Tort Law Flashcards
Novus Actus interveniens
- Breslin v Corcoran – The def left the keys in his ignition and went to a shop. Someone stole the car and crashed into a pedestrian. Held that this was not an intervening act as the action was reasonably foreseeable.
- Corr v IBC - Plaintiff worked as a maintenance engineer for Def and was struck by a metal plate from a machine. It would have killed him if he did not dive out of the way but it hit him on the side of the head and removed part of his ear. He had many reconstructive surgeries, got tinnitus and became depressed. He committed suicide by jumping from a multi-story car park. Did the original breach of duty legally cause the suicide? Held that suicide was an intervening act.
- Crowley v AIB and O’Flynn – An AIB branch had a flat roof that was easy to climb and children would play there. A child fell while playing. Held that the architects should have designed railings around the roof but AIB knew the children were playing there for a while and did nothing so they were liable even though the architects could be blamed.
- Hayes v Minister for Finance – Gardai were pursuing a man on a motorbike in a dangerous way so he hit a passenger. Held that the Gardai were not responsible for the accident and the motorbike driver was the intervening act.
Nature of the Damage
A & B by Health and Social Services Trust – The fact that the children were of a different skin colour to their parents was not actionable as damage. The plaintiff must be suffering from an injury that the law will recognise. Thus, in cases involving failed sterilisation the birth of a baby will not be seen as damage as it is seen as a gift and a positive occurrence
Remoteness
After causation, you must show the injury was not too remote.
1. Direct Consequences Test
2. Test of Reasonable Foreseeability
3. Egg Shell Skull Rule
Direct Consequences Test
Re Polemis – Original test by courts – no longer used – test is that if injury is foreseeable, def is liable for damage that is a direct consequence of his negligence. Def dropped a plank was dropped into the hull of a while unloading and the plank ignited petrol vapours which set the ship on fire. Defendants argued that the damage was too remote. Held the the def was liable as the fire was a direct consequence of his actions.
Test of Reasonable Foreseeability
- Wigan-Mound – Overruled direct consequences test. Defendants negligently discharged oil into Sydney Harbour. A spark from nearby welding fell into the harbour, starting a fire that destroyed ships. The oil did not cause the fire under the direct consequences test so the Privy Council used reasonably foreseeable test.
- Condon v CIE - Approved the reasonable foreseeability test in Ireland. Several people were killed when a train was derailed due to the defendant’s negligence. Plaintiff sought compensation for the cost of legal representation at the statutory inquiry. Held it was granted to plaintiff as It was reasonably foreseeable that the inquiry would be set up to compensate the victims.
- Hurley Ahern v Moore – A sterilisation procedure failed so the plaintiff got pregnant. She gave birth to a boy with severe physical defects who died within six months. The failed sterilisation did not cause it. The defendant was liable for the pain and suffering during pregnancy and for the emotional trauma of the subsequent six months. Def knew about the mother’s blood clotting disorder so the emotional trauma and the cause was reasonably foreseeable.
- Egan v Sisk - Defendant negligently allowed his warehouse to become flooded, where he kept brochures for plaintiff. Held that def was liable. If the def can reasonably foresee the damage, it does not matter what kind of damage it is.
Egg Shell Skull Rule
Exception to remoteness rule. Where the extent of the damage is greater than reasonably foreseeable because of a peculiar condition of the plaintiff, you take your victim as you find them.
1. Smith v Leech Brian & Co – Plaintiff was hit on the lip by molten metal in a factor. Because of a pre-existing condition, he developed cancer and died. The injury was foreseeable but not the extent of damage. Def liable for all damages under eggshell skull rule.
2. Burke v John Paul & Co – Plaintiff suffered a hernia because he was using a blunt cutter at work which required him to use more pressure than if it was correctly sharpened. Def argued that you could only foresee strained muscles. Held all that mattered was that the injury could be foreseen.
3. McCarthy v Murphy – Plaintiff was in a parked car and def hit the car slightly and plaintiff suffered a moderate soft tissue injury. She became depressed. Eggshell skull rule applied.
4. Quinn v Leatham - if the defendant intended to cause injury, then he will be automatically liable.
Negligent Misstatement
- Hedley Byrne v Heller & Partners – Plaintiffs were an advertising agency and booked advertising slot of a company called Easipower. They asked Easipower’s bank for a credit reference first and the bank said it was sound but gave a disclaimer. Pl relied on this to their detriment and lost power went Easipower was wound up. Here, the disclaimer worked so the def was not liable. Note that consumer protection law later introduced does not allow certain disclaimers. Rule: If a person gives advice, which is relied upon, and turns out to have been negligent or incorrect, he may be liable for negligent misstatement. This is limited to commercial situations, not social ones.
- Caparo Industries v Dickman – Negligent misstatement claims can be established when the def was aware of the nature of the transaction, knew that the information would be communicated to the plaintiff and that the plaintiff would rely on the information in making a decision. Def is less likely liable where a statement is put into more or less general circulation and may foreseeably be relied on by strangers for an unexpected reason.
- Cases involving economic loss are approached in a conservative manner by the courts. The Court has found negligent misstatement where the plaintiff relies on negligent advice to his financial detriment and the def (should have) known the pl would rely on it.
Aftermath of Hedley Byrne
- Chaudry v Prabhaka – Exception to Hedley Byrne where it was applied socially. The def advised her friend to buy a second-hand car that led to liability without mentioning it had been in an accident. The plaintiff bought the car but it was not road-worthy. Plaintiff was liable. Exceptional case.
- Harris v Wyre Forest DC – Plaintiff applied for a council mortgage. A council employee did a survey, and the report had a specific disclaimer. The plaintiff did not see the report. The house was valued at the asking price so the def assumed it was worth that amount but the house had a structural defect and could not be sold. They successfully sued for negligent misstatement. Held that it was reasonable for the Plaintiff to rely on the defendants’ advice. The defendant voluntarily assumed responsibility for giving advice.
- Smith v Bush – What if A gives information B who gives it to C who relies on it? The plaintiff applied for a mortgage and the building society asked a surveyor to do a valuation report. The report had a specific disclaimer but said no repairs were needed so the plaintiff bought the house. The chimney collapsed and the surveyor was liable.
Extension of Hedley Byrne to the Provision of Services
- Ross v Caunters – Defendant solicitors made a will and they got a beneficiary’s spouse to attest to the will so anything owing to the beneficiary was null and void. The beneficiary sued. Court looked at proximity between he parties. The testator owed the testator a duty to benefit the def. This duty was extended to the beneficiary. There liable to the plaintiff.
- Doran v Delaney – There were Adverse possession claims on a land. Pl asked the defendant solicitor if there were claims on a land. The def asked the original owners of the land and they said it was settled. The def solicitor did not ask more questions and told the pl that the vendor said no. Turns out there were claims on the land so def was liable. Held that the def assumed responsibility for the information and she knew it would be relied on. Her reply did not show there was any previous claims and saying that she was only delivering instructions was not an excuse. She could have asked more questions.
- McCullagh v P.B Gunne - Where an auctioneer takes responsibility for assisting clients to arrange adequate finance for a suitable business and they rely on him, he then owes them a duty of a care and can be liable for negligent misstatement. Auctioneers should make it clear hat only the vendor is his client, not the purchaser.
- KBC Bank v BCM Hanby Wallace - Solicitors failed to properly advise their client, KBC Bank, on the legal risks associated with a loan transaction so KBC suffered financial losses. BCM Hanby Wallace had breached their standard of care owed to KBC. The decision underscored the importance of solicitors providing competent and thorough legal advice to their clients, particularly in financial matters.
Nervous Shock/Psychiatric Damage
Traditionally, courts reluctant to recognise nervous shock because floodgates, it is hard to measure damage and there might be exaggerated or fake claims.
1. Byrne v Southern and Western Railway – First time nervous shock is recognised. A train crashed through a wall at Limerick while the Plaintiff was in their office. They got damages for nervous shock. Zone of Danger Rule: was it reasonably foreseeable that Plaintiff could suffer physical injury by being in the zone of danger?
2. McLoughlin v O’Brian – The plaintiff’s family were in a car accident caused by the def and the pl suffered emotional trauma when she arrived at the hospital to see them. She got compensation. As a secondary victim, there must be A close relationship of love and affection, Closeness to the accident in time and space, and they directly perceived the accident/aftermath
3. Alcock v Chief Constable of South Yorkshire Police – Plaintiff saw his relatives being crushed at a football match through TV and in a makeshift morgue. He did not get damages for nervous shock. He could not prove above criteria as a secondary victim. Byrne is for primary victims. McLoughlin is for secondary victims. Irish courts have yet to expressly adopt the primary and secondary victim categorisation.
4. Curran v Cadbury – No primary/secondary classification and courts did not feel that it does anything to assist the development of legal principles that should guide the courts in this complex area of law.
Modern Irish Cases for Nervous Shock
- Mullally v Bus Eireann - The plaintiff’s family were in a car accident caused by the def and the pl suffered emotional trauma when she arrived at the hospital to see them. Held that the damage was reasonably foreseeable based on McLoughlin and general negligence principles.
- Kelly v Hennessy - LEADING CASE- Plaintiff’s husband was in an accident and she suffered psychiatric damage after seeing him in the hospital. She got compensation.
1. Plaintiff must suffer from a shock-induced psychiatric illness immediately because of the def’s negligence
2. It must be foreseeable that the accident would cause psychiatric injury
3. Illness must result from the perception of the actual or risk of injury
4. there must be a close personal relationship between the victim and plaintiff in the aftermath
5. Public policy consideration should not exclude liability.
Application of Kelly
- Larkin v Dublin City Council – Plaintiff was a fireman who applied for a sub-officer job. He did exams and interviews and they wrongly told him he was successful, so he told everyone. When they told him the truth, he was so upset he went on medical leave for 6 months and could not show his face at work. He sued but it was not a recognised psychiatric illness.
- Murray v Budds - Irish SC recently confirmed that only recognised or diagnosed psychiatric injuries attract compensation.
- Courtney v Our Ladies Hospital – The plaintiff brought a boy to the hospital and he was wrongly diagnosed and the plaintiff watched the boy rapidly deteriorate. They sued for psychiatric illness it caused and they got compensation as the illness was shock-induced.
- Devlin v National Maternity Hospital – Compensation was not granted because a couple found out that a hospital kept their stillborn’s organ without their knowledge after a long time.
Nervous Shock: Required proximity of relationship
- Cuddy v Mays – The plaintiff worked in a hospital the night his siblings got into a crash, and one died. The Gardai asked him to identify them, and he became traumatised. Held that he had a close relationship with the parties and there was physical proximity to the aftermath. Even if it was not foreseen that he would be working at the hospital, he would have still arrived quickly.
- Purcell v Long – A woman had depression but when her son died in a car crash, it got worse and she tried to harm herself and her marriage broke down. She got compensation.
Non-Disaster related Psychiatric Illness
- Alcock and Kelly only apply to disasters. Ireland has refused to expand it to non-disasters like in Devlin v National Maternity Hospital about the stillborn. Case law in England and Wales suggest the negligent communication of news may ground an action (Allin City and Hackney Health).
- Fletcher v Commissioner of Public Works – Ireland can recognise psychiatric illness for a rational fear. Here, a handyman was exposed to asbestos and he developed reactive anxiety neurosis’. If he had a rational fear of getting the disease as a result of the def’s negligence and if it was reasonably foreseeable that he would develop the disease, he can be compensated. Courts did not apply Kelly principles here.
Psychiatric Illness: Workplace Stress
McGrath v Trinitech approved Hatton v Sutherland – If the indications of impending psychiatric harm to an employee were reasonably foreseeable enough for a reasonable employer, then he had a duty to prevent/minimise the harm.
