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14 Cards in this Set
- Front
- Back
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What is Negligence? |
Negligenceisa failure to take reasonable care to avoid causing injury or loss to anotherperson |
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The steps in proving negligence |
1.Establishing a duty of care(arecognised obligation in law) owed by the defendant to the plaintiff (toconform to a certain standard of acting/behaviour to protect againstforeseeable risks) 2.Breachofthe duty of care by the defendant (which means failing to conform to therequisite standard of care) 3.InjuryDamage or loss must follow from the breach (for the plaintiff to bring anaction in negligence against the defendant) i.ethere must be a causalconnection(between the conduct of the defendant and the resulting injury caused to theplaintiff) |
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Duty of Care |
Theduty of care is owed only to those persons who are in the area of foreseeabledanger Thecommon law narrows the field of potential litigants in any action based innegligence to those who can establish that they were oweda duty of care(the plaintiff must show that the defendant owes him/her a duty of care) Examplesof where a duty care is owed: doctor/patient, road user/other road user,pedestrian/motorist, priest/parishioner, solicitor/client etc. |
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Duty of Care example |
Donoghuev Stevenson (1932) FACTSInthis case, the plaintiff consumed a bottle of ginger beer purchaser for her byher friend Theginger beer was contained in a dark bottle opened on her behalf by the caféowner Theplaintiff drank some of the beer and as she poured the remainder of it into herglass the remains of a decomposed snail fell out of the bottle Theplaintiff became ill and proceeded to bring an action against the manufacturerof the drink in negligence (the plaintiff could not bring an action for breachof contract as she was not a party to the contract and therefore could not sueand be sued on foot of the contract) Theplaintiff argued that the manufacturer of the ginger beer owedher a duty of care notto produce the beer negligently; especially in a situation where the form inwhich it left the manufacturer (in a sealed bottle) was the form that wasintended to reach the ultimate consumer Thedefendant (the manufacturer) argued that he did not owe a duty of care to theplaintiff since there was no contract between him and the plaintiff (thepurchaser having been the plaintiff’s friend) Thecentral element from Lord Atkins’principle is the relationship between the parties; ifthe parties are considered in the eyes of the law to be “neighbours”thena duty of care may arise Youmay not injure your “neighbour” Your “neighbour”isanyone whom you can foresee might be injured by your careless actions COURTHELD:The courtheld that the defendant had prepared the product in such a way as to show thathe intended the product to reach the ultimate consumer in the form in which itleft him Therefore,the defendant could reasonablyforesee that somebody other than the original purchaser might consume the product Defendantliable |
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Duty of Care example 2 |
Kingsv Philips (1952) FACTSThedefendant carelessly drove his car over a boy’s bicycle Theboy who was not on his bicycle at the time, screamed Onhearing her son’s screams, the plaintiff, his mother, looked out the window andsaw the mangled bicycle, but not her son As aresult she suffered severe shock and became ill Shesued the defendant in negligence COURTHELD:Thecourt held that the defendant could only reasonably foresee that hiscarelessness would affect other road users and not persons in houses Notliable tothe plaintiff since he did not owe her a duty of care |
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Duty of Care Example 3 |
Duttonv Bognor Regis UDC (1972) FACTS:Inthis case, an inspector employed by the defendant council, examined thefoundations of a house when it was being built and certified it as being fit Threeyears later, after the plaintiff had purchased the house from its originalowner, cracks began to appear and the internal walls started to subside Theplaintiff had the house surveyed independently and discovered that it had beenbuild on a rubbish tip being an unstable foundation Hesued the council for negligence COURTHELD:Thecourt held that the inspector who provided an opinion as to the safety of thehouse owed a duty of care, not only to the owner at the time, but toall subsequent owners which might suffer injury or loss as aresult of its use Defendantliable |
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Duty of Care Example 4 |
Breslinv Corcoran and Motor Insurers Bureau of Ireland (2003) FACTS:Inthis case, the first name defendant left his car unlocked and with the keys inthe ignition while he entered a shop As hecame out of the shop, he saw an unknown person enter his car and drive off init at speed Theplaintiff was struck by the car and injured as he crossed a street nearby Theplaintiff brought an action alleging that the first named defendant wasnegligence by leaving the car unattended COURTHELD:Thecourt held that there was nothing to suggest that the first-named defendantshould 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 roadsuch as the plaintiff (Note:A car owner would not usually owe a duty of care to someone injured by athief’s negligent driving) |
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Breach of Duty |
Onceit has been established that the plaintiff is owed a duty of care, it must thenbe proven on a balance of probabilities thatthe duty has been breached Thedefendant will have been found in breach of this duty where he/she has failedto take appropriate care inthe given circumstances Courtasks: Did the defendant exercise thecare that a reasonable person would have exercised in the circumstances? Ifnot, could be liable in negligence |
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Proving the Breach of Duty of Care |
The Reasonable Man Test |
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The Reasonable Man Test |
Thecourts have adopted an objective test to determine whether the defendant hastaken appropriate care called the “reasonable man test” Thus,if a defendant fails to do something which a reasonableman would dointhe circumstances, or does something that the reasonableman would not do,hewill be deemed to have breached the duty of care owed to the plaintiff (set outby Alderson B. in Blyth v Birmingham Waterworks (1856)) |
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Reasonable Man Test Example |
“ofordinary intelligence and foresight” (as per Gavan Duffy J. in Kirbyv Burke (1944) Thereforethe defendant’s personal best will not be sufficient where it fails to meetwith the standard of the reasonable man Forexample, the standard of care expected on an inexperienced driver will be thatof the reasonable driver of experience, care and skill |
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Whatis the Appropriate Standard of Care? |
Thecourt takes a number of factors into account when judging the appropriatestandard of care including: -Theprobability of the accident occurring -Thegravity of the potential harm -Thesocial utility of the defendant’s conduct -Thecost of preventing the accident |
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Proving Injury or Loss |
Theplaintiff must show that some damage, loss or injury has been suffered by themas a result of the breach of duty Forthis to be proven, the harm or loss must be: a)Causedto a large extent by the conduct of the defendant b)Sufficientlyclosely related to the negligent act, and c)Eitherphysical injury to the plaintiff’s property or economic loss caused by physicalinjury or psychological injury |
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Proving Injury or Loss example |
In Mullally v Bus Eireann (1992) FACTS: Claim of psychological injury The husband and children of the plaintiff were involved in a serious bus accident allegedly caused by the negligence of the defendant’s employee When the plaintiff arrived at the hospital she discovered a scene familiar to a field hospital with bodies everywhere and many distressed relatives Oneof her sons had tubes attached and blood coming form his wounds with part ofhis brain exposed from the accident while her other son’s face was so swollenit was beyond recognition Meanwhile,her husband was fighting for his life and had been anointed three times Theplaintiff began to show signs of post traumatic stress disorder (PTSD) almostimmediately and had a complete personality change after witnessing the shockingscenes in the hospital Sheclaimed for these injuries COURTHELD:DenhamJ applied the criteria for PTSD (including flashbacks, nightmares, avoidance ofstimuli related to the trauma, anger outbursts, sleep disturbance etc.) andaccepted that for the purposes of nervous shock, PTSD was a ‘psychiatricdisease’ Sheallowed the plaintiff to recover for her psychological injuries – defendantsliable |
