negligence cases

three key ingredients in negligence inquiry

1. did the defendant owe a duty of care to the plaintiff? 2. if so can the defendant be said to have breached that duty of care? 3. if so, has the plaintiff suffered damage that was caused by that breach of duty?

Donoghue v Stephenson

neighbour principle

what is the neighbour test (caparo)

forseeability / proximity / fairness (policy considerations)

Glencar Explorations plc facts

plt mining company granted licences by Minister. Def introduced mining ban.

Glencar Explorations issue

whether Council owed a duty of care?

Glencar judgement

no proximity/ endorsed Caparo. Introduced fairness (policy considerations)

what did Glencar introduce to Caparo test?

the plaintiff should be required to establish that it ws fair/reasonable/just to find in their favour

what is the glencar test for duty of care?

1. reasonable foreseeability / 2. proximity of relationship / 3. countervailing public policy considerations / 4. justice and reasonableness imposing a duty of care

Childs v Desormeux

CA. social hosts of parties do not owe a duty of care to members of the public who may be injured by an intoxicated guest’s conduct

Childs rationale

not foreseeable. no positive duty to act (exists when def has invited others to participate in a risk/ paternalistic relationship/ public function/ commercial enterprise)

Flanagan v Houlihan

commercial host not liable for actions of customer.

rationale behind Flanagan

publicans supposedly have a responsibility to monitor drinking/ but vested commercial interest in consumption/ burden too large. personal autonomy valued by courts.

Hill v Chief Constable of West Yorkshire

Yorkshire Ripper victim’s mother. lack of proximity.

rationale Hill

if police were not immune to negligence/ they would not be able to perform their duties effectively

L.M v Commissioner of An Garda Siochana

no duty of care owed to victims / public policy more important than proximity.

L.M facts

plt complained of rape. conviction quashed. incompetence by Gardaí.

Smyth v Commissioner of An Garda Síochana

Garda does not generally owe a duty of care to public in investigation/ prosecution / exception if special relationship established

what were the special relationship in Smith?

Philip: frequent dealings with Gardaí/helped arrests of gang members. Paul: employee of Commissioner.

Michael v Chief Constable of South Wales Police

no duty of care to particular potential victims. Hill principle.

Robinson v Chief Constable of West Yorkshire Police

court held that police were liable for injuries caused to bystander.

Robinson and novus actus interveniens

normally a third party criminal act would be n.a.i. but not when it was the act the def had been under a duty to guard against

McCarthy v Kavanagh

shop and security company liable for personal injuries which were sustained in a brawl outside premises

facts McCarthy v Kavanagh

plt ejected from store. suffered brain injuries from assailant.

rationale McCarthy v Kavanagh

defs knew plt was innocent prior to ejection. rejected submission of necessity of ‘special relationship’ as the defs brought foreseeable harm to plt.

what is the test for nervous shock (kelly v henessy)?

1. recognisable psychiatric illness / 2. illness shock-induced / 3. caused by act or omission / 4. by reason of actual or apprehended physical injury / 5. def owed a duty of care avoid nervous shock

what does Kelly v Henessy say about secondary victims?

if a person with a close relationship to the victim heard of it soon after/ visited person as soon as practicable / exposed to serious injuries / became secondary victim

Kelly v Henessy judgment

if it can be proven that shock directly from accident / close personal relationship / then secondary victim

Fletcher v Commissioners of Public Works

unreasonable to impose duty of care on employers to guard against mere fear of a disease even if such fear might have led to psychiatric condition

Fletcher criticism

very few psychiatric illnesses are rational. egg-shell skull rule in psychiatric damage.

Sheehan v Bus Eireann

primary/secondary victim distinction rejected/too harsh

Harford v Electricity Supply Board

no horrifying event in the nature of the accident / no liability for nervous shock.

Doody v Clarke

warning given to passengers sufficient for purposes of duty to properly drive and control vehicle.

Duffy v Rooney and Dunnes Stores

‘but for’ the flammable warning affixed to coat the accident would have still occurred. Grandfather (not dunnes) liable.

Breslin v Corcoran

negligent driving caused accident. not foreseen/ theft was.

Gregg v Scott

loss of chance not recoverable under negligence.

what was loss of chance in Gregg?

patient with cancer. not referred. chances of survival fell from 45 to 25.

Burke v John Paul & Co

established egg shell skull rule.

what is the egg shell skull rule in Burke

tortfeasor takes victim as he finds him. employee susceptible to hernias.

does egg shell skull apply to economic state?

Lagden v O’Connor- yes.

ACB v Thomson Medical Pte Ltd

awarded damages for loss of genetic affinity.

ACB v Thomson rationale

linked to causation. def’s breach of duty must cause damage to plaintiff or his/her property.