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HK Government prima facie lack of duty of care to its citizens by failure to act to impose meaningful air quality standards in a reasonable timeframe and to enforce same

Clear the Air says:
HK Government shows a prima facie lack of Duty of Care to its citizens by failure to act to impose meaningful air quality standards in a reasonable timeframe and to enforce same – 3’200 people (Hedley Index) die annually here with thousands of doctor visits resulting from local air pollution as the Government prevaricates to try and push through unnecessary mega infrastructure white elephants.
Duty of care in English law

From Wikipedia, the free encyclopedia

In English tort law, an individual may be owed a duty of care by another, to ensure that they do not suffer any unreasonable harm or loss. If such a duty is found to be breachedlegal liability is imposed upon the duty-ower, to compensate the victim for any losses they incur. The idea of individuals owing strangers a duty of care – where beforehand such duties were only found from contractual arrangements – developed at common law, throughout the 20th century. Its origins can be found in the case of Donoghue v Stevenson,[1] where a woman succeeded in establishing a manufacturer of ginger beer owed her a duty of care, where it had been negligently produced. Following this, the duty concept has expanded into a coherent judicial test, which must be satisfied in order to claim in negligence.

Generally, a duty of care arises where one individual or group undertakes an activity which could reasonably harm another, either physically, mentally, or economically. This includes common activities such as driving (where physical injury may occur), as well as specialised activities such as dispensing reliant economic advice (where economic loss may occur). Where an individual has not created a situation which may cause harm, no duty of care exists to warn others of dangerous situations or prevent harm occurring to them; such acts are known as pure omissions, and liability may only arise where a prior special relationship exists to necessitate them.

The first element of negligence is the legal duty of care. This concerns the relationship between the defendant and the plaintiff, which must be such that there is an obligation upon the defendant to take proper care to avoid causing injury to the plaintiff in all the circumstances of the case. There are two ways in which a duty of care may be established:

♦ the defendant and plaintiff are within one of the ‘special relationship’; or

♦ outside of these relationships, according to the principles developed by case law.

There are a number of situations in which the courts recognise the existence of a duty of care. These usually arise as a result of some sort of special relationship between the parties. Examples include

♦ one road-user to another

♦ employer to employee

♦ manufacturer to consumer

♦ doctor to patient

♦ solicitor to client

and a deceitful Government to its Citizens’ health  ?

Lord Atkin established liability on the basis that a neighbour principle existed between the two parties, to ensure reasonable care was taken in the production of the ginger beer, so as not to cause Mrs Donoghue any unreasonable harm:

There must be, and is, some general conception of relations giving rise to a duty of care, of which the particular cases found in the books are but instances. … The rule that you are to love your neighbour becomes in law you must not injure your neighbour; and the lawyer’s question: Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law, is my neighbour? The answer seems to be – persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions that are called in question.[3]

Caparo Industries plc v Dickman [1990] UKHL 2 is a leading English tort law case on the test for a duty of care. The House of Lords, following the Court of Appeal, set out a “three-fold test”. In order for a duty of care to arise in negligence,

  • ·       harm must be reasonably foreseeable as a result of the defendant’s conduct               (condition met)
  • ·       the parties must be in a relationship of proximity                                                                  (condition met)
  • ·       it must be fair, just and reasonable to impose liability                                                          (condition met)

If the imposition of a duty on a defendant would be for any reason oppressive, or would expose him, in Cardozo C.J.‘s famous phrase in Ultramares Corporation v Touche, 174 N.E. 441 , 444, “to a liability in an indeterminate amount for an indeterminate time to an indeterminate class,” that will weigh heavily, probably conclusively, against the imposition of a duty (if it has not already shown a fatal lack of proximity). On the other hand, a duty will be the more readily found if the defendant is voluntarily exercising a professional skill for reward, if the victim of his carelessness has (in the absence of a duty) no means of redress, if the duty contended for, as in McLoughlin v O’Brian [1983] 1 A.C. 410 , arises naturally from a duty which already exists or if the imposition of a duty is thought to promote some socially desirable objective.

“Yau claims the new air quality objectives can’t take effect until 2014 because it takes time to go through the legislative process. In fact, under section 7 of the Air Pollution Control Ordinance, the secretary just has to gazette the new objectives without going through a legislative process. “   Legislator Audrey EU     Jan 31 2012

Chapter: 311  Title: AIR POLLUTION CONTROL ORDINANCE Gazette Number:
Section: 7 Heading: Secretary to establish quality objectives Version Date: 30/06/1997

(1) The Secretary shall, after consultation with the Advisory Council on the Environment, establish for each air control zone air quality objectives or different objectives for different parts of a zone. (Amended L.N. 165 of 1984; L.N. 57 of 1994)
(1A) The Secretary may publish air quality objectives for an air control zone by issuing a technical memorandum which may specify different objectives for different parts of the zone. (Added 13 of 1993 s. 5)
(2) The air quality objectives for any particular air control zone or part thereof shall be the quality which, in the opinion of the Secretary, should be achieved and maintained in order to promote the conservation and best use of air in the zone in the public interest.
(3) Any air quality objective may be amended from time to time by the Secretary, after consultation with the Advisory Council on the Environment. (Amended L.N. 165 of 1984; L.N. 57 of 1994)
(4)-(5) (Repealed 13 of 1993 s. 5)

Chapter: 311  Title: AIR POLLUTION CONTROL ORDINANCE Gazette Number:
Section: 8 Heading: Authority to seek to achieve quality objectives Version Date: 30/06/1997

(1) (Repealed 13 of 1993 s. 6)
(2) The Authority shall aim to achieve the relevant air quality objectives as soon as is reasonably practicable and thereafter to maintain the quality so achieved.
(3) If in the opinion of the Secretary the achievement or maintenance of any air quality objective would be better served by the exercise by the Authority in a particular manner of any of his powers under section 15(4), 17 or 22, the Secretary may give directions in writing to the Authority as to the manner in which he shall exercise those powers; and, in the case of a direction which relates to section 15(4), any such direction may be of a general nature or relate to a particular case or particular cases.
(4) The Authority shall comply with any direction given to him under subsection (3) and the discretion conferred on the Authority by section 15(4), 17 or 22 as the case may be, shall not apply to any specified process in respect of which such a direction is in force.

SCMP Pledge to act is hot air without a target
Audrey Eu criticises the government’s delay to set limits for pollution control

The long-awaited update of Hong Kong’s air quality objectives was finally announced by Secretary for the Environment Edward Yau Tang-wah this month, but it was only a post-dated cheque, to take effect in 2014, and still a far cry from the air quality guidelines set by the World Health Organisation.

Yau also warned that this will mean increases in bus fares and electricity bills of between 15 and 20 per cent. But is that so?

The current objectives were set in 1987, almost a quarter of a century ago. After the WHO updated its guidelines in 2006, the government commissioned a study and carried out a public consultation. All were in favour of early implementation of updated objectives, plus a regular review. This process was completed in 2009. But no announcement was forthcoming.

When pressed, Yau said the government was taking steps to implement 19 measures that would improve air quality. This is subterfuge. Can you imagine a doctor telling a patient with hypertension to try taking 19 measures – such as quit smoking and drinking – to reduce his blood pressure but not tell him that the systolic pressure for healthy individuals should not go above 120? Improving air quality is one thing, being honest about the healthy standard is another.

While Yau was quick to warn of an increased costs for cleaner air, he did not talk about the costs of pollution. The University of Hong Kong’s School of Public Health publishes a real-time index that clocks the medical costs and sick days that are attributed to the effects of pollution. Every year, 3,200 people die prematurely due to pollution. The poor environment also dampens incentive for overseas investment. These costs are ignored by the government and not accounted for.

The main culprit is roadside pollution, especially emissions from the thousands of old buses plying our streets that do not meet current European emissions standards. According to the government’s agreement with the bus companies, each bus can run for 18 years and we have to wait until 2020 before all of them exhaust their agreed life span.

As pedestrians, we cover our noses when crossing the street, and we cannot afford to wait any longer. Investments in cleaner air benefit everyone, and there is no reason bus passengers should shoulder the costs alone. Our government can easily afford to reimburse the bus companies for their losses if they retire these old buses early and replace them with cleaner ones.

Power companies have also raised their charges. But, in this case, we know that the culprit is the schemes of control signed with the government that guarantees the power companies a 9.99per cent profit based on fixed assets. Environmental concern was not the main reason for the unreasonable tariff increases proposed.

Yau claims the new air quality objectives can’t take effect until 2014 because it takes time to go through the legislative process. In fact, under section 7 of the Air Pollution Control Ordinance, the secretary just has to gazette the new objectives without going through a legislative process.

At the moment, the new Legislative Council complex has an indoor air quality problem and this is measured daily and compared to the standard set by a Finnish organisation. Likewise, we should not need legislation to set the standard for healthy air in Hong Kong. It is the duty of the secretary under the ordinance first to set the standard by gazette, and then to implement measures to meet that standard gradually.

But this government does the reverse. Instead of announcing the right standards for all sectors to meet, it waits until all sectors are willing to meet those standards. It will wait for the bus companies to be able to afford cleaner buses, and for the Airport Authority to “endeavour” to meet the new benchmarks in its environment impact assessment for the third runway, and for the power companies to have more natural gas supply from the mainland, before informing us how poor our air quality actually is.

Audrey Eu Yuet-mee is a legislator and founding leader of the Civic Party

Edward Yau exposed:

Why secretary’s announcement seems to be full of hot air

Howard Winn

Jan 21, 2012

More reasons why Secretary for the Environment Edward Yau’s announcement on air quality objectives should be treated with considerable scepticism.

The government’s press statement on the revised AQOs says: “The government will start preparatory work on the amendment of the Air Pollution Control Ordinance with an aim to table the Amendment Bill in the 2012-13 session of the Legislative Council. Taking account for the lead time for completing the legislative process and other necessary preparatory work, including formulation of modelling guidelines and compilation of emissions inventories, it is expected that the proposed new AQOs would take effect in 2014.”

So the government says new revised AQOs require new legislation which has to be put to the Legislative Council. However, a look at the Air Pollution Control Ordinance which deals with AQOs clearly shows that it is completely unnecessary to go to Legco to revise AQOs.

Chapter 311 of the Air Pollution Control Ordinance, Section 7 – Secretary to establish quality objectives – says: “Any air quality objective may be amended from time to time by the Secretary, after consultation with the Advisory Council on the Environment.”

This is clearly another attempt by the administration to pull the wool over the eyes of the community and to delay the process for yet another two years. The saga of the AQOs started in 2007 when consultants were hired to determine appropriate levels for Hong Kong (Arup was paid US$6 million for an entirely unnecessary exercise which had already been done by the World Health Organisation).

This, together with various internal discussions dragged the process out until 2009 when Public Consultation started. In June 2010 the government declared the public views were too divergent to see a clear way forward and there was silence on the matter until last week.

For this bureaucratic achievement, Edward Yau was last year awarded the Golden Bauhinia, which is supposed to be for eminent persons who have given very distinguished services to the community or who have rendered public or voluntary services of a very high degree of merit.

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