Liability in Negligence (Part 1)

Liability for Negligence

24 September 2021

Duty of Care and Neighbour Principle

The famous case of Donoghue v Stevenson (which was quickly accepted in Ireland) held that a manufacturer of a product owed the duty of care to the user. The product must not be so defective that it causes injury to those who may be expected to use in the ordinary course of things.

The leading judgment articulated the famous “neighbour principle”.  A person was said to owe a duty of care to his neighbour.  His neighbour was somebody whom might reasonably be foreseen, to suffer loss or damage by reason of his breach of duty.

The so-called neighbour principle was stated to be the common factor in the cases where a duty of care existed.  One must take care not to injure one’s neighbour.  A neighbour is anyone who is so closely and directly affected by an act that you ought to have them in contemplation when you act.   It has been said that the statement is not intended to be a general principle covering all circumstances.  Where the duty of care is proposed in new circumstances, a policy or principle analysis is required.

The Donoghue v Stevenson case is important in that it removes the principle that a person could not be liable in negligence, where a contractual relationship existed.

Open Nature of Negligence

The concept of a duty of care is coterminous with the situations where the law imposes liability. Where a person is liable for negligently causing damage to another, he is said to owe a duty of care to that other.    The concept of negligence has been criticised as adding very little by the way of insight, into the dividing line between cases where liability is imposed and cases where it is not imposed.

Negligence is unique amongst the torts, in that is framed in very general and open terms. To some extent, it begs the question. In the case of other torts, the courts do express liability in terms of whether or not there is a duty to commit the tort.

Liability for negligence requires damage.  A breach of duty has no legal consequence, until actual damage occurs.   It has been said that the duty to take care is more appropriately categorised as a duty to avoid causing damage by lack of care.  The duty of care, even in this case means little more than that the person will be liable for causing damage negligently.

The somewhat tautologous nature of the legal concept of negligence, has caused the courts over the last 40 years to become more explicit, in articulating the policy considerations and reasons in imposing liability for negligence.  In the 1970s and 1980s, policy considerations were specifically identified in superior courts judgments on negligence in novel cases.

Policy v Principle

In the 1990s, the courts rejected the express use of policy considerations, as inconsistent with the role of the judiciary. They reverted to the more traditional means of legal analysis, by reference to rules and principles. Instead of reference to policy, they considered whether it was fair and reasonable to impose a duty.

In practice, there may be  little distinction between discussing the scope of liability for negligence issues in terms of principles or policy. The courts are reluctant to explicitly assume of making policy.  This is the function of the legislature.

After struggling with the potential breadth and open ended nature of negligence and how to frame its limitations, the courts have reasserted the traditional position. New cases and types of liability for negligence should develop by analogy with existing cases for negligence.  Development should be incremental and evolutionary. It should not proceed by way of new  broad principles, which have wide-ranging and sudden effects.

Paridigm Claims in Negligence

Many, if not most negligence actions, arise from road accidents.  Liability for negligence in such accidents has been recognised for several hundred years, long before the era of the motor car.  A duty of care is owed by users of the highway to each other, whether pedestrian, horse drawn carriage, cyclist or motor car.

If a person by positive action, negligently causes physical injury or damage, liability is very likely to be imposed.  A person must foresee or is taken to foresee that if he acts negligently, particularly in the use of a motor vehicle and causes injury, then a duty of care is likely to be found to exist.

Famously, Donoghue v Stevenson confirmed the liability of a manufacturer for personal injuries, where goods were bought without the possibility of intermediate examination. The Products Liability Directive and implementing legislation introduced EU-wide rules on the  liability of manufacturers and importer of defective products. Strict liability (subject to limits) applies  where the defects cause personal injury or property damage.

The imposition of liability on road users, employers and manufacturers has a logic from a loss allocation perspective.  They are assumed better able to carry the loss.  In England and Wales but not in Ireland, there is compulsory insurance for employer’s liability.  In the Republic of Ireland, employer’s liability is usually obtained, although not a legal requirement.  Liability insurance is mandatory in respect of the use of motor vehicles.

Occupiers

The law relating to occupier liability was formerly subject to special rules.  In the 1970s, the Irish courts removed the older rules and assimilated them into the general principles of negligence.  1995 legislation has modified the duties of the occupiers of land.

An occupier of land, the owner or the tenant in possession, owes a common law duty of care to visitors.  He may be liable for physical injury arising by reason of his breach of duty; negligence.

Public liability insurance, is commonly available and is held by most commercial businesses, in respect of occupiers and related liability.  It may be available on household insurance policies in some cases.

Erosion of Common Law Exclusions

Industrial or workplace accidents are another common source of negligence claims and liability.  A number of now defunct legal doctrines, were used by the courts to limit the liability of employers. The doctrines of common employment, deemed consent and contributory negligence greatly reduced the possibility of employees successfully suing employers. These doctrines have been reversed or repealed by the courts or the legislature.

At common law, the landlord or vendor of a defective premises had no liability to tenants, buyers or others. The scope of negligence was  expanded to provide for liability in relation to building and construction works.  Latterly, the initial high water mark, receded somewhat.   In England and Northern Ireland, defective premises legislation was introduced in the 1970s to express and regulate the duty.

Accidents caused by the failure to repair the roadway were subject to a common law exclusionary rule.  This was abolished by legislation passed in 1961, but the legislation was never commenced and is not likely to be commenced.

Accordingly, liability is excluded for “nonfeasance”. There is and has been for many years, liability for misfeasance in the repair of the highway. This is liability for negligence in the repair of the highway.

In the 19th century, various exclusionary rules existed in respect of liability for  negligent acts. Liability for negligence causing  physical injury and damage to the property of the claimant was allowed in many circumstances. However,  the courts did not allow liability for pure economic loss or mental distress by themselves.

Intangible Injuries

The courts have long allowed damages for mental distress and pecuniary loss which follows from physical injuries or property damage. This includes pain and suffering, knowledge of shortened life expectancy, discomfort, inconvenience. Such losses are commonly recovered by a person who has been  injured in a motor accident caused by the negligence of another.

Liability for mental distress, not caused by physical injury began to  develop in the late 19th century.  The cases have been conceptualised in terms of the general duty of care.  The cases on mental distress emphasised proximity to a greater extent.  The courts sought to prevent the opening of the flood gates by seeking to limit liability within bounds.

The courts also limit recovery for mental distress to recognisable psychiatric illness and effects.  Recovery is not allowed for mere grief, humiliation, unhappiness, outrage of itself. This is described as nervous shock.

Historically, there was no recovery in negligence for a pure economic loss.   The courts took the view that the law of contract or restitution should cater for such losses, or  that the loss  should lie where it falls.  Many such losses could be insured against, by the businesses themselves,  including business interruption risk.

In the last 40 years, there has been pressure to expand the law of tort in cases of pure economic loss.  Such cases have generally arisen from so-called negligent misstatement, which embraces negligent representations and professional negligence in giving advice.

Omissions I

The law of negligence does not usually impose liability for omissions,  in the absence of  a pre-existing relationship or duty.  However, if a person without an obligation to do an act, does an act even gratuitously, he may be liable for negligence in so doing.

The common law position was reformed by Civil Law (Miscellaneous Provisions) Act 2011. The Act remedies the injustice of the so-called Good Samaritan, who suffered liability for negligently as a result of  intervening to assist a person, in circumstances  where he would have had no liability, had he not intervened at all.

A person may be liable for omissions in many circumstances.  In the context of professional negligence, the omission to correctly diagnose or undertake the relevant service, may constitute negligence.  A person who digs a hole into which a visitor falls, may be liable for failing to give warning.  A person who drives across the road without signalling might be categorised as making and omission on one sense. However, this is better described as (at least) negligent driving.

A person is not generally bound to act, unless he has agreed to do so for an agreed consideration.  However, he must abstain from causing damage by negligence, whether or not he has agreed to do so, or is paid for doing so.

The concept of a duty may be employed to render a person liable for negligence, by way of omission.  A person may have a duty to control an animal under his control.  He will usually have a duty to persons with  whom he is in a close familial relationship, to save them from harm.

The implicit policy of the law leans against affirmative duties to avoid omissions.  Generally, a person is free to act and do as he wishes, notwithstanding that he could easily do something to alleviate risk and harm to another.  The law  does not usually demand that persons do something, which may be burdensome and costly.

Omissions II

General liability for omissions  would raise difficult questions of principle. Difficulty arises in terms of the class of persons, who might be liable for  loss caused by an omission. If there was such general liability, there may  be a range of persons, who might be liable. In contrast, with an action, the person who may be liable, can be readily identified. Conceptually, it is easier to identify a person who has caused loss or damage by positive action than by omission.

Historically, where a person voluntarily commenced to do something which he did not owe any duty to do, he assumed a duty of care.  Some cases suggest that where he does so negligently, he may not be liable, provided that he has not made the position any worse.

Where a person has others under his control, such as children, then he may be liable for the consequences of their behaviour  if he fails to control them.  This is no a general principle.  Similarly, persons in control of prisoners, hotels, jails, schools, have an obligation to exercise some degree of control over residents and inmates.

Liability for omission may be readily imposed, where there has been a failure to control.

Where a person has responsibility such as a parent, he may be negligent for failing to obtain medical treatment or failing to maintain the child.

The basis of occupational liability is that where a person is in control of a property, it is reasonable that he undertakes responsibilities as well as rights.  Insurance against public liability is readily available.

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