GRIFFITH COLLEGE
TORT LAW
FINAL EXAMINATION (PART 1)
ONE-DAY PREPARATION COURSE
February 2019
Reproduced where relevant under licence from the
Law Society of Ireland
Table of Contents
Exam Paper – October 2018 ................................................................................................................................... 1
Question One .......................................................................................................................................................... 1
Question Two .......................................................................................................................................................... 3
Question Three ....................................................................................................................................................... 6
Question Four ......................................................................................................................................................... 8
Question Five ........................................................................................................................................................ 11
Qustion Six ............................................................................................................................................................ 15
Question Seven ..................................................................................................................................................... 18
Question Eight ...................................................................................................................................................... 22
Exam Paper – March 2018 .................................................................................................................................... 24
Question One ........................................................................................................................................................ 24
Question Two ........................................................................................................................................................ 26
Question Three ..................................................................................................................................................... 28
Question Four ....................................................................................................................................................... 32
Question Five ........................................................................................................................................................ 35
Question Six .......................................................................................................................................................... 38
Question Seven ..................................................................................................................................................... 43
Question Eight ...................................................................................................................................................... 47
Exam Paper – October 2017 ................................................................................................................................. 50
Question One ........................................................................................................................................................ 50
Question Two ........................................................................................................................................................ 52
Question Three ..................................................................................................................................................... 54
Question Four ....................................................................................................................................................... 57
Question Five ........................................................................................................................................................ 60
Question Six .......................................................................................................................................................... 63
Question Seven ..................................................................................................................................................... 67
Question Eight ...................................................................................................................................................... 69
Exam Paper - March 2017 ..................................................................................................................................... 72
Question One ........................................................................................................................................................ 72
Question Two ........................................................................................................................................................ 75
Question Three ..................................................................................................................................................... 77
Question Four ....................................................................................................................................................... 81
Question Five ........................................................................................................................................................ 84
Question Six .......................................................................................................................................................... 87
Question Seven ..................................................................................................................................................... 90
Question Eight ...................................................................................................................................................... 95
Exam Paper - October 2016 .................................................................................................................................. 97
Question One ........................................................................................................................................................ 97
Question Two...................................................................................................................................................... 101
Question Three ................................................................................................................................................... 103
Question Four ..................................................................................................................................................... 106
Question Five ...................................................................................................................................................... 109
Question Six ........................................................................................................................................................ 112
Question Seven ................................................................................................................................................... 116
Question Eight .................................................................................................................................................... 119
Exam Paper - March 2016 ................................................................................................................................... 123
Question One ...................................................................................................................................................... 123
Question Two...................................................................................................................................................... 126
Question Three ................................................................................................................................................... 130
Question Four ..................................................................................................................................................... 134
Question Five ...................................................................................................................................................... 136
Question Six ........................................................................................................................................................ 139
Question Seven ................................................................................................................................................... 142
Question Eight .................................................................................................................................................... 146
Exam Paper - October 2015 ................................................................................................................................ 149
Question One ...................................................................................................................................................... 149
Question Two...................................................................................................................................................... 151
Question Three ................................................................................................................................................... 154
Question Four ..................................................................................................................................................... 157
Question Five ...................................................................................................................................................... 159
Question Six ........................................................................................................................................................ 162
Question Seven ................................................................................................................................................... 166
Question Eight .................................................................................................................................................... 168
Exam Paper - March 2015 ................................................................................................................................... 170
Question One ...................................................................................................................................................... 170
Question Two...................................................................................................................................................... 173
Question Three ................................................................................................................................................... 176
Question Four ..................................................................................................................................................... 179
Question Five ...................................................................................................................................................... 182
Question Six ........................................................................................................................................................ 184
Question Seven ................................................................................................................................................... 187
Question Eight .................................................................................................................................................... 189
Exam Paper - October 2014 ................................................................................................................................ 192
Question One ...................................................................................................................................................... 192
Question Two ...................................................................................................................................................... 196
Question Three ................................................................................................................................................... 200
Question Four ..................................................................................................................................................... 204
Question Five ...................................................................................................................................................... 207
Question Six ........................................................................................................................................................ 210
Question Seven ................................................................................................................................................... 213
Question Eight .................................................................................................................................................... 216
Exam Paper - March 2014 ................................................................................................................................... 219
Question One ...................................................................................................................................................... 219
Question Two ...................................................................................................................................................... 222
Question Three ................................................................................................................................................... 224
Question Four ..................................................................................................................................................... 227
Question Five ...................................................................................................................................................... 230
Question Six ........................................................................................................................................................ 233
Question Seven ................................................................................................................................................... 235
Question Eight .................................................................................................................................................... 237
Exam Paper - April 2014...................................................................................................................................... 240
Question One ...................................................................................................................................................... 240
Question Two ...................................................................................................................................................... 242
Question Three ................................................................................................................................................... 245
Question Four ..................................................................................................................................................... 248
Question Five ...................................................................................................................................................... 251
Question Six ........................................................................................................................................................ 254
Question Seven ................................................................................................................................................... 256
Question Eight .................................................................................................................................................... 259
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Exam Paper – October 2018
Question One
A statement is defamatory if it “tends to injure a person’s reputation in the eyes of reasonable
members of society.” Defamation Act 2009, s.2.
Critically discuss this provision in the law on defamation.
Answer One
Broadly speaking, the elements of defamation are publication, identification and defamatory effect
In this respect the Defamation Act 2009 reflects the traditional tests and defines the tort accordingly at
section 6 subsections (2) and (3). It is now stated that the tort of defamation consists of the
publication, by any means, of a defamatory statement concerning a person to one or more than one
person (other than the first-mentioned person), and “defamation” shall be construed accordingly. A
defamatory statement concerns a person if it could reasonably be understood as referring to him or
her. The definition of “statement” in section 1 of the 2009 Act is one made orally or in writing; visual
images, sounds, gestures and any other method of signifying meaning; a statement— (i) broadcast on
the radio or television, or (ii) published on the internet, and; an electronic communication. In order for
identification of the potential plaintiff to be present, the test is whether the ordinary sensible person
would be reasonably likely to understand that the words referred to the Plaintiff. The judge would
answer the question of law as to whether the words are capable of referring to the Plaintiff, and if this
test is met, the jury would decide whether people did believe that the words referred to the plaintiff.
The traditional test for defamatory effect was whether the words complained of tend to lower the
plaintiff in the estimation of a right-thinking member of society or tends to make them shun or avoid
the plaintiff. Such lowering in estimation need not be shown in fact and in establishing defamatory
effect, the intention of the defendant was irrelevant. The quoted definition in section 2 of “defamatory
statement” is, “...a statement that tends to injure a person’s reputation in the eyes of reasonable
members of society,” and it is indicated that “defamatory” shall be construed accordingly.
Consequently the definition of the tort has not substantially changed.
Case law may be said to be of limited assistance in establishing whether or not a statement is
defamatory owing to changes in social mores and what the perspective of “reasonable members of
society” would be; together with the fact that the circumstances tend to vary widely from case to case.
In the case of Cassidy v The Daily Mirror (1929), the Defendant published a photograph of the
Plaintiff’s husband with another woman alongside a caption announcing the couple’s engagement. It
was held to have defamed the Plaintiff by reason of the innuendo that she was living in immoral
cohabitation with Mr Cassidy and misleading her neighbours and friends as to her marital status. The
broad proposition that may be taken from this case is that sexual immorality may have a defamatory
effect, but this type of statement would not be regarded as gravely as it was in 1929.
In the case of Sinclair v Gogarty (1937), the judgment was worded in equivocal terms, but it may be
inferred that part of the plaintiff’s claim which was upheld concerned the publication of an anonymous
song which suggested that the plaintiff may have charged high prices for his merchandise and then
spent his profits in seeking “new mistresses”. It would appear likely that such a remark would also not
attract the protection of the Courts now, in light of changed perspectives on matters concerning sexual
relationships.
Despite the absence of illegality (which would formerly have been present, and which was pleaded by
the Defendant), in the case of Reynolds v Malocco t/a “Patrick” (unreported, High Court, 11 December
1998), there was a successful application to prevent the publication of an article in which it was
suggested that the plaintiff was a practicing homosexual and it was held that in the appropriate
context, it was capable of having defamatory effect (where untrue). Despite the relatively recent date
of the judgment in the Reynolds case, there would appear to have been a significant increase in the
number of people who would not make any moral link between sexuality and respectability, there has
been an increase in legal rights and obligations attaching to same sex relationships, and without a
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specific context, it may be more difficult now, than it was in 1998 to make a case on a simple
suggestion that a person was homosexual.
However, a context in which sexual behavior would be capable of grounding a case in defamation
would be where it is linked to a sexual offence, or is linked to a particular individual who has a
particularly bad reputation. These contexts existed in the cases of Hill v Cork Examiner (2001) and
Watters v Irish Daily Star on Sunday (2010).
In Hill v Cork Examiner (2001) a photo was published of a criminal indicating that a prisoner was
incarcerated in wing of jail reserved for sex offenders when in fact the Plaintiff had been convicted of
assault. The Court held that the Defendant could put evidence of his actual conviction to jury in
mitigation. The Plaintiff was awarded €60,000.
In Watters v Irish Daily Star on Sunday (2010), The plaintiff was a serving prisoner in Arbour Hill
Prison for convictions contrary to the Child Trafficking and Pornography Act 1998. Materials published
were alleged to have contended that a “seedy” and “weird” relationship existed between a notorious
sex offender prisoner and the plaintiff, entailing that they had a bizarre and secretive relationship. The
applicant sought declarations pursuant to s. 28 Defamation Act 2009 that the defendant had published
false and defamatory statements and sought a correction order and prohibition of further publication
pursuant to ss. 30 and 33 of the Act of 2009. The defendant argued that the plaintiff had no reputation
that could be defamed in the eyes of right-thinking persons, as a person with child pornography
convictions. It was held by the Court that the plaintiff had voluntarily admitted guilt to serious offences
and had expressed remorse and contrition. He had made himself available for psychiatric evaluation
and psychological assessment. He had sought a place on a treatment programme and had sought
rehabilitation. Generally, admissions of guilt mandated mitigation in sentence. The applicant was
entitled to a declaratory order under s. 28(1) of the Act of 2009. A correction order followed. If the
parties could not agree on the content of the order then the Court had powers to direct publication of a
summary of the Court’s judgment. The applicant was further entitled to an order pursuant to s. 33 of
the Act of 2009 prohibiting the defendant from publishing further false and defamatory statements.
Conclusion
It may be argued in light of the foregoing cases which share a common theme of sexual impropriety,
that there may be considerable divergence in the outcomes of defamation cases, based upon the
changing standards of reasonable members of society. Case law may be said to be of limited
assistance in establishing whether or not a statement is defamatory owing to changes in social mores
and what the perspective of “reasonable members of society” would be; together with the fact that the
circumstances tend to vary widely from case to case.
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Question Two
Alan is the landlord of a commercial building that he has been trying to rent for some period of time,
unfortunately without success. Eventually he leased the building to the ‘Children of the Stars’, an
organization which believes that humans are directly descended from aliens. They believe that they
have a destiny to notify their alien ancestors when the human race is ready to return to their planet of
origin.
Apparently the Children of the Stars do this through ritual chanting between sunrise and sunset at predetermined times during that period, although these times vary from day to day depending on the
alignment of the stars. The aim of this chanting, which is an integral element of their belief, is to attract
the attention of their ancestors back to Earth. Although the ‘Children of the Stars’ have told Alan all
about this, he does not particularly care so long as they pay their rent.
Darlene owns a coffee shop next door to Alan’s building and is finding that business is being severely
affected because at times the chanting can be quite loud and people have told her that they cannot
enjoy their coffee as a result of it.
Advise Darlene as to whether she has any action against either Alan or Children of the Stars’ in
nuisance.
Answer Two
Private nuisance protects persons from unreasonable interference with rights related to ownership or
occupation of land. Private nuisance has been extended beyond protection of proprietary interests to
enjoyment of personal interests connected with the land.
In Hanrahan v Merck Sharpe and Dohme [1988], it was held that occupation of the premises is
sufficient to bring a claim for private nuisance in this jurisdiction. This differs from English position –
Hunters v Canary Wharf [1998] but was affirmed in Ireland, in the case of Molumby v Kearns [1999].
Molumby v Kearns concerned gates at an industrial estate, which had been widened resulting in
increased traffic causing noise and dust. The Court held that occupation of premises sufficient to bring
a claim but came to compromise and imposed a restriction business including times of operation and
number and size of vehicles accessing the premises at certain times. Aileen would appear to have
locus standii by virtue of her residence in the property, and the issue of whether she is an owner or
tenant would not appear to be determinative.
Nuisance relates to acts or omissions for which the Defendant is legally responsible. Omissions may
include failure to alleviate natural hazards such as in Leakey v National Trust [1980] where the
Defendants topsoil had slipped onto Plaintiff’s property causing damage and threatening more. The
Court held that persons in control of property are liable in nuisance for failure to do all that is
reasonable in the circumstances to prevent or minimise the risk of foreseeable damage which they
knew or ought to have known encroaches or is about to encroach the neighbouring land.
Nuisance may also arise for a nuisance originally created by a third party if the Defendant knew or
ought to have known about the nuisance as this is an omission to alleviate a risk created by a third
party. In Sedliegh-Denfield v O’Callaghan [1940], a local authority employee installed a drainage pipe
in a ditch adjoining the Defendant’s land in a mistaken belief that they had consented to it. The pipe
became blocked causing flooding on the Plaintiff’s land. The Court held that the Defendant
landowners were liable to the Plaintiff for failing to undo the nuisance originally caused by the local
authority and held that they had failed to take reasonable steps to avert a hazard which was
reasonably foreseeable in the circumstances. In Harrington v Cork City Council [2005] the court
referred to Sedliegh-Denfield and held that the council had not taken all reasonable steps to alleviate
a nuisance and granted an injunction requiring defendants to do so in circumstances where there was
an unauthorised encampment on their land which was resulting in littering and trespassing. Thus,
having regard to the foregoing Alan is acutely aware of his tenants chanting. Rather, than adopting
any reasonable measures to alleviate the nuisance in the circumstances, Alan has wilfully ignored the
matter and is solely concerned with receiving rent.
3
In O’ Kane v Campbell (1985), the plaintiff complained about a 24-hour shop at a junction between a
busy thoroughfare and residential street. The Plaintiff sued for nuisance as a result of customers
lingering outside the shop in the early hours. The Court held that the Defendant was liable for ordinary
and natural conduct of people he attracts to the neighbourhood. In particular, the Court referred to the
usual requirement of an objective test to establish what magnitude of disruption constitutes a nuisance
and indicated that the objective test of reasonableness will be tempered by some elements of
subjectivity and, in particular, the age and circumstances of the Plaintiff. As Lynch J explained in
O’Kane v Campbell (1985), elderly people may sleep more lightly, but “are equally entitled to their
night’s sleep”.
Darlene must prove the form of damage in an action for nuisance. In O’ Kane v Campbell (1985), the
Plaintiff sued for nuisance as a result of customers lingering outside the shop in the early hours. In all
other nuisance cases apart from material damage (where liability is practically strict in nature), the
court assesses the impact of the Defendant’s activities on the Plaintiff to determine if it is
unreasonable. This can be contrasted with negligence law, which focuses on the unreasonableness of
the Defendant’s conduct before and during the event. The justification for the difference in approach is
due to the different aims of the torts and the underlying concern of nuisance law, which is to protect
rights to enjoyment of private property. There are a number of factors which will influence the Court in
assessing whether the impact is unreasonable. The Court will consider the magnitude of the damage,
the nature of the locality, and the Defendant’s motives or the social utility of the Defendant’s actions.
The magnitude of the harm concerns the intensity, duration and frequency of the nuisance. In
Patterson v Murphy the Court referred to the brief but intensive blasting operations and held that the
conduct amounted to nuisance. The activity need not be continuous, but may be intermittent and
amount to an unreasonable impact. In Halpin v Tara Mines [1976], the Court commented that
intermittent noises which are irregular and at unpredictable intervals and which are unusual in the
locality may be more disagreeable than other noises which form part of the norm such as traffic. The
Court stated that unusual noises may instil apprehension and anxiety in the mind of the listener
whereas other more familiar noises may be distinctive but disregarded. The magnitude of the harm
will be assessed according to an objective standard. The Plaintiff is expected to exhibit the fortitude
ordinarily expected amongst members of society and the Courts will not generally vindicate the
Plaintiff’s abnormal sensitivity to the nuisance. However, the objective test of reasonableness will be
tempered by some elements of subjectivity and, in particular, the age and circumstances of the
Plaintiff. As Lynch J explained in O’Kane v Campbell (1985), elderly people may sleep more lightly,
but “are equally entitled to their night’s sleep”.
The nature of the exact locality may affect the analysis of the reasonableness of the impact. The law
must balance competing interests between use by the Plaintiff and Defendant of their respective
premises. The Court commented in Cavey v Ledbitter (1863) that the affairs of life in a dense
neighbourhood cannot be carried out without mutual sacrifices of comfort; and that, in all actions for
discomfort, the law must regard the principle of mutual adjustment. Clearly there will be different levels
of noise and intrusion in urban and rural areas and residential/commercial areas. The Courts tend to
engage in a detailed analysis and take account of the very specific locality where disturbance occurs.
In O’Kane v Campbell the Court stated that where a 24-hour shop is positioned adjacent to a
residential street, though also close to a busy thoroughfare, the part-residential nature of the locality
may still be relevant. In the case of Molumby v Kearns (1999) the Court had regard to both the
residential and industrial aspects of the relevant neighbourhood and reached a compromise to allow
the industrial estate to operate without excessive nuisance.
The social utility of the Defendant’s activity may also be relevant to assessing whether the impact is
unreasonable and therefore whether he created a nuisance. In Bellew v Cement Ltd (1948), the
Plaintiffs sought an injunction against quarry works but the Court refused the injunction and referred to
the facts that the materials were needed for urgent construction work throughout the county.
It appears that Darlene may have a cause of action against either/both Children of the Stars and Alan.
The Children of the Stars have caused the nuisance and interference in Darlene’s business. However,
Alan may also be held vicariously liable for the actions of his tenants. Vicarious liability is a distinct
4
form of liability whereby reason of the relationship between the wrongdoer (tenant) and landowner, the
law holds Alan liable to Darlene for the injury or loss caused by Children of the Stars. This means that
Alan may be held liable without proof of fault or wrongdoing on his part, although in some cases the
court will not impose vicarious liability and may find the Children of the Stars directly liable where it
concludes that the Defendant has breached a personal duty owed by him in the circumstances of the
case. Darlene may seek interlocutory relief in the short term, in order to halt the chanting of Children
of the Stars.Thereafter, Darlene may seek more permanent injunctive relief and/or damages.
5
Question Three
Sam, an old age pensioner, has become very distressed at the number of students from the local third
level college who are using his back garden as a shortcut to their lectures. He has put up several
signs up stating “Trespassers will be prosecuted!”, “Enter this property at your own risk!” and “Active
gun range: do not cross”. Unfortunately they are not having any effect and several have been torn
down by the students. Undeterred, Sam purchased an airsoft gun (a toy gun which fires small plastic
balls) as well as a laser dot sight, which when activated places a red laser dot on the target to ensure
accurate shooting.
Late one night, four students were crossing through Sam’s back garden when they were surprised to
hear Sam shout at them: “Stand still! One move and I will shoot you dead.” One of the students,
Laura, looked down to see a red laser dot on her chest. Panicked, Laura began to run, at which point
Sam aimed the rifle away from Laura and towards a tin can he had hung from a tree. He then fired the
small plastic pellet towards the tin can. When the pellet struck the tin can, Laura slipped and the pellet
ricocheted from the can hitting her in the eye.
Advise Laura as to whether she has an action for any intentional tort against Sam.
Answer Three
In light of the given facts, the issues which arise are whether Laura may have a cause of action for the
tort of trespass to person against Sam, and in particular it will be required to consider the torts of
assault and battery.
Assault in tort was defined in Collins v Wilcock as “an act which causes another person to apprehend
the infliction of immediate, unlawful, force on his person”. The force apprehended must be immediate
and the belief of contact, reasonable. However, the fact that the defendant was not actually in a
position to execute the threat is irrelevant, so long as the plaintiff’s belief was intact (per R v St.
George (1840)). In Bruce v Dyer the court held that the taking of active steps to block or obstruct
another would constitute an assault; however a passive obstruction may not be (per Innes v Wylie
(1844)).
While words themselves may constitute an assault where the result is apprehension of physical
impact; mere insults are not enough and additional words accompanying the threat may render
conduct harmless and prevent assault where those words make it clear that no physical contact will
occur. This was referred to in the case of Turberville v Savage (1669) where the Defendant who had
attacked the Plaintiff causing him to loose an eye, attempted to defend his actions by reference to
what he said was an assault against him by the Plaintiff who had placed his hand on his sword and
said: “If it were not assize time I would not take such language from you.” The Court held that the
action did not constitute an assault as the latter words were an indication that he did not in fact intend
to strike the Defendant.
Sam shouted at Laura’s to “[s]tand still! One move and I will shoot you dead.” The actions of Sam
pointing the gun at Laura, thereby blocking her exit, accompnanied by the threatening words shoot her
if she left, will most likely constitute an assault.
False imprisonment was described in Dullaghan v Hillen as the “unlawful and total restraint of the
personal liberty of another whether by constraining him or compelling him to go to a particular place or
confining him in a...private place or by detaining him against his will in a public place.” As was
established in Bird v Jones, the confinement must be complete, so that the plaintiff had no reasonable
means of escape. There is no requirement that force be used to detain the person, but obviously
where it is, it will be clear that the plaintiff had no reasonable means of escape. In Meering v Graham
White Aviation the defendant employer was held liable for false imprisonment, where the plaintiff
employee was held in a room with two security officers investigating suspected theft.
6
In the present case, it may be readily said that Sam’s threat to Laura of being shot if she attempted to
leave, constitutes a false imprisonment. In particular, it is evident that Sam intended on imprisoning
Laura, by virtue of the very fact that he discharges his gun as she attempts to flee.
Battery was defined in AG’s Reference No.6 as “the actual intended use of unlawful force to another
person without his consent or any other lawful excuse.” Battery relates to direct or indirect physical
contact with a person without consent or lawful authority. The actual content can be slight, and does
not have to amount to physical injury. Furthermore, there is no requirement of malice or hostility. In
the case of security persons exercising force, it has been held that such force must be minimal and
proportionate to the situation, and if the force is excessive or disproportionate, then it will amount to a
battery.
In Gibbons v Securicor, the plaintiff had been shouting and making gestures at the security staff in a
shopping centre, had refused to leave, and attempted to strike a security guard. The security staff
restrained him, detained him in an office and called the gardai. The court held that a degree of force
may be used to remove a person from a premises upon which they are trespassing, and furthermore
that a person can use reasonable force to defend themselves in response to an attempted assault or
battery. The court found that the actions of the security staff was justified in the circumstances.
The acts which could be considered a battery in this instance would be the firing of the pellet, albeit
away from Laura – ultimately injury her eye. Whilst it is accepted that Sam aimed the rifle away from
Laura and towards a tin can, the Court will have to consider whether this amounts to a lack of
intention on Sam’s part to injure Laura. Coupled with the fact that Sam threatened to shoot Laura and
aimed the laser dot at her chest, the Court will likely take a dim view of Sam’s actions.
Whilst defence of property is a theoretical defence in respect of land, it is required to be reasonably
justified and on the facts of the present case it does not appear to be so, as Sam’ss actions were not
intended to protect his land, and his primary action should have been directed toward asking Laura
and her friends to leave, rather than forcing her to stay in the circumstances.
In light of the foregoing, it would appear that Laura would have the requisite grounds to bring an action
in tort for assault, battery and false imprisonment.
7
Question Four
Weed DAC was a natural herbal remedy company which has recently been taken over by Thermo
Drugs DAC, a multinational drug company. Weed DAC’s largest selling product was “Head Banging
Spacer” – a small blue pill which contained a potent caffeine extract designed to give an energy boost
to those who take it. Thermo Drugs however does not believe that this is a suitable name for any of its
products and has recently moved to rename “Head Banging Spacer” to “PowerZoom” with completely
redesigned packaging which is not in the slightest bit similar to “Head Banging Spacer” but which is
more in keeping with thermos Drugs’ ethos and branding policy.
However, market research has suggested that it would be beneficial to retain some reference to the
old brand name and s, in small print, the phrase “formerly sold as Head Banging Spacer” has been
included on the packet.
Crack DAC, a rival to Weed DAC, has decided to take advantage of this and is now selling its own
product using the name “Dead Banging Spacer” and packaging that it is only slightly different to that of
the original “Head banging Spacer” packaging. It contains the following phrase in small print “not
connected to PowerZoom or any related product.”
Advise Thermo Drugs if they have any action in passing off against Crack DAC.
Answer Four
The tort of passing off protects products and the provision of services where a Plaintiff has generated
goodwill in a product and the Defendant has misrepresented his goods as those of the Plaintiff. The
traditional focus of passing off is on whether the consuming public has been, or will be confused by
the similarities between products and whether the Plaintiff has suffered, or will suffer loss to custom or
goodwill as a result of associations being drawn between the Plaintiff and Defendant. The law does
not require strict proof of deception or misrepresentation by the Defendant but rather the Courts will
infer deliberate deception or misrepresentation where the similarities are overwhelming. The tort of
passing off is very broad in scope and it encompasses similarities in product name, design, style, or
even ad campaign. A high similarity in packaging or design may be sufficient to establish a passing
off, even though different names are used, such as ‘Polycell’ and ‘Clingcell’ in Polycell Products v
O’Carroll et al [1959] and ‘Cottage Creams’ and ‘College Creams’ in United Biscuits v Irish Biscuits
[1971]
The traditional proofs required to establish a passing off were:
1. Plaintiff has generated goodwill in the mark, design, or get-up of his product;
2. Defendant has misrepresented his goods as the Plaintiff’s, and
Damage has resulted or is likely to result.
In modern jurisprudence the proofs are recognised as:
1. Misrepresentation (whether intentional or not),
2. made by a trader in a course of a trade common to the Plaintiff, and
3. directed to prospective customers of his, or ultimate consumers of goods or services supplied
by him,
4. which is calculated to injure the business or goodwill of another trader and
5. which cause
These factors can be distilled into four central issues which concern the Courts.
•
•
•
•
Established commercial goodwill and reputation
Consumer confusion
Common course of trade
Damage or loss
8
The primary concern of the question posed is the question of consumer confusion, in relation to which
some of the jurisprudence will be set out hereunder.
The test for misrepresentation was recently set out in the Supreme Court by MacMenamin J in
McCambridge Ltd v Joseph Brennan Bakeries [2012], in which the Court indicated that for the
threshold to be met, it is sufficient that a defendant represents its goods in such a way that it is a
reasonably foreseeable consequence that the claimant's business or goodwill will be damaged and
that proof of intention to deceive is not required. This approach demonstrates a considerable relaxing
of the rule which was discernible in cases such as BV v J Townsend & Sons (Hull) Ltd [1979].
MacMenamin J., in the McCambridge Ltd case, went on to state that a claimant may prove
misrepresentation by calling evidence that the relevant public were, in fact confused, but may also
succeed in a case where there is no such evidence. The overall impact of the get up is the litmus test,
as well as the length of time the conduct complained of has been going on. It will not be [an] answer to
a complaint of misrepresentation to contend that an observant person who made a careful
examination, or who compared both products side by side, would not be misled. The test is, rather,
the impression likely to be produced, on the likely customer, taking into account customer perception
and imperfect recollection.
Of course, if an intention can be demonstrated, this will be in the Plaintiff’s favour. In the earlier
Supreme Court decision of C & A Modes v C & A (Waterford) Ltd [1976] Henchy J stated that, while
intention to deceive is not the essence of the action, it "shows that the conduct complained of was in
fact likely to deceive -which goes to the gist of the action for passing off".
It seems clear from the foregoing then that what will inform whether a case will be successful or not is
not so much the intention of the Defendant, but the risk of consumer confusion.
In the present case, there is no clear evidence of Crack DAC’s intention to copy Thermo Drugs DAC,
but there is evidence that the product was branded after Weed DAC/ Thermo Drugs DAC were
already trading. On the facts, the differences do not appear to be prominent enough for many
consumers. Thermo Drugs DAC would thus have a clear evidential basis for claiming that a
‘misrepresentation’ has occurred.
Insofar as Crack DAC may claim that using a similarly named product “Dead Banging Space”, a
product/company cannot market a product if, by doing so, it is deliberately trading on the reputation of
the Plaintiff. This was referred to in the case of O’Neills International Sports Co v O’Neills Footwear
Dryer (1997). In Jameson v Irish Distillers (1900), the Plaintiff was the well-known whiskey producers,
John Jameson & Son. The Defendants sold whiskey under the name of ‘William Jameson & Co’ but,
in an obvious attempt to salvage a failing business, they changed the name of their whiskey to
‘Jameson’s Whisky’. The Court held that this constituted passing-off, since the name had become so
associated with the Plaintiff’s by the public that to allow the Defendants to use it without any qualifying
words would lead the public into confusion and cause damage to the Plaintiffs.
The Plaintiff must satisfy the requirement that the purchasing public is likely to be confused by the
Plaintiff’s and Defendant’s products. The rationale is that if the public is not likely to confuse the two,
then the Plaintiff will not suffer damage to the goodwill. The misrepresentation and resultant consumer
confusion may take many forms – similar name, packaging, design, advertising etc. In ascertaining
consumer confusion, the courts will consider the context in which the consumer would view and
purchase the product.
For most products the appropriate test is that of the ‘casual unwary shopper’. In Reckitt Colman v
Borden [1990] The is known as the ‘Jiff Lemon’ case and the court concluded that the average
supermarket shopper upon seeing the Defendant’s yellow lemon-shaped plastic container with green
leaf-like tag would instantly assume it to be the Plaintiff’s and drop it into the shopping trolley without
scrutinising the product to see the name ‘realemon’ indented into it.
In SmithKline Beecham v Antigen Pharmaceuticals [1999] the Plaintiff’s arguments that the
Defendant’s ‘Solfen’ was confusingly similar to the Plaintiff’s ‘Solpadene’ was weakened by the fact
that in most cases an experienced pharmacist would be locating the product for the shopper.
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In McCambridge Limited v Joseph Brennan Bakeries (2012) concerned an appeal to the Supreme
Court by the Defendant against injunctive relief granted to the Plaintiff by the High Court. The product
in question was wholemeal bread, and the Appellants claimed inter alia that the High Court used an
incorrect test in referring to the perspective of a “careless shopper” rather than a “reasonable
shopper”. It was also contended that the features that were similar were generic rather than unique;
and that there was no intention to imitate the McCambridge product. The appeal failed on the basis
that the Plaintiff/Respondent could show actual damage, albeit that they were only required to show
damage to their goodwill and not actual or potential diversion of business, and the High Court judge
had carried out a sufficient analysis of whether there was a potential for confusion by assessing nine
“heads of similarity”. When read as a whole, the High Court had in fact applied the standard of a
reasonably prudent shopper who is not in any particular hurry, and is neither overly scrupulous nor
dilatory, and who enters the shop with a wish to purchase a loaf of the McCambridge product. The
Court heard the evidence of eleven witnesses in that regard. Finally it was held that it was possible for
individually generic features to become unique or distinguishing when used together, and that this had
occurred in this case.
ln United Biscuits Ltd v Irish Biscuits Ltd," the plaintiff company, who manufactured biscuits called
"Cottage Creams", claimed that the defendant company, who manufactured biscuits called "College
Creams", was guilty of passing off. The packages in which the biscuits were sold to the public were
entirely different in design and colour. The biscuits were, however, similar to each other.
Allergan Inc v Ocean Healthcare Ltd (2008) concerned the use by the defendants of “BOTOINA: no
more wrinkles”. The plaintiff’s alleged that the use of such constituted trademark infringement and
passing off. McGovern J held that the use of the mark was “to enable the defendant to ‘piggy back’ on
the goodwill” of the plaintiff. The use of BOTOINA caused confusion and would be likely “to mislead
the public into believing it is connected in some way with BOTOX”.
In the present case, it appears that the look and name of Crack DAC’s product is very similar to
Thermo Drugs DAC, formerly trading as Weed DAC. The fact that they are both selling caffeine pills is
also significant. Notably, the packaging is slightly different to the original “Head Banging Spacer”
packate and it contains the following phrase in small print “not connected to Power Zoom or any
related product.” Thermo Drugs DAC ought to show that these differences are not prominent enough
for many consumers, if they can also .
The tort of passing off traditionally required that the plaintiff establish the act is ‘calculated to injure the
business or goodwill of another trader’. This appears to a requirement which has lost prominence in
subsequent jurisprudence, and the Courts have tended instead to look at the likelihood of there being
confusion among the consuming public. Thermo Drugs DAC must adduce some evidence in that
regard, if they wish to succeed in instituting proceedings pursuant to the tort of “passing off”.
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Question Five
CrazyPlayTown owns and operates a crazy golf facility, which is divided into two distinct zones. There
is a general zone which is designed for family outings and a specialist zone which is adult only. The
adult only zone is a demanding course which requires a lot of effort and also places individuals at a
degree of hazard and requires the wearing of safety equipment, specifically a helmet and padded
clothing to the chest and legs.
There is a 3 meter high wall that separates the two zones and prevents crossing from one zone to
another. However, at certain points along the wall, it drops to 1.5 metres but that is normally at points
where the employees can observe what is happening.
Max and Amelia are two teenagers who purchased tickets to enter the general zone only and when
they thought no one was looking, they jumped over the lowest part of the wall and began playing in
the adult zone. Subsequently Max and Amelia suffered injuries while playing the adult course, injuries
which would have been avoided if they were over 21 and wearing the protective clothing.
Advise CrazyPlayTown of any potential liability in tort as occupiers of the facility arising from these
facts.
Answer Five
CrazyPlayTown ought to consider any potential liability via the tort of negligence and/or the Occupiers
Liability Act 1995.
The Occupiers Liability Act 1995 governs recovery for injury/damage suffered by an entrant as a result
of the dangerous state of an occupier’s premises. There are a number of important definitions
contained in the Act, that govern the sphere of liability. In particular it will be important to identify what
kind of entrants Max and Amelia were for the purposes of establishing whether a duty of care was
breached in respect of them.
In the premises, the primary question at issue is whether there was such a breach of the duty of care,
and in order to consider that question, the differing duties owed to differing categories of entrant need
to be considered in detail.
There are differing types of entrant who are categorised under the 1995 Act, and differing types of
obligations that are owed in respect of them. They are visitors, recreational users and trespassers.
Visitors
Visitors are defined under s 2 of the 1995 Act. They are entrants who are present by the permission or
invitation of the occupier or his family or a person ordinarily resident on the premises or an entrant
present for social reasons. The definition of a visitor also includes entrants as of right and entrants by
virtue of contract. In summary, lawful entrants are visitors, whether they are present for social or
commercial purposes. Eoin Quill notes that there is a distinction between visitors and recreational
users where social visitors are persons whose presence is desired by the occupier (or the occupier’s
family), whereas recreational users are those whose presence is tolerated.
Under s 3 of the Act the occupier owes a “common duty of care” to visitors, defined as the duty “to
take such care as is reasonable in all the circumstances ... to ensure that a visitor to the premises
does not suffer injury or damage by reason of any danger existing thereon”. The Act refers to two
factors to determine a “reasonable standard of care”: The definition emphasises self-responsibility and
the duty of control and supervision in certain circumstances. Accordingly, contributory negligence on
the Plaintiff’s part provides the Defendant with a defence, as does any contribution to the injury by
another person in control such as a parent or school supervisor.
The duty owed by occupiers to visitors is not an absolute duty.
An instructive case concerning a visitor is Newman v. Cogan (2012). The Plaintiff was visited the
defendants' home, and their son had tripped and shattered a glass panel in a door which glass to
pierce the Plaintiff's right eye leading to its loss. She now claimed the defendants had been negligent
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in the choice of glass panel which they had installed themselves. It was held in the High Court per
O'Neill J, that the standard of work by a householder could not be expected to be of the same
standard as a professional tradesman. In the instant case, the Court was satisfied the panel had been
installed competently. Whilst expert evidence suggested a tradesman would not have installed the
particular type of panel, the evidence did not suggest a householder would reasonably believe the
panel was unsuitable. The plaintiff's claim was dismissed.
Liability was also not imposed in the case of Heaves v Westmeath County Council (2001) in which the
Plaintiff slipped on uneven steps on the Defendant’s premises which were partially covered with moss.
The Court held that occupier had an appropriate system of cleaning the steps and, in fact, the
gardener took expert advice to reduce the moss problem as much as possible. The Court held the
Defendant took reasonable care and there was no breach of duty to the Plaintiff.
A case in which contributory negligence reduced liability considerably as Vega v Cullen (2005) in
which defendant was carrying out some repairs to a roof on his house and for that purpose had, for
access purposes to the roof, left a ladder leaning against the wall of the building in question, but at an
angle of 45 degrees, which an expert in the case opined was an excessive angle from a safety point
of view. In addition this ladder was standing unevenly on the ground, in as much as one foot of the
ladder was on a concrete surface at the side of the house and the other leg was on a gravel and earth
surface which was slightly lower than the concrete surface. This created some instability. The plaintiff,
an adult man of about 55 years of age at the time, ascended the ladder in order to have a
conversation with the defendant who was on his roof. As he began to descend the ladder moved to
the right, causing the plaintiff to fall to the ground. The High Court held that the plaintiff was present on
the defendant’s property as a social guest. The Court reasoned that there is no meaningful distinction
to be drawn between the common law duty of care and the statutory duty of care under the Occupier’s
Liability Act, 1995. The Court stated that this is not the case of a child, or other person under some
disability, who could not be expected to anticipate that the ladder might not be safe to ascend and
descend. The forty-five degree angle at which the ladder was leaning was something clearly visible to
the plaintiff, and it ought to have been obvious to the plaintiff that the left foot of the ladder was on a
gravel and earth surface which was somewhat lower than the right leg on the concrete surface. He
ought to have foreseen some instability and risk attaching to his ascent and descent of the ladder. The
Court thus measured the extent of contributory negligence to be 30 percent.
Recreational Users
A recreational user is defined in the Act as an entrant who is present with or without permission or
implied invitation free of charge (not counting a reasonable charge for the cost of providing vehicle
parking facilities) for the purpose of engaging in a recreational activity (and who does not meet the
definition of a “visitor” set out above). Recreational activity is defined to include any such activity
conducted in the open air including any sporting activity, scientific research and nature study and the
exploration of caves, sites, and buildings of historical, architectural, traditional, artistic, archaeological
or scientific importance.
Under s 4, the occupier owes a restricted duty of care to recreational users to avoid injuring them
intentionally and to avoid acting with reckless disregard for their safety. Section 4(2) provides that in
determining whether or not an occupier has so acted with reckless disregard, regard shall be had to
all the circumstances of the case and a number of factors which are listed in s 4(2) and include the
nature of the danger, character of premises, conduct of entrant, warnings and supervision of entrant. It
is not clear how these factors relate to each other and which should be weighted.
An example in case law of the duty owed to recreational users is Weir Rodgers v SF Trust Ltd (2005).
The Plaintiff sued the Defendant occupier of a local beauty spot in Donegal claiming damages under
the 1995 Act for significant personal injuries sustained by her after falling down a cliff face. She had
walked to the headland with friends after passing through a broken-down fence, and had sat there to
admire the sunset. Upon getting up to leave, she had lost her footing and tumbled down. The Plaintiff
argued that the sheer drop of the cliff had been hidden from view and therefore that the danger had
not been apparent. The Defendants argued that they had not behaved with “reckless disregard” and
that the risk of falling was self-evident and had required neither fencing nor warning notice. The High
Court found for the Plaintiff and held an accident of this type had been reasonably foreseeable. The
Plaintiff’s award was reduced by only 25 percent to reflect her contributory negligence. This decision
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was overturned by the SC. It was held that the HC had erred by subjecting the Defendant to
negligence or fault standards, and should have limited itself to determining whether the Defendant had
acted with “reckless disregard”. The court favoured an objective test of ‘reckless disregard’ and
rejected the argument that the Defendant should have erected fencing or warning notices. The Court
stated that there are certain risks in outdoors activities and the Plaintiff should have appreciated
dangers inherent in sitting along the edge of a steep embankment adjacent to sea. Finally, the Court
held that there may be exceptional unusual or dangerous qualities to certain lands which would
require an occupier to erect warning notices but in this case the danger inherent in the act must have
been obvious to the Plaintiff so the Defendant could not be held to have acted with reckless disregard
in not putting up warning signs.
Trespassers
Trespassers are defined as entrants who are not visitors or recreational users. In summary they are
persons who do not have permission or authority to be present on those lands and are not there for
recreational purpose. The classification of an entrant as a trespasser as opposed to a visitor will have
a significant impact.
In a case which mirrors the facts of Vega v Cullen, in that it concerned an unsafe ladder, in Williams v
TP Wallace Construction Ltd (2002) the Plaintiff was the general manager of a firm hired by the
Defendant construction company to install guttering in a shopping centre. On the day in question he
arrived unannounced at the site to verify that the guttering was going well. A number of site workers
were on a break and the architect was not present but he proceeded to inspect the site and fell from a
ladder. He sued the Defendants as occupiers, claiming that the ladder should have been tied to the
scaffolding to prevent an accident of this nature. The Court held he was not a ‘visitor’ for the purposes
of the 1995 Act, since he was not there by invitation or arrangement, and so he was categorically a
‘trespasser’ to whom the occupier owed a more minimal duty not to act in reckless disregard. The
court found that the failure to tie the ladder to the scaffolding was not an act of reckless disregard.
Under s 4, the occupier owes the same duty of care to trespassers as he owes to recreational users –
namely to avoid injuring them intentionally and to avoid acting with reckless disregard for their safety.
Section 4(2) provides that in determining whether or not an occupier has so acted with reckless
disregard towards a trespasser, regard shall be had to all the circumstances of the case and a number
of factors which are listed in s 4(2) and states that regard shall be had to all the circumstances of the
case and a number of factors which include the nature of the danger, character of the premises, the
conduct of the entrant, warnings and, where relevant, the supervision of the entrant. In particular it
refers to:
a. whether the occupier knew or had reasonable grounds for believing that a
danger existed on the premises;
b. whether the occupier knew or had reasonable grounds for believing that the
person and, in the case of damage, property of the person, was or was likely to be
on the premises;
c. whether the occupier knew or had reasonable grounds for believing that the
person or property of the person was in, or was likely to be in, the vicinity of the
place where the danger existed;
d. whether the danger was one against which, in all the circumstances, the
occupier might reasonably be expected to provide protection for the person and
property of the person;
e. the burden on the occupier of eliminating the danger or of protecting the person
and property of the person from the danger, taking into account the difficulty,
expense or impracticability, having regard to the character of the premises and the
degree of the danger, of so doing;
f. the character of the premises including, in relation to premises of such a
character as to be likely to be used for recreational activity, the desirability of
maintaining the tradition of open access to premises of such a character for such
an activity;
g. the conduct of the person, and the care which he or she may reasonably be
expected to take for his or her own safety, while on the premises, having regard to
the extent of his or her knowledge thereof;
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h. the nature of any warning given by the occupier or another person of the danger;
and
i. whether or not the person was on the premises in the company of another person
and, if so, the extent of the supervision and control the latter person might
reasonably be expected to exercise over the other’s activities.
Given that these factors will weigh differently depending on whether the entrant is a trespasser or a
recreational user, there is in practical terms perhaps a lower obligation in respect of trespassers than
recreational users.
Section 4(3) provides that the occupier’s statutory duty does not extend to trespassers who enter the
premises for the purpose of committing an offence or, where present on the premises, commit an
offence. Such persons can only recover from the occupier when a court determines that recovery is
“in the interests of justice”.
At first glance, it is tempting to suggest that Max and Amelia were recreational users of the premises
because they were there for a purpose that was, at least in layman’s terms, recreational. However,
Kelly could not be regarded as a recreational user because she was there for what would be
categorised as ‘social’ reasons and purchased tickets for entry to the general zone. This then recalls
that the definition of a ‘visitor’ refers to entrants who are present by the permission or invitation of the
occupier, including contractual arrangement.
The difficulty arises when Max and Amelia climb over the general zone wall and enter the adult zone.
Neither Max nor Amelia had permission to enter the adult zone. It is perhaps, most likely, that Max
and Amelia are trespassers, which is defined as an entrant other than a visitor or a recreational user.
Importantly, if this is the case, then a lower standard of care is required in respect of them. In this
respect, it would have to be shown that CrazyPlayTown acted with ‘reckless disregard’ for their safety
by reference to the 3 meter high wall barring entry from zone to the other, and failing to provide
protective clothing to the teenagers in the adult zone. Whilst there are lower parts to the wall, these
low parts are in situ in order to facilitate the staff supervising the areas.
It would appear difficult for Max and Amelia to be able to successfully avoid the considerations of the
Court under section 4(2) of the Act, which would take into account the amount of responsibility they
ought to have taken for their own safety and the extent to which CrazyPlayTown could have expected
them to be in the vicinity of the danger. This appears to have been quite a risky and spontaneous
action on Max and Amelia’s part. Max and Amelia suffered injuries while playing the adult course,
injuries which would have been avoided if they were over 21 and wearing the protective clothing.
In the unlikely event that Max and Amelia successfully claim that they are visitors, they would enjoy a
right to a higher duty of care on CrazyPlayTown’s part. The Act requires an occupier “to take such
care as is reasonable in all the circumstances ... to ensure that a visitor to the premises does not
suffer injury or damage by reason of any danger existing thereon,” and specifically notes the care
which a visitor would be expected to take for their own safety, as part of that assessment. It would
appear that Max and Amelia may also struggle to demonstrate that even this higher standard was
breached in light of the fact that it would be difficult to suggest that it would be reasonable to anticipate
that someone would jump over a high wall, separating and prohibiting entry between the two zones.
In light of the foregoing, it is submitted that Max and Amelia are likely to be regarded as trespassers
and that in that context, CrazyPlayTown has not breached a duty of care to them. There is a remote
possibility of Max and Amelia meeting the definition of a visitor, however, even then, they would be
unlikely to be able to demonstrate that the consequent higher standard of care required had been
breached.
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Qustion Six
The imposition of vicarious liability requires that the act in question falls within the scope of
employment, but in highly skilled professions it is often difficult to delineate what that actually means.
Critically discuss this statement with reference to relevant case law.
Answer Six
The existence of control by the Defendant over the wrongdoer is the most frequent justification for
imposing vicarious liability. Wherever one party actually or potentially exercises control over the
activities of the wrongdoer, it is possible that the controller will be deemed legally responsible for injury
via vicarious liability. Vicarious liability is commonly imposed on employers for wrongs committed by
their employees in the course or scope of their employment. There are a number of reasons why the
Courts favour vicarious liability in the employment context, such as the fact that the employer benefits
from the acts of the employee and therefore should be responsible for harm arising from those acts,
the employer can take protective measures to prevent employees causing injury/damage and
employers can distribute their loss and are a better mark for damages. There are two distinct issues in
this area of vicarious liability.
1. Does a necessary relationship of employer/employee exist?
2. Did wrongdoing by the employee occur within the course/scope of that relationship?
In many areas of law the courts take a strict approach to the definition of employee but where the
issue is considered in the context of responsibility for injuries caused by a employee to a third party,
the courts employ a more flexible approach and favour a ‘control’-based test.
Walshe v Baileboro’ Co-Op & Grogan (1939) is a good example of a flexible approach. The Plaintiff
had been injured when struck by the worker’s horse and cart. The worker owned the horse and cart
himself, and was paid piece-meal. Held: Despite the strong indications of an independent contractor
working under a contract for services, the worker was deemed the servant or employee of the co-op,
and vicarious liability was imposed on the co-op.
In the case of Ready Mixed Concrete v Minister for Pensions & National Insurance (1968) the Court
referred to a mixed test to determine whether an individual is an employee. The Court emphasised the
issue of control but stated that personal service and additional features of the relationship should be
taken into account. In particular, the Court stated that employees generally must do the work
themselves and cannot delegate, whereas contractors are not necessarily required to do the work
personally and may delegate.
In Phelan v Coillte Teo (1993), the worker had arrived on site with his own tools; he was paid a
mileage allowance; and he had arranged with the Defendants not to avail of any holiday or sick or
pension rights, in return for which he was not taxed under the PAYE system as an employee. He
caused injury to a third party and the issue of vicarious liability was raised. The Court referred to the
appropriate test based on the issue of control and deemed that vicarious liability applied. Barr J
stated:
“It seems to me that where an employer and full-time employee decide to
structure their relationship in such a way that it is cost-effective for both, but in so
doing they do not interfere with the hallmark of a contract of services, it would be
quite unreal and also unjust for a court to hold in such circumstances that the
rights of an injured third party against the employer would be thereby
fundamentally altered to such an extent as to render the employer free from
vicarious liability which otherwise he would have had for the negligence of his
employee.”
Barr J stated that the court ought to look at the reality of situation between the worker and the person
who hired him. He went on to state that in determining whether one party ‘controlled’ the other, the
court was not limited to the control actually exercised by the employer on the facts of the case but
rather the control potentially exercisable by him. This decision has been criticised by some
commentators and it seems that the reference to ‘potential control’ is an artificial test.
15
A flexible approach was illustrated in the recent case of Castleisland Cattle Breeding v Min for Social
and Family Affairs (2004) IR. The issue was whether the Plaintiffs who provided artificial insemination
services were independent contractors or employees. The Supreme Court summarised some key
principles in the area:
• Contract terms are not determinative and real arrangement on day-to-day-basis must be
examined.
• Each case must be considered on particular facts but in general if one person is working for
another he is an employee and not an independent contractor.
• Degree of control is a factor but is not decisive and a person could be said to work for himself
where he provided premises, equipment, employed other people to assist in business and his
profit was dependent on the efficiency of business conducted by him
• On the facts a person who provided artificial insemination was self-assessed for tax purposes,
claimed allowance as a self-employed person, had own insurance, and was not entitled to a
pension from the Defendant. The Court concluded that these factors made it clear that the
individuals were independent contractors.
It is arguable that a more sophisticated test is required to deal with the employment status of
individuals and the test should consider actual control in terms of accountability for the performance,
organisational integration and how investment, risk, profit is divided between the parties. It is worth
noting that whilst the courts will adopt a flexible view of the ‘employee’ definition for the purposes of
vicarious liability, it will not do “violence to the well established characteristics” of the employeremployee relationship. This was stated by the Court in Carroll v Post National Lottery (1996) where it
was held that Lotto agents paid by commission did not constitute employees in the case. Where
vicarious liability is ruled out by reason of the worker’s status as an independent contractor, it may still
be possible to fix liability directly on an employer if he is found to be in breach of a personal duty of
care.
Employers can also be made vicariously liable under the Employment Equality Act 1998 for
discrimination or breaches of the provisions of the Act perpetrated by their employees. Section 15 of
the Act provides that:
15.— (1) Anything done by a person in the course of his or her employment shall,
in any proceedings brought under this Act, be treated for the purposes of this Act
as done also by that person’s employer, whether or not it was done with the
employer’s knowledge or approval. (2) Anything done by a person as agent for
another person, with the authority (whether express or implied and whether
precedent or subsequent) of that other person shall, in any proceedings brought
under this Act, be treated for the purposes of this Act as done also by that other
person. The section does, however, go on to provide for a defence; section 15.—
(3) says: “In proceedings brought under this Act against an employer in respect of
an act alleged to have been done by an employee of the employer, it shall be a
defence for the employer to prove that the employer took such steps as were
reasonably practicable to prevent the employee—(a) from doing that act, or(b) from
doing in the course of his or her employment acts of that description.” It should be
remembered that the section only applies to proceedings brought under the Act.
The Courts have stated that an employer will be vicariously liable for acts of an employee who acts
within the course or scope of his employment. The ‘course’ test is considerably broader than the
‘scope’ test. According to Lord Goff in Smith v Stages (1989): “...an employee is acting in the course
of his employment when he is doing what he is employed to do ... or anything which is reasonably
incidental to his employment.” The ‘scope’ test is more nebulous and focuses on whether the
employee acted within the parameters of the authority delegated to him by the employer. Thus any
instructions which the employer gave to the employee will be of critical importance but since the test
focuses on ‘authority’ and ‘delegation’, it has been criticised as inconsistent with the realities of
employment. The courts have not declared a fixed preference for one test over the other, though a
number of recent Irish decisions suggest that the ‘scope’ test may be preferable – particularly in cases
where the employee acted against express instructions given to him by the employer.
16
Whether or not the employee’s act was committed within the course or scope of employment will
depend upon the factual circumstances and the nature of the job. The time and place where the
incident occurred may be relevant. The imposition of vicarious liability requires that the act in question
falls within the scope of employment, but in highly skilled professions it is often difficult to delineate
what that actually means.
In Boyle v Ferguson (1911), a car-salesman took two women for a spin at 7pm on a Saturday evening
and had an accident, causing damage and injury. The Court held he acted in the ‘course of his
employment’ on the basis that the employer was paying for the petrol, his hours were deliberately
flexible, and his intentions were purely to interest the ladies in a purchase. Where, however, the
means by which the injury occurred is insufficiently connected with the employment, vicarious liability
will not be imposed.
In O’Connell v Bateman (1932) an employee borrowed a car from work and travelled to see his
parents. He had an accident resulting in injury and damage. No vicarious liability was assigned, as the
incident was unconnected with his employment.
An employer can also be held liable for the consequences of an employee failing to do their job, as
was recently held by the Supreme Court in Lynch v Binnacle t/a/ Cavan Co-op Mart (2011). The
Plaintiff worked as a cattle drover. He was herding cattle from pens and this was a three-person job.
Three drovers were working that day, but his two colleagues absented themselves to take care of their
own business at the market. Because he was acting alone, in order to open the gate, he had to enter
an individual pen and pass behind a bullock, and it kicked him the groin, causing injury.
The Court held that the actions of the other drovers in deserting their posts was negligent, that this
negligence caused the plaintiff’s injuries, and that the employer was hence vicariously liable. Fennelly
J. also found that the employer was under a non-delegable duty to provide a safework environment for
the plaintiff, an alternative basis for the same result. The Court reduced recovery by 33% as a result of
contributory negligence.
Notably, sections 10–11 Partnership Act 1890 create a statutory form of vicarious liability as between
the activity of partners and the firm. Under s 10, the firm is liable for loss and injury caused by any
partner acting in the ordinary course of the business of the firm. Under s 11, the firm is liable for loss
caused by a misapplication by a partner or the firm of money or property entrusted to them by a client.
Indeed, the most contentious issue in vicarious liability is where intentional wrongs are committed by
employees. Should liability be imposed on an employer for an employee’s deliberate wrongdoing of
which the employer had no knowledge? The nature of the wrong may have a bearing on the
reasoning used by the courts.
Assault and battery by employees gives rise to different issues than fraudulent abuse of authority.
Although McMahon & Binchy favour the ‘scope’ test, they propose that it not be applied too rigidly and
that it make allowance for the realities of the employment context, particularly in highly-skilled
professions. Eoin Quill favours an approach which appears to merge elements of the ‘course’ and
‘scope’ test and he stated that an act is within the course of employment where the wrongful act was
authorised by the employer or where the employee adopted a wrongful mode of doing some act
authorised by the employer. Despite many inconsistencies in the commentary and the case law, it
seems that the ‘scope’ test is likely to be adopted by the courts where the worker has committed an
intentional wrong extraneous to his duties towards his employer and the ‘course’ test is likely to be
adopted where the injury was accidental and not obviously inconsistent with the job he was doing for
the employer.
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Question Seven
ForkToast manufactures toasters. Their most recent product has been their “glass walled toaster”. It is
sold under the tagline: “watch as it browns!” Essentially this is a toaster which has glass paneled sides
which enable the customer to watch their toast until it is toasted to perfection. As this is a novel
technology, it comes with an extensive instruction booklet which reminds customers to ensure that
they regularly clean the glass panels with a specific non-abrasive cleaner as abrasive cleaners could
damage the glass.
It is hugely popular and many people have purchased it. However the instruction booklet has been
criticized as being too complex and requiring an exceptionally high standard of English. More recent
toasters have been shipped with a simplified instruction booklet that relies heavily on pictures to
illustrate how to use the product.
Elaina, for whom English is not her first language, had bought one of the early toasters. She enjoyed
using it but used a scouring pad to keep the glass clean. One day, the glass in the toaster shattered,
scarring her all over her face. It transpired that the scouring pad had over time weakened the glass
causing it to fail.
Advise Elaina if she has any action in tort law for a defective product
Answer Seven
ForkToast has obligations to consumers arising from their duty of care, statutory duty and contractual
duty. Despite the introduction of the Defective Products Act 1991, negligence remains a very
important avenue available to Elaina and other plaintiffs in these types of scenarios. As previously
stated, a purchaser may also bring a claim under the Defective Products Act 1991. This is a piece of
legislation which was introduced to regulate the specific area of defective products, as opposed to the
Sale of Goods Act which is much broader in its scope. In most cases, a Plaintiff will plead that a
Defendant has breached the 1991 Act and will also, plead negligence. Most often the Courts will
decide the issue in terms of negligence. Thirdly, where there is a contract of sale between the parties
the Sale of Goods and Supply of Services Act 1980 applies. This piece of legislation implies a number
of terms into a contract for the sale of goods which a purchaser can rely on such as a term that the
product complies with its description, that it is of satisfactory quality and that it is safe and fit for its
stated purpose. Where a manufacturer or producer has breached these terms or any other term of the
contract between the parties, a purchaser can sue for breach of contract.
The leading case in the area of negligent products is Donoghue v Stevenson (1932). Until Donoghue,
it was not clear whether the Plaintiff could pursue a claim in negligence against the party responsible
for the product defect where there was no contract between the two parties. A majority of the House of
Lords decided that liability could exist irrespective of contractual relationship or whether the product
was inherently dangerous. According to Lord Atkin, “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 the knowledge that the
absence of reasonable care in the preparation or putting up of the products will result in an injury to
the consumer’s life or property, owes a duty to the consumer to take that reasonable care.” Indeed,
the Irish High Court imposed similar liability on a manufacturer in Kirby v Burke & Holloway (1944) and
endorsed the view that a manufacturer owes a duty of care to the ultimate consumer.
Since Donoghue and Kirby, the duty of care has extended to embrace various parties involved in the
product chain including assemblers, installers and repairers. Whilst it appears from the facts
enounced that ForkToast manufacture the toasters, ForkToast ought to be aware that other parties
who exercised control over the condition of the product and its release into circulation or continuation
in circulation; and commercial entities dealing with products for economic gain will generally owe a
duty of care, also.
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It is clear that a toaster shall be considered a ‘product’. The toaster is arguably dangerous or defective
for a number of reasons: design defects, quality of workmanship defects and/or inherent dangers such
as flammability.
When the Defendant is found to owe a duty of care to a Plaintiff, he 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 againstwhich the Defendant’s conduct
will be legally assessed. The standard of care will depend on the product and the Courts will have
regard to the normal guiding criterion (probability of accident, gravity of injury, social utility of
Defendant’s conduct, burden of prevention/cost elimination). For example, in the context of clothing,
the Courts have discussed the duty on manufacturers to warn consumers and users of the nature of
the products and possible dangers. The Courts will consider the risk involved and the cost of
eliminating a risk and the standard of care may require a specific warning label in relation to certain
clothing.
In the case of O’Byrne v Gloucester (1988) the Court accepted evidence that the skirt worn by the
Plaintiff was highly flammable and had no warning labels attached. The Court held the Defendant
manufacturer liable in negligence for the injury suffered by the Plaintiff.
In Cassells v Marks & Spencers (2001), there were two warning tags on the garment (one stitched
onto the hem and one detachable label hanging on the garment). The Plaintiff’s experts argued that
the manufacturer should have used fire retardant on the garment as is used on nightwear. The
Defendant argued that it was entitled to differentiate between daywear and nightwear due to different
level of fire risk and, further, that there were other reasons for not using fire retardant such as skin
irritation, loss of comfort and increased cost. The Supreme Court found that the flammability label
stitched into the garment under the hem was sufficient warning. The Court also held that the
Defendant was entitled to take into account trade practice and public demand.
Thus, ForkToast ought to scrutinise whether it has acted reasonably in the circumstances by
implementing a complex instruction booklet and requiring purchasers to utilise an exceptionally high
standard of English when using the product. Notably, more recent toasters have been shipped with a
simplified instruction booklet that relies heavily on pictures to illustrate how to use the product. One
could construe this as ForkToast acknowleding the frailties and difficulties arising with its original
instruction manual. ForkToast failed to consider forwarding the updated, simplified manual to original
purchasers.
Ordinarily, causation can prove a difficult hurdle for Plaintiffs in the area of defective products. In
particular, the duty to warn cases have fared quite poorly: usually due to the Plaintiff’s inability to
establish causation – such as failure to prove that if a parent had seen the label the child would have
avoided contact with a fire. For example, in Duffy v Rooney & Dunnes Stores (1997), there was no
warning label on the clothing and the Plaintiff was burned as a result of contact with a domestic fire.
However, the Plaintiff failed to show causation. The Court held that the item of clothing would have
been bought and the child would have worn it even if a label had been attached.
It is clear that physical injury caused by a product is recoverable. Property damage is also recoverable
provided that the property is not the product itself. It has also been established that a Defendant is
liable for injury or damage caused by dangerous defective products.
Elaina ought to be aware that ForkToast may seek to assert that Elaina was contributorily negligent.
Section 34 (1) Civil Liability Act 196 provides that the Defendant’s liability is reduced proportionate to
the extent to which the Plaintiff contributed to injury or loss by failing to exercise reasonable care for
his own safety . The defence of contributory negligence is not limited to negligence disputes and s 2
provides that it may be invoked in any case of a wrong, whether a tort, or breach of contract, or
breach of trust, whether committed by the Defendant or third party for whom the Defendant is legally
responsible, and whether the wrong is intentional or negligent. The defence is subject to three
exceptions:
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Where it is not possible to establish different degrees of fault, liability is to be apportioned equally.
Where the Plaintiff is shown to have voluntarily waived his legal rights with respect to the acts
complained of, the Defendant is not liable (since waiver operates as an absolute defence to liability).
Where contract or statute expressly sets a limit to liability, the Plaintiff should not receive more than
that limit.
The assessment of contributory negligence involves the application of ordinary negligence rules in
that the Defendant must show negligence by the Plaintiff which caused some portion of
damage/injury. The objective standards of care applies and the Plaintiff must exercise a reasonable
degree of care for his/her own safety in the circumstances. This objective standard is adjusted in
certain contexts, such as contributory negligence by children, and contributory negligence as a
defence to breach of statutory duty. In Fleming v Kerry County Council (1955) the Court held that the
test for contributory negligence by a minor is what is reasonable having regard to age, mental
development and other circumstances. The issue was also discussed in the case of Hession v
Hession (2005). In this case, the Plaintiff’s father’s car began to move in the driveway because the
handbrake was off. The minor Plaintiff, who was 14 at the time, rushed over and tried to stop the car
but she was crushed between the car and the wall and sustained injury to her legs. The Court stated
that it was a foolish act by the girl but was an intuitive reaction and was not a deliberate exposure to
risk. The Court referred to the fact that she was 14 and held that there was no contributory
negligence.
This objective standard of contributory negligence is also adjusted where it is raised as a defence to
breach of statutory duty. In Kennedy v East Cork Foods (1973) the Court held that where the defence
is raised in a breach of statutory duty case, the Court will require evidence of downright carelessness
on the part of the Plaintiff to make a finding of contributory negligence.
The issue of causation also applies so that there must be a link between the Plaintiff’s acts of
contributory negligence and the resultant injury. In relation to damage, the damage must have
resulted from a particular risk to which the Plaintiff’s own conduct exposed him.
However, Elaina ought to be aware that it is possible that the injured party is more at fault for their
own injury than the defendant, but they can still recover for the portion of fault attributable to the
Defendant. In Donohoe v Killeen (2013), although it was held that on the balance of probabilities that
the plaintiff inadvertently broke a red light at a junction, she was able to recover 45% of her damages
owing to the fact that the Defenant should have reacted with better evasive action.
As previously mentioned, a purchaser may also bring a claim under the Defective Products Act 1991.
This is a piece of legislation which was introduced to regulate the specific area of defective products
as opposed to the Sale of Goods Act which is much broader in its scope. Section 2 of the 1991 Act
provides that the producer shall be liable in damages in tort for damage caused wholly or partly by a
defect in the product. Thus, liability under the Act is strict and not fault-based but this is offset by the
range of defences available under the Act which indirectly reintroduce elements of reasonableness.
Producer is widely defined to include manufacturers, importers and other persons involved in the
compilation and production of the product. For the purpose of the instant scenario, ForkToast ought to
be considered a ‘producer’ pursuant to the Act. Section 4 provides that the Plaintiff must prove that
the damage was caused by a defect in the product . Once the causal link is established liability under
the Act is strict and the Defendant bears the burden of proving he comes within any of the defences or
qualifications set out in the Act. However, the burden of proving causation remains with the Plaintiff in
all cases even where the Plaintiff cannot prove that the product caused the damage.
Defectiveness is defined in terms of safety. A product is “defective” where “it fails to provide the safety
which a person is entitled to expect, taking all the circumstances into account”. The ‘circumstances’ to
take into account, according to section 5, include:
1. The presentation of the product;
2. The use to which it could reasonably be put; and
3. The time when the product was put into circulation.
The Act takes a very pro-consumer approach and emphasises safety and consumer expectations.
However, s 5(2) specifies that the introduction subsequently of a better product does not mean a
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product is defective. Thus, ForkToast ought to be cognisant of the fact that section 5 attempts to
protect consumers but does not hamper product development and legitimate consumer expectations
are linked to time of circulation of product.
Pursuant to section 11 of the Statutes of Limitations 1957 and 1991, a consumer will have six years to
institute proceedings from the accrual of the cause of the negligent action, save where claiming for
personal injuries under the Defective Products Act 1991. ForkToast ought to be aware that the right to
sue, pursuant to the 1991 Act, expires three years from the date on which the cause of action accrued
or the date (if later) on which the Plaintiff became aware of the damage, the defect, and the identity of
the producer. There is also a 10-year limit from the date the producer first put the product into
circulation.
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Question Eight
The doctrine of res ipsa locquitur is an evidentiary rule that has been wrongly elevated to a legal
principle and as such imposes too harsh a burden on the defendant.
Critically discuss this statement with reference to relevant case law.
Answer Eight
The doctrine of Res Ipsa Loquiter means that “the acts speak for themselves”. In practice, it means
that the doctrine can be availed of only in exceptional circumstances. It permits the court to draw an
inference of negligence on the basis of circumstantial evidence of a highly suggestive nature.
While the inferences allowed by the balance of probabilities are logical inferences which have a
degree of certainty about them, res ipsa loquitur goes a step further in drawing inferences from facts
whose consequences are not as direct, but cumulatively suggest that negligence occurred. In Scott v
London & St. Katherines Dock (1865), the court held that where the event which causes injury to the
plaintiff “is shown to be under the management of the defendant or his servants, and the accident is
such as in the ordinary course of things does not happen if those who have the management use
proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that an
accident arose from want of care.” The effect of the doctrine therefore, is that the burden shifts to the
defendant to disprove the inference that it caused the accident by its want of care.
The exceptional nature of the doctrine was emphasized in Ireland by Henchy J in Hanrahan v Merck,
Sharpe & Dohme Ltd (1988), although some commentators are of the view that the judgment has
served to complicate the doctrine. The plaintiffs in that case claimed personal injury and damage to
property as a result of emissions from a nearby factory. Henchy J held that “where damage has been
caused to the plaintiff in circumstances in which such damage would not usually be caused without
negligence on the part of the defendant, the rule of res ipsa loquiter will allow the act relied on to be
evidence of negligence in the absence of proof by the Defendant that it occurred without want of due
care on his part.” He further stated that the onus of proof shifts to the defendant in such cases as it
would be “palpably unfair to require a plaintiff to prove something which is beyond his reach and which
is peculiarly within the range of the defendant’s capacity of proof.” The latter comments appeared to
limit the availability of the doctrine to situations where the plaintiff is unable to prove something which
the defendant is capable of proving.
The Supreme Court, in Lindsay v Mid Western HB (1993), applied the doctrine without reference to
the proposed additional requirements. This was a case in which a minor Plaintiff was admitted to
hospital to have her appendix removed. She went into a coma during the operation and never
recovered. The Court held the effect of res ipsa loquitur in the case was to require the Defendant to
show that he had exercised all reasonable care and therefore that he was not negligent. To impose a
more onerous burden on the Defendant would be unjust. The Defendant was therefore not required to
take the further step of proving on the balance of probabilities what had caused the Plaintiff’s injuries.
However, the subsequent SC decision in Rothwell v MIBI (2002) approved the formulation set forth in
Hanrahan and so it does appear to be something of a standing authority in the area. This was a case
taken against the MIBI seeking compensation for injuries in an accident when the Plaintiff’s car
skidded on an oil spill. The MIBI is bound to compensate road traffic casualties where the driver who
negligently caused an accident is untraced or unidentified. The Plaintiff was unable to prove that the
oil spill was left by a negligent driver thus his case depended on the application of the res ipsa loquitur
maxim to infer that the spill had been left by a negligent driver with no defence. The Court held that
maxim requires “not merely that a matter in respect of which the onus is to shift is within the exclusive
knowledge of the Defendant, but also that it is ‘peculiarly within the range of the Defendant’s capacity
of proof’.” The court found the maxim not to apply in a case of this nature where it could not be said
that knowledge of the source of the oil spill was a matter peculiarly within the knowledge of the
Defendant. It thus disapplied the doctrine to the facts as presented, but did not overrule the precedent.
It is clear that the applicability of the doctrine of res ipsa loquitur has been significantly limited by the
endorsement by Rothwell.
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In Doherty v Reynolds (2004) the Plaintiff attended hospital for treatment of heartburn and acid reflux.
He underwent an operation and emerged with a severe injury to his right shoulder which took six
years to improve. The Plaintiff relied on the doctrine of res ipsa loquitur. The High Court allowed the
Plaintiff’s claim applying the doctrine of res ipsa loquitur and concluded that the Defendant had failed
to rebut the inference of negligence. In the Supreme Court, the Court allowed the Defendant’s appeal.
The Court held that the trial judge had erred in applying the doctrine of res ipsa loquitur in
circumstances where the Plaintiff had not proved facts capable of raising the inference of negligence.
The Court also stated that even if the judge was correct in deciding that the doctrine applied, the
manner in which he applied it gave rise to difficulties. The SC noted that the Judge seem to conclude
that because some staff members could not recall specific details that they could not discharge the
burden of proof establishing that there was no negligence. The SC confirmed the approach that a
Defendant must be found negligent if they cannot explain how the injury occurred is inconsistent with
the Lindsay case.
In the more recent case of Presho v Doohan (2009), a resident of Tory island’s house disappeared
over several months (when he was not living there). The plaintiff sued the only JCB owner on the
island and the owners of the hotel who he alleged were using his land as a car park, and removed his
house to obtain an unobstructed view of the landscape. The JCB owner was also the principal of the
company who owned the hotel. It was established that the house was removed by mechanical means.
The owner of the JCB denied that he removed the dwelling from the site. Murphy J. noted the
academic criticism Henchy’s J.’s formulation in Hanrahan v Merck Sharp and Dohme and stated that
the doctrine is applicable to the circumstances where motivation, capacity and opportunity of the
defendants are considered. The court referred to the more traditional formulation of the doctrine which
concerned (a) the thing causing the injury being under the defendant's control and (b) accidents such
as the one befalling the plaintiff not ordinarily happening if those in control exercise due care. The
Court inferred from the facts and was satisfied that it was probable that the first defendant's JCB,
whether driven by that defendant or not, was the only "thing causing the injury," and allowed the
plaintiff to recover damages based on res ipsa loquitur and circumstantial evidence.
Conclusion
In light of the foregoing case law it may be said that the development of the doctrine in Irish law has
been a somewhat disjointed one, but its impact has been significant. While it has proved useful to
Plaintiffs who cannot prove negligence, the Supreme Court has sought, since the finding in Hanrahan,
to allow a Defendant rebut the presumption without ascertaining precisely how the damage in
question in fact occurred. The consequences of Hanrahan have been somewhat limited, as is clear
from the judgment in Presho, and while it might be excessive to suggest that this has allowed for
arbitrary decision-making, it certainly appears to be an area which has a disconcerting lack of clarity.
Thus, it is submitted that the doctrine of res ipsa locquitur has not been elevated to a legal principle
that imposes too harsh a burden on the defendant.
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Exam Paper – March 2018
Question One
Mary was sunbathing in her garden at home with her son, Michael (aged 17) and his friend Matthew
(also aged 17). Michael and Matthew were very excited as they were going to a concert in the capital
that evening. They became quite boisterous and were continually jostling with each other playing
touch rugby. Mary was increasingly getting annoyed with them as she was finding it difficult to read
her book. Moreover they would burst into loud singing every now and then. Mary would continually
shout back at them to behave or she would not take them to the concert. The boys began playing
catch the ball, throwing the rugby ball between them. A couple of times, Michael would throw the ball
so hard that it would go into the garden next door and the boys would have to climb over the wall and
retrieve it. After a while, Mary's neighbour called over and spoke with Mary, asking for her to stop the
boys from throwing the ball into her garden. Mary promised to sort it out. Mary asked Michael and
Matthew to avoid throwing the ball into the garden next door and instead to throw the ball lengthways
down the garden. The end of the garden adjoined a busy road but there were a number of high trees
which acted as a windbreak from the road.
Matthew was constantly throwing the ball so that it would hit off the trees. Mary told Matthew to stop
but he replied simply by saying "You are not the boss of me." At one point, Matthew threw the ball so
high it got caught in the branches of the trees. Matthew ran over to the tree and, despite Mary telling
him to stop, began to shake it vigorously to dislodge the ball. Suddenly, the ball went free falling into
the road and bounced off Harry's windscreen. Harry panicked, slammed on the brakes and skidded
into an adjacent wall.
Advise Mary as to whether she has any liability to Harry with respect to Matthew's actions
Answer One
Parents, schools and child-minders may be liable in negligence for injury caused to or by children in
their care. A parent or guardian may be liable in negligence when he knows or ought to know of a
particular dangerous propensity of his child and fails to protect others against injury likely to result
from it. In Gorley v Codd (1966), the parent had knowledge of previous assaults committed by the
child and was held liable. The standard of care expected will clearly depend on the circumstances of
the case. The age of the child and the child’s mental development will be relevant and the parent will
not be held liable if he/she has done all that is reasonable in the circumstances.
It is useful to examine the dicta in Lennon v McCarthy (1966). In that case, the Supreme Court stated
that the duty of a school teacher is “to take such care of his pupils as a careful father would of his
children”. One can easily draw an analogy for the purpose of this scenario and ascertain that Mary’s
duty is “is to take such care of Matthew as a careful father would of her own son, Michael.” Matthew
was in Mary’s care, as she was bringing both her son and Matthew to a concert, later that night.
In Maher v Presentation School Mullingar (2004), the Plaintiff sustained an injury to his eye when hit
by pencil shot by another pupil from a rubber band. The teacher had her back to the Plaintiff and was
talking to another teacher in the classroom at the time of the accident. There was a school rule of no
rubber bands in class. The High Court dismissed the Plaintiff’s claim and held that the appropriate
standard of care was that of prudent parents. The school was expected to be no more or less vigilant
that a parent in their own home. The Court stated that the school had a duty of care which involved a
degree of supervision appropriate to the needs of the situation and a breach of that duty would only
occur where there was an element of foreseeability. On the facts the Court concluded that the
Defendant could not have anticipated this incident and it was unreasonable to expect teachers to
search each pupil to ensure there were no rubber bands in bags or clothing.
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One must consider whether a prudent parent would have confiscated the ball. The Court may deem
Mary to have been aware of Matthew’s boisterous propensities prior to the incident i.e. the boys were
continually jostling with each other playing touch rugby, throwing the ball into the neighbour’s garden
and thereafter, throwing the ball against the trees. Moreover, Mary suggested that the boys ought to
throw the ball lengthways down the garden i.e. towards the trees. It was reasonably foreseeable that
the ball could become lodged in a tree. Furthermore, it could be contended that Mary ought to have
more carefully supervised and controlled Matthew, despite his mature age.
In Hession v Hession (2000), the Plaintiff’s father’s car began to move in the driveway because the
handbrake was off. The minor Plaintiff, who was 14 at the time, rushed over and tried to stop the car
but she was crushed between the car and the wall and sustained injury to her legs. The Court stated
that it was a foolish act by the girl but was an intuitive reaction and was not a deliberate exposure to
risk. The Court referred to the fact that she was 14 and held that there was no contributory negligence.
Whilst the Hession case considered the concept of ‘contributory negligence’, one can determine that
the Court may view Matthew’s shaking of the trees as an intuitve reaction and not a deliberate
dangerous or negligent act.
However, a more equitable deliberation of the facts would deem Mary to have acted vigilantly. She
continually shouted at the boys and told them to behave. When the boys threw the ball into Mary’s
neighbour’s garden, she asked them to throw the ball lengthways down the garden in order to avoid
further nusiance. Mary was aware that a number of high trees acted as a wind-break from the road.
Thereafter, Matthew was constantly throwing the ball so that it would hit off the trees. Mary told him to
stop. He refused. When Matthew threw the ball so high that it got caught in the trees, again, Mary told
him to stop shaking the trees.
It is contended that having regard to Matthew’s mature age and his refusal to obey Mary’s fervent and
constant orders to stop acting untoward, Mary acted in a similar manner to that of a vigilant and
prudent parent. Thus, it would neither be fair or equitable to impose a higher duty of care upon Mary.
Having regard to the particular circumstances of the case, it is likely that the Court would be reluctant
to impose liability on Mary for Matthew’s actions.
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Question Two
The limitation period in tort actions normally begins on the accrual of the cause of action. Critically
discuss how the law deals with those situations where the operation of this rule would lead to
hardship particularly with respect to latent damage.
Answer Two
Rules governing the accrual of causes of action and the limitation periods within which proceedings
must be brought are necessitated by the need to maintain some degree of certainty in the legal
system and to minimise prejudice caused to the parties by delay in litigating claims. The effect of the
limitation periods is that the Plaintiff must institute the proceedings within the relevant period or else
the claim is statute-barred. However, difficulties arise in situations where there is latent damage.
In Hegarty v O’Loughran (1990), the Plaintiff’s post-operative injuries did not manifest themselves
within the requisite three years and she instituted proceedings after three years. The Supreme Court
acknowledged that the Plaintiff’s cause of action accrued when the damage first occurred, not when
the injury manifested itself. Thus, the three-year time limit ran from when the operation was
performed and her claim was time-barred.
The Hegarty case highlighted a defect in the rules as they then existed, which was that
the 1957 Act extended time by means of a discoverability provision only in the context of fraud, and
had failed to provide a discoverability provision for cases where the Plaintiff’s injury or loss was of a
latent undetectable nature.
The legislature responded to the difficulty which arose in Hegarty by way of the
Statute of Limitations (Amendment) Act 1991, which outlines special discoverability rules for
personal injuries cases caused by negligence, nuisance or breach of the duty of care. Under the
1991 Act, where the cause of action is dependent on certain information which was not known by the
Plaintiff, time begins to run from the ‘date of knowledge’. The information which the Plaintiff needs to
know before time begins to run is set out by s 2 (1), namely:• that the person who was injured was in fact injured;
• that the injury was significant
• that the injury was attributable in whole or in part to the act or the omission which it
• is alleged constitutes the negligence, nuisance, or breach of duty;
• the identity of the Defendant; and
• the identity of the tortfeasor (if other than the Defendant) and additional facts which support
the bringing of the action against the Defendant.
Section 2(2) provides that knowledge may be imputed to the Plaintiff where he might
reasonably have been expected to acquire the information from facts observable or
ascertainable by him or with the help of a medical or other appropriate expert which it was
reasonable of him to consult. Section 2 (3) provides that knowledge will not be fixed on him where he
took all reasonable steps to attain or act on that advice.
In Boylan v Motor Distributors Ltd and Daimler Benz AG (1994), the Plaintiff injured his fingers in a
car door and instituted personal injury proceedings. He discovered the true cause of the accident at
an advanced stage in the proceedings, after obtaining an engineer’s report of the car-door which
showed it to have been defective by design. The Court held that the manner in which the Plaintiff’s
fingers had been injured did not suggest at an earlier stage the need to consider the designer of the
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door and therefore discovery of this fact would not be fixed at an earlier date than when he actually
found out. The Court held that to require Plaintiff to always seek expert advice before instituting
claims would be too onerous a requirement and this necessity may only become evident at a later
stage in some cases.
The Supreme Court re-examined the discoverability provisions in the context of medical negligence
in Gough v Neary (2003). The Defendant performed a hysterectomy on the Plaintiff on the 21
December 1998, when the Plaintiff was 21. The Defendant argued that time had started to run
against the Plaintiff from the date she knew that a hysterectomy had been performed by the
Defendant and therefore her claim was statute-barred. A majority of the Supreme Court rejected the
Defendant’s argument finding that time ran from the date when she first knew that the hysterectomy
had been unnecessary. This was the date when she knew enough facts that, upon elaboration later
by an expert, would constitute a cause of action.
Similarly, in Cunningham v Neary (2004), the Supreme Court held that time began to run against the
Plaintiff from the date the Plaintiff first knew that the hysterectomy had been unnecessary.
Notably, the legislature has not introduced discoverability rules for latent damage to property or for
pure economic loss which remain subject to the six-year torts time limit.
In Morgan v Park Developments (1983), Carroll J sought to imply discoverability criteria into the 1957
Act on the basis that without them the Act infringed the Plaintiff’s constitutional rights to enjoyment of
property rights. The reasoning was criticised by the Supreme Court in Hegarty, and the resulting
situation is clearly that non-personal injury suits do not currently benefit from any discoverability rules
beyond fraudulent concealment under s 71.
Although property cases do not benefit from discoverability provisions, the courts tend to take a proPlaintiff approach to the issue of accrual date where the defect in the building was latent and
undiscoverable prior to actual discovery. This was evident in O’Donnell v Kilsaran Concrete Ltd
(2001). Herbert J approved Pirelli v Oscar Faber and Partners (a Firm) (HL), where Lord Fraser of
Tullybelton said:
“There is an element of confusion between damage to the Plaintiff’s body and
latent defect in the foundations of a building. Unless the defect is very gross it may
never lead to any damage at all to the building. It would be analogous to a
predisposition or natural weakness in the human body which may never develop
into disease or injury. The Plaintiff’s cause of action will not accrue until damage
occurs, which will commonly consist of cracks coming into existence as a result of
the defect even though the cracks or the defect may be undiscovered and
undiscoverable.”
The Court concluded that the time began to run when the damage manifested itself which was 1998.
However, it may be difficult to ascertain when damage occurred, particularly in cases where
negligent advice is given and tangible injury doesn’t occur until some time in the future.
In conclusion, the special discoverability rules contained within the 1991 Act seek to alleviate the
hardships that arise for latent damage in personal injuries cases caused by negligence, nuisance or
breach of the duty of care. However, property cases are not afforded the same latitude. The
differential treatment between personal injuries actions and property cases is clearly to maintain
some degree of certainty in the legal system and to minimise prejudice caused to the parties by
delay in litigating claims in respect of damaged property.
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Question Three
Wristlnfo Ltd manufactures a wristwatch which can connect to any mobile phone and enables the
user to make calls, send and receive text messages and so on. Its unique feature is that it can
connect to any phone or Other Bluetooth device automatically. For example, it can connect to
laptops, smart televisions and so on. In order to do this it requires a powerful microchip which has a
tendency to operate at relatively high temperatures. In fact, shortly after Wristlnfo launched the
product onto the marketplace, product testing at their research laboratory discovered that if the
wristwatch were operated for 24 hours continuously, the microchip could burst into flames causing a
fire. Initially management at the company thought that the only solution was to recall all the
wristwatches sold. However, the Chief Financial Officer (CFO) of Wristlnfo Ltd produced figures that
established less than 10% of users used their watch for periods in excess of 18 hours per day and in
any event, without being plugged in the battery would fail on average at around 22 hours. Finally,
even if the microchip were to burst into flames, the casing of the watch would contain the fire,
resulting in little damage.
The CFO recommended however that in the future the instruction booklet for the watch should
provide a warning not to use the watch for more than 18 hours within every 24 hour period. This
would however take 30 days to implement by which time a further 10,000 watches would have been
sold. However this could be counteracted by making immediate changes to the online instructions
booklets.
Advise Wristlnfo Ltd as to their potential liability in tort, if any, for defective products based on these
facts.
Answer Three
Wrist Info has obligations to consumers arising from their duty of care, statutory duty and contractual
duty. Despite the introduction of the Defective Products Act 1991, negligence remains a very
important avenue available to Plaintiffs in these types of scenarios. As previously stated, a purchaser
may also bring a claim under the Defective Products Act 1991. This is a piece of legislation which
was introduced to regulate the specific area of defective products, as opposed to the Sale of Goods
Act which is much broader in its scope. In most cases, a Plaintiff will plead that a Defendant has
breached the 1991 Act and will also, plead negligence. Most often the Courts will decide the issue in
terms of negligence. Thirdly, where there is a contract of sale between the parties the Sale of Goods
and Supply of Services Act 1980 applies. This piece of legislation implies a number of terms into a
contract for the sale of goods which a purchaser can rely on such as a term that the product
complies with its description, that it is of satisfactory quality and that it is safe and fit for its stated
purpose. Where a manufacturer or producer has breached these terms or any other term of the
contract between the parties, a purchaser can sue for breach of contract.
The leading case in the area of negligent products is Donoghue v Stevenson (1932). Until
Donoghue, it was not clear whether the Plaintiff could pursue a claim in negligence against the party
responsible for the product defect where there was no contract between the two parties. A majority of
the House of Lords decided that liability could exist irrespective of contractual relationship or whether
the product was inherently dangerous. According to Lord Atkin, “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 the
knowledge that the absence of reasonable care in the preparation or putting up of the products will
result in an injury to the consumer’s life or property, owes a duty to the consumer to take that
reasonable care.” Indeed, the Irish High Court imposed similar liability on a manufacturer in Kirby v
Burke & Holloway (1944) and endorsed the view that a manufacturer owes a duty of care to the
ultimate consumer.
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Since Donoghue and Kirby, the duty of care has extended to embrace various parties involved in the
product chain including assemblers, installers and repairers. Whilst it appears from the facts
enounced that Wristinfo Ltd. manufacture and test the watch, Wristinfo Ltd. ought to be aware that
other parties who exercised control over the condition of the product and its release into circulation
or continuation in circulation; and commercial entities dealing with products for economic gain will
generally owe a duty of care, also.
Liability for dangerous/defective products may extend further than the end-user or consumer of the
product, and a duty of care may be owed to other third parties. The courts have avoided a
categorical approach to this issue but rely on the broad neighbourhood principles enunciated in
Donoghue. This broad approach has extended the sphere of potential Plaintiffs to include any users
of a product such as passengers in a car and also persons in physical proximity to product. Indeed,
having regard to the fact that Wristinfo Ltd. are aware that the microchip could bust into flames
causing a small fire, Wristinfo Ltd. may owe a significant duty of care to non-using, proximate third
parties. In Keegan v Owens (1953), the Plaintiff was a voluntary assistant helping with the operation
of boats and was not a user or customer. The Court held that the Defendant supplier had not
provided sufficient staff and could therefore have anticipated and expected the presence of
assistants provided by carnival owners.
It is clear that a wristwatch shall be considered a ‘product’. The wristwatch is arguably dangerous or
defective for a number of reasons: design defects, quality of workmanship defects and/or inherent
dangers such as flammability.
When the Defendant is found to owe a duty of care to a Plaintiff, he 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 againstwhich the
Defendant’s conduct will be legally assessed. The standard of care will depend on the product and
the Courts will have regard to the normal guiding criterion (probability of accident, gravity of injury,
social utility of Defendant’s conduct, burden of prevention/cost elimination). For example, in the
context of clothing, the Courts have discussed the duty on manufacturers to warn consumers and
users of the nature of the products and possible dangers. The Courts will consider the risk involved
and the cost of eliminating a risk and the standard of care may require a specific warning label in
relation to certain clothing.
In the case of O’Byrne v Gloucester (1988) the Court accepted evidence that the skirt worn by the
Plaintiff was highly flammable and had no warning labels attached. The Court held the Defendant
manufacturer liable in negligence for the injury suffered by the Plaintiff.
In Cassells v Marks & Spencers (2001), there were two warning tags on the garment (one stitched
onto the hem and one detachable label hanging on the garment). The Plaintiff’s experts argued that
the manufacturer should have used fire retardant on the garment as is used on nightwear. The
Defendant argued that it was entitled to differentiate between daywear and nightwear due to different
level of fire risk and, further, that there were other reasons for not using fire retardant such as skin
irritation, loss of comfort and increased cost. The Supreme Court found that the flammability label
stitched into the garment under the hem was sufficient warning. The Court also held that the
Defendant was entitled to take into account trade practice and public demand.
Thus, WristInfo Ltd. ought to scrutinise whether it has acted reasonably in the circumstances by
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implementing a warning in the instruction booklet for future watches and immediately, inserting a
warning the online instruction booklets. Wristinfo Ltd. ought to weigh up the costs of recalling the
product and/or notifying current purchasers of the prospective dangers against the trade practice and
public demand for the wristwatches.
Ordinarily, causation can prove a difficult hurdle for Plaintiffs in the area of defective products. In
particular, the duty to warn cases have fared quite poorly: usually due to the Plaintiff’s inability to
establish causation – such as failure to prove that if a parent had seen the label the child would have
avoided contact with a fire. For example, in Duffy v Rooney & Dunnes Stores (1997), there was no
warning label on the clothing and the Plaintiff was burned as a result of contact with a domestic fire.
However, the Plaintiff failed to show causation. The Court held that the item of clothing would have
been bought and the child would have worn it even if a label had been attached.
It is important to note that in certain circumstances, a Plaintiff may be able to avail of the doctrine of
res ipsa loquitur. This is a very important advantage to the Plaintiff of a claim in negligence as distinct
to a claim under the Defective Products Act 1991. In exceptional circumstances, where the Plaintiff
cannot show how the product caused the damage, the doctrine of res ipsa loquitiur may apply and
the Defendant must then disprove negligence by showing he took reasonable care. The doctrine of
res ipsa loquitur permits the court in exceptional cases to draw an inference of negligence on the
basis of circumstantial evidence of a highly suggestive nature. Owing to this significant interference
with the normal burden of proof, the courts have consistently restricted res ipsa loquitur to
exceptional cases. However, having regard to the fact that the powerful microchip in the wristwatch,
in the instant case, has a tendency to operate at relatively high temperatures and burst into flames, it
is likely that the Court may not require the Plaintiff to establish causation.
It is clear that physical injury caused by a product is recoverable. Property damage is also
recoverable provided that the property is not the product itself. It has also been established that a
Defendant is liable for injury or damage caused by dangerous defective products.
As previously mentioned, a purchaser may also bring a claim under the Defective Products Act 1991.
This is a piece of legislation which was introduced to regulate the specific area of defective products
as opposed to the Sale of Goods Act which is much broader in its scope. Section 2 of the 1991 Act
provides that the producer shall be liable in damages in tort for damage caused wholly or partly by a
defect in the product. Thus, liability under the Act is strict and not fault-based but this is offset by the
range of defences available under the Act which indirectly reintroduce elements of reasonableness.
Producer is widely defined to include manufacturers, importers and other persons involved in the
compilation and production of the product. For the purpose of the instant scenario, Wristinfo Ltd.
ought to be considered a ‘producer’ pursuant to the Act. Section 4 provides that the Plaintiff must
prove that the damage was caused by a defect in the product . Once the causal link is established
liability under the Act is strict and the Defendant bears the burden of proving he comes within any of
the defences or qualifications set out in the Act. However, the burden of proving causation remains
with the Plaintiff in all cases even where the Plaintiff cannot prove that the product caused the
damage.
Defectiveness is defined in terms of safety. A product is “defective” where “it fails to provide the
safety which a person is entitled to expect, taking all the circumstances into account”. The
‘circumstances’ to take into account, according to section 5, include:
1. The presentation of the product;
2. The use to which it could reasonably be put; and
3. The time when the product was put into circulation.
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The Act takes a very pro-consumer approach and emphasises safety and consumer expectations.
However, s 5(2) specifies that the introduction subsequently of a better product does not mean a
product is defective. Thus, Wristinfo Ltd. ought to be cognisant of the fact that section 5 attempts to
protect consumers but does not hamper product development and legitimate consumer expectations
are linked to time of circulation of product. Through research, Wristinfo Ltd. may be in a position to
rectify the overheating of the microchip. If so, this will not automatically render the previous
wristwatches defective.
If a consumer seeks damages against Wristinfo Ltd. pursuant to the 1991 Act, Wristinfo Ltd. may
avoid liability under the Act where he can show that the defect arose due to compliance with the
mandatory requirements of national or Community law. This allows for the reality that technical
standards develop quickly and laws may not change as quickly to reflect the technical standards.
Therefore, a Defendant may adhere to legal requirement which render product defective. The fact
pattern in the instant case is silent as to this matter. Further, the “development risks” defence
provides a defence where the state of scientific and technical knowledge at the time the product was
put into circulation was not such as to enable the defect to be discovered.
In EC Commission v UK (1997), the ECJ ruled that the ‘state of knowledge’ defence refers primarily
to scientific knowledge at the time, and not just to established practices within industry. It includes
advanced technical knowledge so long as it was accessible to the producer at the time the product
was put into circulation. If this defence applies, a Plaintiff may still have an action in negligence.
Where the evidence establishes that the risks posed by the wristwatch were not known at the
relevant time, liability might still be imposed in negligence. This is because the standard of care may
dictate it was not to place an experimental product on the market before risks and side effects were
known.
Having regard to the foregoing, Wristinfo Ltd. ought to take all reasonable steps to warn consumers
of the defects in the wristwatch and to remedy the danger, as consumers suffering injury or damage
will be in a position to seek redress purusant to ordinary negligence principles and the Defective
Products Act 1991. Pursuant to section 11 of the Statutes of Limitations 1957 and 1991, a consumer
will have six years to institute proceedings from the accrual of the cause of the negligent action, save
where claiming for personal injuries under the Defective Products Act 1991. Wristinfo Ltd. ought to
be aware that the right to sue, pursuant to the 1991 Act, expires three years from the date on which
the cause of action accrued or the date (if later) on which the Plaintiff became aware of the damage,
the defect, and the identity of the producer. There is also a 10-year limit from the date the producer
first put the product into circulation.
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Question Four
Alan was forever forgetting the code for his home alarm system so he decided that he would add the
code to the contacts list on his mobile phone under the entry: Home Alarm Code and then gave
Alan's address. He was not worried about losing the phone as it required a PIN to access it, a PIN he
would have no difficulty remembering: 1234 and in any event, he had entered the home alarm code
in reverse order.
One night, Alan was out clubbing with some of his friends, one of whom, Catriona, asked to borrow
his phone to make a call. Alan gave Catriona the phone but then could not find her afterwards. It
transpires that Catriona had made an angry phone call to her boyfriend and had stormed out of the
nightclub, taking a taxi to his apartment. Unfortunately she left Alan's phone in the back seat of the
taxi.
The next customer of the taxi, Jim, spotted Alan's phone and, cracking Alan's PIN code for the
phone, began scrolling through the contacts list where he came across the Home Alarm Code. He
asked the taxi driver to take him to Alan's house. As Jim broke open the front door of Alan's house
he went to the alarm panel and entered the code from Alan's phone. Jim froze as the panel
responded: "Incorrect code entered. There has been an error in the sequence of numbers entered.
The correct sequence of the numbers is as follows: 6789. Please enter the sequence correctly within
30 seconds." Jim could not believe his luck. An error in the alarm company's software had given him
the correct code.
Critically discuss who is causally responsible for Alan's house being burgled.
Answer Four
Alan must establish cause-in-fact – that as a matter of fact, the Defendant can be said to have
caused the injury. Second, Alan must establish cause-in-law – that the law ought to hold the
Defendant liable. The recent case of Clabby v Global Windows and An Post (2003) provides an
illustration of the difference between the two. The Plaintiff claimed that his employer (An Post) and
the manufacturer of a door were liable to him for injuries caused when he bent down to insert mail in
a low-lying letterbox. The Court held that the low level of the letterbox was accepted as the factual
cause, without which the injury would not have occurred. However, the Court held that legal
causation had not been established against the Defendant. The Court held that the Plaintiff’s failure
to remove his bag and put down his mail before bending down was the legal cause and responsibility
rested with him.
In assessing factual causation the Courts have tended to examine the major background factors in
the case. The common law has traditionally favoured the ‘but for’ test which requires the Plaintiff to
prove that, but for the Defendant’s negligence, the damage would not have occurred. In cases with
single causes and no special evidential difficulties, this test was and remains useful.
In Kenny v O’Rourke (1972), the ladder that the Defendant provided to the Plaintiff was shown to be
defective. However, it was not the factual cause as the Plaintiff had leant over so far that he would
have fallen off almost any ladder. The factual cause was the Plaintiff’s own actions in the
circumstances.
A Plaintiff may also claim that the Defendant has failed or omitted to act and ‘but for’ the omission
the harm would not have occurred.
In multiple causation scenarios, the approach favoured by the Courts seems to be whether the
Defendant’s actions were a material element in bringing about the injury/damage. There have been a
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number of attempts to redefine the causation requirement and develop a more sophisticated test for
difficult factual cases. In a number of English cases the Courts have upheld the Plaintiff’s claim
where the breach of duty was shown to have materially contributed to, rather than solely caused, the
Plaintiff’s injury. These cases are relevant to issues of uncertain factual causation and uncertain
legal causation.
In Fairchild v Glenhaven Funeral Services Ltd (2003), a number of the Defendant’s employees
developed lung conditions due to the inhalation of asbestos and they sued the Defendant. The Court
again affirmed the McGhee case and held the proper approach to causation in some circumstances
is whether the Defendant’s acts had materially contributed to the Plaintiff’s injury by materially
increasing the risk to which the Plaintiff was exposed. The Court seemed to reject the argument that
this was a new ‘test’ for causation but is simply the correct approach in certain exceptional cases.
The Irish Courts have considered this issue in one case. In Quinn v Mid Western Health Board & Ors
(2005), the Supreme Court held that the Fairchild case did not represent a reason for departing from
the ‘but for’ test and that decision turned on its own unique fact. The Court held that Plaintiff had to
show that but for the breach of duty by the Defendant, the Plaintiff would not have suffered the injury
and that there were no special circumstances to bring the case within the relaxed requirements for
causation established in McGhee and Fairchild. The Court concluded that where there is uncertain
factual causation and there is no possibility to decide the issue on the balance of probabilities, the
Court is free to decide that the party with the burden of proof has failed to discharge the burden.
However, where legal causation cannot be established the material element test can be used by the
Courts to decide whether sufficient probability as to the cause is established by the Plaintiff.
‘But for’ Alan inserting his confidential details in his poorly protected mobile phone, no person would
have been aware of his address or alarm code. However, ‘but for’ Catriona leaving Alan’s phone in
the taxi – a burglar would not have had the opportunity to open the phone and discover Alan’s
address and alarm code. ‘But for’ Jim succeeding in opening Alan’s phone, breaking the front door
and inserting the (incorrect) alarm code, the burglary would not have occurred. ‘But for’ the
malfunction in the alarm company’s software, Jim would not have gained access to correct code,
thereby facilitating his burgling Jim’s house.
Legal causation is where the Courts use legal principles to attribute responsibility. Legal causation
involves a value judgment as to where responsibility ought to rest. In the current scenario, the salient
acts are as follows:- Alan inserts his alarm code and address in his phone, Catriona leaves his
phone in a taxi, Jim broke open Alan’s door and the alarm company’s software informed Jim with the
correct code.
Pursuant to s11(3) of the Civil Liability Act, 1961, “where two or more persons are at fault and one or
more of them is or are responsible for damage while the other or others is or are free from causal
responsibility, but it is not possible to establish which is the case, such two or more persons shall be
deemed to be concurrent wrongdoers in respect of the damage”. The ‘but for’ approach to causation
must be followed.
In this scenario, Jim and the alarm company are concurrent wrongdoers. If the Court finds that Alan’s
own actions of saving his alarm code, albeit in reverse order, with his address, in a poorly protected
mobile phone, are negligent; the Court may find that Alan’s own actions contributed to the injury.
Thus, liability will be apportioned according the principles of contributory negligence under section 34
of the Civil Liability Act 1961.
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Despite establishing that the Defendant’s conduct caused the damage the Plaintiff may fail to
recover in negligence where the damage/injury is deemed too remote. In The Wagon Mound (1961),
the Defendant spilled oil on a wharf which was ignited by welding work and Plaintiff’s wharf
destroyed. The Defendant was held not liable because damage by fire was not foreseeable in the
circumstances and the Court stated:
“It does not seem consonant with current ideas of justice or morality that for an act of
negligence, however slight or venial, which results in some trivial foreseeable damage
the actor should be liable for all consequences however unforeseeable and however
grave, so long as they can be said to be ‘direct’. It is a principle of civil liability, subject
only to qualifications which have no present relevance, that a man must be considered
to be responsible for the probable consequences of his act. To demand more of him is
too harsh a rule, to demand less is to ignore that civilised order require the observance
of a minimum standard of behaviour.”
In Egan v Sisk (1986) , the Court held that it is reasonably foreseeable that once a warehouse is
flooded, property stored therein will be destroyed. The Defendant must assume responsibility for the
full value of the goods thereby destroyed, whether they are expensive furs or old masters. The Egan
case established that the type of damage caused must be reasonably foreseeable, but not
necessarily the scale of the damage. If the damage caused is not reasonably foreseeable it is
deemed too remote and the Plaintiff will not recover.
Thus, in the instant case, Catriona may escape liability owing to the remoteness of damage. She
must be considered to be responsible for the probable consequences of her act. The probable
consequences of leaving Alan’s mobile phone in a taxi, is that it would be stolen – not that someone
would ascertain confidential information enabling them to burgle Alan’s home.
In conclusion, Alan ought to be aware that the ‘but for test’ is the traditional test that is used.
However, attempts have been made to formulate a more sophisticated test for more difficult factual
scenarios. Whether the defendant’s breach of duty materially increased the risk of injury to the
plaintiff may be the correct test to use in cases of multiple causation but it is clear that this is
reserved for exceptional cases. To date no Irish case has applied the Fairchild/McGhee test.
It is reasonably foreseeable that Alan could lose his phone and that someone could access said
phone owing to his poor password choice. Moreover, it is probable that someone would utilise said
information to burgle his home. It is reasonably foreseeable that a burglar could attempt to disarm
the alarm and that when prompted with the correct code by the alarm company, would insert same to
enable his thieving mission. As previously mentioned, it is likely that the Court will consider that Jim
and the alarm company are concurrent wrongdoers. The Court may find that Alan’s own actions have
contributed to the injury. Thus, liability will be apportioned according the principles of contributory
negligence under section 34 of the Civil Liability Act 1961.
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Question Five
In many tort actions, compensation for harm caused by way of a monetary payment of damages
serves no useful function either in terms of deterrence or punishment of the tortfeasor.
Critically discuss this statement with particular reference to the jurisprudence on damages in Irish
law.
Answer Five
It is conceded that damages are the traditional remedy of torts law and the primary aim of award of
damages is to put the person in a position he/she would have been in if the tort had not occurred or
put in as good a position as if property had not been damaged. However, aggravated damages and
punitive damages function to deter and punish a tortfeasor in respect of their conduct.
Aggravated damages reflect the additional and exceptional harm as a result of either the manner in
which the harm was inflicted or the Defendant’s behaviour towards the Plaintiff after the initial tort. In
FW v BBC (1999), the Court awarded £15,000 in aggravated damages against the Defendant for
“gross negligence and professional incompetence” in the conduct of an interview with the Plaintiff on
sexual abuse, and for divulging the Plaintiff’s name in breach of an undertaking to preserve his
anonymity. FW diverged from the established authority in so far as it awarded aggravated damages
in a case of negligence. Since aggravated damages are generally justified by intentional or reckless
behaviour on the Defendant’s part, they have traditionally been considered inappropriate for cases of
negligence, being an unintentional wrong
The FW approach was affirmed more recently in Philp v Ryan (2004). In this case, the Plaintiff had
been diagnosed with prostate cancer that had been missed by the Defendant doctor (first-named
Defendant) eights months earlier. The Plaintiff was awarded damages for negligence and the
Defendant appealed and the Plaintiff cross-appealed on the basis that no damages for loss of life
expectancy were awarded and that aggravated damages should have been awarded in
circumstances where the judge found that the first-named Defendant had deliberately altered a
clinical record to suggest he had advised the Plaintiff to undergo further tests. On the question of
aggravated damages, the Supreme Court held that the Plaintiff was entitled to aggravated damages
in the sum of €55,000 by reason of behaviour of Defendants in preparation and presentation of case
and confirmed that aggravated damages could be awarded in cases of negligence.
In Daly v Mulhearn (2005), the Plaintiff claimed that the Defendant had admitted liability at the scene
of an accident involving the two parties. She claimed he had apologise and said he would look after
her. Subsequently, the Defendant accused the Plaintiff of fabricating the accident and claimed she
was drunk. The Court accepted the Plaintiff’s version of events and awarded her €10,000 aggravated
damages.
Moreover, it has been recognised that aggravated damages may be recovered in a defamation case
on foot of the Defendant’s persistent and groundless justification of the defamation in court, though it
has been reasoned that this is not an exception to the rule against recovery for post-tort injury, since
damages in this instance lie for injury to the Plaintiff’s self-esteem, which is the linchpin of damages
in a defamation case.
In Connellan v St Joseph’s Kilkenny and Southern Health Board, where the Plaintiff had from a
young age suffered racial, verbal, physical, and sexual abuse at the hand of various male and female
workers at a residential school, the HC awarded €250,000 general damages, and a further €50,000
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in aggravated damages by reason of the arrogant and outrageous conduct of the parties involved in
the abuse.
In Tolan v An Bord Pleanala (2008), aggravated damages were refused. The Defendant had kept a
letter defamatory of the plaintiff on file but aggravated damages were refused where the defendant
was not the actual source of the defamatory statement
Punitive damages are awarded in exceptional cases, largely because their punitive dimension is
incompatible with the theory and practice of torts law. They are awarded chiefly to make an example
of the Defendant and to deter others from engaging in similar anti-social conduct.
In Rookes v Barnard (1964), the House of Lords restricted the award of exemplary damages to
cases of “oppressive, arbitrary or unconstitutional action by the servants of government”; cases
where the Defendant’s conduct was calculated to make a profit in excess of the compensation
ordinarily recoverable by the Plaintiff; and cases expressly authorised by statute. However, in
Conway v INTO (1988), the Supreme Court flatly rejected the Rookes categories. This case
concerned action by a trade union which interfered with the right of primary education of children in
course of industrial dispute. The Supreme Court held that exemplary damages should be measured
to meet wrongdoing rather than to benefit the wronged. The Court held these damages are to mark
the courts’ disapproval of the conduct and the court should publicly be seen to have punished the
Defendant. The Court stated object is to punish wrongdoer for outrageous conduct and deter others
and the Court will consider the manner in which a wrong is committed, conduct of wrongdoer after
the wrong, or the conduct of wrongdoer in the conduct of his defence.
The courts have consistently maintained that exemplary damages may be awarded only in very
exceptional cases and the awards to date have been unusually low. However, in Crofter Properties
Ltd v Genport Ltd (2002), McCracken J awarded €250,000 exemplary damages and €50,000 general
damages. General damages were assessed on the basis that the deliberate and malicious phone
calls made by the Plaintiffs had damaged the reputation, morale and efficiency of the Defendant
company. Exemplary damages were awarded on the basis that the calls had been deliberate and
were intended to injure the Defendants in their business. He awarded the very high sum of €250,000
on the basis that: (i) the behaviour had been deliberate and malicious; (ii) the person who made the
phone calls on behalf of the Plaintiffs had been found to have lied under oath and committed perjury;
and (iii) on balance, this was“an extremely bad case and … one in which there must be some very
substantial penalty imposed on the Plaintiff”. On appeal, the Supreme Court reduced the award of
exemplary damages to €100,00 and held that the award must be proportionate.
In Shortt v An Garda Síochana (2007), the Plaintiff had been investigated and convicted for drug
offences based on forged documents and perjured testimony by members of the Gardai. He spent
27 months in prison. The High Court awarded €50,000 exemplary damages, €50,000 general
damages and economic losses which amount to almost €2 million. The High Court did not award
aggravated damages. On appeal, the Supreme Court held that general damages are to compensate
for the direct effects of a wrong. Aggravated damages are an augmentation of compensatory
damages and represent additional compensation. The Court held that exemplary damages mark
disapproval of the Defendant’s conduct and may also be punitive in nature i.e. awarded to punish
the Defendant. Whilst there may not be a punitive element to exemplary damages where the case is
against the State and therefore the individuals involved in the wrongdoing are not directly punished
in monetary terms. However, in such cases exemplary damages may still be awarded to make an
example of the wrongdoing
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Notably, exemplary damages are based directly on the misconduct of the defendant; aggravated
damages are awarded for the distress caused to the plaintiff as a result of this very misconduct.
Aggravated damages are compensatory damages increased by the presence or absence of factors
referred to by Finlay CJ in the Conway Case.
Whilst it is accepted that damages is the traditional remedy of torts law and is used, primarily, to
compensate the plaintiff, the secondary purpose of damages is to act as a deterrent and as public
censure. Aggravated and exemplary damages are extraordinarily useful and powerful categories of
damages that the Court can award as a deterrent and punishment of the tortfeasor.
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Question Six
Josephine is addicted to tweeting. She follows numerous people, often re-tweeting anything that she
finds interesting or amusing. In recent times, she has become obsessed with what she believes is a
right wing conspiracy to create the conditions for a world government, overthrowing the democratic
wishes of the people. As a result of this she has begun scouring various fringe news sites online,
looking for reported evidence of this conspiracy.
General News Network (GNN), an extremist news organisation dedicated to opening the minds of
the oppressed, operates a Headbook social media page. In the last week, it has run an investigation
of a major politician, who it will not identify, but everyone knows is Danny McCoy. The last news item
that GNN posted on itsHeadbook page was as follows:
"Our politician friend has once again been meeting high ranking members of the secret group
committed to the overthrow of governments and the establishment of a world order. The latest
effort is to enact legislation making it illegal to own a mobile phone without approval from the
state. This is particularly rich coming from a politician who does not give anyone his own
mobile phone number,. except presumably whatever woman is currently sharing his marital
bed."
Josephine is outraged. She tweeted "We all know this jerk Danny McCoy, fascist adulterer. Click on
this link to get the latest on this piece of anti-democratic scum... In fact Danny was meeting a
delegation from the United Nations, there is no legislation in preparation as suggested by GNN,
Danny's mobile number is readily available on his website and the only woman sharing his marital
bed is in fact his wife of the last 20 years. Danny is enraged and has publically stated that he will be
suing GNN and anyone else who has contributed to spreading this defamatory
Advise Josephine as to what liability in tort law, if any, she might have incurred as a result of her
tweet.
Answer Six
Having regard to the nature and content of the tweets, Danny McCoy may seek to institute
defamation proceedings against Josephine. The area of defamation relates to the protection of the
right to reputation against false allegation. The tort of defamation governs civil liability for false
statements which cause a loss to a Plaintiff’s reputation. Defamation constitutes the publication,
without lawful justification, of a false and defamatory statement which is defined in section 2 as “a
statement that tends to injure a person’s reputation in the eyes of reasonable members of society.”
First, Danny must establish that Josephine published a defamatory statement. Section 6(2) of the
Defamation Act 2009 provides that the burden of proof rests with the Plaintiff to prove publication,
although where it is obvious – it may be admitted e.g. internet/twitter publications. One must consider
whether GNN is the publisher and thus, is liable for foreseeable re-publication, such as
sharing/linking news stories on social media; or whether Josephine is an independent
publisher/concurrent wrongdoer – as she expanded upon the statement and named ‘Danny McCoy’.
Moreover, whilst Josephine published a statement with a link to the GNN website, one must consider
how many twitter followers have subscribed to Josephine’s news feed. Minimal publication
constitutes publication, however, the extent of publication will naturally have a bearing on the
damages which are awarded. This practice was highlighted in the Court of Appeal decision of
Jameel v Dow Jones. The foreign plaintiff alleged defamation against a US newspaper relating to an
allegation that the plaintiff was involved in funding terrorism. The article was published in the online
version of the Wall Street Journal. The material was published on a website in the USA and available
to view in the UK. The newspaper argued that the plaintiff had in fact suffered minimal damage to his
reputation and that publication within the jurisdiction was minimal. The paper adduced evidence that
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only five people had read the story. The court stayed the case as an abuse of process.
If Josephine is deemed to have re-published the material, GNN will be liable for foreseeable republication. This principle was established in Ewins v Carlton UL Television Ltd where the Plaintiff
was permitted to being proceedings against the Defendant in Ireland on the basis that (1) each time
the defamatory material was transmitted into Ireland, it was a ‘republication’ for the purposes of libel
law, and (2) since the Defendant provided the programme in question to Ulster TV it was responsible
for the republication of the programme to another audience in Ireland as the “natural and probable
consequence” of its release of the programme.
In Tansey v Gill (2012), the Plaintiff, who was a solicitor, sought injunctive relief against the operators
of a website entitled “rate-your-solicitor.com”. Peart J. granted a series of reliefs which included,
essentially, an order pursuant to section 33 of the Defamation Act 2009 prohibiting the publication or
further publication of the defamatory material complained of; an injunction requiring the defendants
an order requiring the defendants to terminate the operation of the website upon which defamatory
material of and concerning the plaintiff is published.
Josephine ought to be aware that prior to the Defamation Act 2009, the position was that each
publication gave rise to a fresh cause of action. This was established in the decision of Duke of
Brunswick v Harmer (1849). The rule in Duke of Brunswick v Harmer is now abolished and has been
replaced with section 11 which provides that only one cause of action will arise in respect of multiple
publications. However, the court may permit more than one action where the interests of justice
require. How this will interact with internet publications remains to be seen.
There tends to be a distinction between active publication (authors and editors) and passive
publication. Whilst retailers and suppliers of media carrying defamatory statements have technically
‘published’ the defamation, they are not in practice sued. The defence of innocent dissemination or
secondary publications has been codified. It is a defence for a defendant to show under section 27:
(a) he or she was not the author, editor or publisher of the statement to which the action
relates,
(b) he or she took reasonable care in relation to its publication, and
(c) he or she did not know, and had no reason to believe, that what he or she did caused or
contributed to the publication of a statement that would give rise to a cause of action in
defamation.
Section 27(3) states:
The court shall, for the purposes of determining whether a person took reasonable care, or had
reason to believe that what he or she did caused or contributed to the publication of a defamatory
statement, have regard to—
(a) the extent of the person’s responsibility for the content of the statement or the decision to
publish it,
(b) the nature or circumstances of the publication, and
(c) the previous conduct or character of the person.
Having regard to the foregoing provisions of section 27 and the facts as alleged, that Josephine
tweeted "[w]e all know this jerk Danny McCoy, fascist adulterer. Click on this link to get the latest on
this piece of anti-democratic scum...” – it would be most difficult for Josephine to assert herself as
being a passive publisher. This issue was addressed in Ross v Eason (1911) when Madden J
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commented that “the vendor of a newspaper who, in the ordinary course of business sells or
distributes a paper containing a libel, is prima facie libel, but can escape liability by showing that he
did not know, and had no grounds for thinking, that the matter was libellous, and that his ignorance
was not due to negligence.”
Once publication is established Danny McCoy must show that the publication identified or referred to
him. This is very straightforward where the Plaintiff is named or pictured. Section 6(3) of the 2009 Act
states “A defamatory statement concerns a person if it could reasonably be understood as referring
to him or her.” The court’s sole concern shall be whether the statement is reasonably capable of
referring to the Plaintiff which is a question of law. If the judge accepts that the statement is
reasonably capable of referring to the Plaintiff, the judge will leave the question of fact to the jury as
to whether there is evidence that people understood that publication did actually refer to Plaintiff.
In Murphy v Times Newspaper (2000), the Plaintiff was the brother of Thomas Murphy and both he
and his brother were known as ‘Slab’ Murphy. An article published by Defendant made various
allegations, including that Slab Murphy was leader of the Provisional IRA. Thomas Murphy brought
defamation proceedings and it was held that the article was understood to refer to him but the
defence of justification (now known as the defence of “Truth” under the 2009 Act) was successful
and his claims were dismissed. In the instant case, it is known that Danny was meeting a delegation
from the United Nations, there is no legislation in preparation as suggested by GNN, Danny's mobile
number is readily available on his website and the only woman sharing his marital bed is in fact his
wife of the last 20 years. It appears that Josephine (nor GNN) would be entitled to rely on the
defence of “truth”.
It was stated in Knupffer v London Express Newspaper Ltd (1944) that “Where the Plaintiff is not
named, the test which decides whether the words used refer to him is the question whether the
words are such as would reasonably lead persons acquainted with the Plaintiff to believe that he was
the person referred to.”
The plaintiff must show that the material refers to him. In Sinclair v Gogarty (1937) the Defendant in
his memoirs had disguised his references to the Plaintiff by changing the nature of his business and
his address. The Court held that the Plaintiff could be sufficiently recognised in the piece as ‘a Jew in
Sackville Street’ and the words to be deemed referential to the Plaintiff.
In McKeogh v Facebook & Ors (2012), a student sought and obtained an injunction against a
number of internet service providers (ISPs) after a Dublin taxi driver posted a video to Youtube.com
showing a young man apparently skipping from the cab without paying the fare. This video was then
also appeared on other platforms leading to Facebook and Google also being named as defendants.
A number of people posted comments on the video, wrongly suggesting that it showed the plaintiff.
In court, Eoin McKeogh was able to establish that it could not have been him, as he was in Japan at
the time in November 2011. The Court stated that the placing of the video on YouTube by the taxi
driver did not of itself defame the plaintiff, though it certainly created a risk that a wrong identification
might be made by somebody else. It was the wrong naming of the plaintiff by the person travelling
under the pseudonym 'Daithii4U' which has done the damage to the plaintiff's reputation.
Whilst GNN did not name ‘Danny McCoy’ on their Headbook page, it is accepted that “everyone
knows Danny McCoy”. The material refers to him. Josephine named and identified ‘Danny McCoy’
and thus, it appears that Danny would like succeed in establishing that he has been identified in the
GNN publication and Josephine’s tweet.
40
As previously stated, defamation constitutes the publication, without lawful justification, of a false and
defamatory statement which is defined in section 2 as “a statement that tends to injure a person’s
reputation in the eyes of reasonable members of society.” The word “tends” here implies that it is
sufficient if it has the propensity/general tendency to adversely affect Danny McCoy. A jury will
consider whether the statement is regarded as defamatory. It is clear that precedents in this area are
not very helpful as the cases are dictated by circumstances at the time and society at the time.
In Braun v Armour (1939 NY) the publication contained a statement that the Plaintiff butcher was
selling bacon. This was defamatory because the Plaintiff was known as a kosher butcher
In Reynolds v Malocco t/a “Patrick (1998), the allegation of homosexuality was regarded as
defamatory despite the decriminalisation of homosexual activity in 1993. Kelly J explained that the
“commission of adultery is not a criminal offence but nobody could seriously suggest that an
allegation of adultery could not be defamatory.”
Some relevant examples of defamatory effect from cases in recent years include an accusation that
a politician was associated with, or tolerated, organized crime – as in De Rossa v Independent
Newspapers plc and an allegation on the plaintiff’s career and professionalism, as in Rantzen v MGN
(1994).
It is clear that only one meaning could be ascribed to GNN’s news bulletin – a portrayal of Mr.
McCoy as a treasonous, unscrupulous, hypocritical, lying adulterer.
Part III of the 2009 Act sets out a number of defences that Josephine may seek to rely upon, if
Danny McCoy institutes proceedings against her. First, by way of a preliminary note– it appears on
the facts of the instant case, that GNN’s news bulletin is entirely untrue and thus, neither GNN or
Josephine would be entitled to utilise the defence of ‘truth’. However, Josephine’s tweet seems to
suggest that Danny McCoy is a “jerk…fascist adulterer” and that the GNN news bulletin, despite
being untrue, is merely the “latest” publication of his antics. Arguably, Josephine may wish to show
that her opinion of Danny McCoy was honestly held. The defence of honest belief, pursuant to
sections 20 and 21 of the Act, shall apply if Josephine can honestly show that she believed the
opinion to be true.
The defence was recently pleaded in Branson v Bower (2001) where Richard Branson sued for
allegations made in the Evening Standard by the defendant journalist Bower. The plaintiffs argued
for a test based on “fairness” while Bower said that the court must allow the defence of “fair comment”
where the stated opinion was honestly held. The court agreed with the defendant, so long as views
are honestly held, the defence of fair comment is open to a defendant. Branson would have to show
that the opinion was not honestly held in order to succeed.
Further or in the alternative, Josephine may attempt to utilise the defence of ‘fair and reasonable
publication on a matter of public interest’. This defence had been recognised in common law and by
O’Caoimh J in Hunter v Gerald Duckworth& Co Ltd (2003). In Leech v Independent Newspapers
(2007), the High Court approved the Reynolds/Jameel defence. This defence applies where the
subject matter “considered as a whole, was a matter of public interest.” Charleton J particularly
referred to the eighth factor in Reynolds, of obtaining the Plaintiff’s side of the story as relevant in
considering whether a publication had behaved fairly and responsibly.
Pursuant to section 26 the defendant must show that a statement was published in:
(a) good faith;
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(b) in the course of, or for the purpose of, the discussion of a subject of public interest, the
discussion of which was for the public benefit;
(c) in a manner and to an extent which did not exceed what was reasonably sufficient, in all of the
circumstances.
Section 26(2) outlines a non-exhaustive list of factors that the court may take into account in
determining whether a subject is fair and reasonable; most pertinently
(a) the extent to which the statement concerned refers to the performance by the person of his or her
public functions;
(b) the seriousness of any allegations made in the statement;
(c) the context and content (including the language used) of the statement;
(d) the extent to which the statement drew a distinction between suspicions, allegations and facts;
inter alia.
These factors reflect the list of Lord Nicholl’s in Reynolds v Times Newspapers Ltd (2001). This
facilitates public discussion on matters where there is a benefit and interest in the discussion. The
defence is subject to requirements of fairness and reasonableness. It is accepted that GNN is an an
extremist news organisation dedicated to opening the minds of the oppressed and operates a
Headbook social media page. Moreover, it is known that Danny McCoy is a high-ranking politician i.e.
a person whose politics, beliefs and morals would reasonably be subject matter in the public’s
interest. However, Josephine ought to be cautious that how section 26 will be interpreted remains to
be seen and it may be difficult for defendants to plead.
In conclusion, Josephine ought to be advised that Danny McCoy will likely seek damages and/or
injunctive relief requiring Josephine to remove her tweet. Having regard to the foregoing, If
Josephine cannot avail of the defence of honest opinion or publication in the public’s interest, she is
likely to be found liable for independently publishing, without lawful justification, a false and
defamatory statement which injured Danny McCoy’s reputation in the eyes of reasonable members
of society. Josephine may wish to consider offering an apology and offering to make amends in order
to mitigate the damage.
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Question Seven
Mary works for Acme Banking and has done so for many, many years. She has always been a
cashier, dealing with cash lodgements and withdrawals by customers. Since Mary started working at
the bank, she had always conducted her business from behind a bullet proof screen with a small
intercom. It made her feel safe and secure when she was dealing with large amounts of cash. In
recent times however, Acme Banking no longer provides cash handling services at any of its
branches. Cash was both cumbersome and dangerous to deal in. Although bank robberies were
rare, Acme Banking was obliged to take significant and costly steps to reduce the risk of these
robberies with increasingly expensive security measures. By no longer handling cash, Acme Bank
could save a significant amount of money.
In conjunction with this, Acme Banking wanted to change its banking model to a more customer
friendly approach so it took away all the counters and gun proof glass and replaced them with open
spaces, soft seating and low tables, breaking down the barrier between customer and the bank.
Mary was nervous in this new environment and complained to management about the potential of
angry customers, often forwarding newspaper and internet reports of violent, disgruntled customers
of other banks physically attacking bank staff. Acme management dismissed Mary's concerns,
hoping that they might be able to convince her to take early retirement.
One day, a customer who was trying to use the automated bank machine to lodge a cheque was
getting irate. Mary went to try to assist him but this only made things worse. He struck Mary across
her face, breaking her nose.
Advise Mary as to what might be the liability of Acme Banking for these events.
Answer Seven
An employer may be directly liable in negligence for the breach of a duty personally owed by him to
an employee. This issue of the liability of employers for damage/injury caused to employees may
invoke liability arising from several areas of law namely contract law, statutory provisions and
negligence.
Personal duties owed by an employer towards his employees were first recognised by the House of
Lords in Wilson & Clyde Coal Co Ltd v English (1938) and by the Irish Supreme Court in Dowling v
Brown & CIE (1960). The Courts have now developed a number of distinct aspects of the duty of
care owed by employer and relating to the place of work, system, equipment and co-workers.
First, ACME owed a duty to Mary to provide a safe place of work for employees. Often this duty
coincides with the duty to provide a safe system of work. This aspect of the duty of care was referred
to in Connolly v Dundalk UDC [1990]. In that case, the Defendants had engaged a contractor to
install piping. Chlorine gas escaped through a defective joint in the piping and the Plaintiff employee
was injured. The High Court stressed the non-delegability of liability for the employer’s basic duties of
care and this finding was endorsed by the Supreme Court on appeal.
However, this duty is not absolute and liability is not strict.
In Latimer v AEC Ltd (1953), the Defendants’ factory had been flooded by an unusually heavy rain
storm and the rainwater had become mixed with oily substances. When this mixture was drained
away, a slippery film remained on the surface of the floors and sawdust was spread across the floors
to soak it up. The Plaintiff slipped on a small part of the floor which had escaped the sawdust, and he
suffered injuries. The House of Lords overturned a decision in favour of the Plaintiff on the basis that,
as no other complaints and accidents had occurred, the risk to which the Plaintiff had been exposed
43
was minimal and unforeseeable, and it would have been unreasonable to expect the Defendants to
close down the factory until all slight risks of slipping had been eliminated.
In Mary’s case, she alerted her employer to multiple circumstances were disgruntled customers of
other banks physically attacked bank staff members. Thus, it is arguable that Mary’s attack was
foreseeable. Moreover, the facts maintain that ACME dismissed Mary’s concerns. They failed to
consider other measures that ought to have been taken in order to preserve a safe work place.
Moreover, ACME owed Mary a duty to provide a safe system of work. This is an ancillary duty to that
of providing a safe place of work. The duty is to provide a reasonably safe system of work which
encompasses adequate training, supervision and method of operation, care in design and
implementation and operation of work practices.
In Walsh v Securicor Ltd (1993), the Plaintiff courier was ambushed by armed raiders. The Plaintiff
gave evidence that although there was a police escort provided, the Defendant failed to change the
time of run which meant that the personnel were susceptible to attack. The Court held that the
provision of a police escort was not sufficient due to the high risk job and the Defendant was
negligent in failing to change the time of the run.
In O’Reilly v Iarnrod Eireann (2002), the SC affirmed the HC’s decision that the Defendant was
negligent for actively condoning the unsafe system of disembarkation of employees from moving
trains.
Both cases appear to support Mary’s position, having particular regard to the fact that ACME were
aware of many instances in which disgruntled customers of other banks attacked staff members. It
appears in dismissing Mary’s concerns the bank actively condoned an unsafe system of work and
further, failed to implement a reasonably safe system of work – including the operation of work
practices.
It should be noted that Mary does not have to establish what alternative system of work ought to
have been in place but she may choose to call expert evidence regarding any better/safer system
that could have been installed having regard to the relevant market and practices amongst other
employers. There is no clear rule in relation to this evidence and in Dixon v Cementation Co Ltd
(1960) Devlin LJ said:
“There may be cases in which the Plaintiff will not get very far with an allegation of unsafe
system of work unless he can show some practicable alternative, but there are also cases
… in which a Plaintiff can fairly say: ‘If this is dangerous, then there must be some other
way, that can be found by a prudent employer, of doing it, and it is not for me to devise
that way or to say what it is.”
In Lendrum v Clones Poultry Processors Ltd , the court awarded damages to the plaintiff for the
employer’s failure to provide a safe system of work. The plaintiff had been struck by a car while
loading a van. The court held that some precautions should have been in place to alert the employee
of traffic. However damages were reduced to take contributory negligence into account.
The Courts will refer to the usual four guiding criteria to determine the standard of care and it is clear
that there cannot be a static standard of care having regard to the different employment conditions.
ACME Bank must do what is reasonable in the circumstances or, alternatively, the alleged
44
negligence may be an omission to act. This was referred to in Caulfield v George Bell (1958)1 where
the Court stated that the employer could be negligent where his omission “…either was a thing
commonly done by other employers in like circumstances, or was so obviously required that it would
be folly for an employer to neglect to provide it; in other words, that no reasonable and prudent
employer would have omitted it.”
The standard of care was discussed in detail in Bradley v CIE (1976). In that case, the Plaintiff fell off
a ladder whilst servicing signal lamps. He argued that CIE was negligent in omitting to provide
surround equipment and safety equipment to guard against an employee like the Plaintiff falling. The
expert evidence for the Plaintiff concluded that such extra precautions would have reduced his injury
but evidence for the defence was that the very same system of work was used by railway companies
worldwide, and that more than 1,000 such ladders had been used by CIE over the past 10 years
without any other such accident occurring. The defence further claimed that the cost of installing and
maintaining different safety devices would have been entirely disproportionate to the minute risk of
the Plaintiff’s injury, and that it could have led to more accidents as a result of impeding the ease
with which trains passed in and out.
The Supreme Court stated that the test is whether the Defendant took all reasonable care for the
safety of the employee and did not expose him to unnecessary risk. The Court stated the “law does
not require an employer to ensure in all circumstances the safety of his workmen. He will have
discharged his duty of care if he does what a reasonable and prudent employer would have done in
the circumstances.” The Supreme Court accepted the Defendant arguments and the High Court’s
finding of liability was reversed.
The Court in Daly v Avonmore Creameries (1984) expressly dissociated itself from the cost analysis
in Bradley and the Court stated that Bradley is “not to be taken as supporting a view that, where lives
are at stake, considerations of expense are any more than vaguely material. Where a danger is very
rare, such considerations may be irrelevant.”
In Kennedy v Hughes Dairies (1989), the employee injured himself by falling on a milk bottle and
gashing his arm whilst carrying crates of empty bottles. He claimed the Defendant was negligent in
not providing special protective clothing for him. The Supreme Court held that the risk was
foreseeable in the context of the work he had to do, and that the employer had exposed him to
unnecessary risk by not providing clothing that would protect his arm.
Having regard to the foregoing, it is arguable that ACME did not act as a resonable and prudent
employer would have done in the circumstances, having particular regard to the fact that ACME
management dismissed Mary’s concerns on the basis that they might be able to convince her to take
early retirement.
Mary will have to prove that ACME’s negligence caused the particular injury. This limb of negligence,
may prove to be difficult to establish and thus, Mary may fail. In Mc Loughlin v Carr (2005), there was
a raid on the premises while the Plaintiff was working. A number of burglars dressed up as Gardai
and the Plaintiff was injured in the course of the robbery. He brought a claim against his employer
and claimed the employer was negligent in failing to provide a safe place of work and in failing to
provide proper training.
The Court dismissed the Plaintiff’s claim and stated that an employer has a duty to provide a safe
place of work but an employer cannot guarantee the safety of its employees. The Court held that the
1
[1958] IR 326
45
Plaintiff had failed to establish that any act or omission on the part of the Defendant had caused the
injury.
Acme Banking no longer provides cash handling services at any of its branches. The bank accepted
that cash was both cumbersome and dangerous to deal in. Although bank robberies were rare,
Acme Banking was obliged to take significant and costly steps to reduce the risk of these robberies
with increasingly expensive security measures. By no longer handling cash, Acme Bank could save a
significant amount of money. In conjunction with this, Acme Banking wanted to change its banking
model to a more customer friendly approach so it took away all the counters and gun proof glass and
replaced them with open spaces Arguably, by removing cash handling services, ACME reduced the
aforementioned potential dangers of bank robberies. ACME cannot eliminate all dangers. Per the
dicta in McLoughlin, ACME provided a safe place of work but could not be held to guarantee the
safety of Mary and her colleagues.
Employees have a parallel duty to take care for their own safety and the safety of their co-workers
and if found to have failed in this regard, they may be deemed contributorily negligent. Section 34,
Civil Liability Act 1961 provides that damages may be reduced to reflect the contributory fault of the
Plaintiff. The Court will look to the personal characteristics of the employee to assess contributory
negligence. The Courts have continued more recently to display a reluctance to make a finding of
significant contributory negligence on the part of an injured employee. In McMahon v Irish Biscuits
Ltd & Quinnsworth (2002) the Plaintiff injured himself in a fall while checking stock levels in a
supermarket client. The Plaintiff admitted that his decision to climb up the shelving was hazardous
but the Court restricted his contributory negligence to 10 percent. The Court held the Plaintiff was
under pressure from both Defendants to complete his job to a particular deadline. The Court
acknowledged the realities of his job, and concluded that, in the circumstances, the Plaintiff had little
alternative but to do what he did.
Similarly, Mary was acutely aware of other instances were irate customers of banks attacked
members of staff. It is likely that ACME will maintain that Mary was negligent in approaching the
customer in question, but in fact made things worse. However, whilst Mary was traditionally a
cashier, her job also entailed customer service. Thus, one must acknowledge the realities of her job
and it is difficult to conclude that she had any other alternative but to do what she did i.e. attempt to
assist the customer. If Mary succeeds in establishing negligence on the part of her employer, it is
likely that the Court will either reject an assertion that Mary was contributorily negligent or shall
slightly reduce the award.
It should be noted that Mary can bring a civil action for breach of the 2the Safety Health and Welfare
at Work Act 2005 although, it is often difficult for a Plaintiff to succeed in establishing a breach of
statutory duty which caused the injury. Employers owe the duties outlined in the Act, many of which
mirror the duties owed at common law e.g. managing and conducting work activities in such a way
as to prevent, so far as is reasonably practicable, any improper conduct or behaviour likely to put the
safety, health or welfare at work of his or her employees at risk. However, the Act imposes
substantially more, and more detailed, duties than the common law. The Act contains a
comprehensive list of duties placed on an employer in respect of his employees. The employee also
has duties placed upon him under the Act. Mary may also seek to institute proceedings pursuant to
the 2005 Act.
46
Question Eight
Critically discuss whether or not liability for nervous shock/psychological damage in Irish law has
been unduly curtailed as a result of policy limitations such as the floodgates argument.
Answer Eight
Historically, there was a traditional reluctance amongst the judiciary to compensate for a psychiatric
or mental injury. The reason for this was the fact that it is often difficult to assess appropriate
compensation for mental injury and the Courts feared that Plaintiffs would bring false claims since
mental injury, unlike physical injury, cannot be physically seen or precisely measured. Gradually, the
Courts accepted that there was a need for recovery for mental injury in certain circumstances.
Although, the fear of false claims and/or a deluge of litigation is still in the fore of the courts
consideration. Thus, the Courts categorised two potential Plaintiffs as being first, persons involved in
the accident and second, observers of the accident.
In the United Kingdom, the legal foundations for recovery for aftermath observers were analysed in
the landmark decision in McLoughlin v O’Brian (1982). The Plaintiff’s husband and three children had
been involved in a traffic accident caused by the Defendant’s negligence. The Plaintiff was informed
of the accident by a motorist who had come upon the aftermath and drove to the Plaintiff’s home.
The Plaintiff was told that one of her children had died instantly, and that her husband and two other
children were seriously injured. The motorist drove her to the hospital, where she came upon the
surviving members of her family, who were in a state of great distress. As a consequence the Plaintiff
suffered severe shock, organic depression and change of personality.
The House of Lords held that the Plaintiff was entitled to succeed, but there was a clear division of
opinion on why this should be so. The majority of Lords i.e. Russell, Scarman, and Bridge preferred a
principled test based upon foreseeability. Lord Wilberforce’s approach was more concerned with the
fear of the floodgates and was more rule-oriented and stated that first, the shock must come through
the Plaintiff’s own sight or hearing of the event, or during its immediate aftermath. Secondly, There
must be physical proximity to the accident – i.e., closeness in both time and space. Thirdly, the
Plaintiff’s relationship with the primary victim must be very close.
In Ireland, the Court originally adopted the McLoughlin principles in the case of Mulally v Bus Eireann
& Ors (1992). In that case, the Plaintiff received a message that there had been a serious bus
accident involving her husband and three sons. She went to the Regional Hospital in Limerick where
her two sons were being treated. She witnessed an appalling scene of multiple casualties and
emergency medical aid. Her husband and other son were being treated at another hospital but she
believed her husband was dead. According to the evidence, the shock had the effect of transforming
the Plaintiff from a happy, easygoing woman to someone who was emotionally detached and liable
to suffer flashbacks and panic attacks.
Denham J. accepted that the Plaintiff suffered from Post-Traumatic Stress Disorder which was
recognised as a psychiatric disease. The Court held that the events that gave rise to the Plaintiff’s
disorder were caused by the Defendant’s negligence. Denham J seemed to follow the Lord Bridge
approach in McLoughlin of ordinary negligence principles with emphasis on reasonable foreseeability
and she held it would be unjust and contrary to the fundamental principles of negligence not to find a
legal nexus between the actions of the Defendant and the resultant aftermath of the accident,
including the appalling hospital scenes and injuries to the Plaintiff’s family. The court awarded
£35,000 general damages for her injuries to date and £40,000 for the future.
47
Whilst, the ordinary negligence approach in Mulally was replaced in Kelly v Hennessy, Mulally
remains a very useful precedent in this area as the criteria indicative of post-traumatic stress disorder
and is utilised by the courts in order to ensure that the floodgates of litigation are not opened.
In Kelly v Hennessy (1996), Hamilton CJ set out seven principles to determine whether it may be
said that the Defendant owed the Plaintiff a duty of care to avoid causing him the mental or
psychiatric injury for which he sues :1. The Plaintiff must suffer a recognised psychiatric illness (a matter on which expert
psychiatrists would testify).
2. The illness must arise by way of “shock” or sudden exposure.
3. The nervous shock must be caused by the Defendant’s act or omission.
4. It must be reasonably foreseeable that the initial event could cause psychiatric injury and
foreseebility of a general personal injury is not enough.
5. The illness must result from the perception of actual injury or a risk of injury to oneself or
another person.
6. If harm results from perception of the aftermath, there must be a close personal
relationship between primary victim and Plaintiff.
7. There are no public policy limits on recovery where the Plaintiff establishes sufficient proximity
and foreseeability by fulfilling the above conditions.
Notably, the issue of nervous shock has been examined by the courts in the employment context.
This is a category of litigation which lends itself to inherent fears that the novel, open-end situations
which will be difficult to limit and encouraging of litigation.
In Curran v Cadbury (2000), the Plaintiff developed psychological illness after an accident where she
believed that she had caused serious injury to her work colleague. She switched on a machine while
the maintenance person was working on machine.
Liability was imposed on the Plaintiff’s employer for the negligently inflicted psychiatric injury. In
McHugh v Minister for Defence, the Plaintiff claimed for mental injury he sustained as a result of the
trauma he experienced while he was stationed in Lebanon.
Held: The Court concluded that the Defendant employer was not negligent as regards the initial
exposure to trauma but the Defendant was negligent in failing to provide proper treatment once it
became clear that the Plaintiff was unwell.
Similarly, in McGrath v Trintech (2004), the Court adopted a conservative analysis of the case. The
Plaintiff claimed that he had suffered a psychiatric injury as a result of stress at work and he sued his
employer. The Court rejected the Plaintiff’s claim and held that the employer had behaved as a
reasonable employer would have done in all the circumstances.
In Devlin v The National Maternity Hospital (2007), the parents of a deceased child sought damages
arising from the unauthorised retention of organs by Defendant had caused them to suffer a
psychological injury. The claim was dismissed by High Court and an appeal was taken to the
Supreme Court by the first Plaintiff, only. The Supreme Court held that actual or apprehended injury
to the Plaintiffs themselves or another person is a necessary requirement of the law in an action for
nervous shock. This condition was not satisfied in this case. The Court held further that there are
limits to liability for nervous shock unaccompanied by physical injury. The successful cases in the
area relate to person perceiving an accident or the perceiving the immediate aftermath. The Court
rejected the argument that general negligence principles should be extended to cover the situation in
this case. Policy considerations applied and this extension would lead to uncertainty and potentially
48
unforseeable repercussions.
In conclusion, the case law on nervous shock is still in a state of development. While the principles
that are to be used in cases involving victims who are participants in the actual event (Byrne v
Southern Railway; Curran v Cadbury) and those who perceive the aftermath are clear (Kelly v
Hennessy), more recently the courts have been vexed by situations in which psychiatric illness has
occurred due to negligence but that do not fall into the traditional nervous shock categories. These
situations involving occupational stress and fear of injury are becoming more common. Indeed, the
courts have struggled with adjudicating meritorious cases whilst being mindful of avoiding novel,
open-end situations which will be difficult to limit and encouraging of litigation. In these types of
cases the illness is rarely ‘shock induced’ nor is there any perception of a traumatic event. In order to
allow recovery in meritorious cases of this nature the courts have focused on employers’ duties and
the employers’ ‘knowledge’ of the delicate mental state of the plaintiff where an employer is involved,
and in ‘fear of injury’ cases whether or not the fear can be said to be a rational one.
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Exam Paper – October 2017
Question One
Sarah owned a house with an acre of land to the rear. On that acre she grew rare and exotic plants
of all types. However, it was a constant source of annoyance to her that people who lived in the
housing estate behind that acre would continuously use it as a shortcut to the local shopping
centre. Admittedly it did save about 20 minutes walking time but in recent times, it has been causing
significant damage to her garden.
Finally losing patience, she saw Matthew hop over her fence and begin to walk across her garden.
She ran over to him and, putting her hand around his shoulder, began to scold him all the while
pushing him towards her patio. When they reached the patio, Sarah sat down and, pointing to a
shotgun resting against a table where there were two shotgun cartridges, said: "You all think that it
saves time trespassing on my land, so if you think you can run faster than the time it would take me
to load a gun and fire it, feel free to leave, otherwise
you leave at your own risk. I am going to see what damage you have done to my beautiful garden."
Matthew was scared witless and sat down, unable to move. After around 20 minutes, Sarah
returned. "This time you were lucky - I couldn't see any damage. But if I catch you again, I will report
you to the police. By the way, do you like my imitation shotgun and ammunition? Very life-like, aren't
they?" With that, Matthew got up and ran away as quickly as he could.
Advise Matthew as to any potential action in tort that he may have against Sarah on these facts.
Answer One
Introduction
Matthew requires advice as to whether he has any potential any potential action in tort in respect of
Sarah’s actions. In light of the given facts, the issues which arise are whether Matthew may have a
cause of action for the tort of trespass to person against Sarah, and in particular it will be required to
consider the torts of assault, battery and false imprisonment.
Assault
Assault in tort was defined in Collins v Wilcock as “an act which causes another person to apprehend
the infliction of immediate, unlawful, force on his person”. The force apprehended must be immediate
and the belief of contact, reasonable. However, the fact that the defendant was not actually in a
position to execute the threat is irrelevant, so long as the plaintiff’s belief was intact (per R v St.
George (1840)). In Bruce v Dyer the court held that the taking of active steps to block or obstruct
another would constitute an assault; however a passive obstruction may not be (per Innes v Wylie
(1844)). While words themselves may constitute an assault where the result is apprehension of
physical impact; mere insults are not enough and additional words accompanying the threat may
render conduct harmless and prevent assault where those words make it clear that no physical
contact will occur. This was referred to in the case of Turberville v Savage (1669) where the
Defendant who had attacked the Plaintiff causing him to loose an eye, attempted to defend his
actions by reference to what he said was an assault against him by the Plaintiff who had placed his
hand on his sword and said: “If it were not assize time I would not take such language from you.” The
Court held that the action did not constitute an assault as the latter words were an indication that he
did not in fact intend to strike the Defendant.
We are told that Sarah ran over to him and, putting her hand around his shoulder, began to scold
him all the while pushing him towards her patio. The actions of blocking Sarah physically retraining
his exit may constitute an assault, but her words in threatening to shoot him if he left, may be unlikely
to constitute an assault given that they didn’t give rise to an immediate threat, and in that sense
could be compared to the position in Turberville v Savage. There may be some assault evident in
Matthew being physically touched a number of times, and in particular his perception of when this
50
was about to occur, but his more substantial complaints will be in respect of the battery and false
imprisonment elements of his claim.
False imprisonment
False imprisonment was described in Dullaghan v Hillen as the “unlawful and total restraint of the
personal liberty of another whether by constraining him or compelling him to go to a particular place
or confining him in a…private place or by detaining him against his will in a public place.” As was
established in Bird v Jones, the confinement must be complete, so that the plaintiff had no
reasonable means of escape. There is no requirement that force be used to detain the person, but
obviously where it is, it will be clear that the plaintiff had no reasonable means of escape. In Meering
v Graham White Aviation the defendant employer was held liable for false imprisonment, where the
plaintiff employee was held in a room with two security officers investigating suspected theft.
In the present case, it may be readily said that Sarah’s threat in relation to Matthew being at risk of
being shot if he left while she checked her garden for damage, constitutes a false imprisonment. In
particular, we are told that Matthew was subjectively frightened to leave after her remarks. These
actions would almost certainly amount to an instance of the tort of false imprisonment in respect of
Matthew.
Battery
Battery was defined in AG’s Reference No.6 as “the actual intended use of unlawful force to another
person without his consent or any other lawful excuse.” Battery relates to direct or indirect physical
contact with a person without consent or lawful authority. The actual content can be slight, and does
not have to amount to physical injury. Furthermore, there is no requirement of malice or hostility. In
the case of security persons exercising force, it has been held that such force must be minimal and
proportionate to the situation, and if the force is excessive or disproportionate, then it will amount to a
battery. In Gibbons v Securicor, the plaintiff had been shouting and making gestures at the security
staff in a shopping centre, had refused to leave, and attempted to strike a security guard. The
security staff restrained him, detained him in an office and called the gardai. The court held that a
degree of force may be used to remove a person from a premises upon which they are trespassing,
and furthermore that a person can use reasonable force to defend themselves in response to an
attempted assault or battery. The court found that the actions of the security staff was justified in the
circumstances.
The acts which could be considered a battery in this instance would be Sarah’s pushing Matthew in
the direction of the house. While defence of property is a theoretical defence in respect of land, it is
required to be reasonably justified and on the facts of the present case it does not appear to be so,
as Sarah’s actions were not intended to protect her land, and her primary action should have been
directed toward asking Matthew to leave rather than forcing him to stay in the circumstances.
Conclusion
In light of the foregoing, it would appear that Matthew would have the requisite grounds to bring an
action in tort for assault, battery and false imprisonment.
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Question Two
"The principal reason for judicial reluctance to allow the recovery of pure economic loss is that the
scope of the liability is difficult to contain, raising the judicially unpalatable prospect of liability for 'an
indeterminate amount for an indeterminate time to an indeterminate class.'" in Quill, E, Torts in
Ireland, 4th ed, p 55.
Critically evaluate the Law in Ireland on liability in tort law for pure economic Joss.
Answer Two
Historically defendants could not be made liable for pure economic loss. Where it was admitted that
this could lead to an injustice to plaintiffs such matters of injustice were outweighed by the advantage
of avoiding a potential multitude of remote sometimes doubtful claims for a much wider range of
plaintiffs. Thus economic loss had to be consequential in nature. Such loss is generally recoverable
under general tort principles. Such financial loss occurs because of the physical damage caused by
the defendant. Here the plaintiff is entitled not only to recover for the physical suffering but also for
any financial losses suffered in consequence of the personal injury. (e.g. loss of earnings and
medical costs).
This only changed in 1964 when the House of Lords in the UK recognised an exception for negligent
misstatement in Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd. [1964] AC 465, a case which was
then adopted in Ireland. The court held that a bank was absolved from responsibility for the negligent
advice given because it contained the phrase ‘without responsibility’. The decision however is
important because the court stated inter alia that they would have found the defendants liable for the
pure economic loss of the plaintiffs if there had been no disclaimer.
Beyond these established exceptions, there is still considerable uncertainty in Ireland regading pure
economic loss and when it is permissible permissible.
The modern developments in Ireland were influenced by the UK decision in Junior Books v Veitchi Co
Ltd. [1983] 1 AC 520. The House of Lords upheld the liability of the sub-contractors for the financial
loss incurred by the plaintiff and awarded damages for the cost of replacing the floor and the
disruption and inconvenience. The House of Lords decided that on the unique facts of the case there
was a sufficient degree of proximity between the parties to give rise to a relevant duty of care.
The Junior Books decision was not endorsed in the UK subsequent cases such as, Murphy v
Brentwood District Council [1991] 1 AC 520 where is was stated that Junior Books must be confined
to its facts, i.e. where the relationship between the parties is so close to a contractual relationship an
element of reliance exists such that the scope of the duty of care can include purely economic loss.
The Junior Books decision was endorsed in Ireland in, Ward v McMaster [1988] IR 337.The
Supreme Court dealt with the issue of recoverability of the economic cost based on the principles of
negligence and the duty of care rather than a categorical approach which discriminates against
particular types of damage (as is the approach in England).
This conclusion received strong support from Flood J in McShane Wholesale Fruit & Veg Ltd. v
Johnston Haulage Co Ltd [1997] 1 ILRM 86 to the effect that – an action will not fail because the
damage is of a particular type it will fail because of the lack of forseeability and proximity. In
McShane Wholesale Fruit & Vegetables Ltd., the court did not rule out the action simply because it
was purely of an economic nature (i.e. the quality of the damage did not arise). Flood J stated that an
action “…will not fail because the damage is of a particular type” but because of a lack of proximity or
foreseeability between the parties. Flood J also noted that this is subject always to any compelling
exemption based on public policy. Thus, under the ruling of Flood J the fact that the damage is
economic is not in itself a bar to recovery where the other elements are present. Thus the test in
Ireland in relation to pure economic loss seems to be similar to the test for all other types of loss.
52
The matter of economic loss was then arose in Glencar Explorations v. Mayo Co. Co. [2002] 1
I.L.R.M. 481 but was not germane to the ratio of the outcome. However, Keane CJ did acknowledge
that pure economic loss had been recovered by plaintiffs in Ireland in cases of negligent
misstatement and against public housing authorities, as in Ward and Siney, but expressly reserved
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 v. Dublin Corporation and Ward v. McMaster (i.e. building-related claims).
Consequently, there remains some uncertainty and exceptional caution is still evident in how it is
broached by Courts in this jurisdiction.
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Question Three
Josephine was the Manager of the Service Department for Porky Pie Garages Ltd. Early one day,
Des left his car, a top of the range Rolls Royce, in for a service and said that he would return around
5pm to collect the vehicle. At around 4.50pm, Des telephoned the garage to say that he was running
late but that he would be there before 6pm at the latest.
As the garage closed at 5pm, Josephine decided that she would stay on at work until Des came to
collect his car. Everyone else had left by 5.15pm. Josephine waited until after 6pm but there was no
sign of Des, nor had he called to say that he would be even later or was not coming at all. Josephine
decided that she had waited long enough and would have to go home. However, she realised that
Des' car was on the front parking area. She was also aware that previously some of the cars parked
there had been damaged by vandals as the garage was not located in a very safe neighbourhood.
Concerned about protecting Des' car she considered moving it in to the enclosed service bay but by
now that area had been fully alarmed and she did not want to call the alarm company and reset it.
Josephine decided that she would leave her own car on the forecourt and take Des' car home where
it would be secure in the driveway of her house in a safe neighbourhood. She would then return with
it early in the morning and no one would be the wiser. She knew this was against company policy but
considered it to be a wiser course of action.
Unfortunately when she parked Des' car in her driveway, she forgot to put on the alarm and the
interior of the car was vandalised during the night.
Advise Porky Pie Garages Ltd as to their liability in tort for the actions of Josephine.
Answer Three
An employer may be liable for the torts committed by its employees by virtue of the legal principle of
vicarious liability.
From the given facts it would appear that Josephine’s actions in leaving the car unlocked was
causative of the interior of it being damaged. While some argument may be theoretically possible
that this was not a negligent which would justify the imposition liability on the basis that the damage
was in fact carried out by a third party, it appears to be the more likely presumption that this act (or
omission) was in fact negligent because the facts may be comparable to Stansbie v Troman [1948],
in which the Defendant decorator was held liable for the theft of the Plaintiff’s jewellery by a third
party as he had been instructed to lock the house when he finished his job.
Assuming that there is scope for a finding in negligence, the rationale behind the imposition of
vicarious liability on her employer is driven by the degree of authority and control an employer has
over an employee and the assumption that he should take care to ensure that his employees do not
cause harm to any other in the course or scope of their employment. In order for vicarious liability to
be attached to the employer, it first must be established that the wrongdoer is in fact an employee
and secondly, that the wrongdoing occurred within the scope or course of that relationship.
Once an employer/employee relationship is established, it must also be shown that the tort was
committed by the employee in the course or scope of his employment. There would appear to be no
question but that Josephine is an employee of Porky Pie Garages Ltd , and so the core question
would appear to be whether he was acting within the course and scope of his employment such that
his employer should be held liable.
The “course” test is considerably broader than the “scope” test. The former is where the employee is
doing something that he is employed to do, or anything which is reasonably incidental to his
employment. The latter is more nebulous and focuses on whether the employee acted within the
parameters of the authority delegated to him by the employer. The nature of the wrongdoing will
generally determine what test is; accidental/negligent acts will normally come within the “course” test,
54
while intentional acts which are extraneous to an employee’s duties will come within the “scope” test.
The time and place where the act occurred will also play a factor.
In Boyle v Ferguson the employer was found liable for the injury caused to two women who were
taken for a test drive at 7pm by the car salesman, whereas, in O’Connell v Bateman no vicarious
liability attached where the employee borrowed a work-car and had an accident while travelling to
see his parents.
In the present case, although Josephine was carrying out her duties in a manner otherwise than in
accordance Porky Pie Garages Ltd.’s policy, and without any specific direction on their part, she was
nonetheless carrying out her duties as an employee in furtherance of assisting the customer. This
would increase the likelihood that vicarious liability would be imposed.
The tort that Josephine has been responsible for would appear to be acts of negligence rather than
intentional acts in the sense that while she was acting independently, this was indicative of the
nature of her role and she did not appear to deliberately intend harm. She was not directed to do
what she was doing, but this may not be determinative. Even the fact of being forbidden to carry out
an act is not necessarily determinative of the issue of vicarious liability. The English case of Dubai
Aluminium Company (2003) where the Court discussed a number of principles in the area of
intentional wrongs and stated that:
• A flexible approach should be taken in these cases and the particular circumstances must be
considered.
• If the acts of the employee are totally unconnected with the employment, there will not be vicarious
liability on the part of the employer.
• An employer may be vicariously liable for the acts of an employee even if the employer had
forbidden the employee to carry out the act complained of.
Forbidden acts have also been considered in cases involving bullying or harassment, where a “close
connection” test has been favoured in the UK. This test relates to whether the tortious act was
closely connected with the employee’s work. This test appears to be wider than the scope of
employment test and would result in the imposition of liability in a greater number of cases in this
context. However it is unclear whether this test would be used in a more standard case of negligence
by an employee doing a forbidden act, and the test was used in this jurisdiction in a very restrictive
way in the case of R v D (2007). In the latter case, The Plaintiff alleged that he had been sexually
assaulted by the first Defendant while he was in the army between 1989 and 1999. He claimed that
as a result he had suffered PTSD and had a breakdown which destroyed his family life. The Plaintiff
claimed that the army was vicariously liable for acts of first defendant. No complaint had been made
by the Plaintiff until after he left army when he told a Sergeant who in turn reported it to the
authorities. The Defendant argued that the Plaintiff’s claim was statute-barred. It was held that the
Plaintiff’s claim came within Statute of Limitations (Amendment) Act 2000 and he was suffering
PTSD which is a psychological condition and his will to make a reasoned decision in relation to
bringing the action was substantially impaired. On this issue the court held that the claim was not
statute-barred.
The Court considered the UK jurisprudence on the close connection test and noted that these
previous cases concerned young vulnerable boys whereas the case before it concerned a married
soldier and that different considerations applied in the army as opposed to a residential school. The
court pointed out that nobody in authority had any real apprehension regarding the behaviour of the
Defendant and if they had then they would have reported it. The Court was influenced by the fact
that once the Plaintiff did complain to a sergeant years later, he informed the senior officers despite
being sworn to secrecy by the Plaintiff. The court concluded that the Plaintiff had failed to discharge
burden of proof that there were circumstances which would have alerted reasonable person and
cause them to take steps to either inquire into or prevent activities of the first defendant. On the facts
the employer had not been negligent.
55
On the facts of the present case, while a “close connection” test may be theoretically possible, it
would seem that a more standard “course and scope” test would be appropriate. If negligence is
made out, there would appear to be a strong case against for imposing vicarious liability on Porky
Pie Garages Ltd for any damage to the neighbour’s property caused by Josephine.
56
Question Four
"Damages may also be used for secondary purposes, such as the vindication of rights, deterrence
and public censure of undesirable behaviour." in Quill, E, Torts in Ireland, 4th ed, p 529
Critically discuss the extent to which the classification and award of damages in the law of tort acts to
modify the behaviour of potential tortfeasors.
Answer Four
The practice in this jurisdiction is to make one award of damages in respect of all past, current, or
potential future loss suffered as a result of a tort. The primary aim of an award of damages is to put
the plaintiff in the position he or she would have been in if the tort in question had not occurred. A
secondary purpose of damages can be to act as a deterrent or as a public censure. The primary
headings under which damages may be awarded in appropriate circumstances are: compensatory,
aggravated, exemplary or punitive, nominal, and contemptuous.
Compensatory Damages
Compensatory damages can either be for pecuniary or non-pecuniary loss. The former is often
referred to as special damages, and the latter, as general damages.
(i) Pecuniary Losses
Pecuniary losses are those quantifiable out of pocket expenses such as loss of earnings, or medical
expenses and have been held to include the cost of domestic help or the cost of financial advice in
appropriate circumstances.
Notwithstanding that these are “quantifiable” in nature, the Courts have experienced difficulties in
precisely how these amounts should be calculated. The case of Reddy v Bates [1984] IR 197
considered whether the calculation of loss of future earnings should include times of unemployment.
The cases of Jeffer v Cahill (unreported, Supreme Court, 29 July 1999) and O’Donoghue v Deecan
& Sons (unreported, High Court, 21 May 1996) both concerned evidence as to the claim that the
Plaintiffs were rendered unfit for any form of future employment by virtue of their injuries.
Complications also arose in relation to medical expenses owing to the availability of free medical
care generally, and the operation of section 2 (1) of the Health (Amendment) Act 1986 which
requires health boards to charge directly where the patient has received or is entitled to receive
damages for their injuries. Owing to a judgment of Kinlen J in O’Rourke v Scott (1993) a notional
amount of £100 was charged, but the Supreme Court subsequently found in Crilly v T & J Farrington
(2001) that a hospital should charge the averaged daily cost of bed and board in the specific hospital
and in that case, it was considerably more than the amount payable by virtue of the ‘Kinlen Order’.
(ii) Non-pecuniary Losses
Non-pecuniary loss refer to personal losses such as pain and suffering, loss of amenity and loss of
expectation of life. These reflect both past and future loss and can be very difficult for a court to
quantify particularly in cases concerning extreme impairment.
Sinnott v Quinnsworth [1983] ILR 523 concerned a young man who was rendered quadriplegic,
wherein the High Court reduced damages from £800000 to £150000 on appeal and stated that
unless there are particular circumstances which suggest otherwise, general damages should not
exceed a sum in the region of £150000 and that a court should resist awarding damages which are
so high as to constitute a punishment for the infliction of the injury rather than a reasonable if
imperfect attempt to compensate the injured.
57
In Kealy v Minister for Health [1999] 2 IR 456 however the Court distinguished Sinnott on the bases
that large sums had already been awarded for loss of earnings and future expences, and awarded
£250,000 to a plaintiff who had contracted Hepatitits C as a result of the negligence of the
Defendant. This approach was mirrored by the Supreme Court in in Gough v Neary [2004].
Cases in which the Plaintiff’s injuries have rendered the Plaintiff unaware of his loss and injuries
have met with differing approaches. In Cook v Walsh [1984] IR 208 – it was held that damages
should be more moderate. Hughes v Flaherty (1996) however is a case where the court refused to
make such a deduction and reserving it for “extreme cases.
Non-pecuniary damages can be awarded for loss of expectation of life but the courts have tended to
favour awarding only a moderate sum for such loss. In Philip v Ryan (2004) the Court on appeal held
that damages should have been awarded for possible loss of life expectancy due to loss of an
opportunity to avail of treatment earlier owing to the negligence of the defendants. The test applied
was whether there was an increased risk of shorter life expectancy and the test of the trial judge that
damages for loss of life expectancy depended on proof that life would probably not possibly have
been prolonged, was rejected.
Aggravated Damages
Aggravated damages reflect any additional and exceptional harm as a result of either the manner in
which the harm was inflicted or the defendant’s behaviour towards the Plaintiff after the initial tort.
In Daly v Mulhearn [2005] IEHC 140, aggravated damages were awarded in circumstances where it
was accepted that the Defendant accepted responsibility at the scene of an accident and then
subsequently accused the Plaintiff of fabricating her account and of being drunk.
In Philp v Ryan (2004) the court held that the Plaintiff was entitled to aggravated damages by reason
of the behaviour of the Defendants in their preparation and
presentation of the case and confirmed that aggravated damages could be awarded in cases of
negligence. The first named Defendant had forged documents to make it appear that he had a
stronger defence than he did in fact, and his legal advisors were also criticised for not informing the
Plaintiff’s solicitors of the true facts. This caused the Plaintiff to believe theirs was a strong defence to
the action and this caused the Plaintiff to suffer additional emotional stress and anxiety.
Exemplary or Punitive Damages
Exemplary and punitive damages are awarded in exceptional cases, chiefly to make an example of
the Defendant and to deter others from engaging in similar anti-social conduct.
In Rooks v Barnard [1964] AC1229 award of exemplary damages was restricted to cases of
‘oppressive, arbitrary or unconstitutional action by the servant of
Government but they can also be awarded in cases where the Defendant’s conduct was calculated
to make a profit in excess of the compensation normally recoverable by the Plaintiff, and cases for
which such an award is expressly authorised by statute.
These categories have been rejected in other jurisdictions and Irish judges have expressly and
implicitly doubted the merits of the limitations in Rookes on many occasions. In Conway v INTO
[1988] ILRM 472 the court finally rejected the
Rooks categories and the Court held that exemplary damages should be measured to meet the
wrongdoing rather than to benefit the wronged. The Supreme Court stated that these damages are
to mark the courts disapproval of the conduct and the Court should publicly be seen to have
punished the defendant. The objective is to punish wrongdoers for outrageous conduct and deter
others and the court will consider the manner in which a wrong is committed, conduct of the
wrongdoers after the wrong and in the defence. It was held that it was a conscious and deliberate act
to make gain without any thought as to who would suffer.
58
In Crawford v Keane an award of £7500 was made on the basis of Defendant’s behaviour after the
Tort had been committed. The Defendant had given deliberate false testimony throughout the
hearing. The Courts have consistently maintained that exemplary damages may be awarded only in
very exceptional cases and the awards have been low. However in Crofter properties limited v
Genport Limited [2002]
£250000 exemplary damages were awarded on the basis that deliberate and malicious phone calls
had been made and were intended to injure the Plaintiff’s in their business. The high sum was
awarded on the basis that the behaviour had been malicious and deliberate; the person who had
made the calls had committed perjury; and it was an extremely bad case and one in which there
must be some very substantial penalty imposed on the Plaintiff.
Nominal Damages
Nominal damages represent a token amount of damages awarded by the courts where the Plaintiff
has established a wrong but suffered no real harm. It reflects the view that there was a valid claim
and that it was not frivolous, notwithstanding that the damage done is minor in monetary terms. (e.g.
trespass / boundary disputes and torts which are actionable per se).
Contemptuous Damages
Where there is a technical wrong but no sufficient reason for bringing litigation. It is where the court
is of the view that there has been no material harm done to the Plaintiff or no significant interest to
protect, and the Plaintiff will generally not be awarded costs.
Conclusion
While it would compensation is certainly the primary concern of the award of damages in torts law,
the Court will in sufficiently appropriate circumstances, also make awards which are designed to
deter similar wrongs by imposing punitive or exemplary damages.
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Question Five
Alan was a duty ambulance driver. Late one winter's night he was called to an incident of a single
vehicle overturned in the ditch about 2 miles outside a small village. When he arrived at the scene of
the accident he saw a young woman trapped inside the vehicle and various contents of the car,
including a purse and phone, strewn around the road as they had been flung from the vehicle when it
lost control. Although badly injured, the woman was talking. Alan knew that it was important that she
retain consciousness and tried to engage her in conversation.
However, all she kept saying was, "I need my dad, I need my dad!" She seemed unwilling or unable
to say anymore. Alan tried to re-assure her by saying that her father was on his way. Alan then
picked the phone up from the road and, locating "Dad (Jack Murphy)" in the contacts list, called the
number telling Jack that his daughter had been involved in a bad accident and that he should come
quickly.
Jack arrived about 15 minutes later. shortly after the Fire service had arrived and had begun trying to
cut the woman from the car. Jack was so distraught he became physically ill.
However, as the woman was being removed from the car Jack realised that it was not in fact his
daughter but her close friend, who had found his daughter's phone which she had left behind in a
restaurant.
Jack still has bad memories of that night and often wakes screaming, imagining his daughter as the
victim of the car crash. He has gone for several counselling sessions.
Advise Jack if he has any action in the law of tort for his psychological damage as a result of these
facts.
Answer Five
Vicarious Liability
Jack seeks advice in relation to Alan’s liability, but as he is ambulance driver, it should be noted that
his employer may be vicariously liable for his negligent acts if they are established to have been
carried out within the course or scope of his employment. Alan appeared to be carrying out his duty
as an employee when the incident upon which Jack’s claim would be based occurred, and the
adverse effects suffered by Jack seem directly linked to Alan’s act of providing incorrect information
which lead Jack to understand that his daughter was seriously injured in a car crash, and to suffer
psychiatric symptoms as a result. Establishing vicarious liability however, would be contingent upon
satisfying the ingredients of the tort of nervous shock – an analysis of which will be set out
hereunder. It is also notable that in the event that liability would attach to Alan’s actions, what he has
done in this case appears to go beyond what an ambulance driver is strictly required to do and that
may be an issue which could arise in that context (however beyond the scope of the present
assessment).
Nervous Shock
Establishing a breach of duty or standard of care on behalf of Alan will involve Jack being able to
discharge a number of proofs which have been developed in relation to cases where a person
develops nervous shock as a result of observing/participating in a horrific accident.
The matter was first dealt with by Denham J in Mullally v Bus Eireann, and subsequently by the SC
in Kelly v Hennessy, both of which concerned plaintiffs
who had received news of their family’s injuries and upon viewing their injuries,
and subsequently went suffered nervous shock. The SC in Kelly set out 7 principles which would
determine whether a duty of care is owed by the defendant to the plaintiff to avoid causing him
psychiatric injury:
The plaintiff must suffer a recognised psychiatric illness.
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The illness must be by way of “shock" or sudden exposure,
The nervous shock must have been caused by the defendant’s act or omission.
It must be reasonably foreseeable that the initial event could cause psychiatric injury and
foreseeability of a general personal injury is not enough,
The illness must result from the perception of actual injury or a risk of injury to oneself or another
person,
If harm results from perception of an aftermath, there must be a close personal relationship
between the primary victim and the plaintiff, and
There must be no public policy limits on recovery where the plaintiff established sufficient
proximity and foreseeability by fulfilling the above conditions.
While the above principles were clearly set out to apply to secondary victims who
came upon the aftermath of an accident, Fletcher v Commissioner for Public Works established that
the principles do not apply to every claim for nervous shock, and suggested that if the plaintiff had
shown that he had a rational fear of contracting a disease as a result of the defendant’s negligence,
he would be entitled to recover damages for his fear and anxiety.
In Curran v Cadbury the court imposed liability for nervous shock caused to the plaintiff, as due to
her employer’s negligence, she had believed that she had caused severe injury to a workman fixing
a machine, and had suffered significant psychiatric injury as a result, even though the workman was
not injured. Fletcher and Curran are useful as they demonstrate that it is not necessary that any
actual physical harm occurred, and that it is sufficient that the plaintiff suffered nervous shock from
the threat or belief of actual physical harm and that this shock was caused by the negligence of the
defendant.
Duty of Care
Alan, as an ambulance driver has a certain duty of care in respect of the individuals he cares for in
that capacity, but the test would appear to be one of ordinary negligence rather than professional
negligence, and it is notable that what he has done in this case appears to go beyond what an
ambulance driver is strictly required to do, and he called Jack based upon what appears to be a
reasonable understanding of the facts as he understood them. He therefore may be said not to have
had an affirmative duty to call Jack at that time, but once he assumed responsibility for doing so, it
may be queried whether he acted reasonably in the circumstances. Notably, he did not confirm the
name of the injured woman’s father before calling, or relay the name of the injured woman to Jack,
and in that regard there is scope to suggest he carried out this task negligently, albeit that
cognisance would have to be had to the apparent urgency of the situation. In the circumstances, it
appears inappropriate to reach a definitive conclusion on the presence or absence of negligence.
It may also be worth stating for clarity that although Alan clearly had no role in the collision which
lead to the injuries, in this instance the shock does not flow from the initial event as in Kelly, but from
a perception of loss itself caused by an independent act – in this case the giving of incorrect
information which had the consequence of Jack thinking his daughter had been seriously injured,
and suffering a shock and a psychiatric symptoms as a result.
Psychiatric Illness
We are told that Jack suffers bad memories and often wakes screaming. As set out above the Kelly
criteria require that a recognized psychiatric illness has occurred. It would require medical evidence
to ascertain whether Jack would meet this criterion.
Conclusion
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On a superficial application of the Kelly principles and noting that Curran permits recovery for an
injury that was occasioned by a factually wrong but reasonably adopted belief; it would seem that
Jack may be capable of establishing a prima facie breach of a duty of care by Alan, provided he can
prove both that Alan did act negligently and that his injury is a recognised psychiatric illness, but
these issues will be a matter of evidence. As to causation, it would appear safe to conclude that
should the other criteria be met, the shock may be regarded as reasonably foreseeable in that the
belief could be regarded as one so shocking that psychiatric damage may occur and that this
element of the Kelly criteria are likely to be met.
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Question Six
Eddie lives in a large house which is located on about 2 acres of land. Eddie was concerned that the
world had gone crazy and was fully expecting the outbreak of a nuclear war in the near future.
Accordingly, at the rear of his property, adjoining Mary's land, Eddie has located what he calls his
'survival supplies' in a concrete bunker. The supplies included several toxic industrial chemicals, oils
and lubricant likely to be in short supply in the event of a disaster. It was Eddie's intention that he
could use these materials to trade for food and other basic necessities.
The bunker is surrounded by a number of conifer trees around 40 feet high. He had received
numerous complaints from Mary that these trees were blocking her light and that they needed to be
taken down but Eddie loved those trees and refused to move them. In addition, they hid the 'survival
supplies' from prying eyes. However, he did have a tree surgeon examine them, who confirmed that
they posed no danger to Mary's property.
During one of the increasingly more frequent "once in a century storms", one of the large conifer
trees became uprooted and fell down. It landed on Mary's conservatory which she had only just
finished, causing extensive damage. Further, when the tree had been uprooted it had cracked the
concrete foundation of the bunker causing several of the toxic chemicals to leak into the water
table below from which his neighbour had sunk a well and was using for drinking water. The effect
was to poison the water supply rendering it undrinkable.
Advise Eddie as to any liability he might owe his neighbour in tort law for these events.
Answer Six
Eddie may potentially be liable for the following occurrences:
1. Damaging Mary’s conservatory by reason of the falling tree
2. Poisoning Mary’s Water Supply
1. Damaging Mary’s conservatory by reason of the falling tree
While it can in some cases be difficult to tell the difference between a complaint in nuisance and one
in Rylands v Fletcher, the falling of a tree would generally be regarded as an example of the former as
a tree would generally be regarded as forming part of the land and would not be an accumulation of a
dangerous item for a non-natural use.
Nuisance has been defined in Connolly v South of Ireland Asphalt Co (1977) as an act or omission
which amounts to an unreasonable interference with, disturbance of, or annoyance to another person
in the exercise of his rights associated with enjoyment of his property
Private nuisance protects persons from unreasonable interference with rights related to ownership or
occupation of land. Private nuisance has been extended beyond protection of proprietary interests to
enjoyment of personal interests connected with the land.
There are a number of elements to a claim in nuisance:
– Locus Standi
– Conduct for which Defendant is responsible;
– Damage or interference with rights;
– Unreasonableness;
– Causation.
Locus Standi
Hanrahan v Merck Sharpe and Dohme (1988) – held that occupation of the premises is sufficient to
bring a claim for private nuisance in this jurisdiction. This differs from English position – Hunters v
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Canary Wharf (1998) but was affirmed in Ireland in the case of Molumby v Kearns (1999). Thus Mary
would appear to be able to claim under this tort.
Conduct for which Defendant is Responsible
Nuisance relates to acts or omissions for which the Defendant is legally responsible. Omissions may
include failure to alleviate natural hazards such as in Leaskey v National Trust (1980) where the
Defendants topsoil had slipped onto Plaintiff’s property causing damage and threatening more. The
Court held that persons in control of property are liable in nuisance for failure to do all that is
reasonable in the circumstances to prevent or minimise the risk of foreseeable damage which they
knew or ought to have known encroaches or is about to encroach the neighbouring land. In the
present case, since it is Eddie who is responsible for the trees, there appears to be little scope for
avoiding liability on this criterion.
Damage or interference
The Plaintiff must prove the form of damage in an action for nuisance but in some exceptional
circumstances damage does not have to be shown. In Hanrahan v Merck Sharp and Dohme (1988)
the Plaintiff’s recovered for damage to their cattle caused by toxic emissions from the Defendant’s
neighbouring plant. The Plaintiff’s also recovered for injury to their health as occupiers of the property.
In the present case there has clearly been damage to property, and so this criterion is easily met.
Unreasonableness
The test of whether the Defendant’s impact on the Plaintiff’s enjoyment of land is unreasonable
generally only applies only in cases in which there is no material damage. However, where there is an
omission to act, it would appear to be required to be shown that the defendant did not act reasonably.
In Lynch v Hetherton, the scope of landowners' obligations in relation to trees adjoining rural highways
was considered. The plaintiff's car had been damaged when an ash tree fell on it as he was driving
down a country road in Westmeath. The Circuit Court judge found in favour of the plaintiff, who sued
for nuisance and negligence, but O'Hanlon J reversed on appeal. The parties were agreed on the
general principle that a landowner was bound to take reasonable care to prevent damage from falling
trees. The plaintiff did not contend that a stricter test should be imposed. The Court suggested that it
was not expected that every farmer in the country should employ an expert to examine every tree
growing on their lands beside a highway, and that the standard of care would have regard to whether
the trees were in a rural or an urban area, O’Hanlon J was satisfied that what the plaintiff had done
was sufficient to discharge his legal obligation. Although the tree was rotten inside, the evidence fell
short of establishing that this rotten state had been perceptible externally before the accident. The tree
was on an out-farm, which the defendant passed five days a week. The defendant had tightened a
row of wire on a ditch, which was connected to the tree, with staples 10 days before the accident at a
point two feet above ground level. He had inspected all his trees, though he had not employed an
expert to look at them, and had cut down several before the accident. O'Hanlon J was satisfied that
the defendant was not under an obligation to employ an expert; even if he had done so, it was
probable that the decay would not have been detected.
In the present case, it would be a matter of evidence as to whether Eddie’s trees created a
foreseeable risk in the circumstances.
Causation
It appears obvious that proving causation would not be difficult in this case, as it appears to be
accepted that it was Eddie’s tree which damaged Mary’s conservatory.
Conclusion on First Issue
In all of the circumstances, it would appear that Mary would have a strong case for the tort of nuisance
against Eddie assuming she can demonstrate some unreasonableness in how Eddie managed his
trees.
2. Poisoning Mary’s Water Supply
The poisoning of Mary’s water supply occurred when the concrete foundation of Eddie’s bunker
cracked owing to the uprooting of the tree which caused several of the toxic chemicals to leak into
the water table below from which she had sunk a well and was using for drinking water. This is likely
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to give rise to a claim in tort by Mary against Eddie for what is known as the Rule in Rylands v Fletcher.
This is a tort which grew out of the older tort of nuisance and was defined in a case bearing that name.
The rule in Rylands v Fletcher imposes an exceptional form of strict liability and applies to unusual
dangers or activities on land. The imposition of strict liability means that the Defendant is liable in the
absence of intent or neglect. Where the Plaintiff can show the constituent elements the Defendant is
liable and liability in this area is nondelegable.
The original case of Rylands v Fletcher (1866) involved a Plaintiff and Defendant who were both in the
business of mining coal on adjoining property. The Defendant hired independent contractors to build a
reservoir to supply water to his mill. As a result of the contractors’ negligent failure to discover a
mineshaft under the reservoir, water from the reservoir broke from the shaft and flooded the Plaintiff’s
mine. In seeking to recover, the Plaintiff faced a number of difficulties because the (1) the Defendant
had been cleared of negligence by an arbitrator. (2) The Defendants could not be held vicariously
liable for the wrongs of their independent contractors. (3) Technically, a trespass had not been
committed, since the flooding was not a direct consequence of the Defendant’s activity and (4) A
nuisance had not been committed, since this was a single escape of water. In imposing a strict form of
liability, the Court stated: “the person who for his own purpose brings on his lands and collects and
keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not
do so, is prima facie answerable for all the damage which is the natural consequence of its escape”
In Rylands the judges seemed to analyse the cause of action as a variation of nuisance but
subsequent cases have accepted it as a distinct tort and the principle has been modified to distinguish
between cases where the Defendant’s use of his land was natural and cases where the use was nonnatural. In Hanrahan v Merck Sharp and Dohme (Ir) Ltd (1988)23 the Court identified the kernel of the
principle as whether the Defendant made use of “a thing which was likely to do mischief if it escaped”.
There are a number of distinct elements in this cause of action:
• Locus standi
• Accumulation
• Dangerous item
• Non-natural use
• Escape
• Causation
• Damage
In the present case, it would not appear that Mary would face any difficulty in establishing the various
ingredients of the tort as the chemicals accumulated by Eddie appear to meet the definition of an
accumulation of a dangerous item for a non-natural use (however this latter elements will be
considered in more detail below). It did escape from the land as a matter of fact, and did cause
damage to Mary’s land.
A dangerous item is defined as anything likely to do mischief if it escapes. If there is a controversy in
respect of this point in respect of the chemicals, the Court will examine the item and the
circumstances of accumulation. The Defendant’s knowledge of the danger is relevant but the case law
is unclear as to what degree of knowledge is required. In West v Bristol Tramways Co (1908), the
Defendant allowed fumes to escape which killed the Plaintiff’s plants and shrubs. The Court held that
the standard of knowledge is common knowledge and the onus was on the Defendant to show that
there was general knowledge that the item was not dangerous. In this case although the fumes were
not highly dangerous this was not general known and the fumes qualified as a dangerous item. In
Cambridge Water Co v Eastern Counties Leather Plc (1994), a chemical substance seeped into soil
from the Defendant’s premises and contaminated the Plaintiff’s bore hole which was used to supply
water for public supply. The Court held that the test is the reasonable foreseeability of the danger. The
Court said it will consider the nature of risk capable of being known to the Defendant and the
Defendant’s knowledge in relation to the means of escape and the potential harm. The Court
concluded that the harm was not reasonably foreseeable since chemicals had seeped into a bore hole
located one mile away.
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Conclusion on Second Issue:
It would appear from the present facts that the type of damage caused to the water supply is
reasonably foreseeable. The two pieces of land are proximate to each other and it would be unlikely
that there would be any evidential deficit in proving that the chemicals did effect the water supply in
the manner alleged. It is likely therefore that Mary could sustain a claim against Eddie in relation to
her water supply for the tort in Rylands v Fletcher.
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Question Seven
Bill operated a restaurant in the theatre district of the city. His was a popular spot for pre and post
theatre dining and he was regularly full to capacity. As he was limited by the physical constraints of
the building he was operating from, he had begun preparation for offering a catering service to
external venues where he would cook food and deliver it to businesses and private residences.
About a week before Bill was due to launch this new business, Cro-Mangon Construction negligently
destroyed a water mains while working on a nearby building. This resulted in Bill's restaurant
having no water and as a result, it had to temporarily close. However, when Cro-Mangon
Construction attempted to repair the break in the water mains, the water company insisted that the
entire pipe be replaced with new modern pipework which had to be specially made in Germany and
shipped to Ireland. This would take about 4 weeks during which Bill's restaurant would be without a
mains water supply.
In an effort to minimise the disruption to Bill, Cro-Mangon Construction connected a temporary
supply to the restaurant through a tanker of water located at the rear of Bill's restaurant.
Unfortunately, Cro-Mangon sourced the tanker from Waste Oil Containers, and although it had been
steam cleaned and was capable of being used for drinking water, the tanker was still labelled: "Not
for Drinking Water." After Bill had used all the water in the tanker, Cro-Mangon arranged for it to be
refilled by Acme Water Suppliers. When the tanker was being refilled, the driver, spotting the sign
"Not for Drinking Water" decided to fill the tank with non-drinking water without asking anyone.
As a result, many of Bill's customers at the restaurant became sick. Even worse, despite professional
advice not to start his external catering service until full water services had been resumed, Bill
catered for an office function resulting in even more people becoming sick.
Cro-Mangon Construction accepted they were responsible for the break in the mains but claim that
they could have fixed that within a day and are therefore not responsible for anything beyond
one_day's loss of water supply.
Advise Bill as to whether Cro-Mangon is the cause of his losses and the extent, if any, to which such
losses might be too remote in the law of tort.
Answer Seven
As to whether Cro-Mangon ‘caused’ all of Bill’s losses, this may be a somewhat subtle issue
involving overlapping factors. The factors which might be particularly apt for consideration appear to
be as follows:
1. Whether Cro-Mangon have to accept that their negligence required a 4-week delay because
of the water supplier’s requirements.
2. Whether it was necessary to change the label on the water tank;
3. Whether it was reasonably foreseeable that a failure to do so would specifically cause
unpotable water to be put into it.
A potential follow-on issue from point 2, is that if it was reasonably foreseeable that a mistake would
cause damage to the stove, then it must be considered whether it was reasonably foreseeable that
the mistake would cause the impact it did.
As to the first issue (the delay owing to the need to get a particular pipe imported), this would appear
to be a case where the issue does not go to the nature of the damage but the extent of the cost or
inconvenience involved in remedying it. What may be said not to be reasonably foreseeable was the
quantum of damage (i.e. the true cost of repair). This idea was considered in Egan v Sisk (1986). In
this case, the Plaintiff’s warehouse was flooded due to the negligence of the Defendants. Their
economic loss was significant since their Christmas brochures were destroyed and could not be
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reprinted and posted in time for their Christmas mail-order market. It was held that it is reasonably
foreseeable that once a warehouse is flooded, property stored therein will be destroyed. The
Defendant must assume responsibility for the full value of the goods thereby destroyed, whether they
be expensive furs or old masters. The Egan case established that the type of damage caused must
be reasonably foreseeable, but not necessarily the scale of the damage. If the damage caused is not
reasonably foreseeable it is deemed too remote and the Plaintiff will not recover. Therefore, CroMangon appear unlikely to be able to avoid liability for this in addition to the first day in which the
water supply was cut off.
As to the second issue, it appears clear that there is no inherent problem with failing to change the
warning sign on the safe water, but it is a significant issue in respect of the third issue as to whether
it might be reasonably foreseeable that a failure do so would lead to the erroneous refilling of the
tank. This issue may require some detailed investigation as to the facts. It perhaps is the case that
Cro-Mangon didn’t foresee this difficulty, but the question is whether they should have. If they could
not be expected to have foreseen this possibility, then any liability they may be charged with for not
having done so, cannot be made out, and they is consequently absolved of any liability in
negligence. What leans in favour of liability being imposed would be the two important facts that (a)
they were aware of the four-week delay and this may suggest the need for refill and (b) they were not
going to be doing it themselves, and so confusion may arise owing to the signage; but on the other
hand, they can’t have foreseen that Bill would proceed with the new business in circumstances in
which he was advised not to do so. In that regard, it may be that no refill would have been required
were it not for Bill’s unforeseeable actions in persevering with catering service.
Assuming that there was a want of care at this stage, then the Court would be called upon to
consider whether the damage is too remote. This also involves a test of what is reasonably
foreseeable.
The reasonable foreseeability test regarding remoteness of damage was established in the case of
The Wagon Mound (1961) where the Defendant spilled oil at sea which then was transferred to a
nearby wharf which was ignited by falling molten material by welding work being carried out thereon,
and the Plaintiff’s wharf was destroyed. The Defendant was held not liable because damage by fire
was not foreseeable in the circumstances and the Court stated it does not seem consonant with
current ideas of justice or morality that for an act of negligence, however slight or venial, which
results in some trivial foreseeable damage the actor should be liable for all consequences however
unforeseeable and however grave, so long as they can be said to be ‘direct’. It is a principle of civil
liability, subject only to qualifications which have no present relevance, that a man must be
considered to be responsible for the probable consequences of his act. To demand more of him is
too harsh a rule, to demand less is to ignore that civilised order require the observance of a minimum
standard of behaviour.
In the present case, what is at issue is the question of the ultimate damage: the use of the water in
catering which resulted in sickness. A distinction may have to be drawn on the facts between those
who got sick in the restaurant and those who got sick from the catering event on the basis that (a) it
may have been Bill’s perseverance against advice that required the tank to be refilled in the first
place; or (b) if it was not, the fact of the Bill also using the water for the catering service would not be
foreseeable in the same way as use of the water in the restaurant would be.
Therefore, what prima facie defences may be open to Cro-Mangon appear contingent upon further
consideration of the facts. However, should it be that they should have foreseen the necessity to refill
the tank and are liable for their want of care with the signage on that account, they may have a case
to the effect that they should not be held liable for the unforeseeable use made of the water by Bill in
proceeding to offer a catering service against the professional advice he had received.
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Question Eight
"[Part Ill of the Civil Liability Act 1961]...simplified the law greatly and removed a number of
anomalies which created unnecessary obstacles to the recovery of compensation." in Quill, E, Torts
in Ireland, 4th ed, p 491
Critically discuss the provisions of Part Ill of the Civil Liability Act 1961 as it relates to concurrent
wrongdoers in tort law.
Answer Eight
Definition of Concurrent Wrongdoers
Section 11 (1) of the Civil Liability Act 1961 provides that “two or more persons are concurrent
wrongdoers when both or all are responsible to a third person ... for the same damage”. Section 11
(2) specifically provides that persons may be concurrent wrongdoers by virtue of vicarious liability of
one for the other, breach of a joint duty, conspiracy or concerted action to a common end, and
independent acts causing the same damage. There is concurrent liability so long as one injury has
been caused to the Plaintiff irrespective of whether the wrongdoers have acted in concert or
independently. Where different injuries occur (one Defendant injures arm, other Defendant
separately injures leg) the Plaintiff must institute two sets of proceedings but where the different
injuries result in one ultimate condition (damage to separate eyes resulting in total blindness), the
Plaintiff may sue the Defendants in one set of legal proceedings as concurrent wrongdoers.
Section11 (3) provides that “where two or more persons are at fault and one or more of them is or
are responsible for damage while the other or others is or are free from causal responsibility, but it is
not possible to establish which is the case, such two or more persons shall be deemed to be
concurrent wrongdoers in respect of the damage.” This provision covers situations such as where a
team of hunters shoot at prey but accidentally shoot the Plaintiff and it is not possible to establish
precisely whose bullet entered the Plaintiff.
Principle of Full Responsibility
Each concurrent wrongdoer is fully liable for the whole of the Plaintiff’s loss. This is known as the
principle of full responsibility. Section 14 states that the court can give judgment jointly or separately
against the Defendants, and if jointly it shall have the effect of being given separately against each
Defendant. Thus the Plaintiff can elect to extract judgment from any of the Defendants and that
Defendant is forced to seek contribution from the other Defendants in a separate application under s
21. The constitutionality of this principle was challenged in Iarnrod Eireann v Attorney General,
Gaspari et al (1996) in the Supreme Court. In an earlier ruling, the Court held Iarnrod Eireann 30
percent liable and a cattle owner 70 percent liable for injuries sustained by passengers when a train
derailed after colliding with cattle. In accordance with his rights under s 14 of the Act, the Plaintiff had
elected to extract full judgment from Iarnrod Eireann. However, Iarnrod Eireann’s right under s 21 to
obtain contribution from the remaining Defendants was worthless as the cattle owner was uninsured
and it faced an estimated total bill of £3.9 million for all the injured passengers.
The applicant challenged the Act’s policy of letting the loss fall on the shoulders of the deepest
pocket regardless of fault, as a disproportionate, unfair, and arbitrary attack on property rights
contrary to Articles 40.3 and 43 of the Constitution. The Court upheld the constitutionality of the
provision and held that any structural changes in the law governing concurrent liability would have to
be effected by the executive. In response to the submission that damages should be reduced
wherever a concurrent wrongdoer will be unlikely to obtain contribution from a fellow concurrent
wrongdoer: “The wrong done to the Plaintiff is regarded as indivisible. … [I]f a deficiency has to be
made up in the payment of damages, it is better that it should be made up by someone in default
than that a totally innocent party should suffer anew.”
Procedure Available to Plaintiff
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Where the Plaintiff is satisfied that each concurrent wrongdoer has the means to satisfy a judgment
the Plaintiff may agree to an apportionment of damages between the Defendants under s 14 (3). In
this case, satisfaction by one co-Defendant of his share in the damage does not relieve the other coDefendants of their shares and because they have agreed to an apportionment of damages the
Defendants are not entitled to contribution from each other under s 21. Where a judgment against
one of the co-Defendants remains unsatisfied, the Plaintiff may be entitled to return to court to get an
order that the shortfall be distributed amongst the remaining Defendants.
Section 13 provides that the Plaintiff can sue one, a combination or all of the concurrent wrongdoers
in one set of proceedings and, where possible, the Plaintiff should join all wrongdoers in one set of
proceedings. Under s 32, where the Plaintiff sues the concurrent wrongdoers in the one action, each
Defendant has a right to give evidence not only against the Plaintiff but also against the other alleged
concurrent wrongdoers.
Section 18 provides that where a Plaintiff proceeds against a concurrent wrongdoer the Plaintiff is
not precluded from subsequently proceeding against another wrongdoer. However, where separate
actions are taken against concurrent wrongdoers, the court is bound by the relevant findings of fact,
including the Plaintiff’s contributory negligence reached by the earlier court. The damages awarded
in subsequent action cannot exceed the original amount awarded and, most importantly, the Plaintiff
cannot recover costs of the subsequent action unless there were reasonable grounds for bringing the
separate action. The HC can order that actions taken separately against independent wrongdoers be
‘consolidated’ into one action where appropriate and this is provided for under Order 49 of the Rules
of the Superior Courts.
Procedure Available to Concurrent Wrongdoers
Under s 21 (1), contribution may be obtained between concurrent wrongdoers who are liable in
respect of the same damage. Section 21 provides that the contribution is intended to be “just and
equitable having regard to the degree of [the] contributor’s fault”. The Court stated in Kelly v
Jameson (1972) that fault in this instances is blameworthiness not the causative factors. Due to the
difference between ‘fault’ and ‘liability’, this may have the effect of one concurrent wrongdoer paying
considerably less than his causative share. The decision in Kelly was affirmed in Iarnrod Eireann v
Attorney General, Gaspari et al (1996) and the Court noted that: “However difficult the consequences
may be of using blameworthiness as the exclusive criterion for apportioning liability either in cases of
contributory negligence or contribution between concurrent wrongdoers, they are less than those
caused by any attempt to make causation the criterion.”
Section 23 provides that a contribution is obtainable by one wrongdoer from another in respect of the
amount by which the sum paid by one exceeds his just proportion. In this way the contribution is
obtainable only after damages have been paid over to the Plaintiff.
The application for a contribution is a matter for the Defendant and will depend on the parties to the
proceedings. Where the concurrent wrongdoers are sued in the same action by the Plaintiff, a coDefendant who seeks contribution or indemnity from a fellow co-Defendant must serve a Notice for
Indemnity or Contribution on, before or after judgment. A separate court application is not necessary
and the court then determines the issue of contribution or indemnity after the hearing of the main
action. Where the Defendant seeks a contribution from a concurrent wrongdoer who is not being
sued in the same action or at all, he must apply to court to serve a Third Party Notice. The court
determines this issue after the hearing of the main action and the Defendant is only entitled to
recover contribution from a third party if the Plaintiff in the action would have succeeded in
proceedings against the person from whom the contribution is claimed. A third party joined by a
Defendant is not a co-Defendant to the action but if the Plaintiff wishes to target the third party for
total or partial judgment, the Plaintiff may apply to court to join the party as a co-Defendant, which is
usually done orally on the day of the Defendant’s application to serve the Third Party Notice. A Third
Party notice must be served by the Defendant as soon as possible and the Courts have discussed
this procedure on a number of occasions.
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Section 31 provides that the limitation period which applies to a Plaintiff bringing the proceedings
also applies to the wrongdoer seeking the contribution or an alternative limitation period of two years
after judgment is given or damages paid applies and the Defendant can avail of which ever period is
longer.
In practice, a Defendant should proceed against a concurrent wrongdoer as soon he is aware of the
Plaintiff’s claim and potential claim for a contribution from another party. The Courts have discretion
whether to allow the Defendant to seek a contribution from another party, even where the Defendant
initiates the application within the limitation period. The timing of the application brought by the
Defendant and the prejudice suffered by the other parties to the proceedings will be taken into
account.
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Exam Paper - March 2017
Question One
Sam, 17, was the best defender for his secondary school soccer team. Sam was never afraid to be
‘brave’ and enjoyed a robust physical game. He was feared by his opponents who would often kick
the ball wildly away from them once they spotted Sam's imminent arrival.
Sam's team made it to the national final of the Secondary School Soccer Title Cup. The game was in
its 80th minute and Sam's team were ahead 1-0. Suddenly Sam saw an opposing player kick a high
ball into the penalty area, aimed directly for another opponent who was ideally situated to head the
ball neatly into their open goal. Sam wasted no time and charged towards his opponent to
dispossess him. As both Sam and the other player jumped into the air, they smashed into each
other's heads, falling back to the ground. Sam just lay there unconscious. By the time the medical
team and his coach Peter arrived, Sam had been unconscious for about two minutes but a dose of
smelling salts quickly brought Sam around.
Sam began to get up at which point Peter said "Not so fast! You were out cold. I am taking you out of
the game." Sam looked at Peter and said "No way. There is only ten minutes left — I'm fine. We
could still lose this game, you need me."
Peter knew there was a protocol to follow which involved the team doctor examining Sam, but Sam
had run back into position and the referee was signalling to re-start the game. Peter knew that Sam
was essential if their team was to hang on for victory, and besides which Sam would not leave the
field willingly. Peter shrugged his shoulders and headed back to the sideline to watch the end of the
game. Sam's team won but during the immediate post-match celebrations he collapsed unconscious
on the field. He was taken away by ambulance to the hospital where it was found that he had had a
bleed on his brain as a result of the concussion that could have been prevented if Sam had not
continued playing.
Discuss what liability in tort, if any, the secondary school might be liable for.
Answer 1
Vicarious Liability
The present scenario requires a consideration of the liability the secondary school which Sam
attends, for the exacerbation of his head injury owing to his continuing to play on his soccer team
following an injury sustained in play. The factual basis upon which they would be regarded as liable
is that Sam was under the care of his coach, Peter, who may be assumed to be an employee of his
school, who did not remove Sam from the field after his initial injury despite there being a protocol to
follow which involved the team doctor examining Sam, for the combined reasons of the fact that Sam
had run back into position and the referee was signalling to re-start the game; Peter knew that Sam
was essential if their team was to hang on for victory; and thought that Sam would not leave the field
willingly.
Insofar as this scenario may indicate a tort against Sam for which the school may be liable, the issue
will be whether Peter was negligent in his handling of the situation such that damages would be
recoverable against him, and if he regarded as having been negligent, then the school who employs
him would stand as a defendant in the case owing to the operation of vicarious liability.
It appears clear that a relationship of employer/employee exists as between Pater and the school
such that the doctrine of vicarious liability is prima facie applicable. Once such a relationship is
established, it must also be shown that the tort was committed by the employee in the course or
scope of his employment. The “course” test is considerably broader than the “scope” test. The former
is where the employee is doing something that he is employed to do, or anything which is reasonably
incidental to his employment. The latter is more nebulous and focuses on whether the employee
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acted within the parameters of the authority delegated to him by the employer. The nature of the
wrongdoing will generally determine what test is; accidental/negligent acts will normally come within
the “course” test, while intentional acts which are extraneous to an employee’s duties will come
within the “scope” test. The time and place where the act occurred will also play a factor. In Boyle v
Ferguson the employer was found liable for the injury caused to 2 women who were taken for a test
drive at 7pm by the car salesman, whereas, in O’Connell v Bateman no vicarious liability attached
where the employee borrowed a work-car and had an accident while travelling to see his parents.
While the liability imposed under the “course” test is understandable as the tort was generally
committed while the employee was carrying out a duty which he was instructed to do, the liability
imposed under the “scope” test can be a little more contentious, especially when the employee
intentionally commit wrongs which are completely outside the course of his employment. Again, the
nature of the wrong will influence whether liability will attach to the employer.
As Peter’s role was partially defined by the protocol which was to be followed in the event of an injury
which rendered a student unconscious, it seems clear that for him not to implement it would be to
suggest that he is acting (or more precisely, omitting to act) within the scope and/or course of his
employment. He apparently had some personal interest in wanting to see the team win, which
motivated his actions, but this would not appear to be such as to take his behaviour outside of the
realm of the course or scope of his employment, which would be a countervailing factor in cases
concerning, for example, assault and battery by an employee acting out of personal spite or
motivation. In some cases, vicarious liability has been avoided because an employee has acted in
contravention of an established rule or practice, however these cases are more the exception than
the rule. One example would be Reilly v Ryan which was a case in which the employee bar manager
intentionally used a customer as a shield when he was attacked by a robber with a knife. The court
refused to attach liability to the employer, as he had been specifically instructed that customer safety
was paramount and thus his actions were outside the scope of his employment. The prevailing view
however is that a breach of a rule should be considered as a factor only by the Court on the question
of the applicability of vicarious liability.
It appears likely on the facts of the case that the school would be held to be vicariously liable for any
breach of duty on the part of Peter.
Duty of Care
As to whether Peter did breach a duty of care, the most appropriate test to apply would appear to be
that applied to teachers in schools in respect of the children they are in charge of. A school owes a
duty of care to its pupils who attend the school. The standard of this care was recognised by the SC
in Lennon v McCarthy “to take such care of his pupils as a careful father would of his children.” In
Murphy v County Wexford VEC the SC stated this duty extended to taking reasonable care to ensure
that pupils did not suffer injury and this involved some degree of supervision. In Maher v
Presentation School Mullingar the court held that a school is expected to be no more of less vigilant
than that of a parent in their own home, which would involve a degree of supervision appropriate to
the needs of the situation and a breach of that duty would only occur where there was an element of
foreseeability.
In the present case, there was a foreseeability of harm, because a protocol had been established for
precisely this situation. In that respect, it appears likely that a breach of care would be considered to
have occurred by reference to Peter’s actions.
It may be worth noting that Peter’s duty of care is technically an affirmative one in this case, because
his obligation was to prevent further injury. That said, it would appear to be inescapable that the
special level of proximity required for the application of a duty of care would be met easily in this
case owing to Peter’s role as a coach and the fact of Sam being a minor in his care.
Contributory Negligence
The school may be able to claim some contributory negligence by reference to Sam’s own decision
to play on despite Peter saying “I am taking you out of the game” because he was “out cold”. As to
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whether such a reduction would be made, particular attention would have to be paid to the fact that
Sam is a minor and the Court would have to consider his capacity to be contributory negligent in this
context. In Fleming v Kerry County Council (1955-56) the Court held that the issue of contributory
negligence of a minor will be assessed having regard to the age, mental development and other
circumstances relating to the child. In applying that principle in a later case of Hession v Hession
(2005), there was a case in which the Plaintiff’s father’s car began to move in the driveway because
the handbrake was off. The minor Plaintiff, who was 14 at the time, rushed over and tried to stop the
car but she was crushed between the car and the wall and sustained injury to her legs. The Court
stated that it was a foolish act by the girl but was an intuitive reaction and was not a deliberate
exposure to risk. The Court referred to the fact that she was 14 and held that there was no
contributory negligence. In McNamara v ESB (1975) however, the Supreme Court upheld a finding of
contributory negligence in respect of an 11 year old child for not taking heed of warning signs at a
power station.
On the facts of the present case it is possible that some contributory negligence could be imposed,
but it is likely that if it were imposed, it would not extend beyond perhaps 15% in circumstances in
which Sam was minor, and it was Peter’s job, as the coach, to be aware of the dangers associated
with head injuries and to apply the appropriate policy. On the whole, the chances of contributory
negligence being imposed at all would likely be quite low.
Conclusion
It would appear that a Court would likely find that Peter did breach a duty of care to Sam, and that as
he was an employee of the school acting within the course or scope of his employment, that the
school would be vicariously liable. It is unlikely that damages would be reduced owing to any
contributory negligence on Sam’s part. It should specifically noted that what the school would liable
for is not the original injury, but the exacerbation of it by reason of Sam being permitted to continue
to play, and not being removed from the field by Peter in line with the established protocol.
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Question Two
"It is well established that public authorities can in some circumstances be liable for breach of
mandatory statutory obligations,.. it is also recognised that the exercise of discretionary powers and
functions can give rise to a duty of care..." Quill, E., Tons in Ireland, 4th ed PPI 15-116
Critically discuss the extent of this duty of care for discretionary powers and functions
Answer Two
The question of the extent of the duty of care of public authorities for discretionary powers and
functions was discussed in cases as early as Home Office v Dorset Yacht Club (1970). In that case,
the House of Lords found that the authority’s statutory origins did not prevent liability in common law
negligence, and a local authority could owe a duty under Donoghue principles in the course of
performing its statutory functions . However, the HL stated that a public authority is not liable for the
negligent exercise of a discretion given to it by statute, unless the exercise is so unreasonable that
one could not say that statute intended to confer that type of discretion on it.
Later, in Anns v Merton London Borough Council (1978), in which it was held that a local authority,
when exercising its functions, can owe a private duty of care to another, and this duty arises by virtue
of the relationship and the circumstances existing between the parties; the Court drew a much
criticised distinction between ‘policy initiative’ and ‘operational functions’ of authorities and held that
liability is more likely to result from the negligent exercise of operational functions. The Court
stressed that policy initiatives involve the exercise of the authorities’ discretion which is not a matter
for the Courts.
The House of Lords returned to the question in Governors of Peabody Donation Fund (1985). In that
case, the authority granted permission for a development but when they inspected it they discovered
the foundations for the development were not within the terms and conditions of the planning
permission granted. The Defendant didn’t inform the owner who sued for negligence in carrying out
inspection. The HL refused to allow recovery for losses sustained by the Plaintiff as a result of the
local authority’s failure to carry out its duties under the planning legislation. HL justified this on the
basis that the purpose of the legislation had been to ensure the safety of developments and this had
not been in doubt at the relevant time and that it was not “fair and reasonable” to impose liability on
the authority. The Court also held that there was no actual damage to the building and the loss was
purely economic. The decision of Barrett v London Borough Enfield (1999) reiterates the general rule
that where the Defendant has acted on foot of a discretion vested in it through some overriding
statutory power, common law negligence is generally ruled out. The HL stated that: “The two tests
(discretion and policy/operational) ... are guides in deciding the question. The greater the element of
policy involved, the wider the area of discretion accorded, the more likely it is that the matter is not
justiciable.” [emphasis added]
In Ireland, the case of Glencar Explorations plc v Mayo County Council (No 2) (2001) gave the
Supreme Court a recent opportunity to consider discretionary powers and the capacity of a plaintiff to
sue on the basis of the misuse of them. In that case, the council's decision not to grant planning
permission for any mining development within the specified area was (on the assumption that it was
intra vires) the exercise by it of a statutory power which would result in the withholding of a benefit
from the plaintiffs which would foreseeably result in their suffering financial loss. Keane CJ gave an
elaborate analysis of the ingredients of the duty of care in negligence actions generally, to which was
added the extra requirement of satisfying the court that it would be "just and reasonable"' to impose
such a duty. He went on to address the position of public authorities when performing a statutory
function. The Chief Justice reviewed some of the relevant Irish'' and English" case law, noting that, in
cases in England subsequent to Anns v Merton London Borough, it had been said that the distinction
between policy and operations might not be a particularly useful guide in determining whether a duty
of care should be found to exist in any particular case; similar considerations applied to the
distinctions drawn in some of the authorities between discretionary and non-discretionary decisions.
The Chief Justice went on to observe that for the purposes of this case, it is sufficient to say that the
mere fact that the exercise of power by a public authority may confer a benefit on a person of which
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he would otherwise be deprived does not in 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 same case, Fennelly J, reflected on the necessity to obtain legal advice when exercising
discretionary powers, and concluded that in circumstances in which an enormous number of
discretionary statutory powers are exercised on a daily basis. An obligation to seek legal advice even
as a counsel of perfection could have a paralysing effect on public administration. The Court stated
that individuals enjoy protection from the consequences of unlawful public action in three respects:
firstly, if that action consists of the commission of a recognised existing tort, including, in certain
cases, negligence; secondly, unlawful decisions can be quashed on judicial review; thirdly,
misfeasance in public office by knowing or malicious abuse of power, combined with the right in
appropriate cases to award exemplary or punitive damages is the most appropriate remedy. The
Court did not consider that a general duty to take legal advice can realistically be imposed on public
authorities. He stated that at the least, it would have to be shown that the statutory power in question
was of the type which is designed to protect particular interests and that the plaintiff comes within its
scope. In addition, it would probably be necessary for the claim to arise from the context of the type of
individual transaction which was the subject-matter of Ward v McMaster or perhaps from the sort of
reliance on the expertise of another which formed the background to Hedley Byrne v Heller and
Partners Ltd.
These comments reflected the principles set out in Pine Valley Developments v Minister for
Environment (1987), concerning the recoverability of damages as against public authorities for ultra
vires actions, which would also apply to discretionary powers. Thus, there is an assumption against
private recovery of damages for a decision which was merely ultra vires. In Glencar Explorations, the
SC concluded on the facts that the Defendant authority, in imposing the mining ban in its
development plan, had acted contrary to the planning legislation, but had not acted in bad faith,
deliberately in disregard of its powers and had not acted negligently.
It is notable that damages do not appear to be excluded in all cases, and one example would appear
to be in Callinan v VHI Board (1994). The Defendant had removed the Plaintiff’s private hospital from
their new VHI hospital insurance scheme, after the Plaintiff had opposed the new charges during the
negotiations. The Plaintiff sought damages for breach of statutory duty. The HC held that the VHI
was (then) a public body and was under a duty to exercise its powers fairly and reasonably not only
towards its subscribers but to all providers of health care. The Court concluded that the failure to act
fairly and reasonably amounted to a breach of statutory duty, for which damages lay. The SC
affirmed the HC view that that the Defendants had “abused their statutory powers” and were “unfair
and unreasonable” and the Defendants were deemed liable on this basis.
A notable issue with the approach in the HC and SC is that the judgments fail to classify what tort the
Defendants committed for the purposes of the Pine Valley test. The case however does not appear to
be in conflict with Glencar which appears to accept that a particularly close proximity may suffice for
the recovery of damages.
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Question Three
Ann was a sports commentator whose views were deliberately designed to be provocative. It was
often believed that her statements were aimed at increasing her ratings rather than being her
personal beliefs. And in this she was highly successful. Everyone wanted to have her on their
television or radio show. She also wrote a column for the most widely read newspaper in the country,
The Daily Globe. This is an extract of her most recent column which has been submitted for
publication.
“Juan is an absolutely brilliant athlete. And who cannot believe that as Juan ages, his performance
increases dramatically. Truly he defies all known understanding of human development. In less than
five years he has, in my opinion, moved from a rugby player who looked as if he should retire, to our
national hero – although when we say ‘national’ we mean he has and Irish passport, although no
Irish blood, not even a remote great, great, great grandparent like our soccer players. Last week, I
was to interview Juan in the dressing room. When I arrived he wasn’t there but there was a bottle of
well-known liquid pain medication on the bench. I left and when I returned Juan was there but –
quelle surprise – bottle was empty. I am convinced that it evaporated due to the heat in the room.
Others might disagree but I would imagine they could provide no alternative as to what happened.
My medical friends tell me that the medication would be the equivalent of 10 cups of coffee. On an
entirely separate note, do you not all agree with my view that modern sports is now just an outlet for
male junkies to live a Peter Pan existence in a moral vacuum?”
The editor of the Daily Globe believes that no one takes Ann’s writing seriously but that they enjoy
her style. The more ludicrous she become the more people want to read her. However, he has
decided to pass this particular draft article to their legal team for advice.
Advise the Daily Globe as to whether the draft article constitutes defamation under to law of tort.
Answer Three
The present task is to advise as to whether a draft article constitutes defamation. In that regard, the
issues of publication and identification as proofs required to establish defamation, do not
meaningfully arise and it is to be presumed that the intention is to publish the article, and similarly
presumed that it relates to an identifiable athlete. Similarly, although in the context of newspapers
publications there may be defences available to avoid liability for a prima facie defamatory
publication, these do not appear to arise for the purposes of the present task which is solely to
identify whether the content of the article taken in context, constitute a defamatory effect.
Defamatory Effect
There are two principal issues which appear arise for consideration. The first is the suggestion that
Juan should not have an entitlement to play for Ireland because although he has an Irish passport,
he has no Irish ancestors. The second issue is the raising of a question that his athletic performance
relies on “a well-known liquid pain medication”. Both of these issues may be broadly categorised as
imputations of a lack of honesty.
As to whether further complaints may arise in the final statement referring to modern sports as an
outlet for “male junkies to live a Peter Pan existence in a moral vacuum,” this may essentially be
regarded as a re-iteration of the accusation regarding drug-use as the context does not connect
immorality as a feature of the sport to any other type of behaviour. Arguably however, it may be said
that it may indicate by innuendo that this athlete is addicted to some medication (presumably the
pain medication mentioned) and also suggests childishness. Such complaints would not appear
likely to be a core issue in any proceeding, because to suggest that to be an athlete is to have a
childish lifestyle is likely to be regarded more as a general opinion on athletes than to defame a
particular individual and it is not based upon any allegations of fact in the present context. If it is
taken to be interpreted as a statement indicating a lack of professionalism on the part of this athlete
in particular, at its worst, it is a suggestion of a lack of professionalism, which again may reflect the
statements have already been made in respect of drug use. With respect to the suggestion that he
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may be one of a class of persons addicted to a substance, in circumstances in which it has already
been suggested that the particular drug in question has been used to enhance performance,
(perhaps in breach of the rules or otherwise in breach of an expected moral standard), the use of the
term “junkie” is perhaps only to be interpreted as a suggestion that the drug is used routinely – but in
fact, this suggestion has already been made in the preceding text.
It may be appropriate to set out some case law on defamatory effect generally prior to considering
the facts of the present case in particular.
The traditional test for defamatory effect was whether the words complained of tend to lower the
plaintiff in the estimation of a right-thinking member of society or tends to make them shun or avoid
the plaintiff. Such lowering in estimation need not be shown in fact and in establishing defamatory
effect, the intention of the defendant was irrelevant. The definition in section 2 of “defamatory
statement” is, “...a statement that tends to injure a person’s reputation in the eyes of reasonable
members of society,” and it is indicated that “defamatory” shall be construed accordingly.
Consequently the definition of the tort has not substantially changed.
Case law can often be of limited assistance in establishing whether or not a statement is defamatory
owing to changes in social mores and the fact that the circumstances tend to vary widely from case
to case. In the present case the broad implication is of dishonesty or cheating in two respects: the
first is in respect of the athlete not being properly entitled to play as an Irish player, and the second is
that he may regularly cheat by reason of the use of pain medication.
The facts of the case of Cassidy v The Daily Mirror (1929) may be helpful to some extent in this
regard, because both statements at issue go to honesty and candour. In that case, the Defendant
published a photograph of the Plaintiff’s husband with another woman alongside a caption
announcing the couple’s engagement. It was held to have defamed the Plaintiff by reason of the
innuendo that she was living in immoral cohabitation with Mr Cassidy and misleading her neighbours
and friends as to her marital status. The broad proposition is that sexual immorality may have a
defamatory effect. Despite the absence of illegality (which would formerly have been present), in the
case of Reynolds v Malocco t/a “Patrick” (unreported, High Court, 11 December 1998), there was a
successful application to prevent the publication of an article in which it was suggested that the
plaintiff was a practicing homosexual and it was held that in the appropriate context, it was capable
of having defamatory effect (where untrue). This was so notwithstanding that there were no criminal
implications arising from being a practicing homosexual at this time, and in that regard the Court
likened the scenario to adultery, which although not illegal would be an imputation which could
damage the reputation of a person who was accused of it.
In Sinclair v Gogarty (1937), imputations of sexual impropriety made against the plaintiffs in a book
(including the charge that one of them, the proprietor of an antique shop, "sought new mistresses
more highly than old masters") were held to be so clearly defamatory that a temporary injunction was
granted to prevent the continuing sale of the celebrated novel As I Was Walking Down Sackville
Street. This may assist in respect of interpreting whether drug-use and childishness are indicative of
improper behaviour in the context of a potential plaintiff’s profession.
With respect to the first statement, what is at issue is the use the phrase “our national hero” being
specifically caveated with the phrase “although when we say ‘national’ we mean he has and Irish
passport, although no Irish blood, not even a remote great, great, great grandparent like our soccer
players.” It may be difficult for the Court to identify precisely what is intended by this statement. It
may be that rather than suggesting that there is no legal entitlement for the athlete to be regarded as
Irish, this statement would be regarded more simply as a vulgar one in the sense of it holding
someone’s ethnicity or origins as detracting from the status of their nationality.
In Hickey v Sunday Newspapers Ltd (2010), the defendant carried an article where it quoted an
angry wife describing the plaintiff, who had a child with her husband as a "whore". The plaintiff
claimed that the word meant that she was a prostitute, or a person who engaged in sexual acts for
financial rewards or otherwise than in a loving relationship and that this was clearly defamatory.
Holding that the word as used in the circumstances was merely vulgar abuse, Kearns J held that it in
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respect of the reported speech on the part of a Ms King who was plainly extremely angry at the affair
between her husband and the plaintiff, that while the word in question is clearly capable of being
defamatory, to any ordinary or reasonable reader on reading the comment, would simply see it as
vulgar abuse expressed in strong and offensive terms. It would therefore not be defamatory. Insofar
as the statement in question may be likely to suggest that the athlete in question is not entitled to
Irish citizenship, this would likely be regarded as defamatory. It suggests dishonesty in obtaining the
status of Irish citizen, and in then using that status to play for team that he was not entitled to play
for.
Regarding honesty in sports generally, to accuse a person wrongly of trickery in racing activities
would appear to be defamatory. In Green v Blake (1948), an owner/rider was accused of deceitfully
carrying under weight. The plaintiff was "warned off", after a hearing which did not comply with the
principles of natural justice, and notices to this effect were published in the Racing Calendar. The
statements were accepted as being defamatory.
It may be said that an allegation of dishonesty is no less defamatory on account of the fact that it
relates to an area of life where economic gain is not the primary motivation. In Talbot v Hermitage
Golf Club (2012), Herbert J said of an allegation that the plaintiff had engaged in "handicap building,
that an accusation of cheating in amateur sport and games has for over 150 years been held to be
seriously defamatory of the person accused of such behaviour. The court regarded this as especially
likely to be so in the case of the game of golf which the evidence established depends in a most
particular way on the personal trustworthiness of the players. Several witnesses described the game
of golf as an "honesty game". The Court found that “such a person, to a high degree of probability,
will be shunned, socially excluded and, held in contempt by reasonable and right thinking persons."
It is noted that the newspaper claim that no one takes this writing seriously. It will be a matter for the
Court or jury to ascertain the facts in respect of this claim, however, it is not a defence to say that the
publication was not intended to be taken seriously. In n Hulton v Jones (1910), the defendants
published a fictional article about the double existence led by one "Artemus Jones". Among other
things it was suggested that Jones, a churchwarden at home in England, was, while on the French
side of the Channel, "the life and soul ofa gay little band that haunts the Casino and turns night into
day, besides betraying a most unholy delight in the society of female butterflies". The plaintiff, a
barrister of the same name, recovered £1,750 damages for libel, other reasonable persons
considering that the piece referred to him.
In light of the foregoing, it would appear that the Daily Globe may be vulnerable to a successful claim
in defamation by reason of each of the statements made which would tend to state or imply that
Juan, the athlete in question, may not be a true Irish citizen and may be using pain medication to
gain an unfair athletic advantage – each of these statements tend to suggest a lack of honesty. More
broadly, the statements as a whole may also be taken to be imputations of a lack of professionalism
and to impact on his professional standing.
Inujurious Falsehood
It may also be worth identifying that as Juan relies on his rugby-playing as his career, and as the
statements in question go directly to that profession, the question of whether these statements may
be regarded as an injurious falsehood also arises. This tort protects individuals against false
statements which lower the individual in the estimation of others but, unlike defamation, it relates to
statements made which refer to the property of a Plaintiff or the Plaintiff’s goods or business. It is
now governed principally by section 42 of the Defamation Act 2009, which states that a plaintiff must
show that the statement was (a) untrue, (b) was published maliciously (c) referred to the plaintiff, his
or her property, or his or her office, profession, calling, trade or business. The plaintiff must show
special damage or “that the publication of the statement was calculated to cause and was likely to
cause financial loss to the plaintiff in respect of his or her property or his or her office, profession,
calling, trade or business.” Consequently it would appear that the evidential bar is quite low in terms
of proving actual loss, and the test that must be satisfied is that it “likely” caused loss
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Malice has been interpreted to mean that the Defendant knew the statement to be untrue or that he
nonetheless made it with the intention of injuring the Plaintiff. Traditionally, it was not an injurious
falsehood to compare one’s products as against another’s as malicious intention to injure and
falsehood must be present. In Hubbuck v Wilkinson (1899), the Court held that an ad comparing the
Defendant’s product with that of the Plaintiff’s and based on chemical experiments amounted to no
more than a statement that the Defendant’s product could rival the Plaintiff’s on the market. There
have been signs of a change of attitude in this area of comparison however and in De Beers
Abrasive Products v International General Electric (1975), the Court held that where a Defendant
claims that his product is better than the Plaintiff’s, and that statement is based on apparent scientific
tests, such a statement equals an injurious falsehood where the tests are false and where the
Defendant either knew them to be untrue or else he wasn’t certain about their truth but proceeded
notwithstanding to injure the Plaintiff on foot of them. The test to be applied is whether the
reasonable man would be likely to take the publicised tests seriously.
In the present case, there would thus appear to be scope to suggest that injurious falsehood could
be made out, should the statements about Juan be capable of being believed as being truthful.
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Question Four
There has been much criticism surrounding a so-called compensation culture which has developed
around victims of tort actions.
Critically discuss to what extent this culture has been created through the calculation of damages in
tort actions.
Answer Four
‘Compensation culture’ is generally a phrase used to speak pejoratively about how a class of
plaintiffs approach claims under the tort law, and is suggestive of individuals who seek payments
through tort actions which are frivolous, unjustified, or fraudulent.
While there has been much public discussion of such a perception, it is rare for blame to be cast on
the manner in which torts are calculated in this jurisdiction, however in the United States of America,
the Liebeck v McDonald’s case of 1994 in New Mexico, appeared to become a focus for such
criticism in circumstances in which a form of punitive damages were imposed by the first-instance
court, albeit that much of the commentary seemed to focus on a misunderstanding of the facts of the
case and a proposition that no liability should have been imposed at all, whereas if there was to be a
discussion based upon reasonable concerns it should have been about the role of punitive damages
in a tort action.
The practice in this jurisdiction is to make one award of damages in respect of all past, current, or
potential future loss suffered as a result of a tort, and damages which are calculable beyond the
measure of what the losses arise from the tort alone.
The primary aim of an award of damages is to put the plaintiff in the position he or she would have
been in if the tort in question had not occurred. A secondary purpose of damages can be to act as a
deterrent or as a public censure. The primary headings under which damages may be awarded in
appropriate circumstances are: compensatory, aggravated, exemplary or punitive, nominal, and
contemptuous.
Compensatory Damages
Compensatory damages can either be for pecuniary or non-pecuniary loss. The former is often
referred to as special damages, and the latter, as general damages.
(i) Pecuniary Losses
Pecuniary losses are those quantifiable out of pocket expenses such as loss of earnings, or medical
expenses and have been held to include the cost of domestic help or the cost of financial advice in
appropriate circumstances.
Notwithstanding that these are “quantifiable” in nature, the Courts have experienced difficulties in
precisely how these amounts should be calculated. The case of Reddy v Bates [1984] IR 197
considered whether the calculation of loss of future earnings should include times of unemployment.
The cases of Jeffer v Cahill (unreported, Supreme Court, 29 July 1999) and O’Donoghue v Deecan
& Sons (unreported, High Court, 21 May 1996) both concerned evidence as to the claim that the
Plaintiffs were rendered unfit for any form of future employment by virtue of their injuries.
Complications also arose in relation to medical expenses owing to the availability of free medical
care generally, and the operation of section 2 (1) of the Health (Amendment) Act 1986 which
requires health boards to charge directly where the patient has received or is entitled to receive
damages for their injuries. Owing to a judgment of Kinlen J in O’Rourke v Scott (1993) a notional
amount of £100 was charged, but the Supreme Court subsequently found in Crilly v T & J Farrington
(2001) that a hospital should charge the averaged daily cost of bed and board in the specific hospital
and in that case, it was considerably more than the amount payable by virtue of the ‘Kinlen Order’.
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(ii) Non-pecuniary Losses
Non-pecuniary loss refer to personal losses such as pain and suffering, loss of amenity and loss of
expectation of life. These reflect both past and future loss and can be very difficult for a court to
quantify particularly in cases concerning extreme impairment.
Sinnott v Quinnsworth [1983] ILR 523 concerned a young man who was rendered quadriplegic,
wherein the High Court reduced damages from £800000 to £150000 on appeal and stated that
unless there are particular circumstances which suggest otherwise, general damages should not
exceed a sum in the region of £150000 and that a court should resist awarding damages which are
so high as to constitute a punishment for the infliction of the injury rather than a reasonable if
imperfect attempt to compensate the injured.
In Kealy v Minister for Health [1999] 2 IR 456 however the Court distinguished Sinnott on the bases
that large sums had already been awarded for loss of earnings and future expences, and awarded
£250,000 to a plaintiff who had contracted Hepatitits C as a result of the negligence of the
Defendant. This approach was mirrored by the Supreme Court in in Gough v Neary [2004].
Cases in which the Plaintiff’s injuries have rendered the Plaintiff unaware of his loss and injuries
have met with differing approaches. In Cook v Walsh [1984] IR 208 – it was held that damages
should be more moderate. Hughes v Flaherty (1996) however is a case where the court refused to
make such a deduction and reserving it for “extreme cases.
Non-pecuniary damages can be awarded for loss of expectation of life but the courts have tended to
favour awarding only a moderate sum for such loss. In Philip v Ryan (2004) the Court on appeal held
that damages should have been awarded for possible loss of life expectancy due to loss of an
opportunity to avail of treatment earlier owing to the negligence of the defendants. The test applied
was whether there was an increased risk of shorter life expectancy and the test of the trial judge that
damages for loss of life expectancy depended on proof that life would probably not possibly have
been prolonged, was rejected.
Aggravated Damages
Aggravated damages reflect any additional and exceptional harm as a result of either the manner in
which the harm was inflicted or the defendant’s behaviour towards the Plaintiff after the initial tort.
In Daly v Mulhearn [2005] IEHC 140, aggravated damages were awarded in circumstances where it
was accepted that the Defendant accepted responsibility at the scene of an accident and then
subsequently accused the Plaintiff of fabricating her account and of being drunk.
In Philp v Ryan (2004) the court held that the Plaintiff was entitled to aggravated damages by reason
of the behaviour of the Defendants in their preparation and
presentation of the case and confirmed that aggravated damages could be awarded in cases of
negligence. The first named Defendant had forged documents to make it appear that he had a
stronger defence than he did in fact, and his legal advisors were also criticised for not informing the
Plaintiff’s solicitors of the true facts. This caused the Plaintiff to believe theirs was a strong defence to
the action and this caused the Plaintiff to suffer additional emotional stress and anxiety.
Exemplary or Punitive Damages
Exemplary and punitive damages are awarded in exceptional cases, chiefly to make an example of
the Defendant and to deter others from engaging in similar anti-social conduct.
In Rooks v Barnard [1964] AC1229 award of exemplary damages was restricted to cases of
‘oppressive, arbitrary or unconstitutional action by the servant of
Government but they can also be awarded in cases where the Defendant’s conduct was calculated
to make a profit in excess of the compensation normally recoverable by the Plaintiff, and cases for
which such an award is expressly authorised by statute.
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These categories have been rejected in other jurisdictions and Irish judges have expressly and
implicitly doubted the merits of the limitations in Rooks on many occasions. In Conway v INTO [1988]
ILRM 472 the court finally rejected the Rooks categories and the Court held that exemplary damages
should be measured to meet the wrongdoing rather than to benefit the wronged. The Supreme Court
stated that these damages are to mark the courts disapproval of the conduct and the Court should
publicly be seen to have punished the defendant. The objective is to punish wrongdoers for
outrageous conduct and deter others and the court will consider the manner in which a wrong is
committed, conduct of the wrongdoers after the wrong and in the defence. It was held that it was a
conscious and deliberate act to make gain without any thought as to who would suffer.
In Crawford v Keane an award of £7500 was made on the basis of Defendant’s behaviour after the
Tort had been committed. The Defendant had given deliberate false testimony throughout the
hearing. The Courts have consistently maintained that exemplary damages may be awarded only in
very exceptional cases and the awards have been low. However in Crofter properties limited v
Genport Limited [2002] £250000 exemplary damages were awarded on the basis that deliberate and
malicious phone calls had been made and were intended to injure the Plaintiff’s in their business.
The high sum was awarded on the basis that the behaviour had been malicious and deliberate; the
person who had made the calls had committed perjury; and it was an extremely bad case and one in
which there must be some very substantial penalty imposed on the Plaintiff.
Nominal Damages
Nominal damages represent a token amount of damages awarded by the courts where the Plaintiff
has established a wrong but suffered no real harm. It reflects the view that there was a valid claim
and that it was not frivolous, notwithstanding that the damage done is minor in monetary terms. (e.g.
trespass / boundary disputes and torts which are actionable per se).
Contemptuous Damages
Where there is a technical wrong but no sufficient reason for bringing litigation. It is where the court
is of the view that there has been no material harm done to the Plaintiff or no significant interest to
protect, and the Plaintiff will generally not be awarded costs.
Conclusion
While it would compensation is certainly the primary concern of the award of damages in torts law,
the Court will in sufficiently appropriate circumstances, also make awards which are designed to
deter similar wrongs by imposing punitive or exemplary damages, or which take account of the
manner in which the litigation was conducted in the case of aggravated damages. On occasion such
awards, which are rare, may give rise to a wrong perception that it is routine for plaintiffs to be
‘overcompensated’ for wrongs they suffered. It would be wrong to associate such rare awards with a
‘culture’ of overcompensation. It appears to this writer that if a compensation culture can be
meaningfully to exist and is sufficiently prevalent to be considered problematic, it is unlikely that the
manner in which damages are calculated in tort actions are to be regarded as a case of it. The
Courts tend to measure damages carefully and rationally, and are bound by clear principles and
policies. Insofar as the reporting of particular awards does give rise to a ‘compensation culture’ this
may be owing to a misunderstanding of how the Courts calculate damages, and would be tempered
by the experience of such a class of individuals having a different real world experience of the Courts
than that which may be perceived to be the case prior to actually taking a tort case and experiencing
the procedures, principles and policies which are employed by the Courts.
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Question Five
‘Get-fit!’ is a new entrant into wearable technology designed to encourage a healthier life on the
user's smartphone as to what they should be doing. The key feature of the 'Get. fit!' product is that it
is completely hidden from view by being worn under your Clothes. Working away in the background,
it would continuously send advice and information to the user without anyone else knowing what was
happening. It is worn around the chest and relies on direct skin contact to measure your heart-rate,
breathing and core body temperature among other details. The app would then recommend that you
needed to drink fluids, rest, exercise or other appropriate recommendations.
When the app offers recommendations to the user, all of them end with a statement to the affect that
"the user should be satisfied as to whether it is appropriate to follow this recommendation and should
not exclusively rely on the recommendation."
After the 'Get-fit' has been on sale for around 3 months, reports are beginning to emerge of two
events. First, some people are developing a skin rash where the product is in contact with the user's
Skin. Second, the app is making erroneous recommendations. Although the 'Get-fit' uses state of the
art technology, that technology is not designed to compensate for the location of the 'Get-fit' device.
The assumption is that the device is being worn without being covered by clothes. A number of users
however have made themselves sick by following the recommendations being made by the 'Get-fit'
device, including drinking excessive amounts of fluid that they did not need or want.
Advise the manufacturer of 'Get-fit' as to any statutory liability they may have for a defective product.
Answer Five
he Defective Products Liability Act 1991 was enacted to implement the EU Council Directive on
Products Liability. Its purpose was to increase consumer protection in the specific area of defective
products. As well as including remedies concerning design defects, the Act has relatively broad
application with respect to defects in products purchased by consumers for private use.
The main feature of the Act is the liability imposed by Section 2, which places strict liability on a
producer for damages in tort caused wholly or partly by a defect in its product. The section also
contains the definitions of who is a “producer”, and what constitutes a “product” for the purposes of
imposing liability. As liability is strict, it is imperative for a court to be satisfied that the claim comes
within these definitions.
A “producer” is widely defined by S.2, and includes manufacturers and producers of finished
products, component parts or raw materials, and processors of agricultural produce. The main
advancement of the s.2 is that it extended liability to suppliers of defective products, albeit in limited
circumstances. Therefore, included in the definition are importers who bring product into the EU for
the purpose of supply in the course of business. In addition, subsection 3 provides that a supplier
may constitute a “producer” for the purposes of the section, where the identity of the producer cannot
be established by reasonable steps, the injured party requested the supplier to identify the producer
within a reasonable time of the damage, and the supplier failed to yield the information or the identity
of his own supplier within a reasonable time. This default liability recognises the economic reality
behind the relationship between consumers and manufacturers. In the present case, it appears to be
a straightforward proposition that the manufacturer in this case would be an appropriate defendant in
any case taken under the Act.
The definition of a “product” was originally restricted by the Act to all moveable, saleable goods that
have been industrially processed. However, the EC (Liability for Defective Products) Regulation 2000
extended the definition to include primary agricultural products which have not undergone industrial
processing. In addition, it provided that “product” includes all moveables which are incorporated into
another product, by virtue of being a component or a raw material. The effect of the Regulation is
that it has removed the requirement of industrial processing, so that the Act applies to raw materials
which are the cause of the defect in the end product. In the present case, the “Get-fit” device would
appear to come within the definition of a product for the purposes of the Act.
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What is deemed “defective” is governed by s.5, and the definition is fulfilled in respect of a product if
“it fails to provide the safety which a person is entitled to expect taking all the circumstances into
account.” The circumstances which are to be taken into account include the presentation of the
product, the use to which it could reasonably be put, and the time when the product was put into
circulation. A product shall not be considered defective for the sole reason that a better product is
subsequently put into circulation.
It is this issue which appears to be the primary one in the present case. The manufacturer has
concerns about two types of complaints.
It is said that first, some people are developing a skin rash where the product is in contact with the
user's Skin. Second, the app is making erroneous recommendations. Although the 'Get-fit' uses state
of the art technology, that technology is not designed to compensate for the location of the 'Get-fit'
device. The assumption is that the device is being worn without being covered by clothes. A number
of users however have made themselves sick by following the recommendations being made by the
'Get-fit' device, including drinking excessive amounts of fluid that they did not need or want.
However, it is also noted that when the app offers recommendations to the user, all of them end with
a statement to the affect that "the user should be satisfied as to whether it is appropriate to follow this
recommendation and should not exclusively rely on the recommendation."
In respect of the first issue, it is clear that the app is intended to be worn against the skin. We are
told that some users suffer a rash when they do so. It is certainly not unusual for there to be different
reactions in the skin of different users to different products, and it is not generally regarded that a
product which can cause a rash in some people is inherently defective. What will be significant
however, is whether any appropriate recommendations have been made in the accompanying
literature about how to minimize any potential adverse effects. This will be a question of evidence,
and the relevant facts have not been disclosed at this time. Insofar as no directions may have been,
this would create a likelihood that the product would be regarded as defective within the meaning of
the Act.
On the second issue, it is clear that warnings have been given, and it would appear in addition, that
the advice would not have been so incorrect had the product been worn correctly. While it is not
clear on the facts whether users are clearly told of the correct approach to adopt in wearing the
device and the risk of it malfunctioning if this advice is not followed, assuming this to be the case, it
would appear unlikely that the product would be considered defective because of a dual failure of
users to (a) wear the product correctly; and (b) follow the advice given blindly, against the
recommendation.
Notably, once a claim comes within the above definitions, strict liability will attach to the producer if
the plaintiff can show a causal link between the defective product and the damage. “Damage” is
defined as including death, personal or mental impairment, and property damage, so long as the
property is not the product itself, and is for private use, primarily by the Plaintiff. A minimum threshold
of recovery is placed on damage done to property in the sum of €445, and only an excess over this
amount is recoverable in respect of property. The personal injury in the present cases, would thus
appear to be actionable.
The onus of proof can be found in s.4, which states that it lies solely on the Plaintiff to prove that the
damage was caused by a defect in the product. The general principles of causation seem to apply in
discharging this onus. Once the necessary link between the damage and defective product is made,
the onus shifts to the Defendant to attempt to invoke one of the six grounds of defence provided by
s.6. All six defences act as a complete bar to liability.
A Defendant can avoid liability in any of the following circumstances:
1. If it can show that it did not put the product into circulation.
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2. If the defect was not present when the product was put in circulation or that it came into being
afterwards. The standard of proof for such a defence is a matter of probability having regard to the
circumstances;
3. It was neither producing nor distributing the product in the course of business, sale or other
economic purpose;
4. The defect arose due to compliance with the mandatory requirements of national or community
law;
5. If the defendant is a manufacturer of a component or producer of a raw material, that the defect is
attributable entirely to the design, assembly or production of the finished product or to the
instructions given by the manufacturer of the product, or,
6. The state of scientific and technical knowledge at the time the product was put into circulation was
not such as to enable the defect to be discovered. This last defence, known as the “development
risks” defence, was subject to judicial scrutiny by the ECJ in EC Commission v UK. The ECJ ruled
that the “state of knowledge” of the Defendant refers primarily to scientific knowledge at the time the
product was put into circulation, not just established practices within the industry. It also includes
advanced technical knowledge, provided that it was accessible to the Defendant at the time the
product was put into circulation. The “state of knowledge” of producer is, therefore, clearly objective
as opposed to subjective, and a producer appears to have a duty to keep abreast of scientific and
technical findings in its field.
In the present case, it does not appear that any direct defences apply to the present case, and in
order for the manufacturer to avoid liability, it would have to be shown that a plaintiff has not
adequately demonstrated that the product is defective within the meaning of the Act.
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Question Six
Bill is a retired police officer working with Total Security as a night watchman for an office block
which is currently empty. The property is in receivership and it has not proved possible to find a
buyer or new tenants. However, because it is located in the centre of the city, it has become the
target of drug users who will break into the property and then use it to inject or smoke hard drugs.
Bill has warned his superiors several times that the incidence of individuals breaking into the building
is rising and that he is beginning to feel that he is in danger. He has asked that at least an additional
two colleagues be employed to assist him between 12 and 8am and that he be issued with a stabproof vest. Bill claims this would be standard operating procedure for the police in this sort of
situation. Total Security have reminded him that he is no longer in the police and that they do not
expect him to continue to act like a policeman. His only role is, in the event that he hears something
inside the building, he should investigate whether it is some animal or a trespasser. If it is a
trespasser, he should phone for the police with the phone provided to him.
Bill is unhappy with this reply but continues. One night, Bill hears a major commotion with people
shouting and screaming from one of the upstairs floors in the building. Bill goes to investigate and
comes across four males high on drugs involved in a knife fight. When they see Bill, they begin to
chase after him. Bill runs, trying desperately to call the police but the phone supplied by Total
Security is out of credit. One of the men catches up to Bill and knifes him. Shocked by what they
have done the men flee. Eventually Bill is able to raise the alarm.
Advise Bill as to what liability in tort his employers, Total Security may be accountable for, if any.
Answer Six
Introduction
An employer may be liable for the breach of a duty owed by him to an employee, and this may arise
by virtue of contract, by statute, or based on negligence principles and the common law.
Duty to provide a safe system of work
The employer’s duty is to provide a reasonably safe system of work, which encompasses adequate
training, supervision and method of operation, case in design and implementation and operation of
work practices. This duty arises both by reason of the common law as a statutory duty under the
Safety Health and Welfare at Work Act 2005.
In the case of Walsh v Securicor Ltd [1993], the Plaintiff, a courier, was ambushed by armed raiders.
The Court held that the provision of a police escort was not sufficient due to the high-risk job and the
Defendant should have changed the times of the run and was therefore negligent.
In O’Reilly v Iarnroid Eireann [2002] The Supreme Court affirmed HC’s decision that the Defendant
was negligent for condoning the unsafe system of disembarkation of employees from moving trains
despite it not having directed the practice.
Plaintiffs do not have to establish what alternative system of work ought to have been used but
Plaintiff’s often do use experts to give such evidence. There are no clear rules in this regard - Dixon v
Cementation Co Ltd [1960]
In the present case the system of work described was that Bill’s only role was, in the event that he
hears something inside the building, he should investigate whether it is some animal or a trespasser.
If it is a trespasser, he should phone for the police with the phone provided to him. What he in fact
did in the present case was to go directly to investigate an upper floor of the building when he heard
shouting there. By doing so, Bill did not in fact adhere to the system that had been put in place by his
employers, which arguably would have prevented his injury.
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Safe Place of Work
The present case would seem to involve a complaint regarding a safe place of employment. Bill may
be in a position to claim that because break-ins to this building were so routine, and because he had
reported it, that the employer should have had better physical defences to break-ins in the premises.
The difficulty that Bill may face evidentially however, is that factually speaking, this was not only
cause of his injuries. A significant issues is that he did not follow the system of work in place.
By way of example of how this duty can operate in unusual cases, in Lynch v Binnacle Ltd tla Cavan
Co-Op Mart [2011] IESC 8. Fennelly J held that a safe system of work had become unsafe when two
drovers absented themselves from the sales ring area of a mart, thus exposing their now lone work
colleague, the plaintiff, to danger from being injured by a bullock. Fennelly J considered that the
plaintiff should succeed either through the route of vicarious liability or that of a non- delegable duty
of care. As to the latter, Fennelly J observed that, in so far as the otherwise safe system of work was
not in operation on the day of the accident, the employer bears primary responsibility'.
Safe Equipment
An employer has an obligation that equipment provided for the carrying out of work is safe. In
Wheeler v Copas (1981), the Defendant farmer hired the Plaintiff under a labour only contract to lay
bricks and erect scaffolding for a house. He supplied flimsy ladders and one of them snapped while
the Plaintiff was on it, causing the Plaintiff significant injury. The Court held that the Defendant
should have known that such ladders were inadequate for these purposes, and should have taken
advice on what equipment was properly required for the job. The Court also held that the Plaintiff
also ought to have known that the ladders were inadequate and liability was apportioned 50/50.
In Marsella v JP Construction Limited (2004), the Plaintiff was a plasterer and had been contracted
by the Defendant to carry out works. He was not provided with adequate scaffold and fell while
working at a height and injured himself. The Court held there was a duty of care on a Defendant to
provide adequate scaffolding to any person who would in reasonable contemplation of the Defendant,
be likely to use it. The Court held the Defendant 80 per cent liable and the Plaintiff was 20 percent
contributorily liable.
In the present case, the phone that Bill was provided with to carry out his work did not function. It
appears that it was capable of functioning if it had been set up with a credit to make calls, but this was
not done. The extent to which he would have avoided injuries if it had been working is unclear, and it
is also unclear as to whether he had any obligation himself in respect of ensuring that the phone was
functioning. These questions would need to be resolved as a matter of fact by the Court prior to
assessing whether liability would be imposed on Bill’s employer for the injuries he sustained, by
reason of the phone being inoperative.
Contributory Negligence
Owing to section 34 of the Civil Liability Act, 1961 the award of a plaintiff against a negligent
defendant may be reduced proportionately to the extent to which their own negligence contributed to
the injuries they have suffered. In the present case it is likely that Bill’s actions contributed to his
injuries – in particular by reference to his failure to follow the procedure of calling the police once he
has ascertained that there are people trespassing and opted instead to confront them.
Reasonable Foreseeability Test & Causation
The fact that the injury was caused by the criminal act of a third party is not a bar to recovery, but the
link between that act and a breach of duty by an employer must be shown. In McLoughlin v Corr
[2005] the Court held that the means of entry by the burglars, dressed as Gardai, was so
unforeseeable that adherence to the statutory duties would not have prevented the injury. In the
present case it would appear that the injuries suffered were not directly linked to the system of work
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regarding how it was intended for Bill to respond to trespassers, nor to what the type of risks
previously identified were: namely trespassing rather than threats to security staff.
A defendant will only be held liable for damages which are reasonably foreseeable as arising out of
their negligence and will be fully liable where a foreseeable type of damage occurs, irrespective of
whether the extent of that foreseeable damage. In Egan and Sisk [1986] it was established that that
the type of damage caused must be reasonably foreseeable but not necessarily the scale of the
damage.
Bill’s employers may attempt to plead that the injury caused was not reasonably foreseeable in the
circumstances and thereby seek to demonstrate that their non-delegable duties were not breached
on the facts of the case. In the alternative, they may seek to demonstrate, as set out above, that
even if they did breach a duty to Bill, that this was not the true cause of his injuries, and rather it was
Bill’s own unauthorized actions which are to true factual and legal cause.
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Question Seven
Donald's parents were away for the weekend on business. Donald would often have parties,
particularly over a weekend where he would invite a few of his friends to enjoy their swimming pool.
But as his parents were always home, the parties would be quite controlled. There would be a little
alcohol but not too much. The music would be loud but not too loud.
Now with his parents away, Donald put up a notice on his Mouthbook page that he was going to
have a Mega-Wild party this weekend. He wanted all his friends to come and, as he said: "Let's go
crazy!!" All his friends were texting him telling him they were so looking forward to it. In fact Donald
was so busy texting and phoning his friends that he never checked his Mouthbook page again until
Saturday evening when the first of his friends started to arrive. One of them told him that his party
had gone viral on Mouthbook and that people were traveling miles to join in the craziest party of the
century. Donald became very worried. He had thought about 20-30 of his friends would come, but
this sounded like a lot more and he was afraid that there would be trouble.
When the first strangers appeared, Donald told them that they had not been invited but they simply
ignored him and went in. Eventually Donald gave up, hoping that they would not do too much
damage. As the night wore on, one of the strangers, Kelly, got the idea of using the swimming pool
which was covered up with a rubber tarpaulin. Kelly stripped down to her underwear and shouting
'Watch me dive!" jumped on top of the tarpaulin. Unfortunately, unknown to everyone including
Donald, his parents had drained the pool for the annual cleaning. Kelly hit the bottom of the pool
breaking her leg.
Advise Donald's parents as to what liability, if any, they owe in tort law to Kelly.
Answer Seven
The Occupiers Liability Act 1995 governs recovery for injury/damage suffered by an entrant as a
result of the dangerous state of an occupier’s premises. There are a number of important definitions
contained in the Act to govern the sphere of liability. In particular it will be important to identify what
kind of entrant Kelly was for the purposes of establishing whether a duty of care was breached in
respect of her.
On the facts of the present case, it appears safe to construe Donald as the “occupier” of the
premises within the meaning of the Act, because his parents were not present on the premises nor
involved in, or aware of, the event that Donald had organised. It also appears to be safe to consider
that the tarpaulin across the pool can be regarded as a ‘danger owing to the state of the premises,’
and that it is the relevant factual concern in relation to whether the duty of care owed to Kelly by
Donald was breached. In the premises, the primary question at issue is whether there was such a
breach of the duty of care, and in order to consider that question, the differing duties owed to
differing categories of entrant need to be considered in detail.
Categories of Entrants & Differing Obligations
There are differing types of entrant who are categorised under the 1995 Act, and differing types of
obligations that are owed in respect of them. They are visitors, recreational users and trespassers.
Visitors
Definition of Visitor
Visitors are defined under s 2 of the 1995 Act. They are entrants who are present by the permission
or invitation of the occupier or his family or a person ordinarily resident on the premises or an entrant
present for social reasons. The definition of a visitor also includes entrants as of right and entrants by
virtue of contract. In summary, lawful entrants are visitors, whether they are present for social or
commercial purposes. Eoin Quill notes that there is a distinction between visitors and recreational
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users where social visitors are persons whose presence is desired by the occupier (or the occupier’s
family), whereas recreational users are those whose presence is tolerated.
Duty owed to Visitors
Under s 3 of the Act the occupier owes a “common duty of care” to visitors, defined as the duty “to
take such care as is reasonable in all the circumstances ... to ensure that a visitor to the premises
does not suffer injury or damage by reason of any danger existing thereon”.
The Act refers to two factors to determine a “reasonable standard of care”:
The definition emphasises self-responsibility and the duty of control and supervision in certain
circumstances. Accordingly, contributory negligence on the Plaintiff’s part provides the Defendant
with a defence, as does any contribution to the injury by another person in control such as a parent
or school supervisor.
The duty owed by occupiers to visitors is not an absolute duty.
An instructive case concerning a visitor is Newman v. Cogan (2012). The Plaintiff was visited the
defendants' home, and their son had tripped and shattered a glass panel in a door which glass to
pierce the Plaintiff's right eye leading to its loss. She now claimed the defendants had been negligent
in the choice of glass panel which they had installed themselves. It was held in the High Court per
O'Neill J, that the standard of work by a householder could not be expected to be of the same
standard as a professional tradesman. In the instant case, the Court was satisfied the panel had
been installed competently. Whilst expert evidence suggested a tradesman would not have installed
the particular type of panel, the evidence did not suggest a householder would reasonably believe
the panel was unsuitable. The plaintiff's claim was dismissed.
Liability was also not imposed in the case of Heaves v Westmeath County Council (2001) in which
the Plaintiff slipped on uneven steps on the Defendant’s premises which were partially covered with
moss. The Court held that occupier had an appropriate system of cleaning the steps and, in fact, the
gardener took expert advice to reduce the moss problem as much as possible. The Court held the
Defendant took reasonable care and there was no breach of duty to the Plaintiff.
A case in which contributory negligence reduced liability considerably as Vega v Cullen (2005) in
which defendant was carrying out some repairs to a roof on his house and for that purpose had, for
access purposes to the roof, left a ladder leaning against the wall of the building in question, but at
an angle of 45 degrees, which an expert in the case opined was an excessive angle from a safety
point of view. In addition this ladder was standing unevenly on the ground, in as much as one foot of
the ladder was on a concrete surface at the side of the house and the other leg was on a gravel and
earth surface which was slightly lower than the concrete surface. This created some instability. The
plaintiff, an adult man of about 55 years of age at the time, ascended the ladder in order to have a
conversation with the defendant who was on his roof. As he began to descend the ladder moved to
the right, causing the plaintiff to fall to the ground. The High Court held that the plaintiff was present
on the defendant’s property as a social guest. The Court reasoned that there is no meaningful
distinction to be drawn between the common law duty of care and the statutory duty of care under
the Occupier’s Liability Act, 1995. The Court stated that this is not the case of a child, or other person
under some disability, who could not be expected to anticipate that the ladder might not be safe to
ascend and descend. The forty-five degree angle at which the ladder was leaning was something
clearly visible to the plaintiff, and it ought to have been obvious to the plaintiff that the left foot of the
ladder was on a gravel and earth surface which was somewhat lower than the right leg on the
concrete surface. He ought to have foreseen some instability and risk attaching to his ascent and
descent of the ladder. The Court thus measured the extent of contributory negligence to be 30
percent.
Recreational Users
Definition of Recreational User
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A recreational user is defined in the Act as an entrant who is present with or without permission or
implied invitation free of charge (not counting a reasonable charge for the cost of providing vehicle
parking facilities) for the purpose of engaging in a recreational activity (and who does not meet the
definition of a “visitor” set out above). Recreational activity is defined to include any such activity
conducted in the open air including any sporting activity, scientific research and nature study and the
exploration of caves, sites, and buildings of historical, architectural, traditional, artistic, archaeological
or scientific importance.
Duty Owed to Recreational Users
Under s 4, the occupier owes a restricted duty of care to recreational users to avoid injuring them
intentionally and to avoid acting with reckless disregard for their safety. Section 4(2) provides that in
determining whether or not an occupier has so acted with reckless disregard, regard shall be had to
all the circumstances of the case and a number of factors which are listed in s 4(2) and include the
nature of the danger, character of premises, conduct of entrant, warnings and supervision of entrant.
It is not clear how these factors relate to each other and which should be weighted.
An example in case law of the duty owed to recreational users is Weir Rodgers v SF Trust Ltd
(2005). The Plaintiff sued the Defendant occupier of a local beauty spot in Donegal claiming
damages under the 1995 Act for significant personal injuries sustained by her after falling down a cliff
face. She had walked to the headland with friends after passing through a broken-down fence, and
had sat there to admire the sunset. Upon getting up to leave, she had lost her footing and tumbled
down. The Plaintiff argued that the sheer drop of the cliff had been hidden from view and therefore
that the danger had not been apparent. The Defendants argued that they had not behaved with
“reckless disregard” and that the risk of falling was self-evident and had required neither fencing nor
warning notice. The High Court found for the Plaintiff and held an accident of this type had been
reasonably foreseeable. The Plaintiff’s award was reduced by only 25 percent to reflect her
contributory negligence. This decision was overturned by the SC. It was held that the HC had erred
by subjecting the Defendant to negligence or fault standards, and should have limited itself to
determining whether the Defendant had acted with “reckless disregard”. The court favoured an
objective test of ‘reckless disregard’ and rejected the argument that the Defendant should have
erected fencing or warning notices. The Court stated that there are certain risks in outdoors activities
and the Plaintiff should have appreciated dangers inherent in sitting along the edge of a steep
embankment adjacent to sea. Finally, the Court held that there may be exceptional unusual or
dangerous qualities to certain lands which would require an occupier to erect warning notices but in
this case the danger inherent in the act must have been obvious to the Plaintiff so the Defendant
could not be held to have acted with reckless disregard in not putting up warning signs.
Trespassers
Definition of Trespasser
Trespassers are defined as entrants who are not visitors or recreational users. In summary they are
persons who do not have permission or authority to be present on those lands and are not there for
recreational purpose. The classification of an entrant as a trespasser as opposed to a visitor will
have a significant impact.
In a case which mirrors the facts of Vega v Cullen, in that it concerned an unsafe ladder, in Williams
v TP Wallace Construction Ltd (2002) the Plaintiff was the general manager of a firm hired by the
Defendant construction company to install guttering in a shopping centre. On the day in question he
arrived unannounced at the site to verify that the guttering was going well. A number of site workers
were on a break and the architect was not present but he proceeded to inspect the site and fell from
a ladder. He sued the Defendants as occupiers, claiming that the ladder should have been tied to the
scaffolding to prevent an accident of this nature. The Court held he was not a ‘visitor’ for the
purposes of the 1995 Act, since he was not there by invitation or arrangement, and so he was
categorically a ‘trespasser’ to whom the occupier owed a more minimal duty not to act in reckless
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disregard. The court found that the failure to tie the ladder to the scaffolding was not an act of
reckless disregard.
Duty Owed to Trespassers
Under s 4, the occupier owes the same duty of care to trespassers as he owes to recreational users
– namely to avoid injuring them intentionally and to avoid acting with reckless disregard for their
safety. Section 4(2) provides that in determining whether or not an occupier has so acted with
reckless disregard towards a trespasser, regard shall be had to all the circumstances of the case and
a number of factors which are listed in s 4(2) and states that regard shall be had to all the
circumstances of the case and a number of factors which include the nature of the danger, character
of the premises, the conduct of the entrant, warnings and, where relevant, the supervision of the
entrant. In particular it refers to:
a. whether the occupier knew or had reasonable grounds for believing that a danger
existed on the premises;
b. whether the occupier knew or had reasonable grounds for believing that the person
and, in the case of damage, property of the person, was or was likely to be on the
premises;
c.
whether the occupier knew or had reasonable grounds for believing that the person or
property of the person was in, or was likely to be in, the vicinity of the place where the
danger existed;
d. whether the danger was one against which, in all the circumstances, the occupier
might reasonably be expected to provide protection for the person and property of the
person;
e. the burden on the occupier of eliminating the danger or of protecting the person and
property of the person from the danger, taking into account the difficulty, expense or
impracticability, having regard to the character of the premises and the degree of the
danger, of so doing;
f.
the character of the premises including, in relation to premises of such a character as
to be likely to be used for recreational activity, the desirability of maintaining the
tradition of open access to premises of such a character for such an activity;
g. the conduct of the person, and the care which he or she may reasonably be expected
to take for his or her own safety, while on the premises, having regard to the extent of
his or her knowledge thereof;
h. the nature of any warning given by the occupier or another person of the danger; and
i.
whether or not the person was on the premises in the company of another person
and, if so, the extent of the supervision and control the latter person might reasonably
be expected to exercise over the other’s activities.
Given that these factors will weigh differently depending on whether the entrant is a trespasser or a
recreational user, there is in practical terms perhaps a lower obligation in respect of trespassers than
recreational users.
Section 4(3) provides that the occupier’s statutory duty does not extend to trespassers who enter the
premises for the purpose of committing an offence or, where present on the premises, commit an
offence. Such persons can only recover from the occupier when a court determines that recovery is
“in the interests of justice”.
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Application of the Law to the Facts
At first glance, it is tempting to suggest that Kelly was recreational user of the premises because she
was there for a purpose which was, at least in layman’s terms, recreational. However, Kelly could not
be regarded as a recreational user because she was there for what would be categorised as ‘social’
reasons, which is not one of the bases of recreational activity which would justify a categorisation as
a ‘recreational user’. This then recalls that the definition of a ‘visitor’ refers to entrants who are
present by the permission or invitation of the occupier or his family or a person ordinarily resident on
the premises or an entrant present for social reasons with the occupier or a member of their family. It
would appear that while Kelly almost meets this definition, that she would not fully satisfy the criteria
because she was not in fact on the premises on Donald’s explicit invitation. Insofar as she may be
able to successfully claim that Donald’s advertising of the gathering on mouthbook constituted an
invitation, then she presumably would be a ‘visitor’ on that account.
It is perhaps most likely that Kelly is in a trespasser, which is defined as an entrant other than a
visitor or a recreational user. Importantly, if this is the case, then a lower standard of care is required
in respect of her. In this respect, it would have to be shown that Donald acted with ‘reckless
disregard’ for her safety by reference to tarpaulin which perhaps looked as if it was covering water,
but was not doing so. While there is a certain deceptiveness to the appearance of the tarpaulin in
that respect, it would appear difficult for Kelly to be able to successfully avoid the considerations of
the Court under section 4(2) of the Act, which would take into account the amount of responsibility
she should take for her own safety and the extent to which Donald could have expected her to be in
the vicinity of the danger. This appears to have been quite a risky and spontaneous action on Kelly’s
part.
In the unlikely event that she successfully claims that she is a visitor, Kelly would enjoy a right to a
higher duty of care on Donald’s part. The Act requires an occupier “to take such care as is
reasonable in all the circumstances ... to ensure that a visitor to the premises does not suffer injury or
damage by reason of any danger existing thereon,” and specifically notes the care which a visitor
would be expected to take for their own safety, as part of that assessment. It would appear that Kelly
may also struggle to demonstrate that even this higher standard was breached in light of the fact that
it would be difficult to suggest that it would be reasonable to anticipate that someone would jump on
a tarpaulin which they believed to be covering a swimming pool.
In light of the foregoing, it is submitted that Kelly is likely to be regarded as a trespasser and that in
that context, Donald has not breached a duty of care to her. There is a remote possibility of Kelly
meeting the definition of a visitor, however, even then, she would be unlikely to be able to
demonstrate that the consequent higher standard of care required had been breached.
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Question Eight
Latin phrases are often the last refuge of the desperate lawyer, and res ipsa locquiter has provided
its fair share of lawyers with the illusion of a good case for their client.
Critically analyse the development and operation of res ipsa locquiter in the Irish legal system
Answer Eight
The Doctrine of Res Ipsa Loquiter literally means “the acts speak for themselves” and it can be
availed of only in exceptional circumstances. It permits the court to draw an inference of negligence
on the basis of circumstantial evidence of a highly suggestive nature.
While the inferences allowed by the balance of probabilities are logical inferences which have a
degree of certainty about them, res ipsa loquitur goes a step further in drawing inferences from facts
whose consequences are not as direct, but cumulatively suggest that negligence occurred. In Scott v
London & St. Katherines Dock (1865), the court held that where the event which causes injury to the
plaintiff “is shown to be under the management of the defendant or his servants, and the accident is
such as in the ordinary course of things does not happen if those who have the management use
proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that an
accident arose from want of care.” The effect of the doctrine therefore, is that the burden shifts to the
defendant to disprove the inference that it caused the accident by its want of care.
The exceptional nature of the doctrine was emphasized in Ireland by Henchy J in Hanrahan v Merck,
Sharpe & Dohme Ltd (1988), although some commentators are of the view that the judgment has
served to complicate the doctrine. The plaintiffs in that case claimed personal injury and damage to
property as a result of emissions from a nearby factory. Henchy J held that “where damage has been
caused to the plaintiff in circumstances in which such damage would not usually be caused without
negligence on the part of the defendant, the rule of res ipsa loquiter will allow the act relied on to be
evidence of negligence in the absence of proof by the Defendant that it occurred without want of due
care on his part.” He further stated that the onus of proof shifts to the defendant in such cases as it
would be “palpably unfair to require a plaintiff to prove something which is beyond his reach and
which is peculiarly within the range of the defendant’s capacity of proof.” The latter comments
appeared to limit the availability of the doctrine to situations where the plaintiff is unable to prove
something which the defendant is capable of proving.
The Supreme Court, in Lindsay v Mid Western HB (1993), applied the doctrine without reference to
the proposed additional requirements. This was a case in which a minor Plaintiff was admitted to
hospital to have her appendix removed. She went into a coma during the operation and never
recovered. The Court held the effect of res ipsa loquitur in the case was to require the Defendant to
show that he had exercised all reasonable care and therefore that he was not negligent. To impose a
more onerous burden on the Defendant would be unjust. The Defendant was therefore not required
to take the further step of proving on the balance of probabilities what had caused the Plaintiff’s
injuries.
However, the subsequent SC decision in Rothwell v MIBI (2002) approved the formulation set forth in
Hanrahan and so it does appear to be something of a standing authority in the area. This was a case
taken against the MIBI seeking compensation for injuries in an accident when the Plaintiff’s car
skidded on an oil spill. The MIBI is bound to compensate road traffic casualties where the driver who
negligently caused an accident is untraced or unidentified. The Plaintiff was unable to prove that the
oil spill was left by a negligent driver thus his case depended on the application of the res ipsa
loquitur maxim to infer that the spill had been left by a negligent driver with no defence. The Court
held that maxim requires “not merely that a matter in respect of which the onus is to shift is within the
exclusive knowledge of the Defendant, but also that it is ‘peculiarly within the range of the
Defendant’s capacity of proof’.” The court found the maxim not to apply in a case of this nature where
it could not be said that knowledge of the source of the oil spill was a matter peculiarly within the
knowledge of the Defendant. It thus disapplied the doctrine to the facts as presented, but did not
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overrule the precedent. It is clear that the applicability of the doctrine of res ipsa loquitur has been
significantly limited by the endorsement by Rothwell.
In Doherty v Reynolds (2004) the Plaintiff attended hospital for treatment of heartburn and acid reflux.
He underwent an operation and emerged with a severe injury to his right shoulder which took six
years to improve. The Plaintiff relied on the doctrine of res ipsa loquitur. The High Court allowed the
Plaintiff’s claim applying the doctrine of res ipsa loquitur and concluded that the Defendant had failed
to rebut the inference of negligence. In the Supreme Court, the Court allowed the Defendant’s
appeal. The Court held that the trial judge had erred in applying the doctrine of res ipsa loquitur in
circumstances where the Plaintiff had not proved facts capable of raising the inference of negligence.
The Court also stated that even if the judge was correct in deciding that the doctrine applied, the
manner in which he applied it gave rise to difficulties. The SC noted that the Judge seem to conclude
that because some staff members could not recall specific details that they could not discharge the
burden of proof establishing that there was no negligence. The SC confirmed the approach that a
Defendant must be found negligent if they cannot explain how the injury occurred is inconsistent with
the Lindsay case.
In the more recent case of Presho v Doohan (2009), a resident of Tory island’s house disappeared
over several months (when he was not living there). The plaintiff sued the only JCB owner on the
island and the owners of the hotel who he alleged were using his land as a car park, and removed his
house to obtain an unobstructed view of the landscape. The JCB owner was also the principal of the
company who owned the hotel. It was established that the house was removed by mechanical
means. The owner of the JCB denied that he removed the dwelling from the site. Murphy J. noted the
academic criticism Henchy’s J.’s formulation in Hanrahan v Merck Sharp and Dohme and stated that
the doctrine is applicable to the circumstances where motivation, capacity and opportunity of the
defendants are considered. The court referred to the more traditional formulation of the doctrine
which concerned (a) the thing causing the injury being under the defendant's control and (b)
accidents such as the one befalling the plaintiff not ordinarily happening if those in control exercise
due care. The Court inferred from the facts and was satisfied that it was probable that the first
defendant's JCB, whether driven by that defendant or not, was the only "thing causing the injury," and
allowed the plaintiff to recover damages based on res ipsa loquitur and circumstantial evidence.
Conclusion
In light of the foregoing case law it may be said that the development of the doctrine in Irish law has
been a somewhat disjointed one, but its impact has been significant. While it has proved useful to
Plaintiffs who cannot prove negligence, the Supreme Court has sought, since the finding in
Hanrahan, to allow a Defendant rebut the presumption without ascertaining precisely how the
damage in question in fact occurred. The consequences of Hanrahan have been somewhat limited,
as is clear from the judgment in Presho, and while it might be excessive to suggest that this has
allowed for arbitrary decision-making, it certainly appears to be an area which has a disconcerting
lack of clarity.
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Exam Paper - October 2016
Question One
Adam was driving from Cork to Dublin on the motorway in his new Caprica Luna, the latest family car
fitted with huge amounts of advanced safety systems, including Lane Intrusion Alert (LIA). According
to the manual, LIA was designed to provide an audible warning to the driver that another vehicle was
about to intrude onto their lane and if there was no response from the driver, LIA would ultimately
take corrective action by automatically applying the brakes and bringing the vehicle to stop, where
possible. The manual however specifically advised that the system was only a supplemental safety
device and was not intended to replace driver vigilance when driving and that the system would not
work in all circumstances. Adam had read the manual fully and was aware of this section.
Lucy was a 12 year old girl who had decided to play truant from school. For fun, she set herself up
on a pedestrian bridge about 10 miles from Dublin which crossed over the motorway along which
Adam was driving. As the cars came into view, Lucy would flash a mirror at them which caught the
sunlight and created a brief flash. Lucy thought that this was hilarious.
As Adam approached in the inner lane of the motorway, Lucy flashed the mirror. Adam did not see
the flash as he had his eyes momentarily closed listening to one of his favourite pieces of opera.
However, when LIA detected the flash from Lucy’s mirror as it was designed to do, it had to reboot
and a small warning light came on the dashboard to indicate that LIA was not currently available.
Adam opened his eyes briefly and looked at the road. There was no one in front of him. He closed
his eyes again assuming LIA was still operating. At that moment, Harry, the driver of a truck which
had been overtaking Adam was momentarily blinded by Lucy’s mirror and in a serious over-reaction,
swerved into Adam’s car, resulting in so much damage that his car had to be written off.
Advise Adam who was the cause of the damage to his car in tort law.
Answer 1, October 2016
There are three individuals who appear to have exhibited some neglect in the circumstances giving
rise to the damage to Adam’s car. They are Lucy – for intentionally impairing the capacity of drivers
to see effectively; Harry for his “serious over-reaction” to Lucy’s shining of the light in his eyes; and
Adam himself for his unjustified reliance on the safety features of his car. It does not seem stateable
to suggest that the manufacturer of the car could also be liable, because the manufacturer
instructions would have always required vigilance on the driver’s part in all circumstances; and Adam
did not meet this standard. The feature was to add safety rather than take responsibility from the
driver, and the feature was therefore clearly misused by Adam.
Issues which arise in respect of causation in the facts of the case concern the capacity of Lucy to
liable in light of her young age; the possibility of novus actus interveniens arising in circumstances in
which there may be multiple contributing causes; and the question of the contributory negligence of
Adam in respect of the damage to his car.
The rules on causation dictate that a defendant cannot be liable to the plaintiff unless he has caused
the damage in question. The defendant must therefore be linked in a factual way to the injury of the
plaintiff for liability to arise. If this factual causation is established, the question of legal causation
must then be considered. The court must satisfy itself that a defendant is legally responsible for the
plaintiff’s injury. Both concepts may be regarded as forming part of the ‘rules of causation’.
General Law on Causation
Causation is generally broken down into the categories of factual and legal causation. These two
were distinguished in the judgment of Finnegan P in Clabby v Global Windows [2003] IEHC 53. In
that case, a postman suffered a back injury while posting mail through the defendant’s letterbox,
which he claimed had been installed at such a low level as to constitute negligence on the part of the
defendant. Finnegan P held that while the low letterbox was the cause sine qua non of the injury, the
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plaintiff’s failure to adopt a correct posture in posting the mail was the causa causans, or immediate
cause of the accident. So while there was factual causation between the defendant’s actions and the
injury of the plaintiff, there was no legal causation, as the plaintiff’s own actions had broken the chain
of causation.
In deliberating upon issues of causation, the courts have traditionally applied a “but for” test to
establish whether an event would have occurred without the act in question. In Kenny v O’Rourke
[1972] IR 339, the plaintiff was a painter who was injured when he fell from a ladder on a building g
site. Despite the fact that the ladder was defective, the plaintiff’s evidence was that he fell because
he leaned over too far. There was therefore no causal connection between the defect in the ladder
and the injuries suffered by the plaintiff. Where the plaintiff claims that his injury is caused by the
defendant’s omission, then the causal link between failure to act and injury must be proved. In
Barnett v Chelsea and Kensington Hospital Management Committee [1969] 1QB 428, the plaintiff’s
husband was negligently turned away from the defendant’s hospital without proper examination by a
doctor. The plaintiff’s husband subsequently died of arsenic poisoning. The plaintiff’s claim failed on
the grounds that even had her husband been properly examined, the probability was that he would
have died anyway. In Geoghegan v Harris [2000] 3IR 536, the plaintiff had undergone a medical
procedure that had resulted in him suffering chronic neuropathic pain. The plaintiff claimed that he
had been inadequately informed of the risks of the procedure in question in that he had not been
warned of the possibility of the occurrence of this type of pain. Kearns J, in finding for the defendant,
held that the plaintiff had not made out a case that he had asked the defendant any question that
could reasonably be construed as having to do with ongoing pain, and that therefore the defendant’s
failure to provide this information was not causal to the plaintiff’s decision to undergo the procedure
in question. In the present scenario, there does not appear to be any missing causal link between the
actions of each individual and the eventual outcome. It seems clear that each party (Lucy, Harry and
Adam) had a causal link to the outcome.
In certain circumstances, the “but for” test will be an overly simplistic device for the ascertainment of
a causal connection between the action of the defendant and the injury of the plaintiff. In
circumstances where the plaintiff suffers injury due to the successive wrongs of a number of
defendants, the “but for” test is clearly inadequate, and the courts tend to utilise a “material element”
test, in which the defendant’s conduct is seen to be a cause of the event if it was a material element
and a substantial factor in bringing it about. An example of the operation of the “material element”
test is to be found in the case of McGhee v Mid Western Health Board [1973] 1WLR 1. In that case,
a worker who was subjected to exposure to dust while cleaning brick kilns contracted dermatitis. The
Court of Appeal held that while the plaintiff could not establish that had showers been provided for
him by the defendant, which he could have washed in after work and reduced the exposure to dust,
he would not have contracted his condition, nevertheless there was no substantial difference
between materially increasing the risk of injury and making a material contribution to the injury and,
accordingly, the workman was entitled to recover damages from his employers in respect of their
admitted breach of duty for an injury within the risk which they had created. In the present case, as
the facts are clear, the ‘but for’ test is likely to be the most appropriate.
Legal Causation
Following an attribution of factual causation by the courts, the question then arises as to whether the
action of the defendant was legally causative of the accident complained of. Legal causation cannot
be linked to factual causation, in the sense that while the action or omission of a defendant may
cause an accident, that act might not result in the imposition of liability where for example an
intervening or supervening event is so significant, that it is deemed to be the legal cause of the
injuries or loss that the plaintiff ultimately suffered. For example, in the case of Jobing v Associated
Dairies (1982), The Plaintiff was injured at work and a subsequent illness caused by another
individual rendered him unfit to work. It was held on the facts that the first Defendant was liable for
the difference in earning capacity to date of illness only and the liability of first Defendant terminated
on the date of the subsequent illness.
In the present case, the contributions of each party appear clear in the sense that each party did act
negligently, and that negligence did contribute to the damage to Adam’s car. Three particular issues
arise in respect of whether legal causation will be made out however. These are firstly, whether Lucy
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can be held liable at all, given her young age; secondly, whether there may be any novus actus
interveniens, and thirdly how contributory negligence may be applied in the circumstances.
Lucy’s Liability as a Child
It is unclear at what age minors can have responsibility as Defendants. In the case of O’Brien v
McNamee (1953), a child aged seven left lighted paper in hay barn, causing barn to burn down. He
was found liable for trespass although all you need to establish for trespass is voluntary conduct.
Parents/schools may be liable for acts of child where they fail to control the children, but on the facts
of the present case, it appears as if neither a school or parent could have been expected to play a
role in the present case because Lucy was ‘playing truant’.
Perhaps some insight into the extent of liability of children in negligence can be gleaned from
analyses undertaken by the Courts in cases where children may have been contributory negligent. In
Fleming v Kerry County Council (1955-56) the Court held that the issue of contributory negligence of
a minor will be assessed having regard to the age, mental development and other circumstances
relating to the child. In applying that principle in a later case of Hession v Hession (2005), there was
a case in which the Plaintiff’s father’s car began to move in the driveway because the handbrake was
off. The minor Plaintiff, who was 14 at the time, rushed over and tried to stop the car but she was
crushed between the car and the wall and sustained injury to her legs. The Court stated that it was a
foolish act by the girl but was an intuitive reaction and was not a deliberate exposure to risk. The
Court referred to the fact that she was 14 and held that there was no contributory negligence. In
McNamara v ESB (1975) however, the Supreme Court upheld a finding of contributory negligence in
respect of an 11 year old child for not taking heed of warning signs at a power station.
In the present case, it would seem that Lucy is likely to be held liable to some extent as it seems
likely that she understood that her actions would effect drivers albeit that she may not have
understood the moral gravity of the consequences of her actions.
Novus Actus / Apportionment & Contributory Negligence
Section 34 (1) empowers the court to apportion damages “having regard to the degrees of fault of
the Plaintiff and the Defendant”. In O’Sullivan v Dwyer (1971) the Court considered that
‘blameworthiness’ was equivalent to a “moral blameworthiness ... measured against the degree of
capacity or knowledge which such a person ought to have had if he were an ordinary reasonable
person.... Fault or blame is to be measured against the standard of conduct required of the ordinary
reasonable man in the class or category to which the party whose fault is to be measured belongs.”
Similarly, if the Plaintiff’s own actions were a partial cause of the injury they suffered the liability of
the Defendant can be reduced proportionately by virtue of section 34 of the Civil Liability Act 1961.
This latter calculation is known as “contributory negligence,” albeit that the applicable principles
mirror closely the principles used in establishing the liability of a Defendant.
Thus, liability can be apportioned as between Lucy and Harry in respect of their independent
contributions to the damage (after having taken account of any contributory negligence on Adam’s
part). However, in cases where there are two or more tortfeasors the Courts may consider one action
to overwhelm that of the other(s) to such an extent that, that tortfeasor is treated as being solely
liable – this is known as a novus actus interveniens.
In Crowley v AIB & O’Flynn (1988), the minor Plaintiff was seriously injured when he fell off flat roof
of premises owned by AIB. The second Defendants were the architects who had designed the roof
without specifying the need for railings. It was held in the High Court that the Architect was 30
percent liable for Plaintiff’s injury and the bank was 70 percent liable. However it was held by the
Supreme Court that the liability of the architects for their failure to design railings around the roof was
relieved by proof that AIB for some time had known that children played on the roof and yet did
nothing about it. AIB’s omission to act was therefore the true cause of the accident and was a novus
actus.
In the present case, if a novus actus is to be identified, it appears most likely to be Adam’s own
actions. It appears from the facts that despite Harry’s over-reaction, Adam may nonetheless have
been able to swerve himself to avoid the collision. It will be a matter for the Court to identify the
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severity of his omission in this regard, but if it something which is a very significant contribution, it
would appear possible given the blameworthiness of driving with ones eyes closed, that the Court
may consider it a novus actus.
Notably, it is also possible that the injured party is more at fault for their own injury than the
defendant, but they can still recover for the portion of fault attributable to the Defendant. In Donohoe
v Killeen (2013), although it was held that on the balance of probabilities that the plaintiff
inadvertently broke a red light at a junction, she was able to recover 45% of her damages owing to
the fact that the Defendant should have reacted with better evasive action. Thus in the premises, it is
unlikely to be sufficient for Adam to rely solely on the fact that his car remained in its lane to avoid a
finding that he is liable to some extent for the damage claimed.
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Question Two
‘The primary consequence of having a general conception of the duty of care concept is that the
boundaries of the tort of negligence are somewhat fluid, allowing courts to extends its scope when
faced with new situations or to contract its scope when it is seen to lead to an injustice.’ (Quill, Torts
in Ireland, 4th ed. P. 23 footnote omitted).
Critically discuss the modern development of the duty of care principle in Irish Law.
Answer Two
Duty of Care
The assessment of the existence of a duty of care, is an issue which considers whether the
Defendant’s actions were such that he should have borne in mind the foreseeable possibility of the
injurious effect his actions (or omissions) may have on the Plaintiff, such that he has a duty not to so
act, and is consequently responsible to the Plaintiff for any injury or loss the latter may suffer as a
result of the Defendant’s actions. Thus, the courts have emphasised that negligence is a type of
fault-based liability. To succeed in negligence, the Plaintiff must establish some legal responsibility
on the part of the Defendant in the form of an obligation or duty, known as a duty of care.
The development of the duty of care can be traced to the UK decision in Donoghue v Stevenson
[1932]. The Plaintiff consumed a bottle of ginger beer and found the remnants of a decomposed
snail, which caused her to become ill. The Defendant’s argued that because she hadn’t actually
purchased the bottle of ginger beer she had no remedy under contract and therefore no action in
negligence. The Court held that the duty of care a defendant owes the Plaintiff exists even though
the parties were never is a direct contractual relationship.
Donoghue v Stevenson established the neighbour principle and emphasised proximity of relationship
between the Plaintiff and the Defendant and the reasonable foreseeability of injury.
Donoghue v Stephenson was initially accepted by the Irish Courts in Kirby v Burke and Holloway
[1944] and was re-constituted in the UK courts in Home Office v
Dorset Yacht Club Co Ltd [1970]. However the UK case law underwent a separate evolution to the
Irish jurisdiction. In the UK, Anns v Merton Borough Council [1978], was authority for a two-tiered
test to establish a duty of care as follows:
1. Proximity or neighbourhood such that within reasonable contemplation of Defendant that
carelessness would result in injury
2. Are there considerations that ought to reduce the scope of the duty?
This was seen as an expansive reformulation of the Donoghue v Stevenson decision and the Irish
Courts welcomed this approach. However it was criticised because the 1st tier of the test mixes the
issues of proximity and foreseeability. The Irish Courts now prefer to consider these elements
separately.
The UK courts subsequently rejected the Anns test on the basis that it appears to sketch proximity in
terms of reasonable foreseeability and risks alone. In Caparo Industries Plc v Dickman [1990] a new
3-tier test to replace Anns was formulated as follows:
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.
So in addition to establishing proximity and foreseeability the Plaintiff must also establish that it is
just and reasonable to impose a duty of care. Caparo is seen as the beginning of ‘incremental
approach’ in English jurisprudence, which means that the duty of care is developed by comparison
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with previous decisions. Caparo was endorsed in the UK in Murphy v Brentwood District Council
[1991].
The Irish Courts had for a long time retained preference a for Donoghue v Stevenson (/Anns)
principles, favouring its broad principled case-by-case approach. The
English Incremental approach had been unpopular with Irish judges and rejected on a number of
occasions, however the decision in Glencar Explorations v Mayo County Council (2001) by the
Supreme Court appears to suggest a new judicial caution (as will be set out below).
Donoghue v Stevenson was endorsed in Ireland prior to the decision in Anns in cases like Kirby v
Burke and Holloway [1944] (as outlined above), and McNamara v ESB [1975] where the court
emphasised the issues of proximity and foreseeability.
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 not a major innovation in the law of tort.
Ward v McMaster [1988] saw the courts in Ireland continue to adopt a broad expansive approach to
negligence principles and rejected English incremental approach. This approach was also followed in
the McShane Wholesale fruit and vegetables Ltd case (1997)
However in Glencar Explorations v Mayo Co Co [2002] ,Keane CJ invited reconsideration of the
allegiance of the Irish Courts to the Anns decision. It was held in this case that the Plaintiff could not
recover since although 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 did not reject Anns, but
simply preferred the Caparo wording of the second tier.
The issue was again examined by the Supreme Court in Breslin v Corcoran [2003] where it was held
that in addition to the elements of foreseeability and proximity, it is natural to have regard to
considerations of fairness, justice and reasonableness.
The dicta of Keane CJ in Glencar were also recently cited by Peart J in Dempsey v Waterford
Corporation (2008). This case sewage had penetrated the plaintiff’s 17th-century home in Waterford
city. From the facts it seemed that water had been conveyed to the premises by a 17th-century
culvert. The defendants were carrying out sewage works at the time however this culvert was not
known to the defendants nor did it appear on any map. Peart J. held that no claim arose in
negligence and considered whether a duty of care arose. Peart J stated that the question as to
whether there was a duty of care arose, was whether the Defendant’s duty of care extended to
considering and investigating the existence or nonexistence of such a culvert that the defendant had
no basis for suspecting might exist. The court held that the duty did not extend in this way as the
defendants would have to dig up the street “on the off chance that a culvert would be discovered.” As
there the court found that there had been no breach of duty, it was not necessary to consider the
issue of forseeability of damage and the just and reasonable test.
Conclusion
The tests decisions in Glencar, Breslin, and Dempsey demonstrate the proposition that establishing
a duty of care can be a significant hurdle for a plaintiff. These cases appear to demonstrate a sense
of a recent contracting of the scope of the obligation, whereas prior to Glencar, there was a general
sense of an extension or expansion of the concept in case law pre-dating Glencar. It is thus clear
that the concept is, as Quill has noted, “somewhat fluid, allowing courts to extends its scope when
faced with new situations or to contract its scope when it is seen to lead to an injustice.”
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Question Three
Erin was running late for her final examinations to qualify as a doctor. She knew it was her own fault
and now she found herself driving recklessly to get to the exam hall in time. On her way to the
examination hall there was a small slip road that was normally open in the Summer months but
closed at all other times of the year. It was a council owned road with gates at either end that they
opened to allow tourists and visitors to get close to a nature reserve. If the gate was open, Erin
realised that it would reduce her journey time by about 20 minutes meaning she could get to the
examination hall in plenty of time. However, this was the beginning of September and she was never
sure whether September was Summer or Autumn.
As Erin passed the slip road, she spotted that the gate was open and so began driving down it.
Along the way she met Bob, who worked for the council, driving against her in a council truck. As the
road was only wide enough for one car, Erin pulled in to allow Bob to pass. Erin waved at him but
Bob ignored her. Bob was in fact annoyed with Erin. The road had been closed since the end of
Summer (August). Bob was only there to do some quick tidying up. He thought that he would teach
Erin a lesson and when he passed the gate, he stopped the truck and put a padlock which looked
like it was locked but in fact was not.
When Erin got to the end of the road, she found a locked gate there. Panicking, she turned around
and drove back only to find herself caught by the gate which she mistakenly believed to be locked as
well. In desperation, she rang the emergency telephone number which connected her to Bob.
Explaining her situation to Bob, she pleaded for him to open the gate as soon as possible. Bob said it
would take him 30 minutes to get back to open the gate again although in fact he was less than a
mile down the road having a coffee.
When Bob showed up about 30 minutes later, he spent 10 minutes explaining to her that what she
had done was inappropriate before showing her that the gate was never in fact locked. Erin missed
her final medical examination as she arrived far too late.
Advise Erin what, if any, action against Bob might be available to her in tort law on these facts.
Answer Three
Introduction
The present case would appear to invite a discussion of the tort of ‘false imprisonment’ which is an
aspect of the more general tort of ‘trespass to the person’. It is an intentional tort (as opposed to one
made out solely by an act of negligence), and it appears to be patently clear from the facts that what
in fact occurred was consistent with Bob’s intention when he decided to make the gate of the slip
road appear to be closed (his intention being, “to teach [Erin] a lesson”).
False imprisonment is the unlawful restraint or detention of the Plaintiff . “Imprisonment” is a
misleading term since this tort is committed whenever one is restrained by another or constrained
from movement from a place whether that place is a shop, school or one’s own home. In Dullaghan v
Hillen (1957) Fawsitt J described false imprisonment as the unlawful and total restraint of the
personal liberty of another whether by constraining him or compelling him to go to a particular place
or confining him in a prison or police station or private place or by detaining him against his will in a
public place . The essential element of the offence is the unlawful detention of the person, or the
unlawful restraint on his liberty. The fact that a person is not actually aware that he is being
imprisoned does not amount to evidence that he is not imprisoned, it being possible for a person to
be imprisoned in law, without his being conscious of the fact and appreciating the position in which
he is placed, laying hands upon the person of the party imprisoned not being essential. There may
be an effectual imprisonment without walls of any kind. This detainer must be such as to limit the
party’s freedom of motion in all directions. In effect, imprisonment is a total restraint of the liberty of
the person. The offence is committed by mere detention without violence.
It is said that the confinement must be total or complete so that blocking one means of exit is not
sufficient if the Plaintiff had reasonable means of escape. In Bird v Jones (1845), the Defendants had
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blocked one side of Hammersmith Bridge to form a grandstand for a boat race, thereby preventing
the Plaintiff’s passage over the bridge. The Plaintiff remained in the enclosure for some time,
refusing to cross by the opposite path. The Court held that, since the Plaintiff had had reasonable
means of leaving the enclosure/bridge, it could not be said that he was falsely imprisoned. It has
been established that blocking one means of exit may amount to false imprisonment where the only
available means of escape is dangerous or where the Plaintiff is not aware of the means of escape.
In the present case Erin, did not have any alternate means of escape because both gates appeared
to be shut.
Thus a Plaintiff may be falsely imprisoned even if he does not know it, and it may be necessary to
consider whether the fact that the gate was not in fact locked will impact on the imposition of liability
on Bob. In Meering v Graham White Aviation (1918-19), an employee of the Defendant company had
been suspected of theft. As part of the investigation, the Plaintiff agreed to wait in a room with two
security officers. Although he was free to leave at any time, this fact was not made known to him.
The Court reasoned that a person could be imprisoned without his knowing it. The examples of the
Court referred to while a plaintiff is asleep, while he is in a state of drunkenness, while he is
unconscious and while he is a lunatic. The Court concluded that in the circumstances, a false
imprisonment had taken place.
The rationale of Meering was approved by the House of Lords in Murray v Ministry of Defence (1988)
but the Court commented that if a person is unaware that he has been falsely imprisoned and has
suffered no harm, he can normally expect to recover no more than nominal damages ... The law
attaches supreme importance to the liberty of the individual and if he suffers a wrongful interference
with that liberty it should remain actionable even without proof of special damage.”
Frequently, acts of false imprisonment are committed by store detectives and employees to whom
supervisory roles are delegated. In general, if the worker was an employee or someone under the
control or delegation of another, the other party may be deemed vicariously liable for the tort
committed. However, the Plaintiff must establish that the tort was committed in the course or scope
of the employment and if the acts of the employees are excessive, the court may decide that the
employer had not authorized it. Although Bob is an employee of the Council and did appear to be
doing his job when the incident occurred, we are not asked to advise on any vicarious liability in the
present case.
It might be noted that Erin may have been technically trespassing at the time that Bob decided to
make her believe that she was trapped. She did not know that she was not allowed enter, but her
actions were an intentional act which would make them a technical trespass. The question then
arises as to whether this would constitute a defence for Bob.
In Gibbons v Securicor (unrep 2004), the Plaintiff was asked to leave a shopping centre because he
was shouting and making gestures at security staff. He refused to leave and tried to strike a security
guard. The Security staff restrained him and brought him inside to an office and called the gardai.
The Plaintiff sued for battery, false imprisonment and defamation. The Court made a number of
points:
1. An occupier of premises can withdraw a person’s licence to be present on the premises and
the individual commits a trespass if they refuse to leave.
2. A degree of force may be used to remove a person from a premises where they are
trespassing.
3. If a person assaults or batters another or attempts to do so, that other person can use
reasonable force to defend themselves.
4. On the facts of the case the Court held that the restraint of the Plaintiff and his detention was
justified and the Plaintiff’s case was dismissed.
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On the facts of the present case, Bob had the opportunity to ask Erin to leave when they passed one
another on the slip road. Rather than do so, he sought to punish her by making her believe that she
was trapped. This does not appear to be a permissible response to a trespass to land, and Bob
should have simply asked Erin to leave.
It is noted that as well as the fact of being falsely imprisoned, Erin may be able to show some
particularised damages incurred as a result of missing her exam. Insofar as this was a ‘direct
consequence’ of Bob’s action, Erin would as a matter of law be able to seek to recover for this
damage – even if it is not a foreseeable type of damage. The rationale for this outcome lies in the
fact that the Bob’s actions were intentional rather than negligent, and as a consequence the rules on
remotes of damage which would have applied had it been a case of negligence, would not be
applicable to the present scenario.
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Question Four
The tort of nuisance ‘far from being susceptible of exact definition….has become a catch all for a
multitude of ill-assorted sins, linking offensive smells, crowing roosters, obstructions of rights of way,
defective cellar flaps, street queues, lotteries, houses of ill-fame and a host of other rag ends of the
law’. (Fleming, The Law of Torts, 9th ed. P.457).
Critically discuss this statement in light of recent jurisprudence.
Answer Four
Private nuisance protects persons from unreasonable interference with rights related to ownership or
occupation of land. Private nuisance has been extended beyond protection of proprietary interests to
enjoyment of personal interests connected with the land. For that reason, there is significant variety
in the content of different claims as Fleming has noted in the given quote. However, despite the fact
that a large number of different types of activities can give rise to a claim, the following summary of
the elements of a claim in private nuisance is intended to demonstrate that there is nonetheless
sufficient clarity as to the definition to give rise to discernible consistency in the concept despite, as
Fleming notes, “exact definition” being somewhat elusive.
There are a number of elements to a claim in nuisance:
– Locus Standi
– Conduct for which Defendant is responsible;
– Damage or interference with rights;
– Unreasonableness;
– Causation.
Locus Standi
Hanrahan v Merck Sharpe and Dohme [1988] – held that occupation of the premises is sufficient to
bring a claim for private nuisance in this jurisdiction. This differs from English position – Hunters v
Canary Wharf [1998] but was affirmed in Ireland in the case of Molumby v Kearns [1999]. Molumby v
Kearns concerned gates at an industrial estate, which had been widened resulting in increased traffic
causing noise and dust. Court held that occupation of premises sufficient to bring a claim but came
to compromise and imposed a restriction business including times of operation and number and size
of vehicles accessing the premises at certain times. Aileen would appear to have locus standii by
virtue of her residence in the property, and the issue of whether she is an owner or tenant would not
appear to be determinative.
Conduct for which Defendant is Responsible
Nuisance relates to acts or omissions for which the Defendant is legally responsible. Omissions may
include failure to alleviate natural hazards such as in Leakey v National Trust [1980] where the
Defendants topsoil had slipped onto Plaintiff’s property causing damage and threatening more. The
Court held that persons in control of property are liable in nuisance for failure to do all that is
reasonable in the circumstances to prevent or minimise the risk of foreseeable damage which they
knew or ought to have known encroaches or is about to encroach the neighbouring land.
Nuisance may also arise for a nuisance originally created by a third party if the Defendant knew or
ought to have known about the nuisance as this is an omission to alleviate a risk created by a third
party. In Sedliegh-Denfield v O’Callaghan [1940], a local authority employee installed a drainage
pipe in a ditch adjoining the Defendant’s land in a mistaken belief that they had consented to it. The
pipe became blocked causing flooding on the Plaintiff’s land. The Court held that the Defendant
landowners were liable to the Plaintiff for failing to undo the nuisance originally caused by the local
authority and held that they had failed to take reasonable steps to avert a hazard which was
reasonably foreseeable in the circumstances. In Harrington v Cork City Council [2005] the court
referred to Sedliegh-Denfield and held that the council had not taken all reasonable steps to alleviate
a nuisance and granted an injunction requiring defendants to do so in circumstances where there
was an unauthorised encampment on their land which was resulting in littering and trespassing.
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In O’ Kane v Campbell (1985), the plaintiff complained about a 24-hour shop at a junction between a
busy thoroughfare and residential street. The Plaintiff sued for nuisance as a result of customers
lingering outside the shop in the early hours. The Court held that the Defendant was liable for
ordinary and natural conduct of people he attracts to the neighbourhood. In particular, the Court
referred to the usual requirement of an objective test to establish what magnitude of disruption
constitutes a nuisance and indicated that the objective test of reasonableness will be tempered by
some elements of subjectivity and, in particular, the age and circumstances of the Plaintiff. As Lynch
J explained in O’Kane v Campbell (1985), elderly people may sleep more lightly, but “are equally
entitled to their night’s sleep”.
Damage or interference
The Plaintiff must prove the form of damage in an action for nuisance but in some exceptional
circumstances damage does not have to be shown, but can be presumed or inferred. In McGrane v
Louth CC [1993] the Plaintiff sought an injunction for apprehended damage but the Court refused the
injunction. Material damage includes damage to land and property including chattels. In St Helen’s
Smelting Co v Tipping [1865] the Plaintiff recovered for damage to shrubs and trees caused by
fumes, and in Halsey v Esso Co. Ltd [1961] the Court held that damage to the Plaintiff’s laundry
which was hanging outside the premises was sufficient material damage to chattels. In Patterson v
Murphy the Plaintiff recovered damages caused by the Defendant’s blasting operation, which
cracked the Plaintiff’s windows, internal walls and boundary wall and in Hanrahan v Merck Sharp and
Dohme [1988] the Plaintiff’s recovered for damage to their cattle caused by toxic emissions from the
Defendant’s neighbouring plant. In this case the Plaintiff’s also recovered for injury to their health as
occupiers of the property. Also, as outlined above, in O’ Kane v Campbell (1985), the Plaintiff sued
for nuisance as a result of customers lingering outside the shop in the early hours.
It is submitted that despite there being quite a variety of complaints possible, what they have in
common is the fact that the Plaintiff claims either an actual or anticipated interference with their
capacity to enjoy their land, free of unreasonable interference.
Unreasonableness
In all other nuisance cases apart from material damage (where liability is practically strict in nature),
the court assesses the impact of the Defendant’s activities on the Plaintiff to determine if it is
unreasonable. This can be contrasted with negligence law, which focuses on the unreasonableness
of the Defendant’s conduct before and during the event. The justification for the difference in
approach is due to the different aims of the torts and the underlying concern of nuisance law, which
is to protect rights to enjoyment of private property. There are a number of factors which will
influence the Court in assessing whether the impact is unreasonable. The Court will consider the
magnitude of the damage, the nature of the locality, and the Defendant’s motives or the social utility
of the Defendant’s actions.
The magnitude of the harm concerns the intensity, duration and frequency of the nuisance. In
Patterson v Murphy the Court referred to the brief but intensive blasting operations and held that the
conduct amounted to nuisance. The activity need not be continuous, but may be intermittent and
amount to an unreasonable impact. In Halpin v Tara Mines [1976], the Court commented that
intermittent noises which are irregular and at unpredictable intervals and which are unusual in the
locality may be more disagreeable than other noises which form part of the norm such as traffic. The
Court stated that unusual noises may instil apprehension and anxiety in the mind of the listener
whereas other more familiar noises may be distinctive but disregarded. The magnitude of the harm
will be assessed according to an objective standard. The Plaintiff is expected to exhibit the fortitude
ordinarily expected amongst members of society and the Courts will not generally vindicate the
Plaintiff’s abnormal sensitivity to the nuisance. However, the objective test of reasonableness will be
tempered by some elements of subjectivity and, in particular, the age and circumstances of the
Plaintiff. As Lynch J explained in O’Kane v Campbell (1985), elderly people may sleep more lightly,
but “are equally entitled to their night’s sleep”.
The nature of the exact locality may affect the analysis of the reasonableness of the impact. The law
must balance competing interests between use by the Plaintiff and Defendant of their respective
premises. The Court commented in Cavey v Ledbitter (1863) that the affairs of life in a dense
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neighbourhood cannot be carried out without mutual sacrifices of comfort; and that, in all actions for
discomfort, the law must regard the principle of mutual adjustment. Clearly there will be different
levels of noise and intrusion in urban and rural areas and residential/commercial areas. The Courts
tend to engage in a detailed analysis and take account of the very specific locality where disturbance
occurs. In O’Kane v Campbell the Court stated that where a 24-hour shop is positioned adjacent to a
residential street, though also close to a busy thoroughfare, the part-residential nature of the locality
may still be relevant. In the case of Molumby v Kearns (1999) the Court had regard to both the
residential and industrial aspects of the relevant neighbourhood and reached a compromise to allow
the industrial estate to operate without excessive nuisance.
Locality was recently addressed in Lanigan v Barry (2008). The defendants operated a motor racing
track a kilometre from the plaintiff’s stud farm. The motor track had expanded over the years and was
causing severe distress to the plaintiffs. The plaintiffs succeeded in their nuisance claim and the
court had regard to the history and character of the area before the race track had commenced.
The social utility of the Defendant’s activity may also be relevant to assessing whether the impact is
unreasonable and therefore whether he created a nuisance. In Bellew v Cement Ltd (1948), the
Plaintiffs sought an injunction against quarry works but the Court refused the injunction and referred
to the facts that the materials were needed for urgent construction work throughout the county.
Conclusion
In the premises, it is submitted that although cases relating to nuisance engage a wide variety of
behaviours and types of damage, it is nonetheless a tort which is capable of coherent definition
should a Court be called upon to assess whether a complaint of a unique character may be
successfully pleaded as falling within the remit of the tort of nuisance.
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Question Five
Martin and Paul both worked for Acme Exploration and Mining. Martin however had developed a
strong personal grudge against Paul. Although the two had started as friends, their relationship had
deteriorated and they were barely civil to one another. When Paul was promoted once again ahead
of Martin, Martin could take it no longer. He decided to join the Friday-Crusoe dating app. This dating
app was designed to allow people to post details of any of their friends who might be looking for a
date. Once the information was uploaded, other registered users of the app could see a restricted
view of Paul’s profile. If they wanted to see the full profile, they would have to send a ‘more than just
friends’ request to Paul.
Martin did not fill in his full profile but chose his words carefully for the restricted profile. He wrote:
‘His name is Paul. He is looking for a friend with benefits, no commitment required as he is married.
He likes to indulge in a little bit of recreational marijuana with the right people. Send him a request to
meet up now’.
Paul received several ‘more than just friends’ expressing an interest in meeting him. Paul did not
know why he was receiving them. Eventually he tracked down his entry on the Friday-Crusoe
website. He was furious. He printed a copy of the profile page but without thinking he placed it on top
of some company files he was working on. Believing that it was Martin who was responsible he
immediately went to confront him.
Bill, Pauls senior line manager was passing by Pauls desk when he noticed the file that Paul was
working on was one that he needed as well. As he picked the file up, he began to read Pauls profile’
more fully. He was shocked. As a deeply conservative person, he could have no dealings with a
person who would treat his marriage vows so carelessly never mind someone who took drugs.
Advise Paul what, if any, action in defamation he might have against Martin.
Answer Five
The potential liability that Martin may have to Paul in tort law as a result of the facts outlined would
fall within the tort of defamation. Under the Defamation Act 2009 which came into force on 1st
January 2010, the former distinction between libel and slander has been dispensed with in section
6(1), and the same term, “defamation” applies to all forms of defamatory statement. Pursuant to
section 6(5) of the 2009 Act, no special damage need be shown to render defamation actionable.
The elements of defamation are:
• Publication
• Identification
• Defamatory effect
In this respect the 2009 Act reflects the traditional tests and defines the tort accordingly at section 6
subsections (2) and (3). It is now stated that the tort of defamation consists of the publication, by any
means, of a defamatory statement concerning a person to one or more than one person (other than
the first-mentioned person), and “defamation” shall be construed accordingly. A defamatory
statement concerns a person if it could reasonably be understood as referring to him or her.
Publication
The definition of “statement” in section 1 of the 2009 Act is one made orally or in writing; visual
images, sounds, gestures and any other method of signifying meaning; a statement— (i) broadcast
on the radio or television, or (ii) published on the internet, and; an electronic communication.
The first possible publication of the alleged defamatory material occurred initially by way of the
publication on the internet. There is no evidence that anyone who either saw his profile or attempted
to contact Paul actually knew him, but insofar as he would be identifiable from the publication, he
would be able to make a claim of defamation. It appears to be particularly damaging to Paul’s
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reputation that his manager, Bill saw the printout of the profile, but it is notable that Paul had printed
this himself, and left it on his desk, and so Martin is not directly responsible for this particular
publication. Paul may thus find it difficult to meet the definition of requirement of publication in this
regard.
Identification
In order for identification of the potential plaintiff to be present, the test is whether the ordinary
sensible person would be reasonably likely to understand that the words referred to the Plaintiff. The
language of the Act in section 6(3) is that “a defamatory statement concerns a person if it could
reason- ably be understood as referring to him or her.”
The judge would answer the question of law as to whether the words are capable of referring to the
Plaintiff, and if this test is met, the jury would decide whether people did believe that the words
referred to the plaintiff. For identification to be present in the present case, the jury would have to
consider whether the people who read the message understood it to refer to the Paul.
In circumstances in which Bill did understand the statement as referring to Paul, it is perhaps quite
likely that this requirement will be met without significant difficulty in respect of whether Bill took the
printout as referring to Paul. However in respect of users of the website, the only identifiable features
appear to be Paul’s first name and marital status. In ordinary course, this may not be enough to
identify him. It is unclear whether his email address is visible to website users, but if it were, this
would probably suffice to identify him personally. Otherwise, it would appear that there is little scope
to suggest that a website user would know that this profile is about this particular “Paul.”
Defamatory Effect
The traditional test for defamatory effect was whether the words complained of tend to lower the
plaintiff in the estimation of a right-thinking member of society or tends to make them shun or avoid
the plaintiff. Such lowering in estimation need not be shown in fact and in establishing defamatory
effect, the intention of the defendant was irrelevant. The definition in section 2 of “defamatory
statement” is, “...a statement that tends to injure a person’s reputation in the eyes of reasonable
members of society,” and it is indicated that “defamatory” shall be construed accordingly.
Consequently the definition of the tort has not substantially changed.
Case law can often be of limited assistance in establishing whether or not a statement is defamatory
owing to changes in social mores and the fact that the circumstances tend to vary widely from case
to case. However, it would be difficult to imagine that a court would find otherwise than that the
words complained are capable of having a defamatory effect. The facts of the case of Cassidy v The
Daily Mirror (1929) may be helpful to some extent in this regard. In that case, the Defendant
published a photograph of the Plaintiff’s husband with another woman alongside a caption
announcing the couple’s engagement. It was held to have defamed the Plaintiff by reason of the
innuendo that she was living in immoral cohabitation with Mr Cassidy and misleading her neighbours
and friends as to her marital status. The broad proposition is that sexual immorality may have a
defamatory effect. Despite the absence of illegality (which would formerly have been present), in the
case of Reynolds v Malocco t/a “Patrick” (unreported, High Court, 11 December 1998), there was a
successful application to prevent the publication of an article in which it was suggested that the
plaintiff was a practicing homosexual and it was held that in the appropriate context, it was capable
of having defamatory effect (where untrue).
In addition to the references to Paul wanting to have a discrete extra-marital affair, the profile
referred to smoking marijuana, which given that it would be illegal to be in possession of marijuana,
would have to be regarded as a defamatory statement. Again, where such a statement is also
untrue.
Defences
The facts of this case would not suggest that the elements comprising the tort of defamation have
been made out, and for that reason it may be unnecessary to consider whether any defences may
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be availed of. Firstly, the publication to Bill was (albeit inadvertently) by Paul himself, and secondly,
there is little indication that a person using the website would reasonably understand the profile
about Paul in particular. If it were supported by facts, there may be the possibility of availing of the
traditional defence of justification which has been redefined in the 2009 Act as the defence of truth. It
would also be theoretically possible for Martin to make an apology in mitigation of damages or an
offer to make amends, however it would not appear to be warranted given the fact that it is very
unlikely that the tort of defamation has occurred, and the prospect of any action constituting amends
would be limited to speaking to Bill, because in practical terms it appears that there is no real way to
make amends for the internet publication once it is removed.
Conclusion
It is likely that the tort of demotion is not made out by reference to the facts of this case in light of the
relevant law.
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Question Six
Big Guys is a chain of hamburger restaurants noted for the fact that they never serve frozen meat
products – all of their hamburger patties are made exclusively from fresh meat. Their logo is an
italicised BG, written in gold lettering on a green background. Underneath this is the tag line ‘Fresh,
never frozen’. They have invested significant amounts into advertising campaigns to create a strong
brand identity.
Brendan Guiney is a frozen food manufacturer who has decided to rebrand his products as he is
losing market share. He is a great admirer of Big Guys so he re-branded his company from Brendan
Guiney Frozen Meat Products to B*G. He uses the logo of an italicised B*G in green letters against a
gold background. Underneath is a tag line ‘Frozen when it’s fresh’. His sales take off.
About a year later, Brendan decides he will branch into fresh meat products and so introduces a new
range of fresh hamburgers using B*G branding and colouring but the tag line is changed to ‘Fresh or
Frozen? Your choice!’. Shortly thereafter, sales at Big Guys begin to reduce.
Big Guys decided to broaden its customer base and so have decided to offer it’s fresh burgers for
sale in all the major national supermarkets to capture the home cooking market. During market
testing, Big Guys is surprised to find that 54% of consumers believe that the B*G fresh burger
products are made by Big Guys and that they had switched to the supermarket product because it
was cheaper than buying meals in the restaurants. They believe that Brendan had been free riding
on their brand.
Advise Big Guys as to any potential action in tort law against Brendan.
Answer Six
Introduction
The tort of passing off protects products and the provision of services where a Plaintiff has generated
goodwill in a product and the Defendant has misrepresented his goods as the Plaintiff’s. The
traditional focus of passing off is on whether the consuming public has been, or will be confused by
the similarities between products and whether the Plaintiff has suffered, or will suffer loss to custom
or goodwill as a result of associations being drawn between the Plaintiff and Defendant. The law
does not require strict proof of deception or misrepresentation by the Defendant but rather the Courts
will infer deliberate deception or misrepresentation where the similarities are overwhelming. The tort
of passing off is very broad in scope and it encompasses similarities in product name, design, style,
or even ad campaign. A high similarity in packaging or design may be sufficient to establish a
passing off, even though different names are used, such as ‘Polycell’ and ‘Clingcell’ in Polycell
Products v O’Carroll et al [1959] and ‘Cottage Creams’ and ‘College Creams’ in United Biscuits v
Irish Biscuits [1971]
The traditional proofs required to establish a passing off were:
(1) Plaintiff has generated goodwill in the mark, design, or get-up of his product;
(2) Defendant has misrepresented his goods as the Plaintiff’s, and
(3) Damage has resulted or is likely to result.
In modern jurisprudence the proofs are recognised as:
(1) Misrepresentation (whether intentional or not),
(2) made by a trader in a course of a trade common to the Plaintiff, and
(3) directed to prospective customers of his, or ultimate consumers of goods or services supplied by
him,
(4) which is calculated to injure the business or goodwill of another trader and
(5) which causes actual or potential damage to a business or goodwill of the trader by whom the
action is brought.
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These factors can be distilled into four central issues which concern the Courts.
– Established commercial goodwill and reputation
– Consumer confusion
– Common course of trade
– Damage or loss
The primary concern of the question posed is the question of consumer confusion, in relation to
which some of the jurisprudence will be set out hereunder.
Misrepresentation
The test for misrepresentation was recently set out in the Supreme Court by MacMenamin J in
McCambridge Ltd v Joseph Brennan Bakeries [2012], in which the Court indicated that for the
threshold to be met, it is sufficient that a defendant represents its goods in such a way that it is a
reasonably foreseeable consequence that the claimant's business or goodwill will be damaged and
that proof of intention to deceive is not required. This approach demonstrates a considerable relaxing
of the rule which was discernible in cases such as BV v J Townsend & Sons (Hull) Ltd [1979].
MacMenamin J., in the McCambridge Ltd case, went on to state that a claimant may prove
misrepresentation by calling evidence that the relevant public were, in fact confused, but may also
succeed in a case where there is no such evidence. The overall impact of the get up is the litmus
test, as well as the length of time the conduct complained of has been going on. It will not be [an]
answer to a complaint of misrepresentation to contend that an observant person who made a careful
examination, or who compared both products side by side, would not be misled. The test is, rather,
the impression likely to be produced, on the likely customer, taking into account customer perception
and imperfect recollection.
Of course, if an intention can be demonstrated, this will be in the Plaintiff’s favour. In the earlier
Supreme Court decision of C & A Modes v C & A (Waterford) Ltd [1976] Henchy J stated that, while
intention to deceive is not the essence of the action, it "shows that the conduct complained of was in
fact likely to deceive -which goes to the gist of the action for passing off".
It seems clear from the foregoing then that what will inform whether a case will be successful or not
is not so much the intention of the Defendant, but the risk of consumer confusion.
In the present case, there is no clear evidence of Brendan’s intention to copy Big Guys, but there is
evidence that he rebranded after Big Guys were already trading, and that differences were not
prominent enough for many consumers, as Big Guys’ survey shows. They would thus have a clear
evidential basis for claiming that a ‘misrepresentation’ has occurred.
Insofar as Brendan may claim that his use of the letters B and G is justified by reference to his own
name, this would not appear to be likely to succeed. An individual cannot use his own name to sell a
product if, by doing so, he is deliberately trading on the reputation of the Plaintiff. This was referred
to in the case of O’Neills International Sports Co v O’Neills Footwear Dryer (1997). In Jameson v
Irish Distillers (1900), the Plaintiff was the well-known whiskey producers, John Jameson & Son. The
Defendants sold whiskey under the name of ‘William Jameson & Co’ but, in an obvious attempt to
salvage a failing business, they changed the name of their whiskey to ‘Jameson’s Whisky’. The Court
held that this constituted passing-off, since the name had become so associated with the Plaintiff’s
by the public that to allow the Defendants to use it without any qualifying words would lead the public
into confusion and cause damage to the Plaintiffs.
Requirement of Consumer Confusion
The Plaintiff must satisfy the requirement that the purchasing public is likely to be confused by the
Plaintiff’s and Defendant’s products. The rationale is that if the public is not likely to confuse the two,
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then the Plaintiff will not suffer damage to the goodwill. The misrepresentation and resultant
consumer confusion may take many forms – similar name, packaging, design, advertising etc. In
ascertaining consumer confusion, the courts will consider the context in which the consumer would
view and purchase the product.
For most products the appropriate test is that of the ‘casual unwary shopper’. In Reckitt Colman v
Borden [1990] The is known as the ‘Jiff Lemon’ case and the court concluded that the average
supermarket shopper upon seeing the Defendant’s yellow lemon-shaped plastic container with green
leaf-like tag would instantly assume it to be the Plaintiff’s and drop it into the shopping trolley without
scrutinising the product to see the name ‘realemon’ indented into it.
In SmithKline Beecham v Antigen Pharmaceuticals [1999] the Plaintiff’s arguments that the
Defendant’s ‘Solfen’ was confusingly similar to the Plaintiff’s ‘Solpadene’ was weakened by the fact
that in most cases an experienced pharmacist would be locating the product for the shopper.
In McCambridge Limited v Joseph Brennan Bakeries (2012) concerned an appeal to the Supreme
Court by the Defendant against injunctive relief granted to the Plaintiff by the High Court. The
product in question was wholemeal bread, and the Appellants claimed inter alia that the High Court
used an incorrect test in referring to the perspective of a “careless shopper” rather than a
“reasonable shopper”. It was also contended that the features that were similar were generic rather
than unique; and that there was no intention to imitate the McCambridge product. The appeal failed
on the basis that the Plaintiff/Respondent could show actual damage, albeit that they were only
required to show damage to their goodwill and not actual or potential diversion of business, and the
High Court judge had carried out a sufficient analysis of whether there was a potential for confusion
by assessing nine “heads of similarity”. When read as a whole, the High Court had in fact applied the
standard of a reasonably prudent shopper who is not in any particular hurry, and is neither overly
scrupulous nor dilatory, and who enters the shop with a wish to purchase a loaf of the McCambridge
product. The Court heard the evidence of eleven witnesses in that regard. Finally it was held that it
was possible for individually generic features to become unique or distinguishing when used
together, and that this had occurred in this case.
ln United Biscuits Ltd v Irish Biscuits Ltd," the plaintiff company, who manufactured biscuits called
"Cottage Creams", claimed that the defendant company, who manufactured biscuits called "College
Creams", was guilty of passing off. The packages in which the biscuits were sold to the public were
entirely different in design and colour. The biscuits were, however, similar to each other.
Allergan Inc v Ocean Healthcare Ltd (2008) concerned the use by the defendants of “BOTOINA: no
more wrinkles”. The plaintiff’s alleged that the use of such constituted trademark infringement and
passing off. McGovern J held that the use of the mark was “to enable the defendant to ‘piggy back’
on the goodwill” of the plaintiff. The use of BOTOINA caused confusion and would be likely “to
mislead the public into believing it is connected in some way with BOTOX”.
Likelihood of confusion may be established even where the defendant intends to engage in a
different type of business than that of the plaintiff's. This appears relevant to the present case, as Big
Guys were a restaurant chain, and Brendan sold his products retail. This is unlikely to be a sufficient
defence for Brendan however, and for example, in Guinness Ireland Group v Kilkenny Brewing Co
Ltd (1999), Laffoy J granted an injunction against the use of the name Kilkenny Brewing Company by
a company whose purpose was merely to hold land (a micro brewery premises) rather than to be a
trading company for the business carried on. or the products produced, in the micro brewery.
Evidence from three persons "very experienced in the licensed trade" was to the effect that
consumers would be likely to get the impression that the defendant brewed Kilkenny Irish Beer (the
plaintiffs' product) or that it was brewed by one of the plaintiffs.
In the present case, it appears that the look of Brendan’s product was very similar to Big Guys’ logo
– both by reference to how his “B*G” logo was written, and the byline that was used. The fact that
they are both selling meat is also significant. Notably the initials are written slightly differently, and
the colours of the writing and the background are inverted, but these differences were not prominent
enough for many consumers, as Big Guys’ survey appears to show. As set out above, there will be
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no defence for Brendan regarding the initials used being the initials of his own name. In judging the
actual or likely response of consumers, the courts may accept market and opinion surveys, such as
the one conducted, but the accuracy or credibility of the conclusions will of course be open to
challenge.
Conclusion
The tort of passing off traditionally required that the plaintiff establish the act is ‘calculated to injure
the business or goodwill of another trader’. This appears to a requirement which has lost prominence
in subsequent jurisprudence, and the Courts have tended instead to look at the likelihood of there
being confusion among the consuming public. On the facts of the present case this would appear to
be made out. In particular, it is noted that Brendan’s second product, which can be purchased fresh
rather than frozen, has had a clear impact on the sales of the Big Guys product, and any damages
payable would be calculated accordingly.
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Question Seven
Margaret was a tax advisor who worked for Bluebell Industries. Public perception of companies
minimising their tax liability was hostile with both Government and the media looking for the latest
immoral corporate tax avoider. Professional bodies for tax advisors had issued recommendations
that tax advisors should not recommend or advocate schemes that used technicalities to avoid tax,
although at their option they could continue to work for clients who insisted on using such schemes
despite a recommendation not to.
The Board of Bluebell Industries Limited asked Mary to provide an opinion on an uncomplicated
financial transaction what would see profits made in the UK allocated to an Irish subsidiary of a
Haven Island Corporation owned 100% by Bluebell. This approach was modelled on a structure that
was being used by one of their competitors with great success. Mary believed that this structure had
all of the hallmarks of an immoral transaction to evade tax and without looking any further into it, she
made her views known to the Board in no uncertain terms.
At the Board meeting, she continued to stand by her position that this was an immoral process that
she could have nothing to do with in accordance with her professional standards. When asked
whether the morality of it notwithstanding, it was a legal and effective method of reducing tax
Margaret said that it was. The Chair of the Board then informed her that business was not about
morality but the bottom line and that they would go ahead with it. As Bluebell were committed to
doing this, Margaret chose not to mention to the Board that it would be possible to get an advance
opinion from the Revenue Commissioners as to the legality or effectiveness of the transaction.
In fact, although it was lawful, Margaret had not looked up the laws in Haven Island which meant that
if there was no local shareholder of the company registered there, the profits of that company would
be taxed by the country in which the shareholders were located. If asked for an opinion the Revenue
Commissioners would have also stated that.
Advise Margaret as to her position if Bluebell were to take an action for professional negligence.
Answer Seven
The central question posed by the scenario presented is whether Margaret may to be liable to The
Board under the tort of negligent misstatement. It is important to note that there does not need to be
any contract between the parties in order for liability to be attached for the negligent advice from the
point of view of professional negligence, and although Margaret did say to the Board that she wanted
nothing to do with the transaction, and it is unclear whether she sought a fee for the remarks that she
made, whether the information she gave was within the normal client relationship or not, it seems
clear that it was reasonably foreseeable that it would be relied upon, and in particular it would seem
that negligent misstatement would be the more appropriate tort to consider in respect of both
statements made. Margaret deliberately failed to advise of the possibility of getting a Revenue
Commissioner opinion in advance, and then simply was unaware that the proposed transaction did
not comply with the relevant foreign tax code.
The tort of negligent misstatement has been subject to considerable reform and judicial scrutiny. The
tort was first promulgated in Hedley Byrne & Co v Heller & Partners Ltd where the court considered a
number of factors to establish liability:
• If a person with skill undertakes to apply that skill for another who relies on that skill, a duty of
care will arise;
• If the person allows his advice to be passed on to another who will place reliance on it, a duty
to that third party will arise;
• A duty may exist where there is a special relationship or special proximity between the
parties.
Essentially, Hedley focused upon a special proximity or relationship between the parties, and that
there was a reliance by the defendant on the plaintiff's professional judgement. It contains three basic
elements:
• The plaintiff relied on the defendant's skill and judgment;
• The defendant knew or ought reasonably to have known that he plaintiff was relying on him;
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• It was reasonable in all circumstances for the plaintiff to rely on the defendant.
The case was later expressly endorsed in this jurisdiction in Securities Trust Ltd v Hugh Moore &
Alexander, however, BOI v Smith complicated matters by rejecting the authority, and found that the
relationship between auctioneer and purchaser was not sufficiently proximate in order to attach
liability. However, despite this rejection, the subsequent case of McInerney v Hanrahan confirmed that
Hedley was good authority in Ireland, and applied it to that case. The court held that the volunteering
of information gave rise to a duty of care in communicating that information about the lands. The area
has developed significantly since, and it is generally accepted that a duty of care will extend to
situations where negligent advice is offered by a professional and it is relied upon by the defendant,
who then suffers loss due to such reliance.
The facts of this case as presented would suggest that Margaret acted negligently in stating that the
transaction would be “effective” because she was unaware that the proposed transaction did not
comply with the relevant foreign tax code. Regardless of the fact that it is legal (which she was correct
about) or that the Board may have discovered her error another way through the Revenue
Commissioner (noting that Margaret deliberately failed to advise of the possibility of getting a Revenue
Commissioner opinion in advance); it appears that neither of these contexts have any direct impact on
the central issue of Margaret being demonstrably wrong when she indicated that the scheme would be
“effective,” and it is clear that it was within her area of expertise to be able to answer that question.
It may be necessary to analyse the foreseeabilty of the Board relying on the Margaret’s statement in
circumstances in which she prefaced her statements by saying that she did not want to have anything
to do with the transaction. Despite having said this however, she did proceed to answer the question
she was asked in respect of it, and for that reason in particular, it would appear that Margaret intended
her statement to be relied upon. It would be difficult to suggest that reliance on her advise would not
be reasonably foreseeable in the circumstances. However, while it is foreseeable, one has to query
whether the relationship or special proximity between the parties has been sufficiently established. In
the circumstances, it is difficult to conclude that such a relationship was severed solely on the basis of
Margaret’s negative statements prior to her actually proceeding to give an opinion on legality and
effectiveness.
An example of the tort, which of some relevance to the within problem is that of Sisks v Cooper &
Lybrand (1984) where the plaintiffs brought a case against the defendant accountants for loss in
buying company shares. The plaintiffs claimed that they bought the shares based upon the company
accounts which were prepared by the defendants. There was an error in the accounts, and the
plaintiffs claimed negligent misstatement. The court approved Hedley and stated that the test was
that of a reasonable man, whose advice is sought and who knows that he is being trusted and relied
upon for his skills and judgement. It endorsed Lord Reid’s statement that the reasonable man has 3
options available to him:
- he could keep silent;
- he could give an answer with a clear qualification that he accepted no responsibility for it; or
- he could answer without any qualification. If the person adopted the third approach, he would be
held to have accepted some responsibility for his answer being given carefully.
In Golden Vale Co-op v Barrett (1987) the defendant accountants were held liable in negligent
misstatement for inaccuracies contained within their report, as it was much more encouraging than
was warranted by the state of affairs of the company, which was being salvaged by the plaintiffs.
In Kelly v Haughey & Boland (1989) accounts were prepared by the defendant auditors over a number
of years and were relied upon by the plaintiffs in their take-over of the company. The accounts
contained inaccuracies and the court held that the auditors may owe a duty to potential investors once
a position disclosed is such as to make the company susceptible to a takeover bid. On the facts of the
case the inaccuracies were of a minor nature and thus no liability attached.
It seems clear that Margaret took the third option referred to in the Sisks case, and answered the
question without qualification, and that her opinion was sufficiently inaccurate and relevant to the clear
intention of the Board for her to be at risk of liability for the error. In making the statements in question,
she may be regarded as having an understanding that she was being trusted and relied upon for her
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skills and judgement as an independent tax adviser with knowledge of tax law. She did not qualify her
advice and so she would seem to have accepted professional responsibility for it, and would therefore
likely be liable under the tort of negligent misstatement.
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Question Eight
Critically analyse to what extent the law on occupiers liability has impacted on property owners
particularly with respect to recreational users. Briefly state how you think the current law might be
reformed.
Answer Eight
The Occupiers Liability Act 1995 governs recovery for injury/damage suffered by an entrant as a
result of the dangerous state of an occupier’s premises. There are a number of important definitions
contained in the Act to govern the sphere of liability. For the purposes of this discussion reference
will be paid in particular to the definitions which go to the obligations of the occupier or the entrant,
with a particular focus on the occupiers obligation to recreational users.
Categories of Entrants & Differing Obligations
The first matter to note is the differing types of entrant who are categorised under the 1995 Act, and
the differing types of obligations that are owed in respect of them. They are visitors, recreational
users and trespassers.
Visitors
Definition of Visitor
Visitors are defined under s 2 of the 1995 Act. They are entrants who are present by the permission
or invitation of the occupier or his family or a person ordinarily resident on the premises or an entrant
present for social reasons. The definition of a visitor also includes entrants as of right and entrants by
virtue of contract. In summary, lawful entrants are visitors, whether they are present for social or
commercial purposes. Eoin Quill notes that there is a distinction between visitors and recreational
users where social visitors are persons whose presence is desired by the occupier (or the occupier’s
family), whereas recreational users are those whose presence is tolerated.
Duty owed to Visitors
Under s 3 of the Act the occupier owes a “common duty of care” to visitors, defined as the duty “to
take such care as is reasonable in all the circumstances ... to ensure that a visitor to the premises
does not suffer injury or damage by reason of any danger existing thereon”.
The Act refers to two factors to determine a “reasonable standard of care”:
The definition emphasises self-responsibility and the duty of control and supervision in certain
circumstances. Accordingly, contributory negligence on the Plaintiff’s part provides the Defendant
with a defence, as does any contribution to the injury by another person in control such as a parent
or school supervisor.
The duty owed by occupiers to visitors is not an absolute duty.
An instructive case concerning a visitor is Newman v. Cogan (2012). The Plaintiff was visited the
defendants' home, and their son had tripped and shattered a glass panel in a door which glass to
pierce the Plaintiff's right eye leading to its loss. She now claimed the defendants had been negligent
in the choice of glass panel which they had installed themselves. It was held in the High Court per
O'Neill J, that the standard of work by a householder could not be expected to be of the same
standard as a professional tradesman. In the instant case, the Court was satisfied the panel had
been installed competently. Whilst expert evidence suggested a tradesman would not have installed
the particular type of panel, the evidence did not suggest a householder would reasonably believe
the panel was unsuitable. The plaintiff's claim was dismissed.
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Liability was also not imposed in the case of Heaves v Westmeath County Council (2001) in which
the Plaintiff slipped on uneven steps on the Defendant’s premises which were partially covered with
moss. The Court held that occupier had an appropriate system of cleaning the steps and, in fact, the
gardener took expert advice to reduce the moss problem as much as possible. The Court held the
Defendant took reasonable care and there was no breach of duty to the Plaintiff.
A case in which contributory negligence reduced liability considerably as Vega v Cullen (2005) in
which defendant was carrying out some repairs to a roof on his house and for that purpose had, for
access purposes to the roof, left a ladder leaning against the wall of the building in question, but at
an angle of 45 degrees, which an expert in the case opined was an excessive angle from a safety
point of view. In addition this ladder was standing unevenly on the ground, in as much as one foot of
the ladder was on a concrete surface at the side of the house and the other leg was on a gravel and
earth surface which was slightly lower than the concrete surface. This created some instability. The
plaintiff, an adult man of about 55 years of age at the time, ascended the ladder in order to have a
conversation with the defendant who was on his roof. As he began to descend the ladder moved to
the right, causing the plaintiff to fall to the ground. The High Court held that the plaintiff was present
on the defendant’s property as a social guest. The Court reasoned that there is no meaningful
distinction to be drawn between the common law duty of care and the statutory duty of care under
the Occupier’s Liability Act, 1995. The Court stated that this is not the case of a child, or other person
under some disability, who could not be expected to anticipate that the ladder might not be safe to
ascend and descend. The forty-five degree angle at which the ladder was leaning was something
clearly visible to the plaintiff, and it ought to have been obvious to the plaintiff that the left foot of the
ladder was on a gravel and earth surface which was somewhat lower than the right leg on the
concrete surface. He ought to have foreseen some instability and risk attaching to his ascent and
descent of the ladder. The Court thus measured the extent of contributory negligence to be 30
percent.
Recreational Users & Trespassers
Definition of Recreational User
A recreational user is defined in the Act as an entrant who is present with or without permission or
implied invitation free of charge (not counting a reasonable charge for the cost of providing vehicle
parking facilities) for the purpose of engaging in a recreational activity (and who does not meet the
definition of a “visitor” set out above). Recreational activity is defined to include any such activity
conducted in the open air including any sporting activity, scientific research and nature study and the
exploration of caves, sites, and buildings of historical, architectural, traditional, artistic, archaeological
or scientific importance.
Definition of Trespasser
Trespassers are defined as entrants who are not visitors or recreational users. In summary they are
persons who do not have permission or authority to be present on those lands and are not there for
recreational purpose. The classification of an entrant as a trespasser as opposed to a visitor will
have a significant impact.
Duty Owed to Recreational Users & Trespassers
Under s 4, the occupier owes a restricted duty of care to recreational users and to trespassers to
avoid injuring them intentionally and to avoid acting with reckless disregard for their safety. Section
4(2) provides that in determining whether or not an occupier has so acted with reckless disregard,
regard shall be had to all the circumstances of the case and a number of factors which are listed in s
4(2) and include the nature of the danger, character of premises, conduct of entrant, warnings and
supervision of entrant. It is not clear how these factors relate to each other and which should be
weighted.
In particular it refers to:
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j.
whether the occupier knew or had reasonable grounds for believing that a danger
existed on the premises;
k.
whether the occupier knew or had reasonable grounds for believing that the person
and, in the case of damage, property of the person, was or was likely to be on the
premises;
l.
whether the occupier knew or had reasonable grounds for believing that the person or
property of the person was in, or was likely to be in, the vicinity of the place where the
danger existed;
m. whether the danger was one against which, in all the circumstances, the occupier
might reasonably be expected to provide protection for the person and property of the
person;
n. the burden on the occupier of eliminating the danger or of protecting the person and
property of the person from the danger, taking into account the difficulty, expense or
impracticability, having regard to the character of the premises and the degree of the
danger, of so doing;
o. the character of the premises including, in relation to premises of such a character as
to be likely to be used for recreational activity, the desirability of maintaining the
tradition of open access to premises of such a character for such an activity;
p. the conduct of the person, and the care which he or she may reasonably be expected
to take for his or her own safety, while on the premises, having regard to the extent of
his or her knowledge thereof;
q. the nature of any warning given by the occupier or another person of the danger; and
r.
whether or not the person was on the premises in the company of another person
and, if so, the extent of the supervision and control the latter person might reasonably
be expected to exercise over the other’s activities.
Given that these factors will weigh differently depending on whether the entrant is a trespasser or a
recreational user, there is in practical terms perhaps a lower obligation in respect of trespassers than
recreational users.
In looking at the general themes which emerge from section 4(2), it appears that what is of
predominant importance is the knowledge that the occupier should reasonably have in respect of
dangers on the premises and in anticipating the consequences of those dangers based upon
whether there is reason to imagine that they pose risks to particular classes of entrants. In addition,
any effort to warn an entrant will be taken into account, as will the question of what is to be expected
of the entrant themselves (and where appropriate, those supervising them), in terms of ensuring their
own safety.
An example in case law of the duty owed to recreational users is Weir Rodgers v SF Trust Ltd
(2005). The Plaintiff sued the Defendant occupier of a local beauty spot in Donegal claiming
damages under the 1995 Act for significant personal injuries sustained by her after falling down a cliff
face. She had walked to the headland with friends after passing through a broken-down fence, and
had sat there to admire the sunset. Upon getting up to leave, she had lost her footing and tumbled
down. The Plaintiff argued that the sheer drop of the cliff had been hidden from view and therefore
that the danger had not been apparent. The Defendants argued that they had not behaved with
“reckless disregard” and that the risk of falling was self-evident and had required neither fencing nor
warning notice. The High Court found for the Plaintiff and held an accident of this type had been
reasonably foreseeable. The Plaintiff’s award was reduced by only 25 percent to reflect her
contributory negligence. This decision was overturned by the SC. It was held that the HC had erred
by subjecting the Defendant to negligence or fault standards, and should have limited itself to
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determining whether the Defendant had acted with “reckless disregard”. The court favoured an
objective test of ‘reckless disregard’ and rejected the argument that the Defendant should have
erected fencing or warning notices. The Court stated that there are certain risks in outdoors activities
and the Plaintiff should have appreciated dangers inherent in sitting along the edge of a steep
embankment adjacent to sea. Finally, the Court held that there may be exceptional unusual or
dangerous qualities to certain lands which would require an occupier to erect warning notices but in
this case the danger inherent in the act must have been obvious to the Plaintiff so the Defendant
could not be held to have acted with reckless disregard in not putting up warning signs.
Conclusions and Reform
Based on the foregoing, it is difficult to conclude that the obligations placed on occupiers are unduly
onerous in respect of recreational users. That said, it is difficult to glean what precise obligations exist
in any given set of circumstances, and this sense of uncertainty by give rise to some anxiety on the
part of occupiers and their indemnifiers. It may be appropriate by way of reform in that regard for
some guidelines to be published regarding what may be expected of an occupier and an entrant in
respect of premises of various characters, and this would assist in clarifying for all potential litigants
how the various factors which would fall to the Court to consider under section 4(2) are likely to be
weighed in indicative circumstances.
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Exam Paper - March 2016
Question One
Joe was making arrangements for his father’s funeral. One of his father’s wishes was that Joe
attempt to heal the rift that had developed in the family since the incident of 1998, of which the family
had never spoken about again.
With his in mind, Joe asked for all the extended family to gather at his father’s local pub in town. As
each member of the family arrived, the mood in the pub darkened and other customers began to
leave. Eventually only the family and the barman remained.
Joe was becoming increasingly irate at the way things were going. Abruptly he stood up, threw his
chair on the ground and stormed over to the door, locking it. He then turned to the assembled family
members and said ‘That’s it! None of the family leaves here today until we have a normal family
wake. It is time you guys got real – what would our father think of us if he could see us now?! Now
barman, another round of drinks for everyone!’ Although the barman wanted to leave, he was too
scared to do so.
The room quietened and the tension became even more unbearable. No one spoke and the silence
was intolerable. At that point, Mary stood up and said she was leaving. Joe immediately screamed at
her ‘Over my dead body. I told you no one leaves until I say so!’. Mary began crying and sat down
immediately. With that, Frank stood up next to Joe and said ‘This is crazy, I am out of here if I have
to kill you!’. Without thinking, Joe punched Frank, knocking him to the floor. Everyone was stunned,
including Joe.
Horrified at what he had done, Joe told them all to get out that it was over and they would never
spend Christmas together again. Through her tears, Mary said that Joe needed to unlock the door
first. Tossing the key onto the floor, Joe replied ‘Here – just go, all of you!’.
Advise Joe as to any potential liability in tort for his actions.
Answer 1, March 2016
Introduction
Joe requires advice as to whether he has any potential liability in tort for his actions. In light of his
actions, the issues which arise is whether any of his family, Frank in particular or the barman may
have a cause of action for the tort of trespass to person against Joe, and in particular it will be
required to consider the torts of assault, battery and false imprisonment.
Assault
Assault in tort was defined in Collins v Wilcock as “an act which causes another person to apprehend
the infliction of immediate, unlawful, force on his person”. The force apprehended must be immediate
and the belief of contact, reasonable. However, the fact that the defendant was not actually in a
position to execute the threat is irrelevant, so long as the plaintiff’s belief was intact (per R v St.
George (1840)). In Bruce v Dyer the court held that the taking of active steps to block or obstruct
another would constitute an assault; however a passive obstruction may not be (per Innes v Wylie
(1844)). While words themselves may constitute an assault where the result is apprehension of
physical impact; mere insults are not enough and additional words accompanying the threat may
render conduct harmless and prevent assault where those words make it clear that no physical
contact will occur. This was referred to in the case of Turberville v Savage (1669) where the
Defendant who had attacked the Plaintiff causing him to loose an eye, attempted to defend his
actions by reference to what he said was an assault against him by the Plaintiff who had placed his
hand on his sword and said: “If it were not assize time I would not take such language from you.” The
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Court held that the action did not constitute an assault as the latter words were an indication that he
did not in fact intend to strike the Defendant.
We are told that in this instance, after Joe locked the door of the room that Joe’s Family was in, Mary
stood up and said she was leaving. Joe immediately screamed at her ‘Over my dead body. I told you
no one leaves until I say so!’. Mary began crying and sat down immediately. Then, Frank stood up
next to Joe and said ‘This is crazy, I am out of here if I have to kill you!’. Without thinking, Joe
punched Frank, knocking him to the floor.
The actions of blocking Mary’s exit may constitute an assault, but his words may be unlikely to
constitute an assault given that they didn’t give rise to an immediate threat, and in that sense could
be compared to the position in Turberville v Savage. The action linked to punching Frank are likely to
constitute an actionable assault as it seems likely that Frank did anticipate the impact which did then
subsequently occur. It appears unlikely that Joe would be able to claim his actions as self-defence in
light of what Frank had said given that Frank’s words firstly indicate that his intention was primarily to
leave rather than to ‘kill’ Joe, but in addition, an important context is that it was Joe who had created
the situation to which Frank was responding and as will be set out hereunder, it is likely that this
involved actionable false imprisonment of those present, including Frank.
False imprisonment
False imprisonment was described in Dullaghan v Hillen as the “unlawful and total restraint of the
personal liberty of another whether by constraining him or compelling him to go to a particular place
or confining him in a…private place or by detaining him against his will in a public place.” As was
established in Bird v Jones, the confinement must be complete, so that the plaintiff had no
reasonable means of escape. There is no requirement that force be used to detain the person, but
obviously where it is, it will be clear that the plaintiff had no reasonable means of escape. In Meering
v Graham White Aviation the defendant employer was held liable for false imprisonment, where the
plaintiff employee was held in a room with two security officers investigating suspected theft.
In the present case, it may be reasonably argued that Joe’s locking of the door and telling everyone
that they were not leaving (by saying, “That’s it! None of the family leaves here today until we have a
normal family wake. It is time you guys got real – what would our father think of us if he could see us
now?! Now barman, another round of drinks for everyone!”); together with his remarks to Mary
(“Over my dead body. I told you no one leaves until I say so!”); are sufficient to constitute a threat
that if Joe’s Family were to leave, that they may be subject to violence. In particular, we are told that
the barman was subjectively frightened to leave after the initial remarks. These actions would likely
amount to an instance of the tort of false imprisonment in respect of those present.
Battery
Battery was defined in AG’s Reference No.6 as “the actual intended use of unlawful force to another
person without his consent or any other lawful excuse.” Battery relates to direct or indirect physical
contact with a person without consent or lawful authority. The actual content can be slight, and does
not have to amount to physical injury. Furthermore, there is no requirement of malice or hostility. In
the case of security persons exercising force, it has been held that such force must be minimal and
proportionate to the situation, and if the force is excessive or disproportionate, then it will amount to a
battery. In Gibbons v Securicor, the plaintiff had been shouting and making gestures at the security
staff in a shopping centre, had refused to leave, and attempted to strike a security guard. The
security staff restrained him, detained him in an office and called the gardai. The court held that a
degree of force may be used to remove a person from a premises upon which they are trespassing,
and furthermore that a person can use reasonable force to defend themselves in response to an
attempted assault or battery. The court found that the actions of the security staff was justified in the
circumstances.
The acts which could be considered a battery in this instance would be Joe’s punching of Frank. As
set out above in respect of the assault on Frank, while the may be theoretically stateable defence for
Tom’s actions in relation to the punch in the form of self-defence, in circumstances where Frank was
being threatened and falsely imprisoned by Joe, and did not pose any immediate or direct threat
threat to Joe’s bodily integrity, there would appear to be little scope for that defence. Even if Joe
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were frightened of being jostled Frank as he attempted to leave (perhaps by taking the key from Joe)
it is clear from the case law that a common-sense approach to proportionality will be taken (See
Turner v Metro-Goldwyn-Mayer (1950)), and this would suggest that while using a fist on Frank might
be potentially justifiable, perhaps the force that Joe exerted was not propostionate. In cases where
self-defence is excessive, such as in the case of Gregan v O’Sullivan [1937] where recourse to a
pitchfork where a man was punched, where “self-defence” was excessive, it amounts to a battery.
Conclusion
In light of the foregoing, it would appear that Joe’s Family, and the bar man would have the requisite
grounds to bring an action in tort for false imprisonment, and Joe would may also be liable to Frank
for an assault and battery in addition to false imprisonment.
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Question Two
Patricia teaches a course in basic car repair. At the end of the course, students can take an
assessment offered by an independent institution which certifies the student’s level of competency.
Many of Patricia’s students take her course in order to sit this assessment, before becoming a
trainee car mechanic.
Patricia has however grown tired of teaching. She hates the drudgery of teaching the same stuff over
and over again. Moreover, she finds the student’s disrespectful and disinterested. Many of the
students don’t even bother to turn up, particularly since some are only there because they will not
receive unemployment assistance unless they can show that they are currently undertaking a course
of study.
Increasingly, Patricia cancels many of the classes at short notice and simply posts all the relevant
materials online, although some of it is out of date and tells the students to read the material. When
she does turn up to class she deals with any difficulties that they have but she seldom stays for the
full time allocated. She has received no complaints from the students so assumes everyone is
happy.
One of her students, Paul, subsequently failed the independent assessment of his skills when he
incorrectly replaced a fan belt which broke causing Paul to lose an eye. Further, he is now being
refused unemployment assistance on the basis that he failed the assessment. Patricia has accepted
that she was negligent in teaching the course but denies she is responsible for Paul failing the
assessment, losing his eye or non-payment of unemployment assistance.
Advise Patricia as to any potential liability in the law of tort.
Answer Two
Introduction
Patricia teaches a course in basic car repair for students who wish to take an assessment offered by
an independent institution. One of her students, Paul, failed the independent assessment of his skills
when he incorrectly replaced a fan belt which broke causing Paul to lose an eye and he is now being
refused unemployment assistance on the basis that he failed the assessment. Patricia has accepted
that she was negligent in teaching the course but denies she is responsible for Paul failing the
assessment, losing his eye or non-payment of unemployment assistance.
The cause of action which would arise in this context would be a claim of negligence.
At first glance, there is clearly an exceptionally weighty burden on Paul in establishing causation. If
the exam he was sitting was inherently dangerous (such that Patricia had a duty to ensure he would
do it safely), there would nonetheless also be a duty of care owed by the examiners to ensure that
the exam was done safely by all students and that they would not thereby be injured (i.e. Paul should
not have been permitted to run the engine if the fan belt had been installed incorrectly and unsafely –
and it would be the examiners and not Patricia who have control over those circumstances). A
second problem would then arise should Paul get over this hurdle, which is the issue of remoteness.
The injuries and losses that he suffered may not in fact be foreseeable in the Wagonmound sense,
and therefore even if he had established that Patricia owed him a duty of care, breached the
standard of care, and directly caused his injury and loss, if the Court found (as is likely) that there
was an absence of foreseeability of the injury and damage actually suffered, it would mean that a
Court would not permit Paul to be compensated for those losses by Patricia.
The foregoing remarks notwithstanding, the starting point in any consideration of whether a case in
negligence can be made out is whether there was a duty of care owed by the proposed Defendant to
the proposed Plaintiff, and if there was, whether the standard of care required was then also
breached. It is this issue which would be addressed first, and it will be suggested that this issue
would likely be dispositive of the case.
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Duty of Care
The assessment of the existence of a duty of care, is an issue which considers whether the
Defendant’s actions were such that he should have borne in mind the foreseeable possibility of the
injurious effect his actions (or omissions) may have on the Plaintiff, such that he/she has a duty not
to so act, and is consequently responsible to the Plaintiff for any injury or loss the latter may suffer as
a result of the Defendant’s actions. Thus, the courts have emphasised that negligence is a type of
fault-based liability. To succeed in negligence, the Plaintiff must establish some legal responsibility
on the part of the Defendant in the form of an obligation or duty, known as a duty of care.
Having evolved through a number of iterations, the law in Ireland as set out in Glencar Explorations v
Mayo County Council (2001) appears to reflect the formulation adopted in the UK in Caparo
Industries Plc v Dickman [1990] in which a 3-tier test to replace a previous iteration was formulated
as follows:
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.
So in addition to establishing proximity and foreseeability the Plaintiff must also establish that it is
just and reasonable to impose a duty of care. Caparo and Glencar were both considered as
indicating the application of an ‘incremental approach’ rather than a previous ‘expansive approach’ in
applying the relevant principles.
In the present case, Patricia is teaching a course which is charged at a particular price and which is
intended to assist in a particular outcome – i.e. the passing of an exam (which itself may have
associated costs). In the circumstances she would appear to have the requisite relational proximity
and reasonable foreseeability of injury, to owe some duty of care to her students – particularly in
respect of the fees they are paying for a service which Patricia accepts was delivered negligently.
However this analysis, is subject to the more substantive question of whether the standard of care
required was breached – in particular with respect to the damages that are actually complained of,
i.e. the personal injury and loss of social welfare payments.
Standard of Care
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.
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:
•
•
•
•
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
In O’Gorman v Ritz Cinema (Clonmel) Ltd (1947), 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. 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,” and thus the
standard of care had not been breached.
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)
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.
Gravity
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. 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. It
was held he 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”.
Social Utility
Any element of social utility in the Defendant’s conduct will be assessed to inform the appropriate
standard of care. In Whooley v Dublin Corporation (1961), 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. The Court accepted that “no other type of hydrant which could be devised,
consistent with the necessary purpose, would be safe from malicious interference”.
Burden/Cost of Eliminating the Risk
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. In Bradley v CIE (1976), the Plaintiff was injured when working on
the signalling 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. 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.
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In Muldoon v Ireland and others (1988) Hamilton J refused to deem the Defendant liable for injuries
inflicted 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.
Duty of Care and Standard of Care
In some cases, it is open to the Court to consider the duty of care only, and not have to explicitly
consider the standard of care. On occasion, this approach creates a blurred line between the two
concepts. One recent example is Dempsey v Waterford Corporation (2008). In this case, sewage
had penetrated the plaintiff’s 17th-century home in Waterford city. From the facts it seemed that water
had been conveyed to the premises by a 17th-century culvert. The defendants were carrying out
sewage works at the time however this culvert was not known to the defendants nor did it appear on
any map. Peart J. held that no claim arose in negligence and considered whether a duty of care
arose.
Peart J stated that the question as to whether there was a duty of care arose, was whether the
defendants’ duty of care extended to considering and investigating “the existence or non-existence of
such a culvert that [the defendant] had no basis for suspecting might exist”. The court held that the
duty did not extend in this way as the defendants would have to dig up the street “on the off chance
that a culvert would be discovered.”
Thus Peart J’s analysis did not engage the concept of standard of care directly, as he concluded that
the duty of care contended for did not exist. Arguably, the more academic approach would be to hold
that (a) a duty of care exists to ensure that works done by the Defendant do not result in damage to
the property of the plaintiff; but that (b) the standard of care required was met in this case on the
basis of both a cost-based and risk-based analysis.
Analysis of Standard of Care
In the present case, it might be said that probability of the injury suffered by Paul was very low,
however, certainly the gravity of the injury sustained is clear. This case however is significantly
different to Paris v Stepney Borough Council, as in that case, the injury could be avoided by the use
of goggles, and in the present case what is proposed is that a standard of teaching is so high that a
student could never make a dangerous mistake. This would appear to be a far higher standard, and
one which appears to go beyond reasonable expectations. This may be particularly so in
circumstances in which for example, protective clothing could be worn during the exam, and the
exam itself could be supervised. Both of these options would appear far more reasonable than
expecting the skills of a teacher to be so good that no student could make the mistake that actually
occurred. With respect to social utility of the conduct in question, as Patricia is accepting that her
teaching was simply negligent, she could not rely on this policy factor. Similarly with respect to cost,
there is no prohibitive cost involved in a teacher making more effort in teaching.
Distinctly from the injuries sustained by Paul, the fact of having failed the exam is something which
requires a distinct analysis. In this regard, there is a higher probability of this occurring if Patricia is
teaching her course negligently, however the gravity of the injury is not as all severe. Notably, not all
of Patricia’s students require to pass the exam in order to receive social welfare payments. It has to
be queried whether this fact increases her duty to Paul in particular by reason of this fact. Certainly it
increases the gravity of damage which would be done in his case if Patricia is teaching negligently.
Ultimately however, it appears unreasonable to hold Patricia responsible for the outcome of an exam
where it could not be said that there is any duty on her to ensure that any particular student pass her
exam. Albeit that she has admitted that her teaching was negligent, the effects of this fact are more
likely to be reflected in any costs incurred in taking the course and the exam, and these issues may
also be more likely to be a question of contract law rather than tort law.
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Question Three
Laura lived out in the country in a large house with extensive mature gardens. On the western side
fog her property, she had a line of about 20 conifers that had grown to around 30 feet high. After the
latest storm, Laura realised that they needed to be cut down. Although there was no danger of them
falling onto the road or any house or building, the way they had swayed and bent during the storm
was frightening her children.
Unfortunately Laura could not afford to pay for them to be removed but her next door neighbour Tony
offered to cut them for free provided that he could keep the timber. Laura was delighted. Tony got to
work carefully and slowly, removing one tree at a time. Tony was about half way through and was
now confident that he was an expert in this tree felling business. He began to fell the trees quicker
and quicker chopping them into firewood and hauling them away.
As he was cutting the final conifer, the tree fell in an unexpected direction across some overhead
electrical wires that he had not noticed, As the tree fell on the wires it pulled the electricity poles
supporting it, causing them to swing downwards.
Annette, who was driving along the road outside of Shane’s house, saw the electric pole coming
down on her and swerved to avoid it, crashing into the ditch and injuring herself quite badly.
Advise Annette as to any potential action in tort against Laura in this situation.
Answer Three
Introduction
Laura asked Tony to remove healthy trees from her land near a public road in exchange for
permitting him to keep the trees as firewood. We are told that Tony was not an expert, but he
adopted a faster method as he became more confident in his work. As he was cutting the final
conifer, the tree fell in an unexpected direction across some overhead electrical wires that he had not
noticed. It fell on the wires it pulled the electricity poles supporting it, causing them to swing
downwards. Annette, who was driving along the road outside of Shane’s house, saw the electric pole
coming down on her and swerved to avoid it, crashing into the ditch and injuring herself quite badly.
The query is in respect of Laura’s liability rather than Tony’s. Albeit that the activity took place on
Laura’s land, this does not appear to be a scenario which is likely to fall within vicarious liability
because in this scenario, Tony would appear to be in control of the manner in which the work is
being conducted, and he is obtaining a benefit from the activity itself which is not monetary in nature
– his activity is as much for his own benefit as it is Laura’s and in that sense it could not be
meaningfully said that it is a relationship in which he is working on her behalf, albeit that she will
benefit from his work.
The acts complained of do not constitute a trespass to land, because the tree fell on a public road,
and in order for there to be an actionable trespass, it would have to have been on private property.
The two main torts which may be in reasonably worthy of discussion are the tort in Rylands v
Fletcher and Nuisance.
Rylands v Fletcher
Rylands v Fletcher is a type of liability will be imposed regardless of negligence, but only where certain
criteria are met. It is a tort which grew out of the older tort known as nuisance and was defined in a
case bearing that name.
The rule in Rylands v Fletcher imposes an exceptional form of strict liability and applies to unusual
dangers or activities on land. The imposition of strict liability means that the Defendant is liable in the
absence of intent or neglect. Where the Plaintiff can show the constituent elements the Defendant is
liable and liability in this area is nondelegable.
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The original case of Rylands v Fletcher (1866) involved a Plaintiff and Defendant who were both in the
business of mining coal on adjoining property. The Defendant hired independent contractors to build a
reservoir to supply water to his mill. As a result of the contractors’ negligent failure to discover a
mineshaft under the reservoir, water from the reservoir broke from the shaft and flooded the Plaintiff’s
mine. In seeking to recover, the Plaintiff faced a number of difficulties because the (1) the Defendant
had been cleared of negligence by an arbitrator. (2) The Defendants could not be held vicariously
liable for the wrongs of their independent contractors. (3) Technically, a trespass had not been
committed, since the flooding was not a direct consequence of the Defendant’s activity and (4) A
nuisance had not been committed, since this was a single escape of water. In imposing a strict form of
liability, the Court stated: “the person who for his own purpose brings on his lands and collects and
keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not
do so, is prima facie answerable for all the damage which is the natural consequence of its escape”
In Rylands the judges seemed to analyse the cause of action as a variation of nuisance but
subsequent cases have accepted it as a distinct tort and the principle has been modified to distinguish
between cases where the Defendant’s use of his land was natural and cases where the use was nonnatural. In Hanrahan v Merck Sharp and Dohme (Ir) Ltd (1988)23 the Court identified the kernel of the
principle as whether the Defendant made use of “a thing which was likely to do mischief if it escaped”.
There are a number of distinct elements in this cause of action:
• Locus standi
• Accumulation
• Dangerous item
• Non-natural use
• Escape
• Causation
• Damage
Trees are not normally regarded as falling under the rule in Rylands v Fletcher, it is only in unusual
circumstances in which it could be said that a tree was accumulated, is a dangerous item, for and
being used for a non-natural use. However if the trees are poisonous, liability may be imposed under
the rule, provided the branches of the tree have "escaped" by encroachment or otherwise onto the
neighbouring property or the highway.
In Noble v Harrison [1926] Wright J stated that a beech tree is a usual and normal incident of the
English country; it develops by slow natural growth, its branches are not likely to cause danger, even
if permitted to expand outwards over the highway. Such a tree cannot be compared to a tiger, a
spreading fire, or a reservoir in which a huge weight of water is artificially accumulated to be kept in
by dams, or noxious fumes or sewage.
In the present case, there does not appear to be any reason to suppose that Laura should have
been aware that the tree in question constituted a danger, and so it appears similarly difficult to
establish the tort of Rylands v Fletcher.
Nuisance
Public Nuisance is a cause of action which is concerned with rights enjoyed by members of the
public. It concerns conduct which leads to unreasonable interference with rights enjoyed by the
public as a whole or considerable class of the public and relates to public rights-of-way, rights of
access to public roads, paths, waterways and other rights such as the right to fish, right to conduct
business. As distinct from an actionable private nuisance, public nuisance is only privately actionable
if the Plaintiff suffered ‘particular damage,’ and in this case it seems clear that Annette’s personal
injury and damage to her car meet that criterion. The main elements for making out a case in public
nuisance will be set out hereunder.
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Conduct for which Defendant is Responsible
The tort of public nuisance covers active conduct by the Defendant, omissions on the part of the
Defendant and acts/omissions by third parties for whom the Defendant is responsible. In
Cunningham v McGrath Bros (1964), the Defendants were held liable for injury caused by a falling
ladder, even though the ladder had been moved by a third party, since the Defendant had been
under a duty to take care that their ladders did not cause injury or public nuisance. In the present
case, a similar principle may be applied to Laura because she was responsible for the trees,
however, in the circumstances, Tony should perhaps be considered responsible for the mode of
work he himself adopted, and this feature would appear to distinguish Laura’s case from the
Cunnignham case.
The case of O’ Kane v Campbell (1985) would appear to be of particular relevance to the present
case. This case concerned a 24-hour shop at a junction between a busy thoroughfare and residential
street. The Plaintiff sued for nuisance as a result of customers lingering outside the shop in the early
hours. The Court held that the Defendant was liable for ordinary and natural conduct of people he
attracts to the neighbourhood. Again, there may be some distinguishing features in the present case,
because Tony’s actions could perhaps not be said to be within what would be the kind of conduct
that would be expected.
It would appear that Laura is responsible to take reasonable steps to prevent foreseeable damage,
however, given Tony’s independent actions in the manner in which he carried out the work, this
criterion may not in fact be made out.
Damage or interference
Damage cannot be presumed in cases of public nuisance and the Plaintiff must prove particular
damage (other than disruption of a public right) as a result of conduct for which the Defendant is
responsible. There is some confusion in relation to what constitutes particular damage broadly but
the Irish courts are of the view that it is sufficient that the Plaintiff suffer a higher degree of harm than
other members of the public generally, and personal injury and property damage, as in the present
case, would be deemed a sufficient degree of individualised harm.
Causation
A Plaintiff must prove the causal link in the normal way, but causation does not appear to be capable
of being contested in this case.
Unreasonableness
For private nuisance the fact that behaviour is unreasonable must be shown. The test is not identical
in public nuisance, but it is comparable. In Lynch v Hetherton, the scope of landowners' obligations in
relation to trees adjoining rural highways was considered. The plaintiff's car had been damaged
when an ash tree fell on it as he was driving down a country road in Westmeath. The Circuit Court
judge found in favour of the plaintiff, who sued for nuisance and negligence, but O'Hanlon J reversed
on appeal. The parties were agreed on the general principle that a landowner was bound to take
reasonable care to prevent damage from falling trees. The plaintiff did not contend that a stricter test
should be imposed. The Court suggested that it was not expected that every farmer in the country
should employ an expert to examine every tree growing on their lands beside a highway, and that
the standard of care would have regard to whether the trees were in a rural or an urban area,
O’Hanlon J was satisfied that what the plaintiff had done was sufficient to discharge his legal
obligation. Although the tree was rotten inside, the evidence fell short of establishing that this rotten
state had been perceptible externally before the accident. The tree was on an out-farm, which the
defendant passed five days a week. The defendant had tightened a row of wire on a ditch, which
was connected to the tree, with staples 10 days before the accident at a point two feet above ground
level. He had inspected all his trees, though he had not employed an expert to look at them, and had
cut down several before the accident. O'Hanlon J was satisfied that the defendant was not under an
obligation to employ an expert; even if he had done so, it was probable that the decay would not
have been detected.
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In the present case, it might be suggested that it is not unreasonable for Laura to hire a non-expert to
cut down her trees, and it will be a matter for evidence as to how likely it was that a falling tree would
constitute a danger of this type to a road user in the circumstances. It would appear based on the
evidence in the case, that Laura’s actions were not unreasonable.
Conclusion
It would appear that an action in Public Nuisance would be the most appropriate action for Annette in
these circumstances, but it does not appear that it would be successful as against Laura. Tony
himself may be liable in negligence to some extent given the manner in which he worked, apparently
without due care, but Laura would only be liable for this in the unlikely event that she were
considered vicariously liable for Tony’s actions.
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Question Four
‘Contributory negligence requires that the plaintiff owes a duty of care to the defendant and that the
plaintiff has breached that duty’.
Critically discuss, with reference to the appropriate jurisprudence, as to whether that is an accurate
statement on the law of contributory negligence.
Answer Four
Section 34 (1) Civil Liability Act 196 provides that the Defendant’s liability is reduced proportionate to
the extent to which the Plaintiff contributed to injury or loss by failing to exercise reasonable care for
his own safety . The defence of contributory negligence is not limited to negligence disputes and s 2
provides that it may be invoked in any case of a wrong, whether a tort, or breach of contract, or
breach of trust, whether committed by the Defendant or third party for whom the Defendant is legally
responsible, and whether the wrong is intentional or negligent. The defence is subject to three
exceptions:
Where it is not possible to establish different degrees of fault, liability is to be apportioned equally.
Where the Plaintiff is shown to have voluntarily waived his legal rights with respect to the acts
complained of, the Defendant is not liable (since waiver operates as an absolute defence to liability).
Where contract or statute expressly sets a limit to liability, the Plaintiff should not receive more than
that limit.
Assessment of Contributory Negligence
The assessment of contributory negligence involves the application of ordinary negligence rules in
that the Defendant must show negligence by the Plaintiff which caused some portion of
damage/injury. The objective standards of care applies and the Plaintiff must exercise a reasonable
degree of care for his/her own safety in the circumstances. This objective standard is adjusted in
certain contexts, such as contributory negligence by children, and contributory negligence as a
defence to breach of statutory duty. In Fleming v Kerry County Council (1955) the Court held that the
test for contributory negligence by a minor is what is reasonable having regard to age, mental
development and other circumstances. The issue was also discussed in the case of Hession v
Hession (2005). In this case, the Plaintiff’s father’s car began to move in the driveway because the
handbrake was off. The minor Plaintiff, who was 14 at the time, rushed over and tried to stop the car
but she was crushed between the car and the wall and sustained injury to her legs. The Court stated
that it was a foolish act by the girl but was an intuitive reaction and was not a deliberate exposure to
risk. The Court referred to the fact that she was 14 and held that there was no contributory
negligence.
This objective standard of contributory negligence is also adjusted where it is raised as a defence to
breach of statutory duty. In Kennedy v East Cork Foods (1973) the Court held that where the
defence is raised in a breach of statutory duty case, the Court will require evidence of downright
carelessness on the part of the Plaintiff to make a finding of contributory negligence.
The issue of causation also applies so that there must be a link between the Plaintiff’s acts of
contributory negligence and the resultant injury. In relation to damage, the damage must have
resulted from a particular risk to which the Plaintiff’s own conduct exposed him.
Notably, it is also possible that the injured party is more at fault for their own injury than the
defendant, but they can still recover for the portion of fault attributable to the Defendant. In Donohoe
v Killeen (2013), although it was held that on the balance of probabilities that the plaintiff
inadvertently broke a red light at a junction, she was able to recover 45% of her damages owing to
the fact that the Defenant should have reacted with better evasive action.
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Conclusion
In light of the foregoing, it may be said that the proposition that, ‘Contributory negligence requires
that the plaintiff owes a duty of care to the defendant and that the plaintiff has breached that duty;’ is
not a correct statement of the law. The true position is that Contributory Negligence is a defence
which permits a Court to reduce the liability of the Defendant to the Plaintiff in circumstances in
which the Plaintiff’s own negligent or wrongful actions were a causative factor in their own injury,
regardless of whether or not they owe any duty of care to the Defendant.
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Question Five
Sean had recently bought a car from his colleague and was delighted with it. One weekend, he
decided that he would tour the Wild Atlantic Way with it. Unfortunately, he had only gone around 75
kilometres when he heard a loud bang from the engine and suddenly water was gushing out of the
front radiator. Sean pushed the car into the side of the road and called his breakdown service, Car
Rescue.
When Robert from Car Rescue arrived, he tried to see if he could repair the leak so it could be driven
to the nearest garage but unfortunately it was too severe to be repaired. Although the car could
move, one would only be able to drive it a kilometre or so before it would begin to overheat.
Car Rescue protocol dictated that the vehicle be winched on to the back of the Car Rescue truck and
then driven to the nearest approved garage. Robert manoeuvred the truck directly in front of Sean’s
car. He was about to attach a winch to the front of Sean’s car when Sean asked: ‘Why? I can drive it
onto the ramps. It is still capable of driving. One of my friends had the front of their car damaged by
one of those winches’. Robert thought about this for a moment. Although company policy stated that
a winch has to be used, it made no sense in this case when the car was capable of being driven.
Besides, it was getting late and this would be quicker. He agreed with Sean saying: ‘OKL, if that is
what you want I will guide you’.
Sean got into the car and following Robert’s instructions drove onto the ramps. However, he went too
fast and drove into the back of the cab of the truck. Shaken, he opened the door and fell five feet
onto the ground breaking his leg.
Advise Car Rescue as to any potential liability in tort for Robert’s actions.
Answer Five
It would appear that it is reasonable to assume that a Court would regard the injury to Sean as being
caused (at least principally, and subject to a defence of contributory negligence) by negligence on
Robert’s part by virtue of his breaching Car Rescue’s policies in respect of the use of winches to load
their trucks. If liability is to be imposed for this reason, a primary issue for the Court would be to
decide whether Robert should be personally liable only or whether Car Rescue should be held to be
vicariously liable for his actions.
An employer will be liable for the torts committed by its employees by virtue of the legal principle of
vicarious liability. The rationale behind the imposition of such liability is driven by the degree of
authority and control an employer has over an employee and the assumption that he should take
care to ensure that his employees do not cause harm to any other in the course or scope of their
employment. In order for vicarious liability to be attached to the employer, it first must be established
that the wrongdoer is in fact an employee and secondly, that the wrongdoing occurred within the
scope or course of that relationship.
Once an employer/employee relationship is established, it must also be shown that the tort was
committed by the employee in the course or scope of his employment. There would appear to be no
question but that Robert is an employee of Car Rescue. The core question would appear to be
whether he was acting within the course and scope of his employment such that his employer should
be held liable.
The “course” test is considerably broader than the “scope” test. The former is where the employee is
doing something that he is employed to do, or anything which is reasonably incidental to his
employment. The latter is more nebulous and focuses on whether the employee acted within the
parameters of the authority delegated to him by the employer. The nature of the wrongdoing will
generally determine what test is; accidental/negligent acts will normally come within the “course” test,
while intentional acts which are extraneous to an employee’s duties will come within the “scope” test.
The time and place where the act occurred will also play a factor.
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In Boyle v Ferguson the employer was found liable for the injury caused to two women who were
taken for a test drive at 7pm by the car salesman, whereas, in O’Connell v Bateman no vicarious
liability attached where the employee borrowed a work-car and had an accident while travelling to
see his parents.
In the present case, although Robert was carrying out his duties in a manner otherwise than Car
Rescue had directed, he was nonetheless carrying out his duties. This would increase the likelihood
that vicarious liability would be imposed.
While the liability imposed under the “course” test is understandable as the tort was generally
committed while the employee was carrying out a duty which he was instructed to do, the liability
imposed under the “scope” test can be a little more contentious, especially when the employee
intentionally commit wrongs which are completely outside the course of his employment. In the
circumstances, it does not appear that this was an intentional act, but rather a negligent act, in the
sense that the outcome was not in any way intended or anticipated.
An example of the former category of cases would be Reilly v Ryan which was a case in which the
employee bar manager intentionally used a customer as a shield when he was attacked by a robber
with a knife. The court refused to attach liability to the employer, as he had been specifically
instructed that customer safety was paramount and thus his actions were outside the scope of his
employment.
As already set out however, the acts that Robert has been responsible for would appear to be acts of
negligence rather than intentional acts in the sense that while he deliberately breached policy, he did
not appear to deliberately intend harm. The fact of being forbidden to carry out an act is not
necessarily determinative of the issue of vicarious liability. The English case of Dubai Aluminium
Company (2003) where the Court discussed a number of principles in the area of intentional wrongs
and stated that:
• A flexible approach should be taken in these cases and the particular circumstances must be
considered.
• If the acts of the employee are totally unconnected with the employment, there will not be vicarious
liability on the part of the employer.
• An employer may be vicariously liable for the acts of an employee even if the employer had
forbidden the employee to carry out the act complained of.
Forbidden acts have also been considered in cases involving bullying or harassment, where a “close
connection” test has been favoured in the UK. This test relates to whether the tortious act was
closely connected with the employee’s work. This test appears to be wider than the scope of
employment test and would result in the imposition of liability in a greater number of cases in this
context. It is unlikely that this test would be used in a more standard case of negligence by an
employee doing a forbidden act, and the test was used in this jurisdiction in a very restrictive way in
the case of R v D (2007). In the latter case, The Plaintiff alleged that he had been sexually assaulted
by the first Defendant while he was in the army between 1989 and 1999. He claimed that as a result
he had suffered PTSD and had a breakdown which destroyed his family life. The Plaintiff claimed
that the army was vicariously liable for acts of first defendant. No complaint had been made by the
Plaintiff until after he left army when he told a Sergeant who in turn reported it to the authorities. The
Defendant argued that the Plaintiff’s claim was statute-barred. It was held that the Plaintiff’s claim
came within Statute of Limitations (Amendment) Act 2000 and he was suffering PTSD which is a
psychological condition and his will to make a reasoned decision in relation to bringing the action
was substantially impaired. On this issue the court held that the claim was not statute-barred.
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The Court considered the UK jurisprudence on the close connection test and noted that these
previous cases concerned young vulnerable boys whereas the case before it concerned a married
soldier and that different considerations applied in the army as opposed to a residential school. The
court pointed out that nobody in authority had any real apprehension regarding the behaviour of the
Defendant and if they had then they would have reported it. The Court was influenced by the fact
that once the Plaintiff did complain to a sergeant years later, he informed the senior officers despite
being sworn to secrecy by the Plaintiff. The court concluded that the Plaintiff had failed to discharge
burden of proof that there were circumstances which would have alerted reasonable person and
cause them to take steps to either inquire into or prevent activities of the first defendant. On the facts
the employer had not been negligent.
In this case, it will be a matter of evidence as to the extent to which Car Rescue may have acted with
greater caution to prevent this type of accident. They do appear to have made the policy sufficiently
clear, but perhaps did not make clear the risks which are involved in breaching it. On the face of it, it
would appear that the case law will not necessarily relieve an employer of liability simply because
they had forbidden the act in question which lead to damage.
It is to be noted also however, that while the employer is normally targeted in litigation as it has
insurance to cover claims made against it, it is possible for the employer to in turn pursue an
indemnity from the employee wrongdoer (as in Lister v Romfield Ice & Cold Storage (1957)),
although this is rarely done.
In conclusion, it would appear difficult for Car Rescue to avoid liability in this instance.
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Question Six
The tort of passing off requires that the plaintiff establish the act is ‘calculated to injure the business
or goodwill of another trader’. Erven Warnink BV v J Townsend & Sons (Hull) Ltd [1979] AC 731,
742.
Critically discuss this requirement in the tort of passing off in light of the relevant jurisprudence.
Answer Six
Introduction
The tort of passing off protects products and the provision of services where a Plaintiff has generated
goodwill in a product and the Defendant has misrepresented his goods as the Plaintiff’s. The
traditional focus of passing off is on whether the consuming public has been, or will be confused by
the similarities between products and whether the Plaintiff has suffered, or will suffer loss to custom
or goodwill as a result of associations being drawn between the Plaintiff and Defendant. The law
does not require strict proof of deception or misrepresentation by the Defendant but rather the Courts
will infer deliberate deception or misrepresentation where the similarities are overwhelming. The tort
of passing off is very broad in scope and it encompasses similarities in product name, design, style,
or even ad campaign. A high similarity in packaging or design may be sufficient to establish a
passing off, even though different names are used, such as ‘Polycell’ and ‘Clingcell’ in Polycell
Products v O’Carroll et al [1959] and ‘Cottage Creams’ and ‘College Creams’ in United Biscuits v
Irish Biscuits [1971]
The traditional proofs required to establish a passing off were:
(1) Plaintiff has generated goodwill in the mark, design, or get-up of his product;
(2) Defendant has misrepresented his goods as the Plaintiff’s, and
(3) Damage has resulted or is likely to result.
In modern jurisprudence the proofs are recognised as:
(1) Misrepresentation (whether intentional or not),
(2) made by a trader in a course of a trade common to the Plaintiff, and
(3) directed to prospective customers of his, or ultimate consumers of goods or services supplied by
him,
(4) which is calculated to injure the business or goodwill of another trader and
(5) which causes actual or potential damage to a business or goodwill of the trader by whom the
action is brought.
These factors can be distilled into four central issues which concern the Courts.
– Established commercial goodwill and reputation
– Consumer confusion
– Common course of trade
– Damage or loss
The primary concern of the question posed is the question of consumer confusion, in relation to
which some of the jurisprudence will be set out hereunder.
Misrepresentation
The test for misrepresentation was recently set out in the Supreme Court by MacMenamin J in
McCambridge Ltd v Joseph Brennan Bakeries [2012], in which the Court indicated that for the
threshold to be met, it is sufficient that a defendant represents its goods in such a way that it is a
reasonably foreseeable consequence that the claimant's business or goodwill will be damaged and
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that proof of intention to deceive is not required. This approach demonstrates a considerable relaxing
of the rule which was discernible in cases such as BV v J Townsend & Sons (Hull) Ltd [1979].
MacMenamin J., in the McCambridge Ltd case, went on to state that a claimant may prove
misrepresentation by calling evidence that the relevant public were, in fact confused, but may also
succeed in a case where there is no such evidence. The overall impact of the get up is the litmus
test, as well as the length of time the conduct complained of has been going on. It will not be [an]
answer to a complaint of misrepresentation to contend that an observant person who made a careful
examination, or who compared both products side by side, would not be misled. The test is, rather,
the impression likely to be produced, on the likely customer, taking into account customer perception
and imperfect recollection.
Of course, if an intention can be demonstrated, this will be in the Plaintiff’s favour. In the earlier
Supreme Court decision of C & A Modes v C & A (Waterford) Ltd [1976] Henchy J stated that, while
intention to deceive is not the essence of the action, it "shows that the conduct complained of was in
fact likely to deceive -which goes to the gist of the action for passing off".
It seems clear from the foregoing then that what will inform whether a case will be successful or not
is not so much the intention of the Defendant, but the risk of consumer confusion.
Requirement of Consumer Confusion
The Plaintiff must satisfy the requirement that the purchasing public is likely to be confused by the
Plaintiff’s and Defendant’s products. The rationale is that if the public is not likely to confuse the two,
then the Plaintiff will not suffer damage to the goodwill. The misrepresentation and resultant
consumer confusion may take many forms – similar name, packaging, design, advertising etc. In
ascertaining consumer confusion, the courts will consider the context in which the consumer would
view and purchase the product.
For most products the appropriate test is that of the ‘casual unwary shopper’. In Reckitt Colman v
Borden [1990] The is known as the ‘Jiff Lemon’ case and the court concluded that the average
supermarket shopper upon seeing the Defendant’s yellow lemon-shaped plastic container with green
leaf-like tag would instantly assume it to be the Plaintiff’s and drop it into the shopping trolley without
scrutinising the product to see the name ‘realemon’ indented into it.
In SmithKline Beecham v Antigen Pharmaceuticals [1999] the Plaintiff’s arguments that the
Defendant’s ‘Solfen’ was confusingly similar to the Plaintiff’s ‘Solpadene’ was weakened by the fact
that in most cases an experienced pharmacist would be locating the product for the shopper.
In McCambridge Limited v Joseph Brennan Bakeries (2012) concerned an appeal to the Supreme
Court by the Defendant against injunctive relief granted to the Plaintiff by the High Court. The
product in question was wholemeal bread, and the Appellants claimed inter alia that the High Court
used an incorrect test in referring to the perspective of a “careless shopper” rather than a
“reasonable shopper”. It was also contended that the features that were similar were generic rather
than unique; and that there was no intention to imitate the McCambridge product. The appeal failed
on the basis that the Plaintiff/Respondent could show actual damage, albeit that they were only
required to show damage to their goodwill and not actual or potential diversion of business, and the
High Court judge had carried out a sufficient analysis of whether there was a potential for confusion
by assiessing nine “heads of similarity”. When read as a whole, the High Court had in fact applied
the standard of a reasonably prudent shopper who is not in any particular hurry, and is neither overly
scrupulous nor dilatory, and who enters the shop with a wish to purchase a loaf of the McCambridge
product. The Court heard the evidence of eleven witnesses in that regard. Finally it was held that it
was possible for individually generic features to become unique or distinguishing when used
together, and that this had occurred in this case.
ln United Biscuits Ltd v Irish Biscuits Ltd," the plaintiff company, who manufactured biscuits called
"Cottage Creams", claimed that the defendant company, who manufactured biscuits called "College
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Creams", was guilty of passing off. The packages in which the biscuits were sold to the public were
entirely different in design and colour. The biscuits were, however, similar to each other.
Allergan Inc v Ocean Healthcare Ltd (2008) concerned the use by the defendants of “BOTOINA: no
more wrinkles”. The plaintiff’s alleged that the use of such constituted trademark infringement and
passing off. McGovern J held that the use of the mark was “to enable the defendant to ‘piggy back’
on the goodwill” of the plaintiff. The use of BOTOINA caused confusion and would be likely “to
mislead the public into believing it is connected in some way with BOTOX”.
Likelihood of confusion may be established even where the defendant intends to engage in a
different type of business than that of the plaintiff's. So in Guinness Ireland Group v Kilkenny Brewing
Co Ltd (1999), Laffoy J granted an injunction against the use of the name Kilkenny Brewing
Company by a company whose purpose was merely to hold land (a micro brewery premises) rather
than to be a trading company for the business carried on. or the products produced, in the micro
brewery. Evidence from three persons "very experienced in the licensed trade" was to the effect that
consumers would be likely to get the impression that the defendant brewed Kilkenny Irish Beer (the
plaintiffs' product) or that it was brewed by one of the plaintiffs.
In judging the actual or likely response of consumers, the courts may accept market and opinion
surveys but the accuracy or credibility of the conclusions will be open to challenge.
Conclusion
The tort of passing off traditionally required that the plaintiff establish the act is ‘calculated to injure
the business or goodwill of another trader’. This appears to a requirement which has lost prominence
in subsequent jurisprudence, and the Courts have tended instead to look at the likelihood of there
being confusion among the consuming public.
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Question Seven
Marianne owned about two acres of grassland om the edge of town, close to the local river. She
liked that people would often walk through her field and have picnics. She loved that people would
get enjoyment out of her land and in fact it had become quite a community facility in many ways.
After listening to the advice of some of her friends, she had erected notices stating that, while visitors
were welcome, they were there at their own risk and that she was not liable for anything that might
arise while they were on private property.
At times she would allow some of her cattle to graze on the field and also drink from a large metal
water tank. Conscious of the hazard that the water tank might present to visitors, she had erected a
large metal cover over it to stop children from falling into it. Later she had added upright poles to the
cover to prevent children climbing on top of the cover.
In November, the rains were so heavy that the field flooded turning it into a virtual lake. Not to miss
an opportunity, many of the locals began using their inflatable boats and kayaks on the flooded field.
Marianne was aware of this and thought it was a splendid idea that showed the ingenuity of the
locals. However, her cousin was a law student and said that she needed to be careful. She
recommended that Marianne prohibit this activity entirely. Reluctantly, Marianne out up signs saying
that all water based activity was prohibited but she never enforced it and the locals continued boating
in the field.
One day Tommy was in an inflatable boat in the field when suddenly it hit the poles at the top of the
water trough, throwing Tommy from the boat and he injured his back.
Advise Marianne as to any potential liability in tort law.
Answer Seven
The Occupiers Liability Act 1995 governs recovery for injury/damage suffered by an entrant as a
result of the dangerous state of an occupier’s premises. There are a number of important definitions
contained in the Act to govern the sphere of liability.
Categories of Entrants & Differing Obligations
The first matter to note is the differing types of entrant who are categorised under the 1995 Act, and
the differing types of obligations that are owed in respect of them. They are visitors, recreational
users and trespassers. Marianne may feel that she does not have an obligation to any visitor by
reason of her original sign which attempted to exclude liability. However, section 5(2) of the 1996 Act
provides that an occupier may by express agreement or notice restrict, modify, or exclude his or her
duty towards visitors only. There are a number of conditions attached to such a restrictions and it will
not be valid unless it is reasonable in all the circumstances; and if the occupier purports by notice to
so restrict, modify, or exclude that duty, the occupier has taken steps to bring the notice to the
attention of the visitor. Once effective, the exclusion or modification can only reduce the obligation to
that which applies to recreational users and trespassers within the meaning of the Act. As will be set
out below, it is unlikely that Tom is a visitor, and even if he was, there would still be some obligation
to him; and significantly, there are legal obligations toward recreational users and trespassers also.
Visitors
Definition of Visitor
Visitors are defined under s 2 of the 1995 Act. They are entrants who are present by the permission
or invitation of the occupier or his family or a person ordinarily resident on the premises or an entrant
present for social reasons. The definition of a visitor also includes entrants as of right and entrants by
virtue of contract. In summary, lawful entrants are visitors, whether they are present for social or
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commercial purposes. Eoin Quill notes that there is a distinction between visitors and recreational
users where social visitors are persons whose presence is desired by the occupier (or the occupier’s
family), whereas recreational users are those whose presence is tolerated.
It would appear on the facts of the case at hand that Tommy would not meet the definition of a
visitor.
Recreational Users
Definition of Recreational User
A recreational user is defined in the Act as an entrant who is present with or without permission or
implied invitation free of charge (not counting a reasonable charge for the cost of providing vehicle
parking facilities) for the purpose of engaging in a recreational activity (and who does not meet the
definition of a “visitor” set out above). Recreational activity is defined to include any such activity
conducted in the open air including any sporting activity, scientific research and nature study and the
exploration of caves, sites, and buildings of historical, architectural, traditional, artistic, archaeological
or scientific importance. In the present case, it is arguable that Tommy is a recreational user, unless
it can be shown that he is in fact trespasser by reason of his not obeying the sign regarding
recreational use of the flooded area.
Duty Owed to Recreational Users
Under s 4, the occupier owes a restricted duty of care to recreational users to avoid injuring them
intentionally and to avoid acting with reckless disregard for their safety. Section 4(2) provides that in
determining whether or not an occupier has so acted with reckless disregard, regard shall be had to
all the circumstances of the case and a number of factors which are listed in s 4(2) and include the
nature of the danger, character of premises, conduct of entrant, warnings and supervision of entrant.
It is not clear how these factors relate to each other and which should be weighted.
An example in case law of the duty owed to recreational users is Weir Rodgers v SF Trust Ltd
(2005). The Plaintiff sued the Defendant occupier of a local beauty spot in Donegal claiming
damages under the 1995 Act for significant personal injuries sustained by her after falling down a cliff
face. She had walked to the headland with friends after passing through a broken-down fence, and
had sat there to admire the sunset. Upon getting up to leave, she had lost her footing and tumbled
down. The Plaintiff argued that the sheer drop of the cliff had been hidden from view and therefore
that the danger had not been apparent. The Defendants argued that they had not behaved with
“reckless disregard” and that the risk of falling was self-evident and had required neither fencing nor
warning notice. The High Court found for the Plaintiff and held an accident of this type had been
reasonably foreseeable. The Plaintiff’s award was reduced by only 25 percent to reflect her
contributory negligence. This decision was overturned by the SC. It was held that the HC had erred
by subjecting the Defendant to negligence or fault standards, and should have limited itself to
determining whether the Defendant had acted with “reckless disregard”. The court favoured an
objective test of ‘reckless disregard’ and rejected the argument that the Defendant should have
erected fencing or warning notices. The Court stated that there are certain risks in outdoors activities
and the Plaintiff should have appreciated dangers inherent in sitting along the edge of a steep
embankment adjacent to sea. Finally, the Court held that there may be exceptional unusual or
dangerous qualities to certain lands which would require an occupier to erect warning notices but in
this case the danger inherent in the act must have been obvious to the Plaintiff so the Defendant
could not be held to have acted with reckless disregard in not putting up warning signs.
This decision was influenced by the English case of Tomlinson (2004). That case involved potential
liability under the English Occupiers Liability Act, 1957 and there were some views expressed in the
speeches of the Law Lords relating also to the Occupiers Liability Act, 1984 which was the Act
dealing with duty to trespassers. While the Court considered that there was some only limited
overlap, it held that at least one aspect of that case is relevant to this case. The Law Lords in their
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speeches referred to the common sense expectations of persons engaged in outdoor activities such
as, for instance, mountain climbing or walking or swimming in dangerous areas. The other side of
that coin is that the occupier is entitled to assume that knowledge of such dangers and risks would
exist and safety measures would be taken.
In the present case, the injury arose because Tommy was in an inflatable boat in the field when
suddenly it hit the poles at the top of the water trough. Given that this was not a natural body of
water, and perhaps in particular if the poles were visible above water, it may be said that Tommy did
not take sufficient care for his own safety in the circumstances. While the sign prohibiting the activity
did not refer to any dangers, it may also be said that it strongly implied that the prohibition was
because of risks to safety. The particular issues which the Court may take into account under the
legislation will be set out under the next heading on Trespassers.
Trespassers
Definition of Trespasser
Trespassers are defined as entrants who are not visitors or recreational users. In summary they are
persons who do not have permission or authority to be present on those lands and are not there for
recreational purpose. The classification of an entrant as a trespasser as opposed to a visitor will
have a significant impact.
In Williams v TP Wallace Construction Ltd (2002) the Plaintiff was the general manager of a firm
hired by the Defendant construction company to install guttering in a shopping centre. On the day in
question he arrived unannounced at the site to verify that the guttering was going well. A number of
site workers were on a break and the architect was not present but he proceeded to inspect the site
and fell from a ladder. He sued the Defendants as occupiers, claiming that the ladder should have
been tied to the scaffolding to prevent an accident of this nature. The Court held he was not a ‘visitor’
for the purposes of the 1995 Act, since he was not there by invitation or arrangement, and so he was
categorically a ‘trespasser’ to whom the occupier owed a more minimal duty not to act in reckless
disregard. The court found that the failure to tie the ladder to the scaffolding was not an act of
reckless disregard.
The only feature which may make Tommy a trespasser in the current scenario is the sign prohibiting
his presence on the floodplain. However, given that the prohibition was not enforced, the Court may
not be inclined to be significantly influenced by the factor.
Duty Owed to Trespassers
Under s 4, the occupier owes the same duty of care to trespassers as he owes to recreational users
– namely to avoid injuring them intentionally and to avoid acting with reckless disregard for their
safety. Section 4(2) provides that in determining whether or not an occupier has so acted with
reckless disregard towards a trespasser, regard shall be had to all the circumstances of the case and
a number of factors which are listed in s 4(2) and states that regard shall be had to all the
circumstances of the case and a number of factors which include the nature of the danger, character
of the premises, the conduct of the entrant, warnings and, where relevant, the supervision of the
entrant. In particular it refers to:
whether the occupier knew or had reasonable grounds for believing that a danger existed on the
premises;
whether the occupier knew or had reasonable grounds for believing that the person and, in the case
of damage, property of the person, was or was likely to be on the premises;
whether the occupier knew or had reasonable grounds for believing that the person or property of the
person was in, or was likely to be in, the vicinity of the place where the danger existed;
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whether the danger was one against which, in all the circumstances, the occupier might reasonably
be expected to provide protection for the person and property of the person;
the burden on the occupier of eliminating the danger or of protecting the person and property of the
person from the danger, taking into account the difficulty, expense or impracticability, having regard
to the character of the premises and the degree of the danger, of so doing;
the character of the premises including, in relation to premises of such a character as to be likely to
be used for recreational activity, the desirability of maintaining the tradition of open access to
premises of such a character for such an activity;
the conduct of the person, and the care which he or she may reasonably be expected to take for his
or her own safety, while on the premises, having regard to the extent of his or her knowledge thereof;
the nature of any warning given by the occupier or another person of the danger; and
whether or not the person was on the premises in the company of another person and, if so, the
extent of the supervision and control the latter person might reasonably be expected to exercise over
the other’s activities.
Given that these factors may weigh differently depending on whether the entrant is a trespasser or a
recreational user, there can be in practical terms perhaps a lower obligation in respect of trespassers
than recreational users. In the present case however it is difficult to see any significant difference, as
Marianne was well aware of this use being made of her land.
Section 4(3) provides that the occupier’s statutory duty does not extend to trespassers who enter the
premises for the purpose of committing an offence or, where present on the premises, commit an
offence. Such persons can only recover from the occupier when a court determines that recovery is
“in the interests of justice”. Liability to Tommy would not appear to be governed by this section
however.
Conclusion
Ultimately, the position is that Marianne would have foreseen Tommy’s presence and expected him
to be there in much the way that he ultimately was. The significant factor which a Court may weigh in
her favour however is the level of care Tommy should have taken for his own safety in all of the
circumstances of the case.
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Question Eight
The function of modern tort law is solely concerned with compensating victims of alleged wrongs and
has little to do with prevention or deterrence of such wrongs.
Critically discuss this statement in the light of the development of modern tort law.
Answer Eight
The practice in this jurisdiction is to make one award of damages in respect of all past, current, or
potential future loss suffered as a result of a tort. The primary aim of an award of damages is to put
the plaintiff in the position he or she would have been in if the tort in question had not occurred. A
secondary purpose of damages can be to act as a deterrent or as a public censure. The primary
headings under which damages may be awarded in appropriate circumstances are: compensatory,
aggravated, exemplary or punitive, nominal, and contemptuous.
Compensatory Damages
Compensatory damages can either be for pecuniary or non-pecuniary loss. The former is often
referred to as special damages, and the latter, as general damages.
(i) Pecuniary Losses
Pecuniary losses are those quantifiable out of pocket expenses such as loss of earnings, or medical
expenses and have been held to include the cost of domestic help or the cost of financial advice in
appropriate circumstances.
Notwithstanding that these are “quantifiable” in nature, the Courts have experienced difficulties in
precisely how these amounts should be calculated. The case of Reddy v Bates [1984] IR 197
considered whether the calculation of loss of future earnings should include times of unemployment.
The cases of Jeffer v Cahill (unreported, Supreme Court, 29 July 1999) and O’Donoghue v Deecan
& Sons (unreported, High Court, 21 May 1996) both concerned evidence as to the claim that the
Plaintiffs were rendered unfit for any form of future employment by virtue of their injuries.
Complications also arose in relation to medical expenses owing to the availability of free medical
care generally, and the operation of section 2 (1) of the Health (Amendment) Act 1986 which
requires health boards to charge directly where the patient has received or is entitled to receive
damages for their injuries. Owing to a judgment of Kinlen J in O’Rourke v Scott (1993) a notional
amount of £100 was charged, but the Supreme Court subsequently found in Crilly v T & J Farrington
(2001) that a hospital should charge the averaged daily cost of bed and board in the specific hospital
and in that case, it was considerably more than the amount payable by virtue of the ‘Kinlen Order’.
(ii) Non-pecuniary Losses
Non-pecuniary loss refer to personal losses such as pain and suffering, loss of amenity and loss of
expectation of life. These reflect both past and future loss and can be very difficult for a court to
quantify particularly in cases concerning extreme impairment.
Sinnott v Quinnsworth [1983] ILR 523 concerned a young man who was rendered quadriplegic,
wherein the High Court reduced damages from £800000 to £150000 on appeal and stated that
unless there are particular circumstances which suggest otherwise, general damages should not
exceed a sum in the region of £150000 and that a court should resist awarding damages which are
so high as to constitute a punishment for the infliction of the injury rather than a reasonable if
imperfect attempt to compensate the injured.
In Kealy v Minister for Health [1999] 2 IR 456 however the Court distinguished Sinnott on the bases
that large sums had already been awarded for loss of earnings and future expences, and awarded
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£250,000 to a plaintiff who had contracted Hepatitits C as a result of the negligence of the
Defendant. This approach was mirrored by the Supreme Court in in Gough v Neary [2004].
Cases in which the Plaintiff’s injuries have rendered the Plaintiff unaware of his loss and injuries
have met with differing approaches. In Cook v Walsh [1984] IR 208 – it was held that damages
should be more moderate. Hughes v Flaherty (1996) however is a case where the court refused to
make such a deduction and reserving it for “extreme cases.
Non-pecuniary damages can be awarded for loss of expectation of life but the courts have tended to
favour awarding only a moderate sum for such loss. In Philip v Ryan (2004) the Court on appeal held
that damages should have been awarded for possible loss of life expectancy due to loss of an
opportunity to avail of treatment earlier owing to the negligence of the defendants. The test applied
was whether there was an increased risk of shorter life expectancy and the test of the trial judge that
damages for loss of life expectancy depended on proof that life would probably not possibly have
been prolonged, was rejected.
Aggravated Damages
Aggravated damages reflect any additional and exceptional harm as a result of either the manner in
which the harm was inflicted or the defendant’s behaviour towards the Plaintiff after the initial tort.
In Daly v Mulhearn [2005] IEHC 140, aggravated damages were awarded in circumstances where it
was accepted that the Defendant accepted responsibility at the scene of an accident and then
subsequently accused the Plaintiff of fabricating her account and of being drunk.
In Philp v Ryan (2004) the court held that the Plaintiff was entitled to aggravated damages by reason
of the behaviour of the Defendants in their preparation and
presentation of the case and confirmed that aggravated damages could be awarded in cases of
negligence. The first named Defendant had forged documents to make it appear that he had a
stronger defence than he did in fact, and his legal advisors were also criticised for not informing the
Plaintiff’s solicitors of the true facts. This caused the Plaintiff to believe theirs was a strong defence
to the action and this caused the Plaintiff to suffer additional emotional stress and anxiety.
Exemplary or Punitive Damages
Exemplary and punitive damages are awarded in exceptional cases, chiefly to make an example of
the Defendant and to deter others from engaging in similar anti-social conduct.
In Rooks v Barnard [1964] AC1229 award of exemplary damages was restricted to cases of
‘oppressive, arbitrary or unconstitutional action by the servant of
Government but they can also be awarded in cases where the Defendant’s conduct was calculated
to make a profit in excess of the compensation normally recoverable by the Plaintiff, and cases for
which such an award is expressly authorised by statute.
These categories have been rejected in other jurisdictions and Irish judges have expressly and
implicitly doubted the merits of the limitations in Rookes on many occasions. In Conway v INTO
[1988] ILRM 472 the court finally rejected the
Rooks categories and the Court held that exemplary damages should be measured to meet the
wrongdoing rather than to benefit the wronged. The Supreme Court stated that these damages are
to mark the courts disapproval of the conduct and the Court should publicly be seen to have
punished the defendant. The objective is to punish wrongdoers for outrageous conduct and deter
others and the court will consider the manner in which a wrong is committed, conduct of the
wrongdoers after the wrong and in the defence. It was held that it was a conscious and deliberate act
to make gain without any thought as to who would suffer.
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In Crawford v Keane an award of £7500 was made on the basis of Defendant’s behaviour after the
Tort had been committed. The Defendant had given deliberate false testimony throughout the
hearing. The Courts have consistently maintained that exemplary damages may be awarded only in
very exceptional cases and the awards have been low. However in Crofter properties limited v
Genport Limited [2002]
£250000 exemplary damages were awarded on the basis that deliberate and malicious phone calls
had been made and were intended to injure the Plaintiff’s in their business. The high sum was
awarded on the basis that the behaviour had been malicious and deliberate; the person who had
made the calls had committed perjury; and it was an extremely bad case and one in which there
must be some very substantial penalty imposed on the Plaintiff.
Nominal Damages
Nominal damages represent a token amount of damages awarded by the courts where the Plaintiff
has established a wrong but suffered no real harm. It reflects the view that there was a valid claim
and that it was not frivolous, notwithstanding that the damage done is minor in monetary terms. (e.g.
trespass / boundary disputes and torts which are actionable per se).
Contemptuous Damages
Where there is a technical wrong but no sufficient reason for bringing litigation. It is where the court
is of the view that there has been no material harm done to the Plaintiff or no significant interest to
protect, and the Plaintiff will generally not be awarded costs.
Conclusion
While it would compensation is certainly the primary concern of the award of damages in torts law,
the Court will in sufficiently appropriate circumstances, also make awards which are designed to
deter similar wrongs by imposing punitive or exemplary damages.
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Exam Paper - October 2015
Question One
Mary asked her sister Alice to collect Ben, Mary’s son who was 14, from soccer practice. When Alice
arrived, she found to her surprise that not only was Ben waiting for a lift but three of his friends also
expected to be taken home as well. Alice found the boys in high spirits and as she drove off they
were very boisterous. They were shouting and laughing and at times they would push and shove
each other, giving Alice the impression that the car was being bounced. She decided to pull into a
drive through fast food restaurant, figuring that this would calm the boys down somewhat.
As she drove off, the boys did in fact get much quieter and they began to behave more respectfully.
Alice was thankful as there was still a 20 minute drive back to Mary’s place. Alice was very proud of
her car, having it valeted every week. As the boys began to finish their meals, she asked them to
make sure that they kept their rubbish until they arrived at Mary’s. Sam, one of Ben’s friends, asked
if he could put the rubbish on the floor, but Mary was insistent that he hold it until the end of their
journey.
As Alice slowed down to stop for a red light, Sam suddenly opened his window and saying ‘I am
getting rid of this rubbish now!’ threw his half-drunk milkshake out of the window. Alice tried to shout
stop but it was too late. The milkshake struck Tom, a pedestrian, who just happened to be there.
Some of the milkshake went into Tom’s eye and this later went on to become infected, impairing his
vision.
Advise Alice as to her liability in tort to Tom, if any.
Answer One
The issue presented by the facts set out is whether Alice is responsible for Sam’s actions when he
threw his half-drunk milkshake out of the window striking Tom and causing impairment to his vision
as a result of infection. The two core legal questions are firstly whether Alice may be vicariously
liable and secondly whether she is directly liable in negligence.
It is certainly possible for car owners to responsible for the negligence of others by way of vicarious
liability in some circumstances. S 118 of the Road Traffic Act provides that where the owner of a
mechanically propelled vehicle consents to another using it, and injury occurs as a result of his
negligence, the user is to be treated as the owner’s employee for the purposes of establishing
liability or non-liability “but only in so far as the owner acts in accordance with the terms of such
consent.” The consent must be ‘real’ and not obtained by fraud or misrepresentation. Thus in Kelly v
Lombard Motor Co Ltd (1974)
to apply them on the facts of any given case.
d at best can be said only to be capable of being made against those who attemptwhere the driver
had obtained the car from the Defendant car hirer on foot of somebody else’s driving licence,
vicarious liability was not imposed.
Liability will further be affected by any specific restrictions the owner laid down to the other for its
permitted use. Generally, however, the courts will adopt a flexible approach to s. 118. In Guerin v
Guerin & McGrath (1992) the registered owner had emigrated and left his car behind him so that a
neighbour could drive the parents to mass each Sunday. The accident occurred on another day
when the neighbour brought the parents to the post office. In finding that s118 still applied, Costello J
interpreted the consent as being to use the car generally for the convenience of the family.
However the issue in the present case is very different, as her it is a passenger in the car rather than
a driver, and the passenger is doing something that they do not have the consent of the owner of the
car to do. In particular, the throwing of rubbish from the car had already been prohibited – at least
implicitly – by the instructions which Alice had given. She had of course consented to the child being
a passenger in the car, however. The matter was given a partial consideration by the High Court in
the recent case of Doody v Clarke [2013] IEHC 505. The case concerned the loss of the Plaintiff's
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eye following an egg being thrown by a passenger in a care and striking her. McDermott J. set out
that the plaintiff contended that the defendant driver is vicariously liable for the actions of his
passenger, though the Court set out that this case was not seriously contended. Rather the
consideration of the Court was principally on what was considered, “the stronger case” that the
defendant driver was directly liable for the incident due to his failure to properly drive, car and control
his motor vehicle as he is obliged to do so under the Road Traffic Act and at law and in particular he
failed to properly control the activities of his passengers. This element of the claim also failed on the
facts of the case as well.
In dealing with the question of direct liability, in Doody v Clarke, the Court noted the earlier decision
of the Supreme Court in Curley v. Mannion [1965] I.R. 543, and summarized the decision by setting
out that the defendant who was the owner and driver of a motor vehicle which was parked on its
correct side of the road was held liable to a cyclist pedestrian who suddenly without warning was hit
by the passenger door being opened by a passenger child of the defendant who did not look to see
the coast was clear. The Court noted the assessment of Ó Dálaigh C.J. that a person in charge of a
motor car must take precautions for the safety of others, and this will include the duty to take
reasonable care to prevent conduct on the part of passengers which is negligent. Ó Dálaigh C.J.
stated that in that case the duty is reinforced by the relationship of parent and child; and a parent,
while not liable for the torts of his child, may be liable if negligent in failing to exercise his control to
prevent his child injuring others.
In the case before McDermott J., the Court stated that none of the passengers gave evidence as to
any conversation about "egging" anybody on the road. The Court suggested that this may well be
selective amnesia but there is no evidence that the driver was warned or ought to have known that
this was a likelihood. The Court took the view that it would be unreasonable to import upon him the
knowledge that an egg was going to be thrown or might be thrown in the direction of the plaintiff from
his car. It was also considered that in the circumstances to expect the defendant to take any
preventative measures would be to impose upon the defendant too high and too onerous a standard
of care. The Court stated that had there been any evidence of a discussion of "egging" pedestrians,
then it would have accepted the submissions of the Plaintiff as to preventative measures with
alacrity. The Court held that the evidence did not establish that the defendant was in breach of the
duty of care he undoubtedly did owe to the plaintiff, the fellow road user, on the day. And the Court,
with regret, dismissed the action.
The facts of Alice’s case, relate to a child who was not her own child and whom she did not
personally know. The decision of Curley v. Mannion does import a direct responsibility on parents of
children, albeit that it is not one of vicarious liability. It would not appear that this principle would
apply to Alice, as she was not the parent and had no knowledge of the propensities of the child. It
seems clear that there is a more general obligation on drivers concerning the actions of their
passengers, but in order for the standard of care to be breached there needs to be some knowledge
or reasonable apprehension that the actions taken by a passenger which may endanger others, will
in fact be taken. On the facts of the present case, at its height, Tom will have to convince a Court
that it would be foreseeable to expect a 14 year old to be at significant risk of responding to the
directions given about rubbish by Alice, to proceed to throw it out the window, and to thereby put a
pedestrian at risk of injury. Albeit that Alice would not appear to have the same duty as a parent or a
school teacher, if she did have such a duty, or something approaching it, it may be worthwhile noting
the decisions in cases as to when such a duty may have been breached.
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Question Two
Critically discuss the accrual of the limitation period for tort actions under the Statute of Limitations
Act 1957 (as amended).
Answer Two
Introduction
Limitation periods are governed by a number of statutes. Notably among them are, The Statute of
Limitations 1957 and 1991, the Civil Liability Act 1961, the Statute of Limitations (Amendment) Act
2000, and the Civil Liability and Courts Act 2004. In general, time limits are set for each category of
claim, and if the claim is not taken within this time limit, the claim will be statute-barred.
A concept inherent to the operation of limitation periods is that of the date of accrual. The time limit
only begins to run from the date upon which the action accrued, which is the date when all of the
constituent elements of the action first come into being. The date of accrual has had a significant
impact on the exceptions to the general time limit, and the definition of the “date of knowledge” is
crucial in this regard.
A general time limit of six years is given for an action to be taken in tort, and similar time limits are
given for other categories of actions. However, legislation provides a number of exceptions to this
general time limit of six years which depend upon the nature of the harm at issue.
The manner in which the rules seek to give certainty and ensure actions are processed in a timely
fashion which strikes an appropriate balance between the competing interests of both litigants, is
different depending upon the type of damage at issue.
Date of Knowledge
The 1991 Act brought about further exceptions to the limitation period in personal injury actions by
introducing the concept of the date of knowledge. S.2 applies to personal injury actions caused by
negligence, nuisance or a breach of duty of care. It states where the cause of action is dependent on
certain information which was not known by plaintiff initially, time will only begin to run from the date
upon which such knowledge accrued. The date of knowledge is defined as the date upon which the
plaintiff first had knowledge of:
The person alleged to have been injured had been injured;
The injury in question was significant;
The injury was attributable in whole or in part to the act or omission which is alleged to constitute
negligence, nuisance or breach of duty;
The identity of the defendant, and
If it is alleged that the act or omission was that of a person other than the defendant, the identity of
that person and the additional facts supporting the bringing of an action against the defendant;
This date of knowledge concept acted as an extension of the time limit, as it allowed persons to take
claims outside the normal limitation period, as it altered the date of accrual. Abuse of the section is
guarded against, however, as knowledge may be imputed where the plaintiff might reasonably have
been expected to acquire the information from facts observable or ascertainable by him or with the
help of a medical or other appropriate expert who it was reasonable to consult. Such knowledge will
not be fixed where the plaintiff took all reasonable steps to attain or act on such advice, but still was
not aware of the necessary information.
The date of knowledge clause has a particular significance in professional negligence cases. In
Gough v Neary the defendant performed a hysterectomy on the plaintiff, and the SC held that time
ran from the date when she knew enough facts which, upon elaboration by an expert, constituted a
cause of action.
Personal Injury Actions
The first exception to the general rule is that of a personal injuries action. S.7 of the Civil Liability &
Courts Act 2004 now provides that an action claiming damages for personal injuries caused by
negligence, nuisance or breach of duty must be taken within two years from the date on which the
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cause of action accrued. This exception was driven by a desire to reduce the risk of fabricated claims
long after their alleged occurrence and also to ensure the fresh availability of evidence. The section
further limited the previous period of three years, which was provided by the Statute of Limitations
Act 1957. S.49 of the 1957 Act provides that if the plaintiff was labouring under any disability at the
date of accrual, time shall not begin to run until that person is no longer under such a disability. This
section had a huge impact on the limitation of actions. Disability was described by the Act as
including a person under 18 years of age, a person of unsound mind, and convicts.
Assault Cases
There was previously some debate as to which time limit applies in cases of trespass to the person
resulting in personal injury. In Devlin v Roche (2002), the issue was whether proceedings for
personal injury caused by an assault and battery could be litigated within six years or whether it was
restricted to the three years for personal injury actions identified by s 11(2)(b). The SC held that the
words in s 11(2)(b) only imply unintentional acts causing personal injury. Accordingly, a Plaintiff may
institute proceedings for assault and battery within six years which is an intentional tort.
Sexual Abuse Cases
The previous definition of disability was further extended by the Statute of Limitations (Amendment)
Act 2000, which specifically provided for claimants suing on foot of “sexual abuse committed against
at a time when he had not reached full age”. The Act provides that if the plaintiff suffered a
psychological injury of such significance that his “will or his ability to make a reasoned decision to
bring such action was substantially impaired”, then the plaintiff is deemed to have been under a
disability for the purposes of the statue of limitations, and thus time will not being to run until the
disability ceases.
In Delahunty v SE Health Board & St. Josephs, the sexual abuse occurred in 1976, but proceedings
were only instituted in 1997. The plaintiff asserted that he had not discovered that his psychological
problems were due to the earlier abuse until he had sought out expert assistance. The HC found that
time had began to run when the expert had made the plaintiff realise that the abuse was the cause of
his psychiatric injuries.
Property Damage/Economic Loss Cases
The legislature has not introduced discoverability rules for latent damage to property or for pure
economic loss which remain subject to the six-year torts time limit. In Morgan v Park Developments
(1983), Carroll J sought to imply discoverability criteria into the 1957 Act on the basis that without
them the Act infringed the Plaintiff’s constitutional rights to enjoyment of property rights. The
reasoning was criticised by the SC in Hegarty v O’Loughran (1990), and the resulting situation is
clearly that non-personal injury suits do not currently benefit from any discoverability rules beyond
fraudulent concealment under s 71.
Although property cases do not benefi t from discoverability provisions, the courts tend to take a proPlaintiff approach to the issue of accrual date where the defect in the building was latent and
undiscoverable prior to actual discovery. This was evident in O’Donnell v Kilsaran Concrete Ltd (2
November 2001) where cracks appeared in Plaintiffs’ dwelling house four years after it was built. The
Plaintiffs attributed the cracks to settlement of the structure and the existing plaster in this area was
removed and replaced. Seven years after that, when the Plaintiffs had hired an architect to design an
extension, they were alerted to further cracking in the plaster of the lower section of the outside wall
and discovered the cracks were due to defective blocks used by the builders. Herbert J found that
the cracks were likely to have occurred when the Architect inspected the premises and that until then
the defect had been latent. The Court concluded that the time began to run at that time.
In Forster v Outred & Co (1982), The Plaintiff signed a mortgage deed charging her property as
security for a loan between her son and a company. She claimed that the Defendant solicitors were
negligent in advising her to sign the deed, in not fully explaining to her what she was signing, and in
not instructing her that it also covered not only her son’s present loan but his future debts with the
company. The Defendant claimed she was statute-barred and the Plaintiff claimed that time only
started to run when, at a later date, demand was made for payment under the deed. The Court held
that in cases of financial or economic loss the damage crystallises and the cause of action is
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complete at the date when the Plaintiff, in reliance on negligent advice, acts to his detriment, i.e. the
date when the Plaintiff signed the deed.
Fraud
Section 71 of the 1957 Act provides that where the defendant has fraudulently concealed the
existence of a cause of action, or where the plaintiff’s cause of action is based on the fraud of the
defendant, time will not begin to run until the date when the plaintiff discovers the fraud or could
through reasonable diligence have so discovered. The extension does not apply where the
defendant merely concealed information which the plaintiff did not need to ground his claim.
Conclusion
The manner in which the rules seek to give certainty and ensure actions are processed in a timely
fashion which strikes an appropriate balance between the competing interests of both litigants, is
different depending upon the type of damage at issue. While the exceptions employed appear to
take good account of the nature of the harm as it relates to the time at which a Plaintiff may be
expected to act, it would appear that some harmonisation of the position in respect of economic loss
cases with property damage cases would be appropriate. Very specific considerations apply in the
context of fraud or childhood sexual abuse, and certain forms of legally defined ”disability” and this
would appear to be an appropriate extension of the normal rules in light of the special position that
those plaintiffs are in, or have been placed in by the Defendant.
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Question Three
John worked in an investment company, Sububus, as a mid-level fund manager. This would be his
tenth year. Although the job was exceptionally stressful, he had made a substantial amount of money
for both him and the clients. Nonetheless, unknown to his colleagues he was on heart medication for
stress related symptoms. This morning John had arrived at work early to go through his emails
before the markets opened. Most of them were of the usual type but he did notice a few unusual
emails from Drama Bank congratulating him on opening his new account and telling his it was active
immediately. He assumed it was the usual email scam as he had never heard of Drama Bank.
When the markets opened, John began selling some of his investments following instructions from
his clients. He then noticed that each time he made a sale he would receive an email from Drama
Bank stating: ‘This is to confirm your lodgement to your account’. He then received an email from
Drama Bank congratulating him on lodging over €1 million. Suddenly his floor manager, Richard,
began shouting at John demanding to know why he was stealing client funds. With sheer terror John
collapsed and had to be rushed to hospital having suffered a massive heart attack.
In fact the whole thing had been a practical joke organised by Richard to mark John’s ten years with
the firm. John’s trades had never occurred, there was no such thing as Drama Bank and no money
had been lost.
Advise John if he has any action in tort against Sububus.
Answer Three
The present case concerns a deliberate prank by Richard on John, which had the effect of causing
John to suffer a heart attack in circumstances in which the physical response caused may not have
been foreseeable to Richard, as he did not know that John had a heart condition. John is seeking
advice as to any action he may have against Sububus who is Richard’s employer, as well as his
own.
In general, a negligent act results in damages for foreseeable injury. The “egg shell skull” rule has
the effect of allowing for recovery for unforeseeable consequences which are nonetheless direct
consequences in the case of personal injury. The same rule does not apply to psychological
conditions. In order for John to be able to recover for his injuries he would have to establish that
there was sufficient intention to cause him psychological harm, or rather that the consequences were
in fact reasonably foreseeable.
In relation to an intentional infliction of a psychological injury, it is theoretically possible to recover for
this in tort, however there is some uncertainty in the law as it is not a tort which is invoked very often
and the case law is of some vintage. It is a distinct tort from negligent infliction of psychiatric harm,
although it is undeveloped in this jurisdiction. There is very little case-law for the tort in either Ireland
or the UK, though the action has been developed extensively in the USA. In practice this tort will only
be useful as a separate cause of action in circumstances where the Defendant committed no other
tort. The tort was established in the case of Wilkinson v Downton (1897). The Defendant had played
a practical joke on the Plaintiff, telling her that her husband was lying injured at a public house in
Leytonstone, as a result of an accident The shock to the Plaintiff resulted in severe and permanent
physical consequences. The Court stated that recovery lies in trespass to the person for the
intentional or reckless infliction by the Defendant of emotional suffering or distress on the Plaintiff.
The Court concluded that the Plaintiff did not have to establish that the Defendant intended to cause
the distress that in fact resulted but it was sufficient to establish that he had acted recklessly in this
regard.
This tort was also discussed in Janvier v Sweeney (1919). The Defendant private detective,
impersonating a policeman, threatened to charge the Plaintiff for espionage unless she handed over
various private letters belonging to her employer that were in her possession. The Plaintiff was
extremely shocked and distressed as a result. The Court of Appeal (UK) held that the Plaintiff could
recover damages for the shock and upset suffered to her as a result of the Defendant’s deliberate
acts.
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With the development of “nervous shock” (or more accurately, negligently inflicted psychological
injury) as a distinct tort, it became an all-but-moot point as to whether the actions complained of were
intentional or simply negligent, and consequently the only place for the Wilkinson v Downton
jurisdiction appeared to be in cases where there was a level of distress suffered which fell below the
threshold of psychiatric injury. The Court of Appeal however rejected that this type of suffering could
be recoverable in Wong v. Parkside Health NHS Trust (2001). In the US this action has extended to
cover intentional/reckless infliction of emotional distress by extreme or outrageous conduct and the
action is not confined to psychiatric illness.
On the facts of the present case, the injury in fact caused a response which had a physical
manifestation in the form of a heart attack. Although this is not strictly a psychological injury, it was
caused by a psychological mechanism, and this fact is unlikely to be a bar to recovery. Perhaps the
ability of John to recover under this heading is whether it can be truly said that Richard was reckless
as to the effect of his prank. If this threshold can be met, then the remaining question would be
whether Sububus would be vicariously liable.
Once a relationship of vicarious liability is established, it must also generally be shown that the tort
was committed by the employee in the course or scope of his employment. The “course” test is
considerably broader than the “scope” test. The former is where the employee is doing something
that he is employed to do, or anything which is reasonably incidental to his employment. The latter is
more nebulous and focuses on whether the employee acted within the parameters of the authority
delegated to him by the employer. The nature of the wrongdoing will generally determine what test
is; accidental/negligent acts will normally come within the “course” test, while intentional acts which
are extraneous to an employee’s duties will come within the “scope” test. The time and place where
the act occurred will also play a factor. In Boyle v Ferguson the employer was found liable for the
injury caused to 2 women who were taken for a test drive at 7pm by the car salesman, whereas, in
O’Connell v Bateman no vicarious liability attached where the employee borrowed a work-car and
had an accident while travelling to see his parents.
While the liability imposed under the “course” test is understandable as the tort was generally
committed while the employee was carrying out a duty which he was instructed to do, the liability
imposed under the “scope” test can be a little more contentious, especially when the employee
intentionally commit wrongs which are completely outside the course of his employment. Again the
nature of the wrong will influence whether liability will attach to the employer.
In Reilly v Ryan the employee bar manager intentionally used a customer as a shield when he was
attacked by a robber with a knife. The court refused to attach liability to the employer, as he had
been specifically instructed that customer safety was paramount and thus his actions were outside
the scope of his employment. In Dubai Aluminium Company, the English courts stated a number of
principles in relation to an employer’s liability for assaults/battery:
A flexible approach should be taken, and the particular facts must be considered
No vicarious liability will attach if the acts are totally unconnected with the employment.
Vicarious liability will attach even if the employer had forbidden the employee to carry out the act
complained of.
Liability for the criminal acts of employees has also attracted much debate. In Lister v Hesley Hall Ltd
the House of Lords held that sexual abuse committed by employees was sufficiently connected with
the employment of working in a boarding school, and stated a number of principles:
There must be a broad approach to liability.
Vicarious liability will not attach if the act is totally unconnected with the employment.
The mere opportunity to commit the act is not enough to impose vicarious liability and the test of
close connection should be applied
Employers may be vicariously liable where they have forbidden the act so long as it is sufficiently
connected to the employement.
The present case may be proximate enough to Richard’s work such that vicarious liability may be
imposed, if a tortious act is established by John.
The alternative is to attempt to hold the employer directly liable. For psychological injury in a
workplace generally, a degree of foreseeability needs to be established such that it is reasonable to
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impose liability. In the Irish context, McGrath v Trintech (2004) established the right of workers to sue
for psychological damage caused by stress. The Plaintiff worked in the IT sector and claimed
psychiatric injury as a result of stress at work. While the Court dismissed the Plaintiff’s claim, it
affirmed the decision of the UK Court of Appeal in Hatton v Sutherland (2002) and concluded that
there were no obvious signs of the Plaintiff’s vulnerability for a period of time and, when signs of
illness developed, the Defendant took steps to deal with the problem. The Court concluded that the
risk of psychiatric illness developing was not foreseeable in the circumstances and the Defendant
had acted reasonably. There have also been a number of recent decisions which deal with the issue
of an employee suffering an injury as a result of bullying or harassment at work.
One case where the employer was directly liable is Quigley v Complex Tooling Limited (2005). The
Plaintiff claimed he had suffered mental distress as a result of bullying and harassment by other
employees. He complained to the employer but nothing was done about the problem. The Court
concluded that the Defendant had breached its duty to provide a safe place of employment. On the
facts the Court was satisfied that the Defendant had breached the standard of the reasonable
employer in the circumstances and had caused the Plaintiff’s injury.
The present case would seem to involve a complaint regarding a safe place of employment. The
difficulty that John may face evidentially however, is that if there was no forewarning of the incident
complained of, the employer’s may avoid liability. The issue is not entirely clear however, and
employers have been held liable for actions of other employees which may not have been
foreseeable. In Lynch v Binnacle Ltd tla Cavan Co-Op Mart [2011] IESC 8. Fennelly J held that a
safe system of work had become unsafe when two drovers absented themselves from the sales ring
area of a mart, thus exposing their now lone work colleague, the plaintiff, to danger from being
injured by a bullock. Fennelly J considered that the plaintiff should succeed either through the route
of vicarious liability or that of a non- delegable duty of care. As to the latter, Fennelly J observed that,
in so far as the otherwise safe system of work was not in operation on the day of the accident, the
employer bears primary responsibility'.
In conclusion, John has a stateable case for recovery as against his employer either on the basis of
the tort of intentional infliction of psychiatric injury through vicarious liability, or directly on the basis of
the non-delegable obligation to provide a safe place of work/employment. There are however
potential barriers to recovery in each option.
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Question Four
Eddie was delighted with his new car. It was his first brand new car and everyone thought it was so
nice, filled with all sorts of gadgets and new technologies. One of the best features were the safety
monitors which provided a warning on a variety of safety issues, including tyre pressure, brake pad
wear etc…..
Eddie had driven about 3,000 km when the brake pad wear light came on. It was a yellow light which
Eddie assumed meant that it was not urgent but could be dealt with at the next service. After all, he
reasoned, serious issues have a red warning light. He was talking to some of his friends and they all
said that it was probably a malfunctioning warning light but to be on the safe side he should have the
dealer look at it. Unfortunately Eddie was unable to do that until the following week as he had prior
work commitments. However, the next day, when Eddie had to stop in an emergency, the brakes did
not perform correctly and he was forced to swerve into a wall, resulting in the car being written off
and Eddie sustained several injuries.
The manufacturer of the car has informed Eddie that the wear on the brake pads was not because
they were defective but arose from his style of driving and further that it was his responsibility to read
the car manual which stated that if any brake warning light of whatever colour came on, the operator
should stop driving it immediately and call for assistance.
Advise Eddie of he has any claim in tort against the manufacturer for what he considers to be
defective brakes.
Answer Four
The manufacturers have a potential liability in tort under the ordinary principles of negligence or
alternatively under the Defective Products Act 1991 (“the Act”).
Defective Products Act 1991
Section 2 of the Act places strict liability on a producer for damage caused wholly or partly by a
defect in its product, although there are a number of defences contained within the Act which The
manufacturer may choose to avail of. A “producer” is widely defined by section 2 and includes a
manufacturer who produces a finished product, which would include The manufacturer. A “product”
is also widely defined, as including all moveable, saleable goods that have been industrially
processed. It is clear that the vehicle would come within this definition. The “defect” in the product is
defined by section 5 as being “where it fails to provide the safety which a person is entitled to expect,
taking all the circumstances into account.” These circumstances include the presentation of the
product, the use to which it could reasonably be put, and the time when the product was put into
circulation. The “damage” caused by the defective product is defined by section 1 as including death,
personal or mental impairment and property damage so long as the property is not the product itself.
While Eddie is seeking to recover for his injuries, the inability to claim from the manufacturer for the
car itself may inform his choice of remedy.
It is clear that The manufacturer would come within the application of the Act, and that the type of
damage suffered (damage to the other vehicles) is covered under the Act. The significant issue
however is whether the warning light being a counter-intuitive colour could be considered to itself be
a defect within the meaning of the Act. It clearly did not provide the safety that Eddie expected of the
vehicle, but the issue will be whether the court considers this to be a reasonable expectation in all of
the circumstances – including the fact that he did not read the manual. The manufacturer may seek
to show that the “circumstances” were such that the instructions were sufficiently clear, and that
there was sufficient information about the warning light. It would fall to the court to determine whether
the instructions and warnings were sufficient in circumstances, as Eddie will emphasise that the
warning light is different to the industry standard.
The onus is on Eddie to prove the above ingredients of liability. It would seem that Eddie would have
an unpredictable case against the manufacturer to attach strict liability to it under the Act, however,
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should he fail to establish the requisite burden of proof, The manufacturer may yet be liable in
negligence.
Negligence
In order for the manufacturer to be liable in negligence, Eddie would have to show that they
breached a duty of care to him, and that such breach caused him damage and injury. It should be
relatively easy for Eddie to establish that the manufacturer owed him a duty of care on the basis of
Donoghue v Stevenson and the concept of “the ultimate consumer”, which was applied to a
manufacturer in Kirby v Burke & Holloway. The standard of care of manufacturers will depend largely
on the product and the courts will generally try to balance the probability of the accident and gravity
of the injury against the social utility of the product and the cost/burden of eliminating the risk.
The possibility of the warning light being misunderstood was perhaps foreseeable to the
manufacturer when they produced the vehicle because it was different to the industry standard, and
they did make efforts to set out how it works in their instruction manual. The question for the court is
whether this was sufficient having regard to the understanding of a reasonable user of their product
and the enquiries that a reasonable person would make to establish the meaning of these warnings,
if they did not understand them. The gravity of the injury will also be a factor for the court, and the
facts of the present case would at first glance appear to disclose a risk of reasonably significant
injury. In this context it may be said that what the court is considering is whether the colour of the
warning light is negligent in the circumstances, and while it may be a very similar question in
practical terms, it is a separate issue as to whether a breach of their duty to warn as a particular form
of negligence was also present – in particular by reason of them not drawing very specific attention
to this variance from the industry standard.
A duty to warn has been found in some cases, primarily involving the absence of warning labels on
clothing. This duty was established in O’Byrne v Gloucester where the court found the manufacturer
liable for failing to attach a flammability warning label on a skirt which then caught fire. It has been
found in Rodgers v Adams Children Wear that the inclusion of such a warning label is sufficient
warning. The manufacturer did attempt to warn Eddie of the significance of the light, but this was in
their information booklet, which it may be argued by Eddie, would be unusual for a driver to read
unless there was a specific reason to do so.
Conclusion
In relation to the Act, Eddie faces a difficulty in proving that warning light failed to provide the safety
which a person is entitled to expect, taking all the circumstances into account, and it is difficult to
predict if the Court would agree with him that he was entitled to the expectation he had. The common
law also provides an opportunity for Eddie to recover, and it has the benefit of directly engaging the
question of whether the warnings were sufficient. Overall, it does appear to be a case which may
turn on the Court’s view of the facts and the relative blameworthiness of the parties.
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Question Five
The principles of quantification of damages in the law of tort are little but a fig leaf attempting to
conceal that damages are nothing more than a game of roulette for the plaintiff. Critically discuss this
statement with reference to decided cases.
Answer Five
The practice in this jurisdiction is to make one award of damages in respect of all past, current, or
potential future loss suffered as a result of a tort. The primary aim of an award of damages is to put
the plaintiff in the position he or she would have been in if the tort in question had not occurred. A
secondary purpose of damages can be to act as a deterrent or as a public censure. The primary
headings under which damages may be awarded in appropriate circumstances are: compensatory,
aggravated, exemplary or punitive, nominal, and contemptuous. An account of each type will be set
out hereunder by way of background facts to the proposition given:
Compensatory Damages
Compensatory damages can either be for pecuniary or non-pecuniary loss. The former is often
referred to as special damages, and the latter, as general damages.
(i) Pecuniary Losses
Pecuniary losses are those quantifiable out of pocket expenses such as loss of earnings, or medical
expenses and have been held to include the cost of domestic help or the cost of financial advice in
appropriate circumstances.
Notwithstanding that these are “quantifiable” in nature, the Courts have experienced difficulties in
precisely how these amounts should be calculated. The case of Reddy v Bates [1984] IR 197
considered whether the calculation of loss of future earnings should include times of unemployment.
The cases of Jeffer v Cahill (unreported, Supreme Court, 29 July 1999) and O’Donoghue v Deecan
& Sons (unreported, High Court, 21 May 1996) both concerned evidence as to the claim that the
Plaintiffs were rendered unfit for any form of future employment by virtue of their injuries.
Complications also arose in relation to medical expenses owing to the availability of free medical
care generally, and the operation of section 2 (1) of the Health (Amendment) Act 1986 which
requires health boards to charge directly where the patient has received or is entitled to receive
damages for their injuries. Owing to a judgment of Kinlen J in O’Rourke v Scott (1993) a notional
amount of £100 was charged, but the Supreme Court subsequently found in Crilly v T & J Farrington
(2001) that a hospital should charge the averaged daily cost of bed and board in the specific hospital
and in that case, it was considerably more than the amount payable by virtue of the ‘Kinlen Order’.
(ii) Non-pecuniary Losses
Non-pecuniary loss refer to personal losses such as pain and suffering, loss of amenity and loss of
expectation of life. These reflect both past and future loss and can be very difficult for a court to
quantify particularly in cases concerning extreme impairment.
Sinnott v Quinnsworth [1983] ILR 523 concerned a young man who was rendered quadriplegic,
wherein the High Court reduced damages from £800000 to £150000 on appeal and stated that
unless there are particular circumstances which suggest otherwise, general damages should not
exceed a sum in the region of £150000 and that a court should resist awarding damages which are
so high as to constitute a punishment for the infliction of the injury rather than a reasonable if
imperfect attempt to compensate the injured.
In Kealy v Minister for Health [1999] 2 IR 456 however the Court distinguished Sinnott on the bases
that large sums had already been awarded for loss of earnings and future expences, and awarded
£250,000 to a plaintiff who had contracted Hepatitits C as a result of the negligence of the
Defendant. This approach was mirrored by the Supreme Court in in Gough v Neary [2004].
Cases in which the Plaintiff’s injuries have rendered the Plaintiff unaware of his loss and injuries
have met with differing approaches. In Cook v Walsh [1984] IR 208 – it was held that damages
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should be more moderate. Hughes v Flaherty (1996) however is a case where the court refused to
make such a deduction and reserving it for “extreme cases.
Non-pecuniary damages can be awarded for loss of expectation of life but the courts have tended to
favour awarding only a moderate sum for such loss. In Philip v Ryan (2004) the Court on appeal held
that damages should have been awarded for possible loss of life expectancy due to loss of an
opportunity to avail of treatment earlier owing to the negligence of the defendants. The test applied
was whether there was an increased risk of shorter life expectancy and the test of the trial judge that
damages for loss of life expectancy depended on proof that life would probably not possibly have
been prolonged, was rejected.
Aggravated Damages
Aggravated damages reflect any additional and exceptional harm as a result of either the manner in
which the harm was inflicted or the defendant’s behaviour towards the Plaintiff after the initial tort.
In Daly v Mulhearn [2005] IEHC 140, aggravated damages were awarded in circumstances where it
was accepted that the Defendant accepted responsibility at the scene of an accident and then
subsequently accused the Plaintiff of fabricating her account and of being drunk.
In Philip v Ryan (2004) the court held that the Plaintiff was entitled to aggravated damages by reason
of the behaviour of the Defendants in their preparation and
presentation of the case and confirmed that aggravated damages could be awarded in cases of
negligence. The first named Defendant had forged documents to make it appear that he had a
stronger defence than he did in fact, and his legal advisors were also criticised for not informing the
Plaintiff’s solicitors of the true facts. This caused the Plaintiff to believe theirs was a strong defence
to the action and this caused the Plaintiff to suffer additional emotional stress and anxiety.
Exemplary or Punitive Damages
Exemplary and punitive damages are awarded in exceptional cases, chiefly to make an example of
the Defendant and to deter others from engaging in similar anti-social conduct.
In Rooks v Barnard [1964] AC1229 award of exemplary damages was restricted to cases of
‘oppressive, arbitrary or unconstitutional action by the servant of Government but they can also be
awarded in cases where the Defendant’s conduct was calculated to make a profit in excess of the
compensation normally recoverable by the Plaintiff, and cases for which such an award is expressly
authorised by statute.
These categories have been rejected in other jurisdictions and Irish judges have expressly and
implicitly doubted the merits of the limitations in Rookes on many occasions. In Conway v INTO
[1988] ILRM 472 the court finally rejected the
Rooks categories and the Court held that exemplary damages should be measured to meet the
wrongdoing rather than to benefit the wronged. The Supreme Court stated that these damages are
to mark the courts disapproval of the conduct and the Court should publicly be seen to have
punished the defendant. The objective is to punish wrongdoers for outrageous conduct and deter
others and the court will consider the manner in which a wrong is committed, conduct of the
wrongdoers after the wrong and in the defence. It was held that it was a conscious and deliberate act
to make gain without any thought as to who would suffer.
In Crawford v Keane an award of £7500 was made on the basis of Defendant’s behaviour after the
Tort had been committed. The Defendant had given deliberate false testimony throughout the
hearing. The Courts have consistently maintained that exemplary damages may be awarded only in
very exceptional cases and the awards have been low. However in Crofter properties limited v
Genport Limited [2002]
£250000 exemplary damages were awarded on the basis that deliberate and malicious phone calls
had been made and were intended to injure the Plaintiff’s in their business. The high sum was
awarded on the basis that the behaviour had been malicious and deliberate; the person who had
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made the calls had committed perjury; and it was an extremely bad case and one in which there
must be some very substantial penalty imposed on the Plaintiff.
Nominal Damages
Nominal damages represent a token amount of damages awarded by the courts where the Plaintiff
has established a wrong but suffered no real harm. It reflects the view that there was a valid claim
and that it was not frivolous, notwithstanding that the damage done is minor in monetary terms. (e.g.
trespass / boundary disputes and torts which are actionable per se).
Contemptuous Damages
Where there is a technical wrong but no sufficient reason for bringing litigation. It is where the court
is of the view that there has been no material harm done to the Plaintiff or no significant interest to
protect, and the Plaintiff will generally not be awarded costs.
Analysis
The proposition given indicates that the principles of quantification of damages in the law of tort are
little but a fig leaf attempting to conceal that damages are nothing more than a game of roulette for
the plaintiff. This would suggest either that the law is unprincipled or that the application of the
principles may be uncertain. In light of the foregoing, it seems clear that the area is not unprincipled,
and so the only question remaining relates to the extent to which an outcome can be predicted. This
will depend largely on the facts of each case and how a Court or Jury would process those facts to
arrive at a conclusion on quantum. While this may prove to be unpredictable in practice, it may be
fair to say that the issue then is not the lack of principles, but the variance of human attitudes in
applying those principles. Even accepting this to be the case, the criticism cannot be laid against the
established rules, and at best can be said only to be capable of being made against those who
attempt to apply them on the facts of any given case.
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Question Six
Increasing concerns over the possibility of a major security event at third level colleges has forced
many colleges to rethink their security arrangements. With that in mind, Dream College has hired
Blackstaff, a private security firm, to provide emergency response services in the event of any
incident on campus. Part of the agreement requires Blackstaff to conduct continuous training drills
simulating a response to an armed attacker being loose on campus.
These training drills can happen at any time, day or night and on any day of the year as the campus
is always open. The drills are organised by a computer programme which activates a call to
Blackstaff without any prior warning. If Blackstaff’s response time is not within an agreed time period
then they incur penalties. The drills normally consist of 2 security cars, 1 ambulance and 1 fire tender
racing from Blackstaff’s base to the campus and then taking steps to secure the campus.
Aileen lives close to the entrance of Dream College campus and recently has noticed that there are
now several drills a month, at least half of which occur after midnight and involve bright flashing
warning lights, significant noise from the sirens and the follow-on shouting from the security
personnel, couples with what are obviously flash bang grenades being used. Dream College and
Blackstaff have argued that such drills must be as realistic as possible if they are to be effective.
Advise Aileen if she has any action in the law of tort to prevent Dream College from operating these
drills.
Answer Six
Aileen may be able to take an action against in private nuisance.
Private nuisance protects persons from unreasonable interference with rights related to ownership or
occupation of land. Private nuisance has been extended beyond protection of proprietary interests to
enjoyment of personal interests connected with the land.
There are a number of elements to a claim in nuisance:
– Locus Standi
– Conduct for which Defendant is responsible;
– Damage or interference with rights;
– Unreasonableness;
– Causation.
Locus Standi
Hanrahan v Merck Sharpe and Dohme [1988] – held that occupation of the premises is sufficient to
bring a claim for private nuisance in this jurisdiction. This differs from English position – Hunters v
Canary Wharf [1998] but was affirmed in Ireland in the case of Molumby v Kearns [1999]. Molumby v
Kearns concerned gates at an industrial estate, which had been widened resulting in increased traffic
causing noise and dust. Court held that occupation of premises sufficient to bring a claim but came
to compromise and imposed a restriction business including times of operation and number and size
of vehicles accessing the premises at certain times. Aileen would appear to have locus standii by
virtue of her residence in the property, and the issue of whether she is an owner or tenant would not
appear to be determinative.
Conduct for which Defendant is Responsible
Nuisance relates to acts or omissions for which the Defendant is legally responsible. Omissions may
include failure to alleviate natural hazards such as in Leaskey v National Trust [1980] where the
Defendants topsoil had slipped onto Plaintiff’s property causing damage and threatening more. The
Court held that persons in control of property are liable in nuisance for failure to do all that is
reasonable in the circumstances to prevent or minimise the risk of foreseeable damage which they
knew or ought to have known encroaches or is about to encroach the neighbouring land.
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Nuisance may also arise for a nuisance originally created by a third party if the Defendant knew or
ought to have known about the nuisance as this is an omission to alleviate a risk created by a third
party. In Sedliegh-Denfield v O’Callaghan [1940], a local authority employee installed a drainage
pipe in a ditch adjoining the Defendant’s land in a mistaken belief that they had consented to it. The
pipe became blocked causing flooding on the Plaintiff’s land. The Court held that the Defendant
landowners were liable to the Plaintiff for failing to undo the nuisance originally caused by the local
authority and held that they had failed to take reasonable steps to avert a hazard which was
reasonably foreseeable in the circumstances. In Harrington v Cork City Council [2005] the court
referred to Sedliegh-Denfield and held that the council had not taken all reasonable steps to alleviate
a nuisance and granted an injunction requiring defendants to do so in circumstances where there
was an unauthorised encampment on their land which was resulting in littering and trespassing.
The case of O’ Kane v Campbell (1985) would appear to be of particular relevance to the present
case. This case concerned a 24-hour shop at a junction between a busy thoroughfare and residential
street. The Plaintiff sued for nuisance as a result of customers lingering outside the shop in the early
hours. The Court held that the Defendant was liable for ordinary and natural conduct of people he
attracts to the neighbourhood. In particular, the Court referred to the usual requirement of an
objective test to establish what magnitude of disruption constitutes a nuisance and indicated that the
objective test of reasonableness will be tempered by some elements of subjectivity and, in particular,
the age and circumstances of the Plaintiff. As Lynch J explained in O’Kane v Campbell (1985),
elderly people may sleep more lightly, but “are equally entitled to their night’s sleep”.
It would appear that Dream College is responsible to take reasonable steps to prevent foreseeable
damage in this instance because as well as the cause of the nuisance being within their control with
respect to the noise and lights of the security personnel performing their drills after midnight, so too
is the damage that is reasonably foreseeable.
Damage or interference
The Plaintiff must prove the form of damage in an action for nuisance but in some exceptional
circumstances damage does not have to be shown, but can be presumed or inferred. In McGrane v
Louth CC [1993] the Plaintiff sought an injunction for apprehended damage but the Court refused the
injunction. Material damage includes damage to land and property including chattels. In St Helen’s
Smelting Co v Tipping [1865] the Plaintiff recovered for damage to shrubs and trees caused by
fumes, and in Halsey v Esso Co. Ltd [1961] the Court held that damage to the Plaintiff’s laundry
which was hanging outside the premises was sufficient material damage to chattels. In Patterson v
Murphy the Plaintiff recovered damages caused by the Defendant’s blasting operation, which
cracked the Plaintiff’s windows, internal walls and boundary wall and in Hanrahan v Merck Sharp and
Dohme [1988] the Plaintiff’s recovered for damage to their cattle caused by toxic emissions from the
Defendant’s neighbouring plant. In this case the Plaintiff’s also recovered for injury to their health as
occupiers of the property. Also, as outlined above, in O’ Kane v Campbell (1985), the Plaintiff sued
for nuisance as a result of customers lingering outside the shop in the early hours.
The damage in terms of the excessive lights, and noise would at least be actionable.
Unreasonableness
In all other nuisance cases apart from material damage (where liability is practically strict in nature),
the court assesses the impact of the Defendant’s activities on the Plaintiff to determine if it is
unreasonable. This can be contrasted with negligence law, which focuses on the unreasonableness
of the Defendant’s conduct before and during the event. The justification for the difference in
approach is due to the different aims of the torts and the underlying concern of nuisance law, which
is to protect rights to enjoyment of private property. There are a number of factors which will
influence the Court in assessing whether the impact is unreasonable. The Court will consider the
magnitude of the damage, the nature of the locality, and the Defendant’s motives or the social utility
of the Defendant’s actions.
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The magnitude of the harm concerns the intensity, duration and frequency of the nuisance. In
Patterson v Murphy the Court referred to the brief but intensive blasting operations and held that the
conduct amounted to nuisance. The activity need not be continuous, but may be intermittent and
amount to an unreasonable impact. In Halpin v Tara Mines [1976], the Court commented that
intermittent noises which are irregular and at unpredictable intervals and which are unusual in the
locality may be more disagreeable than other noises which form part of the norm such as traffic. The
Court stated that unusual noises may instil apprehension and anxiety in the mind of the listener
whereas other more familiar noises may be distinctive but disregarded. The magnitude of the harm
will be assessed according to an objective standard. The Plaintiff is expected to exhibit the fortitude
ordinarily expected amongst members of society and the Courts will not generally vindicate the
Plaintiff’s abnormal sensitivity to the nuisance. However, the objective test of reasonableness will be
tempered by some elements of subjectivity and, in particular, the age and circumstances of the
Plaintiff. As Lynch J explained in O’Kane v Campbell (1985), elderly people may sleep more lightly,
but “are equally entitled to their night’s sleep”.
The nature of the exact locality may affect the analysis of the reasonableness of the impact. The law
must balance competing interests between use by the Plaintiff and Defendant of their respective
premises. The Court commented in Cavey v Ledbitter (1863)that the affairs of life in a dense
neighbourhood cannot be carried out without mutual sacrifices of comfort; and that, in all actions for
discomfort, the law must regard the principle of mutual adjustment. Clearly there will be different
levels of noise and intrusion in urban and rural areas and residential/commercial areas. The Courts
tend to engage in a detailed analysis and take account of the very specific locality where disturbance
occurs. In O’Kane v Campbell the Court stated that where a 24-hour shop is positioned adjacent to a
residential street, though also close to a busy thoroughfare, the part-residential nature of the locality
may still be relevant. In the case of Molumby v Kearns (1999) the Court had regard to both the
residential and industrial aspects of the relevant neighbourhood and reached a compromise to allow
the industrial estate to operate without excessive nuisance.
Locaility was recently addressed in Lanigan v Barry (2008). The defendants operated a motor racing
track a kilometre from the plaintiff’s stud farm. The motor track had expanded over the years and
was causing severe distress to the plaintiffs. The plaintiffs succeeded in their nuisance claim and the
court had regard to the history and character of the area before the race track had commenced.
The social utility of the Defendant’s activity may also be relevant to assessing whether the impact is
unreasonable and therefore whether he created a nuisance. In Bellew v Cement Ltd (1948), the
Plaintiffs sought an injunction against quarry works but the Court refused the injunction and referred
to the facts that the materials were needed for urgent construction work throughout the county.
In the present case, the magnitude of the damage, while not considerable, is appreciable, and
occurs at anti-social hours. It would thus appear to be actionable. The nature of the locality appears
to be residential, but the proximity to the college will also inform the nature of the area. Dream
College’s motives seem somewhat justifiable from the perspective of security concerns, but must be
weighted against Aileen’s entitlement to the enjoyment of her property, and the times at which the
occur appear to be particularly problematic. The social utility of Dream College’s actions with a view
to protecting students may be a consideration for the Court, and while the motivation is apparently
socially beneficial, it may not be sufficiently beneficial to allow Dream College to insist that this
particular type of drill occur at anti-social hours.
Causation
A Plaintiff must prove the causal link in the normal way, but causation does not appear to be capable
of being contested in this case.
Remedies
Aileen should be aware of the types of remedies open to her to seek. It seems that it may be difficult
to recover pure economic loss in private nuisance cases. This form of recovery has traditionally been
refused by the Courts and it was not referred to in the Glencar decision as one of the recognised
exceptions allowing recovery for pure economic loss. Her loss does not appear to be economic in
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nature in any event however, and a useful aspect of an action in nuisance is the availability of
injunctive relief. This is a discretionary remedy and may be awarded in addition to or instead of
damages. The normal Campus Oil rules will apply. If she were to seek an injunction, the Court may
be inclined to set particular time limits or noise-limits on the security drills.
Conclusion
Aileen would appear to have a reasonably substantial basis upon which a case in private nuisance
may be made out.
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Question Seven
Critically discuss the requirement for publication in the law of defamation. To what extent do the rules
on publication remain relevant in an era of mass media and in particular online publication where the
publication may be unintended?
Answer Seven
Publication means communicating the defamatory comment to another person. The definition of
publication is addressed in the 2009 Act in section 2 by reference to the definition of the word
“statement” which is defined as one made orally or in writing; by visual images, sounds, gestures and
any other method of signifying meaning; by broadcast on radio or television; published on the
internet; or by way of an electronic communication. Tansey v. Gill [2012] IEHC 42 was a case in
which the plaintiff who was a solicitor, sought injunctive relief against the operators of a website
entitled “rate-your-solicitor.com.” The site was described in the decision of Peart J. as one which has
become "a happy hunting ground for unscrupulous defamers". He described how it provides a facility
whereby persons who have a grievance against a solicitor with whose services they are dissatisfied
for whatever reason can publish that grievance and say whatever they wish about that solicitor, even
anonymously or under a pseudonym, thereby making it almost impossible for any solicitor who feels
defamed from seeking any redress against them. The operator of the website contested this
application, arguing that the allegations on the site were true, and it happened that the operator
himself had a personal grievance against the plaintiff in this case.
Peart J. held that the defendant’s argument had “no prospect of success” and granted a series of
reliefs which included, essentially, an order pursuant to s. 33 of the Defamation Act 2009 prohibiting
the publication or further publication of the defamatory material complained of; an injunction requiring
the defendants an order requiring the defendants to terminate the operation of the website upon
which defamatory material of and concerning the plaintiff is published; and an order directing the
defendants to deliver the names and addresses of all persons involved and concerned in the
publication of defamatory material of and concerning the plaintiff, including the author of such
material and all persons involved in maintaining the website upon which the material is hosted. The
Court noted that in older times before the arrival of the internet, any solicitor who was defamed in a
newspaper or in any other public way could sue for defamation, and in an appropriate case could be
granted an interlocutory injunction pending any trial of the action, as occurred in Reynolds v.
Malocco [1999] 2 I.R. 203. The owners of such a newspaper or other media outlet would have been
readily identifiable as would the author. Such a remedy was easily availed of as those to be named
as defendant in any such action could be readily identified and sued for damages. The Court said
that life has changed in that regard since the arrival of the internet, as this case demonstrates
clearly, and whatever judicial hesitation has existed in the matter of granting an interlocutory
injunction to restrain publication pending trial should be eased in order to provide an effective
remedy for any person in this State who is subjected to what was described as “unscrupulous,
unbridled, scurrilous and defamatory material” published on a website which can, without any
editorial control by the host of the website, seriously damage him or her either in his or her private or
business life. The Court expressed the view that the ready availability of such a means of defaming a
person by any person who for any reason wishes to do so has such a capacity to cause insult and
immediate and permanent damage to reputation means that the courts should more readily move to
restrain such activity at an interlocutory stage of the proceedings in these types of proceedings,
particularly where an award of damages is considered likely to provide an empty remedy (the
primary defendant in this case was bankrupt).
The Court suggested that the internet has facilitated an inexpensive, easy, and instantaneous means
whereby unscrupulous persons or ill motivated malcontents may give vent to their anger and their
perceived grievances against any person, where the allegations are patently untrue, or where no
right thinking person would consider them to be reasonable or justified. By such means, anything can
be said publicly about any person, and about any aspect of their life whether private or public, with
relative impunity, and anonymously, whereby reputations can be instantly and permanently
damaged, and where serious distress and damage may be caused to both the target, children and
adults alike, leading in extreme cases to suicide. So serious is the mischief so easily achieved that in
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the Court’s the Oireachtas should be asked to consider the creation of an appropriate offence under
criminal law, with a penalty upon conviction sufficient to act as a real deterrent to the perpetrator.
The Court suggested that the civil remedies currently available have been recently demonstrated to
be an inadequate means of prevention and redress.
The case itself dealt with an operator who did indeed personally intend to make remarks about the
plaintiff which were defamatory, but the website itself permitted others to similarly defame members
of the legal profession as well. In that sense the publication at issue was not so much unintended as
it was undirected or indirect.
It was a different case in McKeogh v Facebook& Ors. [2012] IEHC 95, a student sought and
obtained an injunction against a number of internet service providers (ISPs) after a Dublin taxi driver
posted a video to Youtube.com showing a young man apparently skipping from the cab without
paying the fare. This video was then also appeared on other platforms leading to Facebook and
Google also being named as defendants. A number of people posted comments on the video,
wrongly suggesting that it showed the plaintiff. In court, Eoin McKeogh was able to establish that it
could not have been him, as he was in Japan at the time in November 2011. The Court stated that
the placing of the video on YouTube by the taxi driver did not of itself defame the plaintiff, though it
certainly created a risk that a wrong identification might be made by somebody else. It was the
wrong naming of the plaintiff by the person travelling under the pseudonym 'Daithii4U' which has
done the damage to the plaintiff's reputation.
The reported High Court, case presided over by Peart J., actually concerned a failed attempt to bring
an action against news agencies who reported the initial stages of the case, whom he alleged in
some cases failed to report the denial by the plaintiff that the taxi fare evader is him and failed to
report the Court's conclusion that it was satisfied by the plaintiff's evidence that he was not even in
this country on the relevant date of 13th November 2011 and so was not and could not be the man
shown exiting the taxi on that date. The court acknowledged Mr McKeogh’s difficulties, but stated it
didn’t have a ‘magic wand’ and refused him a further injunction preventing newspapers from naming
him in their court reports. Only in exceptional cases could justice be administered other than in
public, the judge said, and this was not such a case. In the substantive case, injunctions were
granted against a number of websites restraining them from publishing the video in question, and an
appeal taken by the defendants is before the Supreme Court.
These two recent cases ultimately concern the possibility of untraceable users of a website using it
as a mechanism for defamation. In such cases, it is usually difficult to say with any precision that
such material is “published” by the websites given the fact that their capacity to control the content of
the material posted, is very limited. In this regard it would appear that the matter may require to be
directly addressed by the legislature to set out clear laws for both the owners of websites where such
material may be posted, and those who seek avenues of redress when such publications defame
them.
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Question Eight
Jennifer has just started working as a guest response associate for Plush Hotel. Basically, Jennifer is
responsible for checking that each room in the hotel has been properly cleaned and re-stocked after
a guest has left. As such, she has a master key card which can open any of the room sin the hotel.
It had been the intention of Plush Hotel to provide Jennifer with a one day orientation programme.
Unfortunately Polly, who was supposed to give the orientation, was unable to do so as she went into
premature labour and Plush Hotel asked Jennifer to do the best she could until the orientation could
be rescheduled in two days. Here instructions were: just remember, it is all about satisfying the
needs of the guests. This was Jennifer’s first time in this position and she was anxious to please and
so agreed, even though she was somewhat nervous.
As Jennifer was inspecting one of the rooms, a woman came in saying she had accidentally locked
herself out of her room and wondered if Jennifer could open it up for her. Eager to please, Jennifer
did so. As soon as she opened the door, the woman hit Jennifer over the head, knocking her
unconscious. When Jennifer came to, she discovered that the room had been robbed. Plush Hotel
claim that Jennifer should never have opened the door for the woman and should have referred the
woman to the front desk where her identity could have been confirmed. They further claim that this
has been standard operating procedure ever since a number of such instances had occurred about
five years ago.
Advise Jennifer if she has any action in tort against Plush Hotel for the injuries she suffered.
Answer Eight
Introduction
An employer may be liable for the breach of a duty owed by him to an employee, and this may arise
by virtue of contract, by statute, or based on negligence principles and the common law.
Duty to provide a safe system of work
The employer’s duty is to provide a reasonably safe system of work, which encompasses adequate
training, supervision and method of operation, case in design and implementation and operation of
work practices.
In the case of Walsh v Securicor Ltd [1993], the Plaintiff, a courier, was ambushed by armed raiders.
The Court held that the provision of a police escort was not sufficient due to the high-risk job and the
Defendant should have changed the times of the run and was therefore negligent.
In O’Reilly v Iarnroid Eireann [2002] The Supreme Court affirmed HC’s decision that the Defendant
was negligent for condoning the unsafe system of disembarkation of employees from moving trains
despite it not having directed the practice.
Plaintiffs do not have to establish what alternative system of work ought to have been used but
Plaintiff’s often do use experts to give such evidence. There are no clear rules in this regard - Dixon
v Cementation Co Ltd [1960]
It could be argued that Plush Hotel have failed in their duty in providing a safe system of work by not
adequately training Jennifer as to best practice in the situationin which she found herself.
Statutory duties under Safety Health and Welfare at Work Act 2005
Because there are no express provisions excluding a civil action, an employee can bring a civil
action for breach of the Safety Health and Welfare at Work Act 2005. However, case law has proven
that it is difficult for a Plaintiff to succeed to establishing a breach of statutory duty, which has caused
an injury.
In McLoughlin v Corr [2005] the Court held that the means of entry by the burglars, dressed as
Gardai, was so unforeseeable that adherence to the statutory duties would not have prevented the
injury. However, in the present case it would appear that the injuries suffered were reasonably
foreseeable owing to the knowledge of the management of Plush Hotel that this type of robbery had
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occurred in the past, such that a system of work had developed to make employees more safe, and
to prevent theft, which Jennifer had not been informed of.
Reasonable Foreseeability Test & Causation
A defendant will only be held liable for damages which are reasonably foreseeable as arising out of
their negligence and will be fully liable where a foreseeable type of damage occurs, irrespective of
whether the extent of that foreseeable damage. In Egan and Sisk [1986] it was established that that
the type of damage caused must be reasonably foreseeable but not necessarily the scale of the
damage.
Plush Hotel may attempt to plead that the injury caused was not reasonably foreseeable. However
the existence of previous similar issues, would militate against this plea, if the outcome was similar in
those instances. It is not clear from the facts whether it was necessary for the assailant to injure
Jennifer in order to effect their intended theft, and it may be that violence had not formed part of the
previous instances.
Alternatively, Plush Hotels may seek to suggest that had Jennifer followed the usual procedure, this
particular assailant may have resorted to violence in any event in order to effect the theft, and in that
regard it may be suggested that not using the appropriate procedure may not have directly caused
the injury.
Contributory Negligence
Owing to section 34 of the Civil Liability Act, 1961 the award of a plaintiff against a negligent
defendant may be reduced proportionately to the extent to which their own negligence contributed to
the injuries they have suffered. In the present case it is arguable that Jennifer’s actions contributed to
her injuries, but it may be difficult to convince a Court that her actions were negligent by reference to
what a reasonable person might do in similar circumstances.
Conclusion
It would appear that Jennifer would have a strong case against her employer for breach of duty
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Exam Paper - March 2015
Question One
Critically discuss liability in tort for accidental fires, including both at common law and statute.
Answer One
Introduction to Liability for Fire
The liability for damage caused by fire has been altered on many occasions throughout the history of
the common law. The current position is that common law liability survives save where ousted by
specific provisions of statute and I will consider a number of instances of immunity and liability for
fire.
Immunity of Occupiers for Accidental Fire
The common law imposed strict liability on occupiers for damage caused by the spread of fire from
their premises since an occupier was considered the party most likely to be in a position to control
the land. This was modified in 1715 by an Act which provided that no action lay against a person in
whose ‘house or chamber’ the fire had “accidentally” started and subsequently the Accidental Fires
Act 1943 was introduced which protects occupiers of all buildings and land of another person from
liability for damage caused by fire “accidentally occurring” thereon.
Where the case falls under the 1943 Act, immunity extends beyond property damage to personal
injury as referred to in Woods v O’Connor (1958).
The phrase “buildings and land of another person” suggests that the 1943 Act exempts non-owning
occupiers from legal liability on foot of fire damage where that person did not act negligently or
intentionally in causing the damage brought about by the fire. The case-law establishes that
reference to fires started ‘accidentally’ is intended to limit the immunity to non-intentional and nonnegligent cases. Thus, ordinary liability in trespass or negligence for intentional or negligent fire
damage is unaffected by the 1943 Act.
In Ramblers Way Ltd v. Mr Middleton Garden Shop Ltd (2012), the plaintiff's premises adjoined the
defendant's premises. A fire broke out at the defendant's premises which caused smoke and water
damage to the plaintiff's premises. The plaintiff alleged the defendant had been negligent, and the
Defendant claimed it was accidental within the meaning of section 1 of the Accidental Fires Act 1943.
The High Court of Ireland held that the likely cause of the fire was a heater that had been left on over
a number of days. The Defendant claimed the heater was off, but the Court found that the instruction
manual and the warnings therein had been ignored by the Defendant. Thus the fire could not be said
to have been accidental, and the defendant was liable to the plaintiff for the sum of damages agreed.
Liability of Occupiers in Negligence
A Defendant may be negligent in starting the fire, failing to control the fire, or failing to ensure that
the fire was fully extinguished.
In McKenzie v O’Neill & Roe Ltd (1977) , a director of the Defendant company had made a bonfire to
burn waste paper on the slopes of the Dublin mountains. The Court held he was negligent in
presuming that he had extinguished the fire in windy dry conditions which made it far more likely that
the fire would continue to smoulder and cause neighbouring gorse and shrubs to ignite.
Personal Liability
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A Defendant will be personally liable for his own negligent acts or omissions in causing or failing to
avert/minimise fire damage. This may arise even where the fire was started by a stranger or by
natural causes and an individual will be judged according to ordinary principles and standards of
reasonableness.
Vicarious Liability
The occupier may be vicariously liable for the negligence of non-strangers in starting fire on their
premises which may include family members, employees (acting in the course of employment)
invitees, and licensees. Where the occupier is also an employer using the premises, the courts
prefer to determine his liability according to principles of employers’ liability. The occupier may not be
liable for acts by trespassers and in Smith v Littlewoods Organization Ltd (1987) there was no liability
imposed on the Defendant where the fire in the Defendant’s derelict cinema was ignited by intruding
trespassers.
Liability to Rescuers
Rescuers who sustain damage in a fire may recover against the person legally responsible for the
fire according to general principles of negligence. This was first decided in D’Urso v Samson (1939)
where the defences of voluntary assumption of risk and novus actus interveniens were rejected. This
principle was affirmed by the SC in Phillips v Durgan (1991) where a husband was allowed recover
for injuries sustained whilst trying to assist his wife after the Defendant’s cooker went on fire.
Recovery has also been recognised for professional fire-fighters as referred to in Ogwo v Taylor
(1987). If the rescuer displayed a reckless disregard for his own safety, it is likely that the rescuer’s
contribution to injury will be assessed as a matter of contributory negligence.
Liability of Occupiers under the Occupiers’ Liability Act 1995
Where the injured party is an “entrant” on the land, liability may be established under the Occupiers
Liability Act 1995 upon proof, in cases where the Plaintiff is a visitor, that the Defendant acted
unreasonably or, where the Plaintiff is a recreational user or trespasser, that he acted intentionally or
with reckless disregard.
Liability under Fire Service Acts 1981
The Fire Services Act 1981 was enacted in response to the ‘Stardust Tragedy’ in which 48 people
lost their lives after a fire broke out in the Stardust nightclub. The Act is chiefly directed at fire safety
standards and the creation of public Fire Authorities. The Act governs premises where
entertainment, accommodation, treatment, teaching etc are carried out. Section 18(2) provides that
those in control of these premises must “take all reasonable measures to guard against the outbreak
of fire on such premises and to ensure as far as is reasonably practicable the safety of persons on
the premises in the event of an outbreak of fire.”
S 18(3) provides that those in control of these premises must “ensure that as far as is reasonably
practicable every person on the premises is not exposed to danger from fire as a consequence of
any act or omission of his.” It is not certain if s 18 is intended to ground specific civil causes of action
where so breached. The Act is clearly aimed at the public and refers to the creation of public fire
authorities and provides a criminal sanction in the event of breach which would suggest that no civil
action lies.
Immunity of Public Authorities under Fire Service Act
Section 36 purports to exempt public authorities from civil liability arising from failure to comply with
the functions entrusted to them under the Act
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The extent of the s 36 immunity is still unknown. There are two possible interpretations. First, the
authorities are immune from all civil proceedings taken against them for injuries caused by fire.
Second, more preferably, s 36 merely declares that no provision of the Act may be taken by itself to
ground civil proceedings, but that aside from this, all the usual private remedies remain intact.
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Question Two
Dominic had recently bought the only pub in a small rural village. Dominic was coming close to
retiring age and had decided that he wanted to spend his last remaining days in a peaceful setting
earning a nice living among a small community that he could come to know.
For the first few months, all went well and Dominic became known around the village and was well
liked. One morning however, as he was opening up his pub, he noticed a handwritten page pinned to
the door. On it had been written a string of invective language describing Dominic in foul language
and which included the following sentence: “You are a sneaky informant, turning your buddies into
the police for your own benefit”. Dominic tore the letter up, confident that nobody had seen it.
However, the next day a similar letter with similar abuse and allegations was again pinned to the
door of the pub. Dominic again tore it up and this continued for three days.
Dominic suspected that one of his customers, Gerry, was the source of these pages. Late one
evening, when the pub was full, Dominic called for everyone’s attention and slamming one of the
pages down in front of Gerry said in a loud voice:” I have never informed on anyone in my life, you
guttersnipe. And if I ever did it would be in the public interest and not for my benefit!”! Gerry got up,
shouted “I stand by what I wrote!”, he then left the pub and Dominic went behind the bar, leaving the
page on the table for all to see. Many of the customers subsequently read the document.
Dominic noticed in the weeks that followed business dropped off considerably and he believes it was
Gerry’s defamatory remarks that has caused this downturn. He believes that Gerry should
compensate him for the things that he been writing about Dominic.
Advise Dominic if he has any action in tort against Gerry.
Answer Two
The potential liability that Gerry may have to Dominic in tort law as a result of the facts outlined
would fall within the tort of defamation. Under the former rules in relation to defamation the form of
the defamation in question (should the other criteria be met) would have been categorized as both
“libel” and “slander”. Libel was the more “permanent” form (even a single live broadcast would have
fallen into this category) and refers to publishing a statement. Gerry’s writing of the note which was
left on the pub counter by Dominic would have fallen into this category. Slander was the oral or
“impermanent” form of defamation, and so Gerry’s statement in front of the other customers that he
stood over what he said, would have been in that category. Under the Defamation Act 2009 which
came into force on 1st January 2010, the distinction has been dispensed with in section 6(1), and the
same term, “defamation” will apply to both forms. For that reason, both statements may be
considered together as an act of defamation to an extent, however, there may be slightly different
considerations applicable given that it was in fact Dominic who left the note on the counter such that
it gave rise to it being read by other customers. Previously “libel” but not “slander” would have been
actionable per se, and specific damage need not have been shown as it will be assumed that if the
elements of defamation are made out, that damage to reputation is presumed. Pursuant to section
6(5) of the 2009 Act, no special damage need be shown to render defamation actionable.
The elements of defamation are:
Publication
Identification
Defamatory effect
In this respect the 2009 Act reflects the traditional tests and defines the tort accordingly at section 6
subsections (2) and (3). It is now stated that the tort of defamation consists of the publication, by any
means, of a defamatory statement concerning a person to one or more than one person (other than
the first-mentioned person), and “defamation” shall be construed accordingly. A defamatory
statement concerns a person if it could reasonably be understood as referring to him or her.
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Publication
The definition of “statement” in section 1 of the 2009 Act is one made orally or in writing; visual
images, sounds, gestures and any other method of signifying meaning; a statement— (i) broadcast
on the radio or television, or (ii) published on the internet, and; an electronic communication;
The first possible publication of the alleged defamatory material occurred initially by way of a hand
written note pinned to the door of Dominic’s pub. There is no evidence that anyone other than
Dominic was aware of this note, and so it would not be considered publication for that reason.
The second possible publication was by way of a similar method except that it was seen by other
customers after it was left by Dominic on a table in the pub in circumstances in which he accused
Gerry of writing the note, and Gerry apparently admitted that he was the author by saying, “I stand by
what I wrote.” The difficulty from the point of view of publication however, is that it was Dominic who
left the note for the customers to read, and Gerry did not with his words create a new defamation by
repeating the content of the letter.
Dominic may thus find it difficult to meet the definition of requirement of publication in this regard.
Identification
In order for identification of the potential plaintiff to be present, the test is whether the ordinary
sensible person would be reasonably likely to understand that the words referred to the Plaintiff. The
judge would answer the question of law as to whether the words are capable of referring to the
Plaintiff, and if this test is met, the jury would decide whether people did believe that the words
referred to the plaintiff. For identification to be present in the present case, the jury would have to
consider whether the people who read the message understood it to refer to the Dominic.
Given the exchange that took place between Dominic and Gerry, it would appear to be an
unavoidable conclusion that the individuals who read the note and heard the conversation between
Gerry and Dominic would understand that the words written were about Dominic.
Defamatory Effect
The traditional test for defamatory effect was whether the words complained of tend to lower the
plaintiff in the estimation of a right-thinking member of society or tends to make them shun or avoid
the plaintiff. Such lowering in estimation need not be shown in fact and in establishing defamatory
effect, the intention of the defendant was irrelevant. The definition in section 2 of “defamatory
statement” is, “...a statement that tends to injure a person’s reputation in the eyes of reasonable
members of society,” and it is indicated that “defamatory” shall be construed accordingly.
Consequently the definition of the tort has not substantially changed.
Case law can often be of limited assistance in establishing whether or not a statement is defamatory
owing to changes in social mores and the fact that the circumstances tend to vary widely from case
to case. However, it does appear to be consistently difficult to establish that reporting illegal activity
to the police could be defamatory. It is suggested that it was done in this case for Dominic’s own
benefit which may bring the remark closer to the definition of defamatory, however, it would not
appear to be a particularly strong argument.
In Byrne v Deane (1937) the police raided a golf club house and removed a number of illegal slot
machines. The Defendant was alleged to have posted a notice in verse in the clubhouse suggesting
that the Plaintiff had informed the police. The rhyme clearly suggested disloyalty to the club and the
Plaintiff sued. The Court concluded that in so far as the rhyme suggested the Plaintiff had acted to
suppress an illegal activity, it could not be considered defamatory.
In Berry v The Irish Times (1973), the publication concerned a photograph of an individual holding a
placard saying “Peter Berry – 20th Century Felon Setter – Helped Jail Republicans in England”. The
Plaintiff sued the publisher of the photograph in defamation and the Supreme Court concluded that
words on a placard were not defamatory.
Defences
The facts of this case would not suggest that the elements comprising the tort of defamation have
been made out, and for that reason it may be unnecessary to consider whether any defences may
be availed of. If it were supported by facts, there may be the possibility of availing of the traditional
defence of justification which has been redefined in the 2009 Act as the defence of truth. It would
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also be theoretically possible for Gerry to make an apology in mitigation of damages or an offer to
make amends, however it would not appear to be warranted given the fact that it is very unlikely that
the tort of defamation has occurred.
Conclusion
It is likely that the tort of demotion is not made out by reference to the facts of this case in light of the
relevant law.
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Question Three
Alan was a solicitor who specialised in conveyancing. He had a large and relatively successful
practice notwithstanding the slowdown in the market. Charlie was a client of Alan’s who had
amassed a vast fortune during his younger days. He had three children.
One day about five years ago Charlie called in to see Alan to discuss putting in place various
arrangements to provide for his children and grandchildren. As well as making a will, he asked Alan
to draw up a document that would enable each of his children to demand a cash payment of
€100,000 from Charlie at any stage during Charlie’s lifetime. This money was then to be deducted
from whatever that child would receive under the terms of the will. The aim was to enable his
children to access money in the event of a sudden and unforeseen need before Charlie passed
away.
Although it was an unusual request of which Alan had never encountered before, Alan drew up what
he believed to be the appropriate documentation and Charlie convened a meeting of the family,
which Alan attended, and at which Charlie outlined what each would be getting under the will and the
emergency €100,000 that would be available to them during his lifetime if they needed it.
About two years ago, Charlie was diagnosed with Alzheimer’s and as his mental abilities
deteriorated, a firm of accountants was appointed to look after his affairs. In January of this year, one
of Charlie’s children visited Alan’s office and said that he wanted the €100,000 from Charlie under
the terms of the arrangement. When Alan went to the firm of accountants, they refused to release the
money stating that the documentation drafted by Alan was not enforceable and it would breach their
duty if they paid out the money.
Advise Alan as to what, if any, tort liability he might own to Charlie’s children.
Answer Three
A solicitor owes a duty of care to clients and some third parties and owes the client the degree of
care to be expected in the circumstances from a reasonably careful and skilful solicitor. The standard
of care is determined by the professional standard and the Defendant may rely upon the defence of
general and approved practice. Where the Defendant is shown to have departed from a general or
approved practice, the Plaintiff must show that the Defendant acted as no reasonable prudent
solicitor would have acted in the circumstances. The exception to the defence of general and
approved practice has also been recognised in the context of solicitor’s negligence. As set out in the
case of Roche v Pielow (1985), the defence of general practice will not apply where the Plaintiff can
show that the practice was “inherently lax or defective” or was “fraught with peril for his client
and[which] was readily avoidable or remediable.”
In Roche v Pielow (1985), the Plaintiffs were purchasing property to be sold by a building company.
The Plaintiff’s solicitor, the Defendant, omitted to make a simple search of the Companies Register
to ensure that the Vendor company had not created charges over the property in question. It was not
general practice amongst conveyancers and solicitors to make this search although it has become
general practice. The purchasers made significant losses after it was discovered that the property
was purchased subject to a mortgage in favour of a bank. The Court held that the duty owed is the
degree of care expected in the circumstances from a reasonably careful and prudent solicitor. The
Court accepted that the defence of general approved practice applies and where there is a departure
from practice the Plaintiff must show that the Defendant acted in a way that no reasonable prudent
solicitor would have acted in the circumstances. However, in allowing recovery against the solicitor
the Court stated that a person cannot be said to be acting reasonably if he automatically and
mindlessly follows the practice of others when by taking thought he would have realised that the
practice in question was fraught with peril for his client and was readily avoidable or remediable and
concluded the practice of not making the searches was negligent.
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On the facts of the present case, it must be assumed that Alan has indeed fallen below the
professional standard required of a solicitor on the basis that if the accountants are correct, he has
not produced the result for which he was hired (assuming same was legally possible), or has not
appropriately advised his client that such a result was not legally possible.
The core legal question is thus likely whether he owes a duty to the client’s children in circumstances
in which they are not his own clients, but rather the intended beneficiaries of the work Alan has was
hired to carry out for his client.
The solicitor’s duty may, where public policy justifies it, be extended to non-clients or third parties. At
first glance this would seem to go against traditional principle of privity of contract. Where the client is
a testator and, as a result of the solicitor’s negligence in preparing or executing the will, intended
beneficiaries are deprived of their gifts, it is clear the intended beneficiaries cannot base any claim
for the loss incurred on the contractual relationship between solicitor and testator and so have no
remedy in contract. They may, however, have a tortious claim in negligence and this was recognised
by Sir Robert Megarry in Ross v Caunters (1979) 3 All E.R. 580 where he held that such a duty of
care exists and stated that if a solicitor is retained to draft and execute a will and the will confers a
benefit on a named legatee, the solicitor must know that if he fails in his professional duty to draft
and execute the will properly the legatee will suffer loss. The underlying principle in the Irish case law
appears to be the foreseeability of the loss and in the English case law (White v Jones) the
assumption of responsibility by the solicitor to his client.
This case was accepted into Irish law by Barrington J in Wall v Hegarty (1980). In this case, the
Defendant solicitor failed to ensure that two attesting witnesses authenticated a will as required
under the Succession Act 1965. When the mistake was realised, the solicitor tried to cover things up
by forging a second attesting signature. One of the intended legatees was deprived of £15,000
because the will was invalid and he sued the solicitor. The SC was not swayed by the fact that there
was no contractual or commercial relationship between the Defendant and Plaintiff and held that a
solicitor drafting a will owes a duty to all intended beneficiaries of the will that the intentions of a
testator are not frustrated by his own professional carelessness.
In light of this case, in Ireland, an action lies as a direct remedy, in ordinary negligence in favour of
an intended beneficiary against a negligent solicitor for the loss of his legacy. In the UK which was
articulated in the leading case of White v Jones, the court focused rather on the assumption of
responsibility by the solicitor towards the testator and held that it was an extension of this duty owed
to the testator (to cover the beneficiary) which enabled the beneficiary to bring an action where
neither the testator nor his estate will have a remedy against the solicitor. This UK approach is based
on an extension of the Hedley Byrne principle.
A duty of care may also be found to exist in the case of a solicitor and personal representative and
although the Irish courts have not yet had an opportunity to pronounce on this, it has been accepted
in the UK (see Neuberger J in Chappell v Somers & Blake (2003. All ER 1076). If the estate of the
deceased person has suffered loss due to a solicitor’s negligence then there is no reason why the
estate could not potentially recover against the solicitor. A solicitor is entitled to act for the estate and
can bring an action on behalf of the estate in negligence and so this special relationship may also
work the other way and entitle the estate to take an action against a negligent solicitor.
It has also been held that solicitor may owe a duty to an individual on the other side of a transaction
in which a solicitor is acting. In Doran v Delaney (1998), a solicitor for the vendor answering
requisitions raised by the intended purchaser. The purchaser asked in particular if there was any
litigation pending in relation to the property. The solicitor was aware that there has been a title issue
and asked his client (the vendor) about it. The client said it was sorted and solicitor did not inquire
further and stated ‘no’ to the question of pending litigation. It transpired that the title issue had not in
fact been resolved and the purchaser sued the solicitor. The SC held that the solicitor was liable to
the third party purchaser because he was negligent in failing to inquire further and his answer
conveyed that he had no reason to doubt vendor.
In light of the foregoing, it appears clear that a solicitor’s duty does extend beyond the interests of
their own client to those who may be affected by the negligence of the solicitor in performing their
duties. In this regard, if Alan has not effectively drafted the documents to permit his client’s children
to access the funds in the manner intended, it is likely that Alan may have a liability to them tort. It
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may be noted however, that the impact on the children has to do with timing rather than access per
se and in this regard, Alan may regarded as liable for the delay in accessing their assets rather than
an inability to access them at all.
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Question Four
Angela was a very confident young individual who lived life to the full. One day while walking on a
country road admiring the scenery she was struck by Enda’s car. Enda had been driving too fast and
as he rounded the bend he could neither stop nor swerve to avoid Angela. Thankfully Angela
suffered only slight physical injuries and Enda immediately admitted that he had been in the wrong.
On arrival at hospital, Angela was diagnosed as suffering from a fractured ankle and some minor
bruises and scratches. It was anticipated that she would be fully recovered in about 4 weeks.
However, Angela became depressed, she had lost her confidence and now found herself anxious
over everything. The sound of every passing car made her shiver in fear. She became reclusive,
saying indoors, shunning social contact. Her ankle was taking longer to heal than had been
expected. Her lack of mobility deepened her depression. Her doctors prescribed anti-depressants to
which she soon became addicted.
Worse still, her ankle appeared not to be healing at all. The pain was becoming even more
excruciating. After many weeks, she was seen by a consultant who diagnosed that she had cancer in
her ankle. The consultant indicated that it was likely as a result of the injury she had suffered in the
accident but that it had not been diagnosed, and it should be treatable. Angela became even more
depressed and her dependency on the drugs increased. Believing she was about to die, she gave
away all her worldly possessions to several different charities and sat back waiting for the end.
In fact, the cancer was cured relatively easily as the consultant had indicated and once that had
happened, her addiction was discovered. She then spent time in a treatment centre which cured her
of her dependency.
Angela blames everything that happened on Enda’s negligence. She has lost all her money and
owes substantial bills to both the consultant and the treatment centre.
Advise Angela whether in any tort action, Enda would be found to be the cause of all the harm that
she has suffered.
Answer Four
Angela’s initial injury was a fractured ankle and some minor bruises and scratches for which Enda
accepted liability. However, Angela became depressed, she had lost her confidence and now found
herself anxious over everything. Because her ankle was taking longer to heal than had been
expected. Her lack of mobility deepened her depression. Prior to considering the further issues arose
in Angela’s case, it may be of benefit to set out whether Enda’s liability extends from the original
injury to the depression.
The first principle worth noting is called the “egg shell skull” principle. This is an exception to the
principle that a Defendant will only be liable in negligence for damages which was reasonably
foreseeable. The principle will apply to injuries which were directly caused by the negligent action of
the Defendant albeit that the extent of injury could not have been foreseen. The egg shell skull
principle has been extended to include psychiatric damage outside of the nervous shock concept
where there is personal injury or impact caused also. In McCarthy v Murphy (1998), the Plaintiff
suffered minor physical injury in car crash and developed psychological injury due to fear of pain.
The Defendant was held liable for the full extent of injury because minor injuries were foreseeable
and were combined with pre-existing psychological weakness. Similarly in Page v Smith (1995),
where the Plaintiff had been suffering from ME (chronic fatigue syndrome) at the time the
Defendant’s car crashed into him, and the crash caused his condition to become chronic and
permanent, liability was imposed. In light of the foregoing, there would not appear to be any hurdle to
Angela also being able to establish Enda’s liability for her depression in the circumstances, as it
appears to have been caused by the original injury.
We are then told that her doctors prescribed anti-depressants to which she soon became addicted.
This issue is more subtle. It may be anticipated that the depression would require treatment and any
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reasonable adverse consequences of treatment would be linked causatively to the original injury, but
it may require some evidence as to whether the medication prescribed was done so negligently or
whether there was any other professional negligence in monitoring Angela’s response to the
medication in the circumstances. If there is no other cause, the fact of becoming addicted to the
medication may prima facie be regarded as having been caused by the original injury.
We are then told that her ankle did not as anticipated and the pain became excruciating. After many
weeks, she was seen by a consultant who diagnosed that she had cancer in her ankle and the
consultant indicated that it was likely as a result of the injury she had suffered in the accident but that
it had not been diagnosed, and it should be treatable. If the consultant is correct in this analysis and
the cancer was caused by the injury, then again, Enda would likely be liable for this development
owing to the effects of the egg shell skull principle.
We are then told that Angela became even more depressed and her dependency on the drugs
increased. Again for the reasons previously outlined, and with the same caveats to the effect that
there was no other external cause, this development would also appear to fall within the scope of
Enda’s liability, notwithstanding that it was not a foreseeable development.
We are then told that believing she was about to die, she gave away all her worldly possessions to
several different charities and sat back waiting for the end. This development was appears to be an
independent decision of Angela’s although it would likely be Angela’s view that the decision was
“caused” by the news of the cancer which would appear to be a fact that Enda was liable to her for.
However, it may be open to Enda at this juncture to avoid that liability by raising a defence either by
way of establishing generally that there could be no causative link between this decision and his
actions, or more formally, by raising the defence of novus actus interveniens in the event that his
actions were to be considered part of the cause of this decision. Novus actus interveniens, would
essentially be the suggestion that any negligence on his part is essentially overwhelmed by the
second act of negligence or “intervening act” involving an independent decision of Angela’s. In some
cases the intervening act may not have fully broken the chain of causation between Defendant and
Plaintiff but rather the conduct of the Defendant and the intervening party combined, whether
intentionally or not, to cause the Plaintiff’s injuries. In this situation (assuming negligence on the third
party’s part), we would say that Angela was contributory negligent, and Enda’s liability would be
reduced proportionately by reference to this independent action. McMahon & Binchy write that the
Irish courts, when deciding whether or not the intervener has broken the chain of causation, are
chiefly guided by two considerations:
• Whether the intervening act was reasonably foreseeable
• The mental attitude of the intervening third party (whether negligent, grossly negligent, deliberate,
or reckless).
In Smith v Industrial Gases IFS Ltd (1950), the Defendants’ cart dropped lime putty on to the street,
which a schoolboy picked up and threw at another person causing him serious eye injury. The
Supreme Court held the Defendant fully liable. The Court emphasised the natural propensity of
children to fling such things as snow at each other, this event “was something which a reasonably
prudent person ought to anticipate”. The act of the schoolboy was not a novus actus and the
Defendant was liable. In general there must be voluntary conduct by the intervening actor to break
chain of causation. Where there is an involuntary intervening act by third party then the Defendant
may remain liable. In deciding whether or not a third party’s action was ‘voluntary’ or a reflex action,
the courts will apply an objective test based upon the expected response of the reasonable person
faced with similar circumstances. In Scott v Sheppard (1773) the Defendant threw a firework into
crowd and it landed beside a group. One person picked it up and threw it onwards and it fell beside
the Plaintiff and injured the Plaintiff. The Defendant was liable for injury to the Plaintiff as the
intervening actor was acting under compulsive necessity for his own safety. In the present case, it
appears more likely that Angela’s action would be considered voluntary and therefore Enda would
not be liable to her for the economic consequences of her giving away her assets. Perhaps even if
Enda were liable, Angela would also have a duty to mitigate her loss by way of seeking the return of
her belongings where possible.
Angela’s position with respect to this decision as a result of her depression may be worth comparing
to the case of Corr v IBC Vehicles Ltd [2007]. In that case the House of Lords held that an employer
could be found liable for the suicide of an employee. The widow was entitled to damages in respect
of her husband’s suicide where that had been the direct result of a depressive illness from which he
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had suffered as the direct and foreseeable consequence of an accident for which his employer had
been responsible. The deceased had suffered a serious accident at work, which IBC admitted had
been caused by its breach of duty. As a result of the accident, he had become depressed, a
condition that had worsened with the passage of time. While suffering from an episode of severe
depression, he had committed suicide by jumping from the top of a multi-storey car park. It was held
that the inescapable fact was that the depression, possibly very severe, had been a foreseeable
consequence of IBC's breach. The principle that a tortfeasor who reasonably foresaw the occurrence
of some damage need not foresee the precise form that the damage might take applied. Some
manifestations of severe depression might be so unusual and unpredictable as to be outside the
bounds of what was reasonably foreseeable, but suicide was not so regarded. It was not unfair to
hold IBC responsible for the consequence of its breach of duty. Nor were the damages attributable to
Mr Corr’s death rendered too remote because his conduct had been unreasonable, and, as to the
volenti argument, his suicide had not been something to which he had consented voluntarily and with
his eyes open but had been an act performed because of his psychological condition. It was held
that suicide did not have to be foreseeable as a different “kind of damage” once the depressive
illness that gave rise to the suicide was foreseeable. It was believed by the court that suicide is a
type of harm which flows from a depressive illness and is not automatically considered a novus
actus.
In that regard, Angela’s hope of holding Enda liable for the decision to give away her belongings,
would hinge on the question of whether it was a foreseeable manifestation of her depression in light
of the news she had received.
We are then told that in fact, the cancer was cured relatively easily as the consultant had indicated
and once that had happened, her addiction was discovered. She then spent time in a treatment
centre which cured her of her dependency. The fact that Angela’s response was at odds with the
advice she was given (albeit that previous medical advice had been incorrect), would also likely
militate against a finding that he is liable to Angela in respect of her giving away her belongings, and
in this regard it may be worthwhile to note the decision of the Supreme Court in Fletcher v
Commissioner for Public Works, which concerned negligently inflicted psychiatric damage, and
suggested that if the plaintiff had shown that he had a rational fear of contracting a disease as a
result of the defendant’s negligence, he would be entitled to recover damages for his fear and
anxiety. In the present case, Angela’s fear of her death would be categorised as irrational, which
would be a barrier to her recovery against Enda for the effects of her assessment that she was close
to death, unless it could be said that the irrationality involved was in fact a symptom of the
depression which had been caused by Enda’s injuring of Angela.
In light of the foregoing, it would appear that Angela would appear to have a strong case in relation
to her developing of depression from her injuries, however whether she can recover for her response
to the news of her cancer in the form of giving away her possessions, is a question that would turn
on the medical evidence as to the manifestations of the type of depression she was suffering from.
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Question Five
“....The person who for his own purposes brings on his lands and collects and keeps there anything
likely to do mischief if it escapes, must keep it at his peril, and if he does not do so, is prima facie
answerable for all the damage which is the natural consequence of its escape”. Per Blackburn J in
Rylands v Fletcher (1866) LR 1 Ex 265, 279.
Critically discuss the issues which arise with respect to the accumulation of a dangerous item by the
defendant in an action under the rule in Rylands v Fletcher.
Answer Five
Rylands v Fletcher is a type of liability will be imposed regardless of negligence, but only where
certain criteria are met. It is a tort which grew out of the older tort known as nuisance and was
defined in a case bearing that name.
The rule in Rylands v Fletcher imposes an exceptional form of strict liability and applies to unusual
dangers or activities on land. The imposition of strict liability means that the Defendant is liable in the
absence of intent or neglect. Where the Plaintiff can show the constituent elements the Defendant is
liable and liability in this area is nondelegable.
The original case of Rylands v Fletcher (1866) involved a Plaintiff and Defendant who were both in
the business of mining coal on adjoining property. The Defendant hired independent contractors to
build a reservoir to supply water to his mill. As a result of the contractors’ negligent failure to discover
a mineshaft under the reservoir, water from the reservoir broke from the shaft and flooded the
Plaintiff’s mine. In seeking to recover, the Plaintiff faced a number of difficulties because the (1) the
Defendant had been cleared of negligence by an arbitrator. (2) The Defendants could not be held
vicariously liable for the wrongs of their independent contractors. (3) Technically, a trespass had not
been committed, since the flooding was not a direct consequence of the Defendant’s activity and (4)
A nuisance had not been committed, since this was a single escape of water. In imposing a strict
form of liability, the Court stated: “the person who for his own purpose brings on his lands and
collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and, if
he does not do so, is prima facie answerable for all the damage which is the natural consequence of
its escape”
In Rylands the judges seemed to analyse the cause of action as a variation of nuisance but
subsequent cases have accepted it as a distinct tort and the principle has been modified to
distinguish between cases where the Defendant’s use of his land was natural and cases where the
use was non-natural. In Hanrahan v Merck Sharp and Dohme (Ir) Ltd (1988)23 the Court identified
the kernel of the principle as whether the Defendant made use of “a thing which was likely to do
mischief if it escaped”.
There are a number of distinct elements in this cause of action:
• Locus standi
• Accumulation
• Dangerous item
• Non-natural use
• Escape
• Causation
• Damage
For the purposes of the present discussion, it is what constitutes a dangerous item that is of
significant relevance. For the tort to succeed, the Defendant must have accumulated a dangerous
item which is defined as anything likely to do mischief if it escapes. The Court will examine the item
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and the circumstances of accumulation. The Defendant’s knowledge of the danger is relevant but the
case law is unclear as to what degree of knowledge is required.
In West v Bristol Tramways Co (1908), the Defendant allowed fumes to escape which killed the
Plaintiff’s plants and shrubs. The Court held that the standard of knowledge is common knowledge
and the onus was on the Defendant to show that there was general knowledge that the item was not
dangerous. In this case although the fumes were not highly dangerous this was not generally known
and the fumes qualified as a dangerous item.
In Cambridge Water Co v Eastern Counties Leather Plc (1994) a chemical substance seeped into
soil from the Defendant’s premises and contaminated the Plaintiff’s bore hole which was used to
supply water for public supply. The Court held that the test is the reasonable foreseeability of the
danger. The Court said it will consider the nature of risk capable of being known to the Defendant
and the Defendant’s knowledge in relation to the means of escape and the potential harm. The Court
concluded that the harm was not reasonably foreseeable since chemicals had seeped into a bore
hole located one mile away.
In Superquinn Ltd v Bray UDC (1998) one Defendant owned an artificial lake which burst a dam and
flooded the Plaintiff’s premises. The Court affirmed the test of reasonable foreseeablility of the risk
and danger but liability was excluded on other grounds. Quill notes that this test of reasonable
foreseeability of the danger places a higher burden on Plaintiff and brings this area of tort law closer
to nuisance and negligence. This has the effect of diluting an already exceptional tort. In Dempsey v
Waterford Corporation (2008) concerned an escape of sewage through 17th-century culverts. The
claim failed under nuisance and negligence. Peart J held that the rule in Rylands v Fletcher was not
applicable, stating that even if this ingress of water resulted from an unnatural use of the lands, i.e.
from a culvert placed thereunder, and even if the water in question fulfils the requirement that it was
likely to do mischief if it escaped, and I refrain from deciding those questions finally, the absence of
any knowledge on the part of the Council of the existence of this potential mischief removes the
claim from the principles derived from Rylands v. Fletcher, particularly in the circumstances of this
case where it cannot with any reality be stated, in the light of that ignorance, that the Council brought
the substance onto its lands.”
Notably, in Burnie Port Authority v General Jones Pty Ltd (1994), a New Zealand Court referred to
the Rylands rules as excluding things naturally present on property in a mischievous state. If,
however, the thing exists in a safe condition and is made mischievous by accumulation, Rylands
applies. The Plaintiff had frozen vegetables stored in cold rooms in a building and owners of the
building engaged independent contractors who caused fire and destroyed goods. The Court
considered the difficulties regarding what is a dangerous item and what constitutes non-natural use
and the Court concluded that the elements of Rylands liability were now uncertain. The Court stated
that the defences available were similar to negligence and concluded that ordinary negligence
principles should now apply in the area with the duty of care being non-delegable. The Court stated
that all cases previously decided under Rylands principles could have been dealt with under
negligence principles and non-delegable principles and this approach was now preferable.
This approach has not received acceptance in the UK however. The House of Lords considered the
matter in Transco v Stockport MBC (2004) In this case water leaked from a pipe on the Defendant’s
premises and washed away the support from the Plaintiff’s gas main. It was held that Rylands exists
as a separate tort but the Court acknowledged that there are many requirements to establish liability
and it is difficult to succeed. On the facts the Court concluded that the Defendant’s activity was a
normal use of land and the pipe was a normal item of plumbing.
Thus it can be seen that the definition of what constitutes a dangerous item is something which
yields to clear definition, and even where an item may be regarded as dangerous, the tort will not be
made out where it could not be said that, that item was accumulated. Water in particular appears to
be a substance which although potentially dangerous, must be accumulated to fulfil the criteria of
Rylands v Fletcher and whether any particular accumulation constitutes a ‘dangerous item’ will
depend on context and the facts of the case.
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Question Six
Ten years ago, Christian and Anastasia were a young married couple when they moved into a two
bed apartment in Middle Inn, a previously run down area of the city which was just beginning to be
redeveloped. Both of them loved the excitement and ‘buzz’ that the area generated with its live music
and street performers bringing the whole area to life particularly at the weekend.
Their apartment was above a pub and they enjoyed the ease with which they could pop down for an
evening’s entertainment. The pub had also cleverly created a space on the pavement in front of the
pub where buskers could play their music until the pub closed, although this only happened at the
weekends. As time went on, Middle inn developed more, as the centre of night life in the city and
although it had a number of people who lived there, they tended to be young single people who
rented their apartments and moved on once they married to more sedate suburban areas.
Last year, the ownership of the pub changed hands. Christian and Anastasia noticed subtle but
significant changes. The new owners now attracted buskers who were performing gangsta rap rather
than the traditional Irish material that had previously been the case. Moreover, the new owners now
allowed these performers to use the space outside the pub even when the pub itself was closed,
particularly late at night. And this no longer happened at just the weekends but all week long.
Further, there was a growing tendency that given the lateness of the hour when the musicians finally
stopped, drug use and other illegal activity was beginning to increase.
Christian and Anastasia had tried to talk to the new owners about taking steps to curtail the music to
weekends only and no later than 11pm but to no avail.
Advise Christian and Anastasia as to whether there is any tort action available in these
circumstances.
Answer Six
Christian and Anastasia may be able to take an action against the pub in private nuisance.
Private nuisance protects persons from unreasonable interference with rights related to ownership or
occupation of land. Private nuisance has been extended beyond protection of proprietary interests to
enjoyment of personal interests connected with the land.
There are a number of elements to a claim in nuisance:
– Locus Standi
– Conduct for which Defendant is responsible;
– Damage or interference with rights;
– Unreasonableness;
– Causation.
Locus Standi
Hanrahan v Merck Sharpe and Dohme [1988] – held that occupation of the premises is sufficient to
bring a claim for private nuisance in this jurisdiction. This differs from English position – Hunters v
Canary Wharf [1998] but was affirmed in Ireland in the case of Molumby v Kearns [1999]. Molumby v
Kearns concerned gates at an industrial estate, which had been widened resulting in increased traffic
causing noise and dust. Court held that occupation of premises sufficient to bring a claim but came
to compromise and imposed a restriction business including times of operation and number and size
of vehicles accessing the premises at certain times. Christian and Anastasia would appear to have
locus standii by virtue of their residence in their apartment, and the issue of whether they are owners
or tenants would not appear to be determinative.
Conduct for which Defendant is Responsible
Nuisance relates to acts or omissions for which the Defendant is legally responsible. Omissions may
include failure to alleviate natural hazards such as in Leaskey v National Trust [1980] where the
Defendants topsoil had slipped onto Plaintiff’s property causing damage and threatening more. The
Court held that persons in control of property are liable in nuisance for failure to do all that is
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reasonable in the circumstances to prevent or minimise the risk of foreseeable damage which they
knew or ought to have known encroaches or is about to encroach the neighbouring land.
Nuisance may also arise for a nuisance originally created by a third party if the Defendant knew or
ought to have known about the nuisance as this is an omission to alleviate a risk created by a third
party. In Sedliegh-Denfield v O’Callaghan [1940], a local authority employee installed a drainage
pipe in a ditch adjoining the Defendant’s land in a mistaken belief that they had consented to it. The
pipe became blocked causing flooding on the Plaintiff’s land. The Court held that the Defendant
landowners were liable to the Plaintiff for failing to undo the nuisance originally caused by the local
authority and held that they had failed to take reasonable steps to avert a hazard which was
reasonably foreseeable in the circumstances. In Harrington v Cork City Council [2005] the court
referred to Sedliegh-Denfield and held that the council had not taken all reasonable steps to alleviate
a nuisance and granted an injunction requiring defendants to do so in circumstances where there
was an unauthorised encampment on their land which was resulting in littering and trespassing.
The case of O’ Kane v Campbell (1985) would appear to be of particular relevance to the present
case. This case concerned a 24-hour shop at a junction between a busy thoroughfare and residential
street. The Plaintiff sued for nuisance as a result of customers lingering outside the shop in the early
hours. The Court held that the Defendant was liable for ordinary and natural conduct of people he
attracts to the neighbourhood. In particular, the Court referred to the usual requirement of an
objective test to establish what magnitude of disruption constitutes a nuisance and indicated that the
objective test of reasonableness will be tempered by some elements of subjectivity and, in particular,
the age and circumstances of the Plaintiff. As Lynch J explained in O’Kane v Campbell (1985),
elderly people may sleep more lightly, but “are equally entitled to their night’s sleep”.
In the present case the permitting of buskers at late hours would appear to be clearly capable of
being considered the responsibility of the pub, and based on Harrington, the anti-social behaviour
associated with it may also be considered the responsibility of the pub.
Damage or interference
The Plaintiff must prove the form of damage in an action for nuisance but in some exceptional
circumstances damage does not have to be shown, but can be presumed or inferred. In McGrane v
Louth CC [1993] the Plaintiff sought an injunction for apprehended damage but the Court refused the
injunction. Material damage includes damage to land and property including chattels. In St Helen’s
Smelting Co v Tipping [1865] the Plaintiff recovered for damage to shrubs and trees caused by
fumes, and in Halsey v Esso Co. Ltd [1961] the Court held that damage to the Plaintiff’s laundry
which was hanging outside the premises was sufficient material damage to chattels. In Patterson v
Murphy the Plaintiff recovered damages caused by the Defendant’s blasting operation, which
cracked the Plaintiff’s windows, internal walls and boundary wall and in Hanrahan v Merck Sharp and
Dohme [1988] the Plaintiff’s recovered for damage to their cattle caused by toxic emissions from the
Defendant’s neighbouring plant. In this case the Plaintiff’s also recovered for injury to their health as
occupiers of the property. Also, as outlined above, in O’ Kane v Campbell (1985), the Plaintiff sued
for nuisance as a result of customers lingering outside the shop in the early hours. Thus the damage
caused by late night noise would appear to be clearly actionable.
Unreasonableness
In all other nuisance cases apart from material damage (where liability is practically strict in nature),
the court assesses the impact of the Defendant’s activities on the Plaintiff to determine if it is
unreasonable. This can be contrasted with negligence law, which focuses on the unreasonableness
of the Defendant’s conduct before and during the event. The justification for the difference in
approach is due to the different aims of the torts and the underlying concern of nuisance law, which
is to protect rights to enjoyment of private property. There are a number of factors which will
influence the Court in assessing whether the impact is unreasonable. The Court will consider the
magnitude of the damage, the nature of the locality, and the Defendant’s motives or the social utility
of the Defendant’s actions.
The magnitude of the harm concerns the intensity, duration and frequency of the nuisance. In
Patterson v Murphy the Court referred to the brief but intensive blasting operations and held that the
conduct amounted to nuisance. The activity need not be continuous, but may be intermittent and
amount to an unreasonable impact. In Halpin v Tara Mines [1976], the Court commented that
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intermittent noises which are irregular and at unpredictable intervals and which are unusual in the
locality may be more disagreeable than other noises which form part of the norm such as traffic. The
Court stated that unusual noises may instil apprehension and anxiety in the mind of the listener
whereas other more familiar noises may be distinctive but disregarded. The magnitude of the harm
will be assessed according to an objective standard. The Plaintiff is expected to exhibit the fortitude
ordinarily expected amongst members of society and the Courts will not generally vindicate the
Plaintiff’s abnormal sensitivity to the nuisance. However, the objective test of reasonableness will be
tempered by some elements of subjectivity and, in particular, the age and circumstances of the
Plaintiff. As Lynch J explained in O’Kane v Campbell (1985), elderly people may sleep more lightly,
but “are equally entitled to their night’s sleep”.
The nature of the exact locality may affect the analysis of the reasonableness of the impact. The law
must balance competing interests between use by the Plaintiff and Defendant of their respective
premises. The Court commented in Cavey v Ledbitter (1863) that the affairs of life in a dense
neighbourhood cannot be carried out without mutual sacrifices of comfort; and that, in all actions for
discomfort, the law must regard the principle of mutual adjustment. Clearly there will be different
levels of noise and intrusion in urban and rural areas and residential/commercial areas. The Courts
tend to engage in a detailed analysis and take account of the very specific locality where disturbance
occurs. In O’Kane v Campbell the Court stated that where a 24-hour shop is positioned adjacent to a
residential street, though also close to a busy thoroughfare, the part-residential nature of the locality
may still be relevant. In the case of Molumby v Kearns (1999) the Court had regard to both the
residential and industrial aspects of the relevant neighbourhood and reached a compromise to allow
the industrial estate to operate without excessive nuisance.
Locaility was recently addressed in Lanigan v Barry (2008). The defendants operated a motor racing
track a kilometre from the plaintiff’s stud farm. The motor track had expanded over the years and
was causing severe distress to the plaintiffs. The plaintiffs succeeded in their nuisance claim and the
court had regard to the history and character of the area before the race track had commenced.
The social utility of the Defendant’s activity may also be relevant to assessing whether the impact is
unreasonable and therefore whether he created a nuisance. In Bellew v Cement Ltd (1948), the
Plaintiffs sought an injunction against quarry works but the Court refused the injunction and referred
to the facts that the materials were needed for urgent construction work throughout the county.
In the present case, the magnitude of the damage, while not considerable, is appreciable, and would
appear to be actionable. The nature of the locality appears to be mixed residential and commercial,
but an interesting aspect of the case is that there was music and buskers to a lesser extent prior to
the present developments, and which were not considered to constitute a nuisance. The pub’s
motives have a commercial element, but this would not appear to apply during times when the pub is
closed. The social utility of the pub’s actions may be a consideration for the Court, but this may not
be particularly strong, and notably does not apply for the occasions when the pub is actually closed.
Causation
A Plaintiff must prove the causal link in the normal way, but causation does not appear to be a
significant hurdle in this case.
Remedies
Christian and Anastasia should be aware of the types of remedies open to them. It seems that it may
be difficult to recover pure economic loss in private nuisance cases. This form of recovery has
traditionally been refused by the Courts and it was not referred to in the Glencar decision as one of
the recognised exceptions allowing recovery for pure economic loss. Their loss does not appear to
be economic in nature in any event however, and a useful aspect of an action in nuisance is the
availability of injunctive relief. This is a discretionary remedy and may be awarded in addition to or
instead of damages. The normal Campus Oil rules will apply. If she were to seek an injunction, the
Court may be inclined to set particular time limits for busking to meet Christian and Anastasia’s
complaints.
Conclusion
Christian and Anastasia would appear to have a reasonably substantial basis upon which a case in
private nuisance may be made out.
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Question Seven
Caprica Motors manufactures the very successful Viper sports saloon in Asia and it is imported into
Ireland by Vehikull Importers (Ireland) Ltd, a company which is unconnected with Caprica motors, for
distribution through their dealership network. Generally, the viper is regarded as a very reliable car
which has given few problems since its introduction. It has never been the subject of a recall.
Caprica Motors have however begun to notice that dealers across the world are reporting that a
certain species of spider, the Yellowbacks, have taken to nesting inside the petrol tank. Although
unusual, there is a very low risk of any potential harm associated with this fact. However, a risk
analysis does show that in exceptionally rare circumstances of the spider nest became large enough,
the spiders web might restrict the vent pipe in the petrol tank increasing the potential risk of
accidental explosion by around 5%. As a result Caprica Motors have recommended to all their
dealers that an additional vent pipe be inserted into the fuel filler so as to remove this risk. The new
part will cost about €20 and Caprica Motors will pay for that but fitting the part will take 4 hours and
that cost must be borne by the dealers.
Vehikull Importers (Ireland) Ltd have received this notification but as the Yellowback spider is not
indigenous to Ireland they have decided that there is no need to undertake and instant recall.
Instead, they have instructed that as each Viper is in for its regular service, the petrol tank should be
filled to the brim, and the customer charged for the petrol. Vehikull Importers believe that this will kill
any spiders present in the tank and effectively remove any potential risk of the vent pipe being
blocked.
Laura, who had her Viper serviced about two weeks earlier, was hit by a vehicle from behind and her
petrol tank exploded causing her significant injuries. On investigation it was determined that the
Daffodil spider, which is indigenous to Ireland, had nested in the petrol tank and blocked the vent
pipe. It was further revealed that filling the tank would not have killed the Daffodil Spiders in any
event as there would be crevices that they could survive in until the petrol level went down.
Advise Vehikull Importers as to any potential tort liability both at common law and under statute.
Answer Seven
Laura may seek to hold Vehikull Importers (Ireland) Ltd as the importer of the Viper sports saloon,
liable for the cost of removing her implant and for any injury that may be inherent in the process, by
virtue of both general negligence principles or under the Liability for Liability for Defective Products
Act 1991 (“The 1991 Act).
Under section 1 of the 1991 Act, “damage” is defined as (a) death or personal injury, or (b) loss of,
damage to, or destruction of, any item of property other than the defective product itself: provided
that the item of property, (i) is of a type ordinarily intended for private use or consumption, and (ii)
was used by the injured person mainly for his own private use or consumption. Laura’s damage in
the form of her personal injuries would appear to clearly fall within this definition. The replacement
cost of the car itself, would not fall within the remit of the Act however (although it is to be noted as a
matter of practical reality that there is likely an insurance policy in place to cover this cost).
A problem Laura may face is establishing the presence of a defect in the car within the meaning of
the Act. What is deemed “defective” is governed by s,5, and pertains if the product “… fails to
provide the safety which a person is entitled to expect taking all the circumstances into account.” The
circumstances which are to be taken into account include the presentation of the product, the use to
which it could reasonably be put, and the time when the product was put into circulation. A product
shall not be considered defective for the sole reason that a better product is subsequently put into
circulation. It would be a matter of evidence as to whether the risk posed by daffodil spiders are
something which would be sufficiently detectable as to give rise to a conclusion that the car in
question is defective. It is also notable that the car itself would have been fine if the spider was not
present, and in that regard it is only if the car becomes a nest for the spider that this “defect” would
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arise. It is also notable that the increased chance of an explosion is very low at a figure of 5% above
the current risk, and this may militate against a finding that the product is defective.
In the unlikely event that a claim under the 1991 may nonetheless be maintained by Laura, she
would have to assess who the appropriate defendant would be. It would appear to be Vehikull
Importers (Ireland) Ltd as the importers of the car. A “producer” is widely defined by S.2, and
includes manufacturers and producers of finished products, component parts or raw materials, and
processors of agricultural produce. The main advancement of the s.2 is that it extended liability to
suppliers of defective products, albeit in limited circumstances. Therefore, Included in the definition
are importers who bring product into the EU for the purpose of supply in the course of business.
Notably, section 11 of the 1991 Act states that the Act shall not affect any rights which an injured
person may have under any enactment or under any rule of law, and thus Laura is not precluded
from utilising the general negligence principles in order to establish liability. In this regard, at issue in
the present case is whether the risk of explosion by reason of a spider’s nest is something for which
Vehikull Importers (Ireland) Ltd, can be held liable as a matter of common law negligence. Where a
defect is dangerous in nature, it is uncontroversial that a claim will lie in tort in certain circumstances.
In Sunderland v McGreavey & Louth County Council (1987) the Court held that: where the vendor is
a builder, he owes the Plaintiff a duty to exercise the care and skill of a reasonably careful and skilful
builder, failing which he may be liable to the Plaintiff in negligence but for dangerous defects only.
Later cases included non-dangerous defects as recoverable, but the proposition in relation to
dangerous defects has remained unchanged. The issue for Laura is whether there is a dangerous
defect in the sense that the term will allow for the recovery of compensation owing to the risk posed.
It would appear that it would be a matter for the Court to consider the likelihood and gravity of the
risk involved and whether in the circumstances, it meets the definition of a dangerous defect. If this
question is answered in the affirmative, Laura should not face any other significant hurdles under the
common law principles in establishing liability against Vehikull Importers (Ireland).
There may also be a duty to warn at common law in respect of a known risk. A duty to warn has
been found in some cases, primarily involving the absence of warning labels on clothing. This duty
was established in O’Byrne v Gloucester where the court found the manufacturer liable for failing to
attach a flammability warning label on a skirt which then caught fire. It has been found in Rodgers v
Adams Children Wear that the inclusion of such a warning label is sufficient warning. Clearly,
Vehikull Importers (Ireland) failed to warn or advise Laura of the fact that the issue with spiders, but
in order for liability to be imposed, it must be established that this had some causative effect.
Causation often proves to be difficult in proving negligence on the part of a manufacturer, especially
where a duty to warn is being proposed. In Duffy v Rooney & Dunnes stores the plaintiff claimed the
absence of a warning label on clothing had caused her injury as it had then caught fire. The court
held that while the defendant had a duty to include such label, the element of causation had not been
met. It found that the plaintiff would have bought and worn the clothing on the day in question even if
the label had been present, and so the failure to attach such a label was not the cause of the injury.
In the present case, it would seem speculative to suggest that any warning would have had an
impact on the outcome in this case.
In light of the foregoing, while Laura would appear to have a statable case under statute and at
common law, her ability to succeed in either remedy would depend on how compelling the evidence
may ultimately prove to be, but it does not appear on the basis of the facts given that she would have
a particularly strong case with either remedy.
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Question Eight
The use of damages as the principal remedy in the law of tort gives primacy to the compensatory
nature of tort law but in reality has done little to promote further functions of the law of tort such as
deterrence or public censure of undesirable behaviour.
Critically discuss the above statement through an analysis of the categories of damages in tort law,
paying particular attention to relevant case law.
Answer Eight
The practice in this jurisdiction is to make one award of damages in respect of all past, current, or
potential future loss suffered as a result of a tort. The primary aim of an award of damages is to put
the plaintiff in the position he or she would have been in if the tort in question had not occurred. A
secondary purpose of damages can be to act as a deterrent or as a public censure. The primary
headings under which damages may be awarded in appropriate circumstances are: compensatory,
aggravated, exemplary or punitive, nominal, and contemptuous.
Compensatory Damages
Compensatory damages can either be for pecuniary or non-pecuniary loss. The former is often
referred to as special damages, and the latter, as general damages.
(i) Pecuniary Losses
Pecuniary losses are those quantifiable out of pocket expenses such as loss of earnings, or medical
expenses and have been held to include the cost of domestic help or the cost of financial advice in
appropriate circumstances.
Notwithstanding that these are “quantifiable” in nature, the Courts have experienced difficulties in
precisely how these amounts should be calculated. The case of Reddy v Bates [1984] IR 197
considered whether the calculation of loss of future earnings should include times of unemployment.
The cases of Jeffer v Cahill (unreported, Supreme Court, 29 July 1999) and O’Donoghue v Deecan
& Sons (unreported, High Court, 21 May 1996) both concerned evidence as to the claim that the
Plaintiffs were rendered unfit for any form of future employment by virtue of their injuries.
Complications also arose in relation to medical expenses owing to the availability of free medical
care generally, and the operation of section 2 (1) of the Health (Amendment) Act 1986 which
requires health boards to charge directly where the patient has received or is entitled to receive
damages for their injuries. Owing to a judgment of Kinlen J in O’Rourke v Scott (1993) a notional
amount of £100 was charged, but the Supreme Court subsequently found in Crilly v T & J Farrington
(2001) that a hospital should charge the averaged daily cost of bed and board in the specific hospital
and in that case, it was considerably more than the amount payable by virtue of the ‘Kinlen Order’.
(ii) Non-pecuniary Losses
Non-pecuniary loss refer to personal losses such as pain and suffering, loss of amenity and loss of
expectation of life. These reflect both past and future loss and can be very difficult for a court to
quantify particularly in cases concerning extreme impairment.
Sinnott v Quinnsworth [1983] ILR 523 concerned a young man who was rendered quadriplegic,
wherein the High Court reduced damages from £800000 to £150000 on appeal and stated that
unless there are particular circumstances which suggest otherwise, general damages should not
exceed a sum in the region of £150000 and that a court should resist awarding damages which are
so high as to constitute a punishment for the infliction of the injury rather than a reasonable if
imperfect attempt to compensate the injured.
In Kealy v Minister for Health [1999] 2 IR 456 however the Court distinguished Sinnott on the bases
that large sums had already been awarded for loss of earnings and future expences, and awarded
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£250,000 to a plaintiff who had contracted Hepatitits C as a result of the negligence of the
Defendant. This approach was mirrored by the Supreme Court in in Gough v Neary [2004].
Cases in which the Plaintiff’s injuries have rendered the Plaintiff unaware of his loss and injuries
have met with differing approaches. In Cook v Walsh [1984] IR 208 – it was held that damages
should be more moderate. Hughes v Flaherty (1996) however is a case where the court refused to
make such a deduction and reserving it for “extreme cases.
Non-pecuniary damages can be awarded for loss of expectation of life but the courts have tended to
favour awarding only a moderate sum for such loss. In Philip v Ryan (2004) the Court on appeal held
that damages should have been awarded for possible loss of life expectancy due to loss of an
opportunity to avail of treatment earlier owing to the negligence of the defendants. The test applied
was whether there was an increased risk of shorter life expectancy and the test of the trial judge that
damages for loss of life expectancy depended on proof that life would probably not possibly have
been prolonged, was rejected.
Aggravated Damages
Aggravated damages reflect any additional and exceptional harm as a result of either the manner in
which the harm was inflicted or the defendant’s behaviour towards the Plaintiff after the initial tort.
In Daly v Mulhearn [2005] IEHC 140, aggravated damages were awarded in circumstances where it
was accepted that the Defendant accepted responsibility at the scene of an accident and then
subsequently accused the Plaintiff of fabricating her account and of being drunk.
In Philp v Ryan (2004) the court held that the Plaintiff was entitled to aggravated damages by reason
of the behaviour of the Defendants in their preparation and
presentation of the case and confirmed that aggravated damages could be awarded in cases of
negligence. The first named Defendant had forged documents to make it appear that he had a
stronger defence than he did in fact, and his legal advisors were also criticised for not informing the
Plaintiff’s solicitors of the true facts. This caused the Plaintiff to believe theirs was a strong defence
to the action and this caused the Plaintiff to suffer additional emotional stress and anxiety.
Exemplary or Punitive Damages
Exemplary and punitive damages are awarded in exceptional cases, chiefly to make an example of
the Defendant and to deter others from engaging in similar anti-social conduct.
In Rooks v Barnard [1964] AC1229 award of exemplary damages was restricted to cases of
‘oppressive, arbitrary or unconstitutional action by the servant of
Government but they can also be awarded in cases where the Defendant’s conduct was calculated
to make a profit in excess of the compensation normally recoverable by the Plaintiff, and cases for
which such an award is expressly authorised by statute.
These categories have been rejected in other jurisdictions and Irish judges have expressly and
implicitly doubted the merits of the limitations in Rookes on many occasions. In Conway v INTO
[1988] ILRM 472 the court finally rejected the
Rooks categories and the Court held that exemplary damages should be measured to meet the
wrongdoing rather than to benefit the wronged. The Supreme Court stated that these damages are
to mark the courts disapproval of the conduct and the Court should publicly be seen to have
punished the defendant. The objective is to punish wrongdoers for outrageous conduct and deter
others and the court will consider the manner in which a wrong is committed, conduct of the
wrongdoers after the wrong and in the defence. It was held that it was a conscious and deliberate act
to make gain without any thought as to who would suffer.
In Crawford v Keane an award of £7500 was made on the basis of Defendant’s behaviour after the
Tort had been committed. The Defendant had given deliberate false testimony throughout the
hearing. The Courts have consistently maintained that exemplary damages may be awarded only in
very exceptional cases and the awards have been low. However in Crofter properties limited v
Genport Limited [2002]
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£250000 exemplary damages were awarded on the basis that deliberate and malicious phone calls
had been made and were intended to injure the Plaintiff’s in their business. The high sum was
awarded on the basis that the behaviour had been malicious and deliberate; the person who had
made the calls had committed perjury; and it was an extremely bad case and one in which there
must be some very substantial penalty imposed on the Plaintiff.
Nominal Damages
Nominal damages represent a token amount of damages awarded by the courts where the Plaintiff
has established a wrong but suffered no real harm. It reflects the view that there was a valid claim
and that it was not frivolous, notwithstanding that the damage done is minor in monetary terms. (e.g.
trespass / boundary disputes and torts which are actionable per se).
Contemptuous Damages
Where there is a technical wrong but no sufficient reason for bringing litigation. It is where the court
is of the view that there has been no material harm done to the Plaintiff or no significant interest to
protect, and the Plaintiff will generally not be awarded costs.
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Exam Paper - October 2014
Question One
The law relating to occupiers liability has created an imbalance between the obligations of the
occupier and that of the entrant. The result has been to impose an obligation on the occupier that is
exceptionally difficult to meet.
Critically discuss whether you agree with this statement referring to relevant case law and statutory
authority.
Answer One
The 1995 Act governs recovery for injury/damage suffered by an entrant as a result of the dangerous
state of an occupier’s premises. There are a number of important definitions contained in the Act to
govern the sphere of liability. For the purposes of this discussion reference will be paid in particular
to the definitions which go to the obligations of the occupier or the entrant.
Categories of Entrants & Differing Obligations
The first matter to note is the differing types of entrant who are categorised under the 1995 Act, and
the differing types of obligations that are owed in respect of them. They are visitors, recreational
users and trespassers.
Visitors
Definition of Visitor
Visitors are defined under s 2 of the 1995 Act. They are entrants who are present by the permission
or invitation of the occupier or his family or a person ordinarily resident on the premises or an entrant
present for social reasons. The definition of a visitor also includes entrants as of right and entrants by
virtue of contract. In summary, lawful entrants are visitors, whether they are present for social or
commercial purposes. Eoin Quill notes that there is a distinction between visitors and recreational
users where social visitors are persons whose presence is desired by the occupier (or the occupier’s
family), whereas recreational users are those whose presence is tolerated.
Duty owed to Visitors
Under s 3 of the Act the occupier owes a “common duty of care” to visitors, defined as the duty “to
take such care as is reasonable in all the circumstances ... to ensure that a visitor to the premises
does not suffer injury or damage by reason of any danger existing thereon”.
The Act refers to two factors to determine a “reasonable standard of care”:
The definition emphasises self-responsibility and the duty of control and supervision in certain
circumstances. Accordingly, contributory negligence on the Plaintiff’s part provides the Defendant
with a defence, as does any contribution to the injury by another person in control such as a parent
or school supervisor.
The duty owed by occupiers to visitors is not an absolute duty.
An instructive case concerning a visitor is Newman v. Cogan (2012). The Plaintiff was visited the
defendants' home, and their son had tripped and shattered a glass panel in a door which glass to
pierce the Plaintiff's right eye leading to its loss. She now claimed the defendants had been negligent
in the choice of glass panel which they had installed themselves. It was held in the High Court per
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O'Neill J, that the standard of work by a householder could not be expected to be of the same
standard as a professional tradesman. In the instant case, the Court was satisfied the panel had
been installed competently. Whilst expert evidence suggested a tradesman would not have installed
the particular type of panel, the evidence did not suggest a householder would reasonably believe
the panel was unsuitable. The plaintiff's claim was dismissed.
Liability was also not imposed in the case of Heaves v Westmeath County Council (2001) in which
the Plaintiff slipped on uneven steps on the Defendant’s premises which were partially covered with
moss. The Court held that occupier had an appropriate system of cleaning the steps and, in fact, the
gardener took expert advice to reduce the moss problem as much as possible. The Court held the
Defendant took reasonable care and there was no breach of duty to the Plaintiff.
A case in which contributory negligence reduced liability considerably as Vega v Cullen (2005) in
which defendant was carrying out some repairs to a roof on his house and for that purpose had, for
access purposes to the roof, left a ladder leaning against the wall of the building in question, but at
an angle of 45 degrees, which an expert in the case opined was an excessive angle from a safety
point of view. In addition this ladder was standing unevenly on the ground, in as much as one foot of
the ladder was on a concrete surface at the side of the house and the other leg was on a gravel and
earth surface which was slightly lower than the concrete surface. This created some instability. The
plaintiff, an adult man of about 55 years of age at the time, ascended the ladder in order to have a
conversation with the defendant who was on his roof. As he began to descend the ladder moved to
the right, causing the plaintiff to fall to the ground. The High Court held that the plaintiff was present
on the defendant’s property as a social guest. The Court reasoned that there is no meaningful
distinction to be drawn between the common law duty of care and the statutory duty of care under
the Occupier’s Liability Act, 1995. The Court stated that this is not the case of a child, or other person
under some disability, who could not be expected to anticipate that the ladder might not be safe to
ascend and descend. The forty-five degree angle at which the ladder was leaning was something
clearly visible to the plaintiff, and it ought to have been obvious to the plaintiff that the left foot of the
ladder was on a gravel and earth surface which was somewhat lower than the right leg on the
concrete surface. He ought to have foreseen some instability and risk attaching to his ascent and
descent of the ladder. The Court thus measured the extent of contributory negligence to be 30
percent.
Recreational Users
Definition of Recreational User
A recreational user is defined in the Act as an entrant who is present with or without permission or
implied invitation free of charge (not counting a reasonable charge for the cost of providing vehicle
parking facilities) for the purpose of engaging in a recreational activity (and who does not meet the
definition of a “visitor” set out above). Recreational activity is defined to include any such activity
conducted in the open air including any sporting activity, scientific research and nature study and the
exploration of caves, sites, and buildings of historical, architectural, traditional, artistic, archaeological
or scientific importance.
Duty Owed to Recreational Users
Under s 4, the occupier owes a restricted duty of care to recreational users to avoid injuring them
intentionally and to avoid acting with reckless disregard for their safety. Section 4(2) provides that in
determining whether or not an occupier has so acted with reckless disregard, regard shall be had to
all the circumstances of the case and a number of factors which are listed in s 4(2) and include the
nature of the danger, character of premises, conduct of entrant, warnings and supervision of entrant.
It is not clear how these factors relate to each other and which should be weighted.
An example in case law of the duty owed to recreational users is Weir Rodgers v SF Trust Ltd
(2005). The Plaintiff sued the Defendant occupier of a local beauty spot in Donegal claiming
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damages under the 1995 Act for significant personal injuries sustained by her after falling down a cliff
face. She had walked to the headland with friends after passing through a broken-down fence, and
had sat there to admire the sunset. Upon getting up to leave, she had lost her footing and tumbled
down. The Plaintiff argued that the sheer drop of the cliff had been hidden from view and therefore
that the danger had not been apparent. The Defendants argued that they had not behaved with
“reckless disregard” and that the risk of falling was self-evident and had required neither fencing nor
warning notice. The High Court found for the Plaintiff and held an accident of this type had been
reasonably foreseeable. The Plaintiff’s award was reduced by only 25 percent to reflect her
contributory negligence. This decision was overturned by the SC. It was held that the HC had erred
by subjecting the Defendant to negligence or fault standards, and should have limited itself to
determining whether the Defendant had acted with “reckless disregard”. The court favoured an
objective test of ‘reckless disregard’ and rejected the argument that the Defendant should have
erected fencing or warning notices. The Court stated that there are certain risks in outdoors activities
and the Plaintiff should have appreciated dangers inherent in sitting along the edge of a steep
embankment adjacent to sea. Finally, the Court held that there may be exceptional unusual or
dangerous qualities to certain lands which would require an occupier to erect warning notices but in
this case the danger inherent in the act must have been obvious to the Plaintiff so the Defendant
could not be held to have acted with reckless disregard in not putting up warning signs.
Trespassers
Definition of Trespasser
Trespassers are defined as entrants who are not visitors or recreational users. In summary they are
persons who do not have permission or authority to be present on those lands and are not there for
recreational purpose. The classification of an entrant as a trespasser as opposed to a visitor will
have a significant impact.
In a case which mirrors the facts of Vega v Cullen, in that it concerned an unsafe ladder, in Williams
v TP Wallace Construction Ltd (2002) the Plaintiff was the general manager of a firm hired by the
Defendant construction company to install guttering in a shopping centre. On the day in question he
arrived unannounced at the site to verify that the guttering was going well. A number of site workers
were on a break and the architect was not present but he proceeded to inspect the site and fell from
a ladder. He sued the Defendants as occupiers, claiming that the ladder should have been tied to the
scaffolding to prevent an accident of this nature. The Court held he was not a ‘visitor’ for the
purposes of the 1995 Act, since he was not there by invitation or arrangement, and so he was
categorically a ‘trespasser’ to whom the occupier owed a more minimal duty not to act in reckless
disregard. The court found that the failure to tie the ladder to the scaffolding was not an act of
reckless disregard.
Duty Owed to Trespassers
Under s 4, the occupier owes the same duty of care to trespassers as he owes to recreational users
– namely to avoid injuring them intentionally and to avoid acting with reckless disregard for their
safety. Section 4(2) provides that in determining whether or not an occupier has so acted with
reckless disregard towards a trespasser, regard shall be had to all the circumstances of the case and
a number of factors which are listed in s 4(2) and states that regard shall be had to all the
circumstances of the case and a number of factors which include the nature of the danger, character
of the premises, the conduct of the entrant, warnings and, where relevant, the supervision of the
entrant. In particular it refers to:
whether the occupier knew or had reasonable grounds for believing that a danger existed on the
premises;
whether the occupier knew or had reasonable grounds for believing that the person and, in the case
of damage, property of the person, was or was likely to be on the premises;
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whether the occupier knew or had reasonable grounds for believing that the person or property of the
person was in, or was likely to be in, the vicinity of the place where the danger existed;
whether the danger was one against which, in all the circumstances, the occupier might reasonably
be expected to provide protection for the person and property of the person;
the burden on the occupier of eliminating the danger or of protecting the person and property of the
person from the danger, taking into account the difficulty, expense or impracticability, having regard
to the character of the premises and the degree of the danger, of so doing;
the character of the premises including, in relation to premises of such a character as to be likely to
be used for recreational activity, the desirability of maintaining the tradition of open access to
premises of such a character for such an activity;
the conduct of the person, and the care which he or she may reasonably be expected to take for his
or her own safety, while on the premises, having regard to the extent of his or her knowledge thereof;
the nature of any warning given by the occupier or another person of the danger; and
whether or not the person was on the premises in the company of another person and, if so, the
extent of the supervision and control the latter person might reasonably be expected to exercise over
the other’s activities.
Given that these factors will weigh differently depending on whether the entrant is a trespasser or a
recreational user, there is in practical terms perhaps a lower obligation in respect of trespassers than
recreational users.
Section 4(3) provides that the occupier’s statutory duty does not extend to trespassers who enter the
premises for the purpose of committing an offence or, where present on the premises, commit an
offence. Such persons can only recover from the occupier when a court determines that recovery is
“in the interests of justice”.
It is also important to note that section 5 of the 1995 Act provides that an occupier may, by express
agreement or notice, extend his or her duty towards entrants. This is uncontroversial but it is a rare in
practice for an occupier to agree to extend the duty owed. Section 5(2) provides that an occupier
may by express agreement or notice restrict, modify, or exclude his or her duty towards visitors only.
There are a number of conditions attached to such a restrictions and it will not be valid unless it is
reasonable in all the circumstances; and if the occupier purports by notice to so restrict, modify, or
exclude that duty, the occupier has taken steps to bring the notice to the attention of the visitor.
Conclusion
In light of the foregoing it is difficult to agree with the given proposition, as it is clear that not only are
the standards achievable for occupiers, they are additionally allowed to lower the standards by
agreement in respect of visitors to their premises. Furthermore, the act specifically considers the
level of care that entrants are obliged to have for their own safety.
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Question Two
Harry manufactures and sells orthopaedic cushions for use with wheelchairs and markets them
under the Softies brand name. Each cushion has the following words attached in gold and set
against a dark green background: “Softies – the Orthopaedic Cushion”. Harry has spent many years
building up a strong reputation for quality and value and is exceptionally proud of his product. His
customers are evenly split between health care providers who buy significant amounts in bulk and
ordinary consumers who purchase individual units for their personal requirements.
Tom has recently begun to manufacture a competing cushion, although it is not an orthopaedic
cushion, which he is marketing under the name Softus. Each cushion has the following words
attached in yellow against a light green background: “Softus. Non-orthopaedic cushion”.
Harry has noticed that sales have begun to decline, particularly among his health care provider
customers, although sales to ordinary consumers have dipped as well. Harry has received some
feedback from both sets of customers that in the current economic climate they are simply making
decisions based on price. Further, most customers assume that all cushions for wheelchairs are
orthopaedic. Harry believes that Tom is selling an inferior product and relying on Harry’s hard earned
reputation and that sales are suffering as a result.
Advise Harry as to whether he has any tort action against Tom in these circumstances.
Answer Two
Introduction
Harry may be able to sustain a action for the tort of passing off against Tom, should the facts of the
case support the action.
The tort of passing off protects products and the provision of services where a Plaintiff has generated
goodwill in a product and the Defendant has misrepresented his goods as the Plaintiff’s. The
traditional focus of passing off is on whether the consuming public has been, or will be confused by
the similarities between products and whether the Plaintiff has suffered, or will suffer loss to custom
or goodwill as a result of associations being drawn between the Plaintiff and Defendant. The law
does not require strict proof of deception or misrepresentation by the Defendant but rather the Courts
will infer deliberate deception or misrepresentation where the similarities are overwhelming.
The tort of passing off is very broad in scope and it encompasses similarities in product name,
design, style, or even ad campaign. A high similarity in packaging or design may be sufficient to
establish a passing off, even though different names are used, such as ‘Polycell’ and ‘Clingcell’ in
Polycell Products v O’Carroll et al [1959] and ‘Cottage Creams’ and ‘College Creams’ in United
Biscuits v Irish Biscuits [1971]
The traditional proofs required to establish a passing off were:
(1) Plaintiff has generated goodwill in the mark, design, or get-up of his product;
(2) Defendant has misrepresented his goods as the Plaintiff’s, and
(3) Damage has resulted or is likely to result.
In modern jurisprudence the proofs are recognised as:
(1) Misrepresentation (whether intentional or not),
(2) made by a trader in a course of a trade common to the Plaintiff, and
(3) directed to prospective customers of his, or ultimate consumers of goods or services supplied by
him,
(4) which is calculated to injure the business or goodwill of another trader and
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(5) which causes actual or potential damage to a business or goodwill of the trader by whom the
action is brought.
These factors can be distilled into four central issues which concern the Courts.
– Established commercial goodwill and reputation
– Consumer confusion
– Common course of trade
– Damage or loss
Goodwill and Reputation
The Plaintiff must establish that he has built up a goodwill and reputation in the mark or set-up of the
product, such that the consuming public associates the mark or set-up with the Plaintiff. Traditionally
the Courts have focused on the element of goodwill which was defined in Inland Revenue
Commissioners v Muller as “the benefit and advantage of the good name, reputation, and connection
of a business’
The courts have traditionally insisted that to satisfy passing off, the Plaintiff must prove that he has
built up both goodwill and reputation in the jurisdiction where he initiates the legal action. This has
caused Plaintiffs significant difficulties because commercial goodwill does not exist in a jurisdiction
where the Plaintiff has not yet traded, though he may have generated a significant commercial
reputation in that jurisdiction. This difficulty is illustrated in the ‘Budweiser’ case where the Court of
Appeal held that goodwill had not been established by the Plaintiff who had proved only a vague
international reputation. The Court held that proof of goodwill in the jurisdiction was crucial to the
proof that the Defendant had caused the Plaintiff to suffer ‘damage’ and this had not been
established.
This approach has been soften somewhat by the a ‘loss of expansion potential’ approach which
argues that even where the Plaintiff has not established goodwill in the jurisdiction, he should have
the opportunity to do so and when he does so the market for his wares may be diminished by the
Defendant’s pre-emptive passing off. Thus the damage sufferers is a diminution in exclusivity, with
possible future damage to goodwill. In C & A Modes v C & A Modes Waterford [1976], the Plaintiff
clothes store brought a case in Ireland to restrain the use of its name, despite never having traded in
Ireland. The Plaintiff argued that C & A was very well known to Irish consumers, due especially to
cross-border shopping. The injunction sought was granted and the Court held that the guiding criteria
is whether the name of the Plaintiff’s business is known to the public in the area in which the
Defendant seeks to carry on his business, and noted that “goodwill does not stop at a frontier.”
Based on the given facts, Harry should not have any significant difficulty in establishing that he has
developed goodwill and a reputation in his own product in the jurisdiction – particularly as his product
had sold well and has been around for many years. It is likely also that their product sells to the
same types of customers – namely wheelchair users.
Requirement of Consumer Confusion
The Plaintiff must satisfy the requirement that the purchasing public is likely to be confused by the
Plaintiff’s and Defendant’s products. The rationale is that if the public is not likely to confuse the two,
then the Plaintiff will not suffer damage to the goodwill. The misrepresentation and resultant
consumer confusion may take many forms – similar name, packaging, design, advertising etc. In
ascertaining consumer confusion, the courts will consider the context in which the consumer would
view and purchase the product.
For most products the appropriate test is that of the ‘casual unwary shopper’. In Reckitt Colman v
Borden [1990] The is known as the ‘Jiff Lemon’ case and the court concluded that the average
supermarket shopper upon seeing the Defendant’s yellow lemon-shaped plastic container with green
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leaf-like tag would instantly assume it to be the Plaintiff’s and drop it into the shopping trolley without
scrutinising the product to see the name ‘realemon’ indented into it.
In SmithKline Beecham v Antigen Pharmaceuticals [1999] the Plaintiff’s arguments that the
Defendant’s ‘Solfen’ was confusingly similar to the Plaintiff’s ‘Solpadene’ was weakened by the fact
that in most cases an experienced pharmacist would be locating the product for the shopper. In this
respect Harry’s sales to his healthcare provider customers might face a higher burden of proof
because of their expertise, however it is noted that the given facts are that these customers also
believed that all cushions for wheelchair users were orthopaedic.
In judging the actual or likely response of consumers, the courts may accept market and opinion
surveys but the accuracy or credibility of the conclusions will be open to challenge.
In the present case, the product is very similar, it has the same use and has a very similar name and
byline. Harry’s cushion has the words “Softies – the Orthopaedic Cushion” attached in gold and set
against a dark green background. Tom’s cushion has the words “Softus. Non-orthopaedic cushion”
attached in yellow against a light green background. It will be a matter for the court to assess the
probability of confusion, but the probability would appear to be very high in this case, with the noted
caveat in respect of the healthcare provider customers.
Requirement of ‘Common Course of Trade’
Traditionally, it has been necessary for Plaintiffs to establish that the Defendant passed off his goods
or services as those of the Plaintiff in a common course of trade. The rationale was the Plaintiff did
not have a legitimate complaint where the Defendant was not in direct competition on the same
market, and that therefore no real damage or loss could occur. This requirement developed from the
restrictive traditional approach to passing off and the courts are now reluctant to apply the common
trading activity requirement where the Plaintiff’s and Defendant’s activities, though different, are
somehow related. In the present case, this would appear to be no hurdle to Harry because the
products are for the same purpose, but simply of a different quality.
Damage and Loss
The Plaintiff must establish that the Defendant’s passing off has or is likely to cause him damage.
The narrow school of passing off requires that damage to both goodwill and reputation must be
established and that it is necessary to prove confusion amongst the public as to the origins of the
Plaintiff’s and Defendant’s goods or services. More recent cases have adopted a modern approach
to damage and encompass a broad definition of damage by attaching importance to the indirect
effects which may flow from false associations between Plaintiff and Defendant. The Irish Courts
have departed from the strict approach to damage on a number of occasions.
In Falcon Travel v Falcon Leisure Group [1991], the Plaintiffs were travel agents who had built up a
considerable success in Dublin since 1985. In 1988, the Defendants, an English tour operators
company, started to trade in Dublin as ‘Falcon Leisure’.
The Plaintiffs began to receive phone-calls intended for the Defendants and media reports of
mishaps were reported in such a way that the public was led to believe that the Plaintiffs were linked
with the Defendants. The Defendants argued that there was no likelihood of the public confusing the
two, since one was a travel agency firm and the other a tour operators firm. They further claimed that
the Plaintiffs had actually benefited from the confusion as to the origins of the names and there was
no evidence of damage to trade or that the Defendants had benefited. The Court held that, as a
result of this passing off, the Plaintiffs’ reputation had become submerged with the Defendants. In a
novel award, damages were granted to the Plaintiffs instead of an injunction, so that the Plaintiffs
could embark on an advertising campaign to confirm the difference between them and Defendants.
The Court stated that appropriation of goodwill can constitute damage in itself without proof of loss to
custom. Thus the decision is a departure from the requirement of proof of actual damage to goodwill
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as opposed to reputation. In the Falcon case it seem that the only damage caused to the Plaintiffs
was a submerging of reputations which can be contrasted with the decision in the Budweiser case
where the Plaintiffs failed because they could only prove damage to reputation and not goodwill.
In the present case, a reduction in sales has been noted by Harry. This would form part of his claim
for damages to the extent that the reduction may be reasonably attributed to consumer confusion in
respect of Tom’s product. They may also seek damages in respect of the cost of correcting any
consumer confusion which may have occurred, and may seek an injunction preventing Tom from
continuing to sell such a similar product.
Conclusion
It would appear that Harry would have a strong case for seeking damages and injunctive relief as
against Tom for the tort of passing off.
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Question Three
The Civil Liability Act 1961, S48(1) provides that an action may be brought by the dependants of a
deceased person against the person wrongfully causing the death.
Critically discuss the statutory provisions and any other relevant authority concerning tort actions for
fatal injuries.
Answer Three
Introduction to Fatal Injuries Cases
A fatal injuries action can be taken where a wrongful death occurs and the deceased would have had
an action against the Defendant. A fatal injuries action is taken either by the estate of the deceased
or by the dependants of the deceased in their own right. This area is governed by Part IV Civil
Liability Act 1961 and s 48(1) provides:
“Where the death of a person is caused by the wrongful act of another such as would have entitled
the party injured, but for his death, to maintain an action and recover damages in respect thereof, the
person who would have been so liable shall be liable to an action for damages for the benefit of the
dependants of the deceased.”
Procedure for Bringing the Action
Section 48 provides an entitlement on the part of the deceased’s surviving dependants to recover
certain damages arising from the wrongful death. Section 48 provides that the personal
representative of the deceased can bring the action for the benefit of the dependants as a class. S
48 also provides that where he does not do so, or where no personal representative has been
appointed within six months of the death, then the action may be brought by any or all of the
dependants for the benefit of the dependants as a class.
Definition of Dependant
Section 47 defines dependant to include: “a spouse, parent, grandparent, stepparent, child,
grandchild, step-child, brother, sister, half-brother, half-sister of the deceased”. The definition is
expressly stated to also include a former spouse to a marriage dissolved under the Family Law Act
1996 or by way of foreign divorce recognised in this jurisdiction. It also includes an illegitimate child,
an adopted child, or a person for whom the deceased was in loco parentis. Section 47(c) also
includes a person with whom the deceased had lived “as husband and wife for a continuous period
of not less than three years.”
The Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 has expanded the
definition of “dependant”. It now includes a “civil partner” within the meaning of the Act. Furthermore,
“a person whose civil partnership with the deceased has been dissolved by decree of dissolution” will
also now fall within the definition. Similarly, a ‘qualified cohabitant’ whether of the same or different
sex as a deceased who has lived with the deceased in an “intimate and committed relationship”
within the meaning of the 2010 Act, for not less than years will also be regarded as a dependant
(notably this is a shorter period than for recognition of a relationship in which there are no biological
children under the 2010 Act itself which is in line with the former section by reference to the length of
relationship required).
Liability
Section 48 provides an action lies only where it can be shown that, had the deceased lived, he would
have been entitled to recover against the Defendant. It seems that an action under s 48 is dependent
on a deceased having a valid action before death and therefore a fatal injuries action cannot be
brought where the deceased had entered a settlement with the Defendant, even where it was only in
partial satisfaction of the deceased’s claim. This principle was referred to in Nunan v Southern
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Railway Co (1924) and in Mahon v Burke & Mid Western Health Board (1991) the Court affirmed the
English approach and decided that where the deceased had settled a personal injuries action with
the tortfeasor, it is no longer open to the dependants to bring a wrongful death action under the 1961
Act.
This approach is questionable and is particularly harsh where the deceased made a settlement on
the assumption that his injuries were less serious and were not likely to be fatal. The claim under s
48 is for the benefit of the deceased’s dependants, and it seems unjust that the deceased, by settling
a case, is capable of extinguishing a claim he did not know his dependants would possess and which
is for their benefit.
Contributory Negligence
Liability imposed on the Defendant may be reduced to reflect the contributory negligence of the
deceased in the terms of s 34(1). This is implied by s 35(1)(b), which says that a person suing on
behalf of the dependants is deemed “responsible” for the acts of the deceased.
Damages
Section 49 provides that damages will reflect what the court considers proportionate to the injury
resulting from the death to each of the dependants. The dependants may claim for loss of financial
dependency and the Courts may also award reasonable compensation for mental distress not
exceeding €35,000 (by virtue of a recent increase in January 2014 form the 1996 figure of £20,000
(€25,394) brought in by S.I. No. 6 of 2014 Civil Liability Act 1961 (Section 49) Order 2014; the
original 1961 figure having been set at £1000) and damages for funeral and other expenses actually
incurred.
Section 49(2) provides that damages may be awarded in respect of funeral and other expenses.
Funeral expenses of an ordinary reasonable nature, such as the cost of a coffin and gravestone, will
be covered but may not extend to extravagant memorials. Other expenses which may be covered
include costs of the dependants travelling to visit the deceased’s body, cost of mass cards and
organising a wake. The Courts have also awarded damages for legal costs associated with the
inquest into the death of the deceased incurred by dependants, and the loss of inheritance of
dependants:
Courtney v Our Lady’s Hospital Limited (2011) was a case which concerned the death of a three
year old girl owing to medical negligence, and psychiatric damage suffered by her mother. It was
held by the High Court that liability for the death of a three year girl and the consequent nervous
shock of her mother was accepted, but the defendant claimed that it was not liable for legal costs of
the mother associated with an inquest. It was held that there was no dispute that the plaintiff was
entitled to be legally represented at the inquest and that as the facts surrounding the death of the
plaintiff’s next of kin were wholly in dispute and the Plaintiff was a vital witness, it was foreseeable
that cross-examination would arise. Furthermore, as the Plaintiff’s evidence was so crucial, it was
essential that her evidence was properly led. O’Neill J. held that “the plaintiff had a vital interest in
the outcome in the inquest, and secondly, that the issues of fact that were likely to arise warranted
legal representation.”The Court held that this expense fell within the category of “expences actually
incurred” and awarded €10,500 in respect of this head of damages.
A particularly expansive approach was taken in Davoren v Health Service Executive & Others (2011)
in which the Plaintiff was the wife of the deceased and sued on behalf of herself and their dependant
children. The Plaintiff’s claim that the death was from defendant's negligence in medical and surgical
treatments was accepted, but it was contested that they were responsible for damages incurred as a
consequence of the deceased’s mother changing her will so as not to benefit her son (and by
extension his family) after his death. The deceased’s mother died after the action commenced.
O'Neill J held that had the wrongful death of the deceased not have occurred, the plaintiff
dependants would have inherited the estate of the deceased’s mother, and should be compensated
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accordingly. The Court was satisfied that as a matter of probability, if not near certainty, had the
deceased not suffered wrongful death he would, as a matter of high probability, have survived his
mother and having regard to the terms of the will she made in his favour, and the role he played in
running the farm in very close cooperation with his mother, that he would have inherited his mother’s
estate.
Loss of Financial Dependency
Loss of financial dependency concerns loss of pecuniary benefits which the dependants had a
reasonable expectation of receiving from the deceased up to his death.
Calculating Loss
This head of damage is assessed according to a yearly average multiplied by the number of years
over which the dependency was likely to continue. The court will consider the deceased’s career
advancement and increases in pay and the courts also allow recovery for the cost of hiring another
person to perform services which the dependant was reliant on the deceased to do (such as house
maintenance or gardening). Loss of financial dependency can amount to a significant sum in
damages, if the deceased was married with children and died at a comparatively young age and in
Furey v Suckau (2002) the sum of €247,000 was awarded but was reduced by 80 percent to reflect
the deceased’s contributory negligence. The sum is reduced to reflect any benefits the dependants
received as a result of the death, such as inheritance, but under s 50 no account should be taken of
sums payable on the death of the deceased under a contract of insurance, or any pension, gratuity,
or like benefit payable under statute or otherwise in consequence of the death.
In Hayes v Ennis (2005), the deceased had been paralysed in a road traffic accident when he was a
young man and was involved in another accident and was killed. He and his wife, who was also
deceased, had adopted two children and the case concerned a calculation of their loss. The Court
accepted that, in the particular circumstances, the deceased would have contributed financially to
both of his children during his lifetime. The Court accepted that his son would have continued to live
with him and the deceased would also have helped his daughter financially. The Court awarded
€400,000 loss of dependency, special damages of €34,684 and damages for mental distress of
€25,400
Tax Liability
According to the English decision in British Transport Commission v Gourley (1956) in personal
injury actions, the award of damages should be reduced to reflect the fact that the Plaintiff would
have been subject to income tax had he not been so injured. The Gourley approach is adopted in
Ireland in fatal injuries cases so that the amount for loss of earnings is calculated in a net sense i.e.
the amount the deceased would end up with after paying tax out of his earnings if he was able to
work.
Undeclared Income
This issue of a deceased’s undeclared income will be relevant in a fatal injuries claim where the
deceased had failed to declare the full extent of his income to the Revenue authorities.
In Fitzpatrick v Furey (1998) Counsel for the Plaintiff submitted that the dependency claim centres
upon the loss caused to the dependants and awards compensation for actual loss and therefore
undeclared income which the dependants would have access to should be included. The Defendants
argued that it would be contra public policy to measure the Plaintiff’s claim by reference to support
from undeclared income. The Court accepted that it would be contra public policy to measure the
Plaintiff’s claim by reference to support from undeclared income.
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The decision was criticised at the time for levying a disproportionate penalty, directed at the wrong
targets, the dependants. The argument was that a dependant ought not to be prevented from
recovering lost financial support merely because the deceased failed to disclose full earnings to the
Revenue. On the other hand, it has been argued that recovery of undeclared sums could be denied
where the Defendant shows knowledge, conduct, or complicity on the dependant’s part.
A different set of facts on a similar issue arose in Downing v O’Flynn (2000) where the trial judge
concluded that public policy necessarily requires the court to have regard only to the deceased’s
declared income but the SC rejected this finding on appeal. The SC considered the main issue was
whether the court has heard evidence in relation to the deceased’s undeclared income sufficient to
enable it to quantify “the true net amount of that income.” The Court was concerned to confine his
findings to the case at hand and distinguished Fitzpatrick on the basis that in the instant case there
was clear evidence that the deceased had made regular payments of £1,000 a month and £37.50 a
week to specific dependants. Furthermore, the deceased’s financial affairs suggested that he would
have continued to make those payments even if his income had been fully taxed. Denham J
distinguished the Downing facts from claims of dependency on the proceeds of crime. Denham J
drew the distinction on the basis of how the money was obtained, whether legally or illegally. Other
factors which are likely to influence the courts in future decisions are (i) knowledge and complicity on
the dependant’s part, and (ii) the extent to which public policy would be offended by making the
award.
Conclusion
In light of the foregoing, it may be said that there has been reasonably sophisticated provision for
dependents of those who have died as a result of negligence since the passing of the 1961 Act, and
the statutory regime can be seen to have become more generous to dependents as it has been
amended with respect in particular to who can claim as a dependent, and in respect of the amount of
compensation that can be recovered in respect of mental distress. Similarly, a generous approach to
interpretation has been seen to be adopted by the Courts with the passage of time regarding what
types of damages can be claimed under the statutory regime.
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Question Four
The Hillrise Eleven were playing the Valleyset Gunners at a locally organised friendly soccer league.
Paddy was a striker with Hillrise and was renowned for his ability to score the most amazing goals.
Thomas was a defender with Valleyset and had been instructed to mark Paddy at all times and to
ensure that Paddy ‘could not make any play’. During the course of the match, Thomas undertook his
role with relish and successfully frustrated Paddy for around 60 minutes of the match.
As Paddy became more annoyed, Thomas began committing serious fouls on Paddy, often tripping
and pushing Paddy to the ground even when the ball was not in the vicinity. The referee seldom saw
this as Thomas was careful to do it when the referee was otherwise engaged.
On the 75th minute, Paddy snapped after he had once again been pushed to the ground by Thomas
when no one was looking. As Paddy got up he raced after Thomas with his fists raised. Thomas was
unaware of this until some of his supporters began to shout a warning to him. Thomas suddenly
stopped running and looked behind him when Paddy, who had not anticipated that Thomas would
stop so suddenly came careening into him, knocking Thomas to the ground. At that point, Thomas
felt a sharp pain in his shoulder as Paddy’s teeth sank into his shoulder.
Paddy explained that he had simply wanted to scare Thomas and when Thomas stopped suddenly,
he tried to shout a warning but it was too late. However, as his mouth was open, he accepts that he
accidentally bit Thomas as they hit the ground.
Advise Thomas as to whether he has any action on tort against Paddy in those circumstances.
Answer Four
At issue in the present scenario is the tort of trespass to the person, and specifically the torts of
assault and battery. Trespass to the person can take the form of battery (unlawful personal contact),
assault (threat of battery) or false imprisonment (unlawful deprivation of personal liberty).
Assault
The tort of assault may be defined as “an act which causes another person to apprehend the
infliction of immediate, unlawful, force on his person” (Collins v Wilcock (1984). Thus the tort applies
where the Defendant’s actions directly or indirectly causes Plaintiff to apprehend contact. The belief
of contact must be reasonable (cannot be irrational) but the fact that the Defendant was not in a
position to execute the threat is irrelevant (threatening gestures, using an unloaded gun is sufficient
– as per R v St. George (1840)). There must be mental impact on the Plaintiff so no assault can
occur when a person unaware (e.g. is asleep).
It is clear that words themselves may constitute an assault where the result is apprehension of
physical impact but mere insults are not enough and additional words accompanying the threat may
render conduct harmless and prevent assault where those words make it clear that no physical
contact will occur.
In the present case Paddy intended an assault on Thomas in the sense that his intention was “scare”
him by way of his charging at him with raised fists. There may be some defences open to Paddy in
relation to that intention in the circumstances however because he could argue that it was a form of
defence to the various batteries that were being inflicted on him by Thomas throughout the game
and it was engaged in, in an effort to prevent further batteries. Also, it is not clear from the facts
whether Thomas in fact apprehended the contact in a meaningful way, and in this respect the tort
may not be made out. In any event, the issue of battery would be more central to any claim Thomas
may have.
Battery
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A battery has been defined as “the actual intended use of unlawful force to another
person without his consent … or any other lawful excuse” in AttorneyGeneral’s Reference (No 6 of 1980) (1981). Thus battery relates to direct or indirect physical contact
with a person without consent or lawful authority. Force or physical injury is not required but there
must be some form of contact but the actual contact can be slight, such as spitting at someone or
lightly touching them. In Humphries v O’Connor (1864) the removal by a policeman of an orange lily
from the Plaintiff’s coat was held to constitute a battery. Direct physical touching or contact is not
required so that a person who upturned the Plaintiff’s chair while he was sitting on it committed a
battery in Hooper v Reeve (1817).
Traditionally a battery was considered to be an intentional touching of a harmful, hostile, malicious or
offensive nature to which no consent or authority had been given. The requirement of proof of
hostility or malice has been abandoned by the courts as an unnecessary restriction on the action. In
Re F (1990), Lord Goff rejected the hostility requirement as an unreasonable limitation on the battery
action and stated that a prank that gets out of hand, an over-friendly slap on the back, surgical
treatment by a surgeon who mistakenly thinks that the patient has consented to it – all these things
may transcend the bounds of lawfulness without being summarised as hostile.
The ingredients of the tort require voluntary conduct, direct impact, intention, causation and damage.
Voluntary Conduct
The Plaintiff must show voluntary conduct on the part of the Defendant. Involuntary
conduct is insufficient – such as where person pushes another against the victim, there is no
trespass by the second person who made contact and similarly there is no trespass where a person
acts on reflex.
Direct Impact
The Plaintiff must establish the impact. In cases of battery the impact is direct or indirect contact with
a person. The relevant impact must be direct in the sense that it must be the immediate result of the
particular voluntary act. It is important to note that use of an instrument by the Defendant to make
contact still amounts to a battery.
Intention
Trespass is considered to be an intentional tort, as distinct from negligence, where the allegation is
that the Defendant was careless. Trespass seems to be confined to intentional acts but a small
degree of uncertainty persists and in Devlin v Roche (2002), Geoghegan J cited McMahon & Binchy
for the view that the existence or not of an unintended trespass to the person is as yet unsettled. A
Defendant is deemed to ‘intend’ and natural and probable results of voluntary conduct and the
Defendant is liable for any unintended and extended consequences which flow from original intended
act. The requisite intention may also be formed during the act such as in Fagan v Commissioner of
Metropolitan Police (1969), where the Defendant accidentally parked his car on the Plaintiff
policeman’s foot, and then declined to remove it for a time. In general, where there is no intention on
the part of the Defendant to cause impact to the Plaintiff no action in trespass lies but there may be
an action against the Defendant in negligence for damage caused by the unintended acts. Obviously
if the Defendant can prove that he exercised reasonable care then no action will lie in negligence.
Causation
Proof of causation is not as complicated in trespass cases as it is in negligence cases. In a trespass
action the Plaintiff only needs to prove that the impact occurred from the Defendant’s conduct.
Damage
Trespass is actionable per se and the Plaintiff does not have to prove any damage.
Where the Plaintiff does not suffer any or damage the Court will generally award only nominal
damages and costs. However, if the Plaintiff can prove any actual damage or injury suffered this will
increase the claim. In assessing what damages are recoverable the Polemis test of direct
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consequences is applied and not the Wagon Mound test of reasonable foreseeability that applies in
negligence cases. The Plaintiff may recover damages for any physical or mental injuries that result
from the trespass without the restrictions which apply in negligence law to psychological injury. A
Plaintiff may also recover exemplary damages to reflect the manner in which the tort was committed.
In the present case, Paddy apparently ‘snapped’ after a series of serious fouls on him by Thomas,
including tripping and pushing Paddy to the ground. Then after he had once again been pushed to
the ground by Thomas when no one was looking, Paddy got up and raced after Thomas with his fists
raised. Thomas was unaware of this until some of his supporters began to shout a warning to him.
Thomas suddenly stopped running and looked behind him when Paddy, who had not anticipated that
Thomas would stop so suddenly came careening into him, knocking Thomas to the ground. At that
point, Paddy’s teeth sank into his shoulder. Paddy has explained that he had simply wanted to scare
Thomas and when Thomas stopped suddenly, he tried to shout a warning but it was too late.
However, as his mouth was open, he accepts that he accidentally bit Thomas as they hit the ground.
As set out above, Paddy may have an arguable defence in relation to why he intended an assault on
Thomas, but the key issue is whether his intension included the probable and natural results which
followed, which on the facts would be a difficult ingredient of the tort for Thomas to prove. There may
also be a broader issue to consider in relation to the level of consent which is implied for sporting
activities.
The Defence of Consent
Where the Plaintiff has expressly given consent or authority to the impact, whether in writing or
orally, that consent provides a full defence. The consent must be voluntary and the person must be
aware of what the consent relates to. Consent will be vitiated by misrepresentation, fraud, duress or
illegality.
The scope of the consent is relevant and acts outside that scope will not be excused on the basis of
the consent given. In Corcoran v W & R Jacobs (1945) for example, an employee who had agreed
as one of the terms and conditions of his employment that he could be searched by security
personnel whilst working for the Defendants. A security guard lunged at the Plaintiff whilst attempting
to search him and the Defendant argued consent. The SC decided that the terms did not authorize or
give lawful validity to the actions of the security guards in the circumstances.
In the present scenario, which involves contact sport activity, there will either be an explicit or implicit
consent to impact within the context of the sport. This consent will extend to impacts which are a
technical breach of the rules so long as the impact is not so dangerous or outside the scope of the
sport as to go beyond the remit of the consent. If Paddy’s threatening gesture was not inherently
dangerous, the fact of it being a breach of the rules should not vitiate the consent given for the
purposes of the sport. Consequently, he would not be held liable in tort for Thomas’s injury unless it
was a natural and probable consequence of the gesture, and if it could be said that he could broadly
enjoys the defence of consent for the gesture itself. This is a somewhat difficult issue to assess and
will be a matter for the Court. Paddy is likely however to have a better defence by reference to the
fact that the result was unintentional.
Conclusion
Thomas would likely find it difficult to make out a case of intentional trespass to the person against
Paddy in the circumstances. In relation to assault, there is likely a defence of self defence in light of
Thomas’ behaviour, and in relation to the biting, there is likely a defence that the act was
unintentional in the legal sense.
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Question Five
Valerie is a young mother of a five year old child. One day she had invited four of his class mates
over for a play date. As it was a lovely day she thought that she would take them on a walk picking
blackcurrants from the bushes along the side of the road. The road was a little country lane with little
vehicular traffic and even if a car did come along, it was a long straight stretch where it would be
clearly visible and Valerie would have ample time to move the children to safety.
Just outside a metal gate into a field, Valerie met her friend Josephine and they struck up a
conversation. Both Valerie and Josephine were happy to let the children play along the road in
relative safety. Valerie and Josephine lost track of time as they continued talking when Valerie
suddenly noticed that one of the children looked as if they were beginning to get sunburnt. Valerie
said that she had to go and take the children home. She was extremely worried that the parents of
the children would be very annoyed if any of the children were sunburnt and she was anxious to get
home as quickly as possible.
As Valerie was about 30 yards from where she had started back from home, she heard the metal
clang of a farm gate swinging open not far from where she had stopped with Josephine. Although
Valerie had not opened the gate, she could not be sure if any of the children might have done so. In
any event, she decided that the priority was to get home. A thoroughbred horse escaped from the
field through the open gate and as a result suffered some injuries.
Advise Valerie as to her liability, if any, under the law of tort for the injuries suffered by the horse.
Answer Five
Valerie will likely only be liable in negligence for the injuries suffered by the horse, if in fact one of the
children did open the gate. This will be a matter of evidence, and it is not clear from the given facts
what the true position is.
Assuming that a Court would on the balance of probabilities find that one of the children did open the
gate, the first issue which arises theoretically is the extent to which the child may liable, but more
practically speaking the core issue in relation to the damages suffered is the extent to which Valerie
may be liable for not remedying the actions of a child under her charge. There is a further theoretical
discussion in relation to which she may have had a duty to lock the gate even if one of the children
had not opened it (or had opened it but her supervision was non-negligent), but in practical terms it is
very unlikely that there are sufficient facts to make out that case.
A Child as Defendant
In the present case the children appear to be in or about five years old. It is unclear precisely at what
age minors can have responsibility as Defendants, but five years of age is likely at the point at which
liability cannot be imposed. In O’Brien v McNamee (1953) a child aged seven left lighted paper in
hay barn, causing barn to burn down. He was found liable for trespass although to establish trespass
the basic requirement is voluntary conduct and intentional action. In the present case, the child has
engaged in an act of trespass by opening the gate, and while ordinarily there is a direct
consequences test in this regard, it may not be possible to identify a level of intent in respect to a five
year old child opening a gate as readily, as it may be to identify the intent of a seven year old child to
be on a premises.
Negligence in Supervision
A parent or person in loco parentis may be held directly negligent for failing to control a child as a
breach of his own duty of care owed to third parties. In Curley v Mannion (1965), the 13-year old
daughter of the driver who opened the door of the car in the path of a cyclist. The Supreme Court
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acknowledged that the driver of a car may be negligent where he permits a passenger to open a
door without ensuring that other road users are not thereby endangered.
This rationale would seem to apply irrespective of the child/parent relationship but the Court will
impose a duty of care where there is a failure to control a child.
The majority of the case law refers to supervision of children in schools with respect to either a child
injuring themselves or a child injuring another child. The traditional test recognized by the Supreme
Court in Lennon v McCarthy (1966) was that the duty of a school teacher is “to take such care of his
pupils as a careful father would of his children”. More modern interpretations of this test have
simplified to being that of a prudent parent.
It may be assumed that a similar standard applies regarding any damage that may be caused to any
party by a child under supervision.
It is of course to be emphasized that the supervising adult need only act carefully or prudently, but is
not obliged to ensure that no damage or injury is caused by a child. An indicative recent judgment of
this proposition is Maher v Presentation School Mullingar (2004). The Plaintiff sustained an injury to
his eye when hit by pencil shot by another pupil from a rubber band. The teacher had her back to the
Plaintiff and was talking to another teacher in the classroom at the time of the accident. There was a
school rule of no rubber bands in class. The High Court dismissed Plaintiff’s claim and held that the
appropriate standard of care was that of prudent parents. The school was expected to be no more or
less vigilant that a parent in their own home. The Court stated that the school had a duty of care
which involved a degree of supervision appropriate to the needs of the situation and a breach of that
duty would only occur where there was an element of foreseeability. On the facts the Court
concluded that the Defendant could not have anticipated this incident and it was unreasonable to
expect teachers to search each pupil to ensure there were no rubber bands in bags or clothing.
In the present case, we are told that just outside a metal gate into a field, Valerie met her friend
Josephine and they struck up a conversation. Both Valerie and Josephine were happy to let the
children play along the road in relative safety. Valerie and Josephine lost track of time as they
continued talking when Valerie suddenly noticed that one of the children looked as if they were
beginning to get sunburnt. Valerie said that she had to go and take the children home. She was
extremely worried that the parents of the children would be very annoyed if any of the children were
sunburnt and she was anxious to get home as quickly as possible. As Valerie was about 30 yards
from where she had started back from home, she heard the metal clang of a farm gate swinging
open not far from where she had stopped with Josephine. Although Valerie had not opened the gate,
she could not be sure if any of the children might have done so. In any event, she decided that the
priority was to get home. A thoroughbred horse escaped from the field through the open gate and as
a result suffered some injuries.
It seems that Valerie was very close to the gate when she appreciated it was open. She was anxious
about the children and sunburn, but this could not quite be described as a priority in relation to which
a task of perhaps likely than a minute could not be performed. It is not clear from the facts whether
she had any knowledge that there were animals in the field, but it would appear reasonable to expect
an adult to be aware that closed gates in fields are generally for the prevention of the escape of
animals which pose a number of dangers to themselves or to other property, and in the
circumstances it seems likely that a test of reasonable foreseeability of damage would be met.
It also seems reasonably foreseeable that in the circumstances, if a gate was open, that it was
opened by one of the children who was playing in the area while she was talking to her friend (and
which it seems from the facts did not clang while she was standing by it talking). In these
circumstances, it seems clear that had Valerie given the matter any due or reasonable consideration
she might have concluded that (a) one of the children had opened the gate and (b) that there was a
reasonably foreseeable risk of injury by reason of an animal escaping as a result.
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Consequently she likely may be considered to be liable for the injuries to the horse if the Court is of
the view that a child did open the gate on the balance of probabilities.
Affirmative Duty of Care
Although it appears from the facts that it is more likely that one of the children opened the gate than
not, if this is not the case, a question may arise as to whether Valerie had an affirmative duty of care
to return to close the gate owing to the risk of injury.
The case law on this issue identifies an affirmative duty of care based on special or especially
proximate relationships between the parties (e.g. prison staff and prisoners (Creighton v Ireland
(2014)) or publicans and their customers (Walsh v Ryan (1993))) together with a foreseeability of
injury. However, absent these special factors, an affirmative duty of care is very difficult to make out.
A recent case concerning affirmative duties and the position of publicans regarding drink driving was
Flanagan v Houlihan (2011). The Defendant was the personal representative of a deceased man
who died while causing a head-on collision between his own car and that of another car under the
influence of alcohol. The driver of the other car was badly injured, and the passenger was killed. The
Defendant sought to hold the third party, the publicans who served alcohol to the deceased,
responsible for the injury caused to the driver. They had served him five to six pints of Guinness, and
it was his regular but not invariable practice to use his motor car to depart from the area where the
bar is located. On occasions he left his car adjacent to the bar and returned home by other means.
When he used other means to get home it was because he had formed the view himself that he was
unfit to drive, and it had not been necessary for others to make that decision on his behalf.
The Court preferred the approach identified in the United Kingdom and Australian case law over the
Canadian courts owing to differing legal obligations on publicans. The Court was satisfied that
Gleeson C.J., in the Cole v. South Tweed Heads Rugby League Football Club Ltd. case, correctly
identified the lack of a duty of care on a publican. The duty of care sought to be imposed by the
defendant would involve both an unacceptable burden upon ordinary social and commercial
behaviour, and an unacceptable shifting of responsibility for individual choice. An affirmative duty on
the part of a publican could only arise where the publican had assumed responsibility for the
deceased’s safety. The Court found that he was not a person who was so intoxicated that he could
not look after his own safety or was plainly incapable of taking care of himself. It was held that there
is generally no duty of care owed to the intoxicated, absent an assumption of responsibility or
exceptional circumstances. The claim that there was a breach of that duty in serving, or not desisting
from serving the deceased, was rejected on the basis that there is no such duty.
Significantly in the present case, Valerie has no proximate relationship as a pedestrian to the owner
of the field, and consequently, if she is not linked to the open gate by reason of the actions of the
children she was supervising, an affirmative duty of care could not be reasonably established.
Conclusion
Depending on the ultimate facts of the case, Valerie may held liable to the owner of the horse for the
injuries caused to the horse by reason of negligent supervision of the children, or a failure to remedy
the actions of a child under her supervision. If the children are found not to have responsible for the
opening of the gate, Valerie would likely escape liability.
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Question Six
Phyllis has been in the business of installing wood burning stoves in residential houses for over
twenty years. During that period of time the nature of the stoves and their installation had changed
very little. However, as they grew more popular over the last 5 years or so, both the stoves
themselves and the installation process had become more complex but Phyllis enjoyed the
challenges this brought and tried hard to keep up with all the new variations.
Jared worked for a major IT company and in every way, he was committed to an environmentally
sustainable lifestyle. On reviewing his heating system he decided that he would install a stove.
However, this would not be just any stove but a brand new design from a German company. He
bought the stove himself online. He was explain what he was doing to Phyllis when she offered to
install it for him free of charge as she said that she would value the experience of trying to keep up to
date with the latest in stove technology.
The installation proved challenging but Phyllis persevered. When it was all done she put in the log
guard which normally is not supposed to touch the glass of the stove door. However, Phyllis did not
read the instruction book which indicated in small print that due to the different technology used in
the stove, the log guard must touch the glass door otherwise the glass would shatter because it
could not deal with the extreme heat.
The following week, Jared had the stove working at maximum capacity when the glass shattered and
a spark flew out onto a laptop, destroying it. The laptop had been brought into the house by Ryan, a
friend of Jared’s. However, it was owned by Ryan’s employer – Acme, and contained the only copy
of a customer database that they had spent significant sums of money acquiring.
Advise Phyllis as to the potential liability, if any, it tort to Acme.
Answer Six
Phyllis’ business is in the installation of wood burning stoves and she has been doing this for 20
years. In Jared’s case, he needed a wood burning stove installed and Phyllis did this free of charge
on the basis that she would value the experience of trying to keep up to date with the latest in stove
technology.
It appears that the cause of the glass shattering in Jared’s stove is a straightforward matter, in that
Phyllis did not read the instruction book which indicated in small print that due to the different
technology used in the stove, the log guard must touch the glass door otherwise the glass would
shatter because it could not deal with the extreme heat, which is contrary to the approach taken in a
conventional stove which requires the guard not to touch the glass.
Thus, it is firstly a question of whether (a) Phyllis had a duty of care to install the stove correctly, and
(b) whether she breached the standard of care by not reading the instructions in their entirety.
Phyllis undoubtedly had a duty of care to use due care when installing the stove on the basis of the
facts provided. She did not profess to know in advance that she knew how it should be done
correctly, but it appears that it was suggested that she expected that she could do it correctly, and
notwithstanding that she was not getting paid for her work, there were no caveats given in relation to
her work that any error in her installation could cause damage or injury of any sort.
As to whether the standard of care was breached, this may be a somewhat subtle issue involving
overlapping factors. The factors which might be particularly apt for consideration appear to be as
follows:
Whether it was necessary to fully read the instructions in the circumstances.
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Whether it was reasonably foreseeable that a mistake would specifically cause damage to the stove.
A potential follow-on issue from point 2, is that if it was reasonably foreseeable that a mistake would
specifically cause damage to the stove, then it must be considered whether it was reasonably
foreseeable that the damage to the stove would subsequently cause damage to other property
(including the damage that was actually caused).
There may be some interest on an academic level to identify whether a professional standard of care
or a common standard of care for the provision of the installation service should be applied. It
appears clear however that the same conclusion would likely be reached regardless of which
standard is in fact applied.
The professional standard (as set out in Bolam v Friern Hospital (1957)) is described as being on
where there is a situation which involves the use of some special skill or competence, then the test
whether there has been some negligence or not is not the test of the man on the top of the Clapham
omnibus, because he has not got this special skill. Rather, the test is the standard of the ordinary
skilled man exercising and professing to have that special skill. The ordinary or common standard
test then, does have regard to the view of what the ordinary reasonable man (the man on the
Clapham omnibus, in the well-known comparison) would be, and this test has been described (e.g. in
Glasgow Corporation v Muir [1943]) as an impersonal test. It eliminates the personal equation and is
independent of the idiosyncrasies of the particular person whose conduct is in question. The
reasonable man is presumed to be free both from over-apprehension and from over-confidence, but
there is a sense in which the standard of care of the reasonable man involves in its application a
subjective element.
In the present case, Phyllis did not in fact profess the skill of a person who installs these types of
stoves, so she would be judged as a person who is used to installing the traditional kind, but who is
mindful of the fact that the stove in question is different. Given the context, it appears that a
professional of similar qualifications could not reasonably say that they would not read the
instructions, and nor does it seem likely that the reasonable man would say that he would not read
the instructions in these circumstances. The fact that the print was small, is unlikely to make a
sufficient difference in either case, in my view.
As to whether it might be reasonably foreseeable that a failure to read all of the instructions would
lead to damage of the stove, this is a more difficult question. This issue may require some detailed
investigation as to the facts. It certainly is the case that Phyllis didn’t personally foresee this difficulty
despite her (or as it turns out, because of) her experience with other types of stove, but the question
of whether she should have is more difficult. If she could not be expected to have foreseen this
possibility, then any liability she may be charged for with not having done so, cannot be made out,
and she is consequently absolved of any liability in negligence.
Assuming that there was a want of care at this stage, then the Court would be called upon to
consider whether the damage to the laptop is too remote. This also involves a test of what is
reasonably foreseeable, but it relates not to the damage to the stove’s glass, but rather the further
damage caused by the escaping spark to the laptop.
The reasonable foreseeability test regarding remoteness of damage was established in the case of
The Wagon Mound (1961) where the Defendant spilled oil at sea which then was transferred to a
nearby wharf which was ignited by falling molten material by welding work being carried out thereon,
and the Plaintiff’s wharf was destroyed. The Defendant was held not liable because damage by fire
was not foreseeable in the circumstances and the Court stated it does not seem consonant with
current ideas of justice or morality that for an act of negligence, however slight or venial, which
results in some trivial foreseeable damage the actor should be liable for all consequences however
unforeseeable and however grave, so long as they can be said to be ‘direct’. It is a principle of civil
liability, subject only to qualifications which have no present relevance, that a man must be
considered to be responsible for the probable consequences of his act. To demand more of him is
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too harsh a rule, to demand less is to ignore that civilised order require the observance of a minimum
standard of behaviour.
In the present case, what is at issue is what is reasonably foreseeable once the guard has shattered.
As the guard is present for the purposes of preventing the escape of the heat and burning material
which could otherwise damage a person or property, it would appear that it is indeed quite
reasonably foreseeable that property (in this case a laptop) would be damaged.
What may be said not to be reasonably foreseeable was the quantum of damage (i.e. the value of
the destroyed data). This idea was considered in Egan v Sisk (1986). In this case, the Plaintiff’s
warehouse was flooded due to the negligence of the Defendants. Their economic loss was
significant since their Christmas brochures were destroyed and could not be reprinted and posted in
time for their Christmas mail-order market. It was held that it is reasonably foreseeable that once a
warehouse is flooded, property stored therein will be destroyed. The Defendant must assume
responsibility for the full value of the goods thereby destroyed, whether they be expensive furs or old
masters. The Egan case established that the type of damage caused must be reasonably
foreseeable, but not necessarily the scale of the damage. If the damage caused is not reasonably
foreseeable it is deemed too remote and the Plaintiff will not recover.
Therefore, there does not appear to be any prima facie defence open to Phyllis should the
considerations of the Court reach this stage, however what is notable is that Ryan’s laptop was
owned by Ryan’s employer – Acme, and contained the only copy of a customer database that they
had spent significant sums of money acquiring. This appears to have been quite a perilous position
for Acme to have placed themselves in, and there therefore could be a strong case to be made for a
reduction of liability based on contributory negligence.
To conclude, if Phyllis is regarded as not having breached the standard of care owed to Thomas by
not fully reading the stove’s instructions; or if she has breached that standard, but the damage
caused in the form of the glass shattering was not reasonably foreseeable, then she will escape all
liability. If these two hurdles are overcome from a plaintiffs’ point of view, then the remoteness of the
damage issue will be considered. It seems likely that such a consideration would substantively go
against Phyllis, although she may claim contributory negligence as to the extent of losses suffered by
Acme.
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Question Seven
The Statute of Limitations provides for the timely resolution of tort actions by barring tort claims
following a specific period of time from the accrual of a cause of action.
Critically discuss those situations where the relevant limitation period may be varied in special
circumstances.
Answer Seven
Introduction
Limitation periods are governed by a number of statutes. Notably among them are, The Statute of
Limitations 1957 and 1991, the Civil Liability Act 1961, the Statute of Limitations (Amendment) Act
2000, and the Civil Liability and Courts Act 2004. In general, time limits are set for each category of
claim, and if the claim is not taken within this time limit, the claim will be statute-barred.
A concept inherent to the operation of limitation periods is that of the date of accrual. The time limit
only begins to run from the date upon which the action accrued, which is the date when all of the
constituent elements of the action first come into being. The date of accrual has had a significant
impact on the exceptions to the general time limit, and the definition of the “date of knowledge” is
crucial in this regard.
A general time limit of six years is given for an action to be taken in tort, and similar time limits are
given for other categories of actions. However, legislation provides a number of exceptions to this
general time limit of six years which depend upon the nature of the harm at issue.
The manner in which the rules seek to give certainty and ensure actions are processed in a timely
fashion which strikes an appropriate balance between the competing interests of both litigants, is
different depending upon the type of damage at issue.
Date of Knowledge
The 1991 Act brought about further exceptions to the limitation period in personal injury actions by
introducing the concept of the date of knowledge. S.2 applies to personal injury actions caused by
negligence, nuisance or a breach of duty of care. It states where the cause of action is dependent on
certain information which was not known by plaintiff initially, time will only begin to run from the date
upon which such knowledge accrued. The date of knowledge is defined as the date upon which the
plaintiff first had knowledge of:
The person alleged to have been injured had been injured;
The injury in question was significant;
The injury was attributable in whole or in part to the act or omission which is alleged to constitute
negligence, nuisance or breach of duty;
The identity of the defendant, and
If it is alleged that the act or omission was that of a person other than the defendant, the identity of
that person and the additional facts supporting the bringing of an action against the defendant;
This date of knowledge concept acted as an extension of the time limit, as it allowed persons to take
claims outside the normal limitation period, as it altered the date of accrual. Abuse of the section is
guarded against, however, as knowledge may be imputed where the plaintiff might reasonably have
been expected to acquire the information from facts observable or ascertainable by him or with the
help of a medical or other appropriate expert who it was reasonable to consult. Such knowledge will
not be fixed where the plaintiff took all reasonable steps to attain or act on such advice, but still was
not aware of the necessary information.
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The date of knowledge clause has a particular significance in professional negligence cases. In
Gough v Neary the defendant performed a hysterectomy on the plaintiff, and the SC held that time
ran from the date when she knew enough facts which, upon elaboration by an expert, constituted a
cause of action.
Personal Injury Actions
The first exception to the general rule is that of a personal injuries action. S.7 of the Civil Liability &
Courts Act 2004 now provides that an action claiming damages for personal injuries caused by
negligence, nuisance or breach of duty must be taken within two years from the date on which the
cause of action accrued. This exception was driven by a desire to reduce the risk of fabricated claims
long after their alleged occurrence and also to ensure the fresh availability of evidence. The section
further limited the previous period of three years, which was provided by the Statute of Limitations
Act 1957. S.49 of the 1957 Act provides that if the plaintiff was labouring under any disability at the
date of accrual, time shall not begin to run until that person is no longer under such a disability. This
section had a huge impact on the limitation of actions. Disability was described by the Act as
including a person under 18 years of age, a person of unsound mind, and convicts.
Assault Cases
There was previously some debate as to which time limit applies in cases of trespass to the person
resulting in personal injury. In Devlin v Roche (2002), the issue was whether proceedings for
personal injury caused by an assault and battery could be litigated within six years or whether it was
restricted to the three years for personal injury actions identified by s 11(2)(b). The SC held that the
words in s 11(2)(b) only imply unintentional acts causing personal injury. Accordingly, a Plaintiff may
institute proceedings for assault and battery within six years which is an intentional tort.
Sexual Abuse Cases
The previous definition of disability was further extended by the Statute of Limitations (Amendment)
Act 2000, which specifically provided for claimants suing on foot of “sexual abuse committed against
at a time when he had not reached full age”. The Act provides that if the plaintiff suffered a
psychological injury of such significance that his “will or his ability to make a reasoned decision to
bring such action was substantially impaired”, then the plaintiff is deemed to have been under a
disability for the purposes of the statue of limitations, and thus time will not being to run until the
disability ceases.
In Delahunty v SE Health Board & St. Josephs, the sexual abuse occurred in 1976, but proceedings
were only instituted in 1997. The plaintiff asserted that he had not discovered that his psychological
problems were due to the earlier abuse until he had sought out expert assistance. The HC found that
time had began to run when the expert had made the plaintiff realise that the abuse was the cause of
his psychiatric injuries.
Property Damage/Economic Loss Cases
The legislature has not introduced discoverability rules for latent damage to property or for pure
economic loss which remain subject to the six-year torts time limit. In Morgan v Park Developments
(1983), Carroll J sought to imply discoverability criteria into the 1957 Act on the basis that without
them the Act infringed the Plaintiff’s constitutional rights to enjoyment of property rights. The
reasoning was criticised by the SC in Hegarty v O’Loughran (1990), and the resulting situation is
clearly that non-personal injury suits do not currently benefit from any discoverability rules beyond
fraudulent concealment under s 71.
Although property cases do not benefi t from discoverability provisions, the courts tend to take a proPlaintiff approach to the issue of accrual date where the defect in the building was latent and
undiscoverable prior to actual discovery. This was evident in O’Donnell v Kilsaran Concrete Ltd (2
November 2001) where cracks appeared in Plaintiffs’ dwelling house four years after it was built. The
Plaintiffs attributed the cracks to settlement of the structure and the existing plaster in this area was
removed and replaced. Seven years after that, when the Plaintiffs had hired an architect to design an
extension, they were alerted to further cracking in the plaster of the lower section of the outside wall
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and discovered the cracks were due to defective blocks used by the builders. Herbert J found that
the cracks were likely to have occurred when the Architect inspected the premises and that until then
the defect had been latent. The Court concluded that the time began to run at that time.
In Forster v Outred & Co (1982), The Plaintiff signed a mortgage deed charging her property as
security for a loan between her son and a company. She claimed that the Defendant solicitors were
negligent in advising her to sign the deed, in not fully explaining to her what she was signing, and in
not instructing her that it also covered not only her son’s present loan but his future debts with the
company. The Defendant claimed she was statute-barred and the Plaintiff claimed that time only
started to run when, at a later date, demand was made for payment under the deed. The Court held
that in cases of financial or economic loss the damage crystallises and the cause of action is
complete at the date when the Plaintiff, in reliance on negligent advice, acts to his detriment, i.e. the
date when the Plaintiff signed the deed.
Fraud
Section 71 of the 1957 Act provides that where the defendant has fraudulently
concealed the existence of a cause of action, or where the plaintiff’s cause of action is based on the
fraud of the defendant, time will not begin to run until the date when the plaintiff discovers the fraud
or could through reasonable diligence have so discovered. The extension does not apply where the
defendant merely concealed information which the plaintiff did not need to ground his claim.
Conclusion
The manner in which the rules seek to give certainty and ensure actions are processed in a timely
fashion which strikes an appropriate balance between the competing interests of both litigants, is
different depending upon the type of damage at issue. While the exceptions employed appear to
take good account of the nature of the harm as it relates to the time at which a Plaintiff may be
expected to act, it would appear that some harmonisation of the position in respect of economic loss
cases with property damage cases would be appropriate. Very specific considerations apply in the
context of fraud or childhood sexual abuse, and certain forms of legally defined ”disability” and this
would appear to be an appropriate extension of the normal rules in light of the special position that
those plaintiffs are in, or have been placed in by the Defendant.
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Question Eight
Melanie worked for a small jewellery shop as a sales assistant. Part of her employment required her
to accept customer owned jewellery for repair by Thelma who worked on a commission basis.
Thelma would receive 50% of the repair charge and the shop would retain the other 50% as it
provided the business.
Some time back, Melanie began to notice that there was something not quite right with the items
which were being returned to the customers after their repair. She confronted Thelma about this who
then admitted that she would often replace real diamonds in the items submitted for repair with
cheap cubic zirconia imitations and sell the diamonds to some friends of hers. She offered Melanie a
share in the money to keep quiet about it. Melanie was unsure about it and said that she would have
to think it over. Later that day, Melanie found an envelope with €1000 in her jacket pocket with the
note:”Do the smart thing” written on it. Melanie decided then to do the right thing.
The following day a very wealthy customer brought in a €15,000 diamond necklace to have the clasp
repaired. Melanie passed it on to Thelma for repair. Her intention was that when Thelma gave her
back the fake diamond necklace she would immediately expose Thelma for the thief she was and
there would be the proof that nobody could argue with.
Unfortunately when Melanie got into work the next day, both Thelma and the necklace were gone.
Advise the jewellery shop as to any potential liability in tort for Melanie’s actions.
Answer Eight
An employer will be liable for the torts committed by its employees by virtue of the legal principle of
vicarious liability. The fact that Melanie was engaged in an act that strictly speaking her employment
does not necessarily suggest that her employer’s will not be held vicariously liable for her actions.
For the purpose of establishing vicarious liability, an important feature is the "control" element which
the principal can exercise over the subordinate. But this feature is not decisive: other features of the
relationship between the principal and the person doing the work, such as the method of pay (salary
or fee), the tax treatment of its "employee", the right to select or dismiss, whether the person
provides his or her own equipment or not, the degree of skill which a person possesses (professional
skilled person or unskilled worker), whether the contract is ''of service" or "for services" in the
ordinary person's opinion, whether there is a right to sub-contract" or whether the person doing the
work is integrated into the business, can also assist the court in determining whether the relationship
of employer and employee exists.
Given the level of control exercised, it is likely that Melanie would be considered an employee within
the meaning of the context of vicarious liability, and if she was negligent within in the course or scope
of her employment, the jewellery shop could be liable.
It seems likely from the facts that Melanie was in fact negligent. She had every reason to expect that
the customer’s jewellery would be tampered with and its value would be significantly undermined
(notably if the material in the jewellery is replaced, it is an academic point whether it is the ‘same’
jewellery but it is devalued or if in fact it could be considered different jewellery and the owner’s
jewellery is actually stolen). The lofty goal which Melanie apparently has, would not detract from
negligence that her actions inherently involve.
Assuming there is scope for a finding in negligence, the rationale behind the imposition of vicarious
liability on an employer is driven by the degree of authority and control an employer has over an
employee and the assumption that he should take care to ensure that his employees do not cause
harm to any other in the course or scope of their employment. In order for vicarious liability to be
attached to the employer, it must be established wrongdoing occurred within the scope or course of
that relationship.
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There would appear to be no question but that Melanie is an employee of the jewellery shop, and if
negligence is present (as it appears to be), the core question would be whether she was acting
within the course and scope of his employment such that her employer should be held liable.
The “course” test is considerably broader than the “scope” test. The former is where the employee is
doing something that he is employed to do, or anything which is reasonably incidental to his
employment. The latter is more nebulous and focuses on whether the employee acted within the
parameters of the authority delegated to him by the employer. The nature of the wrongdoing will
generally determine what test is; accidental/negligent acts will normally come within the “course” test,
while intentional acts which are extraneous to an employee’s duties will come within the “scope” test.
The time and place where the act occurred will also play a factor.
In Boyle v Ferguson the employer was found liable for the injury caused to two women who were
taken for a test drive at 7pm by the car salesman, whereas, in O’Connell v Bateman no vicarious
liability attached where the employee borrowed a work-car and had an accident while travelling to
see his parents.
While the liability imposed under the “course” test is understandable as the tort was generally
committed while the employee was carrying out a duty which he was instructed to do, the liability
imposed under the “scope” test can be a little more contentious, especially when the employee
intentionally commit wrongs which are completely outside the course of his employment. Arguably,
Melanie’s actions being well-intentioned, though misguided, would likely be interpreted as within the
scope of employment. In this regard it would also be worth noting the cases in which employees
were directly responsible for theft or fraud for comparison.
In Johnson & Johnson v CP Security (1986), an employee of the Defendant security firm was
involved in a theft carried out at the Plaintiff’s plant who had hired the firm to protect their goods from
theft. The Defendant security firm was deemed vicariously liable for theft carried out by their
employees Egan J rejected the argument that vicarious liability could never be imposed for the
criminal acts of employees and held that the Courts will have regard to the duty owed by the
employer to the third party. In this case the Court concluded that the unlawful conduct arose out of
opportunity presented in course of employment.
This case would appear to be squarely on point in Melanie’s case, albeit that her involvement was
less direct than in the Johnson case. It may be worth noting however that in cases involving fraud
where the employee but not the employer has benefited, the courts have come to a similar
conclusion – e.g. Lloyd v Grace, Smith & Co (1912); United Africa Co Ltd v Saka Owoade (1957).
In the present case, although Melanie was carrying out her duties in a manner which might be
otherwise than the employer might have advised, but she was nonetheless carrying out duties that
were ostensibly for the benefit of the employer. This would increase the likelihood that vicarious
liability would be imposed.
There would thus appear to be a strong case for imposing vicarious liability on the jewellery shop for
the loss of the necklace.
Insofar as there may be a defence that this was in fact the act of a third party, it seems clear from the
case law that this case could not be made on the basis of the knowledge which Melanie possessed.
Indicative examples of this type of application of the law would be Haynes v Harwood (1935) in
which a mischievous boy (third party) who provoked the horses to bolt and cause damage was not a
novus actus interveniens, since it was the Defendants’ duty to supervise the horses; Stansbie v
Troman [1948], in which the Defendant decorator was held liable for the theft of the Plaintiff’s
jewellery by a third party as he had been instructed to lock the house when he finished his job; and
Cunningham v McGrath Bros (1964), in which the Defendants were held liable for injury caused by a
falling ladder, even though the ladder had been moved by a third party, since the Defendant had
been under a duty to take care that their ladders did not cause injury or public nuisance.
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In light of the foregoing, it also seems unlikely that the jewellery shop could hope to escape liability
on the basis of Thelma’s role in the theft.
™
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Exam Paper - March 2014
Question One
S.2 of the Defamation Act of 2009 defines a ’“defamatory statement” [...as] a statement that tends to
injure a person’s reputation in the eyes of reasonable members of society’. Critically analyse this
definition, paying particular attention to relevant case law in Ireland and the extent to which the
understanding of ‘reasonable members of society’ may vary from time to time.
Answer One
Under the former rules in relation to defamation the form of the defamation in question (should the
other criteria be met) would have been categorized as both “libel” and “slander”. Libel was the more
“permanent” form (even a single live broadcast would have fallen into this category) and refers to
publishing a statement. Slander was the oral or “impermanent” form of defamation. Under the
Defamation Act 2009 which came into force on 1st January 2010, the distinction has been dispensed
with in section 6(1), and the same term, “defamation” will apply to both forms. Previously “libel” but
not “slander” would have been actionable per se, and specific damage need not have been shown
as it will be assumed that if the elements of defamation are made out, that damage to reputation is
presumed. Pursuant to section 6(5) of the 2009 Act, no special damage need be shown to render
defamation actionable.
Libel had been a common law criminal offence, but section 35 of the 2009 Act has abolished this
offence at common law and in any event that aspect is beyond the remit of the present question.
Broadly speaking, the elements of defamation are:
Publication
Identification
Defamatory effect
In this respect the 2009 Act reflects the traditional tests and defines the tort accordingly at section 6
subsections (2) and (3). It is now stated that the tort of defamation consists of the publication, by any
means, of a defamatory statement concerning a person to one or more than one person (other than
the first-mentioned person), and “defamation” shall be construed accordingly. A defamatory
statement concerns a person if it could reasonably be understood as referring to him or her.
Publication
The definition of “statement” in section 1 of the 2009 Act is one made orally or in writing; visual
images, sounds, gestures and any other method of signifying meaning; a statement— (i) broadcast
on the radio or television, or (ii) published on the internet, and; an electronic communication.
Identification
In order for identification of the potential plaintiff to be present, the test is whether the ordinary
sensible person would be reasonably likely to understand that the words referred to the Plaintiff. The
judge would answer the question of law as to whether the words are capable of referring to the
Plaintiff, and if this test is met, the jury would decide whether people did believe that the words
referred to the plaintiff.
Defamatory Effect
The traditional test for defamatory effect was whether the words complained of tend to lower the
plaintiff in the estimation of a right-thinking member of society or tends to make them shun or avoid
the plaintiff. Such lowering in estimation need not be shown in fact and in establishing defamatory
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effect, the intention of the defendant was irrelevant. The quoted definition in section 2 of “defamatory
statement” is, “...a statement that tends to injure a person’s reputation in the eyes of reasonable
members of society,” and it is indicated that “defamatory” shall be construed accordingly.
Consequently the definition of the tort has not substantially changed.
Case law may be said to be of limited assistance in establishing whether or not a statement is
defamatory owing to changes in social mores and what the perspective of “reasonable members of
society” would be; together with the fact that the circumstances tend to vary widely from case to
case.
In the case of Cassidy v The Daily Mirror (1929), the Defendant published a photograph of the
Plaintiff’s husband with another woman alongside a caption announcing the couple’s engagement. It
was held to have defamed the Plaintiff by reason of the innuendo that she was living in immoral
cohabitation with Mr Cassidy and misleading her neighbours and friends as to her marital status. The
broad proposition that may be taken from this case is that sexual immorality may have a defamatory
effect, but this type of statement would not be regarded as gravely as it was in 1929.
In the case of Sinclair v Gogarty (1937), the judgment was worded in equivocal terms, but it may be
inferred that part of the plaintiff’s claim which was upheld concerned the publication of an
anonymous song which suggested that the plaintiff may have charged high prices for his
merchandise and then spent his profits in seeking “new mistresses”. It would appear likely that such
a remark would also not attract the protection of the Courts now, in light of changed perspectives on
matters concerning sexual relationships.
Despite the absence of illegality (which would formerly have been present, and which was pleaded
by the Defendant), in the case of Reynolds v Malocco t/a “Patrick” (unreported, High Court, 11
December 1998), there was a successful application to prevent the publication of an article in which
it was suggested that the plaintiff was a practicing homosexual and it was held that in the appropriate
context, it was capable of having defamatory effect (where untrue). Despite the relatively recent date
of the judgment in the Reynolds case, there would appear to have been a significant increase in the
number of people who would not make any moral link between sexuality and respectability, there has
been an increase in legal rights and obligations attaching to same sex relationships, and without a
specific context, it may be more difficult now, than it was in 1998 to make a case on a simple
suggestion that a person was homosexual.
However, a context in which sexual behavior would be capable of grounding a case in defamation
would be where it is linked to a sexual offence, or is linked to a particular individual who has a
particularly bad reputation. These contexts existed in the cases of Hill v Cork Examiner (2001) and
Watters v Irish Daily Star on Sunday (2010).
In Hill v Cork Examiner (2001) a photo was published of a criminal indicating that a prisoner was
incarcerated in wing of jail reserved for sex offenders when in fact the Plaintiff had been convicted of
assault. The Court held that the Defendant could put evidence of his actual conviction to jury in
mitigation. The Plaintiff was awarded €60,000.
In Watters v Irish Daily Star on Sunday (2010), The plaintiff was a serving prisoner in Arbour Hill
Prison for convictions contrary to the Child Trafficking and Pornography Act 1998. Materials
published were alleged to have contended that a “seedy” and “weird” relationship existed between a
notorious sex offender prisoner and the plaintiff, entailing that they had a bizarre and secretive
relationship. The applicant sought declarations pursuant to s. 28 Defamation Act 2009 that the
defendant had published false and defamatory statements and sought a correction order and
prohibition of further publication pursuant to ss. 30 and 33 of the Act of 2009. The defendant argued
that the plaintiff had no reputation that could be defamed in the eyes of right-thinking persons, as a
person with child pornography convictions. It was held by the Court that the plaintiff had voluntarily
admitted guilt to serious offences and had expressed remorse and contrition. He had made himself
available for psychiatric evaluation and psychological assessment. He had sought a place on a
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treatment programme and had sought rehabilitation. Generally, admissions of guilt mandated
mitigation in sentence. The applicant was entitled to a declaratory order under s. 28(1) of the Act of
2009. A correction order followed. If the parties could not agree on the content of the order then the
Court had powers to direct publication of a summary of the Court’s judgment. The applicant was
further entitled to an order pursuant to s. 33 of the Act of 2009 prohibiting the defendant from
publishing further false and defamatory statements.
Conclusion
It may be argued in light of the foregoing cases which share a common theme of sexual impropriety,
that there may be considerable divergence in the outcomes of defamation cases, based upon the
changing standards of reasonable members of society.
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Question Two
Toms owns a semi-detached house in a small housing estate. The estate was predominantly
occupied by students of the local university, although there were few of the traditional residents left
behind. The house itself is located on a corner, so that the side boundary of Tom’s back garden
consists of a brick wall that separates the garden from the footpath that runs alongside.
Over the years, Tom has noticed that the mortar between the bricks has begun to deteriorate but due
to financial pressure he has been unable to do anything about it. During Christmas, a severe storm
brought the brick wall down and it collapsed on to the footpath. Fortunately no one was present and
Tom was grateful that no harm had been done. Tom realised that he should pick up the bricks and
stack them safely inside his garden but he had to leave for an important business appointment which
meant that he would be away overnight. Since most of the estate was empty as the students had
gone home, Tom placed two traffic cones on either end of the debris and strung some tape between
these cones to keep people out and make them aware of the dangers. Tom headed to his business
meeting.
Later that night the wind picked up again and the cones and tape were blown away. Jerry, a student
who had returned early from Christmas break after arguing with his parents was returning from the
local pub highly inebriated when he spotted the debris and began to walk around it. Unfortunately, he
did not spot the single brick that had fallen beyond the main bulk of the debris and tripped over it,
fracturing his skull.
Advise Tom as to whether he is the cause of any potential tort action by Jerry.
Answer Two
In the present scenario, Tom should be concerned that he may be sued under the tort of Public
Nuisance.
This cause of action is concerned with rights enjoyed by members of the public. It concerns conduct
which leads to unreasonable interference with rights enjoyed by the public as a whole or
considerable class of the public and relates to public rights-of-way, rights of access to public roads,
paths, waterways and other rights such as the right to fish, right to conduct business. As distinct from
an actionable private nuisance, public nuisance is only privately actionable if the Plaintiff suffered
‘particular damage,’ and in this case it seems clear that Jerry’s personal injury meets that criterion.
The elements for making out a case in public nuisance will be set out hereunder.
Conduct for Which the Defendant is Responsible
The tort of public nuisance covers active conduct by the Defendant, omissions on the part of the
Defendant and acts/omissions by third parties for whom the Defendant is responsible. In
Cunningham v McGrath Bros (1964), the Defendants were held liable for injury caused by a falling
ladder, even though the ladder had been moved by a third party, since the Defendant had been
under a duty to take care that their ladders did not cause injury or public nuisance. In the present
case, while Tom may have escaped liability if the issue were simply the collapse of the wall, in the
circumstances in which he did not remedy the danger, this may be regarded as an actionable
omission. It would appear that the only conceivable way to avoid this conclusion would be to suggest
that if Tom could convince a Court that his actions in placing the cones around the bricks was
reasonable in the circumstances, and the high winds which blew the cones and tape away were
unforeseeably strong, then it could not be said that he was responsible for the consequences by way
of omission. That said, given that the winds were high enough to blow down the wall in the first
place, this argument would appear to be a weak one.
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Damage/Interference with Rights
Damage cannot be presumed in cases of public nuisance and the Plaintiff must prove particular
damage (other than disruption of a public right) as a result of conduct for which the Defendant is
responsible. There is some confusion in relation to what constitutes particular damage broadly but
the Irish courts are of the view that it is sufficient that the Plaintiff suffer a higher degree of harm than
other members of the public generally, and personal injury has been deemed a sufficient degree of
harm. Jerry would appear to have met this criterion by reason of his personal injury. Personal injury
caused by a wall falling on a pedestrian was considered sufficient damage to be actionable in the
case of Mullan v Forester (1921), and as set out above, for a ladder falling on the Plaintiff in
Cunningham v McGrath Bros (1964).
Causation
A Plaintiff must prove the causal link in the normal way and this would usually require a
demonstration that the ‘but for’ test has been met. Although Jerry appears to have been highly
inebriated and possibly angry at the time of the incident, it is unlikely to be possible to suggest that
he would have fallen in any event, even if the brick had not been present on the road. His state of
intoxication however, may provide a partial defence by way of contributory negligence, and that issue
will be set out below.
d. Defences
As well as the other common law defences applicable to cases of general negligence, contributory
negligence will apply in the normal way in public nuisance cases, and the Plaintiff’s own conduct may
be considered to have contributed to the nuisance, and their damages reduced accordingly. In this
regard, Jerry’s high levels of intoxication and possibly his angry state of mind, may have impaired his
ability to respond normally to hazards and he may have any damages otherwise payable, reduced
accordingly. By way of example, in a contributory negligence claim in a case called Boyne v Bus
Atha Cliath (2002), the Plaintiff customer arrived on the Defendant’s bus in a mildly drunken state.
When disembarking from the bus, the Plaintiff stumbled and the bus driver, failing to notice this,
pulled away from the stop and drove over his leg. The Court accepted that if the Plaintiff is under the
influence of drink to an extent that affects his ability to take care of himself, and whether he knows or
ought to know of the risk he is running, this is a factor relevant to the existence and the extent of the
Defendant’s duty of care. The Court held that the bus driver had been aware of the Plaintiff’s
drunken state and he found the Defendant negligent and liable. In assessing the Plaintiff’s conduct
for the purposes of contributory negligence, his intoxicated state is to be disregarded and this is so
whether notwithstanding his intoxicated state he knew or ought to have known of the risk which he
was running or was incapable of so knowing. With respect to the Plaintiff’s own drunkenness and the
defence of contributory negligence, the Court said the conduct must be evaluated as if the Plaintiff
were sober. The Court concluded that if sober he would have moved himself to a position of safety
and would not have stumbled and liability was apportioned 75 percent to the Defendant and 25
percent to the Plaintiff.
Conclusion
In conclusion, it would appear likely based on the facts at issue and in light of the law set out above
that (a) Tom is at risk should an action be brought against him for the tort of public nuisance causing
Jerry’s injury; but that, (b) there would be a potential partial defence of contributory negligence
available.
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Question Three
Mary works as an orderly for Happy Daze, a retirement home. She has been employed by them for
over ten years. Although Mary has had no formal training, she has seen the retirement home grow
and grow and has steadily become more senior and has been given substantial responsibility. She is
now in charge of the night shift and is responsible for a staff of three.
In recent times, Mary has noticed how the retirement home has begun to accept more problematic
residents, some of whom are in the early stages of dementia. Handling these patients has become
somewhat of an issue for a variety of reasons, but Mary has never complained and has always urged
her team to make allowances.
Late one night, Mary heard a commotion coming from one of the patients rooms. When she arrived
there, Mary found Harry, a newly arrived patient, screaming at the top of his voice that he needed to
get out of bed. However, two of her team were physically restraining him. Mary believed that this
aggravated the situation and told them to release Harry and leave the room. Although Mary was
alone in the room with Harry contrary to regulations, this seemed to calm Harry and he explained to
Mary that he simply wanted to get up and stretch his legs. Mary sat down beside him on the bed and
said that it would not be a problem and she would help him up. As she did so, Harry swung a blow at
her and although he missed he stumbled and both he and Mary fell to the ground. Mary broke her
leg in the fall. Mary only found out afterwards that Harry’s file contained a warning that he was prone
to erratic behaviour.
Advise Mary if she has any claim in tort against Happy Daze as a result of these events.
Answer Three
Mary is seeking advice as to whether she has any claim in tort against her employer, Happy Daze as
a result of events which saw her injured by a patient who was attempting to injure her. The class of
patient who has injured her would likely be within that which Mary has described as “more
problematic,” and who were a class which were increasingly accommodated in the retirement in
recent times. Although problematic, the change to an increased number of this type of patient was
not the subject of a complaint by staff in relation to their working regime.
There are two obligations of an employer which appear relevant in the given scenario. The first is an
obligation on an employer to provide a safe system of work, and the second is to employ competent
coworkers. It will also be necessary to consider any defences which may be open to Happy Daze.
Duty to provide a safe system of work
The employer’s duty is to provide a reasonably safe system of work, which encompasses adequate
training, supervision and method of operation, case in design and implementation and operation of
work practices.
In the case of Walsh v Securicor Ltd [1993], the Plaintiff, a courier, was ambushed by armed raiders.
The Court held that the provision of a police escort was not sufficient due to the high-risk job and the
Defendant should have changed the times of the run and was therefore negligent.
In O’Reilly v Iarnroid Eireann [2002] The Supreme Court affirmed HC’s decision that the Defendant
was negligent for actively condoning the unsafe system of disembarkation of employees from moving
trains.
Plaintiffs do not have to establish what alternative system of work ought to have been used but
Plaintiff’s often do use experts to give such evidence. There are no clear rules in this regard - Dixon
v Cementation Co Ltd [1960]
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It could be argued that Happy Daze have failed in their duty in providing a safe system of work by not
providing either adequate training for Mary in relation to handling the more problematic patients; for
condoning incorrect work practices; or failing to put in an adequate information system in relation to
advising staff of dangers posed by patients by reason of their medical history.
There may also be a possibility for Mary to sue for a parallel and similar breach of statutory duty.
Because there are no express provisions excluding a civil action, an employee can bring a civil
action for breach of the Safety Health and Welfare at Work Act 2005. Employers owe the duties
outlined in the act, many of which mirror the duties owed at common law. However, the Act imposes
substantially more, and more detailed, duties than the common law. The Act contains a
comprehensive list of duties placed on an employer in respect of his employees. The employee also
has duties placed upon him under the Act. Finally there are some duties placed on the employer in
respect of non-employees. In particular, Mary may seek to rely on sections 8(1) and 8(2) of the Act
which state as follows:
8.—
Every employer shall ensure, so far as is reasonably practicable, the safety, health and welfare at
work of his or her employees. —
Without prejudice to the generality of subsection (1), the employer’s duty extends, in particular, to the
following:
managing and conducting work activities in such a way as to ensure, so far as is reasonably
practicable, the safety, health and welfare at work of his or her employees;
managing and conducting work activities in such a way as to prevent, so far as is reasonably
practicable, any improper conduct or behaviour likely to put the safety, health or welfare at work of
his or her employees at risk;
Duty to Provide Competent Co-workers.
This duty is self-explanatory and is continuing in nature and therefore employers must continue to
monitor their employees to ensure they are capable and do not pose a danger to their fellow
employees. The employers’ actions or omissions in this regard will be judged by standards of
reasonableness. Depending on the nature of the job, employers may be required to have an
adequate supervisory system to ensure that co-workers are adequately skilled.
In the Supreme Court case of Lynch v Binnacle t/a/ Cavan Co-op Mart (2011), the fact were that the
Plaintiff worked as a cattle drover and he was herding cattle from pens and this was a threeperson
job. Three drovers were working that day, but his two colleagues absented themselves to take care
of their own business at the market. Because he was acting alone, in order to open the gate, he had
to enter an individual pen and pass behind a bullock, and it kicked him the groin, causing injury.
It was held by the Supreme Court that the actions of the other drovers in deserting their posts was
negligent, that this negligence caused the plaintiff’s injuries, and that the employer was hence
vicariously liable. Fennelly J. also found that the employer was under a non-delegable duty to
provide a safe work environment for the plaintiff, an alternative basis for the same result. The Court
reduced recovery by 33% as a result of contributory negligence.
The reasoning of the Supreme Court would appear applicable to the facts presented by the present
scenario in which Mary was of the view that her co-workers were not in a position to deal adequately
with the patient, but her employer will only be liable insofar as that assessment is regarded as being
objectively reasonable by the Court.
Contributory Negligence
Owing to section 34 of the Civil Liability Act, 1961 the award of a plaintiff against a negligent
defendant may be reduced proportionately to the extent to which their own negligence contributed to
the injuries they have suffered. In the present case it is arguable that Mary’s actions in dismissing
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her colleagues and the manner in which she dealt with the patient against regulations contributed to
her injuries, but insofar as this defence is arguable, it would be difficult to quantify any probably
reduction as it will depend upon all of the circumstances of the case.
Conclusion
In light of the information presently available, it would appear that Mary would have a strong case
against her employer for breach of duty.
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Question Four
Critically analyse the concept of concurrent wrongdoers under S.11 (1) of the Civil Liability Act 1961
paying particular attention to the extent of the responsibility owed both between the concurrent
wrongdoers themselves and jointly to the plaintiff.
Answer Four
Definition of Concurrent Wrongdoers
Section 11 (1) of the Civil Liability Act 1961 provides that “two or more persons are concurrent
wrongdoers when both or all are responsible to a third person ... for the same damage”. Section 11
(2) specifically provides that persons may be concurrent wrongdoers by virtue of vicarious liability of
one for the other, breach of a joint duty, conspiracy or concerted action to a common end, and
independent acts causing the same damage. There is concurrent liability so long as one injury has
been caused to the Plaintiff irrespective of whether the wrongdoers have acted in concert or
independently. Where different injuries occur (one Defendant injures arm, other Defendant
separately injures leg) the Plaintiff must institute two sets of proceedings but where the different
injuries result in one ultimate condition (damage to separate eyes resulting in total blindness), the
Plaintiff may sue the Defendants in one set of legal proceedings as concurrent wrongdoers.
Section11 (3) provides that “where two or more persons are at fault and one or more of them is or
are responsible for damage while the other or others is or are free from causal responsibility, but it is
not possible to establish which is the case, such two or more persons shall be deemed to be
concurrent wrongdoers in respect of the damage.” This provision covers situations such as where a
team of hunters shoot at prey but accidentally shoot the Plaintiff and it is not possible to establish
precisely whose bullet entered the Plaintiff.
Principle of Full Responsibility
Each concurrent wrongdoer is fully liable for the whole of the Plaintiff’s loss. This is known as the
principle of full responsibility. Section 14 states that the court can give judgment jointly or separately
against the Defendants, and if jointly it shall have the effect of being given separately against each
Defendant. Thus the Plaintiff can elect to extract judgment from any of the Defendants and that
Defendant is forced to seek contribution from the other Defendants in a separate application under s
21. The constitutionality of this principle was challenged in Iarnrod Eireann v Attorney General,
Gaspari et al (1996) in the Supreme Court. In an earlier ruling, the Court held Iarnrod Eireann 30
percent liable and a cattle owner 70 percent liable for injuries sustained by passengers when a train
derailed after colliding with cattle. In accordance with his rights under s 14 of the Act, the Plaintiff had
elected to extract full judgment from Iarnrod Eireann. However, Iarnrod Eireann’s right under s 21 to
obtain contribution from the remaining Defendants was worthless as the cattle owner was uninsured
and it faced an estimated total bill of £3.9 million for all the injured passengers.
The applicant challenged the Act’s policy of letting the loss fall on the shoulders of the deepest
pocket regardless of fault, as a disproportionate, unfair, and arbitrary attack on property rights
contrary to Articles 40.3 and 43 of the Constitution. The Court upheld the constitutionality of the
provision and held that any structural changes in the law governing concurrent liability would have to
be effected by the executive. In response to the submission that damages should be reduced
wherever a concurrent wrongdoer will be unlikely to obtain contribution from a fellow concurrent
wrongdoer: “The wrong done to the Plaintiff is regarded as indivisible. … [I]f a deficiency has to be
made up in the payment of damages, it is better that it should be made up by someone in default
than that a totally innocent party should suffer anew.”
Procedure Available to Plaintiff
Where the Plaintiff is satisfied that each concurrent wrongdoer has the means to satisfy a judgment
the Plaintiff may agree to an apportionment of damages between the Defendants under s 14 (3). In
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this case, satisfaction by one co-Defendant of his share in the damage does not relieve the other coDefendants of their shares and because they have agreed to an apportionment of damages the
Defendants are not entitled to contribution from each other under s 21. Where a judgment against
one of the co-Defendants remains unsatisfied, the Plaintiff may be entitled to return to court to get an
order that the shortfall be distributed amongst the remaining Defendants.
Section 13 provides that the Plaintiff can sue one, a combination or all of the concurrent wrongdoers
in one set of proceedings and, where possible, the Plaintiff should join all wrongdoers in one set of
proceedings. Under s 32, where the Plaintiff sues the concurrent wrongdoers in the one action, each
Defendant has a right to give evidence not only against the Plaintiff but also against the other alleged
concurrent wrongdoers.
Section 18 provides that where a Plaintiff proceeds against a concurrent wrongdoer the Plaintiff is
not precluded from subsequently proceeding against another wrongdoer. However, where separate
actions are taken against concurrent wrongdoers, the court is bound by the relevant findings of fact,
including the Plaintiff’s contributory negligence reached by the earlier court. The damages awarded
in subsequent action cannot exceed the original amount awarded and, most importantly, the Plaintiff
cannot recover costs of the subsequent action unless there were reasonable grounds for bringing the
separate action. The HC can order that actions taken separately against independent wrongdoers be
‘consolidated’ into one action where appropriate and this is provided for under Order 49 of the Rules
of the Superior Courts.
Procedure Available to Concurrent Wrongdoers
Under s 21 (1), contribution may be obtained between concurrent wrongdoers who are liable in
respect of the same damage. Section 21 provides that the contribution is intended to be “just and
equitable having regard to the degree of [the] contributor’s fault”. The Court stated in Kelly v
Jameson (1972) that fault in this instances is blameworthiness not the causative factors. Due to the
difference between ‘fault’ and ‘liability’, this may have the effect of one concurrent wrongdoer paying
considerably less than his causative share. The decision in Kelly was affirmed in Iarnrod Eireann v
Attorney General, Gaspari et al (1996) and the Court noted that: “However difficult the consequences
may be of using blameworthiness as the exclusive criterion for apportioning liability either in cases of
contributory negligence or contribution between concurrent wrongdoers, they are less than those
caused by any attempt to make causation the criterion.”
Section 23 provides that a contribution is obtainable by one wrongdoer from another in respect of the
amount by which the sum paid by one exceeds his just proportion. In this way the contribution is
obtainable only after damages have been paid over to the Plaintiff.
The application for a contribution is a matter for the Defendant and will depend on the parties to the
proceedings. Where the concurrent wrongdoers are sued in the same action by the Plaintiff, a coDefendant who seeks contribution or indemnity from a fellow co-Defendant must serve a Notice for
Indemnity or Contribution on, before or after judgment. A separate court application is not necessary
and the court then determines the issue of contribution or indemnity after the hearing of the main
action. Where the Defendant seeks a contribution from a concurrent wrongdoer who is not being
sued in the same action or at all, he must apply to court to serve a Third Party Notice. The court
determines this issue after the hearing of the main action and the Defendant is only entitled to
recover contribution from a third party if the Plaintiff in the action would have succeeded in
proceedings against the person from whom the contribution is claimed. A third party joined by a
Defendant is not a co-Defendant to the action but if the Plaintiff wishes to target the third party for
total or partial judgment, the Plaintiff may apply to court to join the party as a co-Defendant, which is
usually done orally on the day of the Defendant’s application to serve the Third Party Notice. A Third
Party notice must be served by the Defendant as soon as possible and the Courts have discussed
this procedure on a number of occasions.
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Section 31 provides that the limitation period which applies to a Plaintiff bringing the proceedings
also applies to the wrongdoer seeking the contribution or an alternative limitation period of two years
after judgment is given or damages paid applies and the Defendant can avail of which ever period is
longer.
In practice, a Defendant should proceed against a concurrent wrongdoer as soon he is aware of the
Plaintiff’s claim and potential claim for a contribution from another party. The Courts have discretion
whether to allow the Defendant to seek a contribution from another party, even where the Defendant
initiates the application within the limitation period. The timing of the application brought by the
Defendant and the prejudice suffered by the other parties to the proceedings will be taken into
account.
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Question Five
Fred rented a commercial unit in a small shopping centre from Acme Ltd. Unfortunately given the
economic downturn, he was the sole occupant in the centre but he felt that he could make a go of it
selling used items, ranging from fairly common place items to the more esoteric and exotic.
When he was setting up, he noticed that one of the floorboards was exceptionally loose. As he was
trying to fix it, he found that in fact it was covering a small stairwell that led to a low basement directly
underneath the shop. When he asked the landlord, he was told that the basement had been out into
the units to provide for storage but that no one really wanted them so they had then been closed up.
Fred was delighted because he felt that he could store the more exotic items for his discerning
customers. Accordingly, he made a trapdoor to the stairwell and began to store some really
interesting antiques down there, including artefacts from around the world which he would retrieve on
special request from his customers.
Lately he has seen several teenagers playing in the unused units and has also found a small hole
between his basement and the next and he is suspicious that the teenagers are coming through this
hole and playing with his stock. He had plans to seal off the hole but never got around to it.
Last week, a heavy juke box was being delivered to the shop. While Fred was distracted by a
customer, the delivery people rolled it over the trapdoor which collapsed. It fell on Tommy, one of the
local teenagers who had been acting as lookout, listening in case anyone opened the trapdoor while
his friends examined Fred’s stock. Tommy broke his arm.
Advise Fred as to any potential liability in tort with respect to Tommy’s injuries.
Answer Five
There are two sets of rules which the Court could conceivably apply in the present scenario. The first
is to treat the cause of injury suffered by Tommy as a “danger owing to the state of the premises,”
i.e., within the rules governing occupiers’ liability; or secondly, if the Court were to deem the cause to
be the negligent act of leaving an access point to his basement to teenagers in combination with the
negligent act of a juke box to be transported across a trapdoor which could not hold its weight.
Occupiers’ Liability
The liability qua occupier aspect would be governed by Occupier’s Liability Act 1995 (“the 1995 Act”)
owing to the fact that the injuries suffered by Tommy might be said to be regarded to have occurred
owing to a danger brought about by the ‘state of the premises’. This covers the condition of the
premises and relates to static condition of the land as opposed to active operations. At issue in the
present case is a trap door collapsing under weight, and if the Court would judge the cause to be a
defect in the trap door, then this would appear to fall within the factual remit of the 1995 Act. If the
cause was deemed rather to be the failure to have regard to the fact that a juke box is too heavy to
be safely brought against an otherwise safe trap door, then negligence principles would apply.
The 1995 Act replaces the previous common law position and arose out of controversy surrounding
in McNamara v ESB, which imposed liability on the defendant owner of land for injuries sustained by
a trespasser on his land, and which lead to land owners to seek increased clarity in relation to their
duty of care.
The “occupier” for the purposes of the 1995 Act is defined in terms of control over the state of the
premises and the extent that it is reasonable to impose a duty in respect of an entrant and a
particular danger upon that person. Consequently, more than one person can be the ‘occupier’ for
the purposes of the 1995 Act. In the present context, this would likely be Fred as the tenant, and in
particular as the tenant who installed the trap door.
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The 1995 Act classifies the different category of duty owed by occupiers to trespassers, visitors and
recreational users in respect of ‘dangers’ present on the property and defines ‘damage’ for which the
occupier may be liable in very broad terms which includes personal and psychological damage, as
well as damage to property and injury to animals in respect of an entrant on to the property. In the
present case, the personal injury suffered by Tommy would constitute ‘damage’ for which Fred may
be liable as the occupier of the premises, should the apparent danger owing to the State of his
premises (the trap door), constitute a breach of the standard of care that he owed to a trespasser.
Tommy is almost certainly a trespasser for the purposes of the Act. The duty of care that is owed to
an entrant differs depending upon whether they are classified as a ‘visitor’ on the one hand or as a
‘recreational user’ or ‘trespasser’ on the other. In the former category, the occupier owes a duty to
take such care as is reasonable in all the circumstances (having regard to the care which a visitor
may reasonably be expected to take for his or her own safety and, if the visitor is on the premises in
the company of another person, the extent of the supervision and control the latter person may
reasonably be expected to exercise over the visitor’s activities) to ensure that a visitor to the
premises does not suffer injury or damage by reason of any existing danger thereon. In the latter
category, the occupier is obliged to ensure that he does not injure the recreational user or trespasser
intentionally or act with reckless disregard for their safety.
A ‘trespasser’ is defined an entrant other than a recreational user or visitor. Section 4(2) of the 1995
Act provides that in determining whether or not an occupier has so acted with reckless disregard,
regard shall be had to all the circumstances of the case and a number of factors which include the
nature of the danger, character of the premises, the conduct of the entrant, warnings and, where
relevant, the supervision of the entrant.
whether the occupier knew or had reasonable grounds for believing that a danger existed on the
premises;
whether the occupier knew or had reasonable grounds for believing that the person and, in the case
of damage, property of the person, was or was likely to be on the premises;
whether the occupier knew or had reasonable grounds for believing that the person or property of the
person was in, or was likely to be in, the vicinity of the place where the danger existed;
whether the danger was one against which, in all the circumstances, the occupier might reasonably
be expected to provide protection for the person and property of the person;
the burden on the occupier of eliminating the danger or of protecting the person and property of the
person from the danger, taking into account the difficulty, expense or impracticability, having regard
to the character of the premises and the degree of the danger, of so doing;
the character of the premises including, in relation to premises of such a character as to be likely to
be used for recreational activity, the desirability of maintaining the tradition of open access to
premises of such a character for such an activity;
the conduct of the person, and the care which he or she may reasonably be expected to take for his
or her own safety, while on the premises, having regard to the extent of his or her knowledge thereof;
the nature of any warning given by the occupier or another person of the danger; and
whether or not the person was on the premises in the company of another person and, if so, the
extent of the supervision and control the latter person might reasonably be expected to exercise over
the other’s activities.
In the present case, there appears to be a reasonable basis to suggest that Fred was aware that
trespassers would be on his property and that they would be in the vicinity of the danger (the trap
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door). However, it is not clear if he was aware that the danger existed at all. It would also appear to
have been relatively straight forward and not particularly costly to fix the access point for the
teenagers. The Court may also consider that this type of danger is one against which, in all the
circumstances, the occupier might reasonably be expected to provide protection. The overarching
question for the Court would be whether there was any reckless disregard by Fred in relation to a
potential trespassers’ safety. In all of the circumstances, and in particular given the apparent lack of
knowledge of the danger on Fred’s part, it would seem unlikely that liability would be imposed. It is to
be noted that even if it is held that Fred was acting with reckless disregard in this context, Tommy
may have been present for the purposes of committing a legal offence. If this is the case, section
4(3) of the account states that an occupier will only be held liable for reckless disregard, “unless a
court determines otherwise in the interests of justice.”
General Negligence
It is less likely that a Court would not have recourse to general negligence principles on the facts of
the present circumstances. The true cause of the injury is likely to be held to do with the trap door
rather than the manner in which the juke box was transported through the premises. Even if general
negligence principles were applied it is also unlikely that Fred would be held liable for Tommy’s
injuries. A number of problems arise in this regard. There may not be a duty of care arising in
circumstances where Fred was not aware of Tommy’s presence, and it is likely that he was not
aware of any danger from the juke box passing over the trap door. Proximity and reasonable
foreseeability of injury are crucial factors in establishing a duty of care, and neither factor would
appear to be present in this case.
Conclusion
It is unlikely in the circumstances that Fred would be found to have any liability in respect of
Tommy’s injuries.
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Question Six
Critically discuss the evolution of Irish case law on the establishment of a duty of care between a
plaintiff and a defendant in a negligence action and the extent to which the duty of care acts as a
hurdle to a plaintiff.
Answer Six
Duty of Care
The assessment of the existence of a duty of care, is an issue which considers whether the
Defendant’s actions were such that he should have borne in mind the foreseeable possibility of the
injurious effect his actions (or omissions) may have on the Plaintiff, such that he has a duty not to so
act, and is consequently responsible to the Plaintiff for any injury or loss the latter may suffer as a
result of the Defendant’s actions. Thus, the courts have emphasised that negligence is a type of
fault-based liability. To succeed in negligence, the Plaintiff must establish some legal responsibility
on the part of the Defendant in the form of an obligation or duty, known as a duty of care.
The development of the duty of care can be traced to the UK decision in Donoghue v Stevenson
[1932]. The Plaintiff consumed a bottle of ginger beer and found the remnants of a decomposed
snail, which caused her to become ill. The Defendant’s argued that because she hadn’t actually
purchased the bottle of ginger beer she had no remedy under contract and therefore no action in
negligence. The Court held that the duty of care a defendant owes the Plaintiff exists even though
the parties were never is a direct contractual relationship.
Donoghue v Stevenson established the neighbour principle and emphasised proximity of relationship
between the Plaintiff and the Defendant and the reasonable foreseeability of injury.
Donoghue v Stephenson was initially accepted by the Irish Courts in Kirby v Burke and Holloway
[1944] and was re-constituted in the UK courts in Home Office v
Dorset Yacht Club Co Ltd [1970]. However the UK case law underwent a separate evolution to the
Irish jurisdiction. In the UK, Anns v Merton Borough Council [1978], was authority for a two-tiered
test to establish a duty of care as follows:
Proximity or neighbourhood such that within reasonable contemplation of Defendant that
carelessness would result in injury
Are there considerations that ought to reduce the scope of the duty?
This was seen as an expansive reformulation of the Donoghue v Stevenson decision and the Irish
Courts welcomed this approach. However it was criticised because the 1st tier of the test mixes the
issues of proximity and foreseeability. The Irish Courts now prefer to consider these elements
separately.
The UK courts subsequently rejected the Anns test on the basis that it appears to sketch proximity in
terms of reasonable foreseeability and risks alone. In Caparo Industries Plc v Dickman [1990] a new
3-tier test to replace Anns was formulated as follows:
Relational Proximity
Reasonable Foreseeability of injury and
Whether in all the circumstances of the case it is just and reasonable to impose liability on the
Defendant for the losses sought.
So in addition to establishing proximity and foreseeability the Plaintiff must also establish that it is
just and reasonable to impose a duty of care. Caparo is seen as the beginning of ‘incremental
approach’ in English jurisprudence, which means that the duty of care is developed by comparison
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with previous decisions. Caparo was endorsed in the UK in Murphy v Brentwood District Council
[1991].
The Irish Courts had for a long time retained preference a for Donoghue v Stevenson (/Anns)
principles, favouring its broad principled case-by-case approach. The
English Incremental approach had been unpopular with Irish judges and rejected on a number of
occasions, however the decision in Glencar Explorations v Mayo County Council (2001) by the
Supreme Court appears to suggest a new judicial caution (as will be set out below).
Donoghue v Stevenson was endorsed in Ireland prior to the decision in Anns in cases like Kirby v
Burke and Holloway [1944] (as outlined above), and McNamara v ESB [1975] where the court
emphasised the issues of proximity and foreseeability.
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 not a major innovation in the law of tort.
Ward v McMaster [1988] saw the courts in Ireland continue to adopt a broad expansive approach to
negligence principles and rejected English incremental approach. This approach was also followed in
the McShane Wholesale fruit and vegetables Ltd case (1997)
However in Glencar Explorations v Mayo Co Co [2002] ,Keane CJ invited reconsideration of the
allegiance of the Irish Courts to the Anns decision. It was held in this case that the Plaintiff could not
recover since although 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 did not reject Anns, but
simply preferred the Caparo wording of the second tier.
The issue was again examined by the Supreme Court in Breslin v Corcoran [2003] where it was held
that in addition to the elements of foreseeability and proximity, it is natural to have regard to
considerations of fairness, justice and reasonableness.
The dicta of Keane CJ in Glencar were also recently cited by Peart J in Dempsey v Waterford
Corporation (2008). This case sewage had penetrated the plaintiff’s 17th-century home in Waterford
city. From the facts it seemed that water had been conveyed to the premises by a 17thcentury
culvert. The defendants were carrying out sewage works at the time however this culvert was not
known to the defendants nor did it appear on any map. Peart J. held that no claim arose in
negligence and considered whether a duty of care arose. Peart J stated that the question as to
whether there was a duty of care arose, was whether the Defendant’s duty of care extended to
considering and investigating the existence or nonexistence of such a culvert that the defendant had
no basis for suspecting might exist. The court held that the duty did not extend in this way as the
defendants would have to dig up the street “on the off chance that a culvert would be discovered.” As
there the court found that there had been no breach of duty, it was not necessary to consider the
issue of forseeability of damage and the just and reasonable test.
Conclusion
The tests decisions in Glencar, Breslin, and Dempsey demonstrate the proposition establishing a
duty of care can be a significant hurdle for a plaintiff. Once liability is limited by the absence of a duty
of care, it is irrelevant if the act or omission of the Defendant may be said to have caused the injury
or loss to the Plaintiff that is at issue, and such the case will fall at this first hurdle.
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Question Seven
Joseph lives in the country where he has a dog, Fido and a cat called Kitty. Fido is an exceptionally
friendly mongrel who has never been known to growl at anyone, let alone bite. Kitty on the other
hand is a pedigree cat who does not like people, not even Joseph and will hiss and spit at anyone
who tries to come near her and had previously clawed his nephew.
Last week Peter was driving some cattle belonging to Paul past Joseph’s house. Peter had taken his
7 year old sister, Erica with him. As they passed Joseph’s house, two of the cows left the herd and
went into Joseph’s garden. They began walking all over his prized flower beds. Joseph began
shouting at Peter to get the cows out of his garden. Peter rushed in waving his arms at the errant
cows, trying to shoo them back on to the road. Unfortunately Fido thought that this was some kind of
game and also began barking and running at the cows. The cumulative effect was that the cows
were now running in circles, destroying even more of Joseph’s flowers. Peter lost patience and
decided that the best thing to do was to get rid of Fido from the scene, so as Fido came close he
kicked him away. Fido was stunned and in an instinctive reaction turned and bit Peter on his leg.
Meanwhile, Erica was sitting on Joseph’s wall looking at what was going on. Kitty the cat walked
along the wall oblivious to what was happening and began smelling some food that Erica had put
down on the wall next to her. Kitty was only inches away when Erica spotted her. Erica reached out
to stroke Kitty at which Kitty swiped her paw, scratching Erica’s cheek badly. Both Peter and Erica
had to be treated by their local doctor for their injuries and there is a considerable fear that Erica may
be permanently scarred.
Advise Joseph as to any potential tort action with regard to the activities of these animals.
Answer Seven
Joseph may wish to bring a tort action in relation to the damage that has been done to his flowers by
Peter’s cattle, and may also be concerned as to his potential liability in respect of the injuries caused
to Peter by Joseph’s dog, Fido and the injuries to Erica caused by his cat, Kitty.
Damage to Flower Beds
The damage caused to Joseph’s flower beds was caused by errant cattle when they strayed on to
Joseph’s land while being driven by Peter. This set of facts invokes the rules on ‘cattle trespass’.
This rule imposes a strict liability for damage caused by cattle which stray from their owner’s land on
to a neighbour’s land. ‘Cattle’ has been defined to include farm animals, including domestic fowl and
domesticated deer, but not cats, dogs, or wild animals. The case-law suggests that liability is
imposed primarily on the person who has possession or who exercises control over the animals and
not necessarily the owners of the animals. In the present circumstances it appears clear that Peter
would be the appropriate Defendant in any action that may be taken.
Damage extends beyond property damage to include personal injury. There are a number of
defences available to the Defendant which include an Act of God, the Plaintiff’s contributory
negligence, and acts of a third party. Where cattle are intentionally driven on to the neighbouring
land by the Defendant, a distinct tort of trespass is raised, but it would appear from the facts that
Peter did not intentionally drive the cattle on to the land.
In the present scenario, it may be necessary to consider the possibility of raising contributory
negligence because Joseph’s dog was a causative factor in exacerbating the damage. However,
there does not appear to be any negligence given that Joseph had the dog on his own property, and
so this defence would appear to be untenable.
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Dog Bite
With respect to the dog biting Peter, this issue would be governed by statute, and in particular, the
Control of Dogs Act 1986 (“The 1986 Act”) as amended. Section 21(1) of the 1986 Act imposes strict
liability for “damage caused in an attack on any person by the dog and for injury done by it to any
livestock.” Liability for injuries to the person is contingent on there having been an ‘attack,’ whereas
for damage to livestock the Plaintiff need only show “injury done”. Where the Plaintiff establishes that
s 21(1) applies to the case, the Defendant is strictly liable even though he was not unreasonable in
failing to apprehend or avert the injury. The section further provides that liability arises independently
of knowledge of the dog’s dangerousness. However, where injury is caused to a trespasser,
negligence must be proved. Where injury occurs after a dog causes injury to animals that stray on to
the owner’s land, liability only arises if the dog owner provokes the attack. The term ‘attack,’ although
not defined by the Act was considered in Quinlisk v Kearney (2004) and the Court held that damage
caused in an attack on a person need not involve physical contact. The Court commented that in the
commentary to this section in Kerr, Irish Current Law Statutes Annotated it is suggested that physical
contact may arise where a person falls and injures themselves when getting out of the way of an
attacking dog.
However, if as is likely, Peter is regarded as being that of a trespasser, then section 21(3) of the
1986 Act will apply, and this provides that a person is liable in damages for any damage caused by a
dog kept on any premises or structure to a person trespassing thereon only in accordance with the
rules of law relating to liability for negligence. In the present case, it is difficult to identify any
particular negligence on Joseph’s part – in particular because the dog did not have a dangerous
propensity, and was on Joseph’s property at the time of the incident.
Cat Bite
Domestic animals that are not dogs, such as the cat in this case, are governed by common law
principles which dictate that liability can depend upon the ‘scienter principle’ – i.e. whether the animal
had an aggressive/mischievous propensity and the owner’s knowledge, either actual or imputed, of
this propensity. In
Quinn v Quinn, the defendant's sow attacked and killed the plaintiff's cow. Proof that the sow had
previously attacked and killed fowl to the defendant's knowledge was held to be sufficient to make
the defendant liable. In the present case, Kitty was known to hiss and spit at people, and had clawed
Joseph’s nephew in the past. This would appear prima facie to engage the
scienter principle, such that Joseph would be held liable for the apparently unprovoked attack on
Erica by Kitty, the cat.
Conclusion
It would appear based on the facts presented, that Joseph would have a strong case to make in
relation to the damage caused by Peter’s cows to his flower beds and garden. Joseph would appear
to have a good defence to any action Peter would take in relation to the bite he sustained from
Joseph’s dog, Fido; but would not appear to have a defence in relation to his cat, Kitty, clawing Erica.
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Question Eight
Jenny had just joined the medical staff of Hope Hospital but had extensive practice in other hospitals
around the world. She was delighted to have been appointed to Hope hospital as it had an
international reputation for first class medical treatment.
On appointment she had been presented with an orientation handbook on a CD awhich she was
asked to read using her computer. Jenny’s laptop however was broken so she never got to read it
but she was not bothered as she figured these things were pretty much common to all hospitals and
where it might be different she would learn as she went.
One day on the hospital ward, Kelly – who had just been admitted to A&E complaining of severe
stomach cramp – was being treated by one of the other doctors, Bill. Suddenly Kelly began
screaming and writhing in agony, clutching her stomach. Jenny ran to see what was going on and
found Bill trying to ask Kelly about her medical history. Jenny shouted at Bill, who was her junior, to
forget the paperwork and administer a pain reliever immediately. Bill said it was policy not to
undertake any treatment without first taking a full medical history. Jenny looked at Kelly’s file and
saw a completed medical history from about two months ago. And told Bill that this would suffice and
to administer the medication. Bill reluctantly did so. Unfortunately Kelly had an adverse reaction and
was left severely injured as a result.
On investigation, it transpires that Kelly’s medical history did not reflect the fact that a month ago she
had an operation and had suffered an allergic reaction from this particular drug. Further, it transpires
that Hope hospital’s policy of always taking a current medical history even in the event of patient
distress is standard practice in Irish hospitals although at none of the hospitals overseas Jenny
worked for previously. Finally, the pain reliever ordered by Jenny is used only by a limited number of
hospitals, having been replaced with a newer, more effective medicine to which Kelly would not have
been allergic.
Advise Jenny as to any potential negligence action against her by Kelly.
Answer Eight
If Kelly is to establish a breach of the standard of care owed to her by Jenny, she must do so by
reference to the principles of professional negligence, and specifically as these principles relate to
medical practitioners. The general rule is that a professional person is not guilty of negligence if he
has acted in accordance with a practice accepted as proper by a responsible body of fellow
practitioners skilled in that particular art. This general test was outlined in the case of Bolam v Friern
Hospital Management Committee [1957] 2 All ER 118. The test does not require the professional to
abide by an approved practice, but he must not act in a way that no reasonable or prudent
practitioner would have acted in similar circumstances. It has also been held that where an approved
or common practice is mindlessly followed in circumstances where it has inherent defects which
would be obvious were the matter given any thought, this defence will not be available (O’Donovan v
Cork County Council [1967] IR 173).
In the specific context of medical professional negligence, the Supreme Court case of Dunne v
National Maternity Hospital [1989] IR 91 outlines the rules which apply in Ireland. The test reflects
the general test for professional negligence outlined above, but also indicates that a court should
have regard to the general and approved practice (which need not be universal but adhered to by a
substantial number of practitioners); and that an honest difference of opinion between two ways of
treating a patient can not be sufficient to prove negligence against a practitioner. Consequently,
there is a high threshold to establishing a case of medical professional negligence in Ireland.
Notwithstanding the high threshold, there have been successful cases brought which may have
superficially appeared to be excluded by the Dunne principles, but which turn on the necessity to do
background research into the relative success of different practices prior to choosing a course of
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action. An interesting example is the case of Quinn v South Eastern Health Board (unreported, High
Court, O’Caoimh J, 20th January 2002) in which it was held that defendant was negligent in
performing an appendectomy on a 14 year old girl and in recommending post-operative remedial
surgery too soon in circumstances where 91% of patients would have recovered with a more
conservative form of post-operative treatment. The defendant was also found negligent in not
discussing the risks and benefits associated with the remedial surgery and the more conservative
treatment.
In the present case, the facts are that Jenny was not up to date on the particular policy of the
Hospital, and made a decision based on a medical history which was out of date, but which could
have been ascertained by taking on oral history; and in addition, she appears not to have been up to
date on more effective treatments. Jenny would thus prima facie appear to be at risk should a case
be brought against her, but it is not disclosed how much more effective the new medication is, and
given the circumstances which required a fast response to relieve serious pain, there may be scope
to suggest that she did not breach the standard of care by reference to the obligation to have acted
in a way that no other reasonable practitioner of reasonable skill would have acted. In essence, she
would be saying that this was a case of medical mistake (/misadventure) rather than medical
negligence. She might also suggest that she is entitled to rely on the general approved practice as
demonstrated in the other hospitals she has worked in.
In relation to the medical mistake defence, the case of Maynard v West Midlands RHA (1984). The
Plaintiff had symptoms which pointed to a diagnosis of tuberculosis, in which case an operation
would not have been necessary. However, other symptoms pointed to a carcinoma which, if not
caught at an early stage by a high-risk operation, would in all likelihood have killed the Plaintiff. The
two consultants working on the case decided to embark on the operation, which caused permanent
paralysis of the Plaintiff’s vocal chords. It later emerged that the Plaintiff had tuberculosis, not a
carcinoma. The Plaintiff’s evidence proposed that the symptoms of tuberculosis were so strong that it
was unreasonable and negligent to defer diagnosis and to expose the Plaintiff to the hazards of a
dangerous operation. It was held that it was not enough to show that there is a body of competent
professional opinion which considers there was a wrong decision, if there also exists a body of
professional opinion, equally competent, which supports the decision as reasonable in the
circumstances. The Defendant’s decision to operate was upheld in the circumstances as an instance
of medical misadventure which did not necessarily amount to negligence.
In relation to the issue of the general approved practice of not taking full oral medical histories when
a patient is in chronic pain, Jenny may seek to rely on the practice used in other hospitals, and this
defence should only fail, if that practice is inherently defective. By way of example of a finding in
relation to inherently defective practices, the case of Collins v Mid-Western Health Board [2002] 2 IR
154, demonstrated the principle that following a deficient practice without sufficient reflection
notwithstanding that it is an approved practice, is not a defence to medical professional negligence.
The case was a fatal injuries action in which the deceased had attended his GP on numerous
occasions over the course of a month complaining of headaches, aches and pain. He was sent to an
Emergency Department by a locum GP who recommended admission, and the casualty officer
decided that admission was not justified after taking an oral history and conducting a physical exam.
The deceased lost consciousness a day later and did not recover. The deceased’s wife took an
action against the original GP and the Hospital. On appeal to the Supreme Court it was found that in
the circumstances, the practice whereby a casualty officer can overrule a GP request for admission
was inherently defective per the principles outlined in O’Donovan v Cork County Council.
The present case will turn on its own facts which may require a more detailed analysis of the
circumstances. If Jenny can show that notwithstanding her mistake in relation to the suitability of the
medication she used, that she met a standard sufficiently high to show that other doctors of similar
qualifications would have made a similar decision in the special circumstances of this case; and if
she can also show that the practice that she had used in other hospitals was not inherently defective,
she may able to avoid being held liable for Kelly’s injury. That said, Jenny does have an obligation to
stay up to date on developments, and if she is deemed to have remained sufficiently up to date,
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although not entirely up to date, she will not be held liable. On the facts presented, it is difficult to
advise Jenny as to her potential liability, but it could be said that Kelly certainly appears to have a
stateable case against Jenny, and Jenny may have defences open her. The relative strengths of
each side of the case however, is difficult to determine accurately without further evidence.
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Exam Paper - April 2014
Question One
The doctrine of res ipsa loquiter is simply a device used by the courts to justify an arbitrary decision
on causal issues in a tort case and is of no practical relevance in modern jurisprudence. Critically
discuss this statement with particular reference to Irish case law.
Answer One
The Doctrine of Res Ipsa Loquiter literally means “the acts speak for themselves” and it can be
availed of only in exceptional circumstances. It permits the court to draw an inference of negligence
on the basis of circumstantial evidence of a highly suggestive nature.
While the inferences allowed by the balance of probabilities are logical inferences which have a
degree of certainty about them, res ipsa loquitur goes a step further in drawing inferences from facts
whose consequences are not as direct, but cumulatively suggest that negligence occurred. In Scott v
London & St. Katherines Dock (1865), the court held that where the event which causes injury to the
plaintiff “is shown to be under the management of the defendant or his servants, and the accident is
such as in the ordinary course of things does not happen if those who have the management use
proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that an
accident arose from want of care.” The effect of the doctrine therefore, is that the burden shifts to the
defendant to disprove the inference that it caused the accident by its want of care.
The exceptional nature of the doctrine was emphasized in Ireland by Henchy J in Hanrahan v Merck,
Sharpe & Dohme Ltd (1988), although some commentators are of the view that the judgment has
served to complicate the doctrine. The plaintiffs in that case claimed personal injury and damage to
property as a result of emissions from a nearby factory. Henchy J held that “where damage has been
caused to the plaintiff in circumstances in which such damage would not usually be caused without
negligence on the part of the defendant, the rule of res ipsa loquiter will allow the act relied on to be
evidence of negligence in the absence of proof by the Defendant that it occurred without want of due
care on his part.” He further stated that the onus of proof shifts to the defendant in such cases as it
would be “palpably unfair to require a plaintiff to prove something which is beyond his reach and
which is peculiarly within the range of the defendant’s capacity of proof.” The latter comments
appeared to limit the availability of the doctrine to situations where the plaintiff is unable to prove
something which the defendant is capable of proving.
The Supreme Court, in Lindsay v Mid Western HB (1993), applied the doctrine without reference to
the proposed additional requirements. This was a case in which a minor Plaintiff was admitted to
hospital to have her appendix removed. She went into a coma during the operation and never
recovered. The Court held the effect of res ipsa loquitur in the case was to require the Defendant to
show that he had exercised all reasonable care and therefore that he was not negligent. To impose a
more onerous burden on the Defendant would be unjust. The Defendant was therefore not required
to take the further step of proving on the balance of probabilities what had caused the Plaintiff’s
injuries.
However, the subsequent SC decision in Rothwell v MIBI (2002) approved the formulation set forth
in Hanrahan and so it does appear to be something of a standing authority in the area. This was a
case taken against the MIBI seeking compensation for injuries in an accident when the Plaintiff’s car
skidded on an oil spill. The MIBI is bound to compensate road traffic casualties where the driver who
negligently caused an accident is untraced or unidentified. The Plaintiff was unable to prove that the
oil spill was left by a negligent driver thus his case depended on the application of the res
ipsa loquitur maxim to infer that the spill had been left by a negligent driver with no defence. The
Court held that maxim requires “not merely that a matter in respect of which the onus is to shift is
within the exclusive knowledge of the Defendant, but also that it is ‘peculiarly within the range of the
Defendant’s capacity of proof’.” The court found the maxim not to apply in a case of this nature
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where it could not be said that knowledge of the source of the oil spill was a matter peculiarly within
the knowledge of the Defendant. It thus disapplied the doctrine to the facts as presented, but did not
overrule the precedent. It is clear that the applicability of the doctrine of res ipsa
loquitur has been significantly limited by the endorsement by Rothwell.
In Doherty v Reynolds (2004) the Plaintiff attended hospital for treatment of heartburn and acid
reflux. He underwent an operation and emerged with a severe injury to his right shoulder which took
six years to improve. The Plaintiff relied on the doctrine of res ipsa loquitur. The High Court allowed
the Plaintiff’s claim applying the doctrine of res ipsa loquitur and concluded that the Defendant had
failed to rebut the inference of negligence. In the Supreme Court, the Court allowed the Defendant’s
appeal. The Court held that the trial judge had erred in applying the doctrine of res
ipsa loquitur in circumstances where the Plaintiff had not proved facts capable of raising the
inference of negligence. The Court also stated that even if the judge was correct in deciding that the
doctrine applied, the manner in which he applied it gave rise to difficulties. The SC noted that the
Judge seem to conclude that because some staff members could not recall specific details that they
could not discharge the burden of proof establishing that there was no negligence. The SC confirmed
the approach that a Defendant must be found negligent if they cannot explain how the injury
occurred is inconsistent with the Lindsay case.
In the recent case of Presho v Doohan (2009), a resident of Tory island’s house disappeared over
several months (when he was not living there). The plaintiff sued the only JCB owner on the island
and the owners of the hotel who he alleged were using his land as a car park, and removed his
house to obtain an unobstructed view of the landscape. The JCB owner was also the principal of the
company who owned the hotel. It was established that the house was removed by mechanical
means. The owner of the JCB denied that he removed the dwelling from the site. Murphy J. noted
the academic criticism Henchy’s J.’s formulation in Hanrahan v Merck Sharp and Dohme and stated
that the doctrine is applicable to the circumstances where motivation, capacity and opportunity of the
defendants are considered. The court referred to the more traditional formulation of the doctrine
which concerned (a) the thing causing the injury being under the defendant's control and (b)
accidents such as the one befalling the plaintiff not ordinarily happening if those in control exercise
due care. The Court inferred from the facts and was satisfied that it was probable that the first
defendant's JCB, whether driven by that defendant or not, was the only "thing causing the injury,"
and allowed the plaintiff to recover damages based on res ipsa loquitur and circumstantial evidence.
Conclusion
In light of the foregoing case law it may be said that the development of the doctrine in Irish law has
been a somewhat disjointed one, but its impact has been significant. While it has proved useful to
Plaintiffs who cannot prove negligence, the Supreme Court has sought, since the finding in
Hanrahan, to allow a Defendant rebut the presumption without ascertaining precisely how the
damage in question in fact occurred. The consequences of Hanrahan have been somewhat limited,
as is clear from the judgment in Presho, and while it might be excessive to suggest that this has
allowed for arbitrary decision-making, it certainly appears to be an area which has a disconcerting
lack of clarity.
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Question Two
Brian is a wood sculptor who lives in the country on about two acres of land. During recent stormy
weather, Brian’s specimen oak tree, which acted as a natural boundary between his land and that of
his neighbour Jeremy, was blown over. Only the exposed root remained in Brian’s property. The
remainder of the tree had fallen into Jeremy’s land. In the process, Brian’s tree had landed on top of
a significantly smaller oak tree on Jeremy’s land and it too had been uprooted.
Brian was devastated. The tree had been there for as long as he could remember, it was a cherished
feature of his family home. However, he intended to salvage something from the wreckage. He had
always thought that the trunk of the oak tree would make a great garden seat. Such a seat would be
valued in the thousands of euros but to Brian it would ensure that the tree would live on in the family
estate. Brian thus began to make arrangements to have the tree lifted back into his land.
However, when he returned with the necessary equipment, he was shocked to see that the tree was
gone. He called to Jeremy to ask what had happened. Jeremy told him not to worry, that he had
taken care of it. He had cut up both trees into firewood, which after seasoning would make great fuel
for stoves. Brian was incensed, claiming that the tree was his and that Jeremy had no right to do this.
Jeremy said that he was sorry but that the tree was on his property and he could do with it as he
pleased. In any event, Jeremy had already sold the bulk of the cut up trees for firewood and of that
which remained, even if Jeremy wanted to return it, it had been mixed with Jeremy’s when being cut
into firewood and it was impossible to separate them now.
Advise Brian of his rights under the law of tort based on these facts.
Answer Two
The availability of a remedy for Brian may depend on what type of infringement of Jeremy’s right, if
any, was caused, and whether Brian’s delay in removing the tree was reasonable.
In general, as well as seeking an injunction or damages from the courts, the law also permits the
plaintiff to resort to self-help in appropriate circumstances. A person may enter another person's
property to recover his or her goods or shoot a dog worrying his or her livestock and a nuisance may
be removed or abated by the affected individual." Great caution must be taken in the exercise of
such remedies, however, as the courts tend to discourage unlimited measures of self-help, as in the
case of McKnight v Xtravision (1991) where the Circuit Court heavily criticised parties in a landlord
and tenant dispute for attempting to resolve a civil dispute by engaging employees to attempt to
physically dominate one another in an attempt to resolve the conflict.
It might be said that the falling of the tree onto Jeremy’s land could constitute a trespass, a nuisance,
or an instance of Rylands v Fletcher liability.
It is a trespass for a person to place any chattel on the land of another" or to cause any object or
substance directly to cross the boundary of another's land, or even to reach the boundary. Thus, to
grow a creeper on another's wall or lean a ladder against it will constitute a trespass. There seems
no reason why one should not be liable in trespass for inducing an incursion by a person as well as a
thing, as, for example, where one brings" or chases" a person onto the plaintiff's property. But this
notion should not be extended unduly: it would be wrong to impose liability in trespass (as opposed
to negligence) for conduct that merely increased the likelihood of such an incursion. There are many
examples of actions in trespass lying for various types of materials being left on land (e.g.
Dwyer Nolan Developments Ltd v Dublin County Council (1986) - deposit of rubble; Gibbings v
Hungerfard [1904] - discharge of sewerage onto plaintiff's lands; Brannigan v Dublin Corporation [
1927] - rubbish dumped on plaintiff's land), but the issue is less the material itself, and more the fact
that Brian did not have the requisite intention for an actionable trespass to exist. If the tort of trespass
had been made out, then Jeremy may have relied on his right to abate the nuisance. If he cannot
show an actionable trespass however, then he cannot rely on this derivative right.
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The same right lies in respect of acts comprising a nuisance. Where the encroachment of tree roots
onto the property of a neighbouring occupier causes damage, this constitutes a nuisance, which
entitles the injured party in an appropriate case to seek damages" or an injunction," or to abate the
nuisance himself or herself. Moreover, he or she need not wait until damage is done: he may take
protective action by cutting the roots as soon as they project into his property" or may seek a quia
timet injunction in appropriate cases.
Branches occasion largely the same liability as roots, but some differences may be noted. Where a
branch encroaches onto another's property and causes damage, the occupier of that property will
have the same remedies as in the case of encroaching roots. Where, however, a tree overhangs the
highway, and a branch falls as a result of a latent defect not discoverable by any reasonable
inspection, liability will not be imposed. It seems that the court should take into account the location
of the premises, so as to require more of the occupiers of urban premises whose trees overhang the
highway than of those living in the heart of the country. In Lynch v Hetherton, where an ash tree fell
on the plaintiff's car which was driving along a country road in County Westmeath, O'Hanlon J held
that the defendant occupier was not liable in nuisance or negligence. The tree was rotten inside but
this fact was not known by the defendant. The tree was located on an out-farm, which the defendant
passed five days a week. He had tightened a row of wire on a ditch, which was connected to the
tree, with stakes 10 days before the accident at a point two feet above ground level, which was very
sound and firm. The defendant had inspected all his trees, though he had not employed an expert to
look at them, and had cut down several before the accident. O'Hanlon J was satisfied that the
defendant was not under an obligation to employ an expert; even if he had done so, it was probable
that the decay would not have been detected. The parties were agreed on the general principle that
a landowner was bound to take reasonable care to prevent damage from falling trees, and not a
stricter requirement for public as opposed to private nuisance, and as such, this case may serve as a
useful precedent in the present scenario which concerns a potential private rather than public
nuisance. Again, if the tort of nuisance is not made out, then it may be difficult for Jeremy to rely on
his right to abate the nuisance.
Trees are not normally regarded as falling under the rule in Rylands v Fletcher. However if the trees
are poisonous, liability may be imposed under the rule, provided the branches of the tree have
"escaped" by encroachment or otherwise onto the neighbouring property or the highway.
In Noble v Harrison [1926] Wright J stated that a beech tree is a usual and normal incident of the
English country; it develops by slow natural growth, its branches are not likely to cause danger, even
if permitted to expand outwards over the highway.
Such a tree cannot be compared to a tiger, a spreading fire, or a reservoir in which a huge weight of
water is artificially accumulated to be kept in by dams, or noxious fumes or sewage.
In the present case, there does not appear to be any reason to suppose that Brian should have been
aware that the tree in question constituted a danger, and so it appears similarly difficult to establish
the tort of Rylands v Fletcher.
Insofar as there may be theoretically a remaining liability in negligence demonstrable as against
Brian, it would appear that this would be difficult to show in respect of the falling tree, and the only
complaint which may be raised might be in relation to the delay in removing it. There are no facts
presented which would tend to demonstrate undue delay in this regard however.
Thus in all of the circumstances, Jeremy’s right to abate the impact of the tree on his property rights
may not have been properly exercised, if there was no specific tort for which Brian would otherwise
have been liable.
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Brian’s complaint as against Jeremy then, is likely in the tort of conversion, as his property has been
taken and cannot be returned in its original state, because it has been chopped and partially sold
and partially mixed with other wood rendering it unidentifiable.
Jeremy does not appear to have much a defence in this action, but contributory negligence may be
noted in theory, and there remains a question as to the appropriate level of damages.
Section 34(2)(d) of the Civil Liability Act 1961 provides that the plaintiff's failure to exercise
reasonable care in the protection of his own property will, except to the extent that the defendant has
been unjustly enriched, be deemed to have committed contributory negligence in an action for
conversion of the property.
The measure of damages for conversion is generally the value of the article converted at the date of
the conversion. This contrasts with the action for detinue, where the cause of action is a continuing
one up to the date of judgment and the value of the chattel is assessed as at that date.
ln calculating the value of the article at the date of conversion, the court should
not ignore the effects of inflation or deflation; otherwise the plaintiff would not be restored to the
same position as if the tort had not been committed. Assessment of the value of the article is made
on common-sense commercial principles. Thus, in Johnson and Johnson (Ireland) Ltd v CP Security
Ltd." where van loads of pharmaceutical products were stolen from the premises of the plaintiff,
which manufactured and retailed these products, Egan J awarded damages on the basis of
replacement cost stating it had vast quantities of goods in its possession to meet existing orders and
those which were stolen could have been replaced at cost without any difficulty.
This particular tree appeared to have a significant potential value if sculpted, but in the
circumstances it may be anticipated that if compensating Brian, would consider the value of the tree
at the time it was rendered into firewood, and if Jeremy can show any contributory negligence in
Brian’s delay, would have his liability reduced accordingly.
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Question Three
Sympathetic Causes is a not for profit charitable organisation whose role is to raise money through a
variety of mechanisms and to distribute these funds to deserving causes. One such venture is a
charitable shop on Main Street. Clothes, furniture and household appliances are donated by
members of the public and are then offered for sale at a knockdown rate.
The shop is managed by Jo who is a full time employee of Sympathetic Causes. All of the other staff
in the shop are volunteers, although they sign an agreement that, among other things, requires them
to work under the direction of the shop manager at all times. Jo has made it very clear to all her staff
that they are not to assist customers in lifting heavy items as all sales are for collection only and Jo
does not wish to be responsible for any breakages of items that have been sold but have not yet
been collected. As far as Jo is concerned once the item has been sold it becomes the sole
responsibility of the customer to take it away.
One day, Charlie, a volunteer, was working in the shop when Dolores purchased a standard lamp.
After she had paid for it, Dolores asked Charlie if he would mind giving her a hand to take it to her
car outside. As Jo had gone for lunch, Charlie helped Dolores carry it out to her car. Dolores opened
the rear hatch of her car and slid the lamp through so that it rested on the front and rear passenger
seats. Charlie made the point that it would roll around unless it was secured and so he offered to
help Dolores by strapping the standard lamp to the seats.
Satisfied with his handiwork, Charlie told Dolores that she was good to go and wished her well. With
that, Dolores slammed down the rear hatch but unfortunately the lamp protruded further than either
of them expected and the standard lamp smashed the window in the rear hatch as it was closing.
Advise Sympathetic Causes if they can be held vicariously liable for the actions of Charlie.
Answer Three
An employer will be liable for the torts committed by its employees by virtue of the legal principle of
vicarious liability. The fact that Charlie was a volunteer does not suggest generally that his
employer’s will not be held vicariously liable for his actions. For the purpose of establishing vicarious
liability, an important feature is the "control" element which the principal can exercise over the
subordinate. But this feature is not decisive: other features of the relationship between the principal
and the person doing the work, such as the method of pay (salary or fee), the tax treatment of its
"employee", the right to select or dismiss, whether the person provides his or her own equipment or
not, the degree of skill which a person possesses (professional skilled person or unskilled worker),
whether the contract is ''of service" or "for services" in the ordinary person's opinion, whether there is
a right to sub-contract" or whether the person doing the work is integrated into the business, can also
assist the court in determining whether the relationship of employer and employee exists.
Given the level of control exercised, it is likely that Charlie would be considered an employee within
the meaning of the context of vicarious liability, and if he was negligent within in the course or scope
of his employment, Sympathetic Causes will be liable.
It is not clear from the facts whether Charlie was in fact negligent. He was assisting the customer in a
manner in which they were taking a reasonably equal role, and neither adverted to the possibility of
that the lamp protruded too far. In addition, it is notable that it was the customer, rather than Charlie,
who closed the boot door so forcefully that it was smashed when coming into contact with the lamp.
If there is scope for a finding in negligence, the rationale behind the imposition of vicarious liability on
an employer is driven by the degree of authority and control an employer has over an employee and
the assumption that he should take care to ensure that his employees do not cause harm to any
other in the course or scope of their employment. In order for vicarious liability to be attached to the
employer, it must be established wrongdoing occurred within the scope or course of that relationship.
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There would appear to be no question but that Charlie is an employee of Jo, and if negligence is
present (although it does not appear to be), the core question would appear to be whether he was
acting within the course and scope of his employment such that his employer should be held liable.
The “course” test is considerably broader than the “scope” test. The former is where the employee is
doing something that he is employed to do, or anything which is reasonably incidental to his
employment. The latter is more nebulous and focuses on whether the employee acted within the
parameters of the authority delegated to him by the employer. The nature of the wrongdoing will
generally determine what test is; accidental/negligent acts will normally come within the “course” test,
while intentional acts which are extraneous to an employee’s duties will come within the “scope” test.
The time and place where the act occurred will also play a factor.
In Boyle v Ferguson the employer was found liable for the injury caused to two women who were
taken for a test drive at 7pm by the car salesman, whereas, in O’Connell v Bateman no vicarious
liability attached where the employee borrowed a work-car and had an accident while travelling to
see his parents.
In the present case, although Charlie was carrying out his duties in a manner otherwise than Jo had
directed, he was nonetheless carrying out duties that were ostensibly for the benefit of the employer.
This would increase the likelihood that vicarious liability would be imposed.
While the liability imposed under the “course” test is understandable as the tort was generally
committed while the employee was carrying out a duty which he was instructed to do, the liability
imposed under the “scope” test can be a little more contentious, especially when the employee
intentionally commit wrongs which are completely outside the course of his employment. Arguably,
Charlie’s actions being well-intentioned and customer-focussed though in technical breach of policy,
would likely be interpreted as within the scope of employment.
In Reilly v Ryan the employee bar manager intentionally used a customer as a shield when he was
attacked by a robber with a knife. The court refused to attach liability to the employer, as he had
been specifically instructed that customer safety was paramount and thus his actions were outside
the scope of his employment.
However, the torts that Charlie has been responsible for would appear (at worst) to be acts of
negligence rather than intentional acts in the sense that while he deliberately breached policy, he did
not appear to deliberately intend harm. The fact of being forbidden to carry out an act is not
necessarily determinative of the issue of vicarious liability. The English case of Dubai Aluminium
Company (2003) where the Court discussed a number of principles in the area of intentional wrongs
and stated that:
A flexible approach should be taken in these cases and the particular circumstances must be
considered.
If the acts of the employee are totally unconnected with the employment, there will not be vicarious
liability on the part of the employer.
An employer may be vicariously liable for the acts of an employee even if the employer had
forbidden the employee to carry out the act complained of.
In this case, it will be a matter of evidence as to the extent to which may Jo and Sympathetic Causes
may have acted with greater caution to prevent this type of occurrence, however they do appear to
have made the policy clear to Charlie. It would appear that the case law will not necessarily relieve
an employer of liability simply because they had forbidden the act in question which lead to damage.
In the present case, although Charlie was carrying out her duties in a manner otherwise than Jo
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directed, he was nonetheless carrying out her duties as an employee in furtherance of the
employer’s interests. This would increase the likelihood that vicarious liability would be imposed.
If negligence is made out, there would appear to be a strong case against for imposing vicarious
liability on Sympathetic Causes for any damage to the customer’s property caused by Charlie.
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Question Four
Dolphie was the name given to a wild dolphin that had made its home in the seaside town of Winter
Bay. Over time he had become quite a tourist attraction and all of the town had noticed that tourist
numbers had increased significantly since his arrival.
Eager to bring as much business to the town as possible, the town council had erected a set location
on the quayside where they would bring food to Dolphie at specific times of the day. Dolphie had
learned when the food was due and would swim alongside the quay in anticipation. The council had
thus installed a metal ladder leading to a partially submerged metal viewing platform with a railing
about 1 metre high on which tourists could stand and which would enable then to reach out and
touch Dolphie as he was feeding. This was a great success and it became significant tourist
attraction for the town.
Unfortunately, whether due to age or some rough treatment, the council had become to notice that
Dolphie was not as friendly as he was when he first arrived. He would often now keep as far away as
possible from the viewing platform when being fed. Moreover, the council workers who fed Dolphie
had reported that he had become far more aggressive in recent weeks, almost biting them as they
fed him.
Two days ago, Walt was visiting the town when he decided to go onto the viewing platform at feeding
time. Unfortunately someone had tied up a small dingy on the far side of the feeding station with the
result that Dolphie was forced to come alongside the quay between the viewing platform and the
feeding station. As he did so, Walt reached out to pet him at which point Dolphie turned and bit
Walt’s hand. Dolphie then proceeded to knock Walt into the water and Walt had to be rescued by the
council workers.
Advise Winter Bay Council as to whether Walt has any claim in tort law.
Answer Four
The Council have exercised a large degree of control over Dolhie by encouraging the dolphin to
come to be fed by them and by bringing members of the public into proximity with the dolphin by way
of their viewing stand. There would appear to be little scope in the circumstances, for the Council to
suggest that the dolphin was a wild animal that was not within their control, albeit that their control
involved a theoretical level of voluntariness on the part the dolphin itself.
In respect of liability for injury caused by animals, it is necessary to classify the animal. ‘Wild animals’
are kept at the owner’s peril, and because they are dangerous/hazardous liability will be strict.
Domestic animals that are not dogs will be treated differently and liability will depend upon ‘scienter’
– i.e. whether the animal had an aggressive/mischievous propensity and the owner’s knowledge,
either actual or imputed, of this propensity.
The main criterion used to classify animals into the wild or tame categories seems to be whether the
animal belongs to a species which is a danger to mankind in general, although in determining this
issue it seems that regard may be had to other countries' experience with the animal. Precedents
now exist which treat the following as domestic animals: cats, dogs, cattle, "horses, pheasants and
partridge" and bees; and the following as wild animals: elephants," tigers," bears," and zebras.'" In
McQuaker v Gaddard. an English court, taking into account the realities of life in the countries where
the animal was indigenous, treated a camel as a domestic animal.
In the present case, it appears more likely that the dolphin would be regarded as a tame animal
because (a) it is not an animal which is usually a danger; (b) the perception of the Council and the
public both, was that this was an animal that was appropriate to touch; and (c) the Council had taken
the dolphin within their control by setting up the feeding station and encouraging the dolphin in.
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Thus the scienter rule is based on the Defendant’s actual and imputed knowledge of the animal’s
mischievous propensity. Where the animal is ‘wild’, liability strictly follows injury, without proof that
the animal had caused injury before. A wild animal includes bears, zebras and elephants. Where the
animal is ‘tame’ the Plaintiff will normally have to prove that a similar incident occurred before and
was sufficient to put the Defendant on notice of the animal’s dangerousness. The owner must be
aware of the animal’s potential to do harm before liability will be imposed. Tame animals include
domestic animals. The rule applies to all injury caused. The available defences are uncertain, but
they include an Act of God and the Plaintiff’s contributory negligence.
In Brady v Warren (1900) the pliantiff’’s crops had been destroyed by the defendants deer and
rabbits. Liability was not imposed for the rabbits who were not in the control of the defemdant.
However liability was imposed for the deer who were regarded as tame.
A defendant must have actual knowledge and this was established in Quinn v Quinn (1905) where
the defendants sow had attached the cow. The defendant had actual knowledge as it was shown
that the sow had previously attacked other animals. The defendant was thus on notice of the sow’s
propensity.
Duggan v Armstrong (1992) is a Supreme Court authority on the scienter rule. The court ruled that
the knowledge that must be imparted on the defendant is that knowing that a dog has a mischievious
propensity requires knowledge that the dog may bite, not that he will bite. In this case the dog had
previously not bitten however he had barked and growled at people. Liability was imposed on the
owner where his children was aware of the dogs behaviour although its owner was not. The crucial
issue is that of control.
It might be said however that acts of a third party or contributory negligence can constitute a form of
defence to an action in respect of injury caused by animals. In Forster v Donovan, Ireland & AG
(1980), The Plaintiff postman was bitten by the first Defendant’s Alsatian watchdog. Liability was
imposed on the Defendant even though the first Defendant had contacted the post office to instruct
their postmen to use a letter box specially placed outside the gate and next to a prominent ‘Beware
of Alsatian’ sign. Liability was strict on the basis that the animal was known to cause such injury.
However, the post office’s negligence in failing to properly instruct their employee was deemed to
justify an order of full indemnity in favour of the first Defendant.
In the present case, a number of facts are relevant. We are told that the council had become to
notice that Dolphie was not as friendly as he was when he first arrived. He would often now keep as
far away as possible from the viewing platform when being fed. Moreover, the council workers who
fed Dolphie had reported that he had become far more aggressive in recent weeks, almost biting
them as they fed him. These facts would appear to demonstrate sufficient knowledge on the
Council’s part to disentitle to them to any defence based upon the scienter principle. We are also told
that someone had tied up a small dingy on the far side of the feeding station with the result that
Dolphie was forced to come alongside the quay between the viewing platform and the feeding
station. As he did so, Walt reached out to pet him at which point Dolphie turned and bit Walt’s hand.
The Council may view the presence of the dingy placed by a third party as a cause of the injury such
that it relieves them of liability however, two points are to be noted in this regard.
Firstly, as they were in control of the area, an obstruction caused by a third party would likely be
regarded as a danger which the Council themselves had a duty to abate. So for example, in
Cunningham v McGrath Bros (1964), the Defendants were held liable for injury caused by a falling
ladder, even though the ladder had been moved by a third party, since the Defendant had been
under a duty to take care that their ladders did not cause injury or public nuisance, and consequently
their plea of novus actus interveniens could not be made out.
Secondly, there does not appear to be any specific causative link between the dingy and the bite.
The intention of the Council was that the public would touch the Dolphin, and the change in
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circumstances brought about by the dingy, does not appear to have impacted this significantly. At
worst it could be said that the dolphin was present in a slightly less voluntary way than it might
otherwise have been, but it seems unlikely that it could be said that this ‘caused’ the bite, and even if
this case was made out, the level of control exercised by the Council over the area remains a
problem for them in respect of liability.
In the circumstances, it would appear difficult for the Council to avoid liability to Walt for his injuries.
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Question Five
Critically discuss the law regarding the survival of tort actions on death under the Civil Liability Act
1961.
Answer Five
The Civil Liability Act 1961 provides all actions (save for ‘excepted causes of action’ specified under
the Act) which had vested in the deceased or subsisted against him, survive for the benefit of or lie
against, the deceased’s estate. Currently, the “excepted causes of action” are limited to claims for
compensation under the Workmen’s Compensation Act 1934, now the Social Welfare (Occupational
Injuries) Act 1966. All other actions survive for the benefit of or lie against the deceased’s estate.
This allows for the situation where the deceased would have been the Plaintiff or the Defendant in
proceedings.
Where the death of a plaintiff is not caused by a wrongful act but the deceased had a right of action
before death, those actions survive. The action is brought for benefit of estate and damages are
confined to economic losses and property damage, lost income, medical expenses. There is no
recovery for personal losses such as pain and suffering.
Section 8 states that causes of action survive against the estate and s 9 provides that actions taken
against the estate are maintainable only where (i) they were instituted within the “relevant period”
stipulated by the Statute of Limitations and were pending at the time of death or (ii) they are
instituted within the relevant limitation period after death or within two years from the date of death
“whichever period first expires”. The constitutionality of this provision was upheld by the SC in
Moynihan v Greensmyth (1977) on the basis that it validly recognised the public interest in early
completion of the administration of the estates of deceased persons.
A fatal injuries action can be taken where a wrongful death occurs and the deceased would have had
an action against the Defendant. A fatal injuries action is taken either by the estate of the deceased
or by the dependants of the deceased in their own right. This area is governed by Part IV Civil
Liability Act 1961 and s 48(1) provides that where the death of a person is caused by the wrongful
act of another such as would have entitled the party injured, but for his death, to maintain an action
and recover damages in respect thereof, the person who would have been so liable shall be liable to
an action for damages for the benefit of the dependants of the deceased.
Section 48 provides an entitlement on the part of the deceased’s surviving dependants to recover
certain damages arising from the wrongful death. Section 48 provides that the personal
representative of the deceased can bring the action for the benefit of the dependants as a class. S.
48 also provides that where he does not do so, or where no personal representative has been
appointed within six months of the death, then the action may be brought by any or all of the
dependants for the benefit of the dependants as a class.
Section 47 originally defined dependant to include: “a spouse, parent, grandparent, stepparent, child,
grandchild, step-child, brother, sister, half-brother, half-sister of the deceased”. The definition is
expressly stated to also include a former spouse to a marriage dissolved under the Family Law Act
1996 or by way of foreign divorce recognised in this jurisdiction. It also includes an illegitimate child,
an adopted child, or a person for whom the deceased was in loco parentis.
Section 47(c) formerly included a person with whom the deceased had lived “as husband and wife
for a continuous period of not less than three years but this definition has been expanded by the Civil
Partnership and Certain Rights and Obligations of Cohabitants Act 2010 to include same sex
partners, and the definition of cohabitation is in line with the standard definition in the 2010 Act.
While the Act itself may require 5 years of cohabitation in other contexts, the three year period has
been retained for the purposes of fatal injuries actions.
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On foot of the 2010 Act, ‘dependent’ now also includes a “civil partner” within the meaning of the Act.
Furthermore, “a person whose civil partnership with the deceased has been dissolved by decree of
dissolution” will also now fall within the definition.
Section 48 provides an action lies only where it can be shown that, had the deceased lived, he would
have been entitled to recover against the Defendant. It seems that an action under s 48 is dependent
on a deceased having a valid action before death and therefore a fatal injuries action cannot be
brought where the deceased had entered a settlement with the Defendant, even where it was only in
partial satisfaction of the deceased’s claim. This principle was referred to in Nunan v Southern
Railway Co (1924) and in Mahon v Burke & Mid Western Health Board (1991) the Court affirmed the
English approach and decided that where the deceased had settled a personal injuries action with
the tortfeasor, it is no longer open to the dependants to bring a wrongful death action under the 1961
Act.
This approach is questionable and is particularly harsh where the deceased made a settlement on
the assumption that his injuries were less serious and were not likely to be fatal. The claim under s
48 is for the benefit of the deceased’s dependants, and it seems unjust that the deceased, by settling
a case, is capable of extinguishing a claim he did not know his dependants would possess and which
is for their benefit.
Notably, liability imposed on the Defendant may be reduced to reflect the contributory negligence of
the deceased in the terms of s 34(1). This is implied by s 35(1)(b), which says that a person suing on
behalf of the dependants is deemed “responsible” for the acts of the deceased.
Section 49 provides that damages will reflect what the court considers proportionate to the injury
resulting from the death to each of the dependants. The dependants may claim for loss of financial
dependency and the Courts may also award reasonable compensation for mental distress not
exceeding €25,394 and damages for funeral and other expenses actually incurred.
The Courts have also awarded damages for legal costs associated with the inquest into the death of
the deceased incurred by dependants, and the loss of inheritance of dependants. In Courtney v Our
Lady’s Hospital Limited (2011) there was a death of a three year old girl owing to medical
negligence, and psychiatric damage suffered by her mother was also claimed. The liability for the
death of a three year girl and the consequent nervous shock of her mother was accepted, but the
defendant claimed that it was not liable for legal costs of the mother associated with an inquest. It
was held that there was no dispute that the plaintiff was entitled to be legally represented at the
inquest and that as the facts surrounding the death of the plaintiff’s next of kin were wholly in dispute
and the Plaintiff was a vital witness, it was foreseeable that cross-examination would arise.
Furthermore, as the Plaintiff’s evidence was so crucial, it was essential that her evidence was
properly led. O’Neill J. held that “the plaintiff had a vital interest in the outcome in the inquest, and
secondly, that the issues of fact that were likely to arise warranted legal representation.”The Court
held that this expense fell within the category of “expences actually incurred” and awarded €10,500
in respect of this head of damages.
Loss of an inheritance from a third party arose for consideration in Davoren v Health Service
Executive & Others (2011). The Plaintiff was the wife of the deceased and sued on behalf of herself
and their dependant children. The Plaintiff’s claim that the death was from defendant's negligence in
medical and surgical treatments was accepted, but it was contested that they were responsible for
damages incurred as a consequence of the deceased’s mother changing her will so as not to benefit
her son (and by extension his family) after his death. The deceased’s mother died after the action
commenced. O'Neill J held that had the wrongful death of the deceased not have occurred, the
plaintiff dependants would have inherited the estate of the deceased’s mother, and should be
compensated accordingly. The Court was satisfied that as a matter of probability, if not near
certainty, had the deceased not suffered wrongful death he would, as a matter of high probability,
have survived his mother and having regard to the terms of the will she made in his favour, and the
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role he played in running the farm in very close cooperation with his mother, that he would have
inherited his mother’s estate.
Loss of financial dependency concerns loss of pecuniary benefits which the dependants had a
reasonable expectation of receiving from the deceased up to his death. This head of damage is
assessed according to a yearly average multiplied by the number of years over which the
dependency was likely to continue. The court will consider the deceased’s career advancement and
increases in pay and the courts also allow recovery for the cost of hiring another person to perform
services which the dependant was reliant on the deceased to do (such as house maintenance or
gardening). Loss of financial dependency can amount to a significant sum in damages, if the
deceased was married with children and died at a comparatively young age and in Furey v Suckau
(2002) the sum of £247,000 was awarded but was reduced by 80 percent to reflect the deceased’s
contributory negligence. The sum is reduced to reflect any benefits the dependants received as a
result of the death, such as inheritance, but under s 50 no account should be taken of sums payable
on the death of the deceased under a contract of insurance, or any pension, gratuity, or like benefit
payable under statute or otherwise in consequence of the death.
According to the English decision in British Transport Commission v Gourley (1956) in personal
injury actions, the award of damages should be reduced to reflect the fact that the Plaintiff would
have been subject to income tax had he not been so injured. The Gourley approach is adopted in
Ireland in fatal injuries cases so that the amount for loss of earnings is calculated in a net sense i.e.
the amount the deceased would end up with after paying tax out of his earnings if he was able to
work.
The issue of whether lawful but undeclared income should be calculated by the Court in granting an
award, was considered by the Supreme Court in Downing v O’Flynn (2000). The trial judge
concluded that public policy necessarily requires the court to have regard only to the deceased’s
declared income but the SC rejected this finding on appeal. The SC considered the main issue was
whether the court has heard evidence in relation to the deceased’s undeclared income sufficient to
enable it to quantify “the true net amount of that income.”
Overall, the 1961 Act appears to take as generous an approach as is possible to dependents of
deceased plaintiffs where the action is based around the wrongful death of the deceased. This is
evident by the breadth of persons who can claim, and what may be claimed for. By contrast a
somewhat more restrictive approach is evident in relation to the bringing of other actions where the
limitation periods are generally reduced rather than extended despite the logistical difficulties that an
estate may face in organizing an action on behalf of a deceased plaintiff.
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Question Six
Terry owned a detached house on about an acre of land. Behind him, Maureen owned a large field.
The boundary between the two properties consisted of nothing more than a barb wire fence.
Passing through the middle of Maureen’s land there was a small stream. The stream was so small
that during the Summer it often dried up. However, as Winters had become wetter in recent years, it
was often the case that the stream would burst its natural banks and turn the field into a swamp.
Terry was distressed to find that the rear portion of his garden would also become unusable during
the Winter period due to the ground becoming boggy as a result of the stream overflowing. He had
often spoken to Maureen asking her to bring in a digger and both widen and deepen the stream bed
so as to cater for the increased rainfall. He had often offered to allow her to take the digger through
his property as he knew it would be significantly more expensive for Maureen to access the stream
with a digger from her side.
Maureen had been reluctant to do so, saying that she did not believe that it would work and that you
cannot stand in the face of nature and that perhaps Terry should have thought of this before buying
his house. Although Terry persisted it was to no avail. Last year Terry got really annoyed with
Maureen and they were involved in a major argument. Maureen eventually screamed at Terry that if
he wanted to fix the stream he was free to do so, but she was barely able to repay her mortgage and
could not afford to pay anything for something which was a natural consequence of where they lived.
Terry chose to do nothing because he feared that Maureen would claim he damaged her property
and sue him.
Last week, following the wettest month on record for over a hundred years, a cloudburst caused the
stream to overflow but this time the water flooded the ground floor Of Terry’s house.
Advise Terry if he has any claim in tort law against Maureen.
Answer Six
Nuisance
The most appropriate cause of action open to Terry appears to a claim based on the tort of nuisance.
In particular the nuisance might be said to have been caused by Maureen’s omission to remedy the
foreseeable nuisance that was regularly occurring to Terry’s land by virtue of her stream bursting its
banks.
This action would be subject to the defences open to Maureen, including contributory negligence, Act
of God, or the reasonableness of her actions by reference to the unforeseeability of the risk to
Terry’s house caused by the particularly bad storm on this occasion.
Private nuisance protects persons from unreasonable interference with rights related to ownership or
occupation of land. Private nuisance has been extended beyond protection of proprietary interests to
enjoyment of personal interests connected with the land.
There are a number of elements to a claim in nuisance:
Locus Standi
Conduct for which Defendant is responsible;
Damage or interference with rights; – Unreasonableness; – Causation.
Terry would appear to have little difficulty in establishing locus standi, damage to his property, or
causation, but it appears apt to consider whether Maureen may properly be said to be responsible
for, and unreasonable in relation to, her failure to prevent the stream from bursting its banks.
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Nuisance relates to acts or omissions for which the Defendant is legally responsible. Omissions may
include failure to alleviate natural hazards such as in Leakey v National Trust [1980] where the
Defendants topsoil had slipped onto Plaintiff’s property causing damage and threatening more. The
Court held that persons in control of property are liable in nuisance for failure to do all that is
reasonable in the circumstances to prevent or minimise the risk of foreseeable damage which they
knew or ought to have known encroaches or is about to encroach the neighbouring land.
Nuisance may also arise for a nuisance originally created by a third party if the Defendant knew or
ought to have known about the nuisance as this is an omission to alleviate a risk created by a third
party. In Sedliegh-Denfield v O’Callaghan [1940], a local authority employee installed a drainage
pipe in a ditch adjoining the Defendant’s land in a mistaken belief that they had consented to it. The
pipe became blocked causing flooding on the Plaintiff’s land. The Court held that the Defendant
landowners were liable to the Plaintiff for failing to undo the nuisance originally caused by the local
authority and held that they had failed to take reasonable steps to avert a hazard which was
reasonably foreseeable in the circumstances. In Harrington v Cork City Council [2005] the court
referred to Sedliegh-Denfield and held that the council had not taken all reasonable steps to alleviate
a nuisance and granted an injunction requiring defendants to do so.
A landowner may also be liable for nuisance on his land which predates his ownership of the land of
which he was aware and fails to alleviate – Larkin v Dublin City Council & Ors [2006]
In light of the foregoing case law there would appear to be little scope for Maureen to be able to
suggest that the regular flooding is not something that she is responsible for. And from the point of
view of reasonableness, there would appear to be no defence available where it is actual damage
rather than the enjoyment of property that is in issue (as per the Leakey case). That said, the
question of reasonableness would also have to be considered from the point of view of the unusual
occurrence on this occasion of the water reaching Terry’s house rather than what would have been
expected more normally.
Terry did have a right to abate the nuisance, and could have reasonably entered onto Maureen’s
land in order to do so. Insofar as failed to do this, there may be a question of contributory negligence
in the circumstances.
Such a consideration would have to yield to the issue of whether or not the extent of the storm and in
particular the damage to Terry’s house as opposed to his land (which was the normal risk posed in
winter), constituted an Act of God for which Maureen would not be held liable. This defence is only
applied in exceptional cases of extreme natural phenomena. In Nichols v Marsland (1876), a storm
damaged the Defendant’s ornamental lakes, which burst and caused destruction to the Plaintiff’s
bridge. The defence was applied in the context of the storm which was described by witnesses as
the worst in living memory.
The defence has been rejected in many other cases of heavy rain and snowfall including in Dockery
v Manor Park Homebuilders Ltd (HC 10 April 1995) where the level of rainfall was of a type that
occurs on average once in 20 years. The defence was applied successfully in Superquinn Ltd v Bray
UDC (HC 18 February 1998) which related to ‘Hurricane Charlie’ in 1987 which was described as an
extreme natural phenomena.
Perhaps in the circumstances in which this was the worst storm for 100 years, Maureen may be able
to avail of this defence. It may prove however to be a partial defence only, and she would not appear
to have much of a defence beyond the partial defence of contributory negligence in respect of the
damage which in line with the damage that had been recurring annually on the rest of his land.
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Question Seven
Critically analyse the extent to which a statutory obligation may give rise to a tort action for breach of
duty, paying particular attention to the relevant jurisprudence.
Answer Seven
A Plaintiff may seek to plead negligence together with a claim that some statutory duty has been
breached by a Defendant. The issue will be whether or not the statute is actually capable of
grounding a civil action for damages. There are a number of types of statutory provisions which can
give rise to a claim for breach of statutory duty.
A Plaintiff will have no difficulty where there is a clear and comprehensive piece of legislation which
governs the Plaintiff’s action and allows for private civil proceedings: e.g. Occupiers Liability Act
1995; the Defective Products Act 1991; or the Defamation Act 2009.
A Plaintiff may also be able to avail of a precise statutory provision which governs the Plaintiff’s
action and allows for private civil proceedings. This provision may be incorporated into a broad piece
of legislation which also includes regulatory structures. One example is the General Application
Regulations 1993 which were passed pursuant to the Safety Health and Welfare at Work Act 1989.
These Regulations expressly permit a private civil action for breach of the regulations.
There may be other statutory provisions available to a Plaintiff which provide rights and liabilities and
may lead to tortious liability, if breached. This is referred to as a common law action for breach of
statutory duty because although the source of obligation is statute, the principles governing the
liability are determined by the Court. The Courts will have to interpret the statute to ascertain whether
a private civil action exists and whether the Plaintiff’s case falls within the permissible boundaries.
The Courts frequently have to interpret two forms of statute to ascertain whether a private civil action
exists:
Statute with no provision governing civil action but no provision excluding it.
Statute with an express provision governing a civil action but no remedy provided.
The main advantage to an action for breach of statutory duty is that not all general defences are
available in claims for breach of statutory duty and, furthermore, the available defences are
interpreted more strictly against the wrongdoer. Furthermore, section 57 (2) of the Civil Liability Act,
1961 abolished the defence of delegation in respect of Defendant who is in breach of a duty under
statute. Responsibility for breach of statutory duty is therefore non-delegable, similar to the nondelegable duties the common law imposes on employers.
The defence of contributory negligence under s 34 of the Civil Liability Act 1961 is also interpreted
much more strictly in cases of breach of statutory duty. This was referred to in Kennedy v East Cork
Foods (1973) where the Court stated that when the Defendant’s breach of statutory duty causes
injury to the workman, damages should not be reduced because of contributory negligence unless
the Plaintiff exhibited downright carelessness .
There may be a specific defence provided for in the relevant statutory provision. In these
circumstances, the Court will interpret the defence strictly against the Defendant. The Defendant will
have to bring itself precisely within the terms of the defence in order to rely on it.
Where the statute is incomplete in relation to the issue of a civil action for breach of the relevant
statutory duty, the courts will apply the principles of statutory interpretation and consider a number of
specific issues as identified in Charlesworth on Negligence (1971) when discussing a civil action for
breach of statutory duty. These are
Is the action brought in respect of the kind of harm which the statute was intended to prevent?
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Is the person bringing the action one of the class which the statute was designed to protect?
Is the special remedy provided by the statute adequate for the protection of the person injured?
If the first two are answered in the affirmative and the third in the negative, then, in most cases, the
individual can sue.
The Courts have consistently ruled that where a statute is enacted for the benefit of a specific class,
members of that class ought to be able to obtain damages for loss arising from the breach of the
duty. If, however, a statute is addressed to the public, the Courts have held it does not generally give
rise to liability unless the Plaintiff has suffered particular damage over and above that suffered by
members of public.
In Daly v Greybridge Co-op Creamery Ltd (1964) there was a claim by the Plaintiff for breach of the
Factories Act 1955. The Plaintiff was a lawful visitor to the factory and suffered injury and sued for
breach of statutory duty. It was held that the relevant class to whom the statute was addressed were
those working for the benefit of an employer, including those not directly employed by him to include
independent contractors. In this case, since the Plaintiff was a lawful visitor but was not carrying out
work, he was outside the relevant class and had no claim for breach of the duty.
Where the terms of the statute are precise and refer to a particular harm, the courts will adopt a
highly literal interpretation and the Plaintiff must suffer that harm. In Kenny v O’Rourke (1972), the
relevant provision required employers to provide scaffolding for all building operations that “cannot
safely be carried out without it”. There was no scaffolding provided and the Plaintiff was injured and
brought a claim for breach of statutory duty. The SC interpreted the provision as requiring the
Plaintiff to prove that the operation was unsafe without scaffolding, not merely that the operation was
safer with scaffolding than without. In Nicholls v Austin (Leyton Ltd) (1946), s. 14 of the Factories Act
1961 placed a statutory duty on employers to ensure dangerous pieces of machinery were securely
fenced in. Pieces of the machinery flew out and injured the Plaintiff, who brought a claim for breach
of statutory duty. The provision was interpreted as intending to keep the workers away from the
machine and not to keep the machine or its components in. The Court concluded that it did not
intend to cover the situation where particles of the machine flew out and injured the worker.
The Court stated in Doe D Murray v Bridges (1831) that “…where an act creates an obligation and
enforces the performance in a specified manner we take it to be a general rule that performance
cannot be enforced in any other manner”.
Where the statute identifies criminal enforcement as the sanction the Courts tend to hold that no
other remedy for breach of statutory duty exists. Criminal enforcement is generally viewed as
identifying a matter of public interest as opposed to identifying a matter which can be subject to a
private civil action. Cutler v Wandsworth Stadium (1949) concerned the Betting and Lotteries Act
1934, designed to regulate betting in the public interest, which contained provisions for criminal
sanction. The Plaintiff sought to bring a civil action for breach of statutory duty.The HL held that in
ascertaining whether a civil action was intended, the court must have regard to the Act and the
circumstances of its enactment, including the previous and surrounding laws. The Court stated that:
“The sanction of criminal proceedings emphasises that this statutory obligation ... is imposed for the
public benefit and that the breach of it is a public not a private wrong.” Accordingly, it raised a “strong
implication” that civil liability under the statute was not intended.
Similarly, where enforcement by a public authority or agent of the state is identified as the sole
remedy, the implication is that the statute is intended only for public, regulatory purposes and not for
private actions and this was referred to in Walsh v Kilkenny Co Co (1978) in relation to enforcement
of the Burial Grounds Regulations.
The presumption against private civil liability also applies where the statute specifies a certain fine as
both compensation and sanction. This is problematic, however, where fines have been allowed to go
out of date. Two examples where injunctions were sought for breaches of Constitutional rights in
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relation to actions where fines were specified were AG v Paperlink (1984) and Parsons v Kavanagh
(1990), both of which were treated as exceptional cases, where the fines were out of date and
inadequate to protect significant Constitutional rights.
In light of the foregoing it can be seen that a statutory obligation may give rise to a tort action for
breach of duty, but the Courts have employed very specific criteria in relation to allowing recovery on
this basis, and the implementation of those rules have often been hampered by a lack of clarity in the
drafting of the particular statutes at issue.
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Question Eight
Charles is Caitriona’s brother. Caitriona is a widow with two children, Edward and David. Charles
decided to take Caitriona and her children for a short break at a seaside chalet. After they had
finished packing, Charles realised that they would not all be able to drive in one car given the
inordinate amount of luggage that Caitriona had packed. Accordingly, Charles decided that they
would have to travel in two cars and that he would put all of their luggage in his car and follow
Caitriona and the children in her car.
Both Charles and Caitriona left home about the same time. However, Charles pulled over to take a
phone call from work which lasted about 30 minutes. He resumed his journey but about ten miles
further on all the traffic had come to a stop. Unknown to Charles, Caitriona’s car had been involved
in an accident. As he was waiting in the line, a car on the opposite side of the road came to a stop
and the driver shouted across to Charles saying: “There must be someone dead in the accident –
they have shielded off the scene so you cannot see what is going on – you would be better off
turning around and taking an alternative route.”
Charles had an uneasy feeling about this and was really worried that it might be Caitriona and the
children. He felt nauseous. As the line of cars slowly made its way towards the scene of the accident,
Charles tried to see if it was Caitiona’s car. A Garda stopped him and said: “It’s pretty horrific, just
keep moving”. It was then that he saw the rear of Caitriona’s car completely crumpled. He fell out of
his car and proceeded to get violently sick believing that they were all dead.
In fact, Caitriona and the children were unhurt apart from minor cuts and bruises. However, since
that day, Charles has been unable to sleep due to nightmares, has given up driving entirely and has
had a significant change of personality. The counsellor says that he will overcome these issues in
time, but he has his doubts.
Advise Charles if he has any action in tort against the drunk driver who negligently crashed into
Caitriona’s car.
Answer Eight
Charles seeks advice in relation to the liability of the drunk driver who negligently crashed into
Caitriona’s car, in circumstances where he is suing for the psychological effects that what he
believed had happened, rather than what in fact had happened.
Establishing a breach of duty or standard of care on behalf of the driver will involve Charles being
able to discharge a number of proofs which have been developed in relation to cases where a
person develops nervous shock as a result of observing/participating in a traumatic event.
The matter was first dealt with in Ireland in a modern context by by Denham J in Mullally v Bus
Eireann, and subsequently by the SC in Kelly v Hennessy, both of which concerned plaintiffs who
had received news of their family’s injuries and upon viewing their injuries, and subsequently went
suffered nervous shock. The SC in Kelly set out 7 principles which would determine whether a duty
of care is owed by the defendant to the plaintiff to avoid causing him psychiatric injury:
The plaintiff must suffer a recognised psychiatric illness.
The illness must be by way of “shock" or sudden exposure,
The nervous shock must have been caused by the defendant’s act or omission.
It must be reasonably foreseeable that the initial event could cause psychiatric injury and
foreseeability of a general personal injury is not enough,
The illness must result from the perception of actual injury or a risk of injury to oneself or
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another person,
If harm results from perception of an aftermath, there must be a close personal relationship between
the primary victim and the plaintiff, and
There must be no public policy limits on recovery where the plaintiff established sufficient proximity
and foreseeability by fulfilling the above conditions.
While the above principles were clearly set out to apply to secondary victims who
came upon the aftermath of an accident, Fletcher v Commissioner for Public Works established that
the principles do not apply to every claim for nervous shock, and suggested that if the plaintiff had
shown that he had a rational fear of contracting a disease as a result of the defendant’s negligence,
he would be entitled to recover damages for his fear and anxiety, although that proposition was not
made out on the facts of that particular case.
In Curran v Cadbury the court imposed liability for nervous shock caused to the plaintiff, as due to
her employer’s negligence, she had believed that she had caused severe injury to a workman fixing
a machine, and had suffered significant psychiatric injury as a result, even though the workman was
not injured. Fletcher and Curran are useful as they demonstrate that it is not necessary that any
actual physical harm occurred, and that it is sufficient that the plaintiff suffered nervous shock from
the threat or belief of actual physical harm and that this shock was caused by the negligence of the
defendant.
The Kelly principles require that the plaintiff must suffer a recognised psychiatric illness and that the
illness must be by way of “shock" or sudden exposure. We are told that since the day of the collision,
Charles has been unable to sleep due to nightmares, has given up driving entirely and has had a
significant change of personality. The counsellor says that he will overcome these issues in time, but
he has his doubts. These facts engage the obligation on a plaintiff that he can prove that his injury is
a recognised psychiatric illness, but this will be a matter of evidence. In relation to the requirement of
“shock” being present, although Charles was shocked by what he saw which was based on an
incorrect belief, this in and of itself would not preclude him from claiming in line with the authority of
Curran v Cadbury, but significantly, there was a close connection between the defendant’s system of
work and the wrong belief of the plaintiff in that case, whereas here, there appears to be little basis to
link the gravity of Charles’ incorrect belief to the collision caused by the driver.
The Kelly principles also set out that the nervous shock must have been caused by the defendant’s
act or omission and that it must be reasonably foreseeable that the initial event could cause
psychiatric injury – foreseeability of a general personal injury is not enough. These principles engage
quite strongly the absence of a link between the actual event and the events that gave rise to
Charles’ shock. In this regard, the driver may argue that the impression given to Charles by the other
driver and the Garda, take Charles’ injury outside of the realm of reasonably forseeability injury in
nervous shock flowing from his initial tort, and this would appear to be a strong argument as to why
liability should not be imposed.
Thus, while Charles may be able to establish a prima facie duty of care on the part of the driver, this
is subject to Charles being able to show that he has suffered a shock-induced recognised psychiatric
injury, and, more fundamentally, establishing a level of foreseeability in relation to the injury he
suffered, which appears very difficult to identify on the basis of the facts disclosed.
260