Posted in General Legal Tips on 19 March 2014

What is the Tort of Negligence?

The tort of negligence is the most common area of tort law in modern litigation. To be successful in civil litigation a person must prove that they have been injured as a result of the negligence of another. Negligence is a failure to exercise the care that a reasonably prudent person would exercise in like circumstances. The area of tort law known as negligence involves harm caused by carelessness, not intentional harm and the core idea is that people should exercise reasonable care by taking account of the potential harm that they might foreseeably cause to other people.

Scope of the Tort of Negligence

The tort of negligence is a very wide area of law and covers a huge variety of situations. Through civil litigation, if an injured person proves that another person acted negligently and that action caused their injury, they can recover damages.

To succeed in a negligence action, however, one must prove, on the balance of probabilities, that the Defendant owed them a duty of care, the Defendant breached this duty of care and the Defendant’s actions caused the Plaintiff to suffer injury/harm/damage.

The application of the general negligence principles is not always straight forward and in fact prior to the decision of the landmark decision in “Donoghue v Stevenson”, negligence law was obscured by a surfeit of rules.

Case Facts

In 1932, Ms. Donoghue, the Plaintiff, consumed a bottle of ginger beer in a restaurant. This dark opaque bottle of beer was purchased for her by a friend. Having drank some of the beer, Ms. Donoghue poured the remainder of the beer into a glass and to her horror, she discovered the remains of a decomposed snail. Ms. Donoghue fell ill and took action against the ginger beer manufacturer.  It was argued by the Defendants that because the defective product had not been directly purchased by the Plaintiff, but by her friend, that they had no contractual relationship and thus she had no action in negligence. The Plaintiff however argued that the Defendant could have reasonably foreseen that their products would be consumed by persons, other than those who purchased the beer, and indeed would ultimately reach the end consumer, therefore owing a duty of care to consumers. (Even consumers that the manufacturers/retailers had not sold directly to)

The Neighbour Principle

Lord Atkin in this matter delivered the renowned judgement whereby he introduced the “Neighbour Principle”. This principle is said to have unified the various rules under one umbrella and established that one must take reasonable care so as to avoid acts or omissions which one can reasonably foresee would be liable to injure someone so closely and directly affected by one’s act, irrespective of the presence, or indeed absence, of a contractual relationship.

Who then, in law, is my neighbour?

The neighbour principle, to this day, plays an important role in our negligence laws, but who, in law, is my ‘neighbour’? Lord Atkin described a neighbour at law as being “persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.[1]

It seems therefore that, our “neighbours” could be, for example, pedestrians on the road, other car drivers, customers, manufacturers, employees. In fact, in most cases, our neighbours are persons that we do not even know. Each person must take reasonable care so as not to carry out an act or omission which could cause injury or harm to another. Take for instance a road traffic accident or indeed a slip and fall incident, all cases look to the negligence of the Defendants and in so doing establish if he/she could have reasonably foreseen that their acts or omissions could have caused the injury or harm to the other person.

The idea that a duty of care arises, irrespective of the presence or absence of a contractual relationship between parties, was first accepted by an Irish Court in 1944 by Gavan Duffy J[2] and to this day is known as the cornerstone of modern negligence law.

Contact us at Cantillons Solicitors at +353 (0)21 -4275673 or [email protected] if you would like more information.

* In contentious business, a solicitor may not calculate fees or other charges as a percentage of any award or settlement.

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 [1] [1932] A.C. 580 (HL)

[2] Kirby v Burke [1944] I.R. 207 HC


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