Duty & Standard of Care

Question 1

Duty of Care - Topics

Answer 1

• Duty of Care - General
• The Neighbour Principle
• Current Test
• Foreseeability of Harm
• Proximity of Relationship
• Policy Considerations
• Liability towards Rescuers

Question 2

Duty of Care - General

Answer 2

• Negligence: breach of a legal duty to take care which causes damage to plaintiff
• Elements of Negligence: Duty of Care, Breach of Duty, Loss / Damage, Causation
• Donoghue v. Stevenson [1932]: decomposed snail in a bottle of ginger beer. Established the The Neighbour Principle - the basis for the modern law of negligence

Question 3

The Neighbour Principle

Answer 3

• Reasonable Foreseeability: “must take reasonable care to avoid acts or omissions which you can reasonably foresee would be liable to injure your neighbour.”
• Proximity: Neighbours are “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.”

Question 4

Current Test

Answer 4

3-tier test from Caparo approved in Glencar Exploration [2002]

• i) foreseeability of harm, ii) proximity of relationship and iii) it must be just and reasonable to impose a duty of care
• Unlike in Anns, the duty of care is not presumed if sufficient foreseeability and proximity exist. It must also be just and reasonable to impose the duty

Question 5

Foreseeability of Harm

Answer 5

• Objective test: Was the harm reasonably foreseeable?
• Fletcher v. Commissioner for Public Works: Foreseeability is a “precondition to liability”. Test: “if a reasonable person would have foreseen that the consequences suffered by the plaintiff might be the result of the defendant’s want of care.”

Question 6

Proximity of Relationship

Answer 6

• There must be a relationship of “proximity” between the plaintiff and the defendant
• Everett v. Comojo [2011]: Sufficient proximity between the bar management and guests. Control of the premises and who enters, or should be removed. A guest is entitled to expect there will be no violence. Also an economic relationship.

Question 7

“Just and Reasonable” - Policy Considerations

Answer 7

• “Floodgates fear”: A key policy consideration. Avoiding indeterminate claims that would overwhelm the courts and negatively impact insurance costs, etc. E.g. Fletcher v. Commissioner for Public Works: irrational fear of an employee, no duty of care
• Public bodies: argument against imposing a duty of care on entities like Gardaí to avoid conflict of duties and crippling their ability to perform effectively
• “Good Samaritans”: it would not be “just and reasonable” to impose a duty of care on those providing voluntary assistance. Civil Liability Act 1961 provides immunity.

Question 8

Liability towards Rescuers

Answer 8

• O’Neill v. Dunnes Stores [2010] (SC): Two youths stole wine from Dunnes Stores. A security guard pursued them and enlisted the help of the plaintiff, who got injured by one of the youths and subsequently sued Dunnes Stores.
• Held: A duty of care owed to the plaintiff. It was foreseeable that a member of the public would intervene in such a situation and that such a “rescuer” could be injured.
• Held: The store was negligent in not having an effective system for the guard to call for assistance of other personnel rather than having to ask a member of the public.

Question 9

Standard of Care - Topics

Answer 9

• Standard of the “Reasonable Person”
• Factors Considered in Determining Standard of Care
• Standard of Care in a Particular Case

Question 10

Standard of the “Reasonable Person”

Answer 10

• Objective test: What would a reasonable person have done in this situation?
• A person of “ordinary intelligence and foresight”. Knows facts of common experience (e.g. basic laws of nature, physics, etc.) Not a standard of perfection.
• Disability: What would a reasonable person with the particular disability have done?

Question 11

Factors Considered in Determining Standard of Care

Answer 11

• Probability of an accident occurring
• Gravity of the threatened injury
• Social utility of the defendant’s conduct
• Cost of eliminating the risk

Question 12

Standard of Care in a Particular Case

Answer 12

• Evidence of “general practice” can be given by expert evidence, not a requirement
• Newman v. Cogan [2017]: A visitor to the defendant’s home was injured when a glass window in a door smashed causing her to lose sight in an eye. Expert evidence said shatter-resistant glass should have been installed. Defendant held liable as homeowner undertaking a repair assumes the responsibility similar to tradesmen.
• McDonald v. Frossway [2012]: Plaintiff injured falling down restaurant steps due to missing handrail. Architects held liable even though building regulations did not require a handrail. The court is not bound by expert opinion and can form its own view on the appropriate standard of care if the risk is “obvious”.