Negligence - General Principles

Negligence General Principles (1)
CHAPTER
Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 201 Duty of Care . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 206 The Standard of Care . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 232
Griffith College 2009/10
The Professional Law School: Law of Torts
Topic Ordinary negligence and the duty of care Standard of care
Apr 03
Oct 03 Q4
Apr 04 Q2
Oct 04
Apr 05
Oct 05 Q4
Apr 06
Oct 06 Q1 Q8 (DOC)
Apr 07
Oct 07
Apr 08 Q2
Oct 08 Q7
Q8
Q3
Q8
Q2
No candidate should attempt a tort exam without having an understanding of the duty of care and the standard of care. These concepts form the foundation for all torts of negligence. These topics also appear frequently on the exam papers either in the form of an essay question or as a problem question. The essay questions tend to concentrate on the role of policy factors in establishing a duty of care. Students often steer clear of problem questions where they do not immediately fall into one of the well known and more identiable topics such as negligent misstatement, professional negligence, liability of public authorities etc. It must be remembered that all of these things are simply types of negligence action and basic negligence principles, as well as other considerations apply. This is why students should not run away from questions that dont immediately strike them as being a topic that they have revised because the likelihood is that such a question can be answered using general negligence principles and asking whether a duty of care can be established on the facts and if a duty of care is owed whether the person who owes it fell below the requisite standard of care.

[201]
INTRODUCTION
The tort of negligence is the most common area of torts law in modern jurisprudence. Negligence as a tort has emerged and developed as a separate cause of action. The tort of negligence is the most common form of fault-based liability and the key principle is that of reasonableness.
Scope of the Tort of Negligence

[202] The tort of negligence is a very expansive area of law and covers a huge variety of situations. Negligence covers acts or omissions by a Defendant which may take the forms of statements or physical conduct and has been summarised as:
Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.1
Negligence Principles
[203] The Irish Courts have developed general negligence principles which are applied to specic situations to determine liability between the parties.
Blyth v Birmingham Waterworks (1856) Exch 781 per Alderson B.
Chapter 2
To recover compensation in a negligence action a Plaintiff must prove the following on the balance of probabilities:
1. 2. 3. 4. Duty of care Standard of care Causation Damage
We will deal with the rst two principles in this chapter (duty of care, standard of care) and deal with the next two in Chapter 3 (causation, remoteness of damage).
Application of Negligence Principles

The application of general negligence principles is not always straightforward and the Courts have been faced with difculties in relation to applying the principles to certain categories of persons and certain categories of damage. In particular, we will examine some categories of persons which have caused the Courts problems when applying negligence principles (builders, local authorities). We will also examine some difcult categories of damages which have caused the Courts problems (economic loss, negligently inicted psychiatric damage). The Courts have emphasised on many occasions that negligence is an aspect of fault-based liability and therefore there must be some fault on the part of the Defendant. [204]
McEleney v McCarron (unrep, Dec 1992)

Facts: The Plaintiff suffered irreparable brain damage after being run over by the Defendants car at night. Before the accident the Plaintiff had been very drunk and was helped out of a disco by two women. The Plaintiff fell off the footpath onto the roadway. The two women tried but failed to move him back to the footpath. At this time, the Defendant was driving down the road and in the darkness all he could only see were two women gesticulating and he presumed they were hitching a lift. He did not see the Plaintiff on the road and he ran over him. HC held: Plaintiff 70 percent contributorily liable for the road accident and the Defendant 30 percent liable. On appeal, SC held: The Defendant had done his utmost to avoid injury in circumstances which made it impossible to detect the inebriated Plaintiff until it was too late. It reversed the HCs nding of liability on the basis that to impose liability on the Defendant in these circumstances would be, in effect, to impose an absolute duty of care on him. Thus the Supreme Court overturned the High Court for wrongly imposing liability on the Defendant in circumstances where he had not been shown to have been at fault. [205]
K E Y P O I N T
Negligence is one, very large, branch of tort that focuses upon carelessness by the defendant and asks whether or not he/she should have known or foreseen that his/her negligence would lead to the plaintiffs injury. Liability is fault-based. It can be compared with the other very large, branch of tort law that imposes liability for intentional acts. Where the defendant is shown to have intended the injury liability is stricter on the defendant in a number of ways e.g. the Re Polemis rule in relation to remoteness of damage, and also in relation to limitation periods for the bringing of an action.

[206]
DUTY OF CARE
This rst element of negligence requires the Plaintiff to establish some legal responsibility on the Defendant in the form of an obligation or duty. This is only the rst element to establish liability.
Development of the Duty of Care

[207] The development of the duty of care can be traced to the decision of Donoghue v Stevenson (1932)2 Facts: The Plaintiff sustained personal injuries after she drank a bottle of ginger beer which had been bought for her at a bar by a friend. The bottle contained remnants of a decomposed snail. It had been argued in Donoghue that because the Plaintiff didnt actually purchase the bottle of ginger beer, she had no remedy under contract and therefore no cause of action in negligence. The Court held that the duty of care a Defendant owes the Plaintiff in negligence law exists even though the parties were never in a direct contractual relationship. Lord Atkins stated:
The rule that you are to love your neighbour becomes in law you must not injure your neighbour; and the lawyers 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 liable to injure your neighbour (emphasis added). 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 which are called in question. (emphasis added)
[208]
[209]
This case established a separate cause of action in negligence and emphasised the proximity of relationship between the Plaintiff and Defendant and the reasonable foreseeability of injury and is regarded as the foundation of modern negligence law. [Note, however, that the case mixed together elements of proximity and foreseeability which are considered separately in modern cases) Donoghue was rst accepted by an Irish court in a published judgment by Gavan Duffy J in Kirby v Burke & Holloway (1944)3 and Irish courts retain support for Donoghue and favour its broad principled case-by-case approach. This can be contrasted with the English development of the duty of care which we will consider.
[210]
2 3
(1932) AC 562. (1944) IR 207.
Chapter 2
English Development of The Duty of Care a. Support for Donoghue

Initially the broad neighbourhood principle in Donoghue was supported in England Home Ofce v Dorset Yacht Co Ltd (1970)4. Facts: A number of juveniles escaped from detention and caused damage to the Plaintiffs property. Held: Liability imposed on the Crown who had a duty to control the juveniles. It was held that as a result negligence on the part of ofcers of the Crown (there was evidence that the relevant guards on duty in the institution were asleep at the time of the escape), the Plaintiff had suffered foreseeable harm. [211]
b. Anns Decision
The rst major development in English law after Donoghue was the decision in Anns v Merton London Borough Council (1978).5 Facts: This case concerned structural defects in a premises leased by the Plaintiff and the Plaintiff sued the builder/owners and also sued council in negligence for approving the foundations. In that case the HL attempted an overview of negligence law principles as it had developed over recent years. Lord Wilberforces stated as follows:
Through the trilogy of cases in this House Donoghue v Stevenson, Hedley Byrne & Co v Heller & Partners Ltd, and Home Ofce v Dorset Yacht Co Ltd, the position has now been reached that in order to establish that a duty of care arises in a particular situation, it is not necessary to bring the facts of that situation within those of previous situations in which a duty of care has been held to exist. Rather the question has to be approached in two stages. First, one has to ask whether, as between the alleged wrongdoer and the person who has suffered damage there is a sufcient relationship of proximity or neighbourhood such that, in the reasonable contemplation of the former, carelessness on his part may be likely to cause damage to the latter in which case a prima facie duty of care arises. Secondly, if the rst question is answered afrmatively, it is necessary to consider whether there are any considerations which ought to negative, reduce or limit the scope of the duty or the class of person to whom it is owed or the damages to which a breach of it may give rise.6
[212]
[213]
Anns echoes the language of Donoghue and refers rstly to proximity and foreseeability and secondly to other considerations which ought to limit the duty of care. This decision is seen as authority for a two-tiered test to establish a duty of care as follows:
1st tier: Proximity or neighbourhood such that within reasonable contemplation of Defendant that carelessness would result in injury. 2nd tier: Are there considerations which ought to reduce the scope of duty?
[214]
This decision was seen an expansive reformulation of the Donoghue decision and Irish Courts subsequently welcomed this expansive approach. However, the decision was criticised because the 1st tier of the test mixes the issues of
[215]
4 5 6
(1970) AC 1004. (1978) AC 728.
proximity and foreseeability. As we shall see the Irish Courts now prefer to consider these elements separately. The English Courts subsequently viewed Anns as a radical restatement of negligence law and Anns was rejected later in England on the basis that it sketched proximity in terms of reasonable foreseeability of risks alone.
c. Caparo Decision
[216] The support for the Anns formulation in England ended with the decision in Caparo Industries Plc v Dickman (1990)7 where the HL advocated a new test to replace Anns. Facts: This case concerned a negligent misstatement by the Defendant accountant where the Plaintiff invested in a company on basis of the Defendants accounts which were inaccurate. The Court established a new three-tier test to establish a duty of care and referred to three separate issues of:
1. 2. 3. Relational proximity Reasonable foreseeability of injury and Whether in all the circumstances of the case it is just and reasonable to impose liability on the Defendant for the losses sought.
[217]
The Caparo decision is seen as a move away from the pro-Plaintiff approach of Anns. The Anns decision provides that once proximity and foreseeability are established there is a presumption of a duty of care unless there are considerations which should limit the decision. The Caparo decision provides that even where a Plaintiff establishes proximity and foreseeability the Plaintiff must also establish that is just and reasonable to impose a duty of care.
d. Incremental Approach
[218] Caparo is seen as the beginning of what is referred to as the incremental approach to the duty of care in English jurisprudence. The incremental approach means that the duty of care is developed by comparison with previous decisions. This approach is conservative and reects a fear of creating indeterminate or open-ended forms of liability. The so-called incremental approach was summarized by the HC of Australia as follows:
It is preferable in my view that the law should develop novel categories of negligence incrementally and by analogy with established categories, rather than by a massive extension of a prima facie duty of care restrained only by indenable considerations which ought to negative, or to reduce or limit the scope of the duty, and the class of person to whom it should be owed.8
[219]
English law entered into a new phase of negligence law with the HLs decision in Caparo which was endorsed in Murphy v Brentwood District Council (1991)9. This phase represents the rejection of broad principles enunciated in cases like Donoghue and Anns, and a preference for the further development of negligence law by careful, incremental growth arising from comparison with previous decisions.
(1990) AC 605. Sutherland Shire Council v Heyman (1985) 60 ALR 1 at 4344, per Brennan J. 9 (1991) 1 AC 398.
7 8
10
Chapter 2
K E Y P O I N T
Students often have difculty understanding the difference between the Anns Test and the Caparo three-stage test because they sound very similar. The important point is that the Caparo test requires the plaintiff to prove an extra element and has become synonymous with a more restrictive stance to the duty of care.
Irish Development of Duty of Care

The Irish courts have retained their enthusiasm for Donoghue, favouring its broad principled case-by-case approach. Lord Atkins statements have remained popular in Ireland although the courts often conate reasonable foreseeability with relational proximity. The English incremental approach is unpopular with the Irish judges and has been rejected on numerous occasions although the decision in Glencar sounds a more restrictive note in the development of the duty of care in Ireland. [220]
a. Broad Approach to Donoghue

The Irish Courts endorsed the Donoghue decision on a number of occasions prior to the English decision in Anns. One example is the case of McNamara v ESB (1975) where the Court held that an occupier may owe duty of care to a trespasser and the Court emphasised the issues of proximity and foreseeability. The decision in Anns was welcomed in this jurisdiction and was seen by Irish Judges as merely endorsing Donoghue as opposed to a complete reformulation of negligence law. In W v Ireland and Others (No 2) (1997)10 Costello P stated that the view of the Irish courts has been that Anns was a conrmation of the long established principles of the law of tort contained in Donoghue v Stevenson and was not (as some commentators in England seem to coincide) a major innovation in the law of tort. The Courts in Ireland continued to adopt a broad expansive approach to negligence principles as is seen in the case of Ward v McMaster (1988).11 Facts: This case concerned a Plaintiff who bought a house from a builder. The house turned out to be structurally unsound. The Plaintiff sued the builder and council who had provided a housing loan to the Plaintiff and had arranged an inspection of the property which the Plaintiff relied on. The Plaintiff was successful against both. Held: The Court referred to the incremental approach in England and rejected it. The Court endorsed the broad approach to the duty of care and referred to the three-tier test of proximity, foreseeability and the absence of any compelling exemption based on public policy. The Court specically stated that a public policy reason must be a very powerful one if it is used to deny an injured party the right to redress. The broad decision in Ward was also followed in McShane Wholesale Fruit & Veg Ltd case (1997).12 [221]
[222]
[223]
(1997) 2 IR 141. (1988) IR 337, (1989) ILRM 400. 12 (1997) 1 ILRM 86.
10 11
11
b. Glencar Decision
[224] However, in Glencar Explorations v Mayo County Council (2001),13 Keane CJ invited reconsideration of the allegiance of the Irish courts to the Anns decision and a broad approach to the duty of care. Facts: The Plaintiff sought recovery for nancial losses as a result of the Councils imposition of a mining ban. Held: The Court held that the Plaintiff could not recover since, though the loss was reasonably foreseeable, the parties had not been in a position of relational proximity sufcient to raise a duty of care between them. Keane CJ stated:
It is precisely that distinction drawn by Lord Atkin between the requirements of morality and altruism on the one hand and the law of negligence on the other hand which is in grave danger of being eroded by the approach adopted in Anns as it has subsequently been interpreted by some. There is, in my view, no reason why courts determining whether a duty of care arises should consider themselves obliged to hold that it does in every case where injury or damage to property was reasonably foreseeable and the notorious difcult and elusive test of proximity or neighbourhood can be said to have been met, unless very powerful public policy considerations dictate otherwise. It seems to me that no injustice will be done if they are required to take the further step of considering whether, in all the circumstances, it is just and reasonable that the law should impose a duty of a given scope on the Defendant for the benet of the Plaintiff, (emphasis added) as held in Caparo Industries.
[225]
It should be noted that Keane CJ did not reject the continued application of Anns but simply preferred the Caparo wording of the second tier. However, in his application of the law to the facts of the case, Keane CJ adopted the wording of the Caparo Industries test. The SC recently returned to this issue in Breslin v Corcoran (27 March 2003). Facts: The issue of a duty of care was central to this case as the proceedings attempted a novel imposition of liability on a car owner for injuries caused by a thief who stole his car and crashed into a third party, causing personal injuries. The owner had left his keys in the ignition while he bought a sandwich in a shop. The Motor Insurers Bureau, which otherwise would have been required to compensate the injured party, submitted that the owner was liable on the basis that such an event was reasonably foreseeable. Held: The Court approved the above passage from Keane CJs judgment in Glencar and agreed that in addition to the elements of foreseeability and proximity, it is natural to have regard to considerations of fairness, justice and reasonableness. The Court emphasised the need not just to establish foreseeability, but also relational proximity although acknowledged that [w] hat is reasonably foreseeable is closely linked to the concept of proximity. The Court concluded that it is reasonably foreseeable that if a man leaves his car unattended with the keys in the ignition, it will be stolen. However, it is not reasonably foreseeable that after the theft the driver will drive carelessly causing personal injuries to a third party. Thus the Defendant owner was not liable in the circumstances Note: The decision can be queried. Is it not reasonably foreseeable that if someone steals a car, further criminal and civil offences may be committed by the thief leading to injury or loss?
[226]
13
(2002) 1 ILRM 481 (SC).
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Chapter 2
As noted in Byrne and Binchys Annual Review of Irish Law 2005 at p666667, the inuence of Glencar can be seen in the recent Supreme Court decision of Beatty v The Rent Tribunal (2006) 1 ILRM 164. In that case a landlord sought compensation from the rent tribunal but the Supreme Court reversed the nding of the HC and rejected his claim. The Court seemed to take a restrictive view to the issue negligence and emphasised the public policy exception. Clearly the fact that the Court was considering negligence on the part of a public body was also very inuential. It is signicant that in Wildgust v Bank of Ireland, (2006) IESC 16, Kearns J reviewed the development of the duty of care, discussing both Anns and Caparo and quoting from the judgment of Keane CJ in Glencar he held that:
This most authoritative recent statement of the law in relation to the general duty of care in negligence is in itself a powerful reason for holding that the test in Caparo, if applicable, must apply with even greater force to cases of negligent misstatement and that Lord Bridges caveat at p621 that an essential ingredient of the proximity between the plaintiff and the defendant in such circumstances must at the very least involve proof that the defendant knew that his statement would be communicated to the plaintiff, either as an individual or as a member of an identiable class, specically in connection with a particular transaction or transactions of a particular kind and that the plaintiff would be very likely to rely on it for the purposes of deciding whether or not to enter upon that transaction or upon a transaction of that kind. This strikes me as a particularly appropriate restriction to apply to any duty of care arising in respect of negligent misstatement for all the reasons identied in the cases already considered and bearing in mind always the crucial distinction between words and statements on the one hand and deeds and conduct on the other. It seems obvious that this distinction is one which should not be elided. The question however is whether the principles in Caparo, itself a case in negligent misstatement, should apply to cases of negligent misstatement in this jurisdiction, as distinct from cases of the general duty of care in negligence where application of those principles has been established by the decision of this Court in Glencar plc v Mayo County Council (No 2).
[226A]
The judgment of Kearns J accepts that the Caparos principles have been adopted by Glencar and are applicable to the general duty of care in this jurisdiction. In light of this statement it seems hard to argue against the view that the Caparo test is applicable in Ireland.
K E Y P O I N T
While Ireland has been slow to wholeheartedly adopt the Caparo principles and for a long period of time remained wedded to Anns, it now seems that Caparo is favored. however an unequivocal statement to this effect by majority of the Supreme Court is still awaited.
Discussion of Duty of Care

The duty of care in negligence involves the consideration of social objectives to determine if a Defendant should compensate a Plaintiff for certain conduct leading to damage. The duty of care is often a contentious issue in cases where the Plaintiff seeks recovery for injury or loss in new or exceptional circumstances. As we have discussed, the elements to establish a duty of care are proximity, foreseeability and policy factors. It is clear, however, that the third issue of policy factors in fact inuences all three elements of the duty of care. [227]
13
Some of the main policy considerations which the Courts refer to are as follows: (a) Public expectation and reliance This policy consideration is used to restrict a duty of care in certain circumstances. It is based on the notion that the public must be able to rely on professional judgment in particular and the law should not replace professional judgment with legal judgment. This policy consideration may restrict a duty of care in certain areas of professional negligence and in particular the Courts may require a distinct level of proximity between the parties in a professional relationship. The Courts also refer to public expectation in the context of imposing a duty of care on public bodies and traditionally the Courts have taken a restrictive view towards imposing a duty of care in these circumstances. Self-Responsibility This policy consideration is used to restrict a duty of care in certain circumstances. It has been referred to in cases concerning employees and the duty of care owed by their employers and also in the context of those undertaking activities with inherent risks. Floodgates This is the most common policy consideration used by the Courts to avoid imposing a duty of care in novel, open-ended situations which will be difcult to limit. In particular, the English Courts rely on established categories and are reluctant to impose a duty in new situations. Integrity of other areas of law This consideration is also referred to by the Courts to ensure that a duty of care is not imposed in areas already governed by established bodies of law, in particular contract law.
(b)
(c)
(d)
The policy considerations referred to above inuence the Courts consideration of the three central elements to establish a duty of care- proximity, foreseeability and other policy factors. The type of persons who can owe a duty of care is never closed and it is up to the plaintiff to establish that a duty was owed to him on the facts of each case. In the case of Redahan v Minister for Education and Science, High Ct, (29 July 2005), Gilligan J refused to hold that arbitrators owed any duty of care in negligence to persons involved in arbitration. Arbitrators are one category of persons who enjoy immunity from suit in negligence for acts done in their quasi-judicial capacity as arbitrator. This was clearly a decision based on the public policy and the public interest in preserving the privileged position of arbitrators to carry on their duties without the threat of litigation.
E X A M T I P
Know these factors which are the driving forces behind public policy decisions. These are considerations outside of legal principle that inuence the courts decision whether or not to impose liability. The concepts of proximity and forseeability also have an in built capacity to house policy considerations.
Proximity and Policy Factors

The element of proximity of the parties contains degree of value judgment and therefore policy considerations have inuenced the Courts discussion of [228]
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Chapter 2
proximity. The issue is: what degree of closeness or proximity between the parties is required to create a legal obligation? We will see in cases of negligent misstatement and negligently inicted psychiatric injury that a certain special relationship or proximity is required to establish a duty of care and this approach is inuenced by the oodgates argument.
Foreseeability and Policy Factors

The second element of the duty of care is reasonable foreseeability that the Plaintiff would suffer damage due to carelessness by the Defendant. The Courts will use policy factors to decide on what is foreseeable in the circumstances by reference to public expectation in particular. The Courts are also anxious to ensure that foreseeability alone is not used to determine liability but must be considered where a proximate relationship exists. Otherwise liability could be imposed on a wide range of Defendants where it was foreseeable that a stranger would suffer injury or harm. [229]
Policy Factors
The third element of the duty of care is whether a specic policy factor exists in the particular circumstances which should be used to deny a duty of care. In Ireland the Courts have been very slow to use policy consideration to deny liability. In Ward the Courts specically stated that a public policy consideration denying the existence of a duty of care would have to be a very powerful one. This approach reects the view that if a Court examines the rst two elements on the duty of care (i.e. proximity and foreseeability) it will not be necessary to invoke articial policy consideration to deny a duty of care. The recent Breslin case illustrates this in that there was proximity between the parties but the element of reasonable foreseeability was not established and therefore no duty of care existed. As discussed above, the Glencar decision, in endorsing Caparo, opens up the possibility that a more restrictive policy-orientated approach will be followed by the Irish Courts in the future and the inuence of this is evident from the Beatty case discussed above. However, Byrne and Binchy14 seem to favour the approach whereby the inuence of Glencar is limited to the issues of pure economic loss and the duty of care imposed on public authorities and in all other cases the role of policy factors should be limited. The English approach is more restrictive and policy factors are more readily relied on to defeat a duty of care. [230]
[231]
THE STANDARD OF CARE

[232]
The Reasonable Man

When the Defendant is found to owe a duty of care to a Plaintiff he/she will be subject to a standard of care. If the Defendants conduct falls short of the standard of care which he owed in the circumstances of the case, he is said to have breached his duty of care to the Plaintiff. This principle in negligence law focuses on the standards of reasonableness against which the Defendants conduct will be legally assessed. Generally in
[233]
14
Annual Review of Irish Law 2005 at p672.
15
cases of negligence, the standards against which the Defendant will be judged are those of the reasonable man. The reasonable man is a hypothetical entity who enables the court to appraise the Defendants acts or omissions by reference to objective criteria. It should be noted that the Courts have regard to the reasonable man in all the relevant circumstances and therefore the objective standard is tempered by the relevant subjective elements of the circumstances. [234] However, the reasonable man is considered to be free from particular sensitivities and quirks. Lord Macmillan put it that
The standard of foresight of the reasonable man eliminates the personal equation and is independent of the idiosyncrasies of the particular person whose conduct is in question. Some persons are by nature unduly timorous and imagine every path beset by lions. Others, of more robust temperament, fail to see or nonchalantly disregard even the most obvious dangers. The reasonable man is presumed to be free both from over-apprehension and over condence15
Principles to Determine the Standard of Care

[235] The test of the reasonable man in the circumstances is quite nebulous and can be difcult to apply to practical circumstances. For this reason the Courts have developed a number of guiding principles that they rely on to determine the appropriate standard of care. They are The probability of the accident The gravity of the threatened injury The social utility of the Defendants conduct The cost of eliminating the risk
a. Probability of the Accident

[236] The Courts apply this factor and use a sliding scale i.e. the more probable the accident, the higher the standard to care in relation to preventing the accident from occurring. OGorman v Ritz Cinema (Clonmel) Ltd (1947)16 Facts: The Plaintiff attended a lm at the Defendants cinema, and put her legs underneath the seat in front. The person sitting in front got up to allow another person in. This caused the Plaintiffs leg to catch in the hinge mechanism, causing a gash that later turned septic. The Plaintiff sued the proprietors of the cinema. The Defendants could show that one million cinema-goers had used the seats in the previous seven years and no similar complaint had been made in all that time. Held: The Court accepted the Defendants evidence as relevant to showing that the Defendant had not breached the standard of care owed to the Plaintiff. The Court stated that, to prevent such injuries would require precautions of a well-nigh fantastic nature which could not reasonably be expected in the construction or management of a theatre.
15 16
Glasgow Corporation v Muir (1943) 132 ER 490. (1947) Ir Jur 35.
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There are certain exceptions to the probability of the risk consideration. One example is the doctrine of informed consent as discussed by the Supreme Court in Walsh v Family Planning Services (1992)17 where the Court held that a doctor who is performing elective surgery is under a duty to disclose to the patient all risks of injury or signicant pain, however remote or improbable.
b. Gravity of the Threatened Injury

The Courts use the gravity of the threatened injury to inform the appropriate standard of care. Lord Macmillan in Read v Lyons (1947)18 stated that the law in all cases exacts a degree of care commensurate with the degree of risk created, that is, the greater the risk of harm the more stringent the precautions which must be taken. Paris v Stepney Borough Council (1951)19 is a good example of the potential severity of the risk as a relevant factor when deciding whether the Defendant was negligent in failing to take precautionary steps to avoid injury to the Plaintiff. Facts: In this case a one-eyed workman became totally blind after a splinter entered his good eye because of the failure of the Defendants to provide him with goggles. Held: The Defendants should have shown greater care towards him since they were aware of his disability and that an eye injury posed a greater danger to him than to a person with two sound eyes. Lord Morton stated that the more serious the damage which will happen if an accident occurs, the more thorough are the precautions which an employer must take. [237]
c. Social Utility of the Defendants conduct

Any element of social utility in the Defendants conduct will be assessed to inform the appropriate standard of care. Whooley v Dublin Corporation (1961),20 Facts: The Plaintiff had been walking along a footpath in Dublin city when she fell onto a re hydrant box which had been pulled open, causing her injuries. The Defendant avoided liability by showing that the box had been specially designed to be easily accessible to the re brigade in cases of re, and therefore the lid was capable of being removed without difculty. Held: The Court accepted that no other type of hydrant which could be devised, consistent with the necessary purpose, would be safe from malicious interference. [238]
(1992) (1947) 19 (1951) 20 (1961)

17 18
IR 1. AC 156. AC 367. IR 60.
17
d. Burden/Cost of Eliminating the Risk

This consideration relates to the fact that the reasonable man is not expected to protect everything against a risk of injury to others. The Court will have regard to the practical burdens and costs associated with eliminating a risk. Bradley v CIE (1976)21 Facts: The Plaintiff was injured when working on the signaling system for trains. The Defendants argued that it would be very costly to install the safety surround apparatus the Plaintiff referred to and, in fact, it could cause more accidents involving trains arriving and departing. Held: The Court accepted the Defendants evidence to establish that the system did not fall below the requisite standard of care. [239] However, in Daly v Avonmore Creameries (1984) the Court were anxious to restrict Bradley to its facts and stated that the decision in Bradley should not be taken as supporting the view that where lives are a risk expense is anything more than vaguely material. Thus where serious injury is threatened a cost analysis will not be determinative. In Muldoon v Ireland and others (1988)22 Hamilton J refused to deem the Defendant liable for injuries inicted by one prisoner on another. He reasoned that the prison authorities in Arbour Hill were not expected to search each prisoner for weapons every time they moved from one part of the prison to another. The responsibility on the State would be too onerous, and the cost of eliminating the risk would be too high.
E X A M T I P
[240]
While the standard of care is the objective ordinary man standard it may be adapted slightly in certain situations. The above factors can inuence the standard of care that a defendant might owe and should be memorised for the exam.
21 22
(1976) IR 217. (1988) ILRM 367.
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Past Exams OCTOBER 2003 Question 4

Answer one of the following: (i) OR (ii) Critically assess the role of policy factors in determining a duty of care in negligence In option two students should explain the various pronouncements on the duty of care, starting with the neighbour principle and moving on to discuss the two-stage and three-stage approaches in Anns and Caparo respectively. Consider the role that policy factors play, fear of oodgates etc. in relation to each of these. Other factors such as dependence, reliance, public expectation and accountability also inuence the imposition of a duty in various circumstances. A discussion of the policy considerations housed within the concepts of proximity and reasonable forseeability is also necessary. Critically assess the relationship between tort law and constitutional rights in Irish law
OCTOBER 2003 Question 8

Explain, with critical comment, the standard of care governing negligence cases in Ireland. Identify the main standard of care the objective standard of reasonable care in the circumstances. Identify the specic factors used by the courts when determining the precise level of precaution that is to be expected of a particular defendant, namely the magnitude of the risk, the burden of prevention, the utility of the defendants conduct, the gravity of the threatened injury. A discussion of the role of policy factors in measuring the standard and the exibility maintained by the courts in adapting the general standard to particular circumstances
APRIL 2004 Question 2

There is no general duty under Irish tort law to assist others only a duty not to actively cause harm, though some clearly dened exceptions exist. This is a question dealing with the issue of afrmative duties but it necessarily involves a discussion of the duty of care generally and the establishment of these duties in negligence. Duties of control placed upon persons such as motorists school and employers over children and employees Examples such as prior generation of risk or control over dangerous chattels or land
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Further discussion is needed on the issue of whether tort law could be reformed to impose duties upon persons to rescue others in need good Samaritan laws. Exceptions to the general rule that there is no duty to assist others should be discussed as well as any commonalities that exist between these exceptions, in particular a discussion of the principle of assumption of responsibility is required.

Ned owns a bar and restaurant, producing a large volume of refuse which is stored in bins in an alley at the back of his premises. Workers are supplied with cleaning materials and protective clothing and instructed to clean the bins and surrounding area as required, but at least once a day. The staff nd the task tedious and have developed a short cut, using a power hose to clean the bins. Despite this instruction, the staff continued to use the hose to clean the bins; the water owed down the alley, across a public footpath on the main street and into a drain at the roadside. On a dry frosty night, the water froze on the path causing a passing pedestrian, Marge, to slip and fall. Marge suffered a broken hip, which in turn led to an acceleration in the development of arthritis, to which she was inherently prone, and doctors estimate that she will have to retire from work ve years earlier than she would if she had not sustained this injury. Advise Ned as to his potential liability to Marge in tort, including the causes of action upon which such liability may be based. This is a mixed question dealing with negligence and public nuisance. Identify each of the elements of the cause of action from the facts that you have been presented with. Personal liability for failure to adequately supervise and vicarious liability were also possible. Remoteness was the effect that this injury had on her working life reasonably foreseeable?

Maria parked her car in a designated parking zone on the left hand side of a one-way street. The street is 18 feet wide and there is a pedestrian street at a right angle to the street, with steel bollards to prevent vehicular access. Maria parked directly opposite the bollards within a few inches of the kerb; as she opened the door to get out of the car, another car was passing and had to swerve around Marias door. The other car, driven by Stephanie, had been approaching at 30 mph, but slowed to 20 mph on approaching Marias parked car. Despite this, Stephanie was taken by surprise by the opening of the door and swerved sharply, losing control of the car and striking the bollards. The damage to Stephanies car cost 4,000 to repair and she suffered a moderate soft tissue injury, keeping her out of work for two months. Maria denies any responsibility for the incident; she says she looked in both her rear view mirror and drivers mirror and saw no approaching car before opening the door, which she opened a distance of three feet in a single sweeping motion. Scientic tests show that there is a blind spot between the view from both mirrors in Mrias car that could prevent a person from seeing an approaching
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Chapter 2
car, though the chances of the car being entirely, as opposed to partially, out of view are statistically very slim. Advise Stephanie of her prospects of establishing liability in negligence on Marias part. This question deals with the standard of care in respect of road accidents. A general overview of the objective standard of reasonable care is needed as well as the factors that the court uses when assessing reasonableness (likelihood of harm, gravity of threatened injury, burden of eliminating harm). Come to a reasoned conclusion as to whether Marias behaviour was negligent. Contributory negligence on the part of Stephanie is an issue. The issue as to whether or not the local authority could be joined as concurrent wrongdoers due to the design of the road could be mentioned.

Explain the main principles governing solicitor negligence in Ireland. Mainly a question dealing with professional negligence but it also involves a general discussion of the development of the duty of care and the standard of care. In relation to the duty of care issues such as concurrent duties to clients in both contract and tort (Finlay v Murtagh); duties to third parties, in particular beneciaries in a will (Doran v Delaney, Wall v Hegarty) and conict of interest issues OCarroll v Diamond). The standard of care should be discussed, including comment on the professional standard, general approved practice, and on inherently defective practices.

Critically assess the role of policy factors in determining the imposition of a duty of care in negligence. An essay question dealing with the duty of care and policy considerations. Discuss the development of the duty of care at common law and subsequent development of the neighbour principle in Anns and Caparo in the UK as well as discussing development sin Ireland. A discussion of oodgates. Consider the role that policy factors play, fear of oodgates etc. Other factors such as dependence, reliance, public expectation and accountability also inuence the imposition of a duty in various circumstances. A discussion of the policy considerations housed within the concepts of proximity and reasonable forseeability is also necessary.
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Fred was taking an early Sunday morning stroll on the beach when he came across a dead whale which had been washed up on the shoreline. It was a huge blue whale. These whales are not normally found in Irish waters and Fred could not believe his eyes. Fred called Henry, the local owner of the beach. Henry was not prepared for this sort of event. Around three days later people began to notice a smell from the whale and Fred realised that it was decomposing. The whale was too big to be buried and the coastline was too shallow for a tugboat to get close to pull the whale back out to sea. Henry decided that the whale would have to be broken into smaller pieces and each piece then trucked away. However, given the size of the dead whale, he realised that this would take many weeks and that the smell would soon be fairly noxious. Accordingly, he decided he would use a small amount of explosives to quickly break the whale into smaller more manageable pieces. The event was set for 9 am on Tuesday morning and had generated quite a buzz in the community. About 100 people turned up to watch the spectacle and Henry had set up a cordon keeping people about 15 meters away from the whale. At about 8.55 am Henrys wife handed him an email from the U.S. Coast Guard. It said that they had heard of his plans on the internet but that from bitter experience they could not recommend this course of action. They asked him to cancel the event and contact them as soon as possible. Henry was having none of this. He ordered the event to proceed. At 9 am, the explosives were detonated. However, too much explosives were used and the pieces of whale shot high into the sky and fell down to earth in a 30 meter radius. One piece of the whale fell on Fred as he was eeing the scene and broke his leg. Advise Fred if he has a cause of action against Fred in these circumstances. A question dealing with a situation where a duty of care is owed and there is then a breach of the standard of care by proceeding with the explosion even after an express warning had been given. It would not have been incorrect to analyse this case under the Occupiers Liability Act 1995. There may be a contributory negligence issue on behalf of Fred.

See chapter on Causation and Remoteness (mainly a question dealing with these but a general knowledge of the duty of care was needed).
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Negligence - General Principles

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Negligence General Principles (1)

Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 201 Duty of Care . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 206 The Standard of Care . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 232

Griffith College 2009/10

The Professional Law School: Law of Torts

Topic Ordinary negligence and the duty of care Standard of care

Scope of the Tort of Negligence

Blyth v Birmingham Waterworks (1856) Exch 781 per Alderson B.

Griffith College 2009/10