_______________________________________________________________________

TORT
1 Background
It comes from the Latin Tortum / the French avoir tort and means a wrong.
It is a civil as opposed to a criminal wrong
• It is a wrong done to another person (a civil wrong) which causes them harm
(damage). The Courts can give the injured party
– compensation (damages) as a way or “righting the wrong”, and or,
– an injunction - (a court order ) to stop the person repeating the act.
• Tort wrongs are in the field of Private as opposed to Public law.
• The area of law concerning relations between private people as opposed to the
functions of government and the relationship between government and people.
• Due to our social interaction we come into contact and conflict with others.
Tort law attempts to resolve those disputes.
• Everthing from: Driving a car, producing a product, working as a doctor or a lawyer is
covered by Tort law. The area of Tort covers a wide range of wrongs

Examples of the Main Torts

TRESPASS
• It is a wrong done to another person (a civil wrong) which causes them harm
(damage). The Courts can give the injured party
– compensation (damages) as a way or “righting the wrong”, and or,
– an injunction - (a court order ) to stop the person repeating the act.
• There are a number of types of “Tort” that most people will be familiar with.

NUISANCE
• Unreasonable interference with another’s exercise of their rights
e.g. Parking outside their entrance; Causing vibrations, smells loud music, which interfere
with your use of your premises

DEFAMATION

NEGLIGENCE
• Where someone either intentionally or negligently causes injury to another.
• e.g. somebody driving dangerously and crashes into you – causes injury to you and
damages your car.
• Doctor / Surgeon not adhering to recognised best practice during some surgical
procedures and they cause injury to you.

2 Cause of Action
Actual loss is not a pre-requisite for a cause of action in tort.
For something to be actionable as a tort some right recognised and protected by law must
have been breached.

1
3 Intention
As a general rule intention is necessary – at the least intention to do the act that causes the
injury.
The motive i.e. the reason for the party doing the act complained is in general irrelevant –
practising one’s drums for a concert could still be a nuisance.

4 Causation
Causation is an essential element for all torts where damage is a necessary element –i.e. all
torts that are not actionable per se. Where damage must be proven the Plaintiff must show on
the balance of probabilities that the defendant caused the damage to obtain a remedy.
He must show the Defendant was both the factual and legal cause.
If the defendant is not factually connected he is not liable

5 Remoteness
(1) The Defendant is always liable for damage he intended regardless of how unlikely.
(2) In unintentional torts when it is proven a wrongdoer caused damage the next question is
he liable – he is liable if he could reasonably have foreseen some damage he is not if it could
not foresee any damage
(3) where is the cut off point re damage he is responsible for where liability is established – t

There are 2 tests

1 Direct Consequences – Once some damage was foreseeable the wrongdoer would
be liable for all the consequences that flowed directly from his act.

Reasonable foreseeability – the wrongdoer would only be liable for the

consequences he could reasonably foresee. Reas foreseeability is now the sole
standard to be applied at both stages - liability & extent in Negligence and
Nuisance.

The injury must not only be foreseeable but must be of a type that is
foreseeable How does one distinguish one type of damage from another?
In general there are 3 broad categories Physical/Psychological/Economic
but in dealing with remoteness issues cts are more detailed in their efforts to
distinguish various types of damage

Egg Shell skull rule –

The Court held in Burke v John Paul Defendant liable under the egg shell skull
rule – you take your victim as you find him. As the Defendant could foresee some
damage they were liable for the damage as a result of the combination of what
they could foresee with the plaintiff’s pre-disposition.

SMITH V LEECH BROWN & CO [1962] 2 QB 40

The egg shell skull rule survived Wagon Mound
Facts: Workman –burn on lip (metal at work) – due to a pre-accident condition
and the result was cancer.
The test is not whether the employer could reasonably have foreseen that the burn
would cause cancer.
The test is whether the employer could reasonably foresee the type of injury
suffered – i.e. the burn.

2
 The amount of damage suffered depends on characteristics and constitution of the
victim.

6 Liability – the general rule is that every person who commits a tortuous act is
responsible for that act.

7 General Defences in Tort

1 Statutory Authority
Some statutes authorise acts that would otherwise be the commission of a tort.
Tort of Trespass
Eg Arrest without warrant under the Criminal Law Act 1997 S4 by the police where
they have reasonable cause to believe and arrestable offence (ie one that attracts 5 yrs
or more imprisonment) has been committed. –it would otherwise be a trespass to the
person –
Eg Lawful Detention and isolation is authorised by the Health act of 1947 of anyone
believed to be the probable source of an infectious disease.
Eg Statutory rights of entry of public officials
Misuse of drugs Acts
The Criminal Law Act 1997 etc
Police do not commit trespass to chattels when they seize pursuant to statutory
powers.
Tort of Nuisance
Legislation may authorise the commission of what would otherwise be a nuisance but
those given the power to do the act must not act beyond their statutory authority and
must not act negligently.

2 Necessity
This is defined as the intentional commission of a tortuous act to prevent some greater
evil where there is no reasonable alternative
Generally to avail of this defence you must show the act was necessary and not
negligent.
Cape v Sharpe [1912] 1 KB 496 The defendant a gamekeeper set fire to heather on the
plaintiff’s land to act as a firebreak to prevent the fire spreading to his employer’s land.
Necessity was held to be a gooddefence to the resultant trespass suit as there was a real
threat of fire and the defendant had acted reasonably.

3 Act of God
Absent negligence the defendant will not be liable if nature caused the action. Thus where nature
caused the wrong then the defendant will not be liable where he could not have been expected to foresee or
guard against it.

Main example of this is Rylands v Fletcher

Nuisance – floods

4 Inevitable accident
This is when the consequences said to be a wrong were not intended by the defendant
and he could not have foreseen or avoided them by the exercise of reasonable care.

3
 You are not liable for an event you have no control over and could not have avoided.
Stanley v Powell (1891) 1 QB 86 – a bullet ricocheted off a tree and injured the
plaintiff. Defendnat not liable as the injury was an inevitable accident.
Many writers see inevitable accident as having no useful function and Winefield
doubts there is much advantage in its continued use.

5 voluntary assumption of risk, VOLENTI NON FIT INJURIA –Plaintiff legally

accepted the risk re the conduct in question thus relieving defendant of any
responsibility.
Early on this like Contributory Negligence – would be fatal to plts case.
Where a person consents to the negligent act he may not complain when it occurs.
Per Sec 34(1)b of the Civil Liability act 1961 circumstances that would have been
classed as volenti are now to be considered as contributory negligence save in 2
circumstances .

1 – where defendant shows by contract he isn’t liable

2 – where defendant shows that plaintiff before the act agreed to waive his legal rights
re it
Up to def to prove consent

(a) Contract may exempt defendant

O’HANLON V ESB [1969] IR 75
“It is already settled that such contracts are construed strictly against the party
claiming the benefit of the exception and there are instances where such contracts are
prohibited by statute”

(b) Agreement to waive rights

Agreement contemplates some form of communication
MCCOMISKEY V MC DERMOTT [1974] IOR 75 SCT
Def driver in a rally, Plt = his navigator – they crashed and plt was injured. Issue of
waiver/consent was raised as there was a notice on the dashboard of the car that
passengers travelled at their own risk.
Notice on car when def purchased it – a fact of which plt knew.
Evid – parties joked about notice and did not take it seriously.
Applying O’Hanlon v ESB the Ct held that there was no communication between the
parties on the issue of waiver/consent in these circs and thus the defence was not
applicable.
Griffin J – in and appropriate. case the affixing of a notice to the dashboard might lead
to inference of agreement and waiver defence.

Re notice deliberately placed in the car by the driver. Presence of notice and fact
passenger remains in car may communicate implicit acceptance.
Safer for driver to expressly point out the notice and seek a response.

What about the situation where someone accepts a lift from a drunken driver?
Prof Glanville Williams says:-
“The passenger’s knowledge of the driver’s state is not equivalent to consent
to negligent driving”
McM& B – surely some cases where an agreement to waive the right of action may be
inferred. Arguable – perhaps but tendency to go for contributory negligence – see

4
 Hussey case

Cases
Soldiers
Ryan v Ireland SCT 12/2/1989
SCT rejected a volenti defence re soldier serving in Lebanon where he had enlisted
for UN service.
No express contract waiving his right to sue if injured by the negligence of his
superior officers had been suggested. He had “accepted the risks inherent in being
involved in armed conflict “ but it couldn’t have been implied that he’d accepted the
risk of being unnecessarily exposed to injury by negligence.

(No ref by Ct re plt having waived r to sue by agreement other than contractual) => no
evidence of such.

RESCUERS
They used to be regarded as having voluntarily assumed the risk.
Today’s approach is different per Cardozo J in
Wagner v International Railroad Co 232 NYS 176, 133 NE 437 (1921)
“Danger invites rescue. -----The risk of rescue if only it be not wonton is born
of the occasion. The emergency begets the man. The wrongdoer may not have seen
the coming of a deliverer. He is accountable as if he had.

6 - contributory negligence
In the 19th century it was a full defence
Civil Liability Act 1961 s34 – modern approach -Apportionment of damages with
respect to the respective degrees of fault

The defendant must show the Plaintiff behaved unreasonably given the circumstances
O’Leary v O’Connell (1968)
Defendant motorcyclist knocked down plaintiff who was walking across a road and as
a result plaintiff’s leg was broken..
Held both parties were negligent in not keeping a proper lookout. Liability was
apportioned 85% to defendant and 15% to plaintiff and damages awarded accordingly.

the seat belt example - RTA

Up to person who didn’t wear the belt to raise the excusing circumstances

SINNOTT V QUINNSWORTH [1984] ILRM 52 decreased award by 25%

eventhough evid was not to the effect that failure to wear a belt on balance caused
sufficient enhancement of injury. Evid if wearing belt chance exposed to severe injury
recd decreased by 25%

Hussey v Courtney and Twomey and the MIBI SCT 21/1/2009

Ms Hussey was held 40% contributory negligent by the SCT for her injuries arising
out of an accident on July 20th 1999. She was suing the driver of the car and its owner
Ms Twomey and the MIBI as the driver was uninsured. Ms Hussey sustained lower
back injuries in the accident involving the car being driven by Mr Courtney.
Ms Hussey and Ms Twomey were drinking in a bar in Cork on the night of the
accident and were joined by Mr Courtney. Ms Hussey admitted she had up to 8

5
 drinks and was at the same table as Mr Courtney at the time. Ms Twomey wnet home
alone. Ms Hussey was adamant that Mr courtnedy appeared fine to her and she would
not have accepted a lift from him had she thought he was drunk. There were 2 others
also in the car. The vehicle was abandoned after the accident. Ms Hussey walked to a
hospital, Mr Courtney went to Ms Twomey’s house. When he was located by Gardai
an officer noted it was quite obvious he was drunk. The HCT held Ms Hussey 40%
responsible and reduced her damages accordingly from €83,000 to €50,000. She
appealed.
The SCT dismissed the appeal and stated that if you choose to travel in a car driven
by a person whom you know or should reasonably know has consumed alcohol is at
high risk of being found partially liable for any injuries they may suffer in any
accident. Kearns J also stated that self-intoxiucation would not avoid a finding of
contributory negligence.

DUTY TO MITIGATE DAMAGES – S34(2)9b) of the Civil Liability act 1961 states
that a negligent or careless failure to mitigate damage is deemed to be contributory
negligence in respect of the amount by which such damages exceeds the damage that
would otherwise have occurred. The failure of a plaintiff suffering from
psychosomatic illness to undergo treatment in a psychiatric unit which carried a very
high chance of a cure was held to be contributory negligence in Bohan v Finn DPIJ
Trinity & Michelmas Terms 1994.
7 limitation of actions.
Statute of Limitations
This is governed by the following legislation
The Statute of Limitations act 1957
The statute fo Limitation (Amendment) Act 1991 and 2000
The Civil Liability Act 1961
The Civil Liability and Courts act 2004

S11 of the Civil Liability and Courts Act 1961 states that tort actions shall not be
brought more than 6 years after the date on which the cause of action accrued.
This has been reduced to one year for defamation action per the Defamation Act 2009.
For personal injuries actions caused by negligence, nuisance or breach of duty
(contract, statutory or otherwise) the limitation period is 2 years from the date of
accrual or the date of knowledge whichever is later per S7 of the Civil Liability and
Courts Act 2004 .

The Tort of Negligence

Negligence is a tort i.e. a civil wrong, other than a breach of contract or trust for which the
normal remedy is an action for unliquidated damages. It is part of private law

1 NEGLIGENCE – 4 main elements

- duty of care
breach of the duty – not performing it to requisite standard
damage
causation and remoteness

6
1 DUTY OF CARE
One can be as negligent as one pleases to the whole world if one owes them no duty

Starting point
(1) DONOGHUE V STEVENSON [1932] AC 562
The Plaintiff suffered shock and gastro-enteritis after drinking a bottle of ginger beer which
she argued was due to the discovery of a decomposed snail at the bottom of the bottle and
sued the manufacturer of the ginger beer but she did not have a contract with him or indeed
the seller as it was her friend who purchased the bottle and gave it to her. Thus under the law
of contract she had no case but
Lord Atkin outlined a general conception of relations giving rise to a duty of care.
Neighbour principle - you must take reasonable care to avoid acts or omissions which you
can reasonably foresee would be likely to injure your neighbour

Who then in Law is my neighbour?

anyone you could reasonably foresee you could injure by your acts or omissions

The Dv S and Anns test was accepted in Ireand in Ward v McMaster SCT 10th May 1988 and
that continued until 2002 and the case of Gencar Exploration Plc v Mayo County Council
[2002] 1 IR 84 essentially Glencar added a third step to the 2 step approach i.e. whether it is
just and reasonable to impose a duty of care.

(3) A duty of care extends to acts/omissions/physical conduct and statements

In general this means we must not actively harm someone who is out neighbour. There is no
duty to come to the aid of someone ie no breach of duty for doing nothing save
1 where the specific relationship gives rise to such a duty e.g. failure of a parent to
care for a child,
2 where the defendant created the peril or
3 where the danger exists in relation to something the defendant controls in which
case there may be a duty to warn,

HEDLEY BYRNE V HELLER [1964] AC465 – duty re statements

Duty exists where there is a special relationship between parties and maker of statement can
foresee recipients reliance on the statement though the defendant bank in this case escaped
liability as their statement incorporated an express disclaimer.
Special relationship - maker can foresee reliance - there is reliance then duty
(Plt Co requested a credit reference through their banks from def bk re one of its clients and
extended credit on foot of it and suffered loss)

(4) List of some policy factors that have a bearing on duty

1 Public expectations and reliance
Public dependence on medical science – expectation Drs wont injure patients but duty
not so high to discourage doctor from accepting patients.
2 Self responsibility
3 Responsibility for others
4 Public Interest - floodgate argument – plt’s claim rejected as it would lead to a
floodgate of undesirable claims.
5 Integrity of other legal rules – already covered by contract
6 Administration of Justice Advocate’s immunity, duties to clients, officer of the

7
 court

2 Breach of Duty - Not providing the requisite Standard of Care

1 intro
In general terms the law requires that reasonable care be taken to avoid injury to those to
whom a duty is owed.

Reasonableness is the crucial issue

The standard is objective – existing average standards of the community – not

perfection
KIRBY V BURKE [1944] IR 207
Qs: How aught a reasonable person have acted at that time, (not with the knowledge of
hindsight)

2 some general factors have a bearing on the level of behavior expected

1 Knowledge
BYRNE V MCDONALD Unrep SCt 7/2/57
“ The act or omission must be judged in the light of the knowledge actual or imputed
which the plaintiff has , for it there is or should be no knowledge that the act or
omission involves danger then there cannot be conviction for failing to take
reasonable care. To every adult is imputed the knowledge of risks which the normal
reasonable man may be assumed to have”.

2 Physical Capabilities
A certain standard of physical dexterity is required
One wont require a blind person to see but if a blind person crashes a car the fact he is
blind is not a defence.

SA Ambulance v Walheim (1948) 77 CLR 7 a man with defective hearing was not
contributory negligent for failing to hear an ambulance siren. But in O’Brien v Parker
[1977] 2 ILRM 170 held a man liable who had suffered an epipleptic fit while driving
as eventhough he had never done so before he had felt unwell that morning.

3 Number Of Indicators Re What Is Or Is Not Reasonable standard

4 factors in particulars:-
1 The probability of an accident – the greater the probability of an accident the greater
the standard of care required
O’Gorman v Ritz clonmel Ltd [1947] ir Jur Rep 35 – Plaintiff’s shins injured when
patron sitting in row in front got up causing seat to hit her shins. Cinema owners
where not held liable given the low probability of such an injury happening.

2 The gravity of the threatened injury –the more serious the foreseeable injury the
greater the standard of care required – eg one eyed man losing his eye

3 The social utility of the defendants conduct – Whooley v Dublin Corporation 961]
IR 60. Plaintiff tripped and put her foot into an open fire hydrant whose lid had been
removed by someone but the Court held that the council was not liable as the hydrant
was at that location to ensure ease of access for the purpose fo firefighting and no

8
 other fire hydrant could be devised consistent with its purpose which would be safe
from malicious interference.

4 The cost of eliminating the risk – generally if the cost of removing the risk is very
high and the risk is very low then no liability will fall
McSweeney v Garda Siochana Boat Club 5th June 1991HCt – Def not liable where
injury due to drinks spilled on the floor where reasonable system in place to ensure
spillages mopped up immediately and court felt particular spillage could only have
been there for a few minutes.

None of the above have a particular weight – what is unreasonable in the circumstances is a
value judgment
3 DAMAGE
As seen above damage is a pre-requisite for negligence
– What type of damage is compensateable – eg physical, what about economic
loss and nervous shock

HEDLEY BYRNE V HELLER [1964] AC 465

Established in England that liability could be imposed for Negligent Misstatements

Facts : _ Credit reference re a customer given by 1 bank to another where bank knew or aught
to know that the info would be passed to plt co which was about to do business with the
customer. The reference was negligent – the company suffered loss – the bank was ok as it
had a disclaimer.
The importance of the case is the speeches in the House of Lords to the effect that liability for
negligent misstatement can arise where a party seeking information from the defendant relies
on his special skill and trusts him to exercise due care.

Per Lord Morris

“If someone possessed of a special skill undertakes; quite irrespective of contract to
apply that skill for the assistance of another person who relies upon that skill, a duty
of care will arise.”
House of Lords didn’t consider it a duty to be imposed on people against their will –

Thus you have three options where asked for advice

(1) No
(2) Give it subject to qualification
(3) Give advice – duty.

Where should the line be drawn

Casual advice/advice in context of special relationship/
e.g. person misdirects a motorist – who gets lost and misses an interview?

Ireland
Tulsk v Ulster Bank Ltd HCT 13th May 1893 The bank gave advice to its customer (the
plaintiff) that another person (also a customer) was creditworthy – the plaintiff relied on it
and suffered loss. Held the bank knew or could foresee the plaintiff would rely on it and it
had a special skill and the relationship was such between the bank and the client that reliance
was reasonable

9
4. CAUSATION AND REMOTENESS
He Plaintiff must prove that the defendant caused the damage to obtain a remedy.
He must show the Defendant was both the factual and legal cause.
If the defendant is not factually connected he is not liable

For the defendant to be a factual cause the plaintiff must show that the damage would not
have occurred but for the Defendant’s actions or that the Defendant’s actions were a material
element and/or substantial factor in the damage.

The damage must not be too remote – it must have been reasonably foreseeable- the
wrongdoer would only be liable for the consequences he could reasonably foresee
(see previous notes above on causation and remoteness)

5 BURDEN OF PROOF
It is up to the plaintiff in a negligence action to prove that the defendant was negligent.
The burden/onus of proof rests with the plaintiff – he must prove sufficient facts to establish
the substantive elements of the cause of action. – negligence.
Duty, breach, damage, causation & remoteness.

up to defendant to raise any specific defences he wishes –e.g. contributory negligence and the
defendant must prove that defence.

The Standard of Proof - The balance of probabilities – more likely to be true than not.

THE DOCTRINE OF RES IPSA LOQUITUR

This arises where damage has been caused in circumstances in which it could not reasonably
have arisen without negligence on the part of the defendant

It originated in an off hand remark by Pollock CB in BYRNE V BOADLE (1863) 2 H & C

722
Plaintiff injured by a barrel of flour which fell from a window above defendant’s shop.
Defendant said plaintiff was bound to give affirmative proof of negligence. No proof.
Pollock CB said there are certain cases of which it may be said res ipsa loquitur
‘ the thing speaks for itself’

When the presumption applies it gives rise to an inference or presumption of negligence on

defendant’s part. Up to defendant to rebutt it.

1 - When will it apply?

A The thing must be under the management of the defendant –
(Control requirement)
B Defendant has superior knowledge denied to the plaintiff
C Accident such as in ordinary course of things does not happen with use of care by
those in control of the thing
E.G. – trains don’t normally collide, nor does scaffolding normally collapse without
negligence
But fire may spread from a grate without negligence.
Plt can introduce expert evidence to show injury does not normally happen due to treatment
given in absence of neg.

10
MACON V OSBORNE (1939)
The plt had a swab left in his body after an operation. Although he was unable to prove a
breach of duty since he was under anesthetic at the time.
Held that the presence of the swab in the plt’s body provided prima facie evidence of a breach
of duty. The surgeon was unable to prove he had taken reasonable care and was held liable.

LINDSAY V MID WESTERN HEALTH BOARD [1993] 2 IR 147

A child went into hospital to get appendix out and didn’t recover consciousness after
operation. Uncertainty re what led to failure to recover consciousness after operation yet res
ipsa applied. The SCT adopted a passage from Fleming:
“res ipsa loquitur is no more than a convenient label to describe situations where
notwithstanding the plaintiff’s inability to establish the exact cause of the accident, the
accident by itself is sufficient in the absence of an explanation to justify the conclusion that
most probably the defendant was negligent and his negligence caused the injury”
Case about an appendectomy that went wrong.

6 DEFENCES IN NEGLIGENCE
Liability only attaches where the plaintiff has established the requisite elements of a cause of
action and the defendant has no available defence.

1There are procedural defences – The statue of Limitations (see above)

2 Contributory Negligence (see above)
3 voluntary assumption of risk (see above)

7 REMEDIES

The Main remedy in negligence actions, actions for employers and occupiers liability is
damages.
The principle is that of restitution in integrum- ie to restore the person to the position they
would have been had the tort not arisen.

Damages are awarded as a lump sum.

Categories of damages:
1. Contemptuous damages – ie where a plaintiff wins but the court feels morally he does not
have a right to damages
2. Nominal damages are awarded where no actual damage has occurred but a right has been
infringed
3. Compensatory damages the normal type awarded. They compensate the victim for the
harm done and are traditionally made up of special damages (ie pecuniary damages eg out of
pocket expenses, loss of income), general damages (non-pecuniary eg pain and suffering) and
aggravated damages if any. Aggravated damages are awarded to compensate for the
additional harm suffered by the victim due to the manner in which the defendant behaved.

In Conway v INTO (1991) 2 IR Finlay CJ stated that aggravated damages would be awarded
to take into account
1. The manner in which the wrong was committed (did it include oppressiveness, arrogance
or outrage)

11
2. The conduct of the wrongdoer after doing the wrong – did he refuse to apologise/threaten
to repeat the wrong
3. The conduct of the defendant or his representatives in the period to trial

Exemplary damages are awarded as a mark of censure in respect of the manner in which the
tort was committed.

Computation of Damages – damages are awarded to compensate for a loss either to property
and/or personal injury. Both include economic loss.
Physical damage to property, land buildings etc is measured by reference to its diminution in
value usually cost of repair or to replace or where irreplaceable the amount reflective of its
value. Where there is damage to a business there can be loss of profits.
Personal injuries - General damages for pain and suffering and loss of amenity for
catastrophic injuries i.e. max amount. Compensation levels max appears to be currently circa
€500,000 for catastrophic injures – all others are measured against that t in varying degrees of
severity. See InjuriesBoard.ie book of quantum
Special damages are measureable e.g. loss of earnings and actuarial evidence is used. Special
damages are tax free and collateral benefits will not be deducted from the award save
disability benefit for the first 5 years following date of accident.

___________________________________________________________________
Vicarious Liability

1 Intro
The law is sometimes prepared to hold one person liable for the wrong committed by
another.

The Master for the torts of his servant

The Principal for his agent
The firm for the torts of a partner - Section 10 and 11 of the Partnership Act 1890

The entity that benefits from the activity that causes the damage is being held vicariously
liable - one is targeting the deep pocket

But the Master is only Liable for the torts of the servant which arise out of or within the
scope of his employment

The examples above re Master/Firm & Principal are not an exhaustive list other instances of
vicarious liability can arise though no formal legal relationship exists between the parties

MOYNIHAN V MOYNIHAN [1975] IR 192 SCT

The plaintiff 2 year old was injured when she pulled a pot of tea on top of herself in her
grandmother’s house. She had been invited there for a meal together with her parents by her
grandmother. The plaintiff’s aunt, ie the defendant grandmother’s daughter, made tea and left
it under a brightly covered cosy on the breakfast-room table. The plaintiff’s father had left
the house and her mother and the defendant were in the kitchen doing the dishes. The
plaintiff’s aunt left the room hurriedly to answer the telephone thus leaving the plaintiff on
her own. It was then that the accident occurred.

12
The Supreme Court per Walsh J said
“The question to be decided therefore is whether in the circumstances of the case the
relationship between the mother and her daughter Marie was sufficient to make the defendant
vicariously liable for the negligence alleged against Marie.”

The answer was YES

“The nature and limits of this hospitality were completely under the control of the
mother and to that extent it may be said that the daughter Marie in her actions was standing in
the shoes of her mother and carrying out a task which would have been that of the mother –
but was assigned to the daughter”

The necessary element of control was vested in the defendant.

Note the control element is used as a test.

If the control element is high subordinate may be a de facto servant and once controlled
person’s acts relate to controllers business he is vicariously liable re damage to third parties.

2 MASTER /SERVANT

For vicarious liability to attach there must be something akin to a master servant relationship
– ie a contract of service and not for service
And
The tort must be committed within the scope of employment

2 WHAT IS MEANT BY “WITHIN THE SCOPE OF EMPLOYMENT

In General an employee’s tort is within the scope of employment if it is either

1) A wrongful act authorised by the master or
2) A wrongful or unauthorised mode of doing some act authorised by the master
3) Acts which he has not authorised provided they are so connected with acts
which he has authorised that they may rightly be regarded as modes although
improproper modes of doing them, (The above 3 form the basic Salmond test)

The conduct must be linked to the performance of the employee’s legitimate functions

Limitations are temporal – spatial – functional

BOYLE V FERGUSON [1911] 2 IR 489

A car salesman with 2 women was out for a spin at 7 p.m. on a Saturday – Held he was acting
within the scope of employment as the employer was paying for the petrol at the time and the
salesman was given great latitude re hours and method of work and while on the road in the
company of ladies interested in motors he was creating a good impression.

Employee doing what employed to do but badly = employer liable

Employee doing X not employed to do = Master not liable

Nowadays question not whether the act was permitted by the master, but was it within the

13
range of the servant’s duties.

The type of responsibility given to the employee must be such as to facilitate the unlawful
activity under the guise of the performance of duties

JOHNSON & JOHNSON V CP SECURITY [1985] IR 362

Security firm vicariously liable for theft of plts property by one of its employees

Conduct outside scope of employment

IRVING & IRVING V THE POST OFFICE [1987] IRLR 289

Postman sorter wrote an offensive remark on a letter addressed to a Jamacian couple.
Held substance and purpose of what was written was unconnected with performance of his
duties. Employer not vicariously liable.

Detour and frolic

O’CONNELL V BATEMAN
Servant borrowed Master’s Lorry after work to visit parents. Master not liable when servant
involved in an accident.

Salmond & Heuston

Unauthorised journey – frolic
Unauthorised route – it’s a question of fact or degree whether employer is liable

Development of the Law

(1)Bazley v Curry (1999) 174 DLR (4th) 45 - Canadian case re sexual abuse of a child in
residential care facility for emotionally disturbed chidren run by a non-profit making
organisation . In finding the employer vicariously liable for the tort of the employee
McLaughlin Lj said 2the fundamental question is whether the wrongful act is sufficiently
related to conduct authorised by the employer to justrify the imposition of vicarious liability.
Vicarious liability is generally appropriate where there is a significant connection between the
creation or enhancement of a risk and the wrong that accrues therefrom even if unrelated to
the employer’s desires.”.

(2)In Lister v Hesley hall Ltd [2002] 1 AC 215 - UK case where he wardedn of a school
boarding house sexually abused boys in his care . H of L relying on Bazley held there was
sufficient connection between the work the warden was employed to do and the acts of abuse
to hold employer vicariously liable. It was found that the opportunity for intimate private
control and the parental relationship and power required by the terms of the employment
created the special environment that nurtuted and brought to fruition the sexual abuse. it was
held unlike Bazley the basis for same was not risk creation but the salmond test and the
concepts of fairness and justice. – whether the warden’s torts were so closely connected
withhis employment that it would be fair and just to hold the employer liable.

(3) Here in O’Keeffe v Hickey [2008] IESC 72

Plt who was sexually abused by a NS teacher got judgment in default of defence against the

14
teacher and sued the State for vicarious liability for actions of teacher and school manager
who failed to take action following on a complaintif by the mother of another abused child.
SC held state not liable as no ER/ee relationship between state and teacher/manager due to
education system.
Though not part of the ratio of the decision in analysing the decision the court looked at the
development of vicarious liability and the close connection test
Fennelly J and Murray Cj concurring adopted Bazley and Lister as a development of the
common law on vicarious liability enabling liability to be imposed on “ employers for
wrongful criminal acts of employees and thus for acts going beyond any theory of authority
or of wrongful mode of doing the employers work” . Fennelly J felt though founded
differently the former on policy and latter on the incremental approach of the common law
both 2share a common test 2 the closeness of he connection between the abuse and the work
the employee was engaged to carry out.

Hardiman J though was far from showing favour of such developments.

Geoghegan in his dissenting judgment also appeared to favour the connection and was
prepared to find the state liable..
It will be interesting to se how the law in this area will develop.

___________________________________________

SUMMARY
Act done in furtherance of master’s business and reasonably regarded as incidental to task is
likely within scope of employment
Matters not done in furtherance of task not in masters interest and which can’t objectively be
said to be incidental to/connected with a task is likely to be outside scope of employment

Professional Negligence
A person who holds themselves out as having a particular skill will be liable in
negligence if they fail to take reasonable care in the exercise of that skill

The relationship between a professional and his client is in general contractual in nature
though there would be sufficient proximity and to come within the neighbourhood principle
and it is reasonably foreseeable that a failure by the professional to exercise care could result
in damage to the client.

The Supreme Court in Finlay v Murtagh [1979] IR 249 held that there is concurrent liability
in tort and contract ie a client is not limited to suing in just contract he can also sue in tort.

This is a negligence action requiring a consideration of the principles in Donoghue v

Stephenseon; duty breach and damage and specific professional negligence cases.

Standard of Care required.

1 Must have the skill characteristic of the profession
Daniels V Heskin [1954] IR 73
Maguire J stated that the doctor is liable for injury caused to another to whom he
owed a duty to take care if he fails to possess that amount of skill which is
characteristic of his profession and fails to exercise his skill with the necessary degree

15
 of care required.

Standard practice must be without inherent defects.

The seminal judgement stating the relevant principles on this point was that of Finlay CJ in
Dunne v National Maternity Hospital [1989] IR 91 - That case involved a claim for
professional negligence with regard to the care control and management of the mother’s
labour where twins were born one of whom was brain damaged and the other stillborn.
(monitoring was re 1 heartbeat)

Roche v Peilow (1985)

Sct held that a solicitor was not acting reasonably when he automatically and mindlessly
followed a general practice when by taking thought he would have realized the practice was
fraught with peril for the client and was readily avoidable.
Facts :- Failure to do a companies office search that it would not have been general practice
to do. The search would have shown the company which was building a house for sale had
mortgaged the land on which the house was built. Mortgagee refused to release cert of title
until mortgage discharged putting purchaser to additional expense.

O’Donovan v. Cork County Council

Whilst adhering to general practice may not save one from an allegation of negligence
departure from same can leave one open to a charge of negligence.
Facts:- anaesthetist did not administer a relaxant drug when during an operation for an
appendectomy the patient went into convulsions. The absence of evidence that the procedure
adopted was a general and accepted procedure was prima facie evidence of negligence.
________________________________________________________________________

Occupier’s Liability

1 Intro
Occupiers have a duty towards persons who enter their premises.
The Occupier’s Liability Act 1995 put this duty on a statutory basis.

Under the Act a duty of care is owed to (the following 3 classifications of users)
(a) A visitor – who enters the premises at the invitation or with the permission of the
occupier; as of right; or by virtue of an express or implied term in a contract.
(b) A recreational user – who enters the premises for the purpose of engaging in a
recreational activity, whether with or without the occupiers permission or
invitation.
(c) A trespasser – is neither visitors nor recreational users and lacks any form of
authority to be on the premises and is there for a purpose other than recreational
activity.

The definition of occupier - S1 - is based on control over the state of the premises and the
dangers arising out of such state. There may be more than one occupier with their duties
depending on their degree of control.

The definition of premises S1(1) is wide in scope and includes land, water, fixed or

16
moveable structures and means of transport

2 The Duties owed relate to the state of the premises.

Duty owed to visitors is to take such care as is reasonable in the circumstances --- to ensure
that a visitor to the premises does not suffer injury or damage by reason of any danger
existing on the premises of the occupier.

The duty owed to Recreational users and trespassers is not to intentionally injure them or
damage their property and not to act with reckless disregard for their person or property.(ie
act reckless re the state of the premises)

• Trespasser committing a crime;

– The occupier is not liable for a breach of duty imposed “not to injure the
person or damage the property of the person intentionally” unless a court
determines otherwise in the interests of justice.

There is an additional duty on occupiers in respect of structures, (to take reasonable care
to maintain them in a safe condition). this is in relation to structures other than an entry
structure such as a stile or gate provided primarily for recreational use.
examples – dressing-rooms in sports grounds, playground equipment – i.e. structure primarily
for recreational use.

Occupiers are entitled to modify their duty in certain circumstances by agreement or

notice – S4/5
It may be extended by express agreement or by notice given by the occupier.
The duty to recreational users and or trespassers may not be excluded or restricted.
The duty to visitors may be excluded or restricted subject to certain restrictions.
________________________________

3 General and caselaw

The Act regulates obligations in respect of occupation only and does not interfere with
obligations on occupier arising out of his other characteristics – Hotel Proprietor, employer
etc

Geraldine Weir-Rodgers v The S.F. Trust Limited SCT 21/1/2005 –

Plaintiff sued for injuries sustained when she fell down the side of a cliff at a Donegal beauty
spot. The question before the Supreme Court was:
Whether there was a breach of duty under S4 1995 Act – whether there was reckless
disregard for the safety of the person using the land – whether failure to have a warning
notice or fence to prevent entry was a breach of duty

The Court Held it is perfectly obvious to all users of land higher than sea level but adjoining
the sea that there may well be a dangerous cliff edge and in those circumstances the occupier
of the land cannot be held to be unreasonable in not putting up a warning notice, still less
has he reckless disregard for the safety of the person using the land.

17
The person sitting down near a cliff must be prepared for oddities in the cliff’s structure or in
the structure of the ground adjacent to the cliff and he or she assumes the inherent risks
associated therewith
This decision emphasised the personal responsibility of persons to look out for their own
safety.

The 1995 legislation arose largely from concerns arising out of the recreational use of
agricultural land: farmers were concerned over the level of insurance cost re potential liability
to users of their lands e.g. people engaged in walking, fishing etc while recreational users
were concerned that they would be denied access to farmers lands or would have to meet the
insurance costs themselves.
Other relevant legislation in respect of particular occupiers includes the Health, Safety and
Welfare at Work Act 1989 as amended and the Hotel Proprietors Act 1963.
Essentially, the Occupiers’ Liability Act of 1995 provides a statutory basis for the duty of care
owed by occupiers to entrants on their property.

4.1 Provisions of the Act

The Act imposes a ‘common duty of care’ on occupiers in respect of visitors;

The extent of the duty is to ‘take such care as is reasonable in the circumstances’…to ensure
that a visitor to the premises does not suffer injury or damage by reason of any danger
existing thereon’.
 occupier: the person{s} who control the state of the premises and the dangers arising
out of such state.
 Visitor: all lawful entrants are visitors, other than recreational users, regardless of
whether the visit is for social or commercial purposes.

Recreational users and trespassers are owed a more restricted duty than visitors:
The occupier owes them a duty not to intentionally injure them or damage their property, and
not to act with reckless disregard for their person or property.
 Recreational user: entrants whose purpose is to engage in recreational activity, with
or without the occupiers permission and who may have been charged a reasonable
amount in respect of the cost of providing parking facilities.
 Trespasser: they are neither visitors or recreational users, who lack any authority to be
on the premises and whose purposes are other than the conduct of recreational
activity.

Williams v TP Wallace Construction Ltd 2002

The general manager of a firm of distributors of building materials went to visit a building
site where a problem had been encountered with guttering supplied by the firm. When he
arrived, the workmen were on a break and the architect was not their, contrary to
expectations. The plaintiff took it upon himself to inspect the guttering and was injured when
an unsecured ladder slipped as he was descending.
Held: he was not a visitor, as he had no authority to conduct the inspection; neither was he a
recreational user, as his purpose related to his employer’s business; consequently he was a
trespasser. Having relied exclusively in his pleadings on the common duty of care owed to
visitors, his action failed.

18
4.2 Duty of care to visitors

Visitors are owed a duty of care that they and their property do not suffer injury or damage by
reason of any danger existing on the premises of the occupier.

Duffy v Carnabane Holdings Ltd 1996

The plaintiff slipped on a dance floor and sprained his ankle while attending a disco held at
the defendant’s hotel. He later instituted proceedings against the defendant, giving evidence
that there had been spillages and broken glass on the dance floor before the accident
occurred. The defendant argued that it had warned people against taking glasses on to the
dance floor, that it had sufficient staff available and that mops and buckets had been placed at
strategic places to clean up any spillages.
Held: whilst an invitor is not an insurer for the safety of an invitee, the invitor owes a duty to
the invitee to take reasonable care of all the circumstances to see that the premises are
reasonably safe. There was evidence to support that there had been spillages and broken glass
on the dance floor for an appreciable time prior to the accident, and therefore the plaintiff was
entitled to recover damages.

4.3 Duty of care to recreational users and trespassers.

The duty owed here is that the occupier does not intentionally injure or act with reckless
disregard for them and their property. This would include situations where the injury or
damage is the natural and probable consequence of the state of the premises.

Heaves v Westmeath County Council 2001

The plaintiff slipped when descending steps that were partially covered in moss.
Held: the defendant had exercised sufficient care as an appropriate leaning system had been
operated successfully for a number of years; further, the gardener responsible for the task was
in the habit of obtaining and acting upon expert advice. These precautions satisfied the
standard of reasonable care towards visitors

4.4 Other provisions

S.4 of the Act places a duty on occupiers in respect of ‘taking reasonable care to maintain a
structure in a safe condition e.g. dressing rooms in public sports grounds, playgrounds.

S. 5 of the Act. The duty of care to recreational users & trespassers may not be restricted,
while the duty owed to visitors may be restricted or modified. Such restriction must be
reasonable and must be clearly notified to the visitor.

S. 4 of the Act provides that occupiers are not liable for injury or damage unintentionally
caused to persons entering their premises for the purposes of committing an offence or who

19
commit an offence while there, unless the court decides otherwise in the interests of justice.

DEFAMATION

1.6 Defamation
Article 40.6.1.i of the Irish Constitution says that the State guarantees the right of citizens to
express freely their convictions and opinions. But the right of freedom of expression in
Ireland is not absolute.

But Article 10 (2) subjects this freedom to such restrictions "as are necessary in a democratic
society in the interests of national security, territorial integrity or public safety, for the
prevention of disorder or crime, for the protection of health or morals, for the protection of
the reputation or rights of others, for preventing the disclosure of information received in
confidence or for maintaining the authority and impartiality of the judiciary".

The Irish Constitution does not only guarantee freedom to the media. It also guarantees to
respect the personal rights of citizens. Article 40.3.2 of the Constitution says "the State shall,
in particular, by its laws, protect as best it may from unjust attack (and, in the case of injustice
done, vindicate) the life, person, good name and property rights of every citizen."

DEFAMATION CRITERIA
Defamation has been redefined in the 2009 Act. The Act abolishes the separate torts of libel
and slander, and replaces them with the “tort of defamation”. The tort of defamation consists
of “the publication, by any means, of a defamatory statement concerning a person to one or
more than one person”.

A “defamatory statement” is defined as one “that tends to injure a person’s reputation in the
eyes of reasonable members of society”. The current definition developed by the common
law is a false statement “which tends to lower that person in the eyes of right thinking
members of society or which tends to hold that person up to hatred, ridicule or contempt, or
causes that person to be shunned or avoided by right-thinking members of society”. It is not
anticipated that this new definition will have significant practical impact. A defamatory
statement can still be summarised as a lie that damages your reputation.

DEFENCES
Truth - The defence of justification has been replaced with the defence of truth which
similarly provides that it shall be a defence for the defendant to prove that the statement was
true in all material respects.

Absolute privilege - The Act broadens the defence of absolute privilege. It lists an extensive
range of occasions where absolute privilege arises.

Qualified privilege - The Act gives the defence of qualified privilege a statutory basis. In
addition to providing a list of statements having qualified privilege, it also expressly provides
that the defence of qualified privilege will be triggered where the defendant proves that: the
statement was published to a person(s) who had a duty or an interest in receiving the
information contained in the statement, or the defendant believed upon reasonable grounds
that the person(s) had such a duty or interest, and that the defendant had a corresponding duty
or interest in communicating the statement to such person(s). This is similar to the traditional

20
duty/interest test which previously existed at common law for determining whether an
occasion of privilege arose. The defence of qualified privilege will fail if the plaintiff proves
that the defendant acted with malice.

Honest opinion - The Act replaces the defence of fair comment with the statutory defence of
“honest opinion”. It contains very similar criteria to those for the current “fair comment”
defence. It is difficult to envisage significant practical change from the current defence of
fair comment to this new defence. An opinion is honestly held if: (a) the defendant believed
in the truth of the opinion; (b) the opinion was based on allegations of fact; and (c) the
opinion related to a matter of public interest.

The defendant must prove not only that the opinion is based on allegations of fact, but also
that the allegations are true. The defence will fail unless the defendant proves the allegations
of fact are true, or where he does not prove the truth of all the allegations, that the opinion is
honestly held in respect of those allegations of fact the truth of which has been proved. The
fact that the defendant believed the allegations to be true is insufficient.

Offer to make amends

Under the Act any person who has published an allegedly defamatory statement may make an
offer to make amends. The offer must be in writing, state that it is an offer to make amends,
and state whether it is in respect of the whole statement, or whether it is a qualified offer in
respect of part only of the statement or a particular defamatory meaning only.

Apology - Apologies are currently viewed as an admission of liability, however the Act
provides that an apology will not constitute an express or implied admission of liability and is
not relevant to the determination of liability in an action. Furthermore, the fact that an
apology has been made will not be admissible in any civil proceedings as evidence of liability
of the defendant.

Consent to publish - A person may avail of the defence of consent where he/she proves that
the plaintiff consented to the publication of the statement in respect of which the action was
brought.

Fair and reasonable publication on a matter of public interest - The purpose of this new
defence is to facilitate public discussion on matters of public interest discussed for the benefit
of the public. It will apply where the defendant can prove that the alleged defamatory
statement was published: (i) in good faith, and (ii) in the course of, or for the purposes of, the
discussion of a subject of public interest, the discussion of which was for the public benefit.
The defendant must also show that in all the circumstances, the manner and extent of the
publication of the statement did not exceed that which was reasonably sufficient, and that the
publication of the statement was fair and reasonable. It is for the court to determine whether
such publication was fair and reasonable. In doing so, the court will have regard to a range of
specified matters listed in the Act, which are non-exhaustive.

The Act provides that the failure or refusal of a plaintiff to respond to attempts by the
defendant to elicit his/her version of events, shall not constitute or imply consent to the
publication of the statement, or entitle the court to draw any inference. The purpose of this
provision is uncertain. The legislature perhaps thought its inclusion necessary on the basis

21
that the consent of the plaintiff to publication is a stand-alone defence and it should not
therefore be a criterion for determining whether publication was fair and reasonable.

Innocent publication - The Act provides for a new statutory defence of innocent publication,
similar to the common law defence of innocent dissemination, to a defamation action if the
defendant can prove that:
(a) he/she was not the author, editor or publisher of the statement to which the action
relates;
(b) he/she took reasonable care in relation to its publication, and
(c) he/she did not know, and had no reason to believe, that what he/she did caused or
contributed to the publication of a statement that would give rise to a cause of action
in defamation.

REMEDIES
Lodgment of money in settlement of action - A defendant may in future lodge in court a
sum of money in satisfaction the action, without admitting liability.

Damages - The Act provides that the judge can give directions to the jury in relation to
damages. It gives a range of factors to which the court shall have regard to in making an
award of general damages. It further gives the defendant the opportunity, with the leave of
the court, to make submissions for the purposes of mitigating damages. A judge is currently
not entitled to direct a jury in regard to damages and cannot suggest a range of damages nor
give examples of how much courts award for certain personal injuries.

Declaratory Order - A plaintiff can apply to the Court for a declaration that a statement was
false and defamatory. This order will be made instead of damages. The plaintiff cannot
apply for both a declaratory order and damages. The plaintiff must have requested the
defendant to make and publish an apology, correction or retraction of the defamatory
statement and the defendant must have refused to do so. This is a fast track procedure which
can be heard by a judge sitting alone who will make the Declaration if he/she thinks fit. In
addition to making a declaratory order, the court may make a correction order or an order
prohibiting publication of a defamatory statement. It is questionable whether plaintiffs will
go for a remedy where no damages are on offer. It would be a costly exercise where
solicitor/client costs exceed party & party costs.

Correction Order - A plaintiff can apply for an order directing the defendant to publish a
correction of the defamatory statement. Where a plaintiff intends to make an application for
a correction order he/she must notify the defendant at least 7 days before the start of the trial,
and the court at the trial of the action. The Court can order the defendant to publish a
correction instead of or in addition to damages.

Order prohibiting the publication of a defamatory statement - A plaintiff may apply and
the High Court will grant an order prohibiting the publication or further publication of a
defamatory statement, if in the opinion of the Court, the statement is defamatory and the
defendant has no defence to the action that is reasonably likely to succeed. To date, Irish
courts have shown reluctance to grant pre-publication injunctions in relation to defamation
actions.

22