Overview
The most commonly encountered civil wrong is the tort of negligence. It is a principle of law of the very widest practical application. A very significant quantity of all litigation in the courts is based on claims for negligence.
Typically, there has been some incident or accident, such as a road traffic accident, accident at work or some slipping and falling in a public place. Typically, the claim is based on bodily injury or damage to property or both e.g. personal injury and damage to car.
Negligence extends beyond such incidents and accidents to the careless performance of works or services. The types of case where are there may be a civil claim for compensation based on negligence, are prospectively broad.
In order to succeed in a case of negligence, a claimant must show the following
- that the defendant owed the claimant a duty to take care;
- that the defendant fell below the standard of care;
- the failure to meet the standard of the care caused loss or damage and
- actual loss or damage has been sustained.
Duty of Care
A person or business is said to owe a duty of care to avoid acts or omissions which one can reasonably foresee may injure or cause loss to another person who may be affected by such want of care. The neighbour is a person so closely or directly affected by the act that, the defendant ought reasonably to have them in contemplation as being likely to be affected had they considered the acts or omissions in question.
There must be a sufficient relationship or “proximity” between the claimant and defendant so that in the reasonable contemplation of the latter carelessness on his part, might injure or cause loss to the former.
These criteria are extremely broad. At one stage the Irish and English courts appeared to be prepared to extend the law of negligence to any scenario in which loss or damage might be foreseeable unless there was a good policy reason to the contrary. Both Irish and English courts have retreated from the proposition that policy should play a role.
The question now asked in novel cases is whether it is just and reasonable to impose a duty. Under the current approach, the courts do not look to extend the law of negligence in an expansive way. Instead the approach is to proceed incrementally by analogy with existing established categories of case and relationship.
Omissions and Failures to Act
Liability for negligence usually arises from a positive act on the part of the defendant. Generally, there is no liability for omissions, unless there is a special relationship between the parties. For example, it is said there is no duty to rescue. A person may walk by a drowning person, whom he may easily rescue. This is often criticised as morally reprehensible, and consideration has been given to law reform.
There are of exceptions, where there is a duty to act. Where there is a relationship of authority and dependence such as between parent and child and employer and employee there are positive duties to take action, so that failure may constitutes a breach of duty.
Where the defendant causes a danger, there is usually to a positive duty to take action to abate the danger. Failure to do so may constitutes a breach of a duty of care. Where the defendant is in controls of a process there may be a duty to warn of dangers that arise e.g. property or manufacturers of dangerous products
Where a person commences a particular task, then he must complete it competently and with due care. The general principle is that if something is undertaken it must be undertaken with due competence, notwithstanding that he would not have been liable at all if he had never commenced to act.
Proving Negligence
It must be shown that the defendant owed a duty of care to the claimant and that he has fallen below this standard of care. The standard of care is that expected from a reasonably careful man in the circumstances. The court takes account of the circumstances of the particular parties.
There is, of course, an element of retrospection and hindsight in any case of negligence. In many cases, there will be little moral or apparent fault current. Typically, where an accident has occurs it is likely that it may be attributed to some element of fault or retrospective failure to comply with due care.
Standard of Care
In many cases, the standard of care is laid down in statute. The road traffic legislation sets out detailed obligations and duties. The Road Traffic General Bye-Laws, commonly known as the Rules of the Road will often be determined the relevant standard of care. Health and safety at work legislation set out general rules and standards in relation to workplace safety and welfare. In some circumstances, more detailed rules apply.
There is a close relationship between the law the negligence and liability for breach of statutory duty. In road traffic and workplace accidents, the claim is typically based both on negligence and / or breach of statutory duty. The statutory duty may inform the negligence standard.
The general standard of care is that of a reasonable man. This is judged by reference to the average standards in the community. If a particular danger would have been foreseen by an person of ordinary intelligence and foresight, then a duty of care will exist. Perfection is not required. However, it may be that doing one’s best, is not enough, if this does not match up to the standard of the reasonable person in light of that person’s capacity.
People are assumed to have knowledge of the everyday risks that a normal reasonable person would have. They are deemed to know the laws of nature, physics and the general run of things. Persons with specialist qualifications such as professionals, are expected to act in a manner that conforms to the reasonable standard of the profession concerned.
Regard is had to the particular capabilities of the person concerned. Less would be expected of an older, less mobile person, than would be expected of a younger person. A person who is disabled or less strong will not be expected to behave to a higher standard than he is reasonably capable of. The standard tests is that of a reasonable person suffering from the particular disability.
This is not to say that an incapacitated person can simply do what they like. If it is unreasonable for that person to undertake the particular act or behavior in the first place, then he may be liable, notwithstanding that he could have done nothing about it .
Risk Factors
In determining whether the defendant has behaved reasonably, the courts will look at the following
- the probability of damage or accident
- the gravity of the risk
- the cost of risk reduction
- the social utility of the conduct
The greater the risk or probability of a loss or damage, the greater the degree of care that is required. There is less likelihood that a person will be found liable for a remote possibility. On the other hand, where there is an obvious risk such as driving at speed months near schoolchildren, greater care must be taken.
Where risk is higher, the duty to take care is higher. For example, the transport of dangerous materials requires much greater care than transporting dangerous cargo. If the defendant’s conduct is socially useful, this is balanced against the seriousness and likelihood of the risk. .
The cost of reducing the risk it is relevant. If the cost of removing the risk is high and the probability of harm is low, there is less chance of liability. On the other hand, if the cost of abating the risk is relatively low and the probability of harm is high, it is more likely that negligence will be found. In one case the Supreme Court found that a racecourse did not have a duty to provide an expensive protective fence around an entire racetrack perimeter in order to prevent against the unlikely possibility of horse crashing through it.
Presumptions
The onus is on the claimant to prove all elements of his claim. However, in some cases, presumptions may assist the claimant. Where the presumption arises, then it places the onus on the defendant to show that he is not negligent.
If something is under the control of the defendant, such that an accident does not happen normally if it is managed properly, then, if an accident occurs, this may be sufficient to give rise to a presumption that the accident has been caused by the negligence of the defendant. This principle, may for example, may apply in medical negligence cases, where a person dies after a routine operation.
Where the presumption applies, it is a matter for the defendant to prove that all reasonable care had been taken. The principle will apply this when in the ordinary course of things and accident would not have occurred without negligent .. This effectively raises a presumption of negligence.
Proving Negligence
Until 1988 personal injury cases based on negligence in the High Court were held with a judge and jury. Since then, almost all civil claims are heard by a judge sitting alone. The judge finds the facts, on the balance of probabilities. This involves a determination of the most or more likely account or version of the facts claimed.
The judge determines whether negligence can be deduced from tthe established facts. He decides this with reference to how a reasonable man would have acted in the circumstances. Negligence may be inferred from the circumstances.
There is a principle that sometimes applies to the effect that the facts “speak for themselves”. The principle applies where something is under the control of the defendants where an accident / injury would not occur in ordinary circumstances, if it had been managed with due care and attention. In these circumstances, where an accident / injury occurs, there is a presumption of negligence.
In circumstances, where the presumption applies,(that the facts speak for themselves), the fact that an accident injury has occurred is of itself evidence that the accident arose from want of due care. The defendant may, of course, rebut the presumption by showing that he did in fact exercise due care and attention.
The principle may for example apply where a machine or vehicle is under the control of the defendant. Management may not need necessarily be physical. It may include custody, recent custody or the right to control
If the accident / injury is such, that it would not normally happen without want of care, its occurrence may go most of the way towards providing proof of carelessness or breach of duty, even in cases outside the traditional scope of the above principle. This principle may be useful then where it is difficult to provide direct proof of breach of duty or negligence. From an evidential perspective, the facts raise and inference of negligence
By raising a presumption of breach of duty, the onus is placed on the defendant to rebut the presumption with evidence that he has not been careless. This may be appropriate in many cases where the defendant has greater resources and greater knowledge of the facts.
Negligence causing Economic loss only I
The courts have been reluctant to allow claims for liability in negligence, other than for negligent misstatements (advice or services), which cause so-called pure economic loss.
Where negligence causes personal injury or damage to property then where economic loss results as a consequence, it may be fully recovered. For example, if a person is injured and suffers a loss of earnings. This may be recovered. The reluctance to allow recovery for economic loss, appears to arise from a concern that contract law might be otherwise eclipsed by negligence.
A person giving advice in the context of a professional relationship. may be liable both for negligence and for breach of contract, This can be significant because the time limits for taking action and the amount of damages recoverable, are more favorable to the claimant in the case of negligence.
Negligence causing Economic loss only II
The courts may impose a duty of care for economic loss. There must be an assumption of responsibility by the maker or it must be foreseeable that it would be relied on, and is in fact relied on.
Generally, if a person possessed of skill undertakes to apply skill in assisting another person, then he will owe a duty of care., if they do not exercise the requisite degree of skill and loss ensues in consequence, then he will be liable to for the loss. The liability arises where the respondent knew or should have known that the claimant would rely on his skill and advice.
Liability for negligent misstatements extend beyond cases where there is a professional relationship as an advisor. There may be liability, for example, where a document is issued on which parties receiving it foreseeably rely.
Where advice is given to a group or class of people, there is less likelihood of liability. Liability is more likely when the advice is relied on by a small defined group of one or two persons. If the claimant held himself or as advising the wider class, he is more likely to be liable to persons who suffer loss
It must be shown that the incorrect statement / misstatement caused the loss or damage to the claimant. The maker of the statement must have expressly or impliedly assumed responsibility. There may not conscious assumption of responsibility but this may have be the reasonable inference from the circumstances. There is a difference between a considered statement written statement and off the cuff remarks.
If that contract excludes a particular liability, this will generally exclude liability for negligence for the same matter.
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