Law of Tort – negligence – law notes for accounting and law students from Holland Condon solicitors Kilkenny

Jan 13, 2015

Law of Tort  (Negligence)

Civil Law side; mainly Common Law; some Statute & EU

Tort – French = Wrong

– TORT = defined as the Law of civil wrongs.  It’s about preventing one individual from hurting another individual’s Property (e.g. trespass, nuisance) // Wellbeing (e.g. negligence, civil assault) // Reputation (e.g. defamation).

– arises where no contract between parties as if there was, you would sue in contract e.g. accident involving passenger in car = passenger sues driver in negligence –v- passenger in taxi = sues driver in contract and/or negligence.

 

– NEGLIGENCE is defined as

Unintentional breach by one party of a legal duty to take care that causes loss or damage to the injured party.

Plaintiff must prove on the balance of probability*to succeed in their case Four Elements as seen in the definition :-

  1.  Duty = Defendant owed Plaintiff duty of care;
  2. Breach = Defendant breached that duty;
  3. Causes = causation – breach causes plaintiffs loss;
  4. Damage/Loss = the damaged suffered should have been reasonably foreseen by Defendant i.e. damage not too remote

*  compare this with criminal law

 

1. Duty

Question that needs to be answered in the affirmative = Did the defendant owe the Plaintiff a duty of care?

We have a duty of care to our neighbour à “the neighbour principle”

NB      Donoghue v Stevenson (1932) UK case – opaque bottle.  Plaintiff became seriously ill.  Defendant argued no duty or care owed to Plaintiff as Plaintiff had not bought the bottle, so no contractual duty owed to plaintiff.

HELD: – Defendant owed duty to people he could reasonably foresee would consume the product.

Quote Lord Atkins.

 

Very broad definition of who a neighbour was so most defendants were being caught, some would say unfairly. Courts, therefore, refined the definition and created a modern day test in Caparo Industries plc v Dickman (1990); 3 more questions added =

  1. Was it reasonably foreseeable that the defendant’s action would cause harm?
  2. Is there sufficient proximity between the parties?
  3. Is it fair, just and reasonable to impose a duty on the defendant?

 

  1. Breach of that duty

In order to determine a breach the Court must establish the level of care owed to the Plaintiff, known as “standard of care”; and then, examine did the defendant meet that level.

Generally what a “reasonable man” would do.  Irish Courts have said “reasonably careful man”.  Factors taken into account are: –

  • Probability of causing damage – the greater the chance that damage or loss will occur then the higher the standard O’Gorman v Ritz (Clonmel) Ltd;
  • Seriousness of the likely damage – the more serious the damage your action could cause, then the higher the level of care expected Paris v Stepney;
  • Issues of costs and practicalities – Latimer v AEC Ltd;
  • Social value of Defendants actions – e.g. rescuers WATT v Hertforshire Co Co.

 

  1. Defendants act or omission caused the Plaintiff’s loss/damage [causation]. Test used = the Plaintiff would not have suffered this loss/injury “but for” Defendant’s breach.

If multiple factors involved in causation, then, ask which one materially contributed.

“But for” test see Barnett v Chelsea Hospital.

 

  1. Damage reasonably foreseen = reasonably expected -v-     The Wagon Mound case.  Turner v Irish Rail

 

 

 Defences to Negligence Claim

*Volenti non fit injuria – voluntary assumption of risk; Regan v Irish Auto Club; consent of the Plaintiff e.g. in sport;

* Illegality – Cummings v Granger

* Statute of Limitations Act, 1957: – The Plaintiffs claim is statute barred after a certain period of time e.g. 2 years for personal injuries. In other torts it’s between 4-6years to make claim.

* Inevitable Accident – Stanley v Powell.  Defendant’s bullet ricocheted off a tree and injured Plaintiff.  Defendant not liable.

* Necessity – a negligent act is done to avoid a more serious one.

* Novus Actus Interveniens – intervening act of a third party really caused the accident e.g. Conole v Redbank Oyster Comp.  The Defendants had a ship built that was unseaworthy.  Captain was aware of this at the launch and despite this brought 50 children out to sea; capsized and a number drowned.  The ship builders could not be blamed for negligently building unseaworthy boat.  Sole cause = Captains recklessness.

* Good Samaritans – Part 3 of the Civil Law ( Miscellaneous Provisions) Act, 2011 provides that good samaritans will be protected from personal liability in negligence when providing assistance in an emergency. Volunteers in organisations set up to assist can also avail of this protection.

* Contributory Negligence: – Plaintiff contributed to his loss. So it’s a partial defence ( i.e. not a full defence).  Sinnott v Quinnsworth – Plaintiff award down 15% as no seat belt worn.                        Jones v Livox Quarries

 

 Remedies

Objective = To compensate victim not to punish the wrongdoer;  Return Plaintiff to position they were in had the negligence not occurred;

 

Categories: –

DAMAGES –

  1. Special Damages e.g. car repair bill; gp bills = actual expenses
  2. General;
  3. Aggravated;
  4. Exemplary or Punitive;
  5. Nominal;
  6. Restitution – based on damages – if Defendant has profited from his wrong, then Court will prevent unjust enrichment to the Defendant by awarding profit to Plaintiff.

 

INJUNCTIONS-

  1. Used in areas like nuisance, defamation

 

Negligence can be divided into various categories e.g.

  • Product Liability;
  • Occupiers Liability;
  • Employers Liability;
  • Public Liability
  • Professional Liability.

 

Professional Negligence

 

A professional person, such as a doctor, dentist or solicitor, owes a duty of care to his/her client. One cannot use the standard of care of a “reasonably careful man”. The standard is that which would be exercised by a reasonable professional holding similar qualifications.

The distinctive feature of professional negligence is the account which the Courts take of customary practice.  If a member of the profession can show that he or she has adhered to customary practice of his/her profession, generally no breach of duty will be found.  However, if it can be shown that the customary practice is itself inherently defective, so much so that it should not have been blindly followed, the person may be found guilty of professional negligence.

 

Solicitors

Solicitors owe a duty of care to their clients but also to the other persons whom they can reasonably foresee would be affected by their negligence.

Wall v Hegarty (1980)

The Defendant was a Solicitor who had been instructed by a testator to draw up his will to include gifts to the Plaintiff, his sister-in-law.  The solicitor failed to advise his client that beneficiaries under the will could not witness the will and the question for the Court was first, whether this was negligent behaviour or second, whether the solicitor owed a duty of care, not just to his client, the testator, but the Plaintiff as beneficiary under the testators will.  In other words, the question was whether there was a sufficient degree of proximity between the solicitor and the beneficiary to impose a duty on the solicitor to take reasonable care to protect the interest of the beneficiary.

 

It was held by the High Court that the solicitor did owe such a duty to the beneficiary to draft the will with reasonable care and skill as the solicitor knew or ought to have known that if he failed in his professional duty to properly draft the will there was a risk that the beneficiary would suffer damage.

 

The test is often described as a test for whether an individual knew or ought to have known that carelessness on his party would be likely to cause damage to another person.  This is often seen in professional negligence cases where what is relied on is the skill of someone else.

 

Accountants

Accountants also owe a duty of care to any person whom they can reasonably foresee will be relying on their work or advice.

Golden Vale Co-Operative Creameries Ltd v Barrett (1987)

The Plaintiffs claimed damages for negligence and breach of contract against the Defendants, a firm of accountants, which had been investigated on the Plaintiff’s behalf the affairs of a poultry company.  They had provided information designed to assist the Plaintiffs in reaching a decision as to whether they should participate in a rescue operation to keep the poultry company in business.  The Plaintiffs claimed that they had been induced by the Defendants report to sink £1,000,000 in the poultry company, which they lost when it went into liquidation shortly afterwards.

 

The Court found that the fact that senior officials of the Plaintiffs organisation were eager to be told that they could push ahead with the takeover without too much risk placed an ever greater onus than usual on the Defendants “to exercise a restraining influence over their client and to couch their report in terms which could be justified objectively in every respect”.  The Court found that while the report contained all kinds of reservations, the overall impression created by certain extracts was “much more encouraging than was warranted” by the trading and financial state of the poultry company as known to the Defendants.

 

On the other hand, the auditors in the following case escaped liability on the basis that they could not foresee that the Plaintiffs would rely and act upon the figures prepared by the auditors.

Kelly and Others v Haughey Boland (1987)

The Plaintiffs were directors of Cavan Crystal Ltd, who entered into an agreement to purchase Royal Tara China Ltd.  Before they finalised the contract they were given the audited accounts for Royal China Tara Ltd., for 1973 to 1976, which accounts had been prepared by one of the partners of the Defendant firm as auditors.  The Plaintiffs, having completed the purchase of Royal Tara Ltd. became aware of certain production difficulties which the company was experiencing and brought an action against the accountants saying that the stock figure had been over-stated and that figures produced showed a misleading view of the trading position of Royal Tara Ltd., at the date of purchase.

 

It was held by the High Court that the auditors had not exercised reasonable care in the preparation of their figures.  However, at the time the figures were prepared the auditors could not reasonably have foreseen that the business of Royal Tara could be sold and so could not owe a duty to the Plaintiffs, as intending purchasers, or to intending purchasers in general.  The Court further held that the Plaintiffs had not been able to show a direct link between the carelessness of the Defendants and the loss which they claimed they had suffered in purchasing a company which was worth less than they had thought.

 

– Holland Condon solicitors based in Kilkenny

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