Tort of negligence = failure by Def to conform with standard of behaviour.
Negligence is the omission to do something which a reasonable person guided upon those considerations which ordinarily regulate the conduct of human affairs would do or doing something which a prudent & reasonable person would not do.
While a loss from an accident usually lies where it falls a defendant cannot plead accident if, treated as a man of ordinary intelligence & foresight he ought to have foreseen the danger which caused injury to the Pl.
1. Knowledge – Expected to know facts of common experience e.g. basic properties of ordinary machinery. 2. Physical capacity – i.e. the victim of heart attack wouldn’t be expected to perform to physical standards he can’t meet. O’Brien v Parker def crashed into Pl. Defence = suffered epilepsy attack. Experiences at home before driving. Imposed liability on defendant strongly influenced by Defendants right to act. 3. Mentally disordered patients – unclear – no Irish decisions- Armstrong v Eastern Health Board – patient fell from building – inadequate care – not guilty of contributory negligence as not in control of own thoughts.
TEST FOR REASONABLE MAN
a) Plunkett v St Lawrence Hospital – not foreseeable that quiet patient with suspected spine injury and hardly able to move could fall off an x-ray couch. b) Kelly v St Lawrence Hospital – liability imposed where an inpatient admitted to hospital for observation when being taken off drugs for epilepsy was permitted to go to 1st floor toilet, resulting in falling out the window. c) The less the risk of injury the less likely Defendant will be guilty of negligence – Healy v Bray UDC – falling rock. d) O’Gorman v Ritz Cinemas – UPHELD in Walsh v Dublin Corporation – thumb got stuck in a door. It was held wind tunnel caused accident and this could have happened anywhere.
2. Gravity – where potential injury is great – creation of slight risk may constitute neg. a) Hughes v Ballynahinch Gas Co – highly poisonous gas leak from faulty joinder in pipe. Pl sustained injuries in gas explosion. b) Paris v Stephney Borough Council – one eye
3. Social Utility of Defendants Conduct – reason for action a) O’Connell v CIE – person attempting to save a life of another will drive with less care than Sunday driver – bus driver swerving & breaking to avoid child could not be liable. b) Frawley v CIE – Bus driver braking to avoid dog not negligent. c) Turner v Irish Rail & Or – Pl child got through gap in fence on railway like – Pl though train was coming, got through the fence running down the tracks and tripped on wire and cut leg. HELD Irish Rail owed duty of care in failing to adequately fence the railway of course the mother would be agitated and frightened if can’t find child.
4. Cost of Eliminating Risk
a) O’Gorman v Ritz Cinema
b) McSweeney v An Garda Siochana Boat Club – spilt drink
Considerations in employment matters – some jobs cant be done without risk a) Barclay v An Post – Pl sought remedy for delivering post to houses with letter box at bottom of the door HELD “No practical satisfactory answer other than to eliminate low letterboxes”. b) Coyle v An Post – baulked at proposition employer guilty of negligence when employee took car out in bad weather conditions to get money to replenish funds that had run low because of high demand.