Negligence

Historical
Emergence as a concept in early 19 th
Century
Derived from Action upon the case
Early cases involved inn keepers and
carriers successful as contracts exist, defendant did something wrong
Term negligence did not appear but
concept of defendants conduct involving
some act or omission was evident
Lead to decline of strict liability if you show def caused harm hes auto at fault
Emergence of Negligence
Blackstones Categorisation of Legal Liability early
1800s spoke of a class of contracts implied by
reason and construction of law based upon concept
anyone who undertakes any office, employment, trust
or DUTY contracts( highly dependent on these early) with those
who employ or entrust him to perform it with integrity,
diligence and skill
DUTY concept implicit here
1825 railways and industrialisation identify emergence
of negligence
1840 Petersdorfs Abridgement Michealmass Term
treats negligence as a separate category of wrong
Early Developments
Brown v Boorman 1844 11 Cl&Fin p 1.
HL action upon the case for negligent performance
of a contract described case
"...where something is to be done in the course
of an employment which is the subject of the
contract and the party injured by the breach of
the duty in such employment may recover in tort
and contract."
Langridge v Levy 1837 2 M&W 519.
Action in DECEIT.
George v Skivington 1869 L.R. 5 Exch 1. Same
result achieved in negligence action
Meaning of Negligence
1. A Tort
Conduct not a state of mind
Actionable due to conduct not because of
the state of mind
2. Behaviour
Defines how a person acts or fails to act
Means of committing other torts
It is INADVERTANCE and differs from
INTNETION where the mind fully
appreciates the actions of the person
Early Definition in:
Blythe v Birmingham Waterworks 1856 11
Exch. 781 at 784 Baron Alderson
"..negligence is the omission to do
something which a reasonable man
guided upon those considerations which
ordinarily regulate the conduct of human
affairs would do, OR something which a
prudent and reasonable man would not
do."
 Negligent conduct DOES NOT automatically
establish that the defendant is liable
Criteria must be met and liability is subject to
the particular circumstances of the case- this
could alter liability criteria dramatically
Negligence as a TORT is a means of holding a
person responsible for their behaviour which
causes damage or injury
Court has no regard to level of negligence
involved but only whether the person has been
negligent
Damages are not commensurate with the
degree of negligence
ELEMENTS OF THE TORT
1. Duty of Care (legal duty to avoid causing
injury)
2. Breach of the duty (failing to conform to the
standard of care expected)
3. Actual loss, damage or injury to the plaintiff
4. Sufficiently close CAUSAL connection
between the defendants conduct (negligence)
and the plaintiffs injury
1. Duty (Early formulation)
Lievre v Gould. 1893 1 Q.B.D. 491 Lord Esher at 497.
"the question of liability for negligence cannot arise
at all until it has been established that the man who
has been negligent owed some duty to the person
who seeks to make him liable for his negligence. A
man is entitled to be as negligent as he pleases
towards the whole world if he owes no duty to
them.
Haynes v. Harwood 1935 1 Q.B. 146. Lord Greer.
"negligence in the air will not do. Negligence in
order to give a cause of action, must be neglect of
duty towards the person who makes the claim."
First proper formulation of a doctrinal basis for
the duty in
Heaven v Pender 1883 11 QBD 503 at 509 Brett
M.R.
"whenever one person is by circumstances
placed in such a position with regard to
another, that everyone of ordinary sense would
at once recognise that if he did not use
ordinary care and skill in his own conduct with
regard to those circumstances he would cause
danger or injury to the person or property of
the other, a duty arises to use ordinary care
and skill to avoid such danger."
20th Century Developments
Donoghue v Stevenson [1932] A.C. 562 Lord Atkin's
"neighbour" principle contains requirements for
establishing a duty of care
Abolished privity requirement for an action in
negligence
Duty is based upon
1. Proximity or ones neighbour (between plaintiff and
defendant) which requires that the defendant be
aware that a person may be affected by his negligent
conduct in which case he is obliged to take care not
to cause injury
2. Reasonable forseeability (relating to both the
defendants conduct which may cause damage to the
plaintiff and the damage it self
Hedley Byrne & Co v Heller [1964] A.C. 465
Adopting Atkin's principle to novel
circumstance of Negligent Misstatements.
"The law implies a duty of care where a
party seeking advice from a party
possessed of special skill, trusts that party
to exercise due care and skill and that
party ought to well have known that
reliance was being placed on his skill and
care."
Home Office v Dorset Yacht Club Ltd [1970] A.C 1004.
Lord Reid at 1027. Further application and
development of Atkins principles to novel
circumstances (negligent omissions)
Anns v Merton Borough of London [1978] A.C. 728.
Lord Wilberforce's Two Stage test at 751/2 "First one
has to ask whether as between the alleged wrongdoer
and the person who has suffered damage, there is a
sufficient relationship of proximity or neighbour, such
that in the reasonable contemplation of the former,
carelessness on his part may be likely to cause
damage to the latter in which case a prima facie duty
of care arises. Secondly, if the first question is
answered affirmatively, it is necessary to consider
whether there are any circumstances which ought to
negative, or to reduce or limit the scope of the duty or
the class of person to whom it is owed or the damages
to which a breach of it may give rise."
The High Watermark
Junior Books Ltd Veitchi [!985] 1 A.C.520. Both these
cases applied and approved Lord Wilberforce in Anns.
Case allowed recovery for pure economic loss

The Retreat from Junior Books.

Governors of the Peabody Donation Fund v Sir
Linsday Parkinson Co Ltd. [1985] A.C. 210, [1984] 3
All E R 529 L. Keith at 534 "This is a temptation which
should be resisted. The true question in each case is
whether the particular defendant owed to the particular
plaintiff a duty of care having the scope which is
contended for and whether he was in breach of that
duty with consequent loss to the plaintiff. The
relationship of proximity in Lord Atkin's sense must
exist before any duty of care can arise but the scope
of the duty must depend upon all the circumstances of
the case."
Leigh & Sullivan Ltd v Aliakmon Shipping Co
Ltd [1986] A.C. 785. L. Brandon at 815 "..that
passage does not provide and cannot in my
view have been intended by Lord Wilberforce to
provide a universally applicable test of the
existence and scope of a duty of care in
negligence."
Curran v Northern Ireland Housing Co-
ownership Association Ltd [1987] A.C. 718 L.
Bridge "..trend was to raise the neighbour
principle to one of general application from
which a general duty of care may always derive
unless there are clear and countervailing
circumstances to exclude it."
Yuen Kun Yeu v Attorney General for Hong Kong.
[1987] 2 All E.R. 705 L Reid at 712 "..two stage
test should not be regarded as in all
circumstances as a suitable guide to the
existence of a duty of care. (pure economic
loss case)
D & F Estates Ltd v Church Commissioners for
England [1989] A.C. 177. (pure economic loss
case)
The Pragmatic Approach.
Rowling v Takaro Properties Ltd [1988] A.C.473 L
Keith at 501 "..gradual development requiring
most careful analysis."
Caparo plc v Dickman [1990] 1 All E R 568.L
Bridge quoting with approval Brennan J in
Sutherland Shire Council v Heyman (1985) 60
A.L.R. 1 at 43\44 "the law should develop new
categories of negligence incremental and by
analogy with established categories rather than
by a massive extension of a prima facie duty of
care restrained only by an indefensible
consideration which ought to negative or reduce
or limit the scope of the duty or the class of
person to whom it is owed
Murphy v Brentwood District Council [1990] 2 All E
R 908, [1990] 3 W.L.R. 414.
Overruled Anns.
Application of the Duty of Care to Novel
Circumstances (Fair, just and reasonable)
M (a minor) v. Newham London Borough Council,
X (minors) v. Bedfordshire County Council
[1994] 4 All ER 602.
No duty imposed where local authority negligently
brought a child into care and failed to do so in
the latter case. (Note Bingham M.R.'s dissent)
E. v. Dorset County Council [1994] 4 All ER 640.
Council liable for failing to property diagnose the
child had a learning disability
Barrett v. Enfield LBC [1999] 3 All ER 193, [1999] 3
WLR 79.
Plaintiff succeeded where council was negligent in
placing child with foster parents
 THE IRISH DIMENSION
Lord Atkin approach has been accepted in the
following cases:
Kirby v Burke & Holloway [1944] I.R.207, Gavan
Duffy P
Power v Bedford Motor Co [1959] I.R.391 SCt.,
Lavery J
Healy v Bray U.D.C. 1963-63 Ir Jur Rep 9
Purtill v Athlone U.D.C. [1968] I.R. 208., Walsh
J.
McAuliffe v Moloney [1971] I.R. 200, O'Dalaigh
CJ at 202.
Finlay v Murtagh 1979 I.R.249, Kenny J at 246.
Ward v McMaster & Ors [1985] I.R.29 Costello J\1988
I.R.337 SCt.
McNamara v E.S.B. [1985] I.R.1
Burke v. Dublin Corporation [1991] 1 I.R. 341.
W. v. Ireland [1997] I.R.
Shinkwin v. Quin-con & Quinlan, [2001] 1 IR 514,
Fennelly J. Endorsement of Anns two stage test -
imposing liability upon second defendant as manager
of the factory in which the plaintiff worked. Liability
imposed owing to the proximate relationship between
the plaintiff and defendant. 1st defendant had no
insurance and 2nd defendant was the sole
shareholder and owner of the company.
Glencar Exploration PLC and Andaman Resources PLC
v. The County Council of Mayo ********, [2002] 1 IR
112, [2002] 1 ILRM 321 - Adopting the more "
cautious" approach of the of the Caparo 3 stage test -
no injustice in requiring "further step" of considering
whether it is just and reasonable to impose a duty of
a given scope on the defendant for the benefit of the
plaintiff
Whether Keane CJ was correct in rejecting McCarthy
Js statement in Ward v. McMaster
Questionable whether any ambiguity as to endorsement
of Anns in Ward case
Finlay CJ and Griffin J agreed with McCarthy J
McCarthy expressly endorsed Anns
McCarthy rejected Sutherland Shire Council
incremental approach
 McCarthy differed from Costello J (HC in Ward)
by rejecting the fair, just and reasonable test
in favour of Anns proximity, reasonable
forseeability and public policy
Clearly indicated that the public policy
argument must be a very powerful one to
deny an injured plaintiff redress
Earlier authority of SC in Siney applied both
Donoghue v Stevenson and Anns
Present case obliged public body to ensure, in
addition to providing loans to acquire
accommodation, that all accommodation was
habitable
The Commonwealth Approach to Murphy v.
Brentwood.
Canada
University of Regina v Pettick 77
D.L.R.615
Canadian National Railway v. Norsk
Pacific Steamship Co. [1992] 91 D.L.R.
(4th) 289.
Winnipeg Condominium v. Bird
Construction. [1995] 121 D.L.R. (4th) 193
Cases clearly endorse Anns and latter 2
expressly reject Murphy as good law in
Canada.
Australia
Bryan v. Moloney 182 C.L.R. 609
Pyrenees Shire Council v. Day [1998] 1 HCA 3
(C.L.R.)
Murphy is a narrow interpretation of the modern
law of negligence
New Zealand
Invercargill City Council v. Hamlin [1994] 3
NZLR 513, PC [1996] 2 WLR 367
Utter rejection of Murphy and full endorsement of
Anns
Contract Precluding a Duty
McCann v. Brinks Allied and Ulster Bank
Unreported Supreme Court 4/11/96 Existence of a
contract negating duty between plaintiff and
defendant despite high degree of proximity and
forseeability.
The Duty of Care in Novel Circumstances.
I. Proximity of relationship
II. Reasonable Forseeability
III. Absence of negativing considerations
(a) The nature of the defendants conduct
(b) The nature of the plaintiffs loss
(c) The class of person to which the defendant
belongs
The 2 Stage Test
2 Stage test merely a means of assessing
whether a duty of care is owed
Proximity is crucial no guidance on what factors
needed to establish proximity
Arguable there is no difference between
negativing considerations and all the
circumstances of the case let alone fair, just
and reasonable as all can affect scope of the
duty of care
Reasonable Forseeability a prerequisite for the
duty of care in relation to both the defendant's
conduct and the damage caused to the plaintiff
Reasonable Forseeability affected by
1. Vague term
2. Not universal in application
3. Temporally affected (depends on state of
knowledge of the time)
4. Defendant may have special knowledge BUT
5. Assists in determining whether a duty is owed
6. Determined measure of damages
The Direct Consequences Rule
Re Polenis [1921] KB 560:
Defendant liable for ALL damage flowing from
his negligence
Reasonable Forseeability Test
The Wagon Mound No1 [1961] A.C.388 replaced Direct
Consequences Rule
Accepted in Ireland in :
Riordans Travel & Shipping Ltd v Acres Ltd [1979]
I.L.R.M.3.
Condon v C.I.E. HCt 16 Nov 1984 Barrington J.
Recovery is not always possible despite proximity and
reasonable foresight.
Deyong v Shenburn [1946] 1 All ER 226, [1946] KB 227
Plaintiff actors clothes stolen from dressing room in
theatre
Held negligent in not providing a lock but defendant was
under no duty to protect clothing from theft
Argy Trading v Lapid Developments [1977] 3 All ER 785
Landlord successor in title owed no duty to tenant to
inform him that insurance was discontinued
Fire broke out with no cover
Weller v Foot and Mouth Institute [1966] 1 QB 569.
Plaintiff auctioneer prohibited by Ministerial Order from
operating during foot and mouth outbreak
"..the world of commerce would come to a halt and
ordinary life would become intolerable if the law
imposed a duty on all persons at all times to refrain
from any conduct which might forseeably cause
detriment to another."
Dublin Port and Docks Board v Bank of Ireland [1976]
I.R. 118. cited and approved Weller above at 141
"...commercial life would become impossible if
forseeability, that ones action or inaction would cause
economic loss to another, were to create liability."
Graham v. Ireland [1998] 2 IR 88
Negligent act, proximity and reasonable
forseeability present but no imposition of
liability.
Refusal to allow plaintiff vote in general
election, despite returning officer
personally knew plaintiff was related to
him by marriage, no duty arose.