Basic Principles

Question 1

Basic Principles - Topics

Answer 1

• Liability
• Concurrent Wrongdoers
• Causation
• Contributory Negligence
• Remoteness of Damage
• Egg-Shell Skull Rule

Question 2

Liability - Topics

Answer 2

• Definition
• Liability for Omissions
• Vicarious Liability
• Non-Delegable Duties

Question 3

Liability - Definition

Answer 3

• A person is responsible in law for the injury caused to another.
• Usually arises where a person is at fault (“fault-based liability”)
• The plaintiff must prove the defendant is at fault through his actions or omissions
• Strict Liability: responsible even if not at fault. E.g. rule in Rylands v. Fletcher

Question 4

Liability for Omissions

Answer 4

• Generally, the common law does not impose liability for (pure) omissions or “nonfeasance”
• Exception 1: Where a relationship gives rise to a duty to act (parent, employer, etc.)
• Exception 2: Where a person created the danger: under a duty to prevent harm
• Exception 3: Where a danger exists, and a person has some control over it

Question 5

Vicarious Liability

Answer 5

• A situation when one person is held responsible for the actions of another.
• A form of strict liability. The defendant is not at fault, no need to prove negligence
• But requires proof the person the defendant is responsible for was acting negligently

Question 6

Non-delegable duties

Answer 6

• Related to vicarious liability. Often arises in the employment context, where an employer’s duties to his employees are said to be “non-delegable”.
• It’s an exception to the principle that a person is not vicariously liable for the actions of an independent contractor or someone over whom he has no control.

Question 7

Concurrent Wrongdoers - Definition

Answer 7

• A joint tortfeasor - acts as part of a group and causes the same tort.
• A several tortfeasor - does not act in concert with another person but causes the same damage to the plaintiff.
• Where persons cause individually identifiable items of damage, they are not concurrent wrongdoers - they are independent tortfeasors
• Under the Civil Liability Act 1961, A “concurrent wrongdoer” is someone who causes the “same damage” to the plaintiff with another.

Question 8

Concurrent Wrongdoers - Principles

Answer 8

• A plaintiff cannot recover more than the total amount of damages suffered, but is allowed to recover from as many sources as possible.
• Concurrent wrongdoers should be entitled to recover fair contributions from each other in respect of damages paid to the plaintiff.
• All matters relating to the plaintiff’s injuries should be litigated in one action where possible.

Question 9

Causation - Topics

Answer 9

• Factual Cause / Causation in Fact
• Legal Cause / Causation in Law
• Test for Causation
• Novus Actus Interveniens
• Presumed Causation
• res ipsa loquitur

Question 10

Factual Cause / Causation in Fact

Answer 10

• The “but for” test (causa sine qua non)
• Alternative Causes: one of several possible causes
• Multiple Causes: each cause sufficient in itself to cause the event
• Cumulative Causes: at least two causes combined to cause the event
• Synergistic Causes: at least two causes combined to cause the event which could not have occurred by the causes acting independently (e.g., some cancers).

Question 11

Legal Cause / Causation in Law

Answer 11

• Latin: causa causans
• Whether the defendant is responsible in law for the plaintiff’s injuries.
• If a result was not reasonably foreseeable the defendant will not be liable in negligence in failing to prevent it.

Question 12

Test for Causation

Answer 12

• The “But For” Test: Plaintiff must show that the damage would not have been caused “but for” defendant’s actions
• Material Contribution Test: Did Defendant’s act “materially contribute” to the injury? “Material” means “more than negligible”. Test applies for multiple potential causes

Question 13

Novus Actus Interveniens

Answer 13

• “New intervening act” that breaks the chain of causation.
• Intervening act can be: Act of a Third Party, Act of the Plaintiff, Act of God
• Example: Breslin v. Corcoran and MIBI [2003] 2 ILRM 189

Question 14

Presumed Causation

Answer 14

• In certain limited situations, the law “presumes” causation
• S 11(3) of the Civil Liability Act 1961: multiple persons at fault as concurrent wrongdoers if it’s impossible to establish causal responsibility
• The doctrine of res ipsa loquitur is sometimes relied upon to infer causation based on circumstantial evidence

Question 15

res ipsa loquitur

Answer 15

• Usually the plaintiff must prove the defendant was negligent, balance of probabilities.
• Hanrahan v. Merck [1988]: Onus of proof can be shifted to the defendant in cases where it would be unfair to require a plaintiff to prove something which is beyond his reach and which is peculiarly within the range of the defendant’s capacity of proof

Question 16

Contributory Negligence - Topics

Answer 16

• Definition
• Examples
• Failure to Mitigate Damage
• Voluntary Assumption of Risk

Question 17

Contributory Negligence - Definition

Answer 17

• Plaintiff partly responsible for the damage due to own negligence or want of care
• It does not absolve the defendant of liability entirely, but damages are reduced as the court thinks is just and equitable, based on the degrees of fault of each party.
• S 34 of the 1961 Act: a system of proportionate reduction of damages.
• Burden of proof is on the defendant to show the plaintiff was contributorily negligent

Question 18

Examples of Contributory Negligence

Answer 18

• Intoxication - Boyne v. Dublin Bus: An intoxicated plaintiff who stumbled in front of a bus after alighting had his damages reduced by 25%
• Lift with a drunk driver - Hussey v. Twomey: The plaintiff suffered injuries in an accident when she knowingly and willingly travelled in a car with a drunk driver. She was held guilty of contributory negligence and her award was reduced by 40%. Self-intoxication could not be used to avoid a finding of contributory negligence.
• No protective equipment - Hamill v. Oliver: Person not wearing an available seat belt must normally be held guilty of contributory negligence if the injuries were caused wholly or in part as a result of his failure to wear a seat belt.
• Failing to adopt a correct posture or follow safety advice found to be the sole cause of the injury, not just contributory negligence - Clabby v. Global Windows Limited

Question 19

Failure to Mitigate Damage

Answer 19

• S 34(2) of the 1961 Act: the plaintiff has a duty to mitigate damage, an unreasonable failure to mitigate damage may amount to contributory negligence.
• Devlin v. Cassidy: The plaintiff held equally negligent (50%) for not only agreeing to travel with a drunk driver, but also encouraging the driver to drive
• If the plaintiff suffers injury but refuses to undergo medical treatment, this will also amount to contributory negligence

Question 20

Voluntary Assumption of Risk

Answer 20

• S 34(1)(b) of the 1961 Act: The defence of voluntary assumption of risk (volenti non fit injuria) does not defeat a claim in circumstances where contributory negligence applies; liability is assessed based on the degrees of fault

Question 21

Remoteness of Damage

Answer 21

• Determines the extent of liability for the damage caused by a wrongful act
• Defendant is only liable for foreseeable injuries caused by their negligence
• The Wagon Mound (No.1): Established that a defendant is only liable for damage that a reasonable man should have foreseen. Accepted in Ireland by Condon v. CIE

Question 22

Egg-Shell Skull Rule

Answer 22

• You must take your victim as you find them
• Once the type of damage is foreseeable, the scale of damage need not be