Meaning of Negligence I
Negligence is used in a number of senses. In one sense, it refers to a person’s state of mind. An act is negligent, where it is done without giving due weight to the risks involved. A person (and his state of mind) may be negligent, even though the person considers the risk and exercises some degree of care, but fails to exercise reasonable care.
Negligence is to be contrasted with intentional behaviour. Negligence, as a state of mind, represents a lesser degree of blameworthiness than acting recklessly or intentionally in relation to the risk. An act is intentional where it is deliberately done. Where liability arises by reason of negligence, it will also arise where the person has, in fact, acted recklessly or intentionally.
Negligence covers cases where a person has averted to the risk and has not given it appropriate weight and cases where he has not averted to the risk at all. Recklessness implies a conscious disregard of known risks. A wider view of recklessness equates it to gross negligence. Intention implies knowledge that the consequence will follow. The consequence may be desired, but it need not necessarily be desired.
In another sense, negligence describes the careless conduct in itself. In this context, negligence means behaviour or conduct which breaches the standard of the duty of care defined by law. Conduct may be negligent and careless without necessarily breaching a duty of care and giving rise to liability for negligence.
Negligence may consist of the doing of an act carelessly or the omission to do something, which a reasonable person would have done in the circumstances. Omissions may constitute negligence in particular contexts.
Meaning of Negligence II
Negligence sometimes describes accidental conduct. Equating negligence with accidental events can be misleading. An event may be accidental, irrespective of fault or negligence on the part of another.
Negligence is sometimes described in terms of degrees. Ordinary negligence is sometimes contrasted with gross negligence, recklessness and intention. The latter degrees of fault is more commonly encountered in the context of criminal liability. Civil liability for negligence does not generally distinguish between negligence, gross negligence, reckless and intention. Mere negligence is usually sufficient to establish civil liability.
Negligence is the name for the tort / civil wrong in itself. It requires a duty of care, breach of the duty, which causes loss or damage to the claimant. The essence is the breach of a duty of care, owed by one person to another.
In contrast to a breach of contract, which usually applies strict liability, negligence usually requires some element of fault. The fault may be theoretical only. A person may be held to have breached his duty of care, although he is in no way morally blameworthy. The duty of care is one sense measured with the benefit of hindsight. In many cases, the breach of duty may be very slight, but it may be sufficient to open the door for extensive liability for its consequences.
Meaning of Negligence III
In the context of contributory negligence, negligence has a slightly different significance. In this context, negligence includes carelessness on the part of the claimant, notwithstanding that there is no breach of duty on his part. The effect of contributory negligence on the part of the claimant or another respondent is to reduce the extent to which the respondent is liable for the consequences of his negligence.
Where a person suffers injuries partly as a result of his own negligence, and the negligence of another, the extent of his recovery is reduced in proportion to the relative degrees of fault, as found by the court.
A breach of a statutory duty may by itself, be a basis of liability. In other cases, it may constitute the elements of a claim in negligence. Where the legislation sets out the standard of conduct, breach of the standard set by or under the legislation may constitute a breach of the duty of care.
The breach of statutory duty is an important factor in determining the standard by which negligence is measured. In many cases, the breach of duty in itself constitutes negligence, In some cases, the legislation may be interpreted as creating an independent stand-alone civil wrong.
Liability in negligence requires proof of damage. The damage must not be nominal. The damage or loss is a critical element of the claim. If the damage is trifling or slight, compensation will not be allowed.
Broad Neighbour Principle
A duty of care is central to negligence. A duty may involve an obligation arising from a relationship. The duty is owed by one person, generally, the defendant in proceedings, to and for the benefit of another, who is or includes the claimant in proceedings. Without a duty of care, there is no liability of negligence.
Whether or not a duty of care exists is a question of law. The existence or non-existence of a duty of care determines whether liability for negligence may arise, where it breach causes damage or loss.
Prior to the famous case of Donoghue v Stevens, it was not apparent whether there was any general principle of liability for negligence. A duty of care was held to exist in particular cases circumstances, in various fields over the years. The common law developed by analogy from case to case, in various areas. It appeared to have developed in a disconnected way, with no overall unity of principle.
In Donoghue v Stevenson decided in 1932, the House of Lords set out what has become the general duty of care in negligence. Despite the generality of the formulation, it did not immediately apply the general neighbour principle to all circumstances. As later cases show and practical considerations have always dictated, the general principle is subject to practical and pragmatic limitations.
The courts have sought to adopt the principles of negligence gradually to a changing society. They have sought to develop the law of negligence on a case by case basis, by analogy to existing cases in which is well established. The courts have continued to keep liability within reasonably well-established confines.
Considerations of policy or pragmatism have shaped the extent to which a claim for liability for negligence is allowed. In addition to the general neighbour principle based on considerations of proximity, risk and circumstances, the courts have implicitly or expressly judged whether it is appropriate to extend the principles of negligence to new categories of case and circumstances. The courts have proceeded carefully with reference and analogy to existing cases.
Reasonable Foreseeability
Reasonable foreseeability of damage is a prominent feature and consideration in determining whether a duty of care exists. This is also relevant in relation to the test of remoteness of damages. This second element determines the extent of liability, once a duty of care exists and has been breached thereby causing damage.
The principle of reasonable foresight, which creates the duty of care and measures remoteness of loss and types of loss for which compensation may be granted, are in principle separate. In practice, they may be blurred in certain circumstances.
A wide formulation of the principle of negligence first emerged in the late 19thcentury. It was given expression and became established in the famous Donoghue v Stevenson case. A person who had been injured by drinking contaminated ginger beer from an opaque bottle was entitled to recover personal injury caused from the manufacturer.
Lord Atkin formulated the neighbour principle as follows. “You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.” It was said that your “neighbour” is any persons who are so closely or directly affected by the act that the person concerned ought reasonably to have them in contemplation as being so affected when directing one’s mind to the acts or omissions in question.
On the basis of this general formulation of principle, the manufacturer was liable to the ultimate consumer. The case was important in establishing liability for negligent manufacture. The case was regarded as a milestone from a much wider perspective from the outset. The neighbour principle has been repeatedly relied on, as a basis or claimed basis for liability in negligence.
The neighbour principle is not in the nature of a statutory definition. It required to be qualified and modified in new circumstances.
Policy Approach
In the early 1970s, the House of Lords identified “public policy” as a factor which might limit the generality of the general duty of care, as formulated above. It indicated that there might be public policy considerations, which might demand immunity from liability or might qualify the terms of liability in particular circumstances.
In the controversial case of Anns v Merton London Borough Council decided by the House of Lords in 1977, Lord Wilberforce and House of Lords indicated that in order to establish a duty of care in a particular situation, it is not necessary to bring the facts of that situation within the previous situations in which the duty of care was held to exist.
The question must be considered in two stages. The first question is whether there is a sufficient relationship of proximity between the alleged wrongdoer and the person who has suffered the injury, such that in the reasonable contemplation of the former, carelessness on his part might be likely to cause damage to the latter? If this case, there was presumptively a duty of care. The second question was whether there are considerations which ought to negate, reduce or limit the scope of the duty or the class of persons to whom a duty is owed
This test was initially embraced and in the late 1970s and early 1980s. The House of Lords expanded liability for negligence into areas where it had not previously been established. Liability for nervous shock was recognised on the basis that public policy did not negate a duty (McLoughlin v O’Brian).
Most controversially, a claim of pure economic loss was allowed in circumstances where subcontractors had undertaken faulty construction work leading to pure economic loss ie. financial loss by itself, as opposed to financial loss arising in consequence of personal injury and property damage.
Reversal of Policy Approach
This latter case was particularly controversial and appeared to allow recovery in negligence for pure economic loss. Prior this case, pure economic loss was recoverable only for negligent advice and for negligence in the provision of services. This potentially opened the risk of a floodgate of claims and threatened to eclipse contract law as the primary basis for regulating economic relationships.
Ultimately, by the late 1980s, the House of Lords reversed its expansive approach. It confirmed that the earlier cases could not be regarded as laying down any principle of general application in the law of tort. The UK courts began to significantly limit the effect of the above cases. The policy approach was rejected. It was thought to be inconsistent with the role of the judiciary.
In several high profile cases, in the late 1980s and early 1990s, the House of Lords emphasised that the courts should proceed by reference to principles, rather than policies. The courts emphasised that the existence of a duty of care should depend primarily on the foreseeability of the damage and the existence of a close or direct relationship of proximity. There should be no presumptive liability, in the absence of public policy to the contrary.
In 1990, the House of Lords in the case of Murphy v. Brentwood District Council overruled the case of Anns v Merton Borough Council. The Lord Chancellor indicated that the courts in its judicial capacity, should not create a whole new area of responsibility for local authorities in relation to defective buildings. This was something more appropriate to an act of parliament.
The court reversed the earlier principle, overruling a series of cases, which led to extensive potential liability in negligence for local authorities. It held that the Council should not be liable to take care to avoid loss to purchasers of buildings in exercising their building control function.
Just and Reasonable Principle v Policy
At the same time as the above case, the House of Lords formulated the question of the extent and possible limitations to liability and stated that in addition to the duty of care and foreseeability, the courts should whether it is consider fair, just and reasonable that the law impose a duty of a given scope upon one party for the benefit of the other.
The House of Lords indicated that phrases such as foreseeability, proximity, neighbour, just and reasonable, and fairness, used in case law, were not precise definitions. At most, they were labels or phrases, descriptive of very different factual situations which may exist in particular cases. They must be carefully examined in each case, before it can be determined pragmatically, whether a duty of care exists, and if so, its scope and extent.
Other courts have questioned whether the concept of a duty being “fair and reasonable” adds anything to the concept of proximity. Courts have suggested that there is no single formula for liability. The concept of foreseeability of harm is not the exclusive or even a presumptive test of the existence of a duty of care. In the Caparo case, Lord Oliver stated that any attempt to state some general principle which will determine liability in an infinite variety of circumstances, would impede rather than assist the development of the law in a practical and common sense way.
The courts seek to proceed on the basis of principle, rather than policy. Public policy considerations however, although not formulated as such, remain an implicit consideration in the imposition of a duty of care and consequent liability in negligence. It appears in broad terms, that the courts will take account of whether it is just and reasonable, in the public interest, to impose a duty of care.
The courts have indicated that the requirement for the imposition of a duty, that it should be fair, just and reasonable, is not to be read literally. Wider considerations of policy might be considered. The modern approach is to analyse allegedly negligent conduct, in new factual situations by analogy with cases where it has been allowed before. The law now seeks to proceed incrementally, on the basis of past decisions.
Negligent misstatement has developed along slightly different lines. Negligent misstatement refers primarily to liability for negligent advice, typically in the context of professional services but it is not necessarily so limited. In this case, liability for pure economic loss typically arise and is well established.
Neighbour Principle in Ireland
The Irish courts embraced the general Donoghue v Stevenson formulation of the test for negligence. Donoghue v Stevenson case was first followed in Ireland in the 1940s. The Irish courts endorsed the case on a number of occasions enthusiastically.
The Irish courts, followed the expansive position adopted in the late 1970s in England and later followed the retrenchment from this position, belatedly and the a lesser extent. The Anns case was welcomed in the jurisdiction as endorsing the general approach rather than reformulating it significantly.
In a significant case in the late 1980s, the Supreme Court preferred the earlier more expansive than the retrenchment which was then occurring in England. In Ward v McMaster, the claimant successfully sued a builder and Council which had provided the housing loan and were negligent in inspecting the property. The court referred to the incremental approach in the England and largely rejected it.
The Supreme Court emphasised a simpler two test approach, based on proximity and the foreseeability of damage. It endorsed the broader approach. In the absence of a compelling reasons to the contrary based on public policy, liability for negligence should apply where there was sufficient proximity and foreseeability.
Principle / Just and Reasonable Limitation in Ireland
In 2001, the Supreme Court reconsidered the Irish approach to negligence, in light of the retrenchment in the United Kingdom. Glencar v. Mayo County Council involved a claim for recovery for financial loss as a result of imposition by Mayo County Council of a ban on mining The Chief Justice endorsed the approach in the Caparo case. He indicated that there was no reason why the courts in determining whether a duty of care arose, should consider themselves obliged to hold that it does so, in every case where injury or damage to property was reasonably foreseeable. The Supreme Court has since reiterated the Chief Justice’s judgment in Glencar.
The claimant must establish foreseeability and a relationship a proximity. In accordance with the UK approach, the Supreme Court has indicated that in addition to the elements of foreseeability and proximity, regards may be had, to considerations of fairness, justice and reasonableness.
The Supreme Court has continued to take a more restrictive approach to negligence since the Glencar case. In one case the Supreme Court concluded that although it was reasonably foreseeable that a car might be stolen if left unattended with the keys in the ignition, it was not reasonably foreseeable that after the theft, the driver would drive carelessly and cause personal injury. Accordingly, the defendant was not liable to the insured person in the circumstances.
The Supreme Court has emphasised exceptions from liability on public policy grounds in some cases. A policy against extending the duties and onus on public authorities can be discerned in some of the leading cases mentioned above. Where public bodies have powers and discretions, the courts have tended to been reluctant to impose further duties of care, giving rise to civil liability.
In Beatty v Rent Tribunal it was considered not to be just and reasonable to impose a duty of care on the Rent Tribunal. Persons who came before it had other choices and remedies. What is to be considered as just and reasonable must be considered from the perspective not only of the parties, but also the public interest. The Rent Tribunal performed that function in the public interest and it is in the public interest that performance duties without fear of litigation, actual or threatened.
Many High Court cases appear to take the view that the Supreme Court has accepted the Caparo principles. In a subsequent High Court case against the HSE for the benefit of a boy who was diagnosed as autistic, it was acknowledged that the limitations of resources this was not sufficient in itself to reduce the duty of care given the extreme vulnerability of the person concerned. However, the High Court held that an important policy considerations was the opening up of unlimited liability or categories of liability. This is referred to as the so called opening up the flood gates, by casting liability in wide terms into a wider range of areas.
While the Irish courts have not wholeheartedly adopted the Caparo principles, it now appears in balance that it is favoured by the Supreme Court. As of 2009 definitive statement is awaited.
The integrity of the law is a relevant policy consideration. Where for example there is a relevant liability in contract, the liability in negligence should not be used to side step or expand it contrary to existing expectations.
