Tort Liability

Negligence

The tort of negligence is of great practical importance. It expresses duties and rights in a very open and general way. Liability for negligence may arise when the defendant owes a duty of care to the claimant.

In its broadest sense, a duty of care is potentially owed to anyone who may suffer foreseeable injury or loss as a consequence of one’s carelessness /  negligence. It is often said that the duty is owed to one’s “neighbour”. This is any person who is sufficiently proximate or close so as to be foreseeably injured by one’s carelessness.

A business should have regard to the range of persons potentially affected by it when doing business or undertaking activities. The first question in a negligence claim is whether the claimant was amongst the range of persons to whom the defendant ought to have regard when considering and undertaking its actions. The claimant must be sufficiently proximate to the defendant.

In practice, the courts are pragmatic in how they apply and extend the law of negligence. There are many circumstances in which a person could theoretically foresee loss or damage to another. However, not all such situations give rise to liability for negligence. The courts have sought to apply limits so as to avoid liability the consequences of negligence in all circumstances.

Development of Negligence Principles

Until relatively recently,, it appeared that the courts might widen liability for negligence considerably. For many years, both the Irish and UK courts approached the law of negligence on the basis that where there proximity and foreseeability of loss, liability for negligence might presumptively apply, subject only to considerations of policy.

As the general principles were applied to new circumstances, concerns were expressed in some cases, that it might “open the flood gates”, leading to open-ended liability in many cases. However in practice, even while deploying an expansive verbal formulation of the tort of negligence, the courts acted pragmatically and sought to develop it incrementally by analogy with existing established circumstances, where liability for negligence already applies.

Within the last 30 years, the courts have moved away from this expansive view. The courts now explicitly acknowledge they this should proceed incrementally in this manner when they apply the general principle of negligence to new circumstances. They have said that they should not take account of policy but of principle. Courts are not lawmakers.

The modern approach, accepted in the UK and in Ireland,  is that it is not enough that loss or damage is foreseeable. In order to impose a duty of care,  it must be considered whether it would be just and reasonable to do so.

Examples of Liability for Negligence

The courts have imposed duties of care in a wide variety of situations. A duty of care is recognised in many situations where physical injury or damage to property has been caused by carelessness.

A high proportion of all claims in the civil courts arise from road traffic accidents, slips and falls and work-related injuries and illness. They are based on liability for the consequences of negligence.

Builders and persons who make or sell products owe a duty to a purchaser in relation to safety. An adviser and service provider owes a duty to his client and anyone who will foreseeably rely on his advice and expertise. Where there is a contract dealing with the particular matter between the parties and providing for risk apportionment, this will usually prevail.

However, the courts have not extended duties to situations in which parties could not reasonably be expected to take care to protect the interests of another. They have drawn the line at imposing liability in situations where it might defy common sense, be onerous, unreasonable or where the risk might be more properly carried by another.

Standard of Care Required

It is often said that the duty of care is that which would be expected from a reasonable person in the circumstances. The standard of the “reasonable man” as that of a hypothetical average person. He is assumed to be an ordinary prudent person.

The reasonable man is expected to know the basic laws of nature, facts of common experience,  the habits of young children and the basic laws of physics. He is expected to appreciate his own ignorance and limitations. He is not necessarily expected to heed every warning.

This objective approach is modified in relation to individual disabilities and circumstances. The courts will have regard to weaknesses and proclivities.

The duty of care must take account of a person’s disabilities. A blind person will not be required to see and a deaf person will not be required to hear. However, a disabled person must meet the standards of a reasonable person suffering from the relevant disability.

Where a person suffers a sudden onset,  such as a heart attack or an epileptic event, he may not be held liable for the consequences. If, however, he might reasonably have predicted this possibility, then he may be held negligent for not avoiding or mitigating the uncontrollable risk itself.

Risk v Utility

In practice, the courts consciously or subconsciously look at risk and benefit in deciding what constitutes negligence. The probability of the incident, the gravity of the possible injury, the social utility of the conduct and the cost of eliminating the risk are relevant.

The greater the likelihood of harm, the more unreasonable and thereby negligent it is,  for the defendant to engage in the risky conduct concerned.  Where the potential risk of injury is great, running the slightest risk may constitute negligence.  For example, the presence of children may make driving which would otherwise be acceptable, unacceptable. Conversely, where an adverse outcome is unlikely, the onus on the reasonable person to take care is relatively less.

That the defendant’s conduct has a high social value and utility,  is a factor that makes liability less likely. In contrast, where the activity has no social utility or is done for little good reason, the person is more likely to be held liable for its adverse consequences,  if they are at all foreseeable.

The cost of eliminating the risk concerend is relevant.  If the risk could be easily abated, more is expected of the reasonable person. In contrast, where removal or reduction of the risk would require enormous cost,  less would be expected of the reasonable person in the circumstances.

By way of example, spillages in retail shops and other public places may cause trip and fall accidents. The courts have imposed a high obligation on business to wipe up spills, coming close to finding liability regardless of any fault.  However, even in these cases, where spills are evitable and it would not be reasonable to mop then up in a very short space of time, the business may escape liability.

Liability for Omissions

A person is not generally liable for omitting to do something. Therefore, one is not usually liable if he makes no attempt to rescue a person in danger, even this could be easily be done.

For example, a Local Authority is not liable for the consequences of failure to repair the roads (pending a  longstanding change in the law being initiated). However, if it does repair the road and leaves it in a dangerous condition, it may be liable to persons who are thereby injured.

There is no general obligation to assist another. No “Good Samaritan” requirement applies. If however, a person does act, he may be liable if he does so negligently. In practice, it is extremely unlikely that a rescuer would be held liable for negligence. Legislation has relieved the risk that a “Good Samaritan” might be found liable to those whom he helps, even if he has been negligent.

There are many situations in which a person will have a duty to act in the circumstances. In these cases, an omission may amount to negligence. Certain relationships may give rise to a duty.

Employers have a high duty of care in relation to the safety and welfare of their employees. This includes positive duties to ensure a proper and safe system of work, and that workplace accidents and injuries are avoided.

Actions of Others

Courts do not generally impose a duty to prevent the intentional wrongdoing of others. However, there are limits to this principle.

There may be a duty to control children and incapacitated persons to ensure that they do not cause injury to themselves and others. This may apply in respect of the behaviour of one’s children. It has been argued that a publican may be liable for dispensing alcohol beyond a certain point to a person who foreseeably injures himself or a third party while intoxicated.

In some situations,  a person may have a duty to control another.  The driver of the car was held to be potentially responsible for failing to control her daughter in opening a door and thereby causing an accident, which injured another. The driver as the person in control of the car was under a duty to control and supervise underage passengers.

Landlords, employers, and hoteliers may be liable to ensure that third parties in their care do not cause injury. The owner of a psychiatric mental hospital may be liable for injuries caused by patients.

Causing the Loss

In order to prove a claim in tort, the claimant must generally show that the defendant caused the injury, damage or loss complained of. He must also show that the injury was “foreseeable” and is not too “remote”. It may be that several parties have caused or contributed to the particular loss or damage.

The claimant must prove by evidence, on the balance of probabilities that the defendant has caused the loss or damage. This may not be an issue in the majority of cases. However, in some cases, such as environmental pollution, some medical negligence occupational illnesses, proving that the particular injuries or damage was caused by the defendant, may be more difficult and contentious.

At a minimum, it must be shown that the loss or damage would not have occurred, but for the breach of duty by the defendant. If the injury would have happened at any event, then the defendant may not be liable. If a wholly new cause arises, which is not foreseeable, the party causing the initial incident may escape liability. A common-sense view may be taken of the circumstances.

If the damage would have occurred anyway, a defendant may be liable where his acts or omissions are a material or substantial factor in bringing about the loss or damage. This may occur where a person is injured as a result of a collision between two others. Each alone may not have caused the injury. However, it is evident that the collision was a material and substantial factor,  each of the third parties may potentially be held to have caused the injuries.

In the same way, if a school is negligent in allowing a child to escape onto a busy road, the school is likely to have part or significant liability where a third-party’s car strikes the child.  Similarly, in cases where children have been injured in circumstances where they trespassed, the owner may still be liable where the trespass is foreseeable.

Foreseeable Loss

Issues may arise as to the foreseeability of the events that have occurred.  The series of events and incidents must be broadly foreseeable. If the claimant acts unreasonably and unpredictably, then the defendant may not be liable.

What is foreseeable is judged in hindsight and does not necessarily imply circumstances which the respondent consciously foresaw. In a case where a claimant fell downstairs because she could not use her glasses as a result of a neck injury, this was deemed sufficiently foreseeable as a consequence of the negligence causing the original neck injury.

Where the new intervening act involves the unreasonable recklessness of a third party, the defendant may not be liable, where there is deemed to be a new effective cause. In a case where a car’s keys were left carelessly in the car which was stolen, injury to a third party who was knocked down by the stolen car was not foreseeable by the owner. Although theft was foreseeable, the reckless driving of the thief was not foreseeable. Similarly, where a defective boat was taken out to sea by a captain acting recklessly, knowing it was not seaworthy, the manufacturer was not found liable.

However, even a degree of recklessness may not be enough to break the chain of causation, foreseeability and responsibility. An asphalt company was liable for injuries caused where a driver knocked down a motorcyclist who had slipped on ice formed in a pothole road caused by the company’s negligent work. The fact that the driver may have been careless or reckless was not sufficient to excuse the company from being held to be partly the cause of the accident.

In a civil wrong claim, the defendant is usually liable for the full extent and consequences of his negligence or other fault. This is so, even where the type of injury, loss or damage could not be fully foreseen or if the circumstances in which they occurred could not be foreseen.

However, there are limits. The courts may decide that some types of damage are unforeseeable or too remote a consequence of the negligent act or event. The types of injuries might be held to have been unforeseeable, sot that there is no liability.

In a well-known case, the highest court in England decided that tenants were not liable where oil had spilt into a harbour. Several hours later, it flowed to a nearby wharf where ships were undergoing repairs. Five days later, welding ignited the oil in the water, causing a fire. The damage or loss was held to be too remote. It was not the kind of loss or damage that a reasonable man could have foreseen.

Vulnerability of Claimant

If a particular claimant is more vulnerable to injury because of a particular weakness or vulnerability, then usually, the defendant will still be held to be liable. A person who commits a civil wrong takes his victim as he finds him; the so-called “eggshell” rule.

It means that if a person is more vulnerable to particular or additional loss, because, for example, he suffers from a particular condition, the wrongdoer is liable to compensate for the full consequences and extent of damage as it impacts on that person.

The “eggshell” principle extends not only to physical weakness but also to economic circumstances. If a person is obliged to borrow money to say hire a car, while it is being repaired the wrongdoer may be liable for the interest incurred.

aused by a patient who was negligently allowed to escape.

Contract and Tort

There can be an overlap between contract and tort law. Where, for example, a service is provided and the customer is caused loss as a result of the negligent provision of the service, there may be a claim arising both for negligence and breach of contract.  This may be advantageous to the claimant because there are different rules in relation to each type of claim.

The time limit for claiming for a tort/ civil wrong runs from when the loss or damage has occurred. This may be significantly later than the date for a breach of contract, which starts when the defective performance occurs. The time limit for bringing a claim for breach of contract may have expired at the time the damage or loss occurs, but the time limit for making a claim of negligence will only then commence.

The extent of the duty or obligation under a contract is a matter of interpretation of its terms.  The obligation under contract law is usually an absolute obligation to achieve a particular result. In some cases, it may be implied that the obligation is less. A service provider is generally obliged to use due care and skill, much the same test as that for liability for negligence.

Where goods are bought from a retailer, there is an implied contractual term as to merchantability. The retailer is unconditionally liable for a breach of contract, irrespective of whether or not he is at fault. The buyer will have no contract with anyone up the distribution chain, so his claim to recoup the cost of a defective product is against the retailer. If the retailer is sued, then he may be able to join third parties as parties, up the supply chain to the manufacturer to answer the claim.

If the goods are manufactured, the manufacturer may be liable for negligence if the goods cause personal injury or damage to property. There are special rules for injury caused by defective products which allow manufacturers and in some cases, others in the distribution chain, to be held liable to the consumer, irrespective of proof of fault. See our chapter on product liability.