Defences In Negligence Notes

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...

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