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Date Posted: 08:40:39 01/15/03 Wed
Author: 何焯華條賓周+歡迎炸佢: jameslam@hkpro.com.hk
Subject: 淨屌何焯華條仆街呢+歡迎炸佢: nancychow@hkpro.com.hk
In reply to: 赯地兵猾㏄+舧蔦: jameslam@hkpro.com.hk 's message, "瞓蝬赯地兵げ刁㎡+舧蔦: nancychow@hkpro.com.hk" on 19:52:37 12/28/02 Sat

Negligence

Negligence is by far the most important of torts for several reasons. It forms the cause of action in the majority of cases brought in tort; its scope is very wide; and it may also be an element in liability for other torts. The term negligence is also found in the context背景 of breach of contract, for example, where an architect is alleged聲稱的 to have carried out negligent疏忽的 design or supervision管理. A common type of action in negligence heard in the courts is that between two or more drivers involved in a road accident. In such cases it is not infrequent for all parties to be held to be negligent疏忽的 in some degree.

Losses recoverable in negligence

The law of negligence is now to be regarded as concerned with actual damage in the form, usually, of physical injury to persons or property, necessarily caused by latent潛伏的 defects. Ordinarily, the property must be something distinct與別不同的/清楚的 from that which the negligent defendant被告 has supplied or constructed. The question whether a local authority will ever始終 be liable for the negligent exercise of his powers in accordance一致 with these principles, remains to be decided under English law. It is to be noted that in all the local authority cases, none involved loss or injury of a type that would now be regarded as recoverable. The Murphy case has also settled, for the present, the question of when damage of when damage to a building is to be regarded as ‘ purely economics loss’ and therefore unrecoverable. In both Dutton and Anns, it was held that the cracks to the building themselves constituted構成 physical damage. This analysis was decisively rejected in Murphy. In the result, expenditure on repairing damaged or defective parts of buildings will not normally be recoverable, unless falling within one of the exceptions例外 referred to提到 above.

In some negligence cases, the question arises which losses are property to be regarded as economics, and where the line is to be drawn. In Sparton Steel v Martin, 14 the Court of Appeal上訴 had to consider issues arising from the negligent cutting of an electricity cable to a factory. This caused physical ‘damage’ to certain products which were being manufactured in the plaintiff原告’s machinery機械 at the time of the power cut. The plaintiff recovered恢復/重新獲得 the value of the material damaged and also loss of profit on this material as consequential必然的(economics) loss. The Court of Appeal refused to allow recovery in respect關於 of other material which the plaintiffs were unable to process during the power cut, regarding this as purely economic. The case has been much discussed, particularly as to whether these distinctions were matters of law or policy. Lord Oliver, in his judgment in the Murphy case commented on Spartan Steel as follows:

‘The solution to such borderline界線 cases has so far been achieved pragmatically忙碌, not by the application of logic邏輯but by the perceived察覺 necessity as a matter of policy to place some limits-perhaps arbitrary limits-to what would otherwise be an endless cumulative chain bounded only by theoretical foreseeability.’

Debate辯論 will continue as to when and on what legal basis certain losses are irrecoverable. However, the general rule that losses in tort arises from physical damage is now firmly established.

Breach and damage

If a duty of care exists, it is necessary to establish a breach of that duty. The standard of care required is that of a ‘reasonable man.’ This is a legal abstraction分離 which represents a person who weighs up估量the circumstances, considers the characteristics of the persons endangered快要絕種的, takes greater care when there is greater danger, and never loses his temper. He is sometimes epitomised摘要 as the man on the Clapham omnibus. The duty is to guard against probabilities, not bare僅僅的 possibilities. But where the risk is greater, such as where children are involved, reasonable possibilities must be guarded against. The required standard of care thus depends on the circumstances, but in any particular case there is one appropriate standard below which a person is legally negligent. The term ‘gross negligence’ is sometimes used in contracts, but the adjective has no legal significance in the law of tort. There is only one appropriate standard of care, any breach of which, gross or slight, incurs liability in law.

Finally, the injury to the plaintiff must have been caused by the defendant’s act, and the damage must not too remote遙遠. If the plaintiff succeeds in his action in negligence but the loss was caused partly by his own default不履行, the court may reduce the damages recovered under the Law Reform (Contributory Negligence) Act 1945. This provides by section 1:
‘Where any person suffers damage as a result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated挫敗 by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof關於… shall be reduced to such extent as the Court thinks just and equitable having regard to the claimant主張者’s share in the responsibility for the damage.’

Contributory捐助 negligence applies also to breaches of statutory duty.

Employers’ liability

An employer may be liable for injury caused to his employee in three ways:
(1) if the injury is caused by the negligence of a fellow伙伴 employee acting in the course of his employment;
(2) if it is caused by the employer’s breach of a statutory duty;
(3) if it is caused by the employer’s negligence. The third possibility is discussed here.

There it is no doubt that an employer owes his employees a duty of care. The problem for the common law has been to trace跟蹤its extent. It has been defined as a three-fold duty: the provision of a competent有能力的 staff of men, adequate material, and a proper system and effective supervision. However, the duty can be viewed as a single duty to take reasonable care for the safety of employees in all the circumstances. Thus the duty is not absolute, and an employer is only liable for injury caused by his failure to take sufficient care.
The standard of care that is required varies with the circumstances so that where potentially dangerous plant is being used the employer may have to provide safety devices設備 or protective equipment. The employer remains liable for breach of his duty even though he may delegate委派 its performance. In McDermid v. Nash Dredging,22 the plaintiff had been employed by the defendant but was required to work on board a tug拖船 owned by a Dutch company and under the control of their captain. The plaintiff was injured by an accident caused by the captain negligence and the issue arose whether the employer remained liable, Lord Brandon in the House of lords restated the relevant principles of the law as follows:

‘First, an employer owes to his employee a duty to exercise reasonable care to ensure that the system of work provided for him is a safe one. Secondly, the provision of a safe system of work has two aspects:(a)the devising設計of such a system and (b) the operation of it. Thirdly, the duty concerned has been described alternatively as either personal or non-delegable不可委託. The meaning of these expression is not self-evident明顯的 and needs explaining. The essential characteristic of the duty is that, if it is not performed, it is no defence辯護 for the employer to show that the he delegated its performance to a person, whether his servant僕人 or not his servant, whom he reasonably believed to be competent to perform it. Despite such delegation the employer is liable for the non-performance不履行 of the duty.’

However, where an employee is experienced and the danger apparent外觀的, the duty upon the employer may be a limited one, particularity where the employer is not in control of the premises. In the case Wilson v. Tyneside Window Cleaning 23 the plaintiff, an experienced window cleaner, was injured when a handle came away from a window, causing him to lose his balance. He had never received any instructions regarding safety, expect that if he found a window which presented unusual difficulty or risk he was to report for instructions. It was held that there was no breach of duty by the employer.Pearce L.J. observed:

‘The master’s own premises are under his control: if they are dangerously in need of repair he can and must rectify the fault at once if he is to escape the ensure of negligence. But if a master sends a plumber水管工人 to mend修理 a leak in a respectable private house, no one could hold him negligent for not visiting the house himself to see if the carpet in the hall creates a trap. Between these extremes未端的 are countless數不盡 possible examples in which the court may have to decide the question of fact: did the master take reasonable care so to carry out his operations as not to subject those employed by him to unnecessary risk. Precautions謹慎 dictated支配 by reasonable care when the servant works on the master’s premises may be wholly prevented or greatly circumscribed下定義 by the fact that the place of work is under the control of a stranger陌生人. Additional safeguards intended to reinforce the man’s own knowledge and skill in surmounting克服 difficulties or dangers may be reasonable in the former case but impracticable不能實施的 and unreasonable in the latter.’

The employee must show regard for his own safety, and if he is injured as a result of his own negligence this may reduce or even extinguish the employer’s liability. The employee also owes the employer a duty to exercise reasonable skill and care at his work and may be liable to his employer for causing injury in breach of this duty.

These general common law principles apply equally to work on construction sites. However, in many industries, particularly construction, these exist detailed regulations and this is particularity so following recent directives from the European Union.

Nuisance
Private nuisance may be defined as an unlawful非法的 interference with the use or enjoyment of another person’s land. The interference may result in damage to property, such as by flooding or vibrations, or it may be only an annoyance煩惱, such as excessive noise or dust. There must be a substantial實在的 interference. A nuisance is often a continuing state狀態 of affairs事情, although an isolated happening may support an action in nuisance. Neighbors must exercise give and take, but deliberate慎重的 acts intended to annoy使生氣 neighbours can create an actionable nuisance. Persons who live in noisy or industrial neighbourhoods must usually put up with the attendant discomforts, although actual damage to property will be actionable.
Usually the only person who can sue控告 for nuisance is the occupier of the land, although other persons may be able to sue on the same facts, for instance in negligence. The person liable is usually the occupier佔有者 of the land or premises前提 where the nuisance exists, but the person who created the nuisance may be liable. Thus, prima facie初步印象 a building contractor will be liable for interference with adjoining land caused by the construction operations, but the employer may also be liable.

Unlike negligence, liability for nuisance does not depend primarily首要地/主要地 on the standard of conduct of the defendant被告, Thus, it is not necessarily a defence擁護 to nuisance that reasonable care was taken to avoid it. But in the context of building and construction operations, those carrying out such work are under a duty to take proper precautions預防 to see that nuisance is reduced to a minimum. Thus, in Andreae v. Selfridge29 where a demolition contractor took no steps to minimise noise and dust near to the plaintiff’s hotel, an actionable nuisance was created for which the employer was liable.
Sir Wilfred Green M.R held:
‘Those who say that their interference with the comfort of their neighbours is justified證明 because their operations normal and usual and conducted with proper care and skill are under a specific duty, if they wish to make good that defence, to use that reasonable and proper care and skill. It is not a correct attitude to take to say: ‘We will go on and do what we like until someone complains.’ That is not their duty to their neighbours. Their duty is take proper precautions預防, to see that the nuisance is reduced to a minimum. It is no answer for them to say:’But this would mean that we should to have to do the work more slowly than we would like to do it or it would involve putting us to some extra expense費用.’ All those questions are matters of common sense and degree and quite clearly it would be unreasonable to expect people to conduct their work so slowly or so expensively, for the purpose of preventing a transient短暫的 inconvenience, that the cost and trouble would be prohibitive禁止. It is all a question of fact and degree and must necessarily be so.’

A nuisance may also be controlled by the local authority under the Environment Protection Act 1990. Sections 79 and 80 empower授權予 the authority to serve an abatement減少 notice in respect of a ‘Statutory Nuisance’ as defined by the Act. This includes:

‘(a)any premises in such a state as to be prejudicial引起偏見的/有害的 to health or a nuisance;
(d)any dust or effluvia惡臭的 caused by any trade, business, manufacture or process and being prejudicial引起偏見的/有害的 to the health of a nuisance to the inhabitants居民 of the neighbourhood;
(e)any accumulation or deposit which is prejudicial to health or a nuisance.’

Where a statutory nuisance is not abated减少/緩和, the authority may acquire powers to carry out necessary work. Under the control of Pollution Act 1974 a local authority has powers to control noise on construction sites. They may serve a notice restricting the use of specified plant, restricting hours or work and limiting the level of noise. The act also permits the contractor to obtain the prior consent of the authority to the methods of work proposed.30

Rights of support
A nuisance may be committed by interference with a right of support of land. There is a natural right of support for unweighted land, and a nuisance is committed if subsidence is caused either by removing the lateral側面的 support of excavation, or by undermining. Generally it is unimportant how the withdrawal of support occurs, but as an important exception there is no liability for causing subsidence by withdrawal of subterranean percolating water. Thus, in Langbrook v. Surrey C.C. 31 pumping carried out to keep excavations dry resulted in lowering of the water table and settlement沈殿 of buildings on adjacent land. The adjoining owner was held to have no redress 矯正. Plowman J. after reviewing the authorities, concluded that a landowner was entitled給…權力 to abstract water under his land which percolates使滲出 in undefined channels, notwithstanding that this may cause neighbouring land to subside. The judge went on to consider whether there could, in such circumstances, be liability for nuisance or negligence, and held:

‘Since it is not actionable to cause damage by the abstraction抽出 underground water, even where this is done maliciously有敵意地, it would seem illogical不合邏輯的 that it should be actionable if it were done carelessly. Where there is no duty not to injure for the sake of inflicting使遭受 injury, there cannot, in my judgement, be a duty to take care not to inflict the same injury.’

The right of support for a building, as opposed反對 to the land on which it stands, is not a natural right and must be acquired己獲得的 as an easement緩和 by grant or by usage. Once acquired, the right is usually a right of support both from adjacent land and from adjoining buildings. The right, however, is one which must be exercised with caution.

In Redland Bricks v. Morris 32 a landowner, the stability of whose property was threatened威脅 by excavation in an adjoining quarry, obtained to a mandatory injunction against the quarry owner compelling him to carry out work to restore stability. But, in Midland Bank v. Bardgrove 33 the plaintiff failed to recover damages for the cost of work which he had carried out to protect his property against threatened instability from excavation on the defendant’s adjoining site. The defendant had constructed an inadequate restraining wall which was likely to cause damage at some time in the future, but the claim failed on the basis the plaintiff’s cause of action in damages arose only when physical damage was suffered. This conclusion was based on a series of nineteenth-century mining礦業 cases which held that where property was damaged by undermining(the same principle applied to lateral withdrawal of support) a fresh cause of action arose each time damage was suffered.34 Consequently, although the plaintiff原告 whose land is threatened can recover compensation for every occurrence of damage, without the right to claim becoming statute barred, it follows also that a claim cannot be maintained until the loss has occurred. In respect of coal mining, the rights to compensation is now governed by statute. 35 The common law rule remains and has major implications for claims as between adjacent owners where one wishes to carry out construction works involving excavation. A sensible solution is to enter into an express agreement defining the measures to be taken to preserve stability so that any breach or non-observance不遵守will give a right to claim compensation. Where major civil engineering undertakings require special parliamentary議會的 authority, the enabling Acts invariably contain express provisions governing compensation claims. These do not, however, generally oust common law rights nor do they preclude妨礙 the possibility of express agreement where the work may involve a particular risk of damage.

Other rights which may give rise to an action in nuisance for interference include rights of light and air, water rights and rights of way. Where an interference is caused to a wider group of persons than the occupier of neighbouring land, such conduct may constitute a public nuisance by an individual who has suffered special damage different from that suffered by the public at large. Common examples of public nuisance are obstruction of the highway, and creating dangers upon or near the highway.

Vicarious Liability
Vicarious liability in the context means liability for the torts of others. In the construction industry this may arise in two ways. First, the employer may be liable for the torts of the contractors or the contractor, for his sub-contractors; secondly, any of the parties involved in the work may be liable for the torts of their own individual employees.

As to the first type of vicarious liability, as a general rule a person is not liable for torts committed把…交託給 by his independent contractors. However, there are substantial exceptions to the general rule, whereby the employer may be liable. These include:
1. where the liability is strict嚴格的, such as under the rule in Rylands v.Fletcher;
2. where work involves danger on or near a highway.
3. where work will involve danger to other property unless proper care is taken.

Even where the employer is not prima facie初步印象 responsible he may still be liable for his own negligence in employing an incompetent無能力的 contractor, or for failing to give adequate directions to avoid damage to another. The employer will also be liable under the law of agency代辦處 if he authorizes or ratifies批准 his contractor’s wrongful act.

Remedies
The remedy claimed in most tort actions is damages. The successful plaintiff原告 in an action for damages will generally be award給予 a sum which is intended to compensate for the real loss suffered. The sum awarded must take into account future loss since usually only one action may be brought. There is an exception in the case of withdrawal of support. Damages may be proportionally比例 reduced if contributory捐助的 negligence is found against the plaintiff may apply for an injunction命令 and this may in some cases be the only substantial真實的 remedy required.

Remoteness and causation
Once liability is established, the question may arise whether the damage claimed is too remote遙遠的 to be recoverable. The general test is that compensation may be recovered for damage which is of a reasonably foreseeable kind. If this is so it does not matter if the damage occurred in an unforeseeable manner or to an unforeseeable extent; the defendant will be liable for the whole loss. The rules of remoteness in contract and tort are not identical. The tortfeasor is liable for loss which is foreseeable as the possible result of his conduct and therefore may bear a heavier burden重擔 than the contract breaker, who is liable only for the probable result of his actions.

The test of foreseeability was discussed in the lending case The Waggon Mound, 40 in which the Privy Council had to consider the following facts. A large quantity of furnance oil was discharged through the negligence of the defendants from their ship while moored停泊. The oil spread to a wharf碼頭 belonging to the plaintiffs who were engaged忙於 while refitting被修理 work, including welding焊接. Believing there to be no danger, the plaintiffs continued the welding. The oil ignited點火 and caused serious damage. The Privy Council held the defendants not liable. Lord Simonds, after reviewing the authorities said:

‘ The essential factor in determining liability is whether the damage is of such a kind as the reasonable man should have foreseen. This accords with the general view thus stated by Lord Atkin in Donoghue v. Stevenson: ‘the liability for negligence... is no doubt based on a general public sentiment心情 of moral道德 wrong-doing for which the offender must pay.’ It is not a departure from this sovereign君主 principle if liability is made to consequence後果 of the precedent前例 act. Who knows or can be assumed to know all the processes of nature? But if it would be wrong that a man should be held liable for damage unpredictable不可預測的 by a reasonable man because it was direct or natural, equally it would be wrong that he should escape liability however indirect the damage, if he foresaw or could reasonably foresee the intervening介入 events which lead to it being done... Thus forseeability becomes the effective test.’

The question of causation, rejected in The Waggon Mound may still be of relevance. In Barenett v. Chelsea Hospital Committee41 a nightwatchman presented himself at the hospital casualty死難者 department complaining of vomiting嘔吐 after drinking tea. He was told to go home to bed, where he later died of arsenic砷 poisoning. In an action by the widow寡婦 for negligence, it was held that the plaintiff had failed to establish that the defendant’s negligence had caused the death. Conversely in Baker v. Willoughby 42 the plaintiff sued for injury to his leg caused by the defendant’s negligent driving. But before the claim was heard, he was involved in an armed robbery in which the injured leg was shot and had to be amputated切斷. The House of Lords declined to reduce the damages on this account, holding the second injury a mere concurrent同時發生的 cause. The questions of remoteness and causation, both in tort and contract, will continue, will continue to produce many complex legal problems.

Contribution捐助

Where there are two or more defendants responsible for the same loss the plaintiff is entitled to recover judgment against each to the full amount of their individual liability. The plaintiff is then entitled to enforce the judgment obtained against either, provided that he does not recover more than total damages proved. It would be a matter for the plaintiff to decide against which defendant first to enforce. To mitigate緩和 this, the court has power under the Civil Liability (Contribution) Act 1978 43 to apportion liability between defendants. The apportionment is dealt with by the judge after deciding upon the liability of the defendants to the plaintiff. The effect is to give any defendant entitled to contribution the right to recover from another defendant the amount of that defendant’s liability. If, therefore, one and more of the defendants is without the means to pay, the remaining defendants must bear the whole loss. In many construction cases, this has operated to the disadvantage of professionals who have indemnity insurance available, when constructors or sub-contractors may be insolvent. The case of Eckersley v. Binnie 44 is an example of the harshness of the application of these rules.

The rules as to contribution apply whether or not the other persons liable have been sued by the plaintiff. A defendant may therefore bring into an action as a third party anyone whom he considers should contribute to the plaintiff’s loss as a joint tortfeasor. Or the defendant may bring separate proceedings claiming contribution after the plaintiff has obtained judgment.

Injunction命令
An alternative remedy to damages, which may be appropriate particularity in cases of nuisance, is an injunction, either to restrain控制 the defendant from doing some act or to compel强迫 the performance of an act. An injunction is an equitable remedy and therefore lies in the court’s discretion. It will usually be refused where damages would be an adequate remedy, or where to grant it would be in vain自負的. A valuable feature of this remedy is the power of the court to give an interlocutory中間的 injunction. Temporary relief補助 may be obtained within days or even hours of a cause of complaint arising. The power to grant an injunction is applicable particularly where the defendant is threatening an act which is arguably unlawful and likely to cause damage. An interlocutory injunction may be issued ex parte(in the absence of the defendant) in the first place, and then reconsidered after a short period when the defendant can be heard. The court will then consider whether to continue the injunction for a further period or even up to trial試用. The test upon which the court decides whether to give an interlocutory injunction has been restated by the House of Lord45. The plaintiff is required to establish that he has a good arguable claim to the right which he seeks to protect. The court then considers the balance of convenience in granting or refusing the injunction.

Limitation

An important consideration in any action must be the period during which the action may be brought. The limitation Act 1980 provides that an action founded on tort shall not be brought after the expiration of six years from the date on which the cause of action accrued增長. There is a further limitation where the claim is for damages in respect of personal injuries arising from negligence, nuisance or breach of duty. Here, the action must normally be brought within three years from the date on which the cause of action accrued增長 subject to certain extensions.

The main difference between limitation in a contract action and in tort is that in the former case, the cause of action accrues增長 at the date of the breach. In tort, however, the cause of action accrues only when damage is suffered, so that the cause of action may not arise until long after the relevant act or omission遺漏 occurred. Thus, if a builder negligently erects a chimney stack排氣管, a cause of action in contract arises in favour of the employer when the work the work is done, or when the builder purports to finish it. If the work remains in place and no complaint is made, the right of action in contract will be lost after six years. If, after 10 years, the chimney falls to injure a passer-by, a right of action in tort then immediately vests賦予 in the injured person.

Defective有缺陷的 premises
A further development, overshadowed使暗淡 at the time by changes in the law of tort, was the passing of the Defective Premises Act 1972. This Act creates a general duty on persons to see that work is done in a workmanlike普通的 or professional manner, with proper materials and so that the dwelling will be fit for habitation住所. For the purpose of limitation, the Act provides that any cause of action in respect of a breach of these duties:

‘shall be deemed認為... to have accrued增長 at the time that the dwelling was completed, but if after that time a person who has done work for or in connection with the provision of the dwelling does further work to rectify the work he has already done, any such cause of action in respect of that further work shall be deemed for those purposes to have accrued at the time when the further work was finished.’

The Act, therefore, creates a statutory duty similar to (although rather wider than) that which the courts had sought to impose利用 under the law of tort, and also provides what may be regarded as a fair limitation rule, which has no need of a long-stop provision. Since the D. & F. and Murphy cases the Defective Premises Act represents the principal remedy outside contract in respect of damaged buildings.

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