Capacity
Minors
The principles applicable to negligence and contributory negligence on the part of children are broadly the same as those which apply to persons of full age. There have been few reported cases where negligence on the part of children has been a central issue.
Children are potentially liable for their civil wrongs from a very young age. Cases have held that a child may be liable for his voluntary actions, from as young as seven years and possibly younger. As children reach the age of seven and upwards, they are generally expected to look out, at least to some degree, for their safety and that of others, having regard to their age and capacity. This is so, even in the case of trespass, which requires some element of intent or voluntariness.
Most courts have preferred a subjective approach. They have regard to the age and mental development of the child and the circumstances, in judging whether the child is capable of negligence or contributory negligence. Other courts have taken an objective approach and have regard to the standard that should be expected of a child of that age, having regard to his education and background. This contrasts with the objective approach, which looks more at the child’s individual capacity.
Contributory negligence may arise in relation to children. A child of sufficient years of almost any age, regardless of his mental development, is expected to take some precautions for himself. Provided he is beyond the so-called tender years, then he or she will be capable, in principle, of contributory negligence. It will then be a question of whether the child has, in fact, failed to meet the standard that might reasonably be expected of him in the circumstances.
It appears that a child of very tender years, such as those below four years of age, is incapable of contributory negligence. However, age is not the key determinant. There have been cases where children aged four and five have been held to be capable of contributory negligence, where they have failed to take due care.
Contrast with Contract and Reform
The Infants Relief Act, which invalidates most contracts to which children are purportedly party, does not apply to civil wrongs. Where torts/ civil wrongs (technically) arise out of a contract and runs parallel to the contractual obligation, children will not be liable under the Act. Where, however, there is an independent tort / civil wrong, even with a contract in the background, the Act does not apply.
The Law Reform Commission has issued a report on the liability of minors in tort and has looked at issues of minor’s negligence and contributory negligence. The Commission favoured the subjective test. This appears to have had the most support in such cases as exist on the matter in Ireland. The Commission proposed that the subjective standard should not apply to persons aged 16 and older.
Mental Capacity
In the case of persons who lack mental capacity, tort / civil wrong liability may arise depending on the degree of intentionality, carelessness or voluntariness required by the particular tort. It appears that in the case of wrongs that require specific intent, a person’s mental condition may deprive him of the capacity to form this intention.
In the case of trespass, whether to goods, land or persons, the degree of intention required is minimal. Although trespass is said to encompass a group of intentional civil wrongs, it is enough that the person is aware of what he is doing and that the action is voluntary. In some other cases, such as malicious prosecution, specific intent is required.
The defendant need not intend the actual consequences of what he does nor even know that what he is doing is wrong. It is enough if he is aware of the nature and the quality of what he has done. Therefore, short of where a person is acting involuntarily, such as in the case of automatism, tort law is likely to hold him liable.
Commission Proposals
The Law Reform Commission published a report on liability for the civil wrongs of mentally disabled persons in 1985. In relation to trespass, the Commission recommended that where the defendant was so affected by mental disability, so as to lack substantially the capacity to act freely and as a result of this incapacity, did the act complained of, he should not be held liable. This is on the basis that he would be otherwise liable for acts equivalent to involuntary actions.
However, where the conduct was voluntary, the Commission proposed that he could be relieved of liability where his disability was such as to prevent him from acting with the purpose of bringing about the effect in question.
In the case of negligence or contributory negligence, the Commission recommended that a person should be liable unless he could establish that at that time in question, he was suffering from a serious mental disability, which affected him in the performance of the act and that this disability made him unable to behave according to the standard of care appropriate to a reasonable person.
Corporates
Companies may sue and be sued and held liable for torts / civil wrongs in much the same way as an individual. The company or corporation itself will usually have the state of mind and actions of its senior officers and controllers imputed to it, for the purpose of tort laws.
Certain civil wrongs cannot be perpetrated on companies, due to their inherent nature as intangible corporate bodies. Companies and other corporate entities are incapable of suffering personal injury or assault.
Companies are entitled to the protection of their reputation, property and assets. Companies can sue in respect to defamatory statements. They may suffer serious loss and indeed more financially serious reputational damage than an individual.
Companies are vicariously liable for the acts of their employees. Many civil actions are taken against companies and corporate entities arising from negligence and breach of duty by their employees.
Corporate Identity
In Adigun v McEvoy [2013] IEHC 342, Hedigan J held that the claimant did not have the capacity to make a claim against solicitors in respect of an alleged breach of duty to a company of which she was director.
No corporate entity intervened between the solicitor and the legatee in Wall. One does exist herein. Here, if the client was in fact the company and not Mr. Adigun then no privity exists between him and its solicitors. The fact Mr. Adigun stood to benefit from whatever monies came the company’s way does not establish a duty of care between the solicitors for the company and him. He is in no stronger or weaker a position than any other member of the company … [H]e was never the client. His instructions were given on behalf of the company and in his capacity as its artistic director. Thus, in my judgment, he has no locus standi to sue the defendants because no relationship of solicitor and client ever existed between him and these defendants.”
The courts will not readily import duty of care to the shareholder of the company were services provided to the company itself.
. No corporate entity intervened between the solicitor and the legatee in Wall. One does exist herein. Here, if the client was in fact the company and not Mr. Adigun then no privity exists between him and its solicitors. The fact Mr. Adigun stood to benefit from whatever monies came the company’s way does not establish a duty of care between the solicitors for the company and him. He is in no stronger or weaker a position than any other member of the company … [H]e was never the client. His instructions were given on behalf of the company and in his capacity as its artistic director. Thus, in my judgment, he has no locus standi to sue the defendants because no relationship of solicitor and client ever existed between him and these defendants.”
Unincorporated Entities / Arrangements
Partnerships may sue and be sued in their partnership name under rules of court. Partners are jointly and severally liable for the civil wrongs of their partners which occur in the course of the company’s business. They are also vicariously for the civil wrongs of their employees.
Clubs and other unincorporated associations, which are not separate legal persons, cannot sue or be sued as common law. The rules of court provide that where numerous have an interest in the same manner, one or more may sue or be sued or may be authorised by the court to defend any claim or matter on behalf of, or for the benefit of all the persons with an interest. This does not allow a class action in the sense allowed in other jurisdictions.
The general principle is that a person may not sue a club, of which he is a member. The rules have caused injustice on occasions. The courts have sought to avoid the principle where possible. Where clubs have not followed their own rules in terms of admission of members, the courts have been willing to find that a claimant who has suffered an injury is not a member for the purpose of the rules.
Some bodies have a status equivalent to that of companies under various pieces of legislation. Trade unions are not incorporated, but legislation provides that they may sue and be sued once registered. Although they’re not established by law as a corporation, they are regarded as having a separate legal identity and have been so recognised by the courts.
Club Membership Lapse
In McGroarty v Kilcullen [2021] IEHC 679, Hyland J. accepted that a claimant who had lost the finger in assisting in building works in the golf club was no longer a member and therefore not precluded from suit because his membership had lapsed for non-payment of subscriptions
“It is true that sub rule (d) restricts a member from entering club competitions or representing the club on any team playing inter-club tournaments until payment is made, and sub rule (e) restricts a person whose subscription shall be unpaid on 31 January from using the facilities of the club. If sub rule (e) stopped at that point, it would be quite logical to construe the consequences of non-payment by 31 January as being the non-participation on teams or in competitions and the withdrawal of permission to use the facilities. However, sub rule (e) goes on to state quite clearly that membership is deemed to be terminated and as identified above, these words are so unambiguous that they cannot be ignored.
In summary, it does not appear to me that there is any ambiguity in sub rule (e) or any inconsistency as between sub rules (d) and (e). The fact that in practice the plaintiff was permitted to enter club competitions and represent the club on teams playing interclub tournaments without having paid his subscription simply means that the club was not applying its own rules. It does not mean that the rules are themselves inconsistent.”
It was alleged that the rules had been changed by the practice of the members
“To accept this argument would mean that the way of ascertaining the rules on subscriptions in the club would be to identify current practice. Current practice may vary from member to member, from year to year, and from committee to committee. There would be an entire lack of certainty as to the rules of the club in relation to subscription payments and members would be left in a position of complete uncertainty as to their rights and obligations in this regard. It would also undermine the club’s ability to enforce its extant rules on subscriptions, thus preventing it from restricting non-paying members from playing in competitions, from using the facilities of the club, and from excluding them for non-payment. This would clearly be a highly unsatisfactory situation for the club.”
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 2015B
Clerk & Lindsell on Torts 22ed 2019
Charlesworth & Percy on Negligence 14ed 2019