General

I. Tips In general
a. When judge a negligence claim, always address all four elements and cite policy justifications (public interest over damage)
i. A duty of care (foreseeability + proximity + policy).
ii. Breach of the objective standard of care.
iii. Causation (factual and legal).
iv. Actionable damage (not trivial or unforeseeable).
b. For Trespass to Land: Always distinguish trespass(direct/intentional) from nuisance(indirect/consequential)
c. For Nuisance: Apply balancing tests (public interest) and the ordinary use doctrine
d. For VL
i. Identify the relationship – Employee or IC
ii. Apply Close Connection Test – Close connected to D1’s role? Frolic?
iii. Check for NDD
II. Subject of Sue
a. Natural/legal persons
i. SP: including unborn children
1. Lam Wing Hei v Hospital Authority, 2018
III. Object of Sue
a. Individuals, corporations, government (limited immunity)
i. Immunities:
1. Parents (pre-birth negligence)
a. LARCO s. 22B.
2. Judges (judicial immunity)
a. Wong Shui Kee v Victor Chu, 2001
3. Foreign states (absolute immunity)
a. FG Hemisphere v Congo, 2010
IV. Type of Torts
a. Negligence Duty of Care
i. Plaintiff must prove: (1) duty, (2) breach, (3) causation, (4) damage.
1. Donoghue v Stevenson (1932)
b. Harassment Tort
i. Repetitive conduct causing emotional distress (arguable in HK law).
 1. Lau Tat Wai v Yip Lai Kuen (2013)
c. Public Nuisance
i. Conduct harmful to the public (e.g., pollution).
1. Esso Petroleum v Southport Corp (1954)
d. Distributive Justice
i. Denies claims where compensation conflicts with societal fairness (e.g., wrongful birth).
1. McFarlane v Tayside (2000)
V. Concurrent Liability
a. Plaintiff may choose tort or contract remedy if duties overlap.
i. Henderson v Merrett (1995)
VI. Damages
a. Actionable Harm: Must be serious and prolonged (e.g., physical injury, recognized psychiatric illness).
i. Mustapha [2008] - "Ordinary annoyances" (e.g., disgust) are not compensable.

Negligence (Breach the duty of care)

I. Elements
a. Duty of Care: Defendant (D) owes plaintiff (P) a legal duty
i. Caparo Industries plc v Dickman, 1990
b. Breach of Duty: D fails to meet the standard of care (objective test).
c. Causation:
i. Factual: "But-for" test
1. Barnett v Chelsea Hospital, 1969
ii. Legal: Harm not too remote
1. Wagon Mound No. 1, 1961
d. Damage: Recognized by law (e.g., physical injury, economic loss)
II. Establish (Create) Duty of Care
a. Precedent Approach: Apply existing duty categories (e.g., driver-passenger, doctor-patient)
i. Robinson v Chief Constable, 2018 – Incrementalism (establish by analogy)
b. Caparo Three-Stage Test (novel cases):
i. Caparo v Dickman (1990)
ii. Foreseeability: Is the harm to P foreseeable?
1. Donoghue v Stevenson, 1932
2. Luen Hing Fat Coating Ltd v Waan Chuen Ming [2011] - holistic assessment of Forseeability, Proximity and Policy
 iii. Proximity: Close relationship (Physical, circumstantial, or causal closeness); Assumption of responsibility; Sufficient close?
1. Sutherland Shire Council v Heyman, 1985
iv. Fair/Just/Reasonable: Policy balance
1. Michael v Chief Constable, 2015 – Avoid excessive claims
2. Public Interest (e.g. Police immunity)
a. Hill v Chief Constable, 1989
3. Defensive Practices (e.g. medicine, policing)
a. Rathband v Chief Constable, 2016
III. Special Duty Issues
a. Neighbor Principle
i. Duty to avoid acts foreseeably harming "neighbours"
1. Donoghue v Stevenson, 1932
b. Omission Rule:
i. No duty unless D controls risk or assumes responsibility.
1. Stovin v Wise (1996)
c. Psychiatric Harm: (Damage Type 2 – Physical Injury is Type 1)
i. Includes recognized psychiatric illness (e.g., PTSD, depression)
1. Hinz v Berry, 1970
2. Excluding mere emotional distress
a. Lam Ching Sheung v Official Receiver, 2009
ii. Primary Victims
1. Physically Injured: Psychiatric harm from physical injury is recoverable
a. Luk Sung Fei v Chau Chung Shun, 2012
2. At Risk of Physical Injury: Foreseeable risk suffices
a. Page v Smith, 1996
b. No need for shock event
i. YAH v Medway NHS Trust, 2018
3. Rescuers:
a. Treated as primary victims if exposed to danger
i. Chadwick v British Railways, 1967
b. If not exposed, treated as the secondary victims
i. White v Chief Constable, 1999
iii. Secondary Victims
1. Alcock Criteria: Witness injury to others (e.g., family members)
 a. Alcock v Chief Constable, 1992
b. Foreseeable psychiatric illness.
c. Close ties of love/affection.
d. Proximity in time/space (accident or immediate aftermath).
i. P must witness events shortly after the accident (e.g., hospital visit within hours).
1. McLoughlin (1983)
e. Direct perception (unaided senses).
f. Abandoned in UK: "Shocking event" requirement (gradually developed illness is excluded)
i. Paul v Wolverhampton NHS Trust, 2024
iv. Contractual Claims:
1. Primary: Workplace stress
a. Employer’s duty to prevent psychiatric harm from stress
i. Hatton v Sutherland, 2002
b. Hatton Criteria – Foreseeability of stress-induced illness
2. Secondary: Employees witnessing harm
a. White v Chief Constable, 1999
v. Others
1. Thin Skull Rule:
a. Defendant liable for full psychiatric harm, even if P predisposed.
i. Page v Smith (1996): P’s chronic fatigue syndrome aggravated by accident
2. Policy limits:
a. Be floodgates and avoid conflicting duties
i. Greatorex v Greatorex, 2000
d. Pure economic loss:
i. Duty only if a special relationship
1. Hedley Byrne v Heller (1964)
ii. Distinction from Consequential Economic Loss:
1. CEL: loss resulting from damage to the plaintiff’s person or property (protected interests); Generally recoverable
a. Ontario Inc v Maple Leaf Foods Inc [2020]
iii. Negligent Acts/Activities
1. Injuring Properties that P has no interest – No recovery
a. Cattle v Stockton Waterworks [1875] LR 10 QB 453
b. Allowed for employers to claim in respect of negligently inflicted injuries to his employee
 i. Green v Tong Kwan Wah [1979]
c. Generally no relational economic loss claims – PEL due to PI or PD to a 3P
iv. Negligent Delivery of Service – Can be recovered if duty of care exists
1. Duty of Care:
a. Can be confirmed via Hedley Byrne Rules - D’s performance + P’s reliance
i. Henderson v Merrett Syndicates [1995]
ii. Spring v Guardian Assurance [1995]
b. Can be tested via Caparo 3-stage
c. Can be tested via Incremental Test (limited use)
2. Above 3 Approaches to decide
a. Customs and Excise Commissioners v Barclays Bank Plc [2007]
v. Defective Structure
1. PEL; No recovery
a. Murphy v Brentwood OC [1991]
b. Sunface International Ltd & Others v Meco Engineering Ltd [1990] – HK held
vi. Defective Goods
1. PEL; No recovery; Usually claimed in Contracts or in Legislation
a. Muirhead v Industrial Tank [1986]
vii. Negligent Misstatements (Misrepresentation)
1. DoC could be owed where “information or advice” is negligently provided and relied upon.
2. Hedley Byrne Test - Hedley Byrne v Heller [1964]
a. Special relationship (expertise/context).
i. In non-business/social context: Depends
1. Esso Petroleum v Mardon [1976]
2. Choudhry v Prabhakar [1989]
b. Assumption of responsibility (objective assessment required).
i. Reasonably be seen as feeling the context = accepting the responsibility
1. Yiu Chown Leung v Chow Wai Lam (2005)
ii. Advice(opinion) v Information
1. If Advice: all relevant matters should be considered
2. If Information: only the material part is liable
a. Nicholas McHale v Andrew Dunlop [2024]
iii. Disclaimer: must be legally effective
1. Smith v Eric Bush [1990] – Bar example
 c. Reasonable reliance.
i. Reasonable reliance – objective determination
1. Reeman v Department of Transport [1997]
ii. In fact reliance
1. Abbot v Strong [1998]
3. No duty owed to an agent of an undisclosed principle
a. Banca Nazionale del Lavore SPAV v Playboy Club London Ltd [2018]
4. No duty owed to an excluded advice
a. Knights v Townsend Harrison Ltd [2021]
5. SP: Independent statutory liability to pay – for stock market
a. Securities and Futures Ordinance Cap.571, S108
viii. Novel Cases
1. Caparo 3-stage applies – where Hedley Byrne not Applies
a. Customs v Barclays Bank [2007]
b. Factors to consider
i. Purpose for which statement made
ii. Purpose of communicating statement
iii. Relationship between adviser, advisee and any relevant third party
iv. Size of class to which advisee belongs
v. State of knowledge of adviser
vi. Reliance by advisee
IV. Breach of Duty
a. Identify the appropriate standard
i. Breach occurs when the defendant’s conduct falls below the standard of care required by law
1. Wong Kin Man v Ma Tsz Wai [2022] – Reasonable cyclist standard
ii. Reasonable Person Standard applies; objective & impersonal
1. Failing to act as a “reasonable man” would
a. Blyth v Birmingham Waterworks (1856)
2. Subjective characters are irrelevant
a. Nettleship v Weston [1971]
3. Reasonable skilled person should be judged by the standards of that peer, not a reasonable person’s standard
a. Bolam v Friern Hospital Management Committee [1957] – Bolam Test applies
iii. Burden of Proof on P
1. Must prove breach on the balance of probabilities
 a. Rana Bimla v Hong Tak [2010]
b. Exceptions:
i. Children:
1. Standard of a reasonable child of the same age
a. Mullin v Richards [1998]
ii. Physical Disability
1. Standard adjusted if disability is unforeseeable (sudden and beyond control [e.g. Stroke; Unconsciousness])
a. Mansfield v Weetabix [1998]
iii. Mental Disability
1. No adjustment in general; Only if the medical attack entirely eliminates his fault or responsibility
a. Dunnage v Randall [2015]
iv. Professions:
1. Bolam Test: Professionals must meet the standard of a reasonably competent peer
a. Bolam v Friern [1957]
2. Bolitho Test: Professional practice must be "logical" and "responsible"
a. Bolitho v City and Hackney [1998]
v. Special Situations:
1. Medical
a. For Diagnosis/Treatment/disclosure of alternatives, Bolam applies
i. Doctors not negligent if practice is accepted by peers.
1. Bolam v Friern [1957]
b. For Advice, Montgomery Applies; Patient’s consent required
i. Doctors have the duty to disclose material risks/alternatives in their recommended treatment
ii. Their patients should be well informed and should understand the risks before making choices.
1. Montgomery v Lanarkshire Health Board [2015]
2. Emergencies
a. Standard lowered for at-the-moment actions
i. Ng Chun Pui v Lee Chuen Tat [1988]
3. Sports
a. Lower duty of care; liability only for "reckless" conduct
i. Blake v Galloway [2004]
c. Factors in Determining a Breach
i. Foreseeability of Harm:
1. Risk must be foreseeable
 a. Bolton v Stone [1951]
ii. Probability of Harm:
1. Precautions needed only for probable risks
a. Wagon Mound (No 2) [1967]
iii. Magnitude of Harm:
1. Greater harm justifies stricter precautions
a. Paris v Stepney BC [1951]
iv. Cost/Burden of Precautions:
1. Measures must be reasonable
a. Latimer v AEC [1953]
v. Social Utility:
1. High-utility activities may justify higher risks (e.g., emergency services).
2. Balancing Test Required: Weigh risk against societal benefit.
a. Daborn v Bath Tramways [1946]
d. Proof of Breach
i. Res Ipsa Loquitur – used when the cause is unknown and negligence is inferred
1. Inference of negligence if
a. Event would not normally occur without negligence.
b. Defendant controlled the situation
i. Scott v London Docks [1865]
2. Shifts evidential burden to defendant (proof of non-breach)
a. Ng Chun Pui [1988]
ii. Criminal Conviction:
1. Conviction is prima facie evidence of breach – should be taken in civil courts
a. Evidence Ordinance (Cap 8) S.62
b. Lee Hong Kuen [2006]
V. Factual Causation
a. Key Components
i. Cause in Fact
1. The defendant’s breach must factually cause the plaintiff’s injury
ii. Legal Causation (Remoteness)
1. Even if factual causation is established, the damage may be too remote to hold the defendant liable
a. Andrew Graham Young v Ho Chun Kit Peter [2012]
iii. Novus Actus Interveniens
 1. Subsequent intervening acts may break the chain of causation, and supersedes D’s breach
a. Performance Cars Ltd v Abraham [1962]
b. Approaches
i. "But For" Test:
1. Primary test to determine if the plaintiff’s damage would not have occurred "but for" the defendant’s breach
a. Fairchild [2003]
b. Mustapha v Culligan [2008] - No liability if P’s psychiatric injury was unforeseeable.
ii. Material Contribution – When multiple causes exist, D’s contribute to a part
1. Defendant’s breach materially contributed to the injury
a. Bonnington Castings Ltd v Wardlaw [1956]
iii. Material Increase in Risk – When P cannot prove exact cause, but D increased risk
1. Exception where the defendant’s breach significantly increased the risk of harm
a. Fairchild [2003]
iv. Exceptions:
1. Loss of a Chance – Not applied in Medical negligence
a. Limited to financial/economic loss claims, not physical injury
i. Gregg v Scott [2005]
ii. Perry v Raleys [2019] – For negligent legal advice
2. Hypothetical Omission:
a. Courts consider what should have happened if the defendant acted correctly
i. Bolitho v City and Hackney HA [1998] – might negligent, but too remote
c. Multiple Causes
i. Concurrent Causes:
1. Multiple defendants contribute simultaneously; Jointly liable if indivisible
a. Summers v Tice [1948]
b. Burden shifts to D to disprove causation
ii. Successive Causes:
1. Later events may not overtake prior liability if harm persists
a. Baker v Willoughby [1970] – disability caused by prior case remained actionable
d. Burden of Proof
i. The plaintiff must prove causation on a balance of probabilities (>50%)
1. Chan Kun v Tsuen Wan Nursing Home [2006]
ii. All-or-Nothing Rule
1. No partial recovery if causation is not proven
 a. Hotson v East Berkshire HA [1987]
VI. Legal Causation (Remoteness)
a. Key Components
i. Reasonable Foreseeability Test:
1. Damage must be of a type or kind that was foreseeable
a. The Wagon Mound No 1 [1961] - Replaced strict "direct consequences" test with foreseeability.
b. Mustapha [2008] - Fly in water did not foreseeably cause severe psychiatric injury.
2. Exceptions
a. Intentional Torts:
i. Apply the Direct Consequences Test
1. Polemis [1921]
b. Psychiatric Injury:
i. Recoverable if physical injury was foreseeable
1. Page v Smith [1996]
ii. Burden of Proof:
1. Defendant must prove that the damage is too remote
a. Armstead v Royal & Sun Alliance [2024]
iii. Eggshell Skull Rule:
1. Defendant liable for all consequences of injury, even if unforeseeable
a. Smith v Leech Brain [1962]
2. Economic Vulnerability
a. Defendant liable for financial losses exacerbated by plaintiff’s circumstances.
i. Lagden v O’Connor [2003] – money borrowed is recoverable
b. Policy Considerations
i. Courts balance fairness and efficiency in limiting liability
1. Wright v Cambridge Medical Group [2011]
ii. Unforeseeable extent of damage is recoverable if the type is foreseeable, no matter the mechanism
1. Hughes v Lord Advocate [1963]
VII. Defenses – Allow D to avoid or reduce liability by disproving elements
a. Basic Requirement
i. Defenses must be specifically pleaded; burden of proof lies on D
1. Armstead v Royal & Sun Alliance [2024]
b. Key Defenses Types
i. Contributory Negligence (Partial Defence):\
 1. P’s own fault contributes to the damage; damages reduced proportionally (just and equitable)
a. Law Amendment and Reform (Consolidation) Ordinance (LARCO) Cap 23, s 21(1)
b. Froom v Butcher [1976] – Passenger failed to wear seat belt
c. Chan Yuk King v Tung Chun [2010] – Pedestrian wrongfully cross street
2. Applies to personal injury, property damage, and economic loss
a. Manchester Building Society v Grant Thornton [2021]
3. Apportionment balances culpability and causative potency.
a. Davies v Swan Motor Co [1949]
4. SP: Suicide victim’s contributory negligence reduced damages 50%
a. Reeves v Metrop’n Police [2000]
ii. Voluntary Assumption of Risk (Volenti Non Fit Injuria) (Complete Defence):
1. P freely and knowingly accepted the risk
a. Letang v Ottawa Electric Railway [1926]
2. Rarely succeeds due to high threshold
a. Nettleship v Weston [1971] – Learner driver’s consent /= waiver
b. Harrison v Bear Grylls Race [2021] – Signed waiver can fail to exclude negligence (for public policy)
iii. Illegality (Ex Turpi Causa) (Complete Defence):
1. P cannot claim damages if the claim arises from their own illegal conduct
a. Patel v Mirza [2017]
i. “Range of Factors” assessed:
1. Purpose of violated law
2. Coherence of legal system
3. Proportionality
2. Policy-driven to maintain legal integrity - Does allowing the claim undermine legal integrity?
a. Gray v Thames Trains [2009] – P’s crime
c. SP Conditions:
i. Children: Standard of care adjusted for age/intelligence
1. Ho Kwai Loy v Leung Tin Hong [1978]
ii. Workers: Employer’s breach may outweigh P’s contributory negligence
1. Wong Lok Keung v DB Transport [2006]
iii. Emergency: Split-second decisions judged leniently
1. Bushra Bibi v Method Building [2014]

Trespass to Land
I. Definition
a. Intentional, direct interference with another’s exclusive possession of land, actionable per se (no damage required)
i. Westripp v Baldock [1939]
II. Interests Protected
a. Property Rights
i. Exclusive possession
1. Entick v Carrington [1765]
b. Privacy
i. "My home is my castle"
1. Semayne’s Case [1604]
c. State Accountability
i. Protection against unlawful searches
1. Khan v UK [2001]
III. Key elements
a. Interference:
i. Direct (e.g., entering land, dumping rubbish)
1. Southport Corp v Esso [1954]
2. Westripp v Baldock [1939] - Ladder against wall = trespass.
ii. Intentional or reckless (not negligent)
1. Letang v Cooper [1964]
b. Plaintiff’s Standing: P must prove the possession
i. Must have exclusive possession (owner/tenant) or actual possession (physical control + intention to possess)
1. JA Pye v Graham [2003]
2. Lam Wing Ching [1985] - Unlawful possessor can sue trespassers.
c. Land Scope:
i. Surface, airspace (limited to usable height), and subsurface
1. Bocardo SA v Star Energy [2011] - Subsurface trespass by drilling pipe
2. Bernstein v Skyviews [1978] - Airspace limited to usable height (balance property and public use)
ii. Excludes liability for reasonable aircraft overflight.
1. Civil Aviation Ordinance (Cap 448)
IV. Defenses
a. Consent (express/implied) – can be revoked
i. Kau Chun Wing v Main Shine [2011] - Implied consent for maintenance access.
ii. Raingate Ltd [2016] - Passive toleration ≠ consent.
 b. Legal Authority (e.g., police entry under statute)
i. Police Force Ordinance (Cap 232)
c. Necessity (must; imminent danger, not self-created)
i. Cope v Sharpe [1912] - Burning heather for firebreak justified.
ii. Monsanto v Tilly [1999] - Protesters’ destruction not justified.
d. Abatement (self-help for nuisance)
i. Burton v Winters [1993]
V. Remedies
a. Damages: For harm
i. Nominal, compensatory, gain-based, or exemplary
1. Yeung Wah James v Alfa Sea [1993]
b. Injunction: For ongoing continuing trespass; Generally granted for continuing trespass
i. Anchor Brewhouse [1987] - Crane overhang = injunction.
ii. Westlands Estates [1985] - No injunction for minor protrusions.

Nuisance

I. Definition
a. Protects interests in land from unreasonable interference (P must have proprietary interest)
i. Hunter v Canary Wharf [1997]
ii. Private Nuisance: Protects proprietary interests (landowners/occupiers) from unreasonable interference
1. Sedleigh-Denfield v O’Callaghan [1940]
iii. Public Nuisance: Protects the public from widespread harm; actionable if plaintiff suffers "particular damage"
1. AG v PYA Quarries [1957]
II. Key elements
a. Private Nuisance
i. Unreasonable interference with use/enjoyment of land
1. Lawrence v Fen Tigers [2014] - Long-standing activity ≠ automatic defence.
2. Material Damage: Physical harm (e.g., flooding, encroachment); Regardless of locality
a. St. Helen’s Smelting v Tipping (1865)
3. Immaterial Damage: Loss of amenities (e.g., noise, smells); locality matters
a. Fearn v Tate [2023] – Priority to “ordinary use” (Tate’s viewing platform is not ordinary in central london)
b. Bamford v Turley (1862)
i. Ordinary Use Test: D’s use must be "common and ordinary" for the locality.
 1. Hunter v Canary Wharf [1997]
c. Interference must be more than trivial (e.g., Loss of natural light, mental distress)
b. Public Nuisance: P must show "particular damage" (substantial/direct); Shall weigh duration, malice, sensitivity of P, public benefit
i. Corby Group Litigation [2009] - Personal injury claims allowed in public nuisance.
ii. Miller v Jackson [1977] - Cricket noise nuisance, but injunction denied for public interest.
III. Defenses
a. Prescription – long and continuous (e.g, 100 years), similar interference
i. Sturges v Bridgman (1879) - No prescriptive right if nuisance only recently actionable.
b. Statutory authority: must be inevitable = no negligence
i. Allen v Gulf Oil [1981]
ii. If statute authorizes activity: Nuisance must be inevitable
c. "Act of God,"
i. Lam Yuk Fong v A-G [1987]
d. Contributory negligence

Vicarious Liability

I. Definition
a. Liability on one person (D2, typically an employer) for the torts of another (D1, typically an employee), even if D2 is not personally at
fault
i. Woodland v Swimming Teachers Association
ii. Justification: Compensation for victims, Enterprise risk for enjoying employee’s work, deterrence to hold company’s standard
II. Key elements
a. Two-Stage Test for VL
i. Trustees of Barry Congregation v BXB [2023]
ii. Stage 1: Relationship between D1 and D2 must be "employment" or "akin to employment." - integrated into D2’s business
1. Various Claimants v Christian Brothers [2012] - VL extended to religious orders due to control and integration
2. Barclays Bank v Various Claimants [2020] - Independent contractors (e.g., doctors) excluded.
iii. Stage 2: Tort must be "closely connected" to D1’s role
1. Mohamud v WM Morrison [2016] - Employee’s role included interacting with customers; assault is close connected
2. Lister v Hesley Hall [2002] - Sexual abuse by a warden was "closely connected" to his role.
3. WM Morrison Supermarkets [2020] - Data leak by a disgruntled employee was a "frolic of his own."
b. Non-Delegable Duties
 i. Duties (e.g., hospitals for patients, schools for pupils) cannot be delegated; D2 remains liable even if work is done by an
independent contractor
1. Woodland [2013] – School still liable for injury during an outsourced class
2. Armes v Nottinghamshire CC [2017] - Foster care agency liable for abuse by foster parents.
c. Exceptions:
i. Dual VL: Both lending and borrowing employers may be liable for a "borrowed employee"
1. Via Systems v Thermal Transfer [2006]
ii. Prohibited Acts: VL may still apply if the act is closely connected to employment
1. Rose v Plenty [1976]: Milkman allowed children on van despite prohibition
III. Defenses
a. Independent Contractor
i. No VL for independent contractors unless NDD applies.
ii. Barclays Bank [2020] - Bank not liable for a doctor’s assaults during medical exams as an independent contractor