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3. Breach of Duty
• test for deciding whether there has been a breach of
duty – see Alderson B. in Blyth v Birmingham
Waterworks Co
3. Remoteness of Damage
• the plaintiff’s damage must have been caused by the
defendant’s breach of duty and must not be too remote
a consequence of it – see Barnett v Chelsea and
Kensington Hospital Management Committee
• prior to the Re Polemis case in 1921, 2 tests for
remoteness of consequence:
1. Consequences are too remote if a reasonable man would not have
foreseen them — Rigby v Hewitt
2. If a reasonable man would have foreseen any damage to the plaintiff
as likely to result from his act, then he is liable for all the direct
consequences of it suffered by the plaintiff, whether a reasonable
man would have foreseen them or not – Weld–Blundell v Stephens
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NEGLIGENCE (cont.)
– Plaintiff’s impecuniosity
If the plaintiff suffers more damages due to his own
financial disability, the court has held that such loss
is too remote as the plaintiff’s want of means was an
extraneous matter.
4. Contributory Negligence
• at common law, if the plaintiff’s injuries have been
caused partly by the negligence of the defendant and
partly by his own negligence, then, the plaintiff can
recover nothing
• it is clear that this rule is a harsh one and hardship is
caused especially where the plaintiff’s negligence was
not the major cause of the accident – section 12 of the
Civil Law Act 1956 (Revised 1972)
• however, if the act of the third party was not truly
independent, the defendant will be liable
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NEGLIGENCE (cont.)
5. Professional Negligence
• legal liability for professional negligence can only be
incurred when there has been a breach of duty of
care owed to some persons
Duty of Care
• the duty of a professional depends very much on what the
professional is employed to do
• what is the duty of care of professionals to their clients? See
Tindal C.J. in Lanphier v Phipos
• the duty of care on the part of professionals is sometimes not
only owed to clients who engaged them but also to third parties
– see Hedley Byrne & Co Ltd. v Heller & Partners Ltd
2. Trespass to Land
• there must be a direct and voluntary physical
interference with another person’s lawful possession
of land
• motive is irrelevant
• remedies available to the plaintiff will be in the form
of damages and/or an injunction. If the defendant
has possession of the land and the plaintiff wishes to
recover it, then it will be necessary to bring an action
in ejectment for recovery of the land. This may be
combined with an action for damages
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TRESPASS (cont.)
Elements of Conversion
• conduct of the defendant which amounts to a denial
of the plaintiff’s rights or which amounts to an
assertion of inconsistent rights
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CONVERSION (cont.)
• elements of defamation:
1. the words must be defamatory
2. they must refer to the plaintiff
3. they must be ‘maliciously’ published
Effect of an Apology
• an apology for the defamatory statement by the
defendant may mitigate damages and its absence
may aggravate them – see Felding v Variety
Incorporated
Private Nuisance
• can be distinguished from a public nuisance in that:
1. It is not a crime
2. It can be committed against an individual or a class of the
population
3. It must be committed against land
• the essential element is that it must interfere with the
enjoyment of the land by the person in occupation, either
as owner or tenant. It is relied upon when the
interference is indirect or where the invading ‘thing’ is
intangible – see Robinson v Kilvent
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NUISANCE (cont.)
Duties of an ‘Occupier’
• highest degree of care is owed by the occupier to one
who has entered the premises in pursuance of a
contract with
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OCCUPIER’S LIABILITY
(cont.)
• a lower duty is owed to the ‘invitee’; that is, a person who,
without any contract, entered the premises on business of
interest both to himself and the occupier – see Indermaur
v Dames
• lower still is the duty to the ‘licensee’, a person who
entered with the occupier’s express or implied permission
but without any committing of interest with the occupier –
the occupier’s duty towards him is to warn him of any
concealed danger or trap of which he actually knew
• finally, there is the trespasser, to whom there is owed only
a duty to abstain from deliberate or reckless injury – see
Robert Addie & Sons (Collieries) Ltd. v Dumbreck
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REVIEW