Law of Tort & Negligence

• A Tort is a Civil Wrong, not a criminal one.
• Civil Law categories include Law of Contract, Consumer/Commercial Law, Employment Law, Family Law, and Property Law.
• Law of Tort includes Defamation and Negligence.
• Law of Tort determines if a wrong has been committed, infringing a duty imposed by law, such as the duty not to cause damage to another’s property, person, or reputation.
• The purpose of a judgement is to impose a settlement, usually compensation.

Negligence

• To succeed in a negligence action, the plaintiff must prove:
• The defendant owed a Duty of Care
• The defendant breached that duty
• The plaintiff suffered reasonably foreseeable loss/damage/injury
• The defendant's breach caused the loss/damage/injury
• All four elements must be satisfied to prove negligence.
• Most civil court actions involve personal injury claims where the plaintiff attempts to prove Negligence and be awarded damages.
• The ‘neighbour principle’ establishes duty of care – a duty is owed to your neighbour.
• A neighbour includes those closely and directly affected by one's actions.
• A manufacturer owes a duty of care to consumers who will use their product without intermediate inspection.
• Civil law, including Law of Tort, is private; parties decide whether to bring a case to court.
• Losing a civil case can be costly, as the losing party usually pays all case costs.
• Litigants must consider the risk of losing a civil case.

Defences to Negligence

• Inevitable accident: Injury occurring despite reasonable precautions is not actionable.
• The defendant only needs to show no reasonable precaution would have prevented the accident.
• Includes "Act of God".
• Case: Stanley v Powell (1891)
• Necessity: Performing a tort to avoid a worse incident absolves liability.
• Case: Cope v Sharpe (1912)
• Statutory Authority: Actions done under express statutory authority are immune unless performed negligently.
• Case: Smith v Wexford County Council (1953)
• Consent of the Plaintiff: Assuming risk voluntarily means no subsequent complaint is possible.
• Knowledge of risk doesn't necessarily imply consent.
• Must show the plaintiff appreciated and consented to the risk, surrendering legal rights.
• Case: Regan v Irish Automobile Club (1990)
• A Disclaimer or Waiver, a consent form, is commonly signed.
• Statute of Limitations 1957 (as amended): Actions generally must commence within 2 years of the event, or the action is "statute barred".
• Defamation has a 1-year limitation.
• Contributory Negligence: Damages are reduced according to the plaintiff’s proportion of responsibility for their harm.
• Case: O Leary v O Connell (1968)
• Negligence can occur by failing to mitigate loss, contributing to the extent of injuries.
• Case: Sinnott v Quinnsworth (1984)
• Res Ipsa Loquitur: The burden of proof shifts from plaintiff to defendant when:
• The wrongdoer had sole control of the incident
• The defendant has knowledge denied to the plaintiff
• The damage wouldn't normally happen without defendant negligence
• In Medical Negligence cases, the defendant (HSE, hospital, doctor) must prove they weren't negligent.
• Case: Macon v Osborne (1939)
• Illegality: A person cannot base a legal action on their own illegal act.
• Example: A trespasser injured on private land may not be able to claim damages.
• Each case is examined on its own merits.

Breach of Duty of Care

• The standard of care is to take reasonable care to avoid foreseeable harm.
• To establish a breach, the plaintiff must prove the defendant failed to act reasonably.
• Courts consider:
• Probability of an accident
• Seriousness of potential injury
• Social utility of the conduct
• Cost of eliminating the risk
• None of these factors are conclusive; the decision involves a judge's value judgement of what constitutes unreasonable conduct.
• Foreseeability is the test for recoverable damage; a person is liable for reasonably foreseeable damages caused by their actions.
• One is only responsible for damages that are reasonably foreseeable.
• The plaintiff must establish a link between the defendant’s act/omission and the damage suffered.
• Case: Kenny v O Rourke (1972)
• A painter who fell off a defective ladder lost his case because he fell due to over-reaching, not the ladder's defect.

Damages in a Tort Action (Judicial Remedy)

• Nominal Damages: A small sum awarded.
• Example: cost of car repair in a damage case.
• Real Damages: Unliquidated damages for actual loss, injury, or damage, including physical and psychological loss.
• Decided on by a judge in personal injury cases.
• Liquidated damages are for a fixed amount, e.g., loan repayment.
• Exemplary Damages: Damages exceeding real damages to punish the defendant.
• Special Damages: Awarded for loss of earnings, medical expenses, etc, even future losses in serious cases.
• District Civil Court:
• Small Claims Court: maximum award of €2,000, but does not deal with personal injury cases
• District Civil Court: personal injuries (Negligence) action up to €15,000
• The judge decides if the Plaintiff succeeds and the compensation amount (no jury in Negligence cases).
• Circuit Civil Court:
• Maximum €60,000 for personal injury.
• Maximum €75,000 for other cases (Defamation, Breach of Contract etc.).
• High Court: No upper limit on damage awards.
• Public Liability and Employer’s Liability Insurance policies are strongly advised for businesses and property owners.
• The level of premium is directly related to the level of risk

Public Liability

• If an organisation is sued by a member of the public or a customer of the business and the Plaintiff wins compensation, it is paid out by the insurer.
• If one did not have this type of insurance cover, they would be liable themselves to pay the compensation to the Plaintiff.

Employers Liability

• If an organisation is successfully sued by an employee and they are awarded compensation, the same situation applies; the insurer pays the compensation provided.
• High litigation and awards in Ireland lead to extremely high insurance premiums.
• Personal Injuries Assessment Board (PIAB):
• Independent statutory body for personal injury claims (except Medical Negligence).
• Claims must be submitted to PIAB first.
• If the defendant doesn't agree to engage, the matter goes to Court.
• Either side can reject the PIAB award and proceed to Court
• Benefits: Less costly and faster than court.
• Based on Personal Injuries Guidelines (replacing the old Book of Quantum).
• These guidelines were issued by the Judicial Council and came into effect from 24th April 2021.
• Guidelines aim to achieve consistency in awards, but PIAB and judges can deviate if explained.
• The guidelines have decreased the amounts to be awarded for various standard injuries.

Defamation

• Defamation is damage to one’s reputation (Defamation Act 2009).
• It involves the publication, by any means, to at least one person, of a statement that injures a person’s reputation in the eyes of reasonable members of society.
• Statements can be verbal, written, broadcast, electronic, visual, or gestural.
• Communication to a third party is essential.
• Making known the defamatory matter to someone other than the person it concerns is publication.
• A Single Tort of Defamation exists under the 2009 Act.
• Libel was permanent format i.e. written or recorded.
• Slander was spoken, without recording.
• A 1-year limitation to commence a defamation action, extendable to 2 by court order.
• Remedy is damages, plus apology and withdrawal of the defamatory statement.
• Defamation can exist by innuendo, i.e., implying something.

Defences in Defamation

• Truth
• Absolute Privilege
• Qualified Privilege: duty of disclosure & fair and accurate reports
• Honest Opinion
• Consent
• Fair and Reasonable Publication
• Innocent Publication
• Truth: Statement true in all material respects.
• The onus of establishing the defence of truth rests on the defendant.
• The media needs to be careful when reporting on criminal matters.
• Refer to suspects as ‘the suspect’ or ‘the alleged perpetrator’ and if charged with a crime, as ‘the accused’.
• All suspects are presumed to be innocent, unless or until they are found guilty in a court of law.
• Following a guilty verdict, the media may rightfully refer to the guilty party as ‘the Murderer’
• Absolute Privilege: Exemption from being sued for statements made within the Houses of the Oireachtas for members of the Dáil and Seanad.
• Also covers proceedings in Courts of Law and Tribunals set up by Government.
• The defence of Absolute Privilege is lost if accusations are made outside of the Houses of the Oireachtas.
• Qualified Privilege: A limited exemption from being sued for defamation.
• Reporting to the Gardaí or Social Services is covered by Qualified Privilege.
• Privilege is lost if the report is made to someone not under a duty to receive it.
• Applies to "fair and accurate reports" of proceedings in the public domain.
• Honest Opinion: Opinion honestly held at the time of publication.
• Must be based on allegations of FACT and must be related to a matter of public interest.
• Consent: Where the Plaintiff consented to the publication of the statement in question.
• Fair and Reasonable Publication: Statement published in good faith, on a matter of public interest and for the public benefit.
• Innocent Publication: It is a defence to prove that the defendant was not the author, editor or publisher of the statement.
• Sometimes a combination of Defences is used e.g. Truth & Fair and Reasonable Publication.
• Circuit Court: If seeking up to €75,000 in damages.
• No jury.
• High Court: If seeking more than €75,000 in damages.
• There is a jury in high court defamation cases.
• The jury decides on the outcome of the case and also on the amount of damages if successful.

Vicarious Liability

• Vicarious Liability is a liability that arises indirectly.
• An employer may be sued for the wrongful/negligent actions of an employee.
• Employer not responsible for torts of independent contractors.
• An employee is engaged under a contract of service and is under the control of the employer.
• An independent contractor is engaged under a contract for services to the employer.
• Employers are liable for discriminatory acts of an employee in the course of their employment.
• It is not a defence that the act was done without the employer’s knowledge or approval.
• Adequate, suitable and proper training is vital.
• Keep training records signed by employees.
• Employees should be trained in the provisions of the Equal Status Acts 2000 – 2018.
• Train employees involved in recruiting and interviewing in the provisions of the Equality Acts 1998 – 2015.
• A core issue is whether an employee was acting in the course of their employment when the alleged tort occurred.
• Case: Duffy v Orr (1941)
• A salesman took the delivery van on one occasion and injured the Plaintiff.
• The employee was acting outside of the course of his employment; therefore the employer was not held vicariously liable
• An employer could be sued under the Health, Safety and Welfare at Work Act 2005 (as amended) for failure to provide a safe place of work
• A case could be taken against an employer under the Employment Equality Acts 1998 – 2015 if cyberbullying amounts to harassment or discrimination under one of the 9 grounds in the Act.
• Employers are likely to successfully defend themselves if they show evidence of procedures in place to prevent, detect and address cyberbullying.

Employment Equality Acts 1998 – 2015

• The Act prohibits discrimination, both direct and indirect, on 9 Grounds:
• Gender
• Civil status
• Family status
• Sexual orientation
• Religion
• Age
• Disability
• Race
• Membership of the Traveller community
• Discrimination means treating someone less favourably than others
• Proof must be provided.
• There is an online form on the WRC website where one can fill in the details of their complaint.
• If it comes under Equality legislation, it will be passed on to the Equality Tribunal.
• Investigated by an Equality Officer.
• The complainant will usually be awarded compensation if successful.

Examples of some typical cases:

• A woman denied promotion for pregnancy/maternity leave reasons
• A worker unfairly chosen for redundancy or compulsory retirement on Age grounds or indeed, denied promotion etc.
• A recruitment company advertising for Irish nationals only.
• Most employers don't ask for date of birth nor gender on job application forms.
• Reasonable Accommodations must be provided for staff with any type of disability.
• There may be Genuine Occupational Reasons sometimes for advertising a job to either Female only applicants or Male only applicants.

Equal Status Acts 2000 – 2018

• Prohibits discrimination in accessing goods and services, accommodation, and education.
• Shares the same 9 grounds as the Employment Equality Acts, plus housing and victimisation.
• Typical cases involve refusal of service based on membership of the Traveller community or other grounds.

Tort of Trespass

• Consists of the direct interference with the person, land, or goods of another.
• Actionable ‘per se’ meaning the Plaintiff does not have to prove actual loss.

1. Assault

• Assault is the threat, or the attempt to apply force, which puts another in reasonable fear that immediate violence will follow.
• It is the fear of the use of immediate violence that is at the core of this tort.
• Assault may be prosecuted separately as a crime, here we are dealing with the tort of assault where a plaintiff may sue for assault in a civil case.

2. Battery

• Battery consists of the touching of another, either directly or indirectly, with either hostile intention or against that person’s will.
• This type of tort is actionable ‘per se’.

3. False Imprisonment

• The unlawful and total restraint of the personal liberty of another.
• The essential element is the unlawful detention of the person, or the unlawful restraint on their liberty.
• It is not false imprisonment to block a person’s way, though it may be nuisance.