#5411 - Defences In Negligence - Irish Tort Law

Defences in Negligence

Contributory Negligence

• S.34(1) Civil Liability Act 1961 provides that where damage suffered by the plaintiff arises partly as a result of the defendant's actions and partly as a result of the plaintiff's own actions, then damages must apportioned proportionately between them.

• In negligence the question is whether the plaintiff exercised reasonable care in respect of his own safety.

• The principle in ascertaining the standard of this care is the same as in negligence generally.

• Contributory negligence is concerned with the extent to which the plaintiff contributed to his own injuries, as opposed to the accident which cause those injuries.

• Causation must be shown, normal causative principles apply.

• The damage is apportioned according to which side has deviated more from the reasonable standard of care as opposed to the side that caused the most damage.

• Voluntary intoxication is irrelevant to the apportionment of damage.

Consent or Waiver

• s.34(1)(b) provides that contributory negligence shall apply regardless of voluntary assumption of risk, but not waiver or exclusion of liability.

• Some sort of intercourse or communication is required to constitute a waiver of liability.

O'Sullivan v Dwyer (SC 1971)

Facts

1. The plaintiff was a carpenter who was doing roofing work for the defendant.

2. He fell while engaged in this work, partly due to his being in a dangerous position a the time of the fall.

Issue

• Constributory Negligence – Moral blameworthiness

Judgment

1. Ó Dálaigh CJ(concurred with Walsh J)

2. Walsh J

   • The question of apportionment of fault does not arise unless there a causative element on the part of the plaintiff.

   • The damages should be apportioned according to the moral blameworthiness of the parties' causative contributions.

   • Blameworthiness is to be assessed according to the objective standard of the reasonable person of the individual's relevant class.

3. Fitzgerald J concurred in the judgment.

Carroll v Clare Co. Council (SC 1975)

Facts

1. The plaintiff collided with a trafffic island which was illuminated and accompanied by old road markings.

2. The plaintiff contributed to the accident by driving too fast and failing to keep a proper look out.

Issue

• Contributory Negligence – Deviation from the standard of the reasonable man/woman

Judgment

1. Henchy J (concurs with Kenny J)

2. Griffin J (concurs with Kenny J)

3. Kenny J

• The Civil Liability Act 1961 allows for the apportionment of damages between defendant and plaintiff according to the degree of fault on either side.

• This was described as 'moral blameworthiness' in O'Sullivan v Dwyer.

• It is better described as the extent of the departure from the standard of behaviour to expected of the reasonable man or woman given the circumstances.

• It is not a principle of law that someone who maintains a danger is more blameworthy than someone who commits a causal act of negligence.

Boyne v Bus Átha Cliath (HC 2002)

Facts

1. The plaintiff had drunk six pints and was injured as he got off a bus.

Issue

• Constributory Negligence – Intoxication

Judgment(Finnegan J)

• The driver was liable in that he failed to take particular care not to hit the plaintiff, knowing of the plaintiff's condition.

• Where a plaintiff is drunk and cannot properly take reasonable care for himself, this is relevant to the extent of the defendant's duty of care.

• Where there is contributory negligence on the part of an intoxicated plaintiff, his intoxicated state is to be disregarded.

• Fault apportioned- 75% to defendant, 25% to plaintiff.

Curley v Dublin Corporation (HC 2003)

Facts

1. The defendant was a firefighter working for the defendants.

2. He injured himself while the fire truck he was in collided with two cars.

3. The defendants claimed that he failed to mitigate his losses through requesting light duties, failing to apply for promotion and failing to take steps to maintain his employment.

Issue

• Contributory Negligence – Failure to Mitigate Loss

Judgment(Gilligan J)

• The onus is on the plaintiff to show that the injuries suffered as a result of the defendants' negligence directly contributed to the termination of his employment with them.

• The onus is on the defendants to show that the plaintiff did not take reasonable steps to mitigate his loss.

• The plaintiff did not take reasonable steps to mitigate his loss.

• However the defendant's still contributed to this loss as they failed to assist him in taking on new duties, and they were all too willing to accept his retirement.

McComiskey v McDermott (SC 1973)

Facts

1. The plaintiff was a navigator in the defendant's car during a rally.

2. The plaintiff was injured when the car overturned into a ditch.

3. The defendant had a notice on the dashboard of his car stating that passengers travelled at their own risk.

Issue

• Voluntary Assumption of Risk – Notice

Judgment

1. Walsh J

   • Neither the defendant nor the plaintiff considered the notice to affect their relationship.

   • Thus it fails to constitute a waiver for the same reason as in O'Hanlon v ESB.

1. Henchy J

   • The plaintiff did not take the notice seriously, nor did defendant expect it to be binding.

   • In those circumstances it could not be said to constitute a valid waiver.

2. Griffin J

   • O'Hanlon v ESB:

     • The word 'agree' in the context of the Civil Liability Act means that the plaintiff has made a communication to the defendant from which can reasonably be inferred that he waived his right to sue.

   • In this case there was no communication from which the above could reasonably be inferred.

Hamill v Oliver (SC 1975)

Facts

1. The plaintiff was injured in a car accident caused by the defendant's negligence.

2. She had not been wearing a seat belt, which resulted in her having exacerbated injuries.

Issue

• Contributory Negligence – Seatbelts

Judgment

1. O'Higgins CJ (concurred with Griffin J)

2. Henchy J (concurred with Griffin J)

3. Griffin J

   • Where plaintiff's injuries are caused wholly or in part by his/her failure to wear a seatbelt, then there is a prima facie case for contributory negligence.

     • The onus is on the plaintiff to show, where they have failed to wear a seatbelt, that there are excusing circumstances – e.g. pregnancy.

O'Hanlon v ESB (SC 1969)

Facts

1. The plaintiff was employed by the defendants.

2. He required an article of equipment to ensure his safety in performing a task for the defendants, which he did not possess.

3. He performed the task without using the equipment and was injured.

Issue

• Voluntary Assumption of Risk - Communication

Judgment

1. Ó Dálaigh CJ (concurred with Walsh J)

2. Walsh J

   • Under the Civil Liability Act, 1961 a plaintiff can only be said to have voluntarily assumed risk if he agreed to waive his legal rights prior to the act complained of.

     • In this context 'agreed' requires that there be a communication between parties before the event that can reasonably be understood to mean that one party waived his right of action.

       • A plaintiff choosing a dangerous occupation does not voluntary assume the risk of injury through another's negligence.

   • In terms of causation, the question is whether or not the defendants could reasonably have foreseen that in the absence of the proper equipment that the plaintiff would continue with his work.

     • This is a question of fact for the jury to decide.

3. Budd J (concurred with Walsh J)

4. Fitzgerald J (concurred with Walsh J)

5. Haugh J (dissenting)

   • The plaintiff was fully aware of the high probability of injury when he chose to proceed with the task.

     • As such he was the sole progenitor of his own misfortune and should receive no damages.

Ryan v Ireland (SC 1989)

Facts

1. The plaintiff was on a UN mission under the command of the Department of Defence.

2. He was ordered to rest from sentry duty in an unprotected and exposed billet where he was injured in a mortar attack.

Issue

• Voluntary Assumption of Risk

Judgment

1. Finlay CJ

   • To avail of the defence of voluntary assumption of risk, the defendants must prove that in signing up to the defence forces, the plaintiff entered into a contract waiving his right to sue in case of negligence.

     • In joining, the plaintiff agreed to expose himself to the ordinary risks inherent in the occupation, but not to injuries suffered through negligence.

   • There is a different standard of care depending on whether the plaintiff is actively involved in attack or a passive role.

     • In this case, coming off sentry duty, his CO was obliged to take reasonable and practicable steps to ensure his safety.

2. Hamilton P (concurred)

3. Walsh J (concurred)

4. Griffin J (concurred)

5. Hederman J (concurred)

Hackett v Calla Associates (HC 2004)

Facts

1. The plaintiff was injured by bouncers after he was ejected for causing serious trouble in a club.

Issue

• Contributory Negligence – Criminal Behaviour

Judgment (Peart J)

• Where contributory negligence takes the form of criminal behaviour, then this behaviour should not be implicitly condoned by taking a lenient approach to contributory negligence.

  • Contributory negligence set at 50%

Devlin v Cassidy (HC 2006)

Facts

1. The plaintiff was being driven home by the defendant when they were both drunk.

2. The plaintiff claimed he was wearing a seatbelt.

3. The defendant crashed the car killing himself and injuring the defendant.

Issue

• Contributory Negligence – Being driven by a drunken companion

Judgment (Peart J)

• Looking at the plaintiff's injuries,...