Legal Duty of Care

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THE DUTY OF CARE IN IRISH TORT LAW Author: Anna Louise Hinds, B.Corp.Law, LL.B (N.U.I.), LL.M (Bruges). Examiner – Legal Framework Formation 1.

Introduction The duty of care arises in the tort of negligence, a relatively recently emerged tort. Traditionally, actions in tort were divided into trespass and trespass on the case, or simply ‘case’. Trespass dealt with the situation where the injury was immediate, in other words direct and foreseeable. Actions based in case however, covered consequential injuries in the case of libel or deceit, etc. An underlying problem of this approach was that there was no fundamental principle or test that was applicable to a novel set of facts. A broader formulation was introduced by Lord Esher (then Brett M.R.) in Heaven v Pender [1883] 11 Q.B.D. 503. This broader formulation was very much the precursor to the modern doctrine of negligence. Lord Esher, essentially proposing a doctrine of foreseeability, explained why a duty might be owed by one party not to injure another. He stated that “whenever one person is by circumstances placed in such a position with regard to another, that everyone of ordinary sense would at once recognise that if he did not use ordinary care and skill in his own conduct with regard to those circumstances he would cause danger or injury to the person or property of the other, a duty arises to use ordinary care and skill to avoid such danger.” The Elements of Negligence Since this case, a number of elements have been established in order to prove the tort of negligence. Firstly, there must be a duty of care. Secondly, there must be a breach of this duty of care. Thirdly, there must be loss or damage and fourthly, there must be a causal link between the breach of the duty of care and the loss or damage suffered. The Duty of Care In Lievre v Gould [1893] 1 Q.B.D. 491, Lord Esher stated that “the question of liability for negligence cannot arise at all until it has been established that the man who has been negligent owed some duty to the person who seeks to make him liable for his negligence. A man is entitled to be as negligent as he pleases towards the whole world if he owes no duty to them.” The general principle is that you should not harm those people to whom you owe a duty of care by your acts or omissions. If you fail in the standard of care owed, you will be liable for your acts or omissions due to negligence. The questions arise as to whom a duty is owed and more significantly as to the standard of the duty owed. In Ireland, a duty is generally owed to any person who can be classed as your neighbour, which involves issues of proximity, foreseeability and policy considerations. Differences exist in Irish and English law in terms of who is owed a duty of care. As regards the standard that is owed, it is that of the ‘reasonable person’. The cornerstone of the duty of care principle, was expounded on the basis of the now dogmatic ‘neighbour principle’ by Lord Atkin in Donoghue v Stevenson [1932] A.C. 562. The case involved a woman who had suffered shock and gastroenteritis upon the consumption of a bottle of ginger ale. The shock and gastroenteritis resulted from a decomposed snail at the bottom of the bottle. The plaintiff had no action against the shop owner, as he had not been negligent in any way. The question was whether she take an action against the manufacturer of the ginger ale. The Court ruled in her favour, finding that a duty of care was owed to your ‘neighbour’. Lord Aiken stated that:

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“The rule that you must love your neighbour becomes in law you must not injure your neighbour; and the lawyer’s question, who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be liable to injure your neighbour. Who, then, in law, is my neighbour? The answer seems to be - persons who are so closely and directly affected by my act that I ought...
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