Intro to Tort of Negligence

Question 1

To prove Negligence: who typically has the onus to prove negligence has occurred?

Answer 1

Plaintiff.

Question 2

What three aspects must be proved to prove negligence?

Answer 2

1. Does the defendant owe the plaintiff a duty of care?
2. Did the defendant breach that duty of care by falling short of the reasonable standard of care required in the case?
3. Did the defendant’s breach of duty cause the plaintiff’s injuries?

Question 3

The tort of negligence is only actionable on proof of damage. Therefore, even where the defendant is negligent and the plaintiff is affected as a result, the plaintiff may not have a cause of action if he does not suffer damage, which is generally meant by what?

Answer 3

a) personal injury,
(b) property damage or
(c) economic loss

Question 4

Donoghue v. Stevenson [1932] AC 562

Answer 4

The snail in gingerbeer case: that developed the “neighbour principle”

The rule that you must love your neighbour becomes in law you must not injure your neighbour; and the lawyer’s question, who is my neighbour?, receives a restricted reply.

You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be liable to injure your neighbour. Who, then, in law, is my neighbour?

The answer seems to be – persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called into question.

Question 5

Anns v. Merton London Borough Council [1978] AC 728

Answer 5

Lord Wilberforce developed the two-tier test:
First, one has to ask whether, as between the alleged wrongdoers and the person who has suffered damage there is a sufficient relationship of proximity or neighbourhood 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 considerations which ought to negative, or to reduce or limit the scope of the duty or the classes of person to whom it is owed or the damages to which a breach of it may give rise.

The two-tier test was accepted by the Irish courts in the cases of McNamara v. ESB [1975] IR 1 and Ward v. McMaster [1988] IR 337.

Question 6

What is the three teir rest?

Answer 6

(a) forseeability of harm,
(b) proximity of relationship and
(c) it must be just and reasonable to impose a duty of care.

____

Developed in Caparo Industries v. Dickman [1990] 2 AC 605.

Accepted in Glencar Exploration plc v. Mayo County Council (No. 2) [2002] 1 IR 84.

Question 7

Fletcher v. Commissioner for Public Works [2003] 2 ILRM 94

Answer 7

reasonable foreseeability of harm is “a precondition to liability”. He also explained that what is reasonably foreseeable must be determined objectively: “The test is an objective one, i.e., as to whether a reasonable person would have foreseen that the consequences suffered by the plaintiff might be the result of the defendant’s want of care.”

Question 8

Fletcher v. Commissioner for Public Works [2003] 2 ILRM 94- Proximity

Answer 8

he fact that it is reasonably foreseeable that particular acts or omissions will cause loss or injury to another person does not, of itself, give rise to liability in negligence. There must also be what judges have called, as the law has evolved, a relationship of “proximity” between the plaintiff and the defendant which gave rise to the legal duty to take care that the foreseeable consequence was avoided.

Question 9

Liability in Thrid Party Cases

Answer 9

Typically will rely on the issue of control.

Question 10

Dorset Yacht Company v. The Home Office [1970] AC 1004

Answer 10

borstal boys escaped from a detention facility and caused damage to the plaintiff’s property. As the boys were under the control of the defendant, the defendant owed the plaintiff a duty of care in the circumstances.

Question 11

Everett v. Comojo (UK) Ltd [2011] EWCA Civ 13,

Answer 11

Court of Appeal found there was proximity of relationship between the management of the bar and its guests to justify the existence of a duty of care. The management were in control of the premises and regulated who entered and was refused entry and who should be removed. “The guest comes to the night club to relax and enjoy himself and for that prospect relies on the competence and prudence of its management”. A guest is entitled to expect there will be no violence. There is also an economic relationship between the parties. These factors “demonstrate sufficient proximity”.

Question 12

Just and Reasonable

Answer 12

There are limitations to the approach of duty of care. It would not be just or reasonable to say that a teacher had the duty of care to protect the life of her students in an armed conflict.

Question 13

Fletcher v. Commissioner for Public Works

Answer 13

Supreme Court held it would be unreasonable to impose a duty of care on an employer in respect of an employee developing a psychiatric disorder as a result of an irrational fear of a very remote possibility of contracting a respiratory disease as a result of exposure to asbestos dust. It was thought that to impose a duty in such cases could lead to indeterminate claims in negligence which would have many negative consequences for employers as well as developments in medical treatment in some cases.

Question 14

W. v. Ireland & Ors. (No. 2) [1997] 2 IR 141

Answer 14

High Court held that the Attorney General did not owe the victim of a criminal offence a duty of care when making a decision to extradite a person. It was held that even if there was a sufficient relationship of proximity between the Attorney General and the plaintiff in that case, and the kind of injury of which the plaintiff complained was reasonably foreseeable, would be contrary to public policy to impose a duty of care on the Attorney General. In considering whether the Attorney General should be immune from actions for negligence, the court was balancing the hardship to individuals which such immunity could produce against the disadvantage to the public interest if no such immunity existed. The denial of a right of claim for damages against the Attorney General was based on grounds of public policy which arose from the functions which he was called upon to perform in the public interest and the consequences for his ability properly to perform them, should the alleged duty exist.

Question 15

damnum sine injuria

Answer 15

expresses the concept that a person may suffer damage without legal injury

Question 16

injuria sine damno

Answer 16

expresses the concept that a person may suffer legal injury without necessarily damage.

Question 17

What is fault based liability

Answer 17

ometimes the law of torts imposes strict liability in certain defined situations. An example of strict liability is the rule in Rylands v. Fletcher which holds that a person is responsible when keeping a dangerous thing on his land if the thing escapes. This is so even if the person is not responsible for the thing escaping. Here the law presumes fault on the part of the defendant because of the dangerousness of the thing in question. In most cases the law of torts requires “fault” on the part of the defendant. Fault may arise through the intended or unintended, though negligent, action of the defendant.

Question 18

Can you take a tort against a state? Or the state against you?

Answer 18

Most torts give rise to private actions, i.e., an action taken by one person against another. However, a private party may take an action against a public body or the State using one of the traditional categories of the law of torts, e.g., negligence. Generally, however, public bodies do not take actions against private parties using the law of torts. An exception is the tort of public nuisance: only the Attorney General may institute civil proceedings for the tort of public nuisance.

Question 19

Kennedy v. A.I.B. [1998] 2 I.R. 48

Answer 19

Distinction between contract and tort:

it was said that where the relationship between the parties is contractual the obligations in tort may not be greater that those contained in the contract between the parties. Damages in contract and tort are calculated differently. In contract the aim of an award of damages is to put the plaintiff in the position he would have been had the contract been performed, while in tort the aim of an award of damages is usually to compensate a plaintiff for the losses he has suffered as a result of the tort committed.

Question 20

What is the standard of proof in civil action?

Answer 20

The standard of proof in a civil action is on the “balance of probabilities”

Question 21

Is liability in tort objective or subjective?

Answer 21

While liability in tort, in most cases, is based on the objective standard of the reasonable person, liability in crime, at least in Ireland, tends, in many cases, to be based on a more subjective standard. In tort, in most cases, liability is imposed according to the objective standard of the reasonable person. This is an important distinction between the rules relating to criminal and civil liability which students should note from the outset.

Question 22

Fatal injuries and fault based liability

Answer 22

If a person is fatally injured the dependents of that person may have a cause of action in tort against the person who caused the deceased’s death under

Part 4 of the Civil Liability Act 1961.

In order to succeed the dependents will have to prove that the defendant caused the death of the deceased by means of a “wrongful act” i.e. the dependents will have to prove that the defendant was at fault.

Question 23

Criminal Injuries Compensation Tribunal.

Answer 23

Under that scheme the dependents will have to prove that the deceased’s death was caused by a crime of violence but will not have to prove fault against the person who caused the death of the deceased.

Question 24

Motor Insurers’ Bureau of Ireland

Answer 24

a person injured by an unidentified or uninsured driver may be able to recover compensation for injuries incurred from the Motor Insurers’ Bureau of Ireland. (See www.mibi.ie for further details on this scheme.)

Question 25

What is liability?

Answer 25

Liability means a person is responsible in law for the injury caused to another. If a person is liable to another, he will usually have to pay damages to compensate the plaintiff for the injury caused. Liability under the law of tort usually arises where a person is at fault.

Question 26

When will a person be found liable?

Answer 26

a person can be said to be liable where his actions or omissions result in a breach of the law. That person will be liable to another if the act or omission amounting to a breach of the law causes damage to another person’s legally protected interests.

Question 27

Where is liability imposed for someone with a duty to care?

Answer 27

1. Where a relationship gives rise to a duty to act, e.g., the relationship between parent and child or between employer and employee, or where the defendant assumes responsibility for the plaintiff.
2. Where the defendant has created the danger, he is under a duty to prevent harm to the plaintiff.
3. Where a danger exists, and the defendant has some control over it (even though he did not create the danger) he may have a duty to warn others of the danger and failure to warn may give rise to liability

Question 28

Barrett v. Ministry of Defence [1995] 1 WLR 1217

Answer 28

Duty to Care: assumption of responsibility

two soldiers brought their intoxicated friend to his bed and the court found they has assumed responsibility for him; whereas no duty would have been owed if they had not intervened to assist him. In the circumstances, the plaintiff’s colleagues should have got medical assistance for him, having assumed an obligation toward him.

Question 29

Rivtow Marine Ltd v. Washington Iron Works (1973) 40 DLR (3d) 530

Answer 29

Duty to care: Where they have created the danger

it was held once a producer became aware of a defect in its product it had a duty to warn customers who had already bought the product of the danger.

Question 30

Curley v. Mannion [1965] IR 543

Answer 30

Duty to Care and the defendant has some control over it

The Supreme Court held the driver of car owed a duty to other road users to control his child who was a passenger in the car and who opened the door, injuring a cyclist.

Question 31

Can a statute that creates liability to someone be intended to create a right to sue for damages as a result of a breach?

Answer 31

No, The specific provision in the statute creating a right of action to sue for damages must be present before a plaintiff can rely on the statute. If the provision is present, then the plaintiff can sue the defendant for breach of statutory duty.

In exceptional cases the courts may be prepared to find that a statute intended to create a remedy in damages for breach of statutory duty in the absence of an express provision to that effect.

Three conditions must be satisfied.

1. the statute must have intended to prevent the type of injury suffered by the plaintiff.
2. the plaintiff must be a member of the class of persons for whose benefit the statute was enacted, i.e., that the statute was enacted to protect the type of person in the plaintiff’s situation, not for the benefit of the public generally.
3. the statute must not be adequately enforced by other remedies.

Question 32

Moyne v. Londonderry Port and Harbour Commissioners [1986] IR 299

Answer 32

statute imposing liability:

High Court held that the duties imposed on the defendant under certain Acts were not for the benefit of the general public, and, therefore, the plaintiffs had standing to sue for damages for breach of statutory duty.

Here it cannot reasonably be argued that the duty to maintain the pier was imposed for the benefit of the Irish public generally. The benefit which was being afforded by the pier was being conferred primarily on a definable class of persons, namely those living in the clearly defined geographical area of the Inishowen peninsula, and particularly those living and working on its eastern seaboard. Parliament must have been aware that a breach of the duty it was imposing on the Commissioners could well result in pecuniary loss to at least some of those for whose benefit the duty had been created and I can find nothing in the special Acts or in the Harbours, Docks, and Piers Clauses Act, 1847, to suggest that Parliament intended that no action would lie if this occurred. I must therefore hold that on the facts of this case each of the plaintiffs has a sufficient standing to maintain an action for damages for breach of statutory duty.

Question 33

Where a statute creates a duty but not remedy what alternatives can a plaintiff take?

Answer 33

Alternatively, the plaintiff can argue that where a statute creates a duty but does not provide for a specific remedy in damages, that the statutory duty is merely declaratory of a duty existing at common law.

Question 34

Byrne v. Ireland [1972] IR 241

Answer 34

The common-law principle of Sovereign immunity did not survive the enactment of the Irish Constitution and this was confirmed by the Supreme Court

Question 35

Relevant Statute for diplomatic immunity

Answer 35

Statute recognises immunity from liability in a number of situations. For example, the Diplomatic Relations and Immunities Act 1967 provides members of diplomatic staff are immune from civil and criminal liability.

Question 36

What is Vicarious Liability?

Answer 36

The concept of vicarious liability describes a situation when one person is held responsible for the actions of another.

Question 37

Farry v. Great Northern Railway Company [1898] 2 IR 352

Answer 37

An employer will be responsible for the actions of his employee which arise in the course of the employment. An act is committed in the course of employment if the employee is doing what he was employed to do regardless of how well or badly he does it.

an employee of the defendant train company detained the plaintiff to force him to give up his ticket. The company was held responsible for false imprisonment as, although the employee was wrong to detain the passenger, he did so in the belief it was part of his job

Question 38

Irving v. Post Office [1987] IRLR 289

Answer 38

On the other hand, if the employee commits an act which is clearly not part of his employment no liability will attach to the employer.

a postman wrote an offensive racist remark on a letter. He was held not to be acting in the course of his employment.

Question 39

For vicarious liability to apply what must the liable party be in a position of?

Answer 39

For the defendant to be held vicariously liable he must be in a position of control over the wrongdoer.

Question 40

Moynihan v. Moynihan [1975] IR 192

Answer 40

vicarious liability:

the plaintiff was the granddaughter of the defendant. The plaintiff was scalded by a pot of tea prepared by the defendant’s daughter and left unattended. The court held the grandmother was liable for the actions of her daughter and explained its reasoning as follows: “the necessary element of control was vested in the defendant and the daughter was in the de facto service of her mother for the purpose of the act in which she was alleged to be negligent”.

Question 41

What section of the road traffice act 1961 imposes vicarious liability on the owner of the car?

Answer 41

The Road Traffic Act, 1961 imposes vicarious liability on the owners of cars.

Section 118 of the Act provides that:

Where a person uses a mechanically propelled vehicle with the consent of the owner of the vehicle the user shall for the purpose of determining liability … be deemed to use the vehicle as the employee of the owner.

Question 42

Under what section of the Civil Liabilty Act is a vicariously liable defendant also a concurrent wrongdoer?

Answer 42

Where a defendant is vicariously liable for the wrongs of another both the defendant and the person for whose actions he is responsible are concurrent wrongdoers. Section 11 of the Civil Liability Act 1961 provides:

(1) For the purpose of this Part, two or more persons are concurrent wrongdoers when both or all are wrongdoers and are responsible to a third person (in this Part called the injured person or the plaintiff) for the same damage, whether or not judgment has been recovered against some or all of them.
(2) Without prejudice to the generality of subsection (1) of this section—
(a) persons may become concurrent wrongdoers as a result of vicarious liability of one for another … [Emphasis added.]

Question 43

Curley v. Mannion [1965] IR 543

Answer 43

A parent is not vicariously liable for the torts of his child; however, the parent may himself be responsible for not exercising sufficient control over his child.

The defendant was the parent of a 13-year-old girl travelling in the defendant’s car. The girl opened the car door knocking the plaintiff off her bicycle. The father was held liable as a result of the girl’s actions, because both as her father and the driver of the car he should have exercised sufficient control over the child.

Question 44

Non-Delegable Duties

Answer 44

Although the employer may delegate the performance of his duties to third parties, for example independent contractors who may have a certain specialisation or expertise, the employer is ultimately responsible to his employee if such an independent contractor acts negligently.

Question 45

Woodland v. Essex County Council [2013] UKSC 66.

Answer 45

non-delgation of duties:

Generally speaking, a defendant is personally liable only for doing negligently that which he does at all, or for omissions which are in reality a negligent way of doing that which he does at all. The law does not in the ordinary course impose personal (as opposed to vicarious) liability for what others do or fail to do. This is because, as Cory J observed, delivering the judgment of the majority in the Supreme Court of Canada in Lewis v British Columbia [1997] 3 SCR 1145 at para 17, a common law duty of care “does not usually demand compliance with a specific obligation. It is only when an act is undertaken by a party that a general duty arises to perform the act with reasonable care.” The expression “non-delegable duty” has become the conventional way of describing those cases in which the ordinary principle is displaced and the duty extends beyond being careful, to procuring the careful performance of work delegated to others.

Question 46

What must apply for non-delagtable duty determined in Woodland v. Essex County Council [2013] UKSC 66?

Answer 46

[1] it arises not from the negligent character of the act itself but because of an antecedent relationship between the defendant and the claimant.

[2] the duty is a positive or affirmative duty to protect a particular class of persons against a particular class of risks, and not simply a duty to refrain from acting in a way that foreseeably causes injury.

[3] the duty is by virtue of that relationship personal to the defendant. The work required to perform such a duty may well be delegable, and usually is. But the duty itself remains the defendant’s.

Its delegation makes no difference to his legal responsibility for the proper performance of a duty which is in law his own.

Question 47

Main cases where duties are non-delgatable?

Answer 47

The principle that certain duties are non-delegable applies in a number of typical scenarios including:

(a) employment cases (see chapter 9),
(b) where the defendant is charged with the care of children or vulnerable persons, e.g. schools, and
(c) health care cases, including hospitals who may be liable for the negligence of doctors, consultants or other staff who may or may not be employees (see chapter 8).

Question 48

What is a concurrent wrongdoer?

Answer 48

An injury may be caused by more than one person.

Section 11 of the Act treats joint and several tortfeasors in the same way.

A “concurrent wrongdoer” is someone who causes the “same damage” to the plaintiff with another.

Question 49

What is a joint tortfeasor?

Answer 49

A person may be considered a joint tortfeasor where he acts as part of a group and causes the same tort.

For example, if two persons acting together decide to assault the plaintiff, then the defendants are joint tortfeasors.

At common law the plaintiff could sue either or both of the tortfeasors for the injury suffered; either separately or together. While the defendants were said to be joint tortfeasors, liability was said to be “joint and severable”.

Question 50

What is a several tortfeasor?

Answer 50

A person is a several tortfeasor where he does not act in concert with another but causes the same damage to the plaintiff.

For example, if a plaintiff is injured in a motor accident, the accident may be caused by the negligence of the driver of the car in which he was a passenger and the negligence of another driver. Both drivers may have caused the same damage to the plaintiff. Since the drivers did not act together in causing the plaintiff’s injuries, they are several tortfeasors.

Nonetheless, the plaintiff had to sue each tortfeasor separately and there was no possibility for a joint action.

Question 51

What are the underpinning principles that support part III of the Civ. Liability Act for concurrent wrongdoers?

Answer 51

(1) A plaintiff cannot recover more than the total amount of damages he has suffered. Subject to that principle, the plaintiff is allowed to recover full compensation for his injuries from as many sources as possible.
(2) Concurrent wrongdoers should be entitled to recover fair contributions from each other in respect of damages paid to the plaintiff.

Question 52

Dingle v. Associated Newspapers Ltd [1961] 2 QB 162

Answer 52

Concurrent wrongdoers example:

[1] If four men, acting severally and not in concert, strike the plaintiff one after another and as a result of his injuries he suffers shock and is detained in hospital and loses a month’s wages, each wrongdoer is liable to compensate for the whole loss of earnings. If there were four distinct physical injuries, each man would be liable only for the consequences peculiar to the injury he inflicted, but in the example I have given the loss of earnings is one injury caused in part by all four defendants. It is essential for this purpose that the loss should be one and indivisible; whether it is so or not is a matter of fact and not a matter of law.

[2] If, for example, a ship is damaged in two separate collisions by two wrongdoers and consequently is in dry dock for a month for repairs and claims for loss of earnings, it is usually possible to say how many days’ detention is attributable to the damage done by each collision and divide the loss of earnings accordingly.

Question 53

O’Shaughnessy v. Limerick County Council [2015] IEHC 389

Answer 53

Several tortfeasors concurrent wrongdoers:

It goes without saying that the plaintiffs’ house should not have been demolished. Each of the defendants played a role in its demolition; [Limerick County Council] as the developer of the scheme, RPS as the consultants advising the developer on all aspects of the scheme, including the demolition contract and Midland as the demolition contractor. In my opinion there can be no doubt but that all of the defendants owed a duty of care to the plaintiffs to ensure that the scheme was constructed without causing damage to the plaintiffs’ property which abutted the site on which the scheme was being constructed, but no part of those lands were being acquired. In that each of the defendants played an active role in the demolition of the plaintiffs’ property, all of the defendants are concurrent wrongdoers within the meaning of Section 11 of the Civil Liability Act, 1961

Question 54

Maloney v. Liddy [2010] IEHC 218

Answer 54

When is it not concurrent wrongdoers:

the plaintiffs sued their solicitor for allowing their claim against a firm of architects to become statute barred. The defendant attempted to join the firm of architects as a third party to the proceedings. However, Clarke J held that the solicitor and the architect were not concurrent wrongdoers, as they had not caused the “same damage”. The original damage allegedly caused by the architects consisted of structural defects (damage to property), whereas the damage suffered as a result of the solicitor’s alleged negligence was pure economic loss.

Question 55

What is section 11 (3) of the Civ L. Act?

Answer 55

where two or more persons are at fault and one or more is or are responsible for damage while the other or others is or are free from causal responsibility, but it is not possible to establish which is the case, such two or more persons shall be deemed to be concurrent wrongdoers”

McMahon and Binchy give the example of a person who is shot by two defendants who discharge their guns practically simultaneously. Obviously, the deceased would have been killed by which ever bullet hit him first, but it may be impossible to determine which of the two bullets lodged in his head hit first and caused his death. In this situation the law presumes both defendants to be concurrent wrongdoers.

Question 56

What must be proved for a tort to be successful?

Answer 56

1. Causation on the balance of probabilities

To succeed in an action in tort the plaintiff must prove causation, i.e., the plaintiff must prove that the defendant “caused” the damage or loss complained of.

The plaintiff must prove that the defendant’s actions or omissions caused the plaintiff’s injury. If there is no link between the defendant’s unlawful action and the plaintiff’s injury, then the plaintiff will not succeed.

Question 57

What is Causation in Fact?

Answer 57

In many cases, the factual cause of an event is not in dispute: e.g. the fire was caused by a faulty electrical cable, or the plaintiff’s mesothelioma was caused by exposure to asbestos.

The real issue is whether the defendant is liable in law for the plaintiff’s injuries:

in negligence this is called breach of duty and the defendant is only liable if the breach of duty caused or resulted in the plaintiff’s injury.

Question 58

causa sine qua non

Answer 58

Where the cause of the injury is disputed, the plaintiff will have to show how his injury was caused in a factual sense

Question 59

proximate cause” or “causa causans’

Answer 59

whether the defendant’s breach of duty or unlawful act caused the injury in a legal sense for liability

Question 60

The four types of factual causation:

Answer 60

1. Alternative Causes: one of a number of possible causes – the plaintiff needs to convince the court to accept one and discount the others (e.g. faulty electric cable or arson?)
2. Multiple Causes: each cause sufficient in itself to cause the event – the plaintiff needs to convince the court of one cause (e.g. knocked down by two cars one after the other, where one collision may have been sufficient to cause the plaintiff’s injuries)
3. Cumulative Causes: at least two causes combined to cause the event – plaintiff needs to convince the court of both causes (e.g. if suing two or more defendants in the one action)
4. Synergistic Causes: at least two causes combined to cause the event which could not have occurred by the causes acting independently (e.g. some cancers).

Question 61

Nolan & Anor. v. Electricity Supply Board [2015] IEHC 765,

Answer 61

Factual causation:

Different eminent experts may have different views and theories, and that is of course a strength of any field of intellectual endeavour. In a case where there is such a conflict, external physical evidence, illustrated as it was in this case by useful photographic evidence from both sides, can be of assistance to the court, although careful consideration of the oral evidence is also required particularly insofar as features of the physical evidence are sought to be explained. Having regard to the totality of the evidence, including the matters referred to above, I consider that the “ageing” theory is the more probable explanation for the cause of the fire; that is that the electrical wiring failed due to inherent ageing and not due to alleged accelerated ageing brought about by its enclosure between soffit boards. On that basis I hold that the defendant is liable for the damage caused, subject to a consideration of contributory negligence.

Question 62

Ide v. ATB Sales Ltd [2008] EWCA Civ 424

Answer 62

As a matter of common sense it will usually be safe for a judge to conclude, where there are two competing theories before him neither of which is improbable, that having rejected one it is logical to accept the other as being the cause on the balance of probabilities. It was accepted in the course of argument on behalf of the appellant that, as a matter of principle, if there were only three possible causes of an event, then it was permissible for a judge to approach the matter by analysing each of those causes. If he ranked those causes in terms of probability and concluded that one was more probable than the others, then, provided those were the only three possible causes, he was entitled to conclude that the one he considered most probable, was the probable cause of the event provided it was not improbable.

Question 63

When determining factual causation what must the court find of the evidence?

Answer 63

The court must be satisfied on the evidence. It is not a matter of conjecture or guesswork.

Question 64

Where a plaintiff cannot establish firm factual causation what can they claim?

Answer 64

In England, plaintiffs have been able to establish factual causation by proving the allegedly tortious cause of an event “doubled the risk” of the event occurring, even if the plaintiff could not quite prove that it had caused the event.

Question 65

Novartis Grimsby Ltd v. Cookson [2007] EWCA Civ 1261

Answer 65

Doubled Risk:

the plaintiff suffered from bladder cancer. He was a smoker for much of his life but had given up smoking in the 1980s. The plaintiff proved he was exposed to carcinogens in the workplace. He also proved he was negligently exposed, i.e. the defendant employer was in breach of its duty of care. The defendant argued that the plaintiff’s exposure to carcinogens in the workplace was minimal and had not caused the cancer. The plaintiff’s expert evidence was that the plaintiff’s occupational exposure was “the major contributing factor” and estimated the contribution from smoking may have been 30%, but the contribution from workplace exposure was 70%. The plaintiff submitted he had proved that his exposure in the workplace had “more than doubled the risk” of developing cancer. On this basis the plaintiff succeeded in proving his case.

Even though the contribution of smoking could not have been ruled out as a possible cause, it was not a probable cause. The Court of Appeal held the “natural inference” to draw was that if it had not been for the occupational exposure, the plaintiff would not have developed cancer. Smith LJ said: “In terms of risk, if occupational exposure more than doubles the risk due to smoking, it must, as a matter of logic, be probable that the disease was caused by the former.”

Question 66

Cosgrove v. Ryan and ESB [2008] IESC 2

Answer 66

causation in law:

he plaintiff was a farmer and was injured when his machinery came into contact with overhead electric cables. Factually speaking, his injuries were caused by electric shock that occurred because of the contact between the machinery he was driving and the overhead electric cables: this was not disputed. To impose liability on the defendant, however, the plaintiff had to prove that the defendant was negligent, and that the defendant’s negligence “caused” the plaintiff’s injuries in the legal sense.

There is no controversy as to how this accident was caused. It was caused by the jib or chute coming into contact with electric wires. If the wires were at a reasonable height in all the circumstances then there was no negligence on the part of the ESB. If they were not there was in the absence of some exonerating explanation by the ESB. There can be contributory negligence on the part of the driver even if the lines were too low. But the cause of the accident is quite clear. The only matters in controversy is whether that cause involved blame on the part of the ESB and then the subsidiary question of whether even if it did there was a negligent failure on the part of the driver to look after his own safety.

Question 67

Clabby v. Global Windows Limited (High Court, 21st January, 2003)

Answer 67

Proximate Cause:

he plaintiff was a postman who suffered an injury to his back when he bent down to deliver a letter to a house with a low lying letterbox. The plaintiff sued the defendant manufacturer for manufacturing a door with a low-lying letterbox which posed a danger to a postman delivering a letter. The plaintiff had been trained by his employer, An Post, how to bend down and get up again when delivering letters to houses with low lying letterboxes which included the advice to remove the post bag from the shoulder before bending down. On the issue of causation Finnegan P found that although a cause of the plaintiff’s injury (the causa sine qua non) was the low-lying letter box, the legal cause or the proximate cause (the causa causans) of his injury was the manner in which the plaintiff bent down, “failing to adopt the correct posture and maintaining his post bag on his shoulder while effecting the delivery”. In other words, it was the plaintiff’s negligence – or want of care for his own safety – which “caused” his injury and not any breach of duty on the part of the defendant.

Question 68

What are the differences between conditions and causations?

Answer 68

A condition is inanimate or normal, whereas a cause is usually a voluntary human act or an abnormal event, e.g., a hurricane)

Question 69

What will the court consider when addressing liability?

Answer 69

The court will only consider facts which are relevant to the issue of liability.

For example, a road accident which may have been contributed to by several circumstances, including: the fact the road was wet, that the accident happened at night, that the driver was driving too quickly, that the corner of the road was too sharp, that the brakes were defective. It could be said the accident was caused by a combination of all these circumstances.

Question 70

Material Contribution Test

Answer 70

The test is simply whether “but for” the action or omission of the defendant would the plaintiff have suffered injury. In other words, if the defendant did not drive his car while drunk would the plaintiff have been knocked down crossing the road?

Question 71

Barnett v. Chelsea and Kensington Hospital Management Committee [1969] 1 QB 428

Answer 71

the plaintiff was the widow of the deceased. The deceased suffered abdominal pain but was turned away from the hospital without having seen a doctor. He died of arsenic poisoning. His widow sued the hospital for negligence arising out of its omission to treat her husband. The court applied the “but for test” and held that since the deceased would have died anyway – whether he saw the doctor or not – the hospital was not liable for his death.

Question 72

CIE v. Carroll and Wexford County Council

Answer 72

it was argued the second defendant was negligent in failing to have a notice warning of the height of a railway bridge over a road. When the first defendant drove his vehicle under the bridge it struck the arch of the bridge causing a train to de-rail. The plaintiff sued the first defendant and Wexford County Council. The first defendant was found to be negligent, but the second defendant successfully appealed to the Supreme Court and Finlay CJ held that even if the second defendant was negligent, there was an absence of causation

Question 73

Chubb Fire Ltd v. Vicar of Spalding [2010] EWCA Civ 981

Answer 73

causation:
a church was damaged when vandals entered and discharged a dry-powder fire extinguisher causing extensive mess which had to be professionally cleaned at a cost of £240,000. It was argued the company which supplied the fire extinguisher to the church had negligently failed to warn that the discharge of the fire extinguisher could cause a mess which would be expensive to clean-up. The Court of Appeal dismissed the plaintiff’s claim on the basis, inter alia, that even if the company had warned of the danger there was no evidence the church would not have installed that particular type of fire extinguisher and it was not proved that “but for” the defendant’s negligence the plaintiff’s loss would not have been caused.

Question 74

What are the limitations of the ‘but for’ test?

Answer 74

Where there are two causes or two potential causes of the plaintiff’s injury, a strict application of the “but for” test would be inconclusive.

In some cases, the plaintiff might suffer injury from a multiplicity of causes. For example, a plaintiff could be hit at approximately the same time by two cars as happened in the case of Fitzgerald v. Lane [1989] AC 328.

A strict application of the “but for test” would be inconclusive. The courts in England have been prepared to hold that if the plaintiff can establish that the defendant’s unlawful act amounted to a “material contribution” in bringing about the plaintiff’s injury, the plaintiff will succeed.

Question 75

What is a material contribution?

Answer 75

A “material contribution” is one that is “more than negligible”

Question 76

Bailey v. Ministry of Defence [2009] 1 WLR 1052.

Answer 76

Material Contribution:

If the defendant’s breach has “materially contributed” to the loss or damage suffered, it will be regarded as a cause of the loss or damage, despite other factors or conditions having played an even more significant role in producing the loss or damage. As long as the breach materially contributed to the damage, a causal connection will ordinarily exist even though the breach without more would not have brought about the damage. In exceptional cases, where an abnormal event intervenes between the breach and damage, it may be right as a matter of common sense to hold that the breach was not a cause of damage. But such cases are exceptional.

Question 77

Pride of Derby v. British Cleanese Ltd [1953] Ch149

Answer 77

Material Contribution and concurrent wrongdoers:

river was polluted by three separate sources. It was held in the High Court that although the first defendant was the most serious offender, the second and third defendants “substantially contributed” to the pollution, and accordingly, all three defendants were liable to the plaintiffs for nuisance. The court specifically rejected the proposition “that since all defendants were individually polluting, none could be made liable”, i.e. even if one defendant stopped polluting the river would be polluted in any case.

Question 78

What is negligently caused psychiatric harm?

Answer 78

In the decision of the House of Lords in Page v. Smith [1996] 1 AC 155 Lord Jauncey explained (at 171) that nervous shock meant “such an impact upon the mind or nervous system as is recognised by modern medical science as capable of causing physical or psychiatric illness”.