Duty of Care II
Limits to Neighbour Principle
The famous neighbour principle re-stated the general basis of liability in negligence. It stated that “you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour”.
The test identified a neighbour as a person who is so closely and directly affected by your actions that you ought reasonably to have them in contemplation as being so affected when you direct your mind to the acts or omissions which are in question.
The famous neighbour principle is subject to significant limitations. It was readily recognised that the proposition is too broad in many respects. A person is not and cannot be liable in every circumstance where he does or omits to do something which may foreseeably cause loss to another.
Limits
The courts have limited the extent of the foreseeability in a number of ways. One has been through the use of a foreseeability test. Foreseeability involves looking with hindsight as to what had happened from the perspective of a hypothetical reasonable person. An objective standard is applied. However, the personal characteristics of the claimant concerned are taken into account.
There are circumstances in which the duty of care may be held not to exist because it is not fair, just and reasonable that a duty applies. There are many longstanding exceptions to the neighbour principle. The principles of liability towards trespassers, the liability of sellers of second-hand properties, lessors, and owners of domestic animals and straying animals had long been established prior to Donoghue v Stevenson and remained largely intact.
In many cases, the courts have used the concept of foresight in order to limit recovery. They may determine after the event that such and such a type of liability or circumstance was or was not unforeseeable. They have tended to place limits on the kind of wrongful act which might be foreseen.
In the early common law, only the direct infliction of harm was recognised as founding civil liability. This remains in the separate principles of trespass liability.
Remedies for indirect or consequential harm, the precursor of negligence, developed later under different forms of legal action, including so-called action on the case. This was an action for redress of wrongs or injuries to persons or property not specially provided for by law, in which the whole cause of complaint was set out in the writ. Ultimately, the old forms of action were abolished.
Omission
Liability in negligence may involve an act or omission by the defendant. The failure to undertake a duty carefully or at all may constitute
negligence. The breach of a duty of care may be one of commission or omission. However, the failure to act by itself will not constitute negligence unless there is a duty to act arising from a special relationship or circumstances.
A bystander who does not help in circumstances where he could easily help has no liability. At common law, where the bystander actually assists, he might potentially be liable for negligence if he fails to act with due care, allowance being made for the circumstances. This position has been reformed to some extent by statute.
Duty to Act
In many circumstances, there will be a duty to act. In these circumstances, negligence may arise by omission.
Where a person has created danger, he will usually have a duty to act. Where the danger is caused by a stranger, the defendant may be liable where the stranger’s action is one which ought to have been contemplated.
Where there is a power but not a positive duty to act, there is generally no liability for failure to exercise the power, even if the damage is foreseeable.
The Civil Liability Act provided that a road authority should be liable for damage caused as a result of their failure to maintain adequately a public road. However, controversially the provision has never been commenced. Accordingly, the Roads Authority have remained liable for so-called misfeasance (careless repair of the road) but not for non-feasance (failure to repair).
Good Samaritan Legislation
So-called “good Samaritan” legislation was introduced in Ireland in 2011 in order to alleviate the anomaly that the so-called good Samaritan ran the risk of liability by intervention, which he could have avoided by failing to intervene.
A ‘good samaritan’ means a person who, without expectation of payment or another reward, provides assistance, advice or care to another person in an emergency. A good Samaritan shall not be personally liable in negligence for any act done in an emergency when providing assistance, advice or care to a person who is—
- in serious and imminent danger, or apparently in serious and imminent danger, of being injured or further injured,
- injured or apparently injured, or
- suffering, or apparently suffering, from an illness,
A good Samaritan is not liable in negligence for any act done in an emergency when providing advice by telephone or by another means of communication to a person (who is at the scene of the emergency.
The protection from personal liability conferred on a good Samaritan applies even if the emergency is caused by an act of the good Samaritan. However, the protection from personal liability conferred on a good Samaritan shall not apply to—
- any act was done by the good samaritan in bad faith or with gross negligence, or
- any act was done by the good samaritan when providing assistance, advice or care in circumstances where the good Samaritan has a duty (whether imposed by or under any enactment or any other rule of law) to provide such assistance, advice or care.
“Voluntary work’ means any work or other activity that is carried out for any of the following purposes:
- a charitable purpose within the meaning of the Charities Act
- without prejudice to the generality of the above the purpose of providing assistance, advice or care in an emergency or so as to prevent an emergency;
- the purpose of sport or recreation;
A ‘volunteer’ means a person who does voluntary work that is authorised by a volunteer organisation and does so without expectation of payment (other than reasonable reimbursement for expenses) or other rewards; A volunteer shall not be personally liable in negligence for any act done when carrying out voluntary work.
The protection from personal liability conferred on a volunteer shall not apply to any act done by the volunteer if—
- the act was done by the volunteer in bad faith or with gross negligence, or
- the volunteer knew or ought reasonably to have known that the act was outside the scope of the voluntary work authorised by the volunteer organisation concerned or contrary to the instructions of the volunteer organisation concerned.
An agreement, undertaking or arrangement has no effect to the extent that it provides for a volunteer to give a volunteer organisation an indemnity against or to make a contribution to a volunteer organisation in relation to a liability that the volunteer would incur for his or her negligence but for the above exemption and the volunteer organisation incurs as a result of its vicarious liability for that negligence.
Limits of Extent of Liability
There are limits to the kinds of harm for which a person may be liable in negligence. The harm must be of a kind which is foreseeable. A person is not liable for every consequence that a reasonable man could foresee. Some kinds of damage will not give rise to an action in negligence.
Where damage of a “foreseeable” type is incurred, the defendant will generally be liable for the full extent of that damage, notwithstanding that such damage or its full extent, might not happen in the normal course of things. This is sometimes referred to as the eggshell rule.
Liability for new forms of potentially foreseeable damage has been developed by the courts over the last 60 years. Liability for psychiatric injury, sometimes called nervous shock, is now firmly established. However, the courts have sought to employ principles to limit potentially open-ended liability for nervous shock arising from the trauma caused by the aftermath of horrific accidents caused by negligence.
Prior to 1964, recovery was not generally allowed for so-called pure economic loss. Economic loss has always been recoverable, where it follows from a physical loss to persons and/or property. In many negligence cases, there will be very substantial claims for economic loss arising as a consequence of serious personal injuries.
In the famous Hedley Byrne v Heller, the House of Lords allowed recovery for pure economic loss caused by negligent advice. The principle was quickly applied in Ireland. It is the cornerstone for liability for negligence in the provision of professional services.
Wrongful Life
A case in relation to a failed tubal ligation and subsequent birth, it was decided that it would not be fair or reasonable to impose on a doctor who negligently performs a sterilisation procedure with the cost of rearing a healthy child that is conceived and born subsequently to the failure of such procedure.” This “would open the door to a limitless range of claims related to every aspect of family life.” :
“… some comfort that, in arriving at this decision, the court is in harmony with the majority of decisions in the common law world. The vast majority of state courts in the United States, the courts of England and Wales, Scotland and a number of civil law courts are of like mind.
In Byrne v Ryan [2007] I.E.H.C. 207, Kelly J the plaintiff was awarded compensation where she gave birth to 2 children after a failed tubal ligation, notwithstanding a written consent concerning the risks that she may not remain or become sterile become or remain sterile.
“First, the document in its terms is a consent to the operation being carried out and the administration of an anaesthetic. It is not a consent to the carrying out of a failure; still less is it a consent to the carrying out of the operation in a negligent fashion. It merely records the plaintiff’s understanding that there is a possibility of failure. It might be possible to draft a form of consent which would exclude liability on the part of a doctor for negligent treatment but there is no attempt to do so here. In my view the consent executed by the plaintiff cannot be regarded as one which exonerates Dr. Murray in respect of his failure to effectively clip both fallopian tubes.”
“This is a case of the ‘emperor’s clothe’ here. Everybody was not facing up to the obvious that this woman had had a failed tubal ligation and that plan B should come into play and that her tubes should be checked or she should be offered sterilisation again. Everybody was hedging around the main issue that there had been a problem”.
An award was made for damages for having to undergo a second surgery and for the pain and suffering and inconvenience of pregnancy and childbirth. However the claim for the cost of raising the children was dismissed. The court considered that it would not be fair or reasonable to visit a doctor who negligently performs a sterlisation procedure with the cost of rearing a healthy child that is conceived and born subsequently to the failure of such procedure.” Such a decision “would open the door to a limitless range of claims related to every aspect of family life.” :
“… some comfort that, in arriving at this decision, the court is in harmony with the majority of decisions in the common law world. The vast majority of state courts in the United States, the courts of England and Wales, Scotland and a number of civil law courts are of like mind.
In Hurley Ahern v Moore [2013] IEHC 72 the negligent tubal ligation resulted in the birth of a child in a complex pregnancy in which the child was born with disabilities and died after six months.
Ryan J.
“I agree with Lord Hope that there is not a rigid timescale involved and that the question is one of remoteness of damage. Applying that test, I think that the period of [the infant]’s life has to be included. Obviously, the dreadful trauma of [his] illness and death would not have happened absent the defendants’ negligence but I do not think that is sufficient … It is arguable that such period is to be taken into account on the ground of foreseeability. But tragic events like that do happen with pregnancies. However, on a test of remoteness as advanced by Lord Hope, it seems to me that the post-natal six month period is and must be properly included.
I think it would be difficult to justify a rule that cut off recovery in respect of tragic and affecting circumstances that framed and exacerbated the recoverable pain, suffering and inconvenience. The experiences that followed and resulted from the negligence in this case were a continuum. That might not arise in other circumstances; no two cases are the same, as a review of the permutations of facts in the cases reveals. The defendants were negligent. The plaintiffs suffered injury, loss and damage as a result. It would be illogical as well as unjust to deny recovery of any damages or indeed of any significant part of the damages. The traumatic experiences and losses are in principle recoverable and there is no countervailing consideration in this case. The injury, pain, suffering, inconvenience, disappointment, nuisance and mental distress must together be taken into account. They arise from the defendants’ wrong and amount to or are intimately associated with the compensatable injuries and furnish the context of the suffering that resulted.”
Reckless Lending
The courts have rejected a range of claims raised by borrowers to resist applications for judgement for monies owed. The courts confirmed that generally banks do not owe a duty to a borrower. There is no tort of reckless lending.
The courts have rejected the argument that there is a tort of reckless lending on numerous occasions.
In Irish Life & Permanent Plc t/a Permanent TSB v O’Mahony [2015] IECA 98
“fails completely for the reason submitted by the Bank, namely that there is no tort of reckless lending. There is no authority for the proposition that because with the benefit of hindsight a loan ought not to have been made to the borrower the amount thereof is irrecoverable. It is an unarguable point.”
In Allied Irish Banks Plc v Pierse [2015] IEHC 136,
“Where a bank assumes the role of financial adviser to its customer, it owes the customer a duty to exercise reasonable care and skill in the execution of that role. However, a bank does not usually assume the role of financial adviser to a customer who merely approaches it for a loan or for some other form of financial accommodation. As Scott LJ said in Lloyd’s Bank Plc v Cobb ([English Court of Appeal,] 18th December 1991):
‘…the ordinary relationship of banker and customer does not place on the bank any contractual or tortious duty to advise the customer in the wisdom of commercial projects for the purpose of which the bank is asked to lend money. If the bank is to be placed under such a duty, there must be a request from the customer, accepted by the bank, or some other arrangement between the customer and the bank, under which the advice is to be given.’”
In the instant case, there had been no suggestion that the defendants had asked the bank to act as their financial or investment adviser either in relation to the concluded agreement to purchase the foreign properties or in respect of the concluded land sale agreement.
It was argued on behalf of the defendants that the bank owed them a duty of care whereby it was obliged to refuse to provide them with the bridging finance that they were seeking as the bank was, or should have been, aware that the developers were unlikely to complete the purchase of the lands because of their “poor financial position” at that time. Keane J., on “uncontroverted evidence”, found no factual basis for this contention, adding:
“Accordingly, the novel argument advanced on behalf of the defendants – that a bank is under a duty to decline a customer’s application for finance in respect of any transaction in which another customer is involved if there is any basis for any concern on the part of that bank regarding the financial position of that other customer – cannot avail the defendants in the circumstances of this case, even if it were accepted as a correct statement of the position in law. For that reason, I do not propose to express any view upon it.”
Preventing Suicide
The duty of care may extend to psychiatric care. In cases where there has been negligence on the part of an institution in diagnosing and taking steps on foot of risks such as suicide such as admission to psychiatric care there may be prospective liability for breach of duty. However since detention will be rare in the context of psychiatric illness such liability will be rare.
Orpen v Health Service Executive [2010] IEHC 410, O’Neill J the dependents of a man who had committed suicide sued the HSE. He had come to A&E the having taken an overdose. He indicated he was depressed but indicated regret at his this action and that he would not attempt suicide again. He was to attend again the following day but indicated he had a work commitment. He committed suicide later that day. The claim was dismissed.
The duty of care may extend to psychiatric care. In cases where there has been negligence on the part of an institution in diagnosing and taking steps on foot of risks such as suicide such as admission to psychiatric care there may be prospective liability for breach of duty. However since detention will be rare in the context of psychiatric illness such liability will be rare.
Orpen v Health Service Executive [2010] IEHC 410, O’Neill J the dependents of a man who had committed suicide sued the HSE. He had come to A&E the having taken an overdose. He indicated he was depressed but indicated regret at his this action and that he would not attempt suicide again. He was to attend again the following day but indicated he had a work commitment. He committed suicide later that day. The claim was dismissed.
Insurer Non-Contractual
In Brennan v Flannery [2013] IEHC 145 the National House Building Guarantee Co Ltd was held not to be liable beyond the terms of its guarantee for defects in a house whose builder was a member of the scheme.
Dunne J.
“I can see nothing in the Homebond literature, the Homebond rules, the guarantee or the final notice HB11 that precludes Homebond from registering a property which is either being built or has been built.
Homebond has expressly excluded liability in clause 4(b) of the agreement where it was provided:
‘That the company, its servants or agents shall have no liability arising to the purchaser in respect of any claim for damages relating to any act or omission in or about any proceedings relating to the dwelling and shall have no liability in respect of any negligence or default in inspecting or failing to inspect the dwelling …’
There is simply no relationship of any kind between the plaintiff and Homebond prior to the signing of the Homebond guarantee and there is simply no evidence at all to the effect that any representation was made by Homebond to the plaintiff over and above the express terms of the Homebond Guarantee …
I accept the submissions of counsel on behalf of Homebond as to the applicable law herein. In all the circumstances of this case, I cannot come to the conclusion that the plaintiff has established that Homebond owed a duty of care to the plaintiff giving rise to liability for all the defects in the dwelling house as contended for by the plaintiff.”
Hu v Duleek Formwork Ltd [2013] IEHC 50, Peart J. rejected the claim that an insurance company owed a duty to a claimant against the insured party. The claimant was employed by the insured which was a company in liquidation. He was awarded damages against the company but could not recover it as the company was obliged to pay the excess as a precondition in making a claim
“Sympathy is an insufficient basis for determining whether or not negligence would provide a reasonable cause of action against Aviva. In order to plead negligence there would have in the first instance to be a duty of care owed to the plaintiff of the kind argued for, and then a breach of that duty of care causing loss and damage to the plaintiff. I cannot see that Aviva are under a duty of care to this plaintiff to ensure that he is provided with information as to whether or not the insured has complied with the conditions of his insurance policy with Aviva. The contract is with the insured person, and rights exist in both directions arising from that contract. But I fail to see any basis for any third party duty of care as asserted by [counsel for the plaintiff]. If such a duty of care was owed to this plaintiff, the question arises as to whether the same duty is owed to other potential claimants under the policy of whose existence Aviva may not even be aware if proceedings have not been issued. How would such a duty of care be fulfilled? But I do not believe that Aviva is in a position of proximity with potential claimants as to be liable for a duty of care to them. The class of persons to whom such proximity would exist is too vague and uncertain.
There have been classes of relationship where a duty of care has been found to be owed on the basis of sufficient proximity. For example, where a solicitor is instructed by a client to prepare a will, he can be liable to a person who, but for the solicitor’s negligence, would have been a beneficiary under the will upon the death of the testator, even though that beneficiary is not the solicitor’s client and is not in any contractual relationship with that solicitor. But I know of no case where the Courts have found a duty of care to exist between an insurance company and a potential claimant against the insured party, and have been referred to none. It would not be right in the present case in such circumstances to extend the law that far, so as to find that the plaintiff might reasonably argue his claim against Aviva under the law of negligence.”
Duty to Rescuer
O’Neill v Dunnes Stores [2010] IESC 53.
O’Donnell J. criticised the lack of evidence on the established practice of security guards. He indicated the fact that the security guard had had to call on members of the public to assist was
“… the clearest possible indication that, if there was any system in place on the evening, it had gone badly wrong. In the absence of evidence of common practice it may not be possible to say with certainty that there ought to have been another security guard to assist the security guard in difficulty, but there certainly ought to have been someone available to assist him. The image of the two-way radio which was useless because there was no one to communicate with, is itself telling. It is clear that there were managers on duty … and that some managers could have assisted the security guard in difficulty if alerted to the situation. It seems clear that there ought to have been a more effective and immediate method of communication with managers than having to resort to asking a passing cleaning lady to call them … I consider that the trial judge is entitled to come to the conclusion that this state of affairs was unreasonable and, if necessary, amounted to 608 the type of ‘folly’ which Lord Dunedin identified more than 100 years ago in Morton v William Dixon Ltd 1909 SC 807.”
“the risk of some struggle, violence and perhaps injury, was an inescapable part of the job. It was therefore entirely foreseeable that if a security guard was put in a situation requiring assistance and was obliged to seek assistance from a member of the public, and if that member of the public responded, then he may well have been injured in offering assistance. In this regard I think it is irrelevant that the precise nature of the savage attack … May not have been foreseen: it is enough that the type of damage – here physical injury caused by an attempt to restrain a wrongdoer – was readily foreseeable.”
“This analysis also disposes of the argument that the peril giving rise to the need for rescue was not caused by the defendant, but rather by the wrongful act of a third party. Because this case involves the complication of third party wrongdoing, it is I think necessary to consider whether the defendant was a cause, rather than necessarily the proximate cause if any, of the plaintiff’s injuries, as long as the wrongdoing itself was the very thing which was to be anticipated as a result of the defendant’s negligence.”
References and Sources
Irish Books
Tully Tort Law in Ireland 2014
McMahon & Binchy Law of Torts 4ed 2013
McMahon & Binchy Case Book on the Law of Torts 3ed 2005
Connolly Tort Nutshell 2ed 2009
Quill Torts in Ireland 4ed 2014
Fahey Irish Tort Legislation 2015
Healy Principles of Irish Torts 2006
EU and UK Texts
Lunney, M. and K. Oliphant Tort law: text and materials. 5ed 2013
Peel, Edwin, Goudcamp, James Winfield and Jolowicz on tort 19 ed 2014
Horsey, K. and E. Rackley Tort law. 6ed edition 2019
Deakin, S., A. Johnson and B. Markesinis Markesinis and Deakin’s tort law 7ed 2012
Giliker, P. Tort 5ed 2014
McBride, N.J. and R. Bagshaw Tort law 6ed 2018
Steele, J. Tort law: text, cases and materials 4ed 2017
O’Sullivan, J., J. Morgan, S. Tofaris, M. Matthews and D. Howarth Hepple and Matthews’ tort: cases and materials 7ed 2015
Horsey, H. and E. Rackley Kidner’s casebook on torts 13ed 2015
Clerk & Lindsell on Torts 22ed 2019
Charlesworth & Percy on Negligence 14ed 2019