Tort Law

Introduction

Tort law seeks to provide a range of remedies in a wide variety of situations – e.g. personal injuries, nuisance, defamation, medical negligence etc. It is also a civil action and not a criminal action.

The sources of Tort law are found in two bodies of law:

  • Statute law
  • Common law

But, what does Tort law try to achieve?

  • It attempts to balance the interests of the plaintiff’s safety/right to bodiy integrity vs. the defendant;s freedom of action; in defamation P’s reputation v D’s freedom of expression; in nuisance P’s use and enjoyment of land v D’s freedom of action.

Basic Principles of Negligence

  • Concept of the duty of care:
    • Policy plays a strong role in the law of negligence (e.g. justice, reasonableness, fear of ‘floodgates’); courts sending messages to society; tackle the so called ‘compo culture’; false and exaggerated claims.

If P is to be successful in establishing negligence against D, the P must prove:

  • The D owed a duty of care to P
  • That D breached this duty
  • The D’s breach caused injury/damage/loss
  • That P suffered damage/injury/loss
  • P must prove D was at fault (negligent); role of expert evidence; is D a ‘mark’ for damages?; role of insurance etc. 

Early Impressions of Tort in Action

  • ***Allen v Trabolgan Holiday Centre Ltd [2010] IEHC
    • Case involved Occupiers’ Liability Act 1995 – Allen was a paying guest in a holiday centre, therefore Trabolgan owed ‘A’ a common duty of care’; to take such care as is reasonable.
    • Young woman on holiday. Walking back towards hotel on a path which was quite muddy. He slipped, fell and suffered a serious injury to her ankle.
  • ***Weir Rodgers v The SF Trust Ltd [2005] IESC 2
    • Woman fell off cliff at dusk– sent away with nothing (misunderstood the nature of the terrain)

Functions of Tort law

  • Not simply concerned with justice, also concerned with efficiency.
  1. Justice/compensation
  2. Deterrence
  3. Spread the cost of accidents among society – who should pay?

Distributive Justice = justice/fairness of overall distribution of cost of accidents – risk spreading; costs involved in running the Tort system are high.

What is the role of the Jury in Tort Actions?

  • Vast majority of claims in tort are handled by a judge sitting alone.
  • The Courts Act 1998 abolished the right to a jury in personal injury actions from 1 August 1988.
    • This is because jury’s were seen to be unpredictable. This was supposed to create consistency and predictability in the Court system – however this is not what has happened.

Contemporary Developments

  • PIAB – Personal Injuries Assessment Board – PIAB Act 2003
  • Established in 2004 – therefore a relatively new development.
  • Deals with – motor liability, public liability and employer liability claims.
  • Does not encompass medical negligence claims – they are dealt with through normal litigation.
    • Assesses value of claims
    • In cases where liability is not in dispute
    • i.e. Defendant accepts liability
      • The PIAB acts as a ‘triage’ or Filter
      • Aims to take certain cases out of the court system.
      • It encourages early dialogue and settlement
      • How does it work?
      • Book of Quantum
      • Various court procedures
    • ***O’Brien v PIAB [2008] IESC 71
      • Supreme court took the view that everyone has the right to access expert legal advice and nowhere in the PIAB Act does it give power to PIAB to bypass an individual’s legal representation. (O’Brien
      • If you decide to engage a solicitor, there is no legal entitlement for your solicitors fees to be paid.
      • Some say this is an attack on legal expertise and right to access legal advice.
      • PIAB Amendment Act 2007 – if PIAB assesses your case and you go to court and get less than what PIAB gave you, you will not be able to recover the previous offer.
      • You will only get legal expenses paid if you get a higher offer from the court.

Topic 1 – Trespass to the Person

Trespass = Tort of intention

The core characteristic of trespass is that the conduct complained of involves a direct injury (as opposed to indirect/consequential injury). Trespass is a distinct ’cause of action’.

In the High Court, the plaintiff can opt to have a trespass action determined by a judge and jury.

The Core elements of trespass are:

  1. D’s conduct must be voluntary
  2. P must prove a direct interference
  3. Trespass is actionable per se (without proof of actual damage). 
  4. Basis of liability? The act and not the injury must be intentional; an intention to injure is not essential.

— Modern Position Regarding Unintended Trespass

  • ***Letang v Cooper [1965] 1 QB 232
    • Lord Denning took the view that battery could only be committed intentionally.

Trespass is a tort of intention only. This prevents actions for negligent trespass. This point is not settle in Ireland. 

  • ***Devlin v Roche [2002] 2 IR 367
    • Stated that according to McMahon & Binchy the law is not settled.
    • however, in this case they did rule that intentional assault/battery are distinct from negligence.

— Burden of Proof

Once P establishes a direct injury, the onus shifts to D. He must show (as the law is not settled) that he neither acted intentionaly nor negligently.

— Trespass or Negligence?

There may be benefits to pursuing an action in trespass (as opposed to negligence):

  • Limitation periods are longer in trespass actions.
  • Burden of proof is on D
  • Trespass is actionable per se – negligence must prove reasonably foreseeable.

— Examples of Trespass

  • **Stubbings v Webb [1993] AC 498
    • Sexual abuse and rape perpetrated by adoptive father and stepbrother fell within trespass.
  • **Connellan v St Josephs [2006] IEHC 119
    • €300,000 awarded for sexual abuse/racial abuse while resident in St. Josephs.

i) Assault

D intentionally (or negligently?) and without lawful justification puts P in fear of immediate battery.

Battery = direct application of physical contact without consent. Note: There can be assault without battery and battery without assault.

Some requirements are:

  • P must have a reasonable apprehension of an immediate battery.
  • Threat must be immediate
    • **Thomas v National Union of Mine Workers [1985] 2 All ER 1
  • The TEST whether a reasonable person would apprehend an immediate battery. The test is clearly objective (subject however to the Egg Shell Skull rule)
  • Even if D moves threateningly towards P and is intercepted, or victim escapes, an assault is possible; **Stephens v Myers (1830) 4 C&P 349

Can words amount to an assault?

  • General rule: NO – per ***Meads and Belts Case (1823)
  • However, in **R v Wilson [1955] 1 WLR 493 – it was seen that the words “get out the knives” would amount to an assault.
    • **Dullaghan v Hillen [1957] Ir Jur Rep 10 – “sticks and stones…” adage. But, is this going too far?
      • Answer: it depends on the context in which the words are spoken.
  • Words can also turn a threatening act into an innocent one:
    • **Tuberville v Savage (1669) – Here, D laid his hand on sword (assault) but stated that he would not do anything for it was assize time.

What about a series of silent telephone calls?

General Rule: Yes, they can constitute an assault:

  • ***R v Ireland [1998] AC 147
    • “The victim is assailed by uncertainty about his intentions. Fear may dominate her emotions and it may be fear that the caller’s arrival at her door may be imminent. She may fear the possibility of immediate personal violence.”

ii) Battery

Battery is the intentional (or negligent?) unlawful, direct application of force upon another without his consent.

Note: Consent is a defense.

But, neither force nor physical injury is a requirement of battery (McMahon & Binchy) – **White v Store Security – ‘technical’ battery when shopper was ‘grabbed’ by security.

A hostile intent is not even required. However, excessive zeal may be sufficient to amount to battery:

But, contact is not actionable if it is in the ordinary conduct of ordinary life: *Collins v Wilcock [1984] 1 WLR 1172

Two good definitions/tests are:

  • *Re: F [1990] 2 AC 1
    • Per Lord Goff: any deliberate touching of another’s person beyond bounds of normal conduct is, in the absence of lawful excuse, a battery.
    • He did not see ‘hostile intent’ as being requisite.
  • **Wainwright v Home Office [2003] 4 All ER 969 
    • Per Lord Hoffman – did require some sort of ‘hostile intent’. – but this can be understood to mean anything outwith the bounds of normal conduct.

iii) False Imprisonment

The definition was set down in:

  • *****Dullaghan v Hillen [1957] Ir Jur Rep 10
    • Per Judge Fawsitt: “The unlawful and total restraint of the personal liberty of another whether by constraining him or compelling him to go to a particular place or confining him in a prison or police station or private place or by detaining him against his will in a public place. 

Core feature: ‘false’ = ‘wrongful’ detention of personal liberty.

According to *Bird v Jones (1845) – confinement must be within fixed bounds.

–Means of Escape?

  • P is not require to risk injury – ***Sayers v Harlow UDC [1958] 1 WLR 623
  • False imprisonment only arises when the means of escape are unreasonable. 

A person who continues a wrongful detention is guilty of that crime even where they did not imprison originally.

–Mental imprisonment?

Imprisonment may be physical or psychological – ***Phillips v GN Ry Co Ltd (1903)

–Consciousness of confinement?

The tort os false imprisonment is actionable per se. Although early authority (Herring v Boyle (1834)) provided; “no knowledge = no imprisonment”, recent authority in ***Dullaghan v Hillen  provides that consciousness is not a requirement.

***Murray v Minister for Defence [1988] 1 WLR 692  -provides that although consciousness is not a requirement, if P is unaware of their confinement, the award  of damages will only be nominal.

–Failure to Release

General Rule: It is not false imprisonment to fail to release someone who has become imprisoned on your property.

***Burns v Johnston [1917] 2 IR 137

–Requisite Mental Element?

False imprisonment is intentional as to the act of imprisonment and as to the effect of that imprisonment. It is unclear whether liability will arise where one is merely negligent as to the effect of imprisonment or where one is reckless as to that consequence.

  • **Weldon v Homes Office [1990] 3 WLR 465
    • Left the question open as to whether liability would arise where D was merely negligent as to the effect of the imprisonment.

iv) Relevance of the Trespass Torts in the Medical Context

Without consent, a doctor who administers treatment is liable in batter. Note however that in certain circumstances the doctor may be able to rely on the defense of necessity/justification.

A doctor may also be liable where their actions went beyond the scope of consent.

— Whether negligently failing to advise a patient of the risks inherent in a medical procedure can give rise to liability in trespass?

This issue was addressed in:

  • ****Walsh v Family Planning Service [1992] 1 IR 496
    • P opted for a vasectomy at the defendant’s clinic. Following the operation, P suffered from an extremely painful condition known as orchialgia (very painful and very rare). However, it had been established as following from operations for vasectomy in a very limited number of cases. P claimed damages for negligence and for trespass arising out of the vasectomy. Current focus: P’s claim in trespass. There are two aspects to this:
      1. Alleged that the doctor’s failure to adequately warn him of the risks inherent in the procedure negated his consent to the vasectomy.
      2. That he had consented only to Dr Orr performing the operation and not Dr Kelly and that Dr Kelly’s intervention amounted to a trespass.
    • The SCt limited the scope of a doctor’s liability in trespass. Held that where P alleges a lack of consent due to the doctor’s failure to adequately warn of the risks inherent in a particular medical procedure, then the appropriate cause of action is negligence and not trespass.
  • This same was was taken by the Canadian SCt in *Reibl v Hughes (1980) 114 DLR (3rd) 1.
    • Note however that McCarthy J in dissenting took the view that Dr Kelly’s participation at least warranted a technical trespass.
    • P went on to allege his constitutional rights had been infringed – however the SCt warned against this saying that assault actions should not be dressed up in a constitutional guise.

v) Main Defences to Trespass Torts

1) Consent – Main Defense to Trespass Actions

  • ***R v Brown [1994] 1 AC 212
    • HofL held that consensual S&M could constitute criminal assault. Consent was not a defense in criminal proceedings; but it might constitute a defense in a civil action for battery; position is unclear.
  • ***Laskey, Jaggard and Brown v UK [1997] 24 EHRR 39
    • ECHR ruled that the decision in Brown did not constitute a violation of Art. 8 of the ECHR (respect to private life).

–Medical Context

Consent operates as a defense only if it is given voluntarily and the party giving it has legal capacity  to do so.

  • *****In re A Ward of Court (withholding medical treatment) (No.2) [1996] 2 IR 79
    • Medical treatment may not be given to an adult person of full capacity without his or her consent. There are rare exceptions; contagious diseases or where the patient is unable to communicate.
      • This arises out of civil, criminal and constitutional law.
        • The decisions do not need to be based on medical rationale; e.g. religious beliefs.
    • If the patient is a minor, then consent may be given by parent or guardian. If the patient is incapacitated by reason other than age, then the issue of capacity to consent arises. In this instance, where the patient is a ward of court, the court makes the decision.
    • “To continue a treatment is as much a decision as not to do so”
      • TEST: ‘whether it is in the best interests of the ward within constitutional parameters, taking into account factors including those enumerated in this judgment, for the court to consent to the medical treatment.’
  • **Fitzpatrick v K [2008] IEHC 104
    • Confirms that if there is a doubt regarding the validity of consent it is appropriate to seek the view of the court.

–Capacity of minors (under 18 years) to consent?

This depends on whether the minor can understand what is involved in the procedure in question. Where the minor is incapable, the usual practice is to obtain consent from the parents or guardian.

The Non-Fatal Offences Against the Person Act 1997, s. 23 deals with this to some degree:

  • s. 23(1) – 16 years old is age of consent.
  • s. 23(2) – this includes diagnosis and any procedure ancillary (including use of anesthetic).

But this leaves a lot of questions unanswered:

  • Minors under 16?
  • What about a decision to refuse treatment? Is this to be treated differently?
  • What is an ‘effective consent’ for the purpose of s. 23? – is it in some way overridden by parental/guardian decisions?

–Minors under 16

  • *****Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112
    • ‘Gillick competence’
    • HofL held that competent minors who understand the nature of the treatment may consent.
    • Lord Scarman says that parental power diminishes as the child becomes older.
  • ****North Western Health Board v W(H) and W(C) [2001] 3 IR 635
    • Concerned the PKU test.
      • Majority of SCt held that parents were entitled to refuse to consent to the administration of the PKU test on their child. Majority of the SCt held that it had not been established that this was an exceptional case requiring the State to intervene to vindicate the constitutional rights of the child;
      • In Ireland, it is not simply a ‘best interests’ test. There is a large constitutional element.

(2) Self-Defense

  • ***Dullaghan v Hillen [1957] Ir Jur Rep 10
    • Judge Fawcitt: “When one is wrongfully assaulted it is lawful to repel force by force, provided that no unnecessary violence is used.” What is reasonable is “a question of fact…”.  The force used must be commensurate with that which provoked it.

(3) Defence of Third-Persons

The outer limits appear to be the same as self-defense.

(4) Necessity/Justification

The scope of this defense is uncertain. It is likely however that courts will be unwilling to identify it other than in the medical context.

  • ***Rigby v Chief Constable [1985] 1 WLR 1242
    • Police threw a can of tear gas into P’s shop in order to flush out a dangerous psychopath. This caused a fire. Court saw that this was necessary, but the intervention made things worse and the police were negligent – it was foreseeable that this sort of thing might happen.
    • Cannot rely on the defense of necessity where negligence is present.
      • Not liable in trespass – relied on necessity
      • Liable in negligence – did not have proper equipment.

(5) Reasonable Chastisement/Parental Authority

It appears that parents and others in loco parentis may exercise reasonable chastisement and discipline over children, as long as it is not excessive.

  • Decision from ECtHR – English Criminal law – **A v UK – reasonable chastisement was a defence to a charge of assault under English law. ECtHR took the view that this did not provide adequate protection for the applicant child however.

Teachers may also be liable for trespass to the person. Also potential criminal liability; s.24 of the Non-Fatal Offences Against the Person Act 1997 (abolished the common law immunity for teachers).

(6) Lawful Authority

  • A garda may arrest a person under warrant without fear of being liable in trespass.

(7) Defense of Property

When a person forcibly enters unto the land of another, that other may use reasonable force to eject the trespasser.

However, if the entry is without force or violence, the occupier must first request the trespasser to leave. If s/he refuses, the occupier may then employ reasonable force to eject him/her.

What is reasonable will depend on the circumstances and is a question of fact.

  • MacKnight v Xtravision 
    • The plaintiff was preventing access to the defendant’s premises; this entitled them to ‘lay hands lightly on the plaintiff to move him aside’ and on failure of that, they should have ‘desisted’.
    • Using a light middleweight boxer to remove the plaintiff, leading to significant bruising and leaving him unable to work for a number of weeks was excessive.
  • Criminal Law (Defence and the Dwelling) Act 2011
    • The act addresses the use of justifiable force in the defence of the person and the person’s home in the context of a trespasser entering the home with the criminal intent. It aims to clarify and to update the criminal and civil law on this issue.

Security staff/bouncers and use of force when dealing with disruptive patrons

  • ***Danagher v Glantine Inns [2010] IEHC 214
    • The onus is on the employer to employ suitably trained staff in order to ensure such premises would be managed and supervised in a proper fashion.

Contributory Negligence

  • P invites an attack (encourages one), depending on the factual matrix, this may amount to contributory negligence on the part of P.
  • ***Gammell v Doyle [2009] IEHC 416 – allows for contributory negligence.

Topic 2 – Law of Negligence: Part I

–Definition of Negligence

  • *Blyth v Birmingham Waterworks (1856) 11 EXCH 781
    • Negligence is the omission to do something which a reasonable man, guided upon those considerations which do ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.

–Core Elements

  1. duty of care.
  2. Breach of a duty of care.
  3. Actual loss or damage [legally] to the plaintiff.
  4. A sufficiently close causal connection between the conduct and resulting injury to the plaintiff; P must establish causation. 

i) The Duty of Care

As articulated by McMahon & Binchy, the “duty of care” is a “control mechanism whereby the court may limit the range of liability within what they consider to be reasonable bounds.”

–Developments in England and Wales

  • *****Donoghue v Stevenson [1932] AC 562
    • Per Lord Atkin: “You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.”
    • Two Elements:
      1. Reasonable foresight.
      2. ‘Neighbor’ principle. (PROXIMITY)
    • Issue in Donoghue: “The snail in the Ginger Beer Bottle” –
      • Manufacturer made bottle of ginger beer, who sold into onto retailer, who sold it to a café. Woman’s friend bought the bottle for her, the woman suffered loss, damage etc. after finding rancid material from a decomposing snail inside.
      • By a bare majority, the HofL ruled in favor of the plaintiff.
    • Lord Atkin’s foreseeability and proximity tests were clearly intended to be of general application and to assist the courts in determining novel situations.

Initially the courts were reluctant to embrace Lord Atkin’s formulation however:

  • ***Dorset Yacht Co. v Home Office [1970] AC 1004
    • Boys escaped from a youth prison. HofL employed Atkin’s test to support the conclusion that prison officers owed a duty of care to owners of nearby properties when the yachts they stole were crashed.

The next significant development came in:

  • ***Anns v Merton London Borough Council [1978] AC 728
    • Concerned potential liability of a local authority for an omission to act.
    • Lord Wilberforce applied what came to be know as “The Two Stage Test” to justify imposing a duty of care on the Council (defendant).
    • The test is:
      1. Whether there is sufficient proximity or neighborhood between D and P.
      2. Are there consideration which ought to negative or reduce or limit the scope of the duty or the class of person to whom it is owed.
  • **Junior Books ltd v Veitchi Co ltd. [1983] 1 AC 520
    • HofL held that such duty of care could exist. The pursuers entered into a contract with Ogilive (builders) (main contractor) for the construction of a factory. – Veitchi was employed as a sub contractor to lay the floor in the factory. This was seriously defective. There was no averment of harm to people or property.
    • Since there was no danger of physical harm to persons or property, this case fell outside the Donoghue v Stevenson neighborhood principle. This case was instead related to pure economic loss.
    • Nevertheless it was held that where there was sufficient proximity between the parties, an award could be made. Several points should be noted:
      1. Defender and pursuer were connected by a series of contracts which are subsisting.
      2. Veitchi had been nominated by the pursuer’s architect. (Veitchi must have known the identity of the pursuer)
      3. Knew Junior Books were relying upon their expertise.
      4. Knew that careless performance would have caused pure economic loss to the pursuer (Junior Books)
    • These circumstances/criteria must be filled in any case. However, being a nominated subcontractor is not necessary but nevertheless helpful.
    • In this light, the duty of care held to exist in Junior Books is kept within the narrowest limits.
      • Only applies where parties are connected by contracts which are existing at the time of the careless acts.
  • McMahon & Binchy felt however that this case had “too facile an application of the two-stage test.”

This next case emphasized the importance of proximity in Lord Atkin’s test.

  • **Peabody Donation Fund v Sir Lindsay Parkinson & Co. [1985] AC 210
    • Lord Keith, apart from emphasizing the importance of finding proximity:
    • ALSO, stated that it was important to take into account whether it is “just and reasonable” to impose a duty of care in the circumstances.
      • This is a variation of the second limb of Anns two-stage test.

Concern gradually emerged that a”too literal application of the Anns test may be productive of a failure to have regard to, and analyze and weigh, all the relevant considerations in considering whether it is appropriate that a duty of care should be imposed.” (*Rowling v Takaro Properties [1988] AC 473 and *Yeun Kun-yeu v AG of Hong Kong [1987] 2 All ER 705.

This led to **ANNS being overruled.

  • ******Murphy v Brentwood [1991] AC 398
    • The HofL relied heavily on the Australian case: ***Sutherland Shire Council v Heyman (1985) 60 ALR 1.
    • Per Brennan J:– “it is preferable in my view that the law should develop novel categories of negligence incrementally and by analogy with established categories, rather than by a massive extension of a prima facie duty of care restrained only by indefinable considerations which out to negative, or reduce or limit the scope of duty”
      • This is a more cautious approach in comparison to Anns.
      • Known as the “Incremental Approach”

–The “Incremental” Approach

The present approach (incremental) can be stated as a three stage test.

  1. Foreseeability of damage
  2. Proximity
  3. Fair, just and reasonable

The second element of the *Anns test (any mitigating considerations) is now considered to be the third limb of the incremental appraoch (fair, just and reasonable).

This was brought to the fore in:

  • *****Caparo Industries v Dickman [1990] 2 AC 605

There have been criticisms of this test though – as in effect it does nothing more than add semantics.

Lord Oliver commented: Although the test has been separated into three requirements, in most cases they are in fact the same thing.

Binchy and Byrne observed: The limits have already been placed.

However:

Clerk and Lindsell on Torts cite Sir Robin Cook on **South Pacific Manufacturing Co Ltd v NZ Security [1992] 2 NZLR 282 –> Who describes the test one that is merely “balancing” the competing interests of all parties involved. He also says that whatever formula is used, the outcome in a grey area case has to be determined by judicial judgment. Formula can help organize thinking but cannot provide the answers.

Topic 3 – Law of Negligence: Part 2

i) The Duty of Care – Irish Jurisprudence

Donoghue was affirmed and approved in *Kirby v Burke and Holloway [1944] IR 207

However, the Irish courts have (traditionally) been reluctant to depart from ***Anns.

In the SCt decision:

  • **Ward v McMaster [1988] IR 337
    • McCarthy J affirmed ***Anns and stated that in his analysis he “[did] not in any fashion, seek to exclude the latter consideration” of ***Anns.
    • McCarthy J’s test, derived from ***Anns is almost identical, although he felt that the second limb (policy considerations etc.) must be very strong to deny justice to the plaintiff.

In a subsequent decision, the test was revised, albeit not changing its application:

  • **McShane Wholesale v Johnston Haulage [1997] 1 ILRM 86
    • The test:
      • a) proximity
      • b) foreseeability giving rise to a prima facie duty of care
      • c) public policy considerations

In *W v Ireland (No.2) [1997] 2 IR 141, Costello P said that Irish law had departed from its English counterpart (in that Ireland had not retreated from ***Anns). However, he felt that this was not in fact a major one.

Contemporary developments:

  • ******Glencar Exploration plc v Mayo Co. Council [2001] IESC 64
    • Keane CJ (then Chief Justice), with Fennelly J concurring. Denham, Murray and McGuinness JJ agreed with the Chief Justice.
    • Case concerned the specific situation of a claim for damages for inter alia negligence and breach of duty against a public authority in the performance of one of its functions. Keane CJ took the opportunity in this case to revisit the basic principles governing the duty of care.
    • Keane CJ considered the ***Ward case in some detail: He expounded the view that accepting the case as an endorsement of ***Anns and the two stage test by Lord Wilberforce is not a good idea and it is by no means clear that this case is an unqualified endorsement, especially in light of the rife dissent of it in other common law jurisdictions.
    • Keane CJ went on to look at ***Donoghue v Stevenson in considering whether the ***Ward principles or the “more cautious approach” favored in ***Caparo and ***Sutherland Shire Council should be adopted in Ireland.
      • He concluded: no injustice will be done by following the cautious approach (incremental approach). He relied specifically on Caparo and Sutherland Shire Council to support his conclusion.
      • Note however that Keane CJ did state that the difference, in practice/application of the ***Anns ***Caparo tests “may ultimately be of no great significance.”

–Post Glencar?

Binchy and Byrne identify the importance of Glencar as lying in “its reformation of the conceptual basis of the duty of care in negligence.” The most convincing argument of their critique of Glencar is that the third limb is redundant.

In the case of ***Breslin v Corcoran and MIBI [2003] IEHC 23, Fennelly J praised Glencare for not only affirming the position in Ireland but also distinguishing again between legal duties and moral duties. Fennelly J went on to say however that “it is natural to have regard to have considerations to fairness, justness and reasonableness. ” He also states that almost anything can be foreseeable and in this respect, the addition of the third limb puts a brake on the case law.

— The Impact of Glencar

The now three-stage approach makes it harder for plaintiffs to succeed, especially in establishing a duty of care in contested areas (pure economic loss, liability of public authorities etc.).

Peart J in ‘The Duty of Care – an update following Glencar‘ commented however that the third limb of the test serves to create uncertainty whereby discretion by judges, in light of the relevant public policy considerations, may be taken too far. Also, since judges vary in both shape and size as well as taste, uncertainty is inevitable.

  • Perhaps Ward should be reconsidered where McCarthy J stated that the policy considerations must be excruciating to deny justice to the plaintiff.
  • Once again this is a balancing act.
  • ***Beatty v Rent Tribunal [2005] IESC 66
    • Here, the SCt was asked to consider negligence by the Rent Tribunal.
      • Geoghegan J (Denham and Hardiman concurring) felt that as a public body, the Rent Tribunal was immune.
        • This is of course open to criticism. It may even offend Art. 6(1) of the ECHR (right of access to the courts).
      • Fennelly and McCracken JJ, used the three stage test and concluded that it would not be just and reasonable to impose liability on a public body acting bona fide and within jurisdiction).
    • The SCt also noted that there were other remedies available to tenants and landlords.
      • The SCt was also aware of teh implications this decision would have on a wide ranging institution of public bodies. In the rare event they could be shown to be acting mala fides, then the tort of misfeasance in public office is available.

Topic 4 – Law of Negligence: Part 3

[1] Negligence actions against the police when they are engaged in discharging their general duty of combating and investigating crime. Do the police owe a duty of care in respect of actions taken in the course of their duty to investigate and prosecute crime?

i) UK Authorities

  • ***Hill v Chief Constable of West Yorkshire [1989] C 53 (HL)
  • This is a good case for determining “proximity”  -this case failed on this hurdle.
    • Do police owe a duty of care to the last victim of a murderer whom, it was alleged, they had negligently failed to catch?
    • Facts: Mother of student was the last known victim of the “Yorkshire Ripper” – she sued the police on behalf of her deceased’s daughter’s estate alleging negligence in the manner in which the police had carried out their investigations prior to her daughter’s murder.
    • Lord Keith: no duty of care arose in the circumstances
      • General Approach and Analysis:
        • Forseeability:- this is not a sufficient test of liability in negligence – proximity is needed.
        • Proximity – was there a sufficient degree of relationship between the victim and police? – held she was simply a member of the public; nothing to single her out. Concluded that there was no sufficient proximity to succeed.
        • Lord Keith’s judgment also addresses the public policy considerations – militating against the imposition of a duty of care in such circumstances.
          • Conclusion: Police enjoy a public policy immunity in respect of the investigation of crime.
          • Defensive policing: policy and discretion in conducting an investigation – courts very reluctant to review these decisions; resource implications of defending civil actions.
  • ***Osman v Ferguson [1993] 4 All ER 344
    • Before the victim had been killed, the police had received a considerable amount of information linking the subsequent murderer to the victim. The police knew there was a pattern of threats/harassment.
    • Deceased family sued the police in negligence.
      • They lost on grounds of public policy (failed on the third hurdle).
      • Court accepted that there was a very close degree of proximity. Regardless, there were strong public policy considerations.

The family made an application to the ECHR in Strasbourg – made claims that in the UK there is an immunity – what about our rights to access to the courts.

  • ***Osman v UK ECHR (1998) 29 EHRR 245
    • Argued that the Court of Appeal’s dismissal was a breach of their Art. 6(1) (access to the courts) rights.
    • Held: There had been a breach of Art. 6(1) rights. They considered Hill to be providing a watertight defense for the police (immunity even) when the case should have been weighed properly.

Following Osman v UK there was serious concern about the impact of the ECtHR ruling on the English and Irish law of negligence.

However, in a following case, the ECtHR reeled in Art. 6(1) as a means of challenging liability restrictions in tort law.

  • ***Z v UK (2001) 34 EHRR 97
    • Found that the inability to sue flowed not from an immunity but from substantive rights of action in domestic law.

The impact of HR law remained uncertain post ***Z, however it was clarified in both:

  • ***Brooks v Commissioner of Police for the Metropolis [2005] UKHL 24
    • “…since Hill there have been developments in Hill, based on the reasoning and not the outcome… since the decision in Z, it would be best for the principle in Hill to be rephrased, and talk about the absence of a duty of care, rather than talking about blanket immunities.
    • Nowadays a more skeptical approach to the carrying out of all public functions is necessary.
    • Lord Steyn felt that if Hill came up again today, it would be decided in much the same way.
    • He noted also that “to convert that ethical value (police officers treating victims properly) into general legal duties of care… would be going too far.”
  • ***Smith v Chief Constable of Sussex Police [2008] UKHL 50
    • Here, the principle in Hill was affirmed but only by a majority – this shows perhaps a softening of that principle.

ii) Irish Authorities

Do An Garda Siochana owe a duty of care in respect of bona fide actions and decisions carried out in the course of a criminal investigation and/or prosecution? The following two cases (***Lockwood and ***M are under appeal to the SCt).

  • ***Lockwood v Ireland and the AG and Commissioner of An Garda Siochana [2010] IEHC 403
    • Held: No duty of care arises.
    • Much the same reasoning was provided here as in Hill. Kearns P felt that the system would become far too clogged – it would be unacceptable that those responsible for investigating a crime should be taking legal advice at every turn.
  • ***M v Commissioner of An Garda Siochana [2011] IEHC 14
    • Per Hedigan J Held: No duty – the police would constantly be in a defensive frame of mind, waste of resources etc. (inhibiting effect)
      • Even though he says this, he says this is consistent with the case.
      • He said there is no immunity, but on the balance, the public interest outweighs any duty of care to private individuals.
      • He goes on to say that the police are not “immune” from regular negligence – we are here talking about the investigation and prosecution of crime. 
    • ***G v JK and Minister for Justice Equality and Law Reform, Ireland and the AG [2011] IEHC 65
      • Hedigan J notes the test.
      • However, he comes to the same conclusion as in ***M.

[2] Is there a duty of care on publicans to protect (1) intoxicated patrons and (2) their potential victims from injury? And, if so, what is the nature and extent of any such duty?

  • ***Flanagan v Houlihan and Kelly and Kelly [2011] IEHC 105
    • Novel case
    • Fundamentally diverse approaches adopted across the common law world. UK and Australia vs. Canada and US. A danger with comparative analysis must be seen too.
    • Where is the line to be drawn between individual and collective responsibility for injury and loss?
      • “Role of law of torts as a mechanism for identifying values, promoting safety and setting minimum standards of acceptable behavior in society.”
      • “Role of law in bringing about social change as well as delivering compensation”
    • Held: Publicans did not owe a duty of care to the intoxicated driver in this case.
      • In this sense the court preferred the approach adopted in UK and Australia.
  • Gleeson J in *Cole [2004]
    • Australian High Court (Apex court)
    • If duty was imposed on the publican it would involve:
      • An unacceptable burden on ordinary social and commercial behavior and;
      • An unacceptable shifting of responsibility to publicans
      • He was prepared to accept that a duty of care could occur in circumstances – where a customer was so intoxicated that he could not look after his own safety and plainly incapable of taking care of himself, liability might arise.

úAlso, if duty were to be imposed on publicans, they might be obliged to resort to acts that would amount to tort and/or would be a criminal offense. (battery, false imprisonment etc)

  • This is a task for the legislature, not the courts.
  • Conclusion
  • Generally no duty is owed
  • Except:
    • An assumption of responsibility; or
    • Exceptional circumstances

Bottom line?

  • Victory for principle of personal responsibility or individual choice.
  • Whether drunk or sober you are responsible for your actions.
  • Role of contributory negligence?

Topic 5 – Law of Negligence: Part 4

i) Standard of Care: General Principles

The law requires D, speaking objectively, to exercise reasonable care in all the circumstances. The law does not have regard to hindsight.

–Significance of Professional and Industry Standards

  • ***Collins v Mid-Western Health Board [1999] IESC 73
    • A GP cannot be expected to be as good as a consultant or specialist, however, s/he should be aware when it is necessary to take appropriate specialist advice.

The factors to be weighed when assessing whether conduct is negligent are:

  • Probability of the accident
  • Gravity of the threatened injury
  • Social utility of D’s conduct
  • Cost of eliminating the risk

— Selected Case Law

  • *****Keogh v ESB and Eircom Ltd. [2005] IEHC 286
    • Per Peart J.:
    • Facts: Medium voltage cable detached from transformer on Christmas Eve. Metal objects in P’s home became live with 6kV.
    • Issues: Applying the Glencar test.
    • Held:
      • The ESB owes a duty of care not only to customers but also the public in general.
      • No difficulty in establishing a relationship of proximity between the ESB and P. This proximate relationship would extend also to the general public.
        • “the greater the danger, the greater level of care that needs to be taken.”
      • On the balance of probabilities, the question is whether ESB took what in all circumstances was reasonable care for P’s safety?
        • The conditions were not the worst ever seen.
        • Therefore ESB have a duty of care to have electricity cables maintained. Also, in relation to the delay in responding to the call-out, there is a duty to make such a call.
      • On foreseeability, it was held that the accident was “completely foreseeable”
      • Peart J found no policy considerations which would outweigh the obligations of the ESB to avoid causing serious injury to members of the public.
      • Is it fair, just and reasonable? Yes.
  • ***Davis v Jordan [2008] IEHC 200
    • Road traffic accident where pedestrian was hit by wing mirror of car.
    • The driving conditions were not great – after becoming dazzled, the driver did not stop but only slowed down.
    • Held: D was at fault for failing to stop. P was also at fault for being invisible to other road users (no reflective clothing etc.) and walking on the wrong side of the road.
      • Contributory Negligence – assessed at 60% against P.
  • ***Flynn v Bus Atha Cliath [2012] IEHC 398
    • P (who was travelling on the upper deck of a bus) on rising from her seat to disembark was thrown on the ground when the bus driver braked sharply to avoid a child. P claimed that the bus driver could and should have avoided the accident by gently bringing the bus to a halt.
    • Held: Bus driver reacted correctly to a potential hazard to life and dismissed P’s case.
      • The courts cannot apply a counsel of perfection. The duty of care expected of a driver is of a high standard but it is still to be measured by the reactions and expectations of reasonable men and women.

–Standard of care; liability to a rescuer; liability for wrongful act of a third party

  • ***O’Neill v Dunnes Stores [2010] IESC 53
    • Facts: P shopping in shopping center, Dunnes Stores was anchor. Dunnes Security Guard (only guard on duty) noticed two youths in the off license, stealing liquor. Approached them and asked for ID. They were tall, built and apparently intoxicated. One ran off (A) and the guard chased him, caught him and tried to restrain him. A was trying to strike the guard with a bottle. Guard asked a passing cleaner to get help. Only the P responded. He went to the aid and helped restrain youth A. Guard rang the police. Youth B turned up… there was a struggle. B rambles off after Garda intervention. B then comes back with a motorbike chain and decides to strike P across the face. It destroyed his face and was thrown against a wall and therefore suffered injury to his back.
      • Majority decision by SCt.
      • Dunnes stores had been negligent in the circumstances in that it had failed to ‘adhere to an appropriate standard of care’ as regards the security arrangements in place at the time of the incident. Majority also found that:
        • There is no logical or conceptual difficulty in permitting recovery by a rescuer in circumstances where Dunnes is or would be liable for the foreseeable wrongful acts of a third aprty.
        • O’Donnell seems to be impressed by the fact that there was ‘a particularly close connection between the negligence established against D and the injury caused to P.’
          •  “it would indeed be regrettable if the message delivered by the law of tort to a member of the public faced with a  cry for help. Is that if they intervene they do so at their own risk and that in all the circumstances it would be wiser to pass by on the other side. Lord Atkin observed that the example of the Good Samaritan in the parable may not answer all the questions of the law of negligence, but neither the law nor morality has ever sought to encourage imitation of the Levite.”
            • Is there a case here for negotiorum gestio?

Topic 6 – Law of Negligence: Part 5

The burden of proof usually rests on P to prove that D failed to uphold the requisite standard of care.

The standard of proof in civil actions, such as tort actions, is on the balance of probabilities (Criminal law = beyond reasonably doubt).

i) Doctrine of ‘res ipsa loquitur’ 

Definition: “The facts speak for themselves”

  • The burden of proving negligence rests throughout upon the pursuer, BUT where res ipsa loquitur is accepted, this means that the court is prepared to draw an inference of negligence without requiring the pursuer to bring evidence about the exact way in which the accident occurred. If the defender then adduces no evidence, there is nothing to rebut the inference of negligence and the pursuer has proved his or her case. However, if the defender does adduce evidence, that evidence must be evaluated by the court to see if it is still reasonable to draw the inference of negligence from the mere fact of the accident. (See NG Chun Pui v Lee Chuen Tat [1988] RTR 298.)

How does this doctrine kick in?

  • **Byrne v Boadle (1863) 2 H & C 722
    • It is a form of circumstantial evidence
  • **Scott v London & St Katherine  (1865) 2 H & C 596

    • Defendant must have some sort of control/their position gives rise to them being required to explain.

–Modern Developments of the Doctrine of ‘res ipsa loquitur’

  • ***Hanrahan v Merck, Sharp and Dohme [1988] ILRM 629
    • Where damage has been caused to the P in circumstances in which such damage would not usually be caused without negligence on the part of the defendant, the doctrine may be invoked.
    • The rationale behind the shifting of the onus of proof to the defendant in such cases would appear to lie in the fact that it would be palpably unfair to require a plaintiff to prove something which is beyond his reach.
  • ***Rothwell v MIBI [2003] IESC 16
    • Hardiman J saw ***Hanrahan as an authoritative statement of the law.
    • He continues to say that not only does the onus shift when the knowledge is exclusive to the defendant, but also where it is ‘especially within the range’ of the defendant’s capacity to prove.
  • ****Lindsay v Mid-Western Health Board [1993] 2 IR 147
    • Uses medical (anesthetic) example to show where the doctrine may be invoked. To not do this would be in defiance of reason and justice.
    • O’Flaherty here however considered the use of the maxim in too broad a spectrum. He warned against it imposing too onerous a job on the defendants as in some cases it may create an unfair situation. The doctrine should be used carefully.

–Recent Review of the Relevant Case Law

  • ***Connaughton v Minister for Justice [2012] IEHC 203

Topic 7 – Law of Negligence: Part VI

Where P is required to establish damage, P must be able to establish a causal connection between D’s breach of duty and the personal injury, loss or damage suffered by P. There are two aspects to causation, factual cause and legal cause

  • “Just because the defendant caused in a factual sense the plaintiff’s injury does not necessarily mean that he will be liable in law to the plaintiff. Before the courts will hold the defendant liable in law they must also be satisfied, on policy grounds that the defendant legally caused the damage to the plaintiff.” – McMahon and Binchy at para 2.03

The burden of proof is usually on the Plaintiff. “He who asserts must prove”

[1] Factual Cause

The factual cause is the physical or scientific link between D’s act or omission and the damage suffered by P (cause and effect).

Traditionally, the test was “but for”.  A classic example of this in practice is:

  • **Barnett v Chelsea and Kensington Hospital [1969] 1 QB 428
    • Man drank tea, became violently ill as the tea was poisoned. The doctor told the man to see his own doctor and did not treat him – man died. However, he would have died regardless. “but for” test satisfied.
  • ***Kenny v O’Rourke [1972] IR 339
    • Defective ladder. P leaned forward too much and that perhaps was the cause of the accident.

The ‘but for’ test tends to work well where an accident or event has one cause. It is problematic however where multiple causes are involved.

Gradual judicial reform of causation rules with a view to assisting P.

The test is problematic where multiple causes are involved. As a result, an alternative test was developed:

–Material Element and Substantial Factor

D’s conduct is a cause where it was a material and substantial factor in bringing it about. – formulate by Prosser & Keeton

  • ***Bonnington Casting Ltd. v Wardlaw [1956] AC 61
    • Causation requires P to prove that D’s negligence caused or materially contributed to the damage, where materiality is any contribution that is not minimal.
  • ***McGhee v National Coal Board [1972] 3 All ER 1008
    • Where P cannot prove the but for test, but where he can establish that D’s conduct is a cause where it was a material and substantial factor in bringing it about, an inference of causation has been established in P’s favor.
      • This case was confirmed by ***Wilsher v Essex Area Health Authority [1988] AC 1074
  • ***Fairchild v Glenhaven Funeral Services [2002] 3 All ER 305

    • HofL felt that the court could depart from the usual ‘but for’ test and be satisfied with a lesser degree of causal connection. Here, the man was exposed to asbestos by two employers -> this contributed to the requisite causation being decreased.
    • Policy considerations also aided this mans claim.
  • *****Quinn v Mid Western Health board [2005] IESC 19
    • A case concerning alleged medical negligence in the birth of a child. Causation was a key issue here.
    • On the face of it, it falls to be dealt with on the basis that P is required to discharge the burden. ‘But for’ the breach she would not have suffered damage (restatement of the basic principle).
    • Counsel for P called for a modified approach to proof of causation (easier test) could be relaxed in certain circumstances or that causation could be inferred in certain circumstances.
    • Relying on Fairchild and a Canadian SCt case of Snell v Farrell.
      • Kearns J ruled that Fairchild had to be confined to its own ‘unique’ facts.  – here, there was only one set of defendants (unlike Fairchild).
      • The ‘but for’ approach had to be applied because if you reverse the onus of proof, it would be exceptional. If this were to happen, it would be such a change in the law that they would want the Oireachtas to legislate on the matter OR a larger sitting of the SCt.  – Or a very unique/extreme case.
    • This leaves open the possibility of an easier route for exceptional cases.
    • Clear however that it is the ‘but for’ test that applies in Ireland.

It is now acknowledged however that the HofL too an exceptional course in Fairchild (**Gregg v Scott [2005] UKHL 2). They limited the application of Fairchild in the subsequent case of **Barker v Corus [2006] UKHL 20.

[2] Legal Cause

This involves asking whether or not the aw ought to hold D liable (legal policy).

–Novus Actus Interveniens

This is a new act of such a kind that breaks the chain of causation. D will not be held liable for consequences found to result from a novus actus interveniens.

  • ***Conole v Redbank Oyster [1976] IR 191
    • Boat was defective on delivery. Person using the boat for business (taking kids out) knew that it was defective but continued to use it anyway. – This was a bad idea.
    • Held: The person who took the boat out knowing it to be unsafe shall be held liable.
  • *******Breslin v Corcoran and MIBI [2003] 2 ILRM 189
    • Person left keys in ignition whilst running into shop. Thief stole the car and drove recklessly so as to seriously injure P. “Illegal act of a third party thief”
    • Was the causal connection between D’s ‘act of folly’ and the injuries suffered by P broken by the intervening act of the thief?
    • ***The test is not merely reasonable foreseeability but we must also ask whether it was probable.***
    • Such probability may exist – if it had been in a commercial sense (delivery truck etc.)
    • However, it was the negligent driving of the car which caused the damage. The car owner in this case could not be found liable.
    • Held: The chain of causation had been broken by the intervening act of the thief.

In this case we see an addition to the “reasonable foreseeability” test in the form of “probability”.

  • ***Hayes v Minister for Finance [2007] IESC 8
  • Note: Minister for Finance is the D only because statute provides so.
    • Man on motorbike ran through speed check, pursued by Gards, did not stop. Ran across highway and veered into another car. Himself and passenger were seriously injured.
    • State conceded that a duty of care existed. This case was therefore fought on the standard of care. For policy reasons, it was found that here the standard was not broken.
    • However, the Court saw that the standard of care varied depending on the type of road/terrain that the car chase occurs on or through.
    • Held: The cause of the accident was the manner in which the bike was being driven (policy reasons).

–Remoteness

The damage suffered by P must not be too remote. In other words, D may not necessarily be liable for all the consequences of his negligence. The concept of remoteness is concerned with fixing “a cut-off” point beyond which D will not be liable for damage suffered by P.

Original Approach

  • ***Re Polemis [1921] 3 KB 560
    • D who is at fault is liable for all of the direct consequences of his action

Current Approach – Reasonable foreseeability test

  • ***Overseas Tankship v Morts Dock & Engineering Co (The Wagon Mound No 1) [1961] AC 388
    • Reasonable foreseeability test is now applied.

What if P has some pre-existing vulnerability? – the so-called ‘egg shell skull’ rule

  • Once the particular type of injury sustained by P is reasonably foreseeable, it does not matter that it is, in fact, more serious than could reasonably have been foreseen by D. The rule has survived the decision in the ***Wagon Mound (No.1)

Law of Negligence: Case Study – Liability of Schools

  • ***Mulvey v McDonagh [2004] IEHC 48
    • Allegations of bullying. Alleged failure to monitor what was going on in the school yard.
    • What is the standard of care? Do we apply the ordinary test (reasonable care) or a professional standard?
    • Held: Degree of care to be taken is that of a “prudent parent exercising reasonable care.”

Irish courts have not gone down the Professional Standard Route (other jurisdictions have and Ireland may do so in the future)

  • ***Kenneth Murphy v Wexford VEC [2004] IESC 49
    • Serious injury to the eye. P was 16 years old. There was no supervision of any kind in the play area.
    • Held: in favor of Plaintiff. (strong dissenting voices however)
  • ***Maher v Board of Management of Presentation Junior School [2004] IEHC 337
    • Standard of care will vary depending on the age of pupils, places they congregate, number of pupils, propensity of the pupils to act dangerously
    • Is there a higher degree of standard in the classroom than in the play area?

Topic 8 – Contributory Negligence

Contributory negligence arises where the plaintiff is found to be in some way responsible for what has occurred.

  • ***Brian Forde v Iarnrod Eireann Unreported – SCt decision from 1997 – use this case to see the change in attitude from 1997 to the height of the compo culture and then the PIAB years (now). Is there evidence of an anti-plaintiff bias?
    • Man was on a train – air of jubilation and triumph on the train – coming from football game. Often in these times, the train was too long for the platform. P was on one of the carriages that was too far back. When the train pulled in he got off. Door closed and he ran after the train. Claimed he did not hear the Gardai whistle. He suffered very bad injuries to his leg.
    • High Court said that P was 75% to blame. SCt however said that 70% blame lies with Iarnrod Eireann and 30% lies with P.

This case shows how difficult these cases are to predict.

  • ***Shelley-Morris v Bus Atha Cliath (Dublin Bus) [2002] IESC 74
    • This is a very different decision to the Brian Forde case (a swing against plaintiffs). This is the woman who was on the double decker bus, had a child in her arms, bus stopped suddenly and she was thrown back while going up the stairs.
    • Held: she was 50% negligent.
  • ***Raleigh v Iarnrod Eireann [2003] IEHC 112
    • Falling asleep on train track resulted in a below the knee amputation – in the HCt, the P got some damages and ruled that the P was 85% to blame, leaving 15% to Iarnrod Eireann.
    • In D’s appeal to the SCt – Raleigh got nothing.
      • Relate this decision back to Glencar – they were at the same time and this might be seen as a backlash to the compo-culture.
  • *****Murphy v County Galway Motor Club [2011] IEHC 135
    • Plaintiff put himself in a dangerous position by the side of the road with a camera to record a motor rally. He was hit by a rally car and was seriously injured. To what extent could he be said to be contributory negligent?
    • There was a warning in the program produced with the motor rally – basically the witnesses agreed that it was a dangerous position to put yourself, just before a blind crest in the route.
    • P accepts that his actions were unwise.
    • P 66% – D 33%

–General Principles

  1. Contributory negligence is one of a number of defenses to an action in tort.
  2. Onus of establishing contributory negligence lies on the defendant
  3. It essentially involves a lack of reasonable care for one’s own safety or the safety of one’s property.
  4. General Rule is where P is at fault, damages will be reduced in proportion to his fault.
  5. Historical Context – contributory negligence used to be a complete bar to recovery. The courts developed a number of mitigating doctrines over the years.
  6. The modern law is governed by S.34 of the Civil Liability Act 1961 [CLA 1961]
    • Pursuant to CLA 1961, s. 34(1), contributory negleigence ceases to be a complete bar to recovery. It establishes a system of apportionment of liability. Essentially, the P’s damages will be reduced having regard to the respective degrees of fault of D and P – note that there are three provisos to s. 34(1) which are discussed later:

–The Nature of Contributory Negligence

  • Particular Risk
    • The injury to P must result from the particular risk to which he has exposed himself by reason of his contributory negligence.
  • Agony of the Moment
    • May arise where P, acting reasonably to extricate himself from an unexpected and dangerous situation created by D’s negligence, actually aggravates the situation as a result of his actions. The law only requires a reasonable response from P; it is therefore sufficient if P demonstrates as much judgment and self-control in attempting to avoid the consequences of that danger as may reasonably be expected of him in all the circumstances. Court should not be swayed by hindsight in considering whether P is guilty of contributory negligence.
      • ***Arnott v O’Keefe [1977] IR 1 – faced with an imminent collision.
      • Kearney v Great Southern Railway – P was on a train – someone shouted “Fire” and P acted abruptly and jumped off.
  • The Dilemma Principles
    • Broader than the ‘agony of the moment’ principles; it applies even where P has time to think and consider his situation. Essentially D’s negligence puts P in a situation where, in order to avoid an inconvenience, P decided to run a slight risk of injury (but here P has time to think before reacting – unlike ‘agony of the moment’)
      • ***Sayers v Harlow UDC – woman trapped in toilet cubicle, on attempt to escape, falls and injures her ankle.

–Degrees of Fault of P & D

S. 34(1) provides for apportionment of damages having regard to the “degrees of fault” of P and D. It is clear that “fault” in this context refers to the “moral blameworthiness of [the] respective causative contributions” of the P and the D to the damage: per Walsh J in ***O’Sullivan v Dwyer [1971] IR 375.

–Seatbelts

 

 

Topic 9 – Occupiers’ Liability Act 1995

The 1995 Act brought sweeping changes to the law governing occupiers’ liability. Perhaps what it did most radically was significantly reduce the level of obligation owed to the trespasser. Prior to the 1995 Act, a reasonably foreseeable trespasser had to take reasonable care (McNamara v ESB [1975] IR 1). The Act also introduced a new category of entrant – ‘recreational user’.

Note: The Act came into force on 17th July 1995 and does not operate retrospectively.

Some key definitions set out in the Act are:

  • Damage – includes loss of property and injury to an animal
  • Danger – this means a danger due to the state of the premises. This is to be distinguished from a danger that is due to the way in which the premises is used (e.g. a construction site or a quarry). This distinction can sometimes be hard to draw however. McMahon & BInchy suggest the concept involves some continuity, but this is not clear.
    • **Sheehy v Devil’s Glen Tours, unreported, High Court 10 December 2001
      • Lavan J held that the saddle of a door which caused the plaintiff to trip and fall was found to be a danger and a hazard due to the state of the premises.
    • **Allen v Trabolgan Holiday Centre [2010] IEHC 129
      • Woman, carrying child, slipped on a muddy pathway (wearing flip flops).
      • Distinguish here between active operationsthe state of the land.
        • Active operations are governed by the general law of negligence.
    • **McGovern v Dunnes Stores, unreported, Circuit COurt, 6 March 2003
      • Plaintiff tripped on a clothes hanger.
      • Held: As there was no complaint about a structural defect on the occupier’s premises, ordinary negligence principles and not the 1995 Act were to be applied.
  • Entrant – A person who enters (not the sole occupier).
  • Occupier – This includes persons who are not owners. The occupier is defined as having the requisite control over a property to which would be reasonable to impose a duty on them in respect of an entrant.
    • When there is more than one occupier, the duty will largely depend on the degree of control each has as well as the status of the entrant vis-a-vis each occupier.
  • Premises – Includes land, water and any fixed or movable structures and also includes vessels, vehicles, trains, aircraft and other means of transport.
  • Injury – includes any disease, loss of life, or impairment of physical or mental condition.

–Categories of Entrant

  1. Visitor – An entrant (other than a recreational user) who is on the premises at the invitation, or with permission of the occupier. Includes those on the premises by an express or implied term. This is the Gold Standard.

    • Per s. 3, the duty of care owed to a visitor is the “common duty of care”.
      • This takes into consideration all that is reasonable in the circumstances.
      • This duty of care is very similar to the standard of care in an ordinary negligence action. Confirmed by McMahon in **Heaves v Westmeath Co. Co  and Peart J in **Vega v Cullen [2005] IEHC 362.
    • The occupier may be able to rely on a defense of contributory negligence. In **Sheehy, P was held not to be guilty of contributory negligence – “a moment of advertence does not make one negligent”.
    • The occupier’s duty of care may be reduced where the visitor is accompanied by another person who may reasonably be expected to supervise the visitor (parent/child is the classic scenario). **Coffey – child pulled down glass shelf in shoe shop, but by virtue of the parent/child relationship, the shop was not found to be negligent in not securing it so that it could not possibly fall.
  2. Recreational User – means an entrant who, with or without the occupier’s permission or at the implied invitation is present on the premises without a charge (except for perhaps vehicle parking) for the purposes of engaging in a recreational activity. This includes a person admitted without charge to a national monument. There are exceptions however, where the recreational user may become a visitor. 1) a member of the occupier’s family who is resident on the premises 2) entrant at the express invitation 3) entrant who is present for social reasons connected to the occupier or such a member.
    • But, what is recreational activity? – This includes any activity, whether alone or with others, in the open air (including sporting activity), scientific research and nature study, exploring caves, visiting historic sites etc. – McMahon & BInchy include hunting, fishing, shooting, hiking, picnics etc.
      • Distinguishing between a ‘visitor’ and ‘recreational user’:
        • ***Heaves v Westmeath Co Co.  – P fell down steps at Belvedere House and sustained injuries. He had paid a fee of £1 for himself and 50p for each of his two children. The fee was considered an entrance fee because even if he had arrived on foot he still would have been charged: This brought him up from the category of ‘recreational user’ to ‘visitor’.
  3. Trespasser – A trespasser is an entrant other than a visitor or recreational user.
    • The SAME duty is owed to the recreational user as to the trespasser, in respect of a danger existing on the premises.
    • The duty owed to recreational users and trespassers, pursuant to s. 4(1) – is not to injure, or damage their property intentionally and not to act with reckless disregard for their safety.
      • BUT, distinguish this from the visitor – here, the occupier does not owe any duty to act with reasonable care in respect of the state of the premises.
    • In determining whether the occupier acted with reckless disregard, we look to s. 4(2) of the 1995 Act which provides nine factors to take into account:
      1. Whether the occupier knew or had reasonable grounds for believing a danger existed
      2. Whether the occupier knew or had reasonable grounds that the person/property would be on the premises.
      3. Whether the occupier knew or had reasonable grounds that the person/property would be in the vicinity of the danger.
      4. Whether in all the circumstances, the occupier could have reasonably been expected to provide protection against the danger.
      5. The burden of eliminating the danger.
      6. Character of premises – including activities usually done on it etc.
      7. Conduct of the trespasser/recreational user
      8. Nature of any warning
      9. Whether or not the person was in the company of another.
    • There is an exception to rec. users – where a structure is in place for use (e.g. playground) – that structure must be kept in a safe condition. s. 4(4). – This does not extend to structures not intended for use by recreational users – e.g. bridge, gate, turnstile etc.

–Modification of Occupiers’ Duty – S. 5

Section 5(1) provides that an occupier may, by express agreement or by notice, extend the scope of duty owed to entrants.

Section 5(2) provides that the duty of care owed to visitors may be reduced. However, where an occupier takes steps to restrict the scope of the duty of care owed to visitors, the duty cannot be reduced below the minimum duty owed to recreational users and trespassers – see s. 5(3). This is an important base line – s. 4(1)

  • Such a modification or restriction will not bind a visitor unless:
    • It is reasonable in all the circumstances; and
    • where restricting duty, reasonable steps have to be taken to bring this fact to the attention of the visitor – (prominently displayed at the normal means of access to the premises).
      • However, this is a rebuttable presumption.

— Warning by the Occupier

A warning of danger given to a visitor, either by the occupier or by another, will not absolve the occupier from liability, unless sin the circumstances, the visitor could avoid the damage or injury so caused.

As regards recreational users and trespassers, tha nature of any warning given by the occupier is just one of the factors to be considered in s. 4(2)  in determining whether or not the occupier acted with reckless disregard in the circumstances.

— Restriction of the duty owed to criminals

  • Section 4(3) – General position – not to injure such persons intentionally. The duty of not acting with reckless disregard does not apply, unless the court determines otherwise in the interests of justice.

Section 7 also provides some protection for the occupier in respect of the negligence of independent contractors.

  • Normal position – an occupier of a premise shall not be liable to an entrant for injury or damage cause to the entrant or property of the entrant by reason of a danger existing on the premises due to the negligence of an independent contractor employed by the occupier if the occupier has taken all reasonable care in the circumstances (including such steps as the occupier ought reasonably to have taken to satisfy himself or herself that the independent contractors was competent to do the work concerned) unless the occupier has or ought to have had knowledge of the fact that the work was not properly done. 

S. 8(a) provides that nothing in the 1995 Act shall be construed as affecting any enactment or rule of law relating to self-defense, the defense of others or the defense of property,

— Selected Case Law

  • ***McDonald v Frossway Trading as Bleu (and Studio M Architects) [2012] IEHC 440
    • Facts: Woman was out at night – had a drink beforehand and then went to a restaurant. In order to get to her table, she had to go up three steps. The lighting was “soft” and could be dimmed or brightened as required. She drank wine with the meal. She left the table once or maybe twice to have a smoke outside. While at the table the group had scattered (smoking, toilet etc.). P decided to join those outside. She fell down the steps – suffering a fractured ankle. She said there was nothing to grab onto (no handrail) as she was falling.
      • She is classed as a visitor.
      • Was there any other warning?
      • Shoes were not considered a relevant factors
      • Case turned on the non-inclusion of a handrail. – Consider also concurrent fault on part of the architects who had designed the restaurant.
      • She recovered 100% of her damages.
  • ***Weir Rodgers v The SF Trust LTD [2005] IESC 2
    • Plaintiff pleaded negligence and breach of duty “and in particular a breach of duty provided for by section 4 of the 1995 Act.” ]

 

 

Topic 10 – Vicarious Liability

— Basic Principle

Sometimes a person will be held liable for the wrong of another, even though the person held liable is not at ‘fault’ themselves.

Per Lord Steyn in ***Lister v Hesley Hall [2002] 1 AC 215.:

  • It is a legal responsibility imposed on an employer, although he himself is free from blame, for a tort committed by his employee in the course of his employment. 

Fleming identified that this formula presented a compromise between two conflicting policies: the social interest of the victim attaining justice vs. a hesitation to burden businesss enterprises.

Vicarious liability can arise in a number of different contexts: employer/employee; principal/agent; firm/partner

–‘De facto service’

Vicarious liability may also arise by virtue of de facto service, even when there is no contractual relationship or formal legal relationship.

  • *****Moynihan v Moynihan [1975] IR 192

    • Plaintiff (2 years old) pulled a hot pot of tea onto herself in grandmother’s house. The plaintiff’s aunt (defendant’s daughter). had left the tea on the table under a brightly colored tea-cosy. The plantiff’s father was not present and the mother was helping the grandmother (defendant) with the dishes.
    • Issue: Is the defendant (grandmother) vicariously liable for the negligence of her daughter (P’s aunt) Marie?
    • Held: The nautre and limits of the hospitality were completely under the control of the defendant. It may be said that Marie was “standing in the shoes of her mother” when carrying out the task. The delegation of the task was a casual one, but was still a gratuitous service for her mother. It was in the control of the defendant how, when, where, and how the tea would be served, if at all. The position would be no different from that of hired catering help who spilled hot sauce over the head of a guest (but this is different to some extent because of a contractual/formal relationship).

This decision is important as it clearly indicates that the control concept is used, not just as a justification for vicarious liability but rather as a test to determining the persons for whose actions liability will be imposed. 

The justification for the doctrine of vicarious liability:

  • Control;
  • Risk creation/enterprise liability
  • Deep Pockets
  • Deterrence/accident prevention

Lord Phillips in The Catholic Child Welfare Society v Various Claimants [2012] UKSC 56 – described the justification for vicarious liability being dervived largely from the principles of distributive justice, in order to fulfill the requirements of commutative justice.

–Vicarious Liability in the context of employer/employee relationships

This is a form of strict liability. This can be distinguished from breach of an original duty that the employer may bare – e.g not providing a safe working environment, scheme of work being used is not to standard.

Depending on the factual matrix, both direct liability in negligence and vicarious liability may arise.

Generally speaking, the law imposes liability on the employer for the torts of an employee if the torts are committed within the scope of the employee’s employment.

This general statement raises a number of interesting questions however:

[1] Employees/’servants’ distinguished from independent contractions (self-employed).

Employee = contract of services

Independent contractor = contract for  services.

Each case must be considered on its own specific facts however.

As seen in ***Civil Liability for Industrial Accidents, per White – primary and secondary criteria are considered when distinguishing between employees and independent contractors.

  • Primary Criteria
    • CONTROL – what to do, when to do it and how to do it.
  • Secondary Criteria
    • Nature of work
    • Method of payment
    • Provision of equipment
    • Right ti sub-contract the work v personal service
    • social welfare/tax status

None of the criteria are conclusive, but are insightful in distinguishing.

— The Reality of the Relationship

The label the parties put on their relationship will not be conclusive in law – **Denny v Minister for Social Welfare [1998] 1 IR 34.

[2] The Scope of employment (Or the course of employment)

The employer is only liable for those wrongs committed within the scope of the employee’s employment.

This may even be something that is reasonably incidental to his work.

Some interesting authorities on this are:

  • **Johnson & JOhnson v CP Security [1986] ILRM 559

    • D’s employee was a security guard who assisted in a larceny from P’s premises.
  • **Reilly v Ryan [1991] 1 IR 247
    • Bar manager used patron as a ‘shield’.
  • ****Lister v Hesley Hall [2002] 1 AC 215
    • House of Lords held that an employee’s unathorised actions could still be within the scope of his employment if the wrongful behaviour was so closely connected with his employment that it would be fair and reasonable to hold the employer vicariously liable. In Lister, the warden of a school boarding house sexually abused boys who were in his care.
    • Since he had been employed to look after the children, this would involve physical contact in very close proximity if the warden were to fulfill his responsibilities. There was therefore a very close connection between the nature of the warden;s employment and the sexual assault, the risks of which were inherent in that position.
    • It has been suggested that in Lister, the employer (Council) had assumed responsibility for the children and should therefore be liable for the conduct of the person’s to whom the child’s care had been delegated. In other words, the local authority had undertaken a direct responsibility to the children (and parents), which had been breached when they entrusted their care to an employee who was a potential danger to them. 
  • Note the following Canadian SCt decisions relied on by the House of Lords in ***Lister.
    • **Bazley v Curry (1999) 174 DLR (4th) 45
      • Reasoned that where precedents on certain instances of vicarious liability were inconclusive, the court should be guided by policy that seeks to provide a just remedy.
    • **Jacobi v Griffiths (1999) 174 DLR (4th) 71

What it the test in determining whether an employer is vicariously liable for the sexual torts of an employee?

  • *******Lister v Hesley Hall

    • Per Lord Steyn–>Test for sexual torts: Whether the warden;s torts were so closely connected with his employment that it would be fair and just to hold the employers vicariously liable. + Inextricably woven.

What about a criminal act by an employee?

  • ******Mattis v Pollock (t/a Flamingo’s Nightclub) [2003[ EWCA Civ 887

    • Case concerned an appalling attack on P by D’s employee who was working as a doorman in P’s nightclub. It was known that P, the club owner, encourage D to be aggressive.
    • Test: was the assault so ‘closely connected’ with what the employer authorized or expected of the bouncer in the performance of his employment, that it would be fair and just to conclude that the employer is vicariously liable for the damage P sustained when the bouncer stabbed him?
      • Relied heavily on Lister and Dubai Aluminium v Salaam.
  • ***The Catholic Child Welfare Society v Various Claimants and The Institute of the Brothers of the Christian Schools [2012] UKSC 56
    • Court determined that the Institute (whose members comprised lay brothers of the Catholic Church) should share vicarious liability for the sexual abuse committed by the brothers with the Catholic Child Welfare Society.
    • The SCt explained that the focus in such situations is two-fold:
      1. Was there a true employer/employee relationship between D1 and D1?
      2. Was the employee acting in the course of his employment when he committed the tortious act?
    • What is critical in stage 2 “is the connection that links the relationship between D1 and D2 and the act or omission of D1.

–Contemporary Irish Case Law

  • ****Delahunty v South Eastern Health BoardSt Josephs Industrial School and the Minister for Education and Science [2003] IEHC 132
    • P was sexually assaulted by a housemater working at the second defendant’s home on the occasion the plaintiff visited a resident in 1976. This was previously complained of but no investigation ensued.
    • The High Court was referred to the Canadian SCt decisions in **Bazley and **Jacobi and the UK decision of ***Lister.
    • Held: The ‘strong connection’ argument did not avail P in this case. P was only a visitor at the time of assault. The policy considerations mentione in the Canadian cases and Lister do not apply in the case of a mere visitor.
      • It followed the school was not vicariously liable.
    • However, the school was found directly liable for failing to investigate complaint about the perpetrator’s conduct.

The principles in ***Delahunty were applied in the following case:

  • ***O’K v H and Minister for Education and Science, Ireland and the Attorney General [2006] IEHC 13

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Topic 10 – Medical Negligence

The general principle that emerged from the earlier case (Trespass Torts) of ***Walsh v Family Planning Services [1992] 1 IR 496, was, in cases of alleged non-disclosure of material risks attending a particular medical procedure, the appropriate cause of action is negligence and not trespass

There are a number of statutes and institutions in place that attempt to minimize the risks associated with the medical profession:

  • Medical Practitioners Act 1978
  • Medical Practitioners Act 2007
    • This Acts purpose is to better protect and inform the public in its dealings with the medical profession – in doing this it has introduced registration and control of practitioners measures to better ensure the  training, education and general competence of medical professionals.
    • It also set up the Medical Council.
  • Medical Council
    • Investigates complaints against medical practitioners. It has the power to revoke certification/licenses.

Core Question: What standard of behavior is required from a doctor or consultant in order to discharge the duty of care owed to the patient.

Medical negligence divides into two categories:

  1. Diagnosis and treatment
  2. Informed Consent (duty to disclose risks inherent in medical treatment).

[1] Diagnosis and Treatment

The doctor must possess and deploy reasonable skill (Objective standard).

A specialist/consultant must attain the ordinary level of skill amongst those who specialize int the same field (the highest level of competence is not required).

A GP (General practitioner) must know when expert advice (specialist advice) is required or when it is necessary to refer a patient to hospital.

The courts tend to defer to customary practice within a particular profession, specifically for the medical and legal professions. This is described as the ‘general and approved practice’. Notwithstanding this however, the judges make sure to remain the final arbiters on the adequacy of any ‘general and approved practice’. 

As regards alleged negligence in diagnosis and treatment – the principles were set out in ***Dunne v National Maternity Hospital [1989] IR 91. Before turning to this case however we must look to how the law developed:

  • **Daniels v Heskin [1954] IR 73

    • The doctor here was bound to possess and use reasonable skill, having regard to his position as a GP.
  • **O’Donovan v Cork Co. Co. [1967] IR 173
    • A specialist/consultant must attain the ordinary level of skill amongst those who specialize int the same field (the highest level of competence is not required).
    • Also, a doctor cannot be held liable if he conforms to the general and approved practice, however, if there is a common practice which has inherent defects which ought to be obvious to an person giving the matter due consideration, the fact that it is shown to have been widely and generally adopted over a period of time does not make the practice any less negligent.
      • **Roche v Peilow – supports this decision, but also adds that the professional man should not be judged with the courts benefit of hindsight.
  • ***Collins v Mid-Western Health Board and O’Connor [2000] 2 IR 153
    • Per Barron J: The test on the obligations of a GP is whether a reasonably prudent GP exercising ordinary care would have acted as he did in all the circumstances. 
    • Also, it was seen that the GP was not required to make the correct diagnosis, but was expected to know when to refer the patient to a specialist.

— The ‘Dunne Principles’

This is the locus classicus. The reasoning in ***Dunne was applied in a case concerning solicitor’s negligence (**Roche v Peilow).

The Dunne Principles are:

  1. Test for establishing negligence in diagnosis and treatment – is whether he has been proved to be guilty of such failure as no equal medical practitioner would be guilty of if acting with reasonable care.
  2. Departing from a general and approved practice will not establish negligence unless it is proved that the course taken was one which no (implies singular) medical practitioner of like specialization would have followed taking ordinary care.
  3. Even if the course of action take is within the general and approved practice, if P establishes it has inherent defects which ought to be obvious to any person giving the matter due consideration, he will not escape liability.
  4. A difference of opinion between two professionals will not allow and inference of negligence to be drawn.
  5. It is not for the court to decide which of two alternative treatments is preferable – it is the courts job merely to identify if the one pursued complies with the above principles.
  6. If there is an issue of fact in question – a jury will need to determine it (this is irrelevant since juries have been abolished from personal injury actions in the HCt).

There are some points to consider regarding the Dunne Principles. Per McMahon & Binchy. 

○      1) Principle 3 represents a compromise between absolute deference to customary professional practice and what might be considered to be undue intrusion by the courts.

○      2) In principles 1 and 2, reference to “no medical practitioner” of equal specilisation and skill might suggest that if a D could find one practitioner who acted as he or she had done, liability could not be imposed. This is incorrect as the test of “ordinary care” would still have to be passed.

○      3) In principe 4, an “honest” difference of opinion between doctors should not be understood as providing an exemption from liability on the basis of an honest though unreasonable belief as to the desirability of a particular mode of treatment.

○      4) Courts Act 1988 abolished juries for personal injuries litigation – however it still applies in the sense that the trial judge may dismiss a case at the conclusion of a plaintiff’s evidence. 

Further to the ‘Dunne Principles’ to make them readily applicable, are conclusions:

  • “General and approved practice” – need not be universal – must only be adhered to by a substantial number of reputable practitioners.
  • Treatment and diagnosis must be treated in the same fashion.
  • If an action is brought against a hospital, their conduct is to be tested in accordance with the legal principles which would apply if they had personally carried out such treatment or diagnosis.

— Policy Factors underlying the ‘Dunne Principles’

  • Undesirable that medical practitioners should carry out their duties constantly wary of litigation – due to the importance in the development of medical science, and the supreme importance of that development to humanity. 
  • Also, it is undesirable to let the law lax in such an area due to a patient’s complete dependence on the skill and care of the medical professional.

— General and Approved Practice

general and approved practice may have inherent defects.

‘neglect of duty does not cease by repition to be neglect of duty’ – *O’Donova v Cork Co. Co. 

So, simply following a general and approved practice will not save a professional where that practice is shown to have inherent defects.

Note however: Per Keane J in *Collins v Mid-Western Health Board – He asks the question of how a lay tribunal can condemn a general and approved practice? He feels the facts are unlikely to be as obvious as the test requires. But, the courts must remember however that they are the final arbiter.

The Dunne principles were almost identically applied in **Shuit v Mylotte [2006] IEHC 89.

— Delayed Diagnosis due to negligence

In ***Philip v Ryan [2004] IESC 105, the SCt ruled that where a proper diagnosis was delayed due to a doctor’s negligence, and a patient suffers probable loss to life expectancy as a result of a delayed diagnosis, the patient may recover damages for this probably future.

It was seen as “contrary to instinct and logic” that this should not happen. Per Fennelly J.

— Beyond the ‘Dunne Principles’ – a number of further points:

  1. Courts must be wary of being influenced by hindsight
    • **Daniels v Heskin
  2. An error of judgment will not normally lead to liability
  3. Different schools of thought
    • Subject to the “inherent defects” test.
  4. Medics duty to keep up-to-date
    • Scottish decision of **Hunter v Hanley – it is indefensible for a doctor to say “that is what I learnt at university and I shall go on doing it.”
    • Each case is individual, yet based on the recent decisions it seems that there is a duty to keep reasonably abreast with the literature in what might be called the mainstream journals although the courts do not impose an oppressive burden on medical practitioners in this regard.
    • To not read one article is excusable, but to disregard a series of warnings in the medical press could well amount to negligence. —Roe v Ministry of Health (UK)
    • The course of this duty will depend on the individual case and even more so, the relevant specialism of each doctor.
  5. Critical role of expert testimony.
  6. Innovative Treatment
    • Damaging the prospects of medical progress  vs.   restraint must be exercised
    • It is true, that with informed consent, a doctor can perform a wide range of innovative treatments without the risk of being sued. What about when informed consent cannot be obtained? (mentally ill, unconscious patients etc.
      • There is a lack of certainty/guidelines in this area.

— Causation

P must prove that on the balance of probabilities, D’s negligence caused the injury, damage or loss of life.

[2] Informed Consent

McMahon and Binchy propose three possible approaches to the duty to disclose:

  1. The Professional Standard Test – By reference to generally approved practice.
  2. All Material Risks – This requires full disclosure of all ‘material’ risks – emphasizes a patients right to self-determination.
  3. A middle ground between 1 and 2.

— General Principles

The cause of action is negligence and not trespass.

  • ****Walsh v Family Planniing Services, Orr and Kelly [1992] 1 IR 496 (SC)

    • The plaintiff, aged forty-four considered having a vasectomy. The plaintiff gave evidence that a doctor explained that the operation was painless and safe but emphasised that it was irreversible. His wife raised the question as to whether the operation would interfere with their sexual relations in any way (inquisitive patient?). They were told that it would not; on the contrary, they were told that it could improve the situation for some people. The plaintiff said that the doctor had not warned him of any long term side-effects but placed emphasis on the fact that the operation was irreversible.
    • After the operation the plaintiff said that he felt “shattered” and that he was in pain. Mr. Walsh continued to have a significant amount of pain, felt extremely tired and was unable to resume work. In April 1987, he had a left orchidectomy (removal of the left testicle). By August 1987, he said that his sex life had ground to a halt due to the pain that he felt on ejaculation. By that stage, he regarded himself as impotent. Expert evidence pinpointed Mr. Walsh as suffering from orchialgia, a known but exceptionally rare condition and one not properly accounted for as a consequence of vasectomies. There was no general and approved practice of warning patients as to its incidence.
    • It was found by the Supreme Court that the vasectomy had been carried out properly and without negligence. The resulting complaint was an unfortunate and rare, but unavoidable, side effect. The court did, however, have to decide whether Mr. Walsh should have been warned about the possibility of such an unusual potential consequence.
      • The members of the court disagreed as to the test to be applied. The Chief Justice favoured the application of the‘professional standard approach’, (same as the Dunne Principles) while other members favoured the ‘reasonable patient test’. The Walsh case itself was not affected by this lack of agreement, as the case didn’t turn on this point. The Court was able to decide the matter on the basis that they accepted the defendants oral evidence and that Mr. Walsh had in fact been warned that long term pain could occur. Unfortunately the lack of agreement between the members of the court made it difficult for subsequent cases to isolate the dominant finding of law.
        • O’Flaherty J accepted the position endorsed in Sidaway – and that in the case of elective surgery, all risks should be notified, in the clearest language possible.
          • Hedermann JJ concurred with O’Flaherty’s judgment.
        • Hedderman JJ and O’Flaherty – rejecting Dunne’s application in favor of a straightforward negligence test.
        • McCarthy J and Finlay CJ –> Bridge/Keith Test – approval of Dunne criteria.
    • Egan J’s judgment is only somewhat decisive. This is clearly in support of O’Flaherty’s judgment but still gives no clear principles. He did not reference the Dunne test or the judgments of Finlay CJ or McCarthy – from this it can be assumed that he did not endorse Dunne.

Walsh largely left the law on informed consent in an unsatisfactory and confused state. There was no consensus on the scope of the duty of disclosure. Summarizing – it can be said that Lord Diplock’s approach in Sidway found not to support Walsh. The Bridge/Keith test was supported by Finlay CJ and less so by McCarthy J. Lord Scarman approach was endorsed by O’Flaherty J with Hederman JJ concurring.

Finlay CJ and McCarthy J swayed towards a materiality test with regards to elective treatments.

Since there is ultimately no ratio decidendi in Walsh, the HCt has either not referenced it at all, used only one judgment or chosen between each compelling approach.

–Elective v Essential Treatment

One thing that is clear from Walsh is the duty to warn differing whether the treatment is elective or essential.

Elective treatment –> Duty to warn is more onerous – ‘however remote or exceptional’. ‘sever pain into the forseeable future’ — all in the clearest language.

–Post Walsh Jurisprudence

There was uncertainty post Walsh as to the test to be applied regarding cases of informed consent.

 

 

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