Limits to Neighbour Principle
The famous neighbour principle re-stated the general basis of liability in negligence. It stated, that “you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour”. The test identified a neighbour, as a person who is so closely and directly affected by your actions that you ought reasonably to have them in contemplation as being so affected when you direct your mind to the acts or omissions which are in question.
The famous neighbour principle is subject to significant limitations. It was readily recognised that the proposition is too broad in many respects. A person is not and cannot be liable in every circumstance, where he does or omits to do something which may foreseeably cause loss to another.
The courts have limited the extent of the foreseeability in a number of ways. One has been through the use of a foreseeability test. Foreseeability involves looking with hindsight as to what had happened, from the perspective of a hypothetical reasonable person An objective standard is applied. However, the personal characteristics of the claimant concerned are taken into account.
There are circumstances in which the duty of care may be held not to exist because it is not fair, just and reasonable that a duty apply. There are many longstanding exceptions to the neighbour principle. The principles of liability towards trespassers, the liability of sellers of second-hand properties, lessors, owners of domestic animals and straying animals had long been established prior to Donoghue v Stevenson and remained largely intact.
In many cases, the courts have used the concept of foresight in order to limit recovery. They may determine after the event that such and such a type of liability or circumstance was, or was not unforeseeable. They have tended to place limits on the kind of wrongful act which might be foreseen.
In the early common law, only the direct infliction of harm was recognised as founding civil liability. This remains in the separate principles of trespass liability.
Remedies for indirect or consequential harm, the precursor of negligence developed later, under different forms of legal action, including as so-called action on the case. This was an action for redress of wrongs or injuries to person or property not specially provided against by law, in which the whole cause of complaint was set out in the writ. Ultimately, the old forms of action were abolished.
Omission
Liability in negligence may involve an act or omission by the defendant. The failure to undertake a duty carefully or at all may constitute negligence. The breach of a duty of care may be one of commission or omission. However, the failure to act by itself, will not constitute negligence unless there is a duty to act, arising from a special relationship or circumstances.
A bystander who does not help in circumstances where he could easily help has no liability. At common law, where the bystander actually assists, he might potentially be liable for negligence, if he fails to act with due care, allowance being made for the circumstances.
In many circumstances, there will be a duty to act. In these circumstances, negligence may arise by omission. Where a person has created danger, he will usually have a duty to act. Where the danger is caused by a stranger, the defendant may be liable where the stranger’s action is one which ought to have been contemplated.
Where there is a power, but not a positive duty to act, there is generally no liability for failure to exercise the power, even if damage is foreseeable. The Civil Liability Act provided that a road authority should be liable for damage caused as a result of their failure to maintain adequately a public road. However, controversially the provision has never been commenced. Accordingly, the Roads Authority have remained liable for so-called misfeasance (careless repair of the road), but not for non-feasance (failure to repair).
Good Samaritan Legislation
So-called “good Samaritan” legislation was introduced in Ireland in 2011, in order to alleviate the anomaly that the so-called good Samaritan ran the risk of liability by intervention, that he could have avoided by failing to intervene.
A ‘good samaritan’ means a person who, without expectation of payment or other rewards, provides assistance, advice or care to another person in an emergency. A good Samaritan shall not be personally liable in negligence for any act done in an emergency when providing assistance, advice or care to a person who is—
- in serious and imminent danger, or apparently in serious and imminent danger, of being injured or further injured,
- injured or apparently injured, or
- suffering, or apparently suffering, from an illness,
A good Samaritan is not liable in negligence for any act done in an emergency when providing advice by telephone or by another means of communication to a person (who is at the scene of the emergency.
The protection from personal liability conferred on a good Samaritan applies even if the emergency is caused by an act of the good Samaritan. However, the protection from personal liability conferred on a good Samaritan shall not apply to—
- any act done by the good samaritan in bad faith or with gross negligence, or
- any act was done by the good samaritan when providing assistance, advice or care in circumstances where the good Samaritan has a duty (whether imposed by or under any enactment or any other rule of law) to provide such assistance, advice or care.
“Voluntary work’ means any work or other activity that is carried out for any of the following purposes:
- a charitable purpose within the meaning of the Charities Act
- without prejudice to the generality of the above the purpose of providing assistance, advice or care in an emergency or so as to prevent an emergency;
- the purpose of sport or recreation;
A ‘volunteer’ means a person who does voluntary work that is authorised by a volunteer organisation and does so without expectation of payment (other than reasonable reimbursement for expenses) or other rewards; A volunteer shall not be personally liable in negligence for any act done when carrying out voluntary work.
The protection from personal liability conferred on a volunteer shall not apply to any act done by the volunteer if—
- the act was done by the volunteer in bad faith or with gross negligence, or
- the volunteer knew or ought reasonably to have known that the act was outside the scope of the voluntary work authorised by the volunteer organisation concerned, or contrary to the instructions of the volunteer organisation concerned.
An agreement, undertaking or arrangement has no effect to the extent that it provides for a volunteer to give a volunteer organisation an indemnity against, or to make a contribution to a volunteer organisation in relation to, a liability that the volunteer would incur for his or her negligence but for the above exemption and the volunteer organisation incurs as a result of its vicarious liability for that negligence.
Limits of Extent Liability
There are limits to the kinds of harm for which a person may be liable in negligence. The harm must be of a kind which is foreseeable. A person is not liable for every consequence which a reasonable man could foresee. Some kinds of damage will not give rise to an action in negligence.
Where damage of a “foreseeable” type is incurred, the defendant will generally be liable for the full extent of that damage, notwithstanding that such damage or its full extent, might not happen in the normal course of things. This is sometimes referred to as the eggshell rule.
Liability for new forms of potentially foreseeable damage has been developed by the courts over the last 60 years. Liability for psychiatric injury, sometimes called nervous shock, is now firmly established. However, the courts have sought to employ principles to limit potentially open-ended liability for nervous shock arising from the trauma caused by the aftermath of horrific accidents caused by negligence.
Prior to 1964, recovery was not generally allowed for so-called pure economic loss. Economic loss has always been recoverable, where it follows from a physical loss to persons and/or property. In many negligence cases, there will be very substantial claims for economic loss arising in consequence of serious personal injuries.
In the famous Hedley Byrne v Heller, the House of Lords allowed recovery for pure economic loss caused by negligent advice. The principle was quickly applied in Ireland. It is the cornerstone for liability for negligence in the provision of professional services.
