Tort - Principles Of Negligence

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Blyth v Birmingham Waterworks (1856)

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“Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.”

it was noted that reasonable care is required. To determine whether negligence exists the plaintiff must establish on the balance of probabilities that there was
- a duty of care
- breach of that duty
- damage

If the P can prove that D had a legal duty not to cause him harm by acting unreasonably (duty of care), the p did act in such a way (breach of that duty) which caused the plaintiff injury (damage) then unless the D has a good defence, he will be found liable in negligence.

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Donoghue v Stevenson (1932)

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Atkins LJ

At present I content myself with pointing out that in English law there must be, and is, some general conception of relations giving rise to a duty of care, of which the particular cases found in the books are but instances. The liability for negligence, whether you style it such or treat it as in other systems as a species of 'culpa' is no doubt based upon a general public sentiment of moral wrongdoing for which the offender must pay. But acts or omissions which any moral code would censure cannot in a practical world be treated so as to give a right to every person injured by them to demand relief. In this way rules of law arise which limit the range of complainants and the extent of their remedy. The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer's question, Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. 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 were called in question.

There must be, and is, some general conception of relations giving rise to a duty of care, of which the particular cases found in the books are but instances. ...The rule that you are to love your neighbour becomes in law you must not injure your neighbour; and the lawyer's question: Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. 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 that are called in question . . . a manufacturer of products, which he sells in such a form as to show that he intends them to reach the ultimate consumer in the form in which they left him with no reasonable possibility of intermediate examination, and with knowledge that the absence of reasonable care in the preparation or putting up of products will result in an injury to the consumer's life or property, owes a duty to the consumer to take that reasonable care.

"A man has a Duty of Care to conduct himself in such a way as to avoid harm to others, where a reasonable man would have seen that such harm could occur".

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Caparo Industries plc v Dickman

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In Caparo v Dickman (1989) the HOL rejected Anns. It was held that negligence shouldn’t develop in such an unrestrained manner with a test based on general principles; rather a case-by-case basis is preferred. Under the new approach, proximity and reasonable forseeability were split creating separate distinct hurdles. The court will then consider policy factors that might lead to a finding against the DOC. Once these were satisfied, the courts would then consider whether it would be fair, just and reasonable to impose a DOC in that particular situation. The approach was based on policy.

The House of Lords, following the Court of Appeal, set out a "three-fold test"

harm must be reasonably foreseeable as a result of the defendant's conduct
the parties must be in a relationship of proximity
it must be fair, just and reasonable to impose liability

In Caparo, Lord Bridge summed up the approach in England as follows:

What emerges is that, in addition to the foreseeability of damage, necessary ingredients in any situation giving rise to a duty of care are that there exists between the party owing the duty and the party to whom it is owed a relationship characterised by the law as one of proximity' or 'neighbourhood' and the situation should be one in which the court considers it fair, just and reasonable that the law should impose a duty of a given scope on the one party for the benefit of the other.

A company called Fidelity plc, manufacturers of electrical equipments, was the target of a takeover by Caparo Industries plc. Fidelity was not doing well. In March 1984 Fidelity had issued a profit warning, which had halved its share price. In May 1984 Fidelity's directors made a preliminary announcement in its annual profits for the year up to March. This confirmed the position was bad. The share price fell again. At this point Caparo had begun buying up shares in large numbers. In June 1984 the annual accounts, which were done with the help of the accountant Dickman, were issued to the shareholders, which now included Caparo. Caparo reached a shareholding of 29.9% of the company, at which point it made a general offer for the remaining shares, as the City Code's rules on takeovers required. But once it had control, Caparo found that Fidelity's accounts were in an even worse state than had been revealed by the directors or the auditors. It sued Dickman for negligence in preparing the accounts and sought to recover its losses. This was the difference in value between the company as it had and what it would have had if the accounts had been accurate.
On a preliminary issue as to whether a duty of care existed in the circumstances as alleged by the plaintiff, the plaintiff was unsuccessful at first instance but was successful in the Court of Appeal in establishing a duty of care might exist in the circumstances. Sir Thomas Bingham MR held that as a small shareholder, Caparo was entitled to rely on the accounts. Had Caparo been a simple outside investor, with no stake in the company, it would have had no claim. But because the auditors' work is primarily intended to be for the benefit of the shareholders, and Caparo did in fact have a small stake when it saw the company accounts, its claim was good. This was overturned by the House of Lords, which unanimously held there was no duty of care.

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Hedley Byrne and co ltd v Heller and Parters Ltd (1964)

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the HOL imposed a DOC in cases involving economic loss where previously no duty was found to exist

Hedley Byrne were a firm of advertising agents. A customer, Easipower Ltd, put in a large order. Hedley Byrne wanted to check their financial position, and creditworthiness, and subsequently asked their bank, National Provincial Bank, to get a report from Easipower’s bank, Heller & Partners Ltd., who replied in a letter that was headed, "without responsibility on the part of this bank"

It said that Easipower was, "considered good for its ordinary business engagements". The letter was sent for free. Easipower went into liquidation and Hedley Byrne lost £17,000 on contracts. Hedley Byrne sued Heller & Partners for negligence, claiming that the information was given negligently and was misleading. Heller & Partners argued there was no duty of care owed regarding the statements, and in any case liability was excluded.

Judgment

The court found that the relationship between the parties was "sufficiently proximate" as to create a duty of care. It was reasonable for them to have known that the information that they had given would likely have been relied upon for entering into a contract of some sort. This would give rise, the court said, to a "special relationship", in which the defendant would have to take sufficient care in giving advice to avoid negligence liability. However, on the facts, the disclaimer was found to be sufficient enough to discharge any duty created by Heller's actions. There were no orders for damages.

Lord Morris of Borth-Y-Gest,

“ I consider that it follows and that it should now be regarded as settled that if someone possessing special skill undertakes, quite irrespective of contract, to apply that skill for the assistance of another person who relies upon such skill, a duty of care will arise. The fact that the service is to be given by means of or by the instrumentality of words can make no difference. Furthermore, if in a sphere in which a person is so placed that others could reasonably rely upon his judgment or his skill or upon his ability to make careful inquiry, a person takes it upon himself to give information or advice to, or allows his information or advice to be passed on to, another person who, as he knows or should know, will place reliance upon it, then a duty of care will arise.

...in my judgment, the bank in the present case, by the words which they employed, effectively disclaimed any assumption of a duty of care. They stated that they only responded to the inquiry on the basis that their reply was without responsibility. If the inquirers chose to receive and act upon the reply they cannot disregard the definite terms upon which it was given. They cannot accept a reply given with a stipulation and then reject the stipulation. Furthermore, within accepted principles... the words employed were apt to exclude any liability for negligence.

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Home Office v Dorset Yacht Co (1970)

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On 21 September 1962, ten borstal trainees were working on Brownsea Island in the harbour under the control of three officers employed by the Home Office. Seven trainees escaped one night, at the time the officers had retired to bed leaving the trainees to their own devices. The seven trainees who escaped boarded a yacht and collided with another yacht, the property of the respondents, and damaged it. The owners of the yacht sued the Home Office in negligence for damages.
A preliminary issue was ordered to be tried on whether the officers or the Home Office owed a duty of care to the claimants capable of giving rise to liability in damages. It was admitted that the Home Office would be vicariously liable if an action would lie against any of the officers. The preliminary hearing found for the Dorset Yacht Co. that there was, in law, a duty of care and that the case could go forward for trial on its facts. The Home Office appealed to the House of Lords. The Home Office argued that it could owe no duty of care as there was no precedent for any duty on similar facts. Further, it was argued that there could be no liability for the actions of a third party and that the Home Office should be immune from legal action owing to the public nature of its duties.


Judgment

Court of Appeal

Lord Denning MR held that the Home Office should not be liable for the damage on grounds of public policy. He stated,

“ Many, many a time has a prisoner escaped - or been let out on parole - and done damage. But there is never a case in our law books when the prison authorities have been liable for it. No householder who has been burgled, no person who has been wounded by a criminal, has ever recovered damages from the prison authorities; such as to find a place in the reports. The householder has claimed on his insurance company. The injured man can now claim on the compensation fund. None has claimed against the prison authorities. Should we alter all this: I should be reluctant to do so if, by so doing, we should hamper all the good work being done by our prison authorities. ”

House of Lords

The House of Lords held by a majority that the Home Office was liable to the Dorset Yacht Co Ltd for the damage the boys had caused.

Lord Reid held,

“ ...the well-known passage in Lord Atkin's speech should I think be regarded as a statement of principle. It is not to be treated as if it were a statutory definition. It will require qualification in new circumstances. But I think that the time has come when we can and should say that it ought to apply unless there is some justification or valid explanation for its exclusion. ”

Lord Reid then applied the principle with particular emphasis on foreseeability.

“ ...the taking by the trainees of a nearby yacht and the causing of damage to the other yacht which belonged to the respondents ought to have been foreseen by the borstal officers as likely to occur if they failed to exercise proper control of supervision; in the particular circumstances the officers prima facie owed a duty of care to the respondents... ”

Viscount Dilhorne gave a dissenting judgment.

Significance

The case is perhaps relevant not only for its clear elucidation of the Atkinian notion of Neighbourhood but also for its expression of a thoroughly incrementalist approach to the development of the duty of care. Lord Reid held:
‘there has been a steady trend toward regarding the law of negligence as depending on principle so that when a new point emerges one should ask not whether it is covered by authority but whether recognised principles apply to it. Donoghue and Stevenson may be regarded as a milestone, and the well-known passage in Lord Atkin’s piece should I think be regarded as a statement of principle … it ought to apply unless there is some justification or valid explanation for its exclusion. For example, causing economic loss is a different matter’

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Anns v Merton London Borough Council [1978] A.C. 728

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Lord Wilberforce accepts what might be seen as the high point of the adoption of the statements of Lord Atkins in Donoghue v Stevenson, the "neighbour principle".

He says: -

‘Through the trilogy of cases in this House, Donoghue v Stevenson, Hedley Byrne & Co Ltd v 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 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 sufficient 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 first question is answered affirmatively, it is necessary to consider whether there are any considerations which ought to negative, or to 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’.

The 'Anns Test' established here by Lord Wilberforce is a two stage test.

It requires first a ‘sufficient relationship of proximity based upon foreseeability’;

and secondly considerations of reasons why there should not be a duty of care.

Through the trilogy of cases in this House—Donoghue v. Stevenson [1932] A.C. 562, Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd. [1964] A.C. 465, and Dorset Yacht Co. Ltd. v. Home Office [1970] A.C. 1004, 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 sufficient 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 first question is answered affirmatively, it is necessary to consider whether there are any considerations which ought to negative, or to 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 (see Dorset Yacht case, loc. cit., p. 1027 per Lord Reid). Examples of this are Hedley Byrne where the class of potential plaintiffs was reduced to those shown to have relied upon the correctness of statements made, and Weller & Co. v. Foot and Mouth Disease Research Institute [1966] 1 Q.B. 569; and (I cite
these merely as illustrations, without discussion) cases about " economic loss " where, a duty having been held to exist, the nature of the recoverable damages was limited. (See S.C.M. (U.K.) Ltd. v. W. J. Whittall & Son Ltd. [1971] 1 Q.B. 337, Spartan Steel & Alloys Ltd. v. Martin & Co. (Contractors) Ltd. [1973] Q.B. 27.

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McLoughlin v O’Brian [1983] 1 AC 410

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On the 19th October 1973, a friend came to the claimant's (plaintiff's) house to tell her of a serious accident involving her husband and three children, two hours after it had occurred. He drove her to the hospital where she saw her daughter dead and her husband and two other children seriously injured, all still covered in oil and mud. She suffered serious nervous shock as a result and sued the defendant who was responsible for the accident.

Earlier decisions in English courts had allowed victims to recover damages for emotional injury. This case was unique at the time because the claimant suffered injuries away from the scene of the accident and hours after the accident occurred.
This case is frequently examined by law students and students of legal philosophy. Legal scholar Ronald Dworkin used the case as subject matter in a hypothetical case examined by a fictional, ideal judge named Hercules in his book Law's Empire.

To argue from one factual situation to another and to decide by analogy is a natural tendency of the human and the legal mind. But the lawyer still has to enquire whether, in so doing, he has crossed some critical line behind which he ought to stop. That is said to be the present case. The reasoning
by which the Lords Justices decided not to grant relief to the plaintiff is instructive. Both Stephenson L.J. and Griffiths L.J. accepted that the "shock" to the plaintiff was foreseeable; but from this, at least in presentation, they diverge.

Stephenson L.J. considered that the defendants owed a duty of care to the plaintiff, but that for reasons of policy the law
should stop short of giving her damages: it should limit relief to those on or near the highway at or near the time of the accident caused by the defendants' negligence. He was influenced by the fact that the courts of this country, and of other common law jurisdictions, had stopped at this point: it was indicated by the barrier of commercial sense and practical convenience.

Griffiths L.J. took the view that although the injury to the plaintiff was foreseeable, there was no duty of care. The duty of care of drivers of motor vehicles was, according to decided cases, limited to persons and owners of property on the road or near to it who might be directly affected. The line should be drawn at this point. It was not even in the interest of those suffering from shock as a class to extend the scope of
the defendants' liability: to do so would quite likely delay their recovery by immersing them in the anxiety of litigation.

I am deeply impressed by both of these arguments, which I have only briefly summarised. Though differing in expression, in the end, in my opinion, the two presentations rest upon a common principle, namely that, at the margin, the boundaries of a man's responsibility for acts of negligence have to be fixed as a matter of policy. Whatever is the correct jurisprudential analysis, it does not make any essential difference whether
one says, with Stephenson L.J., that there is a duty but, as a matter of policy, the consequences of breach of it ought to be limited at a certain point, or whether, with Griffiths L.J., one says that the fact that consequences may be foreseeable does not automatically impose a duty of care, does not do so
in fact where policy indicates the contrary.

This is an approach which one can see very clearly from the way in which Lord Atkin stated the neighbour principle in Donoghue v. Stevenson [1932] A.C. 562, 580:

" Persons who are so closely and directly affected by my act that " I ought reasonably to have them in contemplation as being so" affected ".

This is saying that foreseeability must be accompanied and limited by the law's judgment as to persons who ought, according to its standards of value or justice, to have been in contemplation.

Foreseeability, which involves a hypothetical person, looking with hindsight at an event which has occurred, is a formula adopted by English law, not merely for defining, but also for limiting the persons to whom duty may be owed, and the
consequences for which an actor may be held responsible. It is not merely an issue of fact to be left to be found as such.

When it is said to result in a duty of care being owed to a person or a class, the statement that there is a " duty of care " denotes a conclusion into the forming of which considerations of policy have entered. That foreseeability does not of itself, and automatically, lead to a duty of care is, I think, clear.

I gave some examples in Anns v. Merton London Borough [1978] A.C. 728, 752, Anns itself being one. I may add what Lord Reid said in McKew v. Holland & Hannen & Cubitts, " A defender is not liable for a consequence" of a kind which is not foreseeable. But it does not follow that he is liable " for every consequence which a reasonable man could foresee." [1969]
3 All E.R. 1621, 1623.

We must then consider the policy arguments. In doing so we must bear in mind that cases of " nervous shock " and the possibility of claiming damages for it, are not necessarily confined to those arising out of accidents in public roads. To state, therefore, a rule that recoverable damages must
be confined to persons on or near the highway is to state not a principle in itself, but only an example of a more general rule that recoverable damages must be confined to those within sight and sound of an event caused by negligence or, at least, to those in close, or very close, proximity to such a situation.

The policy arguments against a wider extension can be stated under four heads.

First, it may be said that such extension may lead to a proliferation of claims, and possibly fraudulent claims, to the establishment of an industry of lawyers and psychiatrists who will formulate a claim for nervous shock damages, including what in America is called the customary miscarriage, for all, or many, road accidents and industrial accidents.

Secondly, it may be claimed that an extension of liability would be unfair to defendants, as imposing damages out of proportion to the negligent conduct complained of. In so far as such defendants are insured, a large additional burden will be placed on insurers, and ultimately upon the class of persons insured—road users or employers.

Thirdly, to extend liability beyond the most direct and plain cases would greatly increase evidentiary difficulties and tend to lengthen litigation.

Fourthly, it may be said—and the Court of Appeal agreed with this—that an extension of the scope of liability ought only to be made by the legislature, after careful research. This is the course which has been taken in New South Wales and the Australian Capital Territory.

The whole argument has been well summed up by Dean Prosser:

" The reluctance of courts to enter this zone even where the mental injury is clearly foreseeable, and the frequent mention of the difficulties of proof, the facility of fraud and the problem of finding a place to stop and draw the line, suggest that here it is the nature of the interest invaded and the type of damages which is the real obstacle " (Prosser, Law of Torts, 4th Ed. p.256).

Since he wrote, the type of damage has, in this country at least, become more familiar and less deterrent to recovery. And some of the arguments are susceptible of answer. Fraudulent claims can be contained by the courts, who, also, can cope with evidentiary difficulties. The scarcity of
cases which have occurred in the past, and the modest sums recovered, give some indication that fears of a flood of litigation may be exaggerated— experience in other fields suggests that such fears usually are.

If some increase does occur, that may only reveal the existence of a genuine social need: that legislation has been found necessary in Australia may indicate the same thing.
But these discounts accepted, there remains, in my opinion, just because "shock" in its nature is capable of affecting so wide a range of people, a real need for the law to place some limitation upon the extent of admissible claims.

It is necessary to consider three elements inherent in any
claim: the class of persons whose claims should be recognised; the proximity of such persons to the accident; and the means by which the shock is caused.

As regards the class of persons, the possible range is between the closest of family ties—of parent and child, or husband and wife, and the ordinary bystander.

Existing law recognises the claims of the first: it denies that of
the second, either on the basis that such persons must be assumed to be possessed of fortitude sufficient to enable them to endure the calamities of modern life, or that defendants cannot be expected to compensate the world
at large. In my opinion, these positions are justifiable, and since the present case falls within the first class, it is strictly unnecessary to say more.

I think, however, that it should follow that other cases involving less close relationships must be very carefully scrutinised. I cannot say that they should never be admitted. The closer the tie (not merely in relationship, but in care) the greater the claim for consideration. The claim, in any case, has
to be judged in the light of the other factors, such as proximity to the scene in time and place, and the nature of the accident.

As regards proximity to the accident, it is obvious that this must be close in both time and space. It is, after all, the fact and consequence of the defendant's negligence that must be proved to have caused the "nervous shock ". Experience has shown that to insist on direct and immediate sight or hearing would be impractical and unjust and that under what may
be called the " aftermath " doctrine, one who, from close proximity comes very soon upon the scene, should not be excluded.

In my opinion, the result in Benson v. Lee (u.s.) was correct and indeed inescapable. It was based, soundly, upon " direct perception of some of the events which go " to make up the accident as an entire event, and this includes ... the
" immediate aftermath ".

The High Court's majority decision in Chester v. Waverley Council (1939) 62 C.L.R. 1. where a child's body was found floating in a trench after a prolonged search, may perhaps be placed on the other side of a recognisable line (Evatt J. in a powerful dissent placed it on the same side), but in addition, I find the conclusion of Lush J. to reflect developments in the law.

Finally, and by way of reinforcement of " aftermath " cases, I would accept, by analogy with " rescue " situations, that a person of whom it could be said that one could expect nothing else than that he or she would come immediately to the scene—normally a parent or a spouse, could be regarded as being within the scope of foresight and duty.

Where there is not immediate presence, account must be taken of the possibility of alterations in the circumstances, for which the defendant should not be responsible. Subject only to these qualifications, I think that a strict test of proximity
by sight or hearing should be applied by the courts.

Lastly, as regards communication, there is no case in which the law has compensated shock brought about by communication by a third party.

In Hambrook v. Stokes (u.s.), indeed, it was said that liability would not arise in such a case and this is surely right. It was so decided in Abramzik v. Brenner (1967) 65 D.L.R. (2nd) 651. The shock must come through sight or hearing of the event or of its immediate aftermath. Whether some equivalent of sight or hearing, e.g. through simultaneous television, would
suffice may have to be considered.

My Lords, I believe that these indications, imperfectly sketched, and certainly to be applied with common sense to individual situations in their entirety, represent either the existing law, or the existing law with only such circumstantial extension as the common law process may legitimately make.

They do not introduce a new principle. Nor do I see any reason why the law should retreat behind the lines already drawn. I find on this appeal that the appellant's case falls within the boundaries of the law so drawn.

I would allow her appeal.

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Leigh & Sillivan Ltd v Aliakmon Shipping Co Ltd (The Aliakmon) [1985] Int.Com.L.R. 04/24

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Lord Brandon said that Anns did not intend to provide a universally applicable test of the existence and scope of a DOC in the law of negligence. A central criticism was that it was too easy for a P to establish a DOC because liability would be presumed if the D should have foreseen the injury to the plaintiff. The policy factors were only used in exceptional circumstances so the test was often left unchecked.

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Yuen Kun Yeu v AG of Hong Kong (1987)

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. The Privy Council in Yuen Kun Yeu v AG of Hong Kong (1987) warned that proximity should not be equated with reasonable forseeability when determining the existence of a DOC.

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Scope of the Tort of Negligence

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The tort of negligence is a very expansive area of law and covers a huge variety of situations. Negligence covers acts or omissions by a Defendant which may take the forms of statements or physical conduct and has been summarised as:

“Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.”

Blyth v Birmingham Waterworks (1856) Exch 781 per Alderson B.

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McEleney v McCarron (unrep, Dec 1992)

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Facts: The Plaintiff suffered irreparable brain damage after being run over by the Defendant’s 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 presumed 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 HC’s 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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Kirby v Burke & Holloway (1944)

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Donoghue was first accepted by an Irish court in a published judgment by Gavan Duffy J in Kirby v Burke & Holloway (1944) 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.

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English Development of The Duty of Care

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a. Support for Donoghue

Initially the broad neighbourhood principle in Donoghue was supported in England Home Office v Dorset Yacht Co Ltd (1970)

Facts: A number of juveniles escaped from detention and caused damage to the Plaintiff’s 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 offi cers 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).

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 Wilberforce’s stated as follows:

“Through the trilogy of cases in this House – Donoghue v Stevenson, Hedley Byrne & Co v Heller & Partners Ltd, and Home Offi ce 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 sufficient 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 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.

Anns echoes the language of Donoghue and refers fi 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?

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 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

The support for the Anns formulation in England ended with the decision in Caparo Industries Plc v Dickman (1990) 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 Defendant’s 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 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

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 refl ects 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 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.”

English law entered into a new phase of negligence law with the HL’s decision in Caparo which was endorsed in Murphy v Brentwood District Council (1991).

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.

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Irish Development of Duty of Care

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The Irish courts have retained their enthusiasm for Donoghue, favouring its broad principled case-by-case approach. Lord Atkin’s statements have remained popular in Ireland although the courts often conflate reasonable foreseeability with relational proximity. The English incremental approach is unpopular with the Irish judges and has been rejected on numerous occasions although the decision in Glencar sounds a more restrictive note in the development of the duty of care in Ireland.

a. Broad Approach to Donoghue

The Irish Courts endorsed the Donoghue decision on a number of occasions prior to the English decision in Anns. One example is the case of McNamara v ESB (1975) where the Court held that an occupier may owe duty of care to a trespasser and the Court emphasised the issues of proximity and foreseeability.

The decision in Anns was welcomed in this jurisdiction and was seen by Irish Judges as merely endorsing Donoghue as opposed to a complete reformulation of negligence law. In W v Ireland and Others (No 2) (1997) Costello P stated that the “view of the Irish courts has been that Anns was a ‘confirmation’ of the long established principles of the law of tort contained in Donoghue v Stevenson and was not (as some commentators in England seem to coincide) a
major innovation in the law of tort.”

The Courts in Ireland continued to adopt a broad expansive approach to negligence principles as is seen in the case of Ward v McMaster (1988).

Facts: This case concerned a Plaintiff who bought a house from a builder. The house turned out to be structurally unsound. The Plaintiff sued the builder and council who had provided a housing loan to the Plaintiff and had arranged
an inspection of the property which the Plaintiff relied on. The Plaintiff was successful against both.

Held: The Court referred to the incremental approach in England and rejected it. The Court endorsed the broad approach to the duty of care and referred to the three-tier test of proximity, foreseeability and the absence of any
compelling exemption based on public policy. The Court specifically stated that a public policy reason must be a very powerful one if it is used to deny an injured party the right to redress.

The broad decision in Ward was also followed in McShane Wholesale Fruit & Veg Ltd case (1997).

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 decision and a broad approach to the duty of care.

Facts: The Plaintiff sought recovery for fi nancial losses as a result of the Council’s 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 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 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 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 CJ’s 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?

As noted in Byrne and Binchy’s Annual Review of Irish Law 2005 at p666–667, the influence 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 finding 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 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 Bridge’s 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, specifi cally 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 identifi ed 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 Caparo’s 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.

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Discussion of Duty of Care

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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 circumstances.

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.

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.

(b) 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.

(c) 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 diffi cult to limit. In particular, the English Courts rely on established categories and are reluctant to impose a duty in ‘new’
situations.

(d) 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.

The policy considerations referred to above influence 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.

EXAMTIP

Know these factors which are the driving forces behind public policy decisions. These are considerations outside of legal principle that influence the court’s 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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Proximity and Policy Factors

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The element of proximity of the parties contains degree of value judgment and therefore policy considerations have infl uenced the Courts discussion of 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 inflicted psychiatric injury that a certain special relationship or proximity is required to establish a duty of care and
this approach is infl uenced by the floodgates argument.

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Foreseeability and Policy Factors

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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 circumstances 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.

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Policy Factors

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The 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 specifi cally stated that a public policy consideration denying the existence of a duty of care would have to be a very powerful one. This approach refl ects 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 artifi cial 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 influence of this is evident from the Beatty case discussed above.

However, Byrne and Binchy 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.

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The Reasonable Man

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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 Defendant’s 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 Defendant’s conduct will be legally assessed. Generally in 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 defendant’s 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. 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 confidence”

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Principles to Determine the Standard of Care

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The 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 Defendant’s conduct
• The cost of eliminating the risk

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Probability of the Accident

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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.

O’Gorman v Ritz Cinema (Clonmel) Ltd (1947)16

Facts: The Plaintiff attended a fi lm at the Defendant’s 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 Plaintiff’s leg to catch in the hinge mechanism, causing a gash that later turned septic. The Plaintiff sued the proprietors 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 Defendant’s evidence as relevant to showing that the Defendant had not breached the standard of care owed to the Plaintiff. The Court stated that, “to prevent such injuries would require precautions of a well-nigh fantastic nature which could not reasonably be expected in the construction or management of a theatre.”

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

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O’Gorman v Ritz Cinema (Clonmel) Ltd (1947)

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Facts: The Plaintiff attended a film at the Defendant’s 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 Plaintiff’s leg to catch in the hinge mechanism, causing a gash that later turned septic.

The Plaintiff sued the proprietors 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 Defendant’s evidence as relevant to showing that the Defendant had not breached the standard of care owed to the Plaintiff.

The Court stated that, “to prevent such injuries would require precautions of a well-nigh fantastic nature which could not reasonably be expected in the construction or management of a theatre.”

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Gravity of the Threatened Injury

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The Courts use the gravity of the threatened injury to inform the appropriate standard of care.

Lord Macmillan in Read v Lyons (1947) 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) 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 the Plaintiff.

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 thorough are the precautions which an employer must take”.

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Paris v Stepney Borough Council (1951)

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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 thorough are the precautions which an employer must take”.

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Social Utility of the Defendant’s conduct

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Whooley v Dublin Corporation (1961)

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 injuries. The Defendant avoided liability by showing that the box had been specially designed to be easily accessible to the fire brigade in cases of fire, 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”.

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Whooley v Dublin Corporation (1961),

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Facts: The Plaintiff had been walking along a footpath in Dublin city when she fell onto a fi re hydrant box which had been pulled open, causing her injuries. The Defendant avoided liability by showing that the box had been specially designed to be easily accessible to the fi re brigade in cases of fire, 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”.

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Burden/Cost of Eliminating the Risk

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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 restrict Bradley to its facts and stated that the decision in Bradley should not be taken as supporting the view that where lives are a risk expense is anything more than vaguely material. Thus where serious injury is threatened a cost analysis will not be determinative.

In Muldoon v Ireland and others (1988) Hamilton J refused to deem the Defendant liable for injuries infl icted 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.

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Glencar Exploration plc v. Mayo County Council [2001] IESC 64

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Facts: The Plaintiff sought recovery for fi nancial losses as a result of the Council’s 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 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 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.”

This is a claim for damages of £1,938,264. It arises in the wake of the judgment of Blayney J. given in these proceedings on the 13th November, 1992. By his Order of that date that judge declared that the inclusion of what has come to be called a mining ban which was inserted in paragraph 3.6.1 of the County Mayo Development Plan on the 17th February, 1992 was ultra vires the Respondent and was null and void.

2. Having obtained that decision in their favour the Applicants now assert that they are entitled to recover damages against the Respondent. They claim the recovery of monies expended by them (agreed in the sum already set forth) on the basis that in inserting the ban the Respondent was guilty of at least one of five different wrongs. These wrongs are misfeasance in public office, breach of statutory duty, negligence, breach of legitimate expectation and wrongful interference with the Applicants' constitutional rights. Each of these claims will have to be considered in turn.

While the decision in Ward v. McMaster has been treated by some as an unqualified endorsement by this court of the two stage test adopted by Lord Wilberforce in Anns, it is by no means clear that this is so. As already noted, Henchy J was satisfied that the case could be decided by reference to 'well established principles' and made no reference in his judgment to the two stage test in Anns. Since Finlay CJ and Griffin J expressed their agreement with both the judgments of Henchy J and McCarthy J, it is not clear that the observations of the latter in relation to the two stage test in Anns necessarily formed part of the ratio of the decision. Given the far reaching implications of adopting in this jurisdiction a principle of liability in negligence from which there has been such powerful dissent in other common law jurisdictions, I would not be prepared to hold that further consideration of the underlying principles is foreclosed by the dicta of McCarthy J in Ward v. McMaster.

102. In considering whether that approach, or the more cautious approach favoured in Caparo Industries plc. v. Dickman and Sutherland Shire Council v. Heyman should be adopted, I think it is helpful to refer again to the philosophy reflected in Lord Atkin's approach in Donoghue v. Stephenson. The bystander who sees a building on fire and knows that there are people inside no doubt foresees that if he waits for the fire brigade to arrive rather than attempting to rescue them himself they may die. But the law has never imposed liability in negligence on a person who fails to act as a more courageous citizen might in such circumstances. A strict moral code might censure his timidity: the law of negligence does not. 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 notoriously 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, as held by Costello J at first instance in Ward v. McMaster, by Brennan J in Sutherland Shire Council v. Heyman and by the House of Lords in Caparo Industries plc. v. Dickman. As Brennan J pointed out, there is a significant risk that any other approach will result in what he called a 'massive extension of a prima facie duty of care restrained only by undefinable considerations...'


106. In Anns, it was suggested that the imposition of a duty of care in cases of this nature was justified where the nature of the statutory power was such that it was obviously the intention of the legislature that it would be exercised and that, accordingly, a negligent failure to exercise what were described as 'operational' powers or duties could give rise to liability. In subsequent cases in England, however, it has been said that the distinction between policy and operations may not be a particular useful guide in determining whether a duty of care should be found to exist in any particular case. Similar considerations apply to the distinctions drawn in some of the authorities between discretionary and non-discretionary decisions.

107. For the purposes of this case, it is sufficient to say that the mere fact that the exercise of a power by a public authority may confer a benefit on a person of which he would otherwise be deprived does not of itself give rise to a duty of care at common law. The facts of a particular case, however, when analysed, may point to the reasonable foreseeability of damage arising from the non-exercise of the power and a degree of proximity between the plaintiff and the defendant which would render it just and reasonable to postulate the existence of a duty of care. That approach is consistent with the reluctance of the law to impose liability for negligence arising out of an omission to act rather than out of the commission of positive acts which may injure persons or damage property. In the present case, the decision by the respondents that they would not grant planning permission for any mining development within the area covered by the ban was, on the assumption that it was intra vires, the exercise by them of a statutory power which would result in the withholding of a benefit from the applicants which would foreseeably result in their suffering financial loss. But, although such a loss was undoubtedly reasonably foreseeable, when one bears in mind that the powers in question were exercisable by the respondents for the benefit of the community as a whole and not for the benefit of a defined category of persons to which the applicant belonged (as in Siney and Ward v. McMaster), I am satisfied that there was no relationship of 'proximity' between the plaintiffs and the respondents which would render it just and reasonable to impose liability on the respondents.

108. In considering whether such a relationship of 'proximity' existed and whether it would be just and reasonable to impose a duty of care on the respondents, I think one also has to bear in mind that this was not a case in which it could reasonably be said that the applicants, in incurring the expense of their prospecting activities, could be said to have been relying on the non negligent exercise by the respondents of their statutory powers. Their position is in contrast to that of the plaintiffs in both Siney and Ward v. McMaster where, in each case, they belonged to a category of persons for whose benefit a particular statutory framework had been created and who might reasonably be said to have relied on the local authority in each case taking reasonable care in the exercise of the statutory powers vested in them. The applicants in the present case could rely on no more than a general expectation that the respondents would act in accordance with the law which is not, in my view, sufficient to give rise to the existence of a duty of care.

109. It is also far from clear that the applicants have established that what the High Court judge found to be the unreasonable manner in which they had adopted the mining ban caused the damage of which they complain. Had they observed the criteria which Mr O'Sullivan SC had advised were appropriate in adopting the ban they would still have been found to have acted ultra vires in the High Court on the grounds set out in the judgment of Blayney J Accordingly, even if they had confined the ban to a significantly smaller area in a manner which could have been justified on objective criteria relating to the need to protect areas of particular scenic beauty, and which included those areas in which the applicants were prospecting, it would still have been set aside on those grounds. I should add that I am also satisfied that Dr Forde was correct in submitting on behalf of the respondents that it had not been established that the respondents had acted in breach of their statutory obligation pursuant to s. 7(1)(e) of the Local Government Act 1991 to

have regard to....
(e) policies and objectives of the government or any Minister of the government in so far as they may affect or relate to its functions...
110. There was no evidence to indicate that the respondents simply ignored the letter from the Minister for Energy: on the contrary, they adjourned the meeting at which they were to make the vital decision so that the Minister's views could be considered. The fact that they are obliged to have regard to policies and objectives of the government or a particular Minister does not mean that, in every case, they are obliged to implement the policies and objectives in question. If the Oireachtas had intended such an obligation to rest on the planning authority in a case such as the present, it would have said so.

111. There remains the question of economic loss. The reason why damages for such loss - as distinct from compensation for injury to persons or damage to property - are normally not recoverable in tort is best illustrated by an example. If A sells B an article which turns out to be defective, B can normally sue A for damages for breach of contract. However, if the article comes into the possession of C, with whom A has no contract, C cannot in general sue A for the defects in the chattel, unless he has suffered personal injury or damage to property within the Donoghue v. Stephenson principle. That would be so even where the defect was latent and did not come to light until the article came into C's possession. To hold otherwise would be to expose the original seller to actions from an infinite range of persons with whom he never had any relationship in contract or its equivalent.

112. That does not mean that economic loss is always irrecoverable in actions in tort. As already noted, economic loss is recoverable in actions for negligence misstatement. In Siney, economic loss was held to be recoverable in a case where the damages represented the cost of remedying defects in a building let by the local authority under their statutory powers. Such damages were also held to be recoverable in Ward v. McMaster, the loss being represented by the cost of remedying defects for which the builder and the local authority were held to be responsible. In both cases, the loss was held to be recoverable following the approach adopted by the House of Lords in Anns. While the same tribunal subsequently overruled its earlier conclusion to that effect in Murphy v. Brentwood District Council [1991] 1 AC 398, we were not invited in the present case to overrule our earlier decisions in Siney and Ward v. McMaster.I would expressly reserve for another occasion the question as to whether economic loss is recoverable in actions for negligence other than actions for negligent misstatement and those falling within the categories identified in Siney and Ward v. McMaster and whether the decision of the House of Lords in Junior Books Ltd. v. Veitchi Co. Ltd. should be followed in this jurisdiction.

113. I would dismiss the appeal and affirm the order of the High Court.

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Ward v. McMaster [1988] IESC 3

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The County Council appeals against so much of the order of the High Court (Costello J.) as held it liable to compensate the first plaintiff, the husband of the second plaintiff, for damage suffered because of the breach by the Council of its common law duty of care to the husband who was the purchaser for £24,000 of part of the lands described in folio 3708 County Louth being site 13 on a map attached to the contract and situated at Faughart, Dundalk, Co. Louth. He sought and obtained from the County Council a loan of £12,000 to enable him to purchase “a dwellinghouse at Lower Faughart, Dundalk.” The house turned out to be unfit for human habitation, although, before the loan was sanctioned, the County Council had obtained a “valuer’s certificate” that the house was in good sanitary condition and repair, and if necessary, readily saleable. The plaintiffs left their home and sued the vendor, who was also the builder and, clearly, at the time no mark for damages, the County Council and the firm engaged by the County Council as “valuer”. The vendor/builder had no answer, was decreed and has not appealed; the “valuer” was held by the trial judge not to have fallen short of the standard of care required of him; the County Council was decreed with a right of contribution of 90 per cent from the vendor/builder (a right which is worthless) and it appeals against the award made to the first plaintiff. The second plaintiff succeeded against the vendor/builder and no appeal has been pursued in that respect. In my judgment, the appeal by the County Council fails.

The plaintiffs in that case, a married couple, had purchased a house from a builder. Shortly afterwards, they discovered that it contained serious structural defects which, if not repaired, would render it dangerous and a risk to health. The plaintiffs had bought the house with the assistance of a loan from the local authority under the relevant housing legislation. They had not had any independent examination of the house by a surveyor carried out before they bought it, but it had been examined on behalf of the local authority by an auctioneer. The plaintiffs sued both the builders/vendor and the local authority. Their claim against the latter was based on the contention that the local authority should have known that the plaintiffs, not being persons of means, would be unlikely to retain their own independent surveyor and would have relied on an appropriate inspection having been carried out on behalf of the authority. In fact, as already noted, the examination was carried out by an auctioneer who was not a qualified surveyor and whose report did not reveal the defects in the house.

95. In the High Court, the plaintiffs' claim against both the builder and the local authority succeeded. Although the damage which resulted was, on one view, purely economic loss, Costello J in the High Court was satisfied that it was recoverable in the light of the decision in Junior Books Ltd. v. Veitchi Company Ltd. Having considered the authorities in England, he stated the legal principles which were applicable in determining whether a duty of care arose in the circumstances of that case to be as follows:

(a) When deciding whether a local authority exercising statutory functions is under a common law duty of care the court must firstly ascertain whether a relationship of proximity existed between the parties such that in the reasonable contemplation of the authority carelessness on their part might cause loss. But all the circumstances of the case must in addition be considered, including the statutory provisions under which the authority is acting. Of particular significance in this connection is the purpose for which the statutory powers were conferred and whether or not the plaintiff is in the class of persons which the statute was designed to assist.
(b) It is material in all cases for the court in reaching its decision on the existence and scope of the alleged duty to consider whether it is just and reasonable that a common law duty of care as alleged should in all the circumstances exist.
96. In the case of the local authority, he held that it was within the reasonable contemplation of the second named defendant that carelessness on its part in carrying out the valuation of the house might be likely to cause damage to the purchaser. It was consistent with the local authority's public law powers that they should be accompanied by a common law duty of care in favour of the plaintiffs and he further held that, for similar reasons, it was 'just and reasonable' that the court should hold that a duty of care arose in that case.

97. The local authority appealed to this court which unanimously upheld the judgment of Costello J. However, although there was, as in this case, an extensive debate as to the nature and scope of the duty of care, Henchy J was satisfied that the facts of the case were such that it could be decided in accordance with what he described as 'well established principles'. In his view, the relationship between the first named plaintiff and the local authority was such that the latter owed a duty to him to take due care in the valuation of the house since they should have known that, in the light of his lack of means, he would rely on their having carried out an appropriate valuation. There is, accordingly, nothing in his judgment to indicate that he was adopting the more expansive view of the extent of the duty of care, rightly or wrongly attributed to Lord Wilberforce in Anns, rather than the more restrictive approach subsequently adopted in the English authorities.

98. By contrast, in the only other judgment delivered in this court, McCarthy J expressly endorsed the two stage test adopted by Lord Wilberforce and added

Whilst Costello J essentially rested his conclusion on the 'fair and reasonable' test, I prefer to express the duty as arising from the proximity of the parties, the foreseeability of the damage, and the absence of any compelling exemption based upon public policy. I do not, in any fashion, seek to exclude the latter consideration, although I confess that such a consideration must be a very powerful one if it is to be used to deny an injured party his right to redress at the expense of the person or body that injured him.
99. As to the passage already cited from the judgment of Brennan J in Sutherland Shire Council v. Heyman, the learned judge commented that:

This verbally attractive proposition of incremental growth ...suffers from a temporal defect - that rights should be determined by the accident of birth.
100. Finlay CJ and Griffin J said that they were in agreement with the judgments of both Henchy J and McCarthy J: Walsh J confined his concurrence to the judgment of McCarthy J

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Siney v. Corporation of Dublin [1980] I.R. 400

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“To answer this question, [the application of an exclusionary rule] regard must be had to the Housing Act, 1966, under which this letting was made, and to the position, powers and obligations of the defendants under that Act. The Act of 1966 is a major piece of social legislation which is aimed at dealing with the distressing problem of families that are unable to provide for themselves and being either homeless or living in overcrowded, unhealthy and unfit houses. The Act sought to establish administrative machinery under which such conditions could be eliminated gradually throughout the country, and by means of which new and suitable dwellings could be provided for those in need . . . The Act also empowers the Minister for the Environment to provide grants for persons endeavouring to provide their own houses, either by building, or by repairing or reconstructing existing accommodation: see sections 13-23. The Minister was also empowered to give grants to housing authorities in order to promote and finance schemes for the assistance of people seeking to build or otherwise provide their own housing accommodation: see sections 24-43 . . . In short, the aim of the Act of 1966 was to bring into existence decent housing which, in each functional area, would be introduced by the housing authority and the standards of which would be maintained by that authority.”

31. Later at p. 412 he said:-


“I will merely say that the statutory duties imposed by the Housing Act, 1966, are so imposed for the benefit of the public. Under the Act they are enforceable under s. 111 by the Minister. In these circumstances no right of action is given to a private citizen if the complaint is merely that the duties so imposed, or any one of them has or has not been carried out. The mere fact that a housing authority has failed to discharge a duty imposed upon it does not give to a complaining or aggrieved citizen a right of action for damages.”

32. Again, at p. 414, he said:-


“In this case it is sufficient to say that many of these recent decisions recognise a possible liability where the exercise of statutory powers in a negligent manner results in injury to persons occupying houses for whose protection or benefit these powers were intended . . . Obviously, that inspection should have been carried out to ensure what had been built or provided accorded with the statutory requirements as to fitness for human habitation. Had the inspection by the defendants been so carried out, it would have disclosed that the ventilation system in this particular flat was defective and inadequate and that the defect was likely to lead to excessive humidity and to the kind of conditions of which the plaintiff and his family subsequently complained. In the circumstances the undetected defect in the ventilation was a serious concealed danger of which the incoming tenant, the plaintiff, could not have been aware and which he could not reasonably have been expected to discover. In these circumstances I can see no basis for suggesting that the principle of Donoghue v. Stevenson should not apply.”

33. Henchy J., having referred to the Act of 1966, said at p.419:-


“When the defendants, as the housing authority, prepared and adopted a building programme and then exercised their powers under s. 56 , sub-s. 1, to provide these flats for letting, it was a necessary postulate of the statutory scheme of things that the flats would not add to the stock of houses unfit or unsuitable for human habitation. Indeed, it would be positively inconsistent with the powers and the duties of the defendants, as a housing authority under the Act, to provide a flat that was not fit for habitation. The defendants’ powers (set out in ss. 66-69) of getting uninhabitable houses repaired, or closed and demolished if not repairable, are so specific and drastic that it must be deemed a necessary element of the statutory intent that the defendants are to use their powers under the Act in such a way that a dwelling built and let by them is fit for habitation, and that the tenant of the dwelling may act on an unarticulated assurance by them that it is fit for habitation. In other words, the letting agreement in this case should be read as if it contains an express term warranting the flat to be habitable.”

34. Later, at p. 421 he said:-


“Following on Donoghue v. Stevenson it has been established by a line of decisions (such as Dutton v. Bognor Regis U.D.C., Anns v. Merton London Borough and Batty v. Metropolitan Realisations Ltd.) that where a person, including a builder or a local authority, carelessly provides a dwelling in which there is a concealed defect which the occupier could not have discovered by inspection, the person who provided the dwelling may be liable in negligence for personal injury or economic loss suffered as a result of the defect. The precise conditions or limitations of that liability need not now be considered, for I have no doubt that the principle of liability evolved in those cases is applicable to the circumstances of this case.”

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Le Lievre v. Gould [1893] 1 QB 91

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Lord Esher said:

If one man is near to another, or is near to the property of another, a duty lies upon him not to do that which may cause a personal injury to that other, or may injure his property.

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Sutherland Shire Council v. Heyman (1985) 60 ALR 1

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Australian Authority


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 undefinable 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.'

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Breslin v. Corcoran [2003] IESC 23 (27 March 2003)

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Post-Glencar, four stage test, duty, proximity, policy, just and reasonable.

It is an act of folly to leave one’s motor car in the public street, even for a short time, with the keys in the ignition. There are plenty of ill-intentioned persons around to take advantage. The consequences can be tragic. But what is the liability of the imprudent car owner to a person injured by the bad driving of the thief?2.      The agreed facts of the present case are that first-named defendant left his car outside the Tea Time Express Coffee Shop in Talbot Street in Dublin unlocked and with the keys in the ignition. He dropped into the shop to buy a sandwich. As he came out, he saw an unknown person jump into the car and drive it off at speed. The car turned from Talbot Street into Talbot Lane. The plaintiff was walking across Talbot Lane. The car ran into him and injured him.

28.      Where Lord Reid spoke of whether the thing to be guarded against, the escape, was “very likely to happen,” Lord Morris of Borth-y-Gest spoke in terms of “a manifest and obvious risk,” and Lord Diplock, though also speaking of likelihood was more concerned to confine the right to recover to persons “who had property situate in the immediate vicinity.” An important element in the assessment by the House of Lords in the Dorset Yacht case of what is reasonably foreseeable is whether the event in question is the “very kind of thing” against which precautions must be taken. The reason is the probability of the thing happening. Lord Reid’s analysis, based as it was, on the insufficiency of mere foreseeability and the need for compliance with the additional test of reasonable probability is the most helpful for the present case.29.      This Court had already adopted that approach in Cunningham v McGrath Bros. [1964] I.R. 209. The defendants had left a ladder in a street leaning against their premises, after the completion of work. An unknown person moved the ladder to another nearby street where it later fell upon and injured the plaintiff. Kingsmill Moore J, in a unanimous judgment responded (at page 214 of the judgment) to an argument based on the breaking of the chain of causation:
“It is not every ‘novus actus’ which breaks the chain of causation. ‘If what is relied upon as novus actus interveniens is the very kind of thing which is likely to happen if the want of care which is alleged takes place, the principle embodied in the maxim is no defence. The whole question is whether or not, to use the words of the leading case, Hadley v. Baxendale (1) the accident can be said to be ‘the natural and probable result’ of the breach of duty. If it is the very thing which ought to be anticipated … or one of the things likely to arise as a consequence of his wrongful act, it is no defence; it is only a step in the way of proving that the damage is the result of the wrongful act …”
He stated the test as follows (at page 215):
“I am of opinion that the test to be applied is whether the person responsible for creating the nuisance should anticipate as a reasonable and probable consequence that some person in pursuance of his rights would attempt to abate the nuisance and in so doing would create a danger.”
30.      From all these cases, I draw the following conclusion. A person is not normally liable, if he has committed an act carelessness, where the damage has been directly caused by the intervening independent act of another person, for whom he is not otherwise vicariously responsible. Such liability may exist, where the damage caused by that other person was the very kind of thing which he was bound to expect and guard against and the resulting damage was likely to happen, if he did not.31.      Before turning to the scope of the duty of care in the present case, I need to refer to a
matter raised in the submissions of the MIBI, but which was not referred to in the High Court judgment. The Road Traffic (Construction, Use and Equipment of Vehicle) Regulations (S.I. 190) of 1963, Regulation 87 provide, in relevant part:
“87. (1) Where a vehicle as allowed to remain stationary on a public road, the driver shall not, subject to sub-article (2) of this article, leave the vehicle unattended unless—
(a) the engine of the vehicle is not running,
(b) where the engine is contained in a separate portion of the vehicle capable of being closed, such portion is closed, and
(c) where the vehicle is fitted under article 31 of these Regulations with a door or doors capable of being locked or with a device for preventing unauthorised driving, such door, doors or device is or are locked so as to prevent the vehicle being driven, and, where appropriate, the key of the door, doors or device is removed from the vehicle.”
32.      No claim based on breach of statutory duty was made against the first named Defendant. This is not to exclude the relevance of the Regulation. In my view, this Court can have regard to it when considering the scope of the duty of care of the first named defendant.
Conclusion
33.      The test then is not merely that of reasonable foreseeability. It is, in addition, necessary to ask whether it was probable that the unattended car, if taken, would be driven do carelessly as to cause damage to others. It seems to me beyond argument, and it is not really disputed, that it was reasonably foreseeable that the car would be stolen. 34.      It cannot be seriously disputed, that it was reasonably foreseeable as well as likely that the unattended car, with its keys in the ignition, would be stolen. I think it is obvious that to do all these things in a busy city street, without any mitigating circumstances, is an act of gross carelessness.35.      In modern circumstances, it is obvious that failure to exercise proper control and supervision over motor cars involves a serious risk of damage and worse to innocent people. It is equally clear that it was reasonably foreseeable that any goods, which might have been left in the car, would be stolen. Thus, if the motor car owner had been carrying goods commercially and, perhaps even looking after them gratuitously, for others, he would probably have been liable to the owners for their loss; similarly, if he had borrowed or rented the car, in respect of any damage to the vehicle. In each of these cases, it seems to me that the test of proximity would have been satisfied. Theft of the car or its contents could be regarded as “the very thing” against the custodian of the car should guard. They are directly related to the act of theft.36.      The nub of the case is, of course, the possible liability of the first named defendant for injuries caused by the negligent driving of the thief. Even if the owner of the car, or the driver, if not the owner, should be held liable to the owner of contents or of the car itself for damage to either of these items of property, it is not easy to articulate the basis for his automatic liability to the victim of negligent driving of the car. 37.      It is the negligent driving, not the taking of the car, which has caused the damage. It would have to be shown that the owner should have foreseen not merely the taking but also the negligent driving. There would have to be some basis in the evidence, such as that suggested by the learned trial judge, for a finding that the car, if stolen, was likely to be driven in such a way as to endanger others. Cars may be stolen for reasons which do not carry such implications. Some of these, though criminal, do not necessarily imply dangerous driving. The line would, on any view, have to be drawn somewhere. If a car were stolen for resale, the owner could scarcely be responsible for the driving of the purchaser, whether that person were honest or not.38.      In my view, there is nothing in the present case to suggest that the first-named defendant should have anticipated as a reasonable probability that the car, if stolen, would be driven so carelessly as to cause injury to another user of the road such as the plaintiff.39.      I would dismiss the appeal.