13/10/20
Torts
Negligence is the omission to do something which a reasonable man guided upon thse
considerations which ordinarily regulate the conduct of human affairs would do or doing
something which a prudent or reasonable man would not do.
Chapter 5 and 6 of mcmahon and binchy
Ingredients of Negligence
Duty of care
Breach of duty of care
Damage suffered due to breach
Cause
14/10/20
Donoghue v Stevenson
It is the most famous case in the law of torts
Macmillan J:
The categories of negligence are never closed – the possibilities of this area of law are
endless
The explanation of negligence makes no reference to duty of care, which is the most crucial
part of the tort.
Prior to Donoghue, in the developing tort case law there was a series of decisions which
sought to explain the circumstance in which a defendant would be liable for negligence.
They had significant gaps, particularly in respect of any unifying principle, which could
explain how Tort of Negligence operates.
The courts were struggling with how to articulate a concept which is now known as duty of
care in negligence.
Plaintiffs tried to emphasize that their action was not contractual in nature, but they could
still win due to the defendant’s duty of care
Winterbottom v Wright
The courts insisted that there could be no liability arising out of the contract that existed
between the parties.
The plaintiff was a coach driver. The coach driver was seriously injured when the coach
broke down due to a defect. The p’s employer was bound by contract to provide coachmen
to the postmaster general. There was a contract in the background, but the plaintiff himself
was not a party to the contract.
If you allow people who don’t have a contract to sue because of negligence, arising under a
contract between the defendant and a third party, it will give rise to unlimited liability
Doctrine of privity of contract
The privity of the relationship, under the contract, did not include the plaintiff. Here, the
action was brought, and the court said simply because the defendant was a contractor with
a third person. The plaintiff argued that the defendant should be liable to everybody who
,might use that particular carriage, but because there was no privity of contract between
these two parties, the court said that if this plaintiff can sue, then any passenger or person
passing along on the road would be allowed to sue and therefore there would be the most
absurd and outrageous consequences, to which the court could see no limit.
Circumstances and facts of D(plaintiff) v S(defendant)
A friend of p bought her a ginger beer float in paisley Scotland. The proprietor opened the
bottle of ginger beer and poured it over the ice cream. There was some ginger beer left
inside the bottle and this was handed to the P by the proprietor. As the plaintiff ate the
float, her friend poured the rest of the ginger beer and the decomposed remains of a snail
emerged from the bottom. The plaintiff took ill and suffered personal injury including gastro
enteritis. She sued the manufacturer of the bottle of ginger beer. It was thought that the
snail had entered into the bottle before it was filled and sealed.
The issue of the case was whether the defendant owed the P a duty to not bottle the ginger
beer in a bottle that contained a substance that is likely to cause harm.
The majority of the judges agreed that there was a duty of care existing between the p and
the d.
Lord Atkin derived the “neighbor” principle from this case which is the most celebrated
judicial formulation in the law of negligence. He posed the question who then in law is my
neighbor?
Persons who are closely and directly affected by my act that I ought reasonably to have
them in contemplation as being so affected.
15/10/20
How recent cases are affected by Donoghue v Stevenson
The “Neighbour” principle has been unequivocally accepted in Ireland
The house of lords demonstrated that they were comfortable with expansion of liability
The time has come to apply the neighbour principle unless it shouldn’t
Annes
Lord W established a 2-stage test for duty of care.
1) We have to ask whether there is sufficient proximity between the parties
2) If you got a
Caparo test
3-stage test
1) Whether there is sufficient foreseeability
2) Whether there is provable proximity
3) Whether it is fair just and reasonable to impose a duty of care
,“Policy” and the duty of care.pptx (Finish notes using ppt)
Childs v Desormeaux (2006) 1 SCR 643
Flanagan v Houlihan (2011) IEHC 105, 3 IR 574
Common themes in both of these?
20/10/20
Watch lecture again lol.
21/10/20
Sheehan v Bus Eireann
Plaintiff seeking damages for psychiatric injury arising from her presence at the scene of a
road traffic accident.
P experienced depressive adjustment reaction and moderately severe PTSD
In English Law, there is a distinction between primary and secondary victim.
A primary victim is a person who is directly involved in a particular accident.
A secondary victim is a person who, for example, witnesses an accident but is not
themselves involved in the accident.
In the Sheehan case, the High court was asked to consider whether this distinction applies
to the Irish law and the High Court was not prepared to accept the limitations of the English
decisions.
In Ireland, the way in which the courts have approached these cases has been essentially to
apply the same principles as apply to negligence actions that is to say the neighbour
principle under Donoghue, without introducing the additional control mechanisms that have
been applied in English Law viz the distinction between primary and secondary victim.
The Supreme Court in Kelly v Hennessy set that the following criteria should be approached:
1) The plaintiff must establish that they've sustained recognizable psychiatric injury
2) The illness must have been shock-induced.
3) The nervous shock must have been caused by the defendant's act or omission
4) There must be some actual physical injury to the plaintiff or their relative
5) The plaintiff must show that the defendant owes them a duty of care to prevent the
incident in the form of nervous shock
2 Key Issues
1) What is the nature and scope of duty of care to not cause a reasonably foreseeable
psychiatric injury to a person who is not directly involved in the accident?
, 2) Does the law recognize a right of recovery for the psychiatric consequences of
witnessing an accident, if the primary victim is the tortfeasor rather than a blameless
third party?
Keane J: p 62-64.
Conclusions of the court:
Liability: P owed a duty of care by the deceased driver to not cause her a reasonably
foreseeable psychiatric injury
Quantum: Reference to guidance by Irvine J (as she then was) in Nolan v Wirenski [2016] 1
IR 461, 470
Distinction between general damages and special damages
General damages: Damages for pain or suffering
Special damages: Damages that are awarded with reference to specific losses that a plaintiff
has sustained
Note that an appeal was lodged on 8 May 2020 (Appeal Court Ref: 2020 109)
Pure economic loss
There is no physical injury to the plaintiff.
Hedley Byrne v Heller (40:30)
A defendant can be held liable for pure economic loss if they held themselves as possessing
a special skill or knowledge on which they knew the plaintiff would rely.
Legally, a duty of care is owed in a situation where there is a special relationship between
the plaintiff and the defendant in which the plaintiff could be said to have placed reliance on
the defendant. Then the defendant will be liable in principle for the losses sustained by the
plaintiff.
McMahon and Binchy Chapter 7
Breach of Duty and Causation in the Tort of negligence:
Doody v Clarke
Egging case where the plaintiff failed to establish liability on the part of the defendant
motorist for the acts of one of his passengers
The case raises the question of the scope of liability for the independent acts of persons
over whom the defendant exerted control
Passenger threw an egg at a pedestrian, causing her to lose sight in her eye. Her eye had to
be removed and an artificial eye inserted. The defendant – 17 years of age had just recently
acquired his car
Cross J found as a matter of fact that both the defendant and all of the passengers in his car
had “agreed and colluded in the purchase of eggs which they intended to utilize in the
Torts
Negligence is the omission to do something which a reasonable man guided upon thse
considerations which ordinarily regulate the conduct of human affairs would do or doing
something which a prudent or reasonable man would not do.
Chapter 5 and 6 of mcmahon and binchy
Ingredients of Negligence
Duty of care
Breach of duty of care
Damage suffered due to breach
Cause
14/10/20
Donoghue v Stevenson
It is the most famous case in the law of torts
Macmillan J:
The categories of negligence are never closed – the possibilities of this area of law are
endless
The explanation of negligence makes no reference to duty of care, which is the most crucial
part of the tort.
Prior to Donoghue, in the developing tort case law there was a series of decisions which
sought to explain the circumstance in which a defendant would be liable for negligence.
They had significant gaps, particularly in respect of any unifying principle, which could
explain how Tort of Negligence operates.
The courts were struggling with how to articulate a concept which is now known as duty of
care in negligence.
Plaintiffs tried to emphasize that their action was not contractual in nature, but they could
still win due to the defendant’s duty of care
Winterbottom v Wright
The courts insisted that there could be no liability arising out of the contract that existed
between the parties.
The plaintiff was a coach driver. The coach driver was seriously injured when the coach
broke down due to a defect. The p’s employer was bound by contract to provide coachmen
to the postmaster general. There was a contract in the background, but the plaintiff himself
was not a party to the contract.
If you allow people who don’t have a contract to sue because of negligence, arising under a
contract between the defendant and a third party, it will give rise to unlimited liability
Doctrine of privity of contract
The privity of the relationship, under the contract, did not include the plaintiff. Here, the
action was brought, and the court said simply because the defendant was a contractor with
a third person. The plaintiff argued that the defendant should be liable to everybody who
,might use that particular carriage, but because there was no privity of contract between
these two parties, the court said that if this plaintiff can sue, then any passenger or person
passing along on the road would be allowed to sue and therefore there would be the most
absurd and outrageous consequences, to which the court could see no limit.
Circumstances and facts of D(plaintiff) v S(defendant)
A friend of p bought her a ginger beer float in paisley Scotland. The proprietor opened the
bottle of ginger beer and poured it over the ice cream. There was some ginger beer left
inside the bottle and this was handed to the P by the proprietor. As the plaintiff ate the
float, her friend poured the rest of the ginger beer and the decomposed remains of a snail
emerged from the bottom. The plaintiff took ill and suffered personal injury including gastro
enteritis. She sued the manufacturer of the bottle of ginger beer. It was thought that the
snail had entered into the bottle before it was filled and sealed.
The issue of the case was whether the defendant owed the P a duty to not bottle the ginger
beer in a bottle that contained a substance that is likely to cause harm.
The majority of the judges agreed that there was a duty of care existing between the p and
the d.
Lord Atkin derived the “neighbor” principle from this case which is the most celebrated
judicial formulation in the law of negligence. He posed the question who then in law is my
neighbor?
Persons who are closely and directly affected by my act that I ought reasonably to have
them in contemplation as being so affected.
15/10/20
How recent cases are affected by Donoghue v Stevenson
The “Neighbour” principle has been unequivocally accepted in Ireland
The house of lords demonstrated that they were comfortable with expansion of liability
The time has come to apply the neighbour principle unless it shouldn’t
Annes
Lord W established a 2-stage test for duty of care.
1) We have to ask whether there is sufficient proximity between the parties
2) If you got a
Caparo test
3-stage test
1) Whether there is sufficient foreseeability
2) Whether there is provable proximity
3) Whether it is fair just and reasonable to impose a duty of care
,“Policy” and the duty of care.pptx (Finish notes using ppt)
Childs v Desormeaux (2006) 1 SCR 643
Flanagan v Houlihan (2011) IEHC 105, 3 IR 574
Common themes in both of these?
20/10/20
Watch lecture again lol.
21/10/20
Sheehan v Bus Eireann
Plaintiff seeking damages for psychiatric injury arising from her presence at the scene of a
road traffic accident.
P experienced depressive adjustment reaction and moderately severe PTSD
In English Law, there is a distinction between primary and secondary victim.
A primary victim is a person who is directly involved in a particular accident.
A secondary victim is a person who, for example, witnesses an accident but is not
themselves involved in the accident.
In the Sheehan case, the High court was asked to consider whether this distinction applies
to the Irish law and the High Court was not prepared to accept the limitations of the English
decisions.
In Ireland, the way in which the courts have approached these cases has been essentially to
apply the same principles as apply to negligence actions that is to say the neighbour
principle under Donoghue, without introducing the additional control mechanisms that have
been applied in English Law viz the distinction between primary and secondary victim.
The Supreme Court in Kelly v Hennessy set that the following criteria should be approached:
1) The plaintiff must establish that they've sustained recognizable psychiatric injury
2) The illness must have been shock-induced.
3) The nervous shock must have been caused by the defendant's act or omission
4) There must be some actual physical injury to the plaintiff or their relative
5) The plaintiff must show that the defendant owes them a duty of care to prevent the
incident in the form of nervous shock
2 Key Issues
1) What is the nature and scope of duty of care to not cause a reasonably foreseeable
psychiatric injury to a person who is not directly involved in the accident?
, 2) Does the law recognize a right of recovery for the psychiatric consequences of
witnessing an accident, if the primary victim is the tortfeasor rather than a blameless
third party?
Keane J: p 62-64.
Conclusions of the court:
Liability: P owed a duty of care by the deceased driver to not cause her a reasonably
foreseeable psychiatric injury
Quantum: Reference to guidance by Irvine J (as she then was) in Nolan v Wirenski [2016] 1
IR 461, 470
Distinction between general damages and special damages
General damages: Damages for pain or suffering
Special damages: Damages that are awarded with reference to specific losses that a plaintiff
has sustained
Note that an appeal was lodged on 8 May 2020 (Appeal Court Ref: 2020 109)
Pure economic loss
There is no physical injury to the plaintiff.
Hedley Byrne v Heller (40:30)
A defendant can be held liable for pure economic loss if they held themselves as possessing
a special skill or knowledge on which they knew the plaintiff would rely.
Legally, a duty of care is owed in a situation where there is a special relationship between
the plaintiff and the defendant in which the plaintiff could be said to have placed reliance on
the defendant. Then the defendant will be liable in principle for the losses sustained by the
plaintiff.
McMahon and Binchy Chapter 7
Breach of Duty and Causation in the Tort of negligence:
Doody v Clarke
Egging case where the plaintiff failed to establish liability on the part of the defendant
motorist for the acts of one of his passengers
The case raises the question of the scope of liability for the independent acts of persons
over whom the defendant exerted control
Passenger threw an egg at a pedestrian, causing her to lose sight in her eye. Her eye had to
be removed and an artificial eye inserted. The defendant – 17 years of age had just recently
acquired his car
Cross J found as a matter of fact that both the defendant and all of the passengers in his car
had “agreed and colluded in the purchase of eggs which they intended to utilize in the
