What to remember?

Question 1

Negligence definition

Answer 1

the failure to behave with the level of care that a reasonable person would have exercised under the same circumstances

Question 2

Elements of the Tort of Negligence

Answer 2

1. Duty of care: did the defendant owe a duty of care to
   the plaintiff?
   * 2. Breach: If a duty of care was owed, did the
   defendant’s actions (or omission) breach that duty?
   * 3. If the duty was breached, has the plaintiff suffered
   loss, or damage?
   * 4. Can it be said that the damage was caused by that
   breach?

Question 3

What is a duty of care?

Answer 3

legal obligation to act with reasonable care to avoid causing foreseeable harm to others

Question 4

Where does the idea of duty of care come from?

Answer 4

Donoghue v Stevenson
* general neighbour principle
* you must not injure
your neighbour (You must take reasonable care to avoid acts or omissions
which you can reasonably foresee would be likely to injure
your neighbour)
* Who is my neighbour? persons who are so closely and directly affected by
my act

Question 5

Developing the Duty Test

Answer 5

Donoghue v Stevenson- neigbour principle
Home Office v Dorset Yacht Co- extended to different situations
Anns v Merton London
Borough Council- two tier test (1) relationship
of proximity and foreseeability 2) policy considerations limiting that) - rejected in UK bc of floodgates concern later
Caparo Industries v Dickman-Three tier test (1. Whether the harm was reasonably
foreseeable, 2. Whether there was a relationship of proximity, 3. Whether it is fair, just and reasonable to
impose a duty of care)
Ward v McMaster- negligent house valuation - adapted Anns two step in Ireland
Glencar Explorations v
Mayo County Council - similar test to Caparo- 4 steps (1. Whether the harm was reasonably foreseeable
* 2. Whether there was a relationship of proximity
* 3. Whether there are countervailing public policy
considerations
* 4. Whether it is fair, just and reasonable to impose a
duty of care)
2018- change in UK- Robinson v Chief Constable of South West Yorkshire Police - incrementalism and novel cases Caparo

Question 6

Police negligence

Answer 6

Hill v Chief Constable of West Yorkshire
* Yorkshire ripper - failed to catch him- killed P daughter
* principle that police
whilst carrying out their investigations owe no duty of
care to individual members of the public
Michael v Chief Constable of South Wales Police
* Ms Michael, was murdered by her former partner - misheard
* There was no assumption of responsibility - no duty owed
Robinson
* caveat in Hill- police did owe duty to Ms Robinson they injured
Lockwood v Ireland
* A rape case collapsed because the warrant that was
used to arrest the suspect was carried out under a
common law power that was no longer valid
G v MJELR
* bringing the man to the plaintiff’s house
was part of the Gardai’s investigation, and so the Hill principle
applied, that no duty of care was owed to the plaintiff
Smyth v Commissioner of An Garda Siochana
Kelly v The Commissioner of An Garda Síochána & Ors
* no duty of care arose on the facts between
the Gardai and the victim

Question 7

Does the test for duty of care differ between Ireland and
England? How did we get to this stage?

Answer 7

2018- UK Robinson
in Ireland still Glencar
difference: in IE test applied every time, in UK only in novel cases - incrementalism otherwise

Question 8

What role does policy play in negligence?

Answer 8

Courts use policy considerations to balance competing interests, manage the scope of liability, and prevent undesirable social and economic consequences.
Policy ensures that negligence law reflects societal values and remains practical and fair.

Question 9

Breach of Duty

Answer 9

(a) the probability of the injury
(b) the gravity of the injury
(c) the social utility or value of the defendant’s behaviour
(d) the difficulties and costs involved in minimizing or
eliminating the risk of harm

Question 10

Standard of Care

Answer 10

• The Reasonable (Man) Person
• objective standard
• Exceptions to the objective
  standard
• Physical Capacities
• Mental Disordered Persons
• Children
• Skilled persons
  – Medical doctors, solicitors, etc

Question 11

What is causation?

Answer 11

2 step enquiry:
1. Factual cause
2. Legal cause

Question 12

How do courts determine whether the plaintiff’s harm was caused by the defendant’s negligence?

Answer 12

the ‘But For’ test - act is the cause of an event if the event
would not have occured without (“but for”) the act in question
* the plaintiff must show that there was a factual causal connection between the plaintiff’s injury and the wrongdoing of the defendant

Question 13

Multiple Sufficient Causes

Answer 13

different if two torts and natural occurence
* If natural occurance, the defendant will be liable for everything up to that natural occurance.
* If both events are tortious, then both wrongdoers will be liable for the damage that each causes.
* difficult to know who caused what portion- “concurrent wrongdoers” under section 11 of the Civil Liability Act 1961 - both liable the same way

Question 14

Alternative Approaches than But for test

Answer 14

1. Materially contributed to the injury (Bonnington Castings)
2. Materially increased the risk of injury (McGhee)
3. Materially increased the risk of injury but only when the competing causes are identical (Fairchild)

Question 15

Breaking the Chain of Causation

Answer 15

Novus Actus Interveniens
* third party
* act of claimant
* act of nature

Question 16

Remoteness of Damage

Answer 16

Direct Consequences?
* Re Polemis- overruled
* So under the rule of direct consequences, a person is
liable or responsible for all the consequences of his
wrongdoing, up until some sort of intervening act.
Reasonable Foreseeability?
* The Wagon Mound (No. 1)

Question 17

The Egg Shell Skull Rule

Answer 17

• If the defendant could foresee a particular type of physical or psychological injury to the plaintiff, then he or she will be liable for all the physical or psychological injury that follows on account of the plaintiff’s particularly vulnerable pre accident condition.
• In other words, the
  tortfeasor takes his victim as he finds him.

Question 18

Loss of chance

Answer 18

person losing a chance of something that might have happened, but for the defendant’s negligence
* in IE recieved money - Philp v Ryan - other jurisdictions not so clear

Question 19

Actionable damage

Answer 19

• term given to those interests that have been protected in previous cases
• the core of the Negligence action and is an essential part of the plaintiff’s case
• Without actionable damage, a plaintiff cannot get out of
  the starting blocks

Question 20

When is psychiatric injury permitted as damage?

Answer 20

Psychiatric injury is generally only permitted in the following situations :
1. where it happens subsequent to physical injury,
2. ‘nervous shock’ cases,
3. occupational stress-induced cases.
- in all needs to be recognised psychiatric illness

Question 21

fear of disease

Answer 21

not actionable in Fletcher- policy reasons
- ‘uncharted territory’ for the
courts because it was not a nervous shock case

Question 22

Even where there is a recognised
psychiatric illness, does there need to be physical injury, too?

Answer 22

fear of disease cases- potential to recognize further but not yet there- in those cases not sufficient that there was just fear

Question 23

Nervous Shock

Answer 23

• traumatic event
• not a psychiatric term
• closest to PTSD

Question 24

difficulties of recognizing nervous shock

Answer 24

Difficulties:
* distinguishing between acute grief and diagnosed psychiatric illnesses
* hard to daignose psych. injuries and prove causation
* disinecentive to get better for P
* floodgates concern
* potential unfairness in imposing damages on defendants that are not proportionate to their negligent conduct
* plaintiff was not near the scene of the accident at the time, but came in the aftermath of the accident
* Increase evidentiary issues and lengthen litigation
* Shock could encapsulate a very wide net of people affected – need to limit

Question 25

Incremental development in nervous shock

Answer 25

• only allowed where they were suffered after a physical injury
• danger of physical injury, and reasonably feared physical injury
• plaintiff feared not of immediate physical injury of himself, but to his family members
• Good Samaritan, in other words a person who rescues a stranger from danger

Question 26

Test for nervous shock in IE

Answer 26

Mullally v Bus Eireann
* reasonable foreseeability
* no policy in Irish law opposed to a finding of nervous shock
* suffered from PTSD after car crash
* all causal events caused by defendant
* defendant’s duty of care extends to injuries which are
reasonably foreseeable, thus the defendant is liable for the
reasonably foreseeable psychiatric illness caused by their
negligence. The plaintiff’s shock and illness were foreseeable.

Kelly v Hennessy
* suffered a recognisable psychiatric illness
* such illness was shock-induced
* nervous shock was caused by the defendant’s act or omission
* sustained was by reason of actual or apprehended physical injury to the plaintiff or a person other than the plaintiff
* - here needs to be close relationship
* the defendant owed him or her a duty of care not to cause him or her a reasonably foreseeable injury in the form of nervous shock as opposed to personal injury in general

Question 27

Test for nervous shock in UK

Answer 27

1. foreseeability of nervous shock
2. McLoughlin
   -Relationship with the immediate victim (close tie of love and affection)
   * Proximity in time and space
   * How the shock is caused
3. primary and secondary victims in Alcock
   * The class of persons whose claim should be recognized (defined by their relationship to the victim).
   * The closeness of the claimant – both physically and temporarily – to the accident.
   * The necessity of, and the means by which, the shock is caused.
4. Page v Smith
   - Primary victims: a person might be able to recover where he/she was at risk of a foreseeable physical injury, but in fact suffered a psychiatric injury.
   * Secondary victims: where a person was not at risk from any foreseeable physical injury, he/she cannot recover for any psychiatric injury.
   - in UK not IE

Question 28

Occupational (Workplace) Stress

Answer 28

No physical injury has occurred
No nervous shock element
special relationship

Question 29

Wrongful Conception/Failed Sterilisation

Answer 29

• do not require the damages
  payable by a negligent doctor should extend so far as to
  require him to pay for the cost of rearing an unintended
  healthy child

Question 30

Infringement of autonomy

Answer 30

interest which the law: protects their autonomy, their freedom to decide what shall and shall not be done with their body (the unwanted pregnancy cases for eg.)

Question 31

Pregnancy as PI?

Answer 31

• Pregnancy is not an illness or a disease. (Byrne v Ryan)
• Generally accepted as PI
• difficulty if the reasoning for it were financial
• Legal wrong to the victim - but only in failed sterilisation- not faulty condoms or wrong medication
• ‘an invasion of [the woman’s] bodily integrity´
• It does cause pain, sickness and distress.
• It is an entirely natural process -most women happy (kinda irrelevant stroke is also natural).
• limits autonomy and causes pain and discomfort
• pregnancy is damage in general, but whether it is damage to this woman
• reinforce what has been described as ‘the damaging
  association of pregnancy with illness and vulnerability
• injury and illness are
  clearly distinct concepts

Question 32

Dunne test in IE

Answer 32

1. Standard of Care: Negligence is established if the practitioner acted in a way no other competent practitioner of similar qualifications and skill would have, exercising ordinary care.
2. Deviation from General Practice: A deviation from general and approved medical practice is not negligent unless the chosen course was one no reasonable practitioner would follow.
3. Obvious Defects Exception: A practitioner cannot rely on general practice as a defense if the plaintiff proves that the practice had inherent and obvious defects that any competent practitioner should recognize.
4. Judicial Role: Judges do not determine the preferable course of treatment but assess whether the defendant’s actions align with the standards expected of a practitioner with similar qualifications.
5. General Practice Criteria: “General and approved practice” need not be universal but must be supported by a substantial number of reputable practitioners with relevant qualifications. The principles apply equally to treatment and diagnosis.

Question 33

Medical (Professional) Negligence

Answer 33

• If a person can show that he or she adhered to the customary practice of his or her profession, this should normally be sufficient to relieve him or her of liability in
  negligence - doctor expected to act as reasonable doctor, not perfect doctor
• different in relation to medical negligence, in the UK, when relating to failure to warn
• O´Donovan: follows general and approved practice in the situation with which he is faced requiring them to have no inherent (obvious) defects - courts determine so based on evidence
• Roche v Peilow: standard to be expected from a reasonably careful member of the profession (approved inherent defects)
• Dunne test in IE
• Bolam test in UK

Question 34

Bolam test

Answer 34

ordinary skill of an ordinary competent man exercising that
particular art. … [and acts] in accordance with a practice
accepted as proper by a responsible body of medical men
skilled in that particular art

Question 35

GPs rules

Answer 35

• law requires that GPs make a
  reasonable diagnosis, not a correct one, and that in
  cases where the GP is uncertain or where it is clear that
  a specialist investogation is needed, the GP should make
  the referral of the patient
• Collins: reasonably prudent general practitioner exercising ordinary care would have acted as he did in the circumstances

Question 36

Battle in Negligent Failure to Warn of Risk

Answer 36

• patient’s autonomy: doctor disclosing every possible risk that
  could occur in a proposed course of treatment
• medical paternalism: idea that the doctor knows best
• cases in this area try to balance these two competing interests

Question 37

Informed Consent evolution

Answer 37

• UK: Sidaway
• substantial risk of adverse grave consequences
• IE: Walsh v Family Planning Services
• elective: any grave
  consequences , no matter how exceptional the consequences are
• IE: Geoghegan v Hariss
• both severity and statistical significance=materiality, only material risks if non- elective
• IE: Fitzpatrick v White
• reasonable patient test - any risk that would affect judgement of reasonable patient
• UK:Chester v Afshar
• a small, but well established,
  risk of serious injury - decide what to do with body
• UK:Montgomery
• proper dialogue- particular patient- subjectivity of severity and occurance
• therapeutical exception still applies

Question 38

Duty of care critique

Answer 38

• not a true duty as in private law- only if harm arises
• dual role of duty- factual and notional/legal (whether law allows it in this situation)
• advantages of duty illusory- rather deconstructed - not a prerequisite - can be added to other cathegories of negligence