Professional Documents
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4 Tort Law 2017.2018
4 Tort Law 2017.2018
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
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.
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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
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
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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.
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.
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.
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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.
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
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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.
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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 .
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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
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.
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court
1 intro
In general terms the law requires that reasonable care be taken to avoid injury to those to
whom a duty is owed.
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.
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
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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
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.
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
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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.
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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.
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.
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.
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)
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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.
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Vicarious Liability
1 Intro
The law is sometimes prepared to hold one person liable for the wrong committed by
another.
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
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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 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”
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
The conduct must be linked to the performance of the employee’s legitimate functions
Nowadays question not whether the act was permitted by the master, but was it within the
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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
O’CONNELL V BATEMAN
Servant borrowed Master’s Lorry after work to visit parents. Master not liable when servant
involved in an accident.
(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.
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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.
___________________________________________
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.
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of care required.
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
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moveable structures and means of transport
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)
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.
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.
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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.
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.
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.
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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.
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.
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.
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
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
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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
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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.
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
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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.
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