The Duty of Care in Irish Tort Law
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
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