Negligence - General Principles
Negligence - General Principles
Negligence - General Principles
CHAPTER
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.
Negligence Principles
[203] The Irish Courts have developed general negligence principles which are applied to specic situations to determine liability between the parties.
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).
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.
[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]
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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]
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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.
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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.
[222]
[223]
(1997) 2 IR 141. (1988) IR 337, (1989) ILRM 400. 12 (1997) 1 ILRM 86.
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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]
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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.
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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.
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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.
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]
[233]
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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
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Chapter 2
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.
17
[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.
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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.
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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.
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