IndexFundamental principles of negligence and duty of careDuty of Care in English law (Donoghue v Stevenson (1932) AC 562)Hedley Byrne v Heller (1964) Yuen Ku Yeu v Attorney General of Hong Kong (1988) AC 175 Human Rights Law and Duty of Care Conclusion Tort law is a branch of law generally classified as common law. The word tort itself refers to a wrong, especially a civil wrong, which means some specific breach of the plaintiff's duties by the defendant as defined by law. The aforementioned breach of duty arises in matters of civil liability, on specific situations such as; medical malpractice, malicious initiation of legal proceedings, as in the case of illegal arrest and detention, car accidents, and many other situations (Introduction to the law of torts). Say no to plagiarism. Get a tailor-made essay on "Why Violent Video Games Shouldn't Be Banned"? Get an Original Essay Tort law itself is a broad topic that touches on virtually every aspect of individual and personal rights, which are indeed protected by law. These rights and interests protected by tort law include but not necessarily limited to; personal security or autonomy, individual property, compliance with legal procedures, financial interests and individual reputation. It is worth noting to the reader that in tort law, the focus is decidedly and ultimately directed at determining whether or not one party is obligated to indemnify another in tort law (Introduction to the Law of Torts). It is also of equal importance to note that, even so, a factor of equal importance is for the judge to also determine whether or not it is morally justifiable to impose civil liability on the defendant, and/or hold them accountable for their conduct. This fundamental principle and understanding of tort law gives way to an understanding of the defendant's conduct with reference to the consequence for which he is responsible in the tort. Although tort law is, as mentioned, a broad topic, we will however only focus on one of its most specific and controversial grounds (negligence). In tort law, negligence would generally be defined as negligence on the part of the defendant (Introduction to Tort Law). Indeed, the main aim of this article will be to highlight how human rights law influences the general understanding of civil law regarding due diligence liability, but more importantly, how, over the years, it has influenced and affected the English law, and is inevitable but desirable replication in Hong Kong. Fundamental Principles of Negligence and Duty of Care It is a common (but incorrect) view that all liability in tort should be based on, or be deemed to arise from, negligence on the part of the defendant. Mind you, negligence as a branch of tort law is in many circumstances associated with the conduct of defendants and not necessarily their intent. In order for the civil judge to establish that a defendant is liable for negligence and/or duty of care, certain basic requirements must be established in order to prove the plaintiff's claim in tort. The court must therefore establish that the defendant actually owes the claimant a duty of care, that there has been a breach of that specifically mentioned duty of care on the part of the defendant, that there must actually be some kind ofdamage to the plaintiff that is not too isolated in terms of proximity and, finally, that said damage must result from the defendant's breach of duty (Introduction to negligence). Duty of care can arise on many occasions such as; where the courts determine that there actually exists a direct or indirect reckless communication from the defendant to the plaintiff, or where a special relationship between a third party and the defendant exposes the defendant to liability. In the middle decades of the previous century, a landmark ruling by Lord Atkins in 1932 led to an acclaimed (if controversial) principle, which became known as the neighbor principle. It was established by Lord Atkins in the case of Donoghue v Stevenson, that "reasonable care must be taken to avoid acts or omissions which you could reasonably foresee would injure your neighbour" (Introduction to the Law of Tort). Although this particular principle has been contested in modern times as having no influence on the development of tort law, it has nevertheless been used several times to resolve third-party disputes, which do not necessarily involve physical harm, but also economic harm resulting from proximity of the defendant to the plaintiff, in carrying out such service which may have a considerable effect on the plaintiff. Duty of Care in English Law (case of Donoghue v Stevenson (1932) AC 562) Stanton (2012) states that the only reason why Duty of Care is one of the most important torts in modern law and is probably due to the subsequent success of Lord Atkins' landmark ruling in Donoghue v Stevenson in 1932. Why? Stanton (2012), explains that this is because tort law is centrally based on negligence. In the Donoghue case, the factors supporting the plaintiff's claim of tort on the part of the defendant were clearly given by Lord Atkins. Indeed, it is important at this stage to realize that, as stated before in the introductory part of this paper, the duty of care in cases of negligence arising from civil liability on the part of a defendant must adhere to all the fundamental principles that include negligence in general civil liability law. The plaintiff had, according to Atkins, suffered damage arising out of the manufacture and, as such, the manufacture of said product was liable in tort, to compensate the plaintiff (Introduction to the Law of Tort). The plaintiff's case was found to be compatible with the requirements and requirements of tort law and, as such, credible enough to justify tort liability on the part of the defendant.Hedley Byrne v Heller (1964) The case, according to Lord Reid, raised questions about whether or not a plaintiff can recover damages arising from reliance on an innocent, but equally negligent misrepresentation of information. In fact, it was ascertained that, since the case raised specific questions of law, a duty of care was established on the part of the defendants (who were bankers) towards the appellants (who in this case were advertisers). Defendant was found to have negligently and negligently communicated to Plaintiff, and Plaintiff innocently relied on that misrepresented communication, resulting in economic damages. The underlying factor in this case was the reference to the Donoghue case in which Lord Reid explained that negligent acts should be distinguished from negligent words. Yuen Ku Yeu v Attorney General of Hong Kong (1988) AC 175 This case involved four investors who were Hong Kong residents and had made substantial investments in a deposit-taking company, which went into liquidation. Consequently, because of thisinsolvency, the investors lost all their money and, as such, claimed damages for negligence on the part of the Commissioner of Oaths, who they claimed would be able to advise members of the public accordingly, whether or not it was safe to deposit money with said company (Introduction to negligence). The case follows and adheres to the general principles of civil liability 1.e; determines by the Commissioner of Oaths whether or not he had duties to the public of Hong Kong. Again reference was made to Lord Atkins' neighbor principle, where it was found that no specific relationship existed between the oath commissioner, and the investors, i.e. the company. Furthermore, the closeness of both parties in relation to the damages was also out of the question. Luen Hing Fat Coating& Finishing Factory Ltd v Waan Chuen Ming (2011) HKCFA 4The factoryin this case the operator engaged an independent contractor to repair a unit of his machine which had been rendered non-operational. The independent contractor came with his employer, the appellant in this case. To repair the unit, the contractor and his employee used two pallet trucks provided by the factory operator for such use. While attempting to reinstall the unit, it fell on top of the employer, crushing both of his legs. As a result, the employer brought legal action against both the independent contractor and the factory manager. The independent contractor was held to have a duty of care to the employer in providing a safe system of work, which had in fact been breached (Introduction to Negligence). Furthermore, the factory manager was also held liable to the plaintiff for negligence and breach of statutory duty. Human rights law and duty of care There is no doubt that human rights, their processes and applications, has continued to influence the perception and due process of tort law in recent years (Stanton, 2012). It is probably important to classify the definition of human rights in a context that fits the explanation given here with reference to tort law. Rights such as civil rights and equality before the law, the right to education and employment, include areas where tort law may be applicable, which creates substantial friction and conflict between tort law and human rights law. So what exactly is the relationship between tort law and human rights law? A good explanation of this issue includes the fact that both legal systems strive to promote individual well-being. In tort law, and in particular in duty of care in cases of negligence, the main objective of tortuous liability is, firstly, to prevent damage and, in the event that this fails, to ensure that the damage resulting from that damage due to a violation of the rules the duty towards a particular party is effectively compensated. With respect to human rights law, the main objective is to ensure that all rights and freedoms afforded to civilians are protected and respected, whether by a court of law or otherwise. This dilemma is perhaps what justifies a fundamental principle of tortuous claim on the basis of negligence, whereby the court must determine whether or not the defendant actually intended, deliberately or otherwise, to cause the aforementioned harm and/or harm to the plaintiff. Furthermore, the morality and conduct of the accused must be held responsible for such a determination. Yes.