Negligence – General Principles

7/28/2019 Negligence General Principles

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5 Griffith College 2009/10

CHAPTER

2

Negligence General

Principles (1)

Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 201

Duty of Care . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 206

The Standard of Care . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 232


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Negligence General Principles (1) | Chapter 2


To recover compensation in a negligence action a Plaintiff must prove the

following on the balance of probabilities:

1. Duty of care

2. Standard of care

3. Causation

4. Damage

We will deal with the first two principles in this chapter (duty of care, stan-

dard 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 straightforwardand the Courts have been faced with difficulties 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 difficult categories of damages which have

caused the Courts problems (economic loss, negligently inflicted 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.

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 pre-

sumed 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 finding 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.

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The Professional Law School: Law of Torts


DUTY OF CARE

This first 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 first element to establish liability.

Development of the Duty of Care

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 injureyour 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 reason-

ably 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)

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 first 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 forDonoghue 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.

2 (1932) AC 562.

3 (1944) IR 207.

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KEYPO

INT

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.


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English Development of The Duty of Care

a. Support for Donoghue

Initially the broad neighbourhood principle in Donoghue was supported in

England Home Office 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 officers 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.

b. Anns Decision

The first 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 Donoghuev Stevenson, Hedley Byrne &

Cov Heller & Partners Ltd, and Home Office 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 previ-

ous 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 allegedwrongdoer and the person who has suffered damage there is a sufficient relationship

of proximity or neighbourhood such that, in the reasonable contemplation of the for-

mer, 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 first question is answered

affirmatively, 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

Anns echoes the language ofDonoghue and refers firstly 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 ofDefendant that carelessness would result in injury.

2nd tier: Are there considerations which ought to reduce the scope of duty?

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

4 (1970) AC 1004.

5 (1978) AC 728.

6

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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 andAnns was rejected later

in England on the basis that it sketched proximity in terms of reasonable

foreseeability of risks alone.

c. Caparo Decision

The support for theAnns formulation in England ended with the decision in

Caparo Industries Plc v Dickman (1990)7wherethe HL advocated a new test

to replaceAnns.

Facts: This case concerned a negligent misstatement by the Defendant accoun-

tant 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. Relational proximity

2. Reasonable foreseeability of injury and

3. Whether in all the circumstances of the case it is just and reasonable to impose

liability on the Defendant for the losses sought.

The Caparo decision is seen as a move away from the pro-Plaintiff approach

ofAnns. TheAnns decision provides that once proximity and foreseeability are

established there is a presumption of a duty of care unless there are consider-

ations 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

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 previ-

ous decisions. This approach is conservative and reflects 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 aprima facie duty of care restrained only by indefinable 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

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.

7 (1990) AC 605.

8 Sutherland Shire Council v Heyman (1985) 60 ALR 1 at 4344, per Brennan J.

9 (1991) 1 AC 398.

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b. Glencar Decision

However, in Glencar Explorations v Mayo County Council (2001),13 Keane CJ

invited reconsideration of the allegiance of the Irish courts to the Anns deci-

sion and a broad approach to the duty of care.

Facts: The Plaintiff sought recovery for financial losses as a result of the Coun-cils 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 sufficient 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 inAnns 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 foresee-

able and the notorious difficult 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 benefit of

the Plaintiff, (emphasis added) as held in Caparo Industries.

It should be noted that Keane CJ did not reject the continued application

ofAnns 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 inBreslin 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 inju-ries. 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?

13 (2002) 1 ILRM 481 (SC).

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As noted in Byrne and Binchys Annual Review of Irish Law 2005 at

p666667, the influence ofGlencar can be seen in the recent Supreme Court

decision ofBeatty v The Rent Tribunal (2006) 1 ILRM 164. In that case a land-

lord sought compensation from the rent tribunal but the Supreme Court

reversed the finding of the HC and rejected his claim. The Court seemed

to take a restrictive view to the issue negligence and emphasised the publicpolicy exception. Clearly the fact that the Court was considering negligence on

the part of a public body was also very influential.

It is significant 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 identifiable class,

specifically 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 identified 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).

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.

KEYPOINT

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 circum-

stances. 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 influences all three elements of the duty of

care.

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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 torestrict a duty of care in certain circumstances. It is based on thenotion that the public must be able to rely on professional judgment in

particular and the law should not replace professional judgment withlegal judgment. This policy consideration may restrict a duty of care incertain areas of professional negligence and in particular the Courtsmay require a distinct level of proximity between the parties in aprofessional relationship. The Courts also refer to public expectationin the context of imposing a duty of care on public bodies and tradition-ally the Courts have taken a restrictive view towards imposing a dutyof care in these circumstances.

(b) Self-Responsibility This policy consideration is used to restrict a dutyof care in certain circumstances. It has been referred to in casesconcerning employees and the duty of care owed by their employersand also in the context of those undertaking activities with inherentrisks.

(c) Floodgates This is the most common policy consideration used by theCourts to avoid imposing a duty of care in novel, open-ended situationswhich will be difficult to limit. In particular, the English Courts relyon established categories and are reluctant to impose a duty in newsituations.

(d) Integrity of other areas of law This consideration is also referredto by the Courts to ensure that a duty of care is not imposed inareas already governed by established bodies of law, in particularcontract law.

The policy considerations referred to above influence the Courts consideration

of the three central elements to establish a duty of care- proximity, foresee-

ability 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 wasowed 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.

EXAMTIP

Know these factors which are the driving forces behind public policy

decisions. These are considerations outside of legal principle that influence

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 influenced the Courts discussion of

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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 negli-

gent misstatement and negligently inflicted psychiatric injury that a certain

special relationship or proximity is required to establish a duty of care and

this approach is influenced by the floodgates 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 circum-

stances 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.

Policy FactorsThe third element of the duty of care is whether a specific 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 specifically stated that a public policy consider-

ation denying the existence of a duty of care would have to be a very powerful

one. This approach reflects the view that if a Court examines the first two

elements on the duty of care (i.e. proximity and foreseeability) it will not be

necessary to invoke artificial 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 thepossibility that a more restrictive policy-orientated approach will be followed

by the Irish Courts in the future and the influence of this is evident from the

Beatty case discussed above. However, Byrne and Binchy14 seem to favour the

approach whereby the influence 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.

THE STANDARD OF CARE

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

14Annual Review of Irish Law 2005 at p672.

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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 thecircumstances.

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 confidence15

Principles to Determine the Standard of CareThe test of the reasonable man in the circumstances is quite nebulous and can

be difficult 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

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 film 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 mecha-

nism, causing a gash that later turned septic. The Plaintiff sued the propri-

etors 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 Plain-

tiff. The Court stated that, to prevent such injuries would require precau-

tions of a well-nigh fantastic nature which could not reasonably be expected

in the construction or management of a theatre.

15 Glasgow Corporation v Muir (1943) 132 ER 490.

16 (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 significant 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 thePlaintiff.

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 thor-

ough are the precautions which an employer must take.

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 fire hydrant box which had been pulled open, causing her inju-

ries. The Defendant avoided liability by showing that the box had been spe-

cially designed to be easily accessible to the fire brigade in cases offire, and

therefore the lid was capable of being removed without difficulty.

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.

17 (1992) IR 1.

18 (1947) AC 156.

19 (1951) AC 367.

20 (1961) IR 60.

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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.

However, in Daly v Avonmore Creameries (1984) the Court were anxious to

restrictBradley to its facts and stated that the decision inBradley should not

be taken as supporting the view that where lives are a risk expense is any-

thing more than vaguely material. Thus where serious injury is threatened acost analysis will not be determinative.

In Muldoon v Ireland and others (1988)22 Hamilton J refused to deem the

Defendant liable for injuries inflicted 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.

EXAMT

IP

While the standard of care is the objective ordinary man standard it may be

adapted slightly in certain situations. The above factors can influence the

standard of care that a defendant might owe and should be memorised for

the exam.

21 (1976) IR 217.

22 (1988) ILRM 367.

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Past Exams

OCTOBER 2003

Question 4

Answer one of the following:(i) Critically assess the relationship between tort law and constitutional

rights in Irish law

OR

(ii) Critically assess the role of policy factors in determining a duty of carein negligence

In option two students should explain the various pronouncementson the duty of care, starting with the neighbour principle andmoving on to discuss the two-stage and three-stage approaches in

Anns and Caparo respectively.

Consider the role that policy factors play, fear offloodgates etc. inrelation to each of these.

Other factors such as dependence, reliance, public expectationand accountability also influence the imposition of a duty in variouscircumstances.

A discussion of the policy considerations housed within the conceptsof proximity and reasonable forseeability is also necessary.

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 reasonablecare in the circumstances.

Identify the specific factors used by the courts when determining theprecise level of precaution that is to be expected of a particular defen-dant, namely the magnitude of the risk, the burden of prevention, theutility of the defendants conduct, the gravity of the threatened injury.

A discussion of the role of policy factors in measuring the standard andthe flexibility maintained by the courts in adapting the general standardto 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 defined exceptions exist.

This is a question dealing with the issue of affirmative duties but itnecessarily involves a discussion of the duty of care generally and theestablishment of these duties in negligence.

Duties of control placed upon persons such as motorists school andemployers over children and employees

Examples such as prior generation of risk or control over dangerouschattels or land


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Further discussion is needed on the issue of whether tort law could bereformed to impose duties upon persons to rescue others in need goodSamaritan laws.

Exceptions to the general rule that there is no duty to assist othersshould be discussed as well as any commonalities that exist between

these exceptions, in particular a discussion of the principle of assumptionof responsibility is required.

APRIL 2004

Question 3

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 stafffind

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 flowed 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 suf-

fered 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 five 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 thatyou have been presented with.

Personal liability for failure to adequately supervise and vicariousliability were also possible.

Remoteness was the effect that this injury had on her working lifereasonably foreseeable?

OCTOBER 2004

Question 8

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.

Scientific 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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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 roadaccidents.

A general overview of the objective standard of reasonable care is neededas well as the factors that the court uses when assessing reasonableness(likelihood of harm, gravity of threatened injury, burden of eliminatingharm).

Come to a reasoned conclusion as to whether Marias behaviour wasnegligent.

Contributory negligence on the part of Stephanie is an issue.

The issue as to whether or not the local authority could be joined asconcurrent wrongdoers due to the design of the road could be men-tioned.

OCTOBER 2005

Question 4

Explain the main principles governing solicitor negligence in Ireland.

Mainly a question dealing with professional negligence but it also involvesa general discussion of the development of the duty of care and the stan-dard of care.

In relation to the duty of care issues such as concurrent duties to clientsin both contract and tort (Finlay v Murtagh); duties to third parties, inparticular beneficiaries in a will (Doran v Delaney, Wall v Hegarty) and

confl

ict of interest issues OCarroll v Diamond). The standard of care should be discussed, including comment on the

professional standard, general approved practice, and on inherentlydefective practices.

OCTOBER 2006

Question 1

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 consider-ations.

Discuss the development of the duty of care at common law andsubsequent development of the neighbour principle in Anns and Caparoin the UK as well as discussing development sin Ireland.

A discussion offloodgates.

Consider the role that policy factors play, fear offloodgates etc.

Other factors such as dependence, reliance, public expectation andaccountability also influence the imposition of a duty in various circum-stances.

A discussion of the policy considerations housed within the concepts ofproximity and reasonable forseeability is also necessary.


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APRIL 2008

Question 2

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 Fredcould 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 decom-

posing. 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 fleeing 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 andthere is then a breach of the standard of care by proceeding with theexplosion even after an express warning had been given.

It would not have been incorrect to analyse this case under the OccupiersLiability Act 1995.

There may be a contributory negligence issue on behalf of Fred.

OCTOBER 2008

Question 7

See chapter on Causation and Remoteness (mainly a question dealing

with these but a general knowledge of the duty of care was needed).

Documents

Negligence – General Principles