Negligence and Negligence Mistatements

Question 1

What are the 4 steps to establishing negligence

Answer 1

1. Duty of care
2. Breach of duty (Standard of care)
3. Causation
4. Foreseeable harm

Question 2

who do you owe a duty of care to and which case established this principle?

Answer 2

Donoghue v stevenson created the neighbour principle. Must take reasonable care to avoid acts which you can reasonably foresee will injure your neighbour - someone so closely affected by the act that it is reasonably foreseeable that they will be affected

Question 3

describe proximity

Answer 3

This is all about relationship. Neighbour principle applies here. It is not just physical proximity but also people who the act complained of directly affects a person who the defendant would know to be directly affected. There must be a pre-exsisting relationship

Question 4

describe some relevant factors in assessing negligence

Answer 4

Probability of harm:
Bolten v stone - hit by a cricket ball which cleared the fence. it had happened once over 30 years. Given the unlikelihood of the injury, not negligent

Gravity of harm:
Paris v Stephney borough Council - Plaintiff had only sight in one eye. Whilst googles were not common, he should have been given them because of the gravity of harm in his situation

Cost & probability of prevention:
Turner v The curragh racecourse - Plaintiff rain & was hit by a horse. Argued that a sign should have been erected. This was rejected as there was nowhere on the large open area they could place the sign. This was weighted against the fact that no one had a similar accident in 21 years.

Social utility:
Flynn v Bus Atha Cliath
Plaintiff was injured because driver made a sudden stop, but this was to save a child. Whilst bus driver is held to higher standards than other drivers, they were not liable. No need to have detached reflection & weigh up option when saving a child

Question 5

case describing foreseeability

Answer 5

In the case of Bharmura v Dubb - Duty was owed as caterer was hired for a sikh wedding and she was told not to put eggs in the dishes as a result of the religion.
A guest had an egg allergy and died sue to presence of eggs. It was reasonably foreseeable that someone might have an egg allergy and not warn her as they had been told that there would be no eggs

Question 6

Case describing proximity

Answer 6

In the case of Goodwill v British Pregnancy advisory services, woman sued dr who gave husband failed vasectomy as she stopped using contraceptives. She was not the patient at the time of advice could not have foreseen her to be affected.

Question 7

what is the four part test established in Glencar Explorations plc v Mayo co

Answer 7

1. Foreseeability
2. Proximity
3. Policy Considerations
4. Fair just and reasonable

Question 8

what are the tests for causation?

Answer 8

Factual Causation - Single causes then you use the but for test
Multiple causes - usually, you must satisfy the court on the balance of probabilities as to the causation. This is the relaxation of it. You must know the source of the harm, then whoever attributed to causing the harm can be liable

Question 9

What element of negligence did the court look at in the case of Duffy v Rooney & Dunnes Stores

Answer 9

The court looked at causation and the court was not satisfied that but for the lack of a label, she would have worn the jacket anyway

Question 10

Case of Fairchild v Glenhaven Funeral services

Answer 10

(Causation - Multiple causes) Here each of the defendants were established to have contributed despite the fact that it could not be determined when it occurred. As they all contributed to the risk, they were all liable

Question 11

Case of sienkiwiez v grief

Answer 11

Here, it was extended to just 1 defendant. As long as it could be shown his contribution was more than de minimis it was sufficient to fix the defendant with liability

This principle can only apply where

1. source of damage is known
2. Negligence contributed/increased the risk

Question 12

Loss of damage doctrine

Answer 12

enables damage to be reformulated in terms of the extent to which the defendant increased the plaintiff’s chance of past or future injury or to the extent to which it decreased such past or future injury

Question 13

Legal causation

Answer 13

This a policy consideration; should they be held responsible

Question 14

Legal Causation and Smith v leary

Answer 14

Here the defendants negligence caused the plaintiff to have to get heart surgery for a heart condition. died during it.
Argued that he would have needed surgery anyway. SC rejected this. It was held that whilst death comes for us all, in law to accelerate that time is to cause it

Question 15

What are the rules about Novus Actus Intervenis

Answer 15

It must be voluntary and reasonably foreseeable. The intervening act must also be reckless/intentional or grossly negligent

Question 16

Describe the case of Symth v Industrial Gases ( Novus Actus Intervenis)

Answer 16

Defendant should have forseen the child’s propensity to throw things. Here the defednant dropped lime putty which was picked up by a child and thrown causing injury.

Question 17

Describe the case of Reeves v commissioner of police of the Metropolis (Novus Actus Intervenis)

Answer 17

They had the prisoner in the cell and were bound to take care of him. His suicide was reasonably foreseeable as it was the very thing the defendant was bound to prevent

Question 18

Describe the case of Breslin v Corcoran & MIBI (Novus Actus Intervenis)

Answer 18

whilst a thief breaking into a car was foreseeable given that he left the keys in the ignition, the driver hitting a pedestrian with the car was a novus.

Question 19

Describe the case of Corr v IBC (The intervening act must be reckless/intentional or grossly negligent)

Answer 19

Deceased employee was injured in work. He never received the required help so committed suicide. The deceased suicide was not a novus, the er caused the death. His depression was a cause of the tort

Question 20

Describe the case of Console v Redbrick Oyster Co (The intervening act must be reckless/intentional or grossly negligent)

Answer 20

An employee taking out the boat knowing that the boat was not seaworthy was not a novus, as staff were warned not to use it.

Question 21

Pure economic loss

Answer 21

In Glencar Explorations plc v Mayo Co keane J noted that there are two types of pure economic loss revocable:

1. Relational Economic Loss
2. Negligent misstatements

Relational Economic Loss
- This occurs where the actions of the defendant cause the loss. must show proximity

Negligent misstatements
- Negligent misstatement relates to the representation of fact which is carelessly made and is relied on by another party to their disadvantage

Question 22

explain a case that is an example of relational economic loss

Answer 22

In the case of McShane wholesale Fruit and vegetable Ltd v Johnson Haulage Co.ltd plaintiff suffered a loss as their factory had to close due to next door fire caused by defendants negligence. It was awarded given physical proximity.

Question 23

what did the court consider in relation to negligent misstatements in the case of Bates v Minister for agriculture?

Answer 23

• the nature of the reliance placed on the party giving the advice
• status of advisor i.e professional/casual
• Circumstances of advice
• extent advisor should contemplate the reliance

Question 24

For a statement to be considered a negligent misstatement regard must be had to..

Answer 24

• Nature of information sought
• Party for whom it is sought
• Relationship between them

Question 25

what did the court hold in the case of Hedley Burne & Co v Heller & Partners of when a duty of care arises in relation to negligent misstatments

Answer 25

Court held that a duty of care could arise where:

1. Special relationship of trust and confidence exists
2. Party who prepared advice/info has voluntary assumed responsibility for risk (either expressly or implicitly);
3. Other party relied on it
4. The reliance was reasonable

In order to have assumed responsibility for risk - must know the identity of party and purpose of information

Question 26

Disclaimers and Negligent Misstatments

Answer 26

This act as evidence that they didn’t assume responsibility

Question 27

4 considerations for the duty of care: Negligent Misstatements

Answer 27

1. Advice is for a purpose, whether particularly specified or generally described, which is made known either explicitly or inferentially, to the advise at time of advance;
2. advisor knows either actually or inferentially that his advice will be communicated to the advisee, either specifically or as a member of a class, in order that it should be used to advise for that purpose;
3. It is known either actually or inferentially that the actions so communicated are likely to be acted upon by the advisee for that purpose without further inquiry.
4. it is so acted upon

Question 28

what was established in the english case of Mcloughlin V O’brien (1983) in relation to Nervous shock

Answer 28

In this case, woman was at home when husband and children were injured. She was informed by a passer-by and immediately travelled to the hospital where she saw her family in distress, suffered harm.
Based on foreseeability found claim. In addition, need:
a. Close personal relationship
b. Come upon immediate aftermath
c. Must witness the aftermath using unaided senses - communication is not sufficent

Question 29

what was the 5 criteria laid out for secondary victims of nervous shock in english case of Alock v Chief constable of South Yorkshire (1992)

Answer 29

1. Marital or parental relationship
2. Injury came from sudden and unexpected shock to the plaintiff’s nervous system
3. Plaintiff was either present personally or was in more of less immediate vicinity and witness the aftermath shortly afterwards
4. Injury arose from witnessing the death or extreme danger or injury and discomfort suffered by the primary victim.
5. Must not only be physical proximity but a close temporal connection between the event and plaintiff’s perception of it, combined with the relationship between victims

These establish proximity to which reasonable forseeability of real risk of injury to the plaintiff is needed.

Question 30

what was the 5 rules laid out for proximity of secondary victims of nervous shock in Irish case of Kelly v Hennessy (1996)

Answer 30

No primary/secondary distinction, in addition to reasonable foreseeability, Hamilton CJ set down 5 rules for proximity of secondary victim

1. Plaintiff must establish that he or she actually suffered nervous shock
2. The recognisable illness was shock induced
3. Nervous shock was caused by defendants acts or omission
4. Must be by reason of actual or apprehended physical injury to the plaintiff or a person other than the plaintiff
5. Must show the defendant owed a duty of care not to cause him a reasonable foreseeable injury of nervous shock

Denham J. also considered:

• Closeness of relationship
• Closeness of the incident ( how soon they arrived after incident)
• temporal proximity (immediacy of the injury after the accident occurred)

Question 31

what was established when imposing a duty of care in the case of Ross v Caunters

Answer 31

1. Proximity - The plaintiff was named and identified in the Will. Therefore, the plaintiff was in
   actual, nominate and direct contemplation of the defendant.
2. The solicitors owed a duty to the testator to confer a benefit on the plaintiff. He said that this
   duty may be readily extended to the 3rd party who is the intended beneficiary.
3. There was no possibility of unlimited or indeterminate liability in this case. The liability was
   to one person alone and the amount was limited to the value of the residue.

Question 32

How can we assess a reasonable person as summarised by kirby v burke?

Answer 32

treated as a man of ordinary intelligence and foresight, he ought to have forseen the danger which caused injury to the plaintiff.

Question 33

what are some public policy factors that judges take into account?

Answer 33

• Pratical considerations
• Moral Considerations
• Protection of professionals
• The floodgates argument
• The beneficial effects of imposing a duty for future conduct

Question 34

what is the concept of non-delegable duty/

Answer 34

in Morrissey v. HSE, the supreme court recognised that some duties could be classed as non-delegable i.e that a party could not escape the responsibility for how a task is performed by passing the actual performance to another party

Question 35

what is the duty to rescuers?

Answer 35

That the person who creates a danger, owes a duty of care not only to those who are in the direct victim of that danger but also to any person who comes to the aid of that victim

Question 36

what is one of the flaws of the but-for test

Answer 36

Literally anything can satisfy its requirements. it is generally accepted, however, that is appropriate to limit the potential causes under scrutiny to deliberate human acts or omissions or unusual events. Moreover the courts generally recognise the common sense approach to be taken to the question of factual causation

Question 37

Res Ipsa loquitur

Answer 37

‘The thing speaks for itself”

situations where the fact of injury being caused is such that it could only have resulted through negligence on the part of another party

As a general rule in tort it is for the plaintiff to prove negligence and not for the defendant to disprove it but as an exception to this rule, the principle of res ispa loquitur allows a court, in exceptional circumstances to draw an inference of negligence on the basis of circumstantial evidence of a highly suggestive nature.

Question 38

what case did the The Doctrine of Res Ipsa Loquitur originate from?

Answer 38

The origins of the rule can be traces to scott v london and st Katherine Docks co where the plaintiff was passing under a loading bay of the defendant’s warehouse when sacks of sugar fell from the bay and landed on him causing him injury.

The court held that negligence on the part of the defendant could be presumed in the circumstances but went on to place conditions on that general principle:

(a) The thing had to be shown to be under the management of the defendant or his servants and
(b) The accident must be such that in the ordinary course of events dies not happen if proper care is used

Question 39

what are the facts of the case O’reilly brothers Ltd v Irish Industrial explosions

Answer 39

The plaintiff had ajoined the defendant’s premises and since the defendant began work, cracks and other such structural damages were found in their property. The plaintiffs claimed that such damage could not occur but for the negligence on the part of the defendants in engaging in rock blasting operations but the court disagreed finding that the damage done to the plaintiff’s land could have been caused by fissues in the adjoining rocks rather than through the operations of the defendant, as such negligence could not be inferred and the doctrine failed.

Question 40

what element did hardiman J add to the res ipsa Loquitur doctrine in the case of hanrahan

Answer 40

the doctrine of Res Ipsa Loquitur would only apply where a “particular element lies pre-eminently within the defendant’s knowledge”

Question 41

The material contribution test

Answer 41

Here the courts ask whether the defendant materially contributed to the plaintiff’s injuries and if the defendant’s contribution was material and substantial then the defendant may be deemed to have caused the damage in question

Question 42

What are the facts of McGhee v national Coal board? (The material contribution test)

Answer 42

The plaintiff worked in a brick kiln, which was hot and dusty and there were no washing facilities at work so the plaintiff had to cycle home everyday covered in dust as a result of which he contracted dermatitis. Medical evidence could not prove conclusively that the reason the plaintiff caught the skin condition was as a result of the lack of washing facilities but nonetheless found the defendant liable on the basis that their actions had increased the chances of contacting the condition and in that regard had made a substantial contribution to the injury

Question 43

remoteness of damage

Answer 43

The law does not hold a defendant liable for every type of damage that results from their actions but instead uses the test of reasonable foreseeability to determine whether the damage is too remote to hold a defendant liable

Question 44

remoteness of damage - [The old test]: direct consequences

Answer 44

if provided that if some injury was foreseeable, then a defendant was liable for all the damage that was a direct consequence of their negligence. it did not matter whether that particular damage was forseeable or not e.g case of Re Polemis

Question 45

remoteness of damage - [The Modern test]: Reasonable forseeability

Answer 45

The privy council overturned the Re polemis decision stating that it was illogical to use reasonable foreseeability to determine whether a duty of care existed.
rather than holding the defendant liable for all direct consequences of his actions, the court stated that the plaintiff should only be held liable for damage which was foreseeable as any other damage was too remote

Question 46

what are the facts of the case Gaffney v Dundalk Town Council?

Answer 46

The plaintiff minor injured himself when he fell into an open water hydrant owned and maintained by the defendants which had been vandalised and interfered with leaving the opening exposed.

Peart J found that the prospect that mischievous people would lift off the lid and leave it off and that a child such as the plaintiff would fall into the hydrant as a result is too remote a prospect to be foreseeable.

However if the defendants were aware that the hydrant or similar facilities in the area had been subject to interference and vandalism, liability could not have been avoided.