No Marshmallows, Just Term Papers
(1) Hong Kong: Candy as 3rd party
Candy lacks privity.
The only cause of action is in the tort of negligence.
2 kinds of damage,
physical damage (destruction of the office)
pure economic loss arsing from the failure of the software to take orders.
Destruction of the office
duty of care was owed on a Donoghue basis for physical damage
clear breach of duty
causation - Bird might argue Candy’s failure to maintain fire equipment novus actus
In the 1999 Hong Kong Court of Appeal case Wai Yin Wa
it was held that a damage would be deemed to be caused by the plaintiff’s novus actus when “it is wholly due to [his] negligence or deliberate act”.
the damage was not “wholly due to Candy”.
no novus actus and Bird’s breach of duty was the effective cause of the damage.
Then there is the issue of remoteness. The remoteness test in negligence is solely that of forseeability.
English case Wagon Mound No.1
Only the type of harm need be foreseeable, the extent does not matter
Defence of contributory negligence open Brid.
In Hong Kong, s.21 of the Law Amendment and Reform (Consolidation) Ordinance (Cap.23) provides
the court discretion to apportion liability
having regard to “the claimant’s share in the responsibility for the damage”
Candy is likely to be found partly at fault for failing to maintain fire equipment.
Hence Candy is not likely to recover the full million.
The extent of reduction will have to be determined as a question of fact, taking into account expert evidence from the Fire Department.
The lost profit
Pure economic loss
No duty owed as a general rule (Spartan Steel)
Leading case in HK is Bank of East Asia
Special relationship between Candy and Bird, 3 conditions
(i) Bird possessed a special skill
(ii) undertook to apply that skill for the assistance of Candy
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