1. the particular public servant is found to be negligent; and
Negligence claim – breach of duty
1. the public authority owed a duty of care to the claimant;
If the public authority is not the primary or direct party causing harm to the claimant but it has certain degree of control over the offending third party, then there had to be a sufficient relationship of proximity to establish a duty of care owed by the public authority to the claimant. A duty to the public at large is not enough and there had to be particular circumstances giving rise to an additional degree of risk over and above that faced by the public at large. One such circumstance would be the fact that the public authority which is responsible for controlling the third party where a failure to exercise that control gives rise to an immediate and obvious risk to the claimant.
Is the Marine Department liable in the circumstances?
In the report published in April 2013 by the Commission of Inquiry into Collision of Vessels, it pointed out several malpractices of Marine Department’s inspectors who had carried out routine inspections on the vessel (i.e. Lamma IV) prior to the accident. He might have negligently passed Lamma IV on seaworthiness when it was actually not safe. Specifically, the Inspector:
1. failed to note the absence of watertight door to Access Opening in Lamma IV which was documented in the ship plan and drawings;
Subsequently, after the collision, Lamma IV sank faster than it was designed to be. On hindsight, had the Inspectors showed no leniency in inspection, improvement could have been requested before Lamma IV could set sail.
In view of the findings of the above report, it is arguable that the Marine Department was negligent for the acts or omissions of its inspector and such negligence caused harm to the aggrieved individualsin the Lamma Island ferry collision accident.
If it is alleged that the harm to the aggrieved individuals in the Lamma Island ferry collision accident was not caused by the Marine Department but by the third parties (for example, the owner, the captain and the crew of Lamma IV), the aggrieved individuals can still claim against the Marine Department if they can prove that the Marine Department has certain degree of control over those offending third parties and that there was a sufficient relationship of proximity between the Maine Department and the aggrieved individuals.
 Section 15 of the Merchant Shipping (Safety) Ordinance
The law and procedure on this subject are very specialized and complicated. This article is just a very general outline for reference and cannot be relied upon as legal advice in any individual case. If any advice or assistance is needed, please contact our solicitors.
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Published by ONC Lawyers © 2013