sedleigh-Denfield v OCallaghan - Liability D liable for nuisance (the pipe) even though it was installed by a trespasser because they subsequently gained knowledge of the pipes existence yet failed to take reasonable steps to remove the nuisance despite having ample time to do it D adopted the nuisance Holbeck Hall Hotel v Scarborough Borough Council - Landslide case

Foreseeability have to avoid the foreseeable type of damage but not the extent of damage only owe a measured duty English court of appeal held that D only owed a measured duty to take care to avoid damage to Ps land that it ought to have foresee without further geological investigation damage that occurred was more extensive than could have reasonably been foreseen without carrying out further investigation They foresaw the slip but did not foresee the catastrophic nature of it not liable simply for not carrying out further geological investigation

Defences - Volunti non fit injuria and contributory negligence available Miller v Jackon - Cricket ball case not a defense to say that by moving into the field, P has tolerated the nuisance Allen v Gulf Oil Refinery - Statutory Authority defence legislative intent indicated changes to nature of Ps neighbourhood, cant bring an action Defence of prescription - Right to commit private nuisance by easement over exercising the nuisance continually for 20 years not available for public nuisance Remedies - Interim injunction restrains Ds activities - Mandatory injunction equitable remedy usually available when damages inadequate in practice injunction becomes the primary remedy - Damages if nuisance has caused loss to P may also be awarded in lieu of injunction - Abatement self help eliminate the nuisance by self Regan v Paul Properties - Construction blocking access to sunlight significant financial gap between stopping Ds construction work and Ps light courts reluctant to protect right to light by injunction oppressive to D to grant injunction Kennaway v Thompson - Injunction granted on terms boat racing case Miller v Jackson - Refused injunction in cricket ball case cricket club in the community outweighed Ps protests Economic analysis - Damages should be preferred as it promotes efficiency If P compensated then no one is worse off greater efficiency - P will be entitled to damages that represents diminution of value due to the nuisance - D will not be liable for damage that is different in kind of that foreseeable: Cambridge Water Co - Generally injury to the person or chattel would not be recoverable in nuisance as nuisance seeks to protect interests in land Statutory Nuisance - Refers to statutory provisions that regulate activities, authorize, prevent, or minimize unreasonable interference with lives of others - EG: noise pollution; pollution control

Does not give rise to liability in tort

Trespass
Intentional interference with personal or proprietary interests directness of the interference rather than negligence (D acted intentionally) no need to prove damage (actionable per se) no need for foreseeability of injury Availability of aggravated/exemplary damages you dont get this in negligence Trespass to the person: battery, assault, and false imprisonment Trespass to land Trespass to goods, and the related actions of conversion and detinue

Scott v Shepherd - Squib case squib thrown around a couple times and eventually hits P - It was direct as it was one continuous action that eventually hits P Wilson v Pringle - Before trespass to the person will lie, touching has to be direct and inflict personal injury it is the act that has to be intentional, not the injury Letang v Cooper - Car park sunbathing case Where injury is not inflicted intentionally but negligently, the only cause of action is in negligence (Denning); you can claim either trespass or negligence, but here it is clearly negligence (Diplock) Limitation Ordinance - Time limits placed on bringing action for tort it is 6 years; personal injury is 3 years Battery and Assault - Battery hitting someone/ direct application of force; Assault putting one in fear of it/ apprehension of batter - Battery requires contact mere touching is not enough F v West Berkshire Health Authority - Any touching of anothers body is, in the absence of lawful excuse, capable of amounting to a battery and a trespass Wong Wai Hing v Hui Wei Lee - Telephone threats assault phone threat can also amount to an assault debt collector threat D makes P apprehend fear of violence Chatterton v Gerson - Defenses consent Medical treatment D failed to tell her risks of surgery and P undertook it signed consent form Judgment for D as he informed P of broad nature of surgery not a case of trespass but may be a case of negligence signing of consent form is not a defense if no explanation has been given Stoffberg v Elliot - Mere fact of going to the hospital is insufficient for consent Gillick v West Norfolk Wisbech Area Health Authority - Defences consent Medical treatment capacity to consent guidance to underage daughters about birth control Held that doctors could prescribe contraceptives where a child under 16 can fully

understand the implications of the proposed treatment (a Gillick competent child) can give her own consent to medical treatment Lane v Holloway - Defenses provocation provocation does not reduce compensation, but reduces aggravated damages provocation doesnt become a defense to the action but is taken into account for damages the use of force must be in proportion to the provocation Horkin v North Melbourne Football Club - Defenses contributory negligence the deterrence policy of intentional wrongdoing suggests that contributory negligence should not be a defense need to look at policy considerations when using contributory negligence False Imprisonment - Direct and intention, or negligent act, causing the total restraint of Ps liberty within an area limited by D Bird v Jones - Policeman didnt let P cross road due to public parade failed at suing for false imprisonment Robinson v Bailman New Ferry - P entered into ferry without paying claimed false imprisonment as she could escape when she pays the fare when there is reasonable means of escape then it is not false imprisonment Trespass to Land - D enters and remains in land or causes physical matter to come into Ps land Gregory v Piper - Placed something on Ds own land, but wind picked it up to Ps land even though it was an indirect act D still liable for trespass due to foreseeability Lam Wing Ching v Chow Kum Wing - Entry into someones land P enters D land and says D is not a lawful tenant as D didnt have possession of the premises whether or not 3rd party has possession is irrelevant as D has rights of the land against the whole world except the actual owner for P to be successful P must have exclusive possession of the land Bernstein v Skyviews and General Ltd - P had an estate, D took aerial photos Cannot sue D for trespass to land although P has rights to use and enjoy the space above his land, must balance the rights of the owner and the general public to use air space Westlands Estates v Swilynn - Air conditioner overhanging Ps land held that it did not interfere with Ps use of land as people could still get in and out of the land - Used Bernstein to reason this Tilbury thinks its wrong Remedies Woolderton v Costain - Cranes overhanging Ps land due to construction P sought injunction and it was granted on terms if the trespass was to be indefinite then they would be entitled to injunction but there is a date of supposed completion in this case

Injunctions available but will be awarded on terms, or the court my award damages in lieu

Defenses to trespass to land - Consent; contractual license; lawful authority; necessity Trespass to Goods - Interfere directly with goods in the possession of P - Not like conversion trespass to goods does not assume ownership of the goods - Actionable per se, the amount of damages is at the discretion of the court will get nominal damages at least - If goods are destroyed, P will get its market value plus consequential losses loss of profit from a profit generating chattel Fouldes v Willoughby - D removed Ps horses from his boat when he did not want to carry them P refused to take the horses back to shore so ferryman let them loose at shore - Trespass to goods is distinct from conversion of goods a simple taking of goods with no intention of making further use of them is not trespass in order to constitute conversion it is necessary that there is an intention to destroy or consume the good to the prejudice of the lawful owner Hartley v Moxham - Ingredients of action directness and intention there is no liability for locking the door room in which Ps goods are stored NCB v Evans - P placed a cable under his land without anyone knowing D employed by authorities to dig a trench destroyed Ps cables - Accident was attributable to P for placing the cable there with no notification D had no knowledge inevitable accident gave D a defense to action of trespass Conversion - Not a trespass interfering with ones right to the chattel - Nemo Dat Quod Non Habet no one can give title to something which they dont have a title in the first place most common for stolen cars - Must be deliberate conduct and not accidental - Compensatory damages available - The thing has to be legally owned or else it cant be converted but land cannot be converted as it is always there Kuwait Airways Corp v Iraqi Airways Co - Ingredients of conversion (1) Ds conduct must be inconsistent with the rights of the owner or other person entitled to possession; (2) conduct must be deliberate and not accidental; (3) conduct is an extensive and encroachment on the owners rights that it excludes him from use and possession of the goods Hollins v Fowler - D bought something that is not his property Each person in a series of conversion wrongfully excludes the owner from possession of his goods and so converts those goods D was bona fide purchaser but was still liable as the sale was a fraud on the true owner Perry v BRB

Withholding goods P has steel in Ds premise but D refused to return them due to union strike D liable as the goods were wrongfully converted by denying P the rights of ownership (including possession) damages were not an adequate remedy

Penfolds Wines v Elliott - Using the plaintiffs goods Wine invoice said that bottles were the property of the company D used bottles contrary to the invoice held that there was no conversion as filling up those bottles with something else did not involve exercising dominion over them not an extensive encroachment on the possessors rights Parker v BA - Receiving goods from a finder, except where an occupier of the property on which the goods are found has a superior claim P in a lounge, found a bracelet, handed it over to Ds employees and bracelet was sold - P in taking the bracelet acquired control of the rights against the true owner and acted honestly to discharge his obligations as a finder by attempting to find the true owner Ps rights cannot be displaced by D and has those rights against the world but the true owner - If it was acquired with dishonest intent then P may not have rights to it Armory v Delamirie - Chimney sweeps jewel P entitled to the full value of the converted chattel and any consequential loss that is not too remote if there is doubt about the value, P is entitled to the highest possible value - Omina Praesumunter Contra Spoliatorem everything is presumed against the wrongdoer Dobson v North Tyneside Health Authority - Corpse is not an item of property so a corpse cannot be converted nothing can happen to a person who steals a corpse in civil law Moore v Regents of University of California (not applicable in HK) - Taking a (discarded) kidney without permission for medical research is not conversion obiter: if the kidney is mummified then it can be conversion Williams v Phillips - Garbage on your property can be converted cannot diverse from property rights since garbage is capable of causing someone injury, or trespass over others property, it is also capable of being converted OBG v Allan (not applicable in HK) - Conversion only applies to chattels conversion does not apply to economic loss conversion cannot be extended to intangible things D took control of Ps business because D mistakenly believed he was appointed receiver and caused business losses Morison v London County and Westminster Bank - Exception to conversion not being applicable to intangible things the value of the documents (stock certificates) being represented can be converted and recovered BBMB Finance v Eda Holdings - Conversion can be extended intangible things the value of documents representing debt or obligation of some value as having the same value of what it represents Detinue - An action for detinue is the primary claim for the return of goods or their value

A proprietary remedy where P, who is entitled to immediate possession, demands the delivery of the goods from D who wrongfully detains them Prerequisites of the remedy: P must demand the goods; D must unjustifiably refuse to deliver the goods or take more than a reasonable time to return them

General and Finance v Cooks Cars - In detinue, P can obtain the goods himself although this is effectively the subject matter of the court - Detinue can result in 3 forms: (1) the value of the chattel assessed and damages for its detention; (2) a judgment for return of the chattel or recovery of its value and damages for detention; (3) return of the chattel and damages for its detention Strand Electric v Brisford Entertainments - Damages are awarded in detinue for the detention of the goods, even where it looks as if the plaintiff has suffered no loss - If D can show that P would not have suffered any loss because nobody else would have hired out the switchboard in the period of time, P wouldnt have been able to use it to produce a profit anyways damages for detention are assessed on the basis that it would be hired out

Defamation
Publication of an untrue statement which reflects on a persons reputation and tends to lower him in the estimation of right thinking members of society generally Protects an intangible aspect of a person when we move away from reputation things become difficult Must establish: (1) defamatory words (or other means of communication); (2) of and concerning of P; (3) have been published or otherwise made known to a third party

Libel and Slander - Libel: statement published in a permanent form (newspaper, TV, book) + actionable per se (no need to prove damage) - Slander: statement made in a non permanent form (spoken words generally, gesture) + special damage (some loss quantifiable on financial terms such as loss of job) Defenses to the action - Justification the words used are substantially true - Fair or honest comment words amounted to a comment honestly made upon true or privileged statements of fact eg: artist, critic - Privilege that the alleged defamatory matter is absolutely privileged or uttered on an occasion of qualified privilege eg: Parliament, reference letters - Public Interest matter qualifies as Reynolds privilege or is reportage - Consent: Volunti defense New York Times v Sullivan - Constitutional and human rights dimension Libel case newspaper published defaming statements of public official Whether the rule of liability curtails the freedom of speech and of the press - A public official suing for defamation must prove that the statement was made with actual malice (that statement was false or with reckless disregard as to its truth) in relation to his official conduct proper safeguards of constitutional rights Defamatory - Capacity whether or not the words are capable of bearing a defamatory meaning a question of law for the judge; whether the words conveyed a defamatory meaning a question of fact - A defamatory statement is one that is calculated to injure the reputation of another by exposing hatred, contempt or ridicule (Parmiter v Coupland) and tends to lower the claimant in the estimation of right thinking members of society (Sim v Stretch) Sin Cho Siu v Tin Tin Publication - In a suit for defamation, must establish: (1) that publication of statement made by D; (2) that the statement refers to P; (3) that the statement is defamatory to P - Guiding Principles: (1) consider the natural and ordinary meaning that the words mean to ordinary people; (2) the ordinary reader would not be over keen to look for a scandal when reading; (3) the form of defamatory imputation is irrelevant; (4) the effect of the publication is one of impression what the message conveyed is according to ordinary readers; (5) Ds intention is irrelevant; (6) the context of the statement should be read may extend to include materials placed side by side or proximate to the article. Lewis v Daily Telegraph - Natural and ordinary meaning of statements are the words capable of conveying the message of fraud? whether or not an ordinary person would be able to draw a conclusion from the published statements Peregrine Investments v Associated Press - Whether the words would cause an ordinary person to draw the meaning of the message

Cassidy v Daily Mirror - Allegations of someone living with a married person when assessing the content of a statement strict liability applies P successful as she proved that people believed she was living in sin due to the publication Li Yau Wai v Genesis Films - Use of Ps picture in a movie in the movie P was dead held that it was capable of bearing defamatory meaning D used Ps picture for commercial gain although the picture was given in confidence - Breach of confidence: (1) the information itself must have the necessary quality of confidence in it; (2) the information; (3) there must be an unauthorized use of that information to the detriment of P Youssoupoff v MGM - To say that someone was raped in a film D said that P, a princess, was raped in a film if the words tend to shun P and causes her to be avoided without moral discredit on her part are entitled to bring an action Sim Hok Gwan v Tin Tin Yat Po - D said that doctors were negligent to babies and caused brain damage not liable as D did not specify a specific person in the statement Berkhoff v Burchill - To say that someone is hideously ugly the words would expose Berkoff to ridicule and contempt to call someone ugly whether or not it is true depends on the circumstances of the case - Whether it is calculated to injure the reputation of another without lawful excuse: Parmiter v Coupland - Whether it would damage the reputation of a business person: Tournier v National Provincial Bank - Would the words lower P in the estimation of right thinking people: Sim v Stretch - Whether P would be shunned and avoided: Youssoupoff v MGM It is for D to establish that the matter published is true Innuendo - False innuendo: a meaning beyond the literal meaning of the words, but still inherent in the words, depends on inference from the words that any reasonable reader or listener would draw. It is a meaning that can be drawn by implication by looking at the words - True innuendo: a meaning that is defamatory only in the light of extrinsic facts of circumstances which P has to prove. Words that appear innocent to some people as defamatory to others because they possess special knowledge or extra information: eg. that somebody went to Chung Hing Building. - A claimant can ask the court to consider a statements false or true innuendo. Tolley v Fry - False innuendo D published a picture of P with a bar of chocolate seems innocent but it was understood as an endorsement and ruined Ds reputation Cassidy v Daily Mirror - True innuendo allegations that P was living with X seems innocent but the special knowledge that X is already married makes it a true innuendo Reference to Plaintiff - D does not need to intend to refer to P in the statement Hulton v Jones

D referred to Artemus Jones in France as having a mistress but there is also an Artemus Jones in London of the same name held that D was liable although he did not make reference to the London one

Newstead v London Express - Hulton v Jones applies even where the proposition is true of its intended victim but not of P Publication - There must be publication of the defamation to another person - No publication when a husband conveys defamatory material to wife Theaker v Richarson - D will be liable if publication to a 3rd party was a natural and probable consequence of Ds conduct D sent a letter to P about Ps wife natural and probable consequence of tipping off husband about wifes misconducts Investasia v Kodhansha - A D who posts defamatory matters online will be liable in HK if the material was downloaded in HK and P has a reputation in HK Godfrey v Demon - Defamatory statements published in other jurisdictions must be published in HK to have an action in HK Justification - Defendants who establish that the alleged defamatory matter is true or substantially true have a complete defense to the action D has to justify each and every defamatory statement Sutherland v Stopes - The defense of justification will not fail simply because every claim is not proven Fair Comment - Deals with critical comment on matters of public concern - Requirements for this defense: (1) the comment must be a matter of public interest; (2) the comment must really be a comment and not a statement of fact; (3) it must be made about facts that are true or published on a privileged occasion; (4) the comment must indicate in general terms, either expressly or implicitly, what are the facts on which the comment is made; (5)the comment must have been on that could have been made by an honest person Albert Cheng v Tse Wai Chun - In HK, its content is determined by the constitutional guarantee of freedom of speech in A27 of BL because such comment promotes the freedom - Defeating the defense of fair comment: if P can show that their case falls outside the objective limits set by the requirements of the defense where D does not believe in what he said a defendants purpose or motive does not defeat the defense Absolute Privilege - A person who speaks in absolute privilege can be as defamatory as he wants - Attaches to proceedings in Parliament; Legco no one can question what happens in Parliament - Defamation Ordinance papers published under the authority of LegCo has absolute privilege - Statements made between husband and wife have absolute privilege

Wong Shui Kee v Victor Chu - Judicial proceedings everything associated with judicial proceedings attract an absolute privilege Qualified Privilege Watt v Longsden - Where the person making the communication has an interest of duty (legal, social, or moral) to make it to another person who has a corresponding interest or duty to receive it - P left job and D published a work report which included his drinking habits and affairs as part of the report there is no interest in disclosing his personal information and there is an interest in disclosing his work performance Ho Ping Kwong v Chan Cordelia - Dispute between neighbours where one believed the other was acting dishonestly and published information to members of the body corporate - A defendant loses the qualified privilege where the plaintiff proves that the defendant acted with malice, without the belief in the truth of the communication or for an improper motive - Two aspects of malice: where you dont believe in the truth of what you said; where you are acting out of spite - Very difficult to prove malice just because one loses it is not malicious Reynolds Defense - Qualified Privilege did not give a general defense to newspapers to publish information considered of public interest qualified privilege extended to cover mass media - Reynolds Defense is a response to develop a defense of honest publication for concerns about freedom of speech - The privilege applies to the material rather than the occasion and malice is built into the conditions where the material is privileged - Enables interference with freedom of speech to be confined to what is necessary in the circumstances of the case. - Defense can be raised where it is clear that the journalist had a duty to publish an allegation even if it turns out to be wrong news papers are all about being published in a hurry - Defense affirmed in Jameel v Wall Street Journal Conditions (non-exhaustive) for Reynolds Defense - The seriousness of the allegation the more serious the charge the more public harm will be caused if the allegation is not true - The nature of the information and the extent to which the subject matter is a matter of public concern - The course of the information some informants have no direct knowledge of the events, some are being paid for their stories - Steps taken to verify the information - Status of the information the allegation may have already been the subject of an investigation which commands respect - The urgency of the matter news is often perishable - Whether comment was sought from the plaintiff but an approach to the plaintiff is not always necessary - Whether the article contained the plaintiffs side of the story - The tone of the article an article can raise queries and need not adopt allegations as fact - The circumstances of the publication, including timing Reportage Defense

Where someone just reports on what each person said idea that newspapers simply reports without commenting on the truth of the matter Regarded as a special example of the Reynolds privilege, but without the need to establish the accuracy of the publication

Robers v Gable - Reportage is the neutral reporting without adoption or embellishment or subscribing to any beliefs in its truth of attributed allegations of both sides of a political and possibly some other kind of dispute - It is in the public interest of what was published Damages Sin Cho Siu v Tin Tin Publication - P claimed compensatory damages and aggravated damages o 3 functions: to act as consolidation from distress; to repair harm to reputation; and as a vindication to his reputation - Vindication award for defamation must be a demonstrable mark that reputation has been damaged - Damages for economic loss allowed if it reflects on Ps professional capacity - Aggravated damages can encompass a number of aspects of Ds conduct: failure to apologize; unjustifiable persistence in the libel or plea of justification; malice; recklessness as to the truth; lack of honest belief in what was said - Dislikes the awarding approach as it tends to lead to large damages payments hard to say that a persons reputation is worth more than physical well being Who can sue? - Living persons can sue to protect their reputation Ming Kee Manufactory Ltd v Man Shing Electrical Manufactory - Traditional Corporation can sue to protect their business reputation Jameel v Wall Street Europe - No need to prove financial loss LARCO s20 (1) - Estates of deceased persons cannot sue Derbyshire County Council v Times Newspaper - Government bodies cannot sue as every citizen can criticize government public good Hong Kong Polytechnic University v Next Magazine - Public universities can sue as they do not take part in governance and since they were slandered it affects their reputation among the community

Distress, Harassment, Breach of Confidence, and Invasion of Privacy

These concerned with the extent of whether Tort will protect interests other than physical injury, reputation, psychiatric injury, etc.

Distress Wilkinson v Downton - There may be a tort of intentional infliction of harm to protect conduct willfully done and calculated to cause physical harm - Joke willfully made to P and calculated to cause her severe nervous shock Janvier v Sweeney - Applied Wilkinson v Downton D accused P of communicating with German spies which caused P to suffer severe nervous shocks Wainwright v Home Office - D must have acted in a way which he knew was unjustifiable and intended to cause harm or at least acted without caring whether he caused harm or not must be a recognized psychiatric injury consistent with the developments in the law of tort - Strip search case Harassment Khorasandjian v Bush - D couldnt accept break up and made harassing phone calls to P at her parents house gravamen of the complaint lies in the harassment which is just as much an abuse, or an invasion of her privacy allowed nuisance claim even without proprietary interest in land - Goff: does not consider possibility of developing the law of harassment since it received statutory recognition Protection from Harassment Act (UK) - S4 encompasses putting people in fear of violence - S7 harassing a person includes: alarming or causing the person distress - S2 Makes harassment a criminal offence - S3 Allows civil remedies (injunction and damages) for harassment Malcomson v Mehta (Singapore) - Established tort of harassment Harassment is a course of conduct whether by words or action, directly or through third parties, sufficiently repetitive in nature which D reasonably knows would cause worry, emotional distress, or annoyance to P - Improvements in technology makes it easier to stalk and the law should provide recourse for victims of harassment - Hunter v Canary Wharf: no reason why a tort of intention should be excluded from compensation for mere distress, inconvenience or discomfort - Wilkinson v Downton: D intended to carry out the act and the results were within reasonable contemplation - Janvier v Sweeney: intention to terrify the plaintiff for the purpose of attaining an unlawful object Discrimination - Usually, the development of discrimination law is through legislation rather than common law

The applicability of the discrimination statute depends on their wording, which may move away from the concentration on the defendants conduct as intentional or negligent

Yuen Sha Sha v Tse Chi Pan - D alleged his conduct was a practical joke recorded P undressing herself as a prank If Ds conduct was intentional, it was enough to constitute discrimination according to the statutory lines Ma Bik Yung v Ko Chuen - Remedial structure tends to be more flexible possibility of a court ordered apology but generally unviable because of rights issues but unwilling apology not part of the scope of Disability Discrimination Ordinance Breach of Confidence - Equitable action developed in equity - Used traditionally to protect commercial, intellectual and governmental secrets CoCo v Clark - Can bring an action for breach of confidence in situations where D took a commercial idea from P P wanted to develop a moped as a commercial idea, Ds design looked very similar to Ps - Test for breach of confidence: (1) the quality of the confidence; (2) the circumstances importing an obligation of confidence; (3) unauthorized use to the detriment of the person communicating the information Linda Chin Ling Koo v Lam Tai Hing - University department where there is an allegation that D used Ps research can be a breach of confidence action founded in conscience surreptitious nature of D Argyll v Argyll - Ingredients of breach of confidence: (1) the information was of a confidential nature; (2) it was communicated in circumstances importing an obligation of confidence; (3) there was an unauthorized use of the information - Equitable considerations will be considered when determining the availability of the action P has to come to equity with clean hands the prohibition of D using the information against his wife is that there is a confidential relationship or spousal privilege which exists between married couples Privacy - Because private information is generally confidential, the doctrine of confidentiality is capable of protecting privacy - UK developed an action to protect privacy as required by ECHR (via confidentiality) Ash v McKennit - There is no tort of invasion of privacy English courts have to proceed protecting privacy via tort of breach of confidence right to free speech and privacy has to be taken into account look at the nature of the information and ask whether it should be protected - Case of breaching confidence by way of conduct inconsistent with a pre existing relationship rather than simply purloining private information Campbell v MGN - Naomi Campbell undergoing crack rehab considered private information Ps right to privacy is more important than freedom of press in this case Ash v McKennit

Emotional state at a particular time is considered private Information that is protected by contract?

Mosley v News Group - P enjoys S&M information about intimate aspects of a persons life, their sexual preferences, or practices is considered private A v B and C - Extra marital affairs of a married man not entitled the same protection in respect to temporary relationships freedom of press protected by A10 of ECHR there is no identifiable public interest in this case Murray v BPL (ECHR) - Identity of children of celebrities considered private court rejected that in the absence of distress or like caused, the mere taking of a childs photo is not actionable (no requirement of damage?) it all depends on the circumstances court must strike a balance between the childs rights to respect for his or her private life under A8 and on the publishers rights of freedom of expression under A10 of ECHR here it was struck in favour of P Van Hannover v Germany (ECHR) - Aspects of the life of celebrities considered private children of celebrities in greater need of protection than adults although freedom of expression extended to the publication of photos, the rights and reputation of others took on particular importance as the photos didnt concern the dissemination of ideas, but of images containing very personal or intimate information about the individual

Remedies
Compensation: damages for personal injury and death; damages for injury to property Restitution Punishment Specific relief

Compensation - An award of damages to put the injured person into the position that they would be had there been no wrong looks to restore the P back to original position so far as it is possible to do so with money: Livingstone v Rawyards Coal Co - Personal injury may give rise to more intangible losses pain and suffering is it really possible to compensate for intangible loss? Lump sum rule of damages once and for all rule - In personal injury, injury may extend to an indefinite time in the future courts can only make a guesstimate also means that awards will almost certainly be wrong in giving too much - High Court Ordinance s56A exception to the rule court has power to postpone assessment of damages where medical condition of P would deteriorate seldom used Alternatives to lump sums in personal injury - Periodical payments, structured settlements, and expanded social security system - But note the general preference of plaintiffs for awards of lump sums in jurisdictions that allow for choice Components of a personal injury award (the heads of damages) - Pre trial financial loss (special damages); post trial financial loss; non financial loss not watertight categories - Everything subject to remoteness of damages - Psychiatric damage is merely the damage which grounds the cause of action still have to work out the financial and non financial loss it gives rise to for the purpose of damages Special Damages - Can generally be established with reasonable certainty includes: - Loss of income, medical expenses, health care costs suffered until the trial - Loss of the claimants ability to provide gratuitous family care: LARCO s20C(4) - The cost of caring for the plaintiff by a family member - Loss of mandatory provident fund of 5% of income - Medical expenses includes Chinese medical treatment and the cost of care by family members - Interest will generally be awardable on special damages Financial loss after trial - Includes: lost earnings in the future; loss of earning capacity; cost of medical expenses/ care in the future Future lost earnings - The difference between what Ps earnings would have been had he not been injured and what he can now earn as a result of the injury - May be measured by reference to lost of business profits where relevant may have regard on Ps duty to mitigate loss of earnings - Objective is to award lump sum that will now notionally be invested, the fund yielding an income stream composed of the capital. The income components of the fun will on until, at the end of the period of injury, it will be exhausted.

Multiplicand - Amount of Ps annual loss of wages after tax (the award itself is not taxable) illegitimate earnings may be included multiplicand being what P loses each year the difference between what P was earning and what P can now earn Multiplier - The number of years that P will sustain the injury based on the number of years Ps injuries will last until retirement ignores the reduction in Ps lifespan that has been caused by the injury - Multiplier is discounted to reduce the lump sump payment to present value based on an assumed real rate of return of 4.5% and for the contingencies of life (eg. when one may slip on a banana and die). o Allows for inflation? o Why are contingencies always negative? - In practice the multiplier is fixed by reference to multipliers that have been used in comparable cases, and the courts are reluctant to discard this conventional approach: Chan Pui Ki v Keung On; Cookson v Knowles - Chan Pui Ki depressing the multiplicand allows for contingencies of life and makes allowance for what would be earned notionally for the funds awarded - Glofcheski p. 373: the multiplicand/ multiplier can be abandoned in favour of a global approach in cases of extreme uncertainty. In cases of large awards, an amount may be given for fund management. Account may be taken of collateral benefits such as payments under statutory compensation schemes, but not insurances that the plaintiff has purchased nor charitable payments (375 76). - Damages do not take into account insurance payments in calculating damages. Lost earning capacity - Compensates P who is likely to become unemployed due to the injury and the financial loss due to subsequent disadvantage in the labour market: Chan Chi Shing v Tsang Fook Metal - A related loss is the loss of congenial employment the loss of a particular employment to which P was especially attached. The award of this head of damage is not common: Glofcheski 376 Further health and domestic care expenses - Reasonable health care expenses are recoverable: Chow Cheung Ching v Right Base Construction; Chan Pui Ki v Leung On (future psychiatric treatment) - Can include costs of domestic care and attention (Chan Pui Ki), including that which may be provided gratuitously by relatives (Chan Yuk v Dragages) - Claim can include an amount for the impairment of the injured persons ability to render gratuitous services to a dependant: LARCO s20C(4) Non financial (general damages) PSLA - Includes pain and suffering and loss of amenities of life (loss of enjoying life to the fullest) - Court classifies the loss as serious, substantial, gross, and disastrous to each of which a range applies: Chan Pui Ki. But the categories are guidelines that are not mutually exclusive: Chan Yuk. Comparisons made with like cases. - Award for PSLA may be made to an unconscious plaintiff: Glofcheski 388 - A related head is damages for loss of society under LARCO s20C(1). Damages for death - Claims by dependants under Fatal Accidents Ordinance and by the estate under LARCO s20. FAO applies to all torts, LARCO to most.

FAO claim principally for the financial value of the dependency to P, but also includes damages for bereavement and funeral expenses allows dependants to claim in respect of death. Claims the economic loss which the dependants have suffered as the result of the loss of the dependency. LARCO claim is restricted in the financial loss recoverable (loss of accumulation of wealth) but may include the non financial loss suffered by the deceased before death

Damages for injury to property - Potential measures of damages are the difference in value and cost of cure, considerations of mitigation being relevant to the appropriate measure in any case. o Darbishire v Warran P claiming for injury to his car suffered in a collision, awarded cost of repair o OGrady v Westminster Scaffolding Sports car which is joy of owners life car reduced to rubbish by renovations awarded damages for cost of cure (a lot of money) but he should have been given difference in value of the car (market value) - Profit earning chattels property is valued as an ongoing concern o Liesbosch Dredger v SS Edison injury to a ship engaged in valuable profit loss valued as an on going concern interest ran from the date of the loss P got cost of a comparable vessel, cost of getting a substitute, and whatever losses flowed from disturbances to ships contracts Controversial Issues - Where cost of cure is the appropriate measure of damages, must allowance be made in Ps damages for betterment? - If mitigation is relevant, what if P cannot mitigate and so increases the loss? If P has no choice because P is impecunious (impoverished), D has to take P as he is: Lagden v OConnor Restitution - Refers to gain based measures of recovery eg. a gain that D has received or a profit that D has made available in the context of tort either because restitution is an appropriate response to the tort or because there exists an independent action in unjust enrichment - Available where a tort involved a breach of property rights eg. cases wehre D has used Ps property without loss to P (such as mesne profits cases): these have already been considered in trespass mesne profits where D unlawfully collects Ps rent on Ps land/ sums payable to person with right of immediate occupation - Restitution is inappropriate for breach of statutory duty: Devenish - Account of profits is not a response to a non appropriative wrong: Forsyth Grand Punishment - Punishment in civil proceedings is controversial because civil law does not intend to punish people it is reserved for the state it is a function of criminal law there is no crime in civil law Nulla Crimen Sine Lege no crime without a law - Rookes v Barnard o Exemplary damages restricted to 3 cases: (1) oppressive, arbitrary, or unconstitutional action by servants of the government; (2) cases in which Ds conduct has been calculated to make profit that will exceed the compensation payable to P; (3) cases in which exemplary damages are authorized by statute o HK followed Rookes v Barnard although most common law jurisdictions have not - Exemplary different from aggravated damages: aggravated damages are compensatory damages awarded by reference to the unacceptable conduct of D Specific Relief - Available in response to a tort in the form of an injunction (not specific performance)

The form of the injunction will inform the discretionary considerations informing its availability mandatory injunctions may be more difficult to obtain: o Redland Bricks v Morris whether you can get mandatory injunction to get D to continue paying child support more difficult then prohibitive/ negative injunction Mandatory injunction requires D to do something Quia Timet Injunction to restrain wrongful acts which are threatened or imminent but have not been commenced yet

Law and Equity - Very similar: Unreasonable and Unconscionable for example - Both give a lot of discretion to the courts - Cant have a legal remedy for an equitable right - Equitable remedies: restitution; injunction; damages