Ming may argue that Martin was not at work at that moment, and therefore it should not be liable. However, the wrongful act was committed during the time he went out to buy tiles, which is considered to be part of his work. Therefore, it is very likely that Ming would be responsible based on vicarious liability.
Contrarily, claim for the broken neck should be distinct from the claim above because it consists of conducts of the ambulance driver, which is a Novus Actus Interveniens. It is reasonable and foreseeable that when he is sending the injured to the hospital, he has to send the patient to the hospital quickly and safely. Without his negligent, Lin’s neck might not be fractured. Hence, it is very likely that the ambulance would be liable under the Road Traffic Ordinance s38. The relevant provision is that when an ambulance is being used, the law will not impose a speed limit to it. However, in clause 3, the law stated that,
“Nothing in this section shall affect any civil claim for injury or damage to a person or to property.”
In this sense, the ambulance driver cannot excuse his duty of care towards Lin by policy consideration. Martin will not be liable for this claim because the neck fracture is caused by the ambulance driver is too remote for him. In Overseas Tankship (UK) Ltd v Morts Dock and Engineering (The Wagon Mound No 1), the judges in the Privy Council held that a person is responsible only for consequences that could reasonably have been anticipated. As there is very likely to be a break of chain of causation, the ambulance driver would be liable, because it is a substantial cause of Lin’s neck injury. However, the Court will conduct an objective test which examines how other ambulance drivers will act under the same situation. If the driver fails under the standard of care of his peers, the hospital would be responsible for the employee’s negligence.
The third possible claim would be the recurrence of Lin’s cancer, which is “seemingly” caused by the neck fractured. Lin may have a claim because this act is a new intervening act caused by the ambulance driver’s negligent. Martin will not be liable because the causation chain is broken. In Smith v Leech Brain & Co, defendants must take their victims as they find them. Smith’s lip was severely burnt because of the inadequate protection provided by his employer. His injury later contracted to cancer and eventual death. It was found that Smith had a pre-malignant condition, as the burn was merely the promoting agency. Lord Parker CJ held that,
“…assuming negligence proved, and assuming that the burn caused in whole or in part of the cancer and the death, the plaintiff would be entitled to recover.”
Defendants are liable for the full extend of the harm even where the full extent was not foreseeable, as long as the harm is of a type which was reasonably foreseeable. In this sense, the neck fractured is foreseeable. Hence, the recurrence of cancer is the extent of it. Therefore, Lin should have a claim for the recurrence of cancer based on the “thin skull” rule.
However, the possibility of reactivation of cancer should also be considered. If there was originally very high chance of reactivation, even without the neck fracture, the court will probably not allow the claim. As the chance of reactivation of cancer is high and presence before the accident, there is no direct causation of the accident. A helpful case to this is Gregg v Scott. A doctor’s misdiagnosis, causing the chance of recovery of cancer of a patient drop from 42% to 25%. However, 42% is considered low chances in law, meaning that the patient will probably not recover even if the doctor is careful. Hence, the doctor's negligence is not the effective cause in this sense. This case demonstrates the principle that if the chance of reactivation is already high (usually >50%), without the neck fracture, the plaintiff will be considered failing in proving on the balance of probabilities. The negligence would therefore, not an effective cause of the damage because it is too remote. Therefore, if Lin wants to claim for the recurrence of his cancer, he has to prove that probability of the fractured neck is the direct cause of the recurrence is > 50%.
The fourth possible claim would be Lin winning the lottery. In this case, Martin’s negligent prevented him to purchase a lottery ticket, which he later found out that his usual numbers had come up of the lottery and had he purchased his ticket, he would have won HK$20million. Lin suffered from pure economic loss, which is independent from and not consequent upon any physical damage to the plaintiff or the plaintiff’s property. The “but-for” test is passed, meaning if Martin was careful, it would be very likely for Lin to win the lottery. However, it is very unlikely that this would be a successful claim because the damage is not a physical one. In Spartan Steel & Alloys Ltd v Martin & Co (Contractors) Ltd, the defendant negligently cut an electric cable causing a power cut in plaintiff’s factory for 14 hours. Without electricity to heat the plaintiff’s furnace, the metal in the furnace solidified and the plaintiff had to shut down the factory. The plaintiff claimed for damage to the metal that was in the furnace at the time of the power cut (physical damage to property), loss of the profit that they would have made on selling that metal (economic loss arising from damage to property) and loss of profit on the metal that would have been processed during the time that the factor was closed (pure economic loss). Lord Denning delivered a majority judgment and held that only the first two claims were recoverable, but not the third one, which is a pure economic los. Another helpful case to this is Bolton v Stone, the House of Lords held that one will not be liable for damage which cannot be foreseeable. Martin cannot probably foresee that Lin was going to buy a lottery ticket. In this sense, the claim of HK$20million is likely to fail. Besides, it is not fair, just and reasonable to impose liability to Martin for the lottery because the damage is not foreseeable. If the court allows claims of such kind, it may encourage gambling. Also, the reality is that there are many unpredictable events happen in life which is out of our control. If such claims are allowed, it will open the floodgates of litigation. Therefore, the claim for winning the lottery is likely to fail.
Rosita
Rosita can sue the hospital for her injuries, but whether it would be a successful claim, we will need more information to determine.
The text is unclear it is whose fault that cause the accident. The ambulance driver owes a duty of care to persons on or near the road. He has to drive with the degree of skills and care to be expected of a competent and experienced ambulance driver, reaching the “reasonable standard” of his job. If Rosita can prove that she injured “but for” the driver’s negligence, it is very likely that she can sue the hospital successfully.
However, we are uncertain whether Rosita’s injured is due her own negligence or the ambulance driver. The court needs to consider whether Rosita acted reasonably or had taken reasonable precaution to prevent any foreseeable harm of her own. For example, look carefully before she crossed if there is no crossing in the road, use the zebra crossing if there is one and cross the road when the pedestrian light is red. The relevant provision in Hong Kong is the Law Amendment and Reform (Consolidation) Ordinance s21,
“(1) Where any person suffers damage as the 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 by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage…(10)…"fault" means negligence, breach of statutory duty or other act or omission which gives rise to a liability in tort or would, apart from this section, give rise to the defence of contributory negligence.”
In this sense, if Rosita does not act reasonably and contributed negligence towards the accident, the court may reduce her damage or even does not allow her claim.
Would Dolphins or Ming be liable for Joe’s damage caused at Marina’s house?
Joe damaged a patch of floor in Marina’s house that he was supposed to mend before flooring. If the floor was supposed to mend before flooring, can we say that the floor was damaged before Joe’s act? In Performance Cars Ltd v Abraham, the court held that defendant’s damages an already damaged car has no liability responsible as he would only be responsible for the additional damage inflicted on the already damaged car. Therefore, it is possible to argue that Joe damaged a damaged floor has no liability. However, we do not know how serious the new damage is and the party may still be liable for Joe’s act. In that sense, Ming would be liable because Joe was hired by Ming at that time.
Road Traffic Ordinance (c. 374) s77
Rick Glofcheski, Tort Law in Hong Kong (2nd edn Sweet & Maxwell, China 2009) 175