Contributory Negligence Law: Analysis And Jurisdiction Essay.

The duty of care in negligence was established by Lord Atkins in Donoghue v Stevenson [1932] A.C. 562. However, the long expansion of the duty of care over the course of the twentieth century came to a definitive halt in Glencar v Mayo County Council [2002] ILRM 481. In Glencar, the Court decided that policy, and not proximity, should decide whether a duty of care exists.

Duty of Care

Topic : Prior to 1961 and the introduction of the Civil Liability Act contributory negligence was a complete defence to any negligence action.

Using relevant case law and referring to the above statement outline and critically analyse the law surrounding the defence of contributory negligence.

The law and jurisdiction surrounding contributory negligence is immensely important. I would first like to mention one of the most important elements of negligence which is duty of care. Duty of care is a moral or legal obligation to ensure the safety or well-being of others.

It is the first and most significant principle of negligence. The duty of care is the skeleton used by the courts to determine whether the defendant is liable in negligence for the injuries of the plaintiff. Under this principle, we find out if duty of care is owed to the plaintiff.

Up until the case of Donoghue v Stevenson (1932) ac 562 there was no concept of a duty of care between individuals. There must be proximity between the plaintiff and defendant to establish negligence and receive compensation. The plaintiff must prove 51% or more on the balance of probabilities to prove a wrong doing was made against them.

In Donoghue v Stevenson (1932) ac 562, the plaintiff wasn’t owed a duty of care because she had not bought the can of alcohol, her friend had bought the drink for her. Therefor the courts recognised that if the former acted carelessly thereby injuring the plaintiff, and action in negligence could be brought.

If it was reasonably foreseeable that the plaintiff would be injured then a duty of care does exist.

In Palsgraf v long island rail road (1928) 28 NY 33 it was held that the railway did not owe the plaintiff a duty of care. The course of events wasn’t reasonably foreseeable. It was not foreseeable that the plaintiff would suffer from injuries as a result of the defendant's negligence.

Secondly I’d like to state another important element of negligence, which is the Standard of Care/Breach of the Duty of Care. The courts’ have created an objective test to decide whether the defendant has taken proper care. This test is called the reasonable man. The test is objective. This test is objective and does not take account of individual unconventional behaviour.The more likely the accident, the higher the standard of care expected of the defendant.

In Connolly v. South of Ireland Asphlt Co. Ltd. (1977), if the defendant miscarries to do something which a reasonable person would not do, he will then have breached the duty of care owed to the plaintiff.

Wallace v Flynn high court, may 1, 2002 the defendant was found not liable. There was no way he could have foreseen the course of events that have occurred. He was not aware of the previous complications between the plaintiff and his aggressor. The court stated that even with a full security team would not have prevented the assault.

Moving on, I’d like to bring forward my next point, Causation and Remoteness. Once the plaintiff has proven that the defendant owed him a duty of care, he must then finally prove damage.

Standard of Care/Breach of Duty

In examining whether the defendant is liable for the damage therefore, the courts have regard to two general factors.

Firstly, Factual causation is when the plaintiff must establish that the defendant’s negligent action actually caused the harm. The courts must examine the factors that may have led to the accident. The courts, therefore, use a number of tests in order to govern whether the defendant physically/scientifically initiated the damage.

In order to determine which action caused the plaintiff’s damage, the courts have established the ‘but for’ test. Damage’s would not have been caused to the plaintiff, but for the defendant’s actions, then the defendant is said to have factually caused the damage.

In Kenny v. O’Rourke [1972] IR 339 it was shown that the plaintiff fell off the ladder because he leaned over too far, not because of the defect in the ladder. But for the plaintiff leaning too far, he would not have fallen. The negligence of the defendants did not cause the plaintiff’s injury.

The material contribution test follows the “but for” test, the “but for” test is used by the courts to differentiate the irrelevant claims from those that are relevant. The “but for” test is useful as a preliminary guide. However in certain cases it may not be possible to prove to the appropriate standard (50 %+), that a specific act did cause the accident. The courts rely on legal causation to determine the cause the accident. The material contribution test is one way the courts establish which cause was the legal cause.

In Bonnington Casting v. Wardlaw [1956] 1 All E.R 615 (hl) the court decided that if it could be recognised that the dust from the grinders materially contributed to his injuries, as opposed to forming that it was probable that the dust from the grinders caused the damage. The court stated that a causative factor would be considered to have materially contributed to the damage where it was not minimal.

Secondly, legal causation is when the law must hold the defendant liable (if the damage foreseeable?).

The case of Clabby v. Global Windows and An Post, High Court, 21 January 2003 provides an illustration between factual and legal causation. It was held that the low level of the letterbox was the factual cause, without which the injury would not have occurred. However, the court held that legal causation had not been established against the defendant. The court held that the plaintiff’s failure to remove his bag and put down his mail before bending down was legal cause and the responsibility he was liable for himself.

Novus Actus Interveniens, the chain of causation between the defendant’s original negligence and the plaintiff’s injuries may be broken by an intervening act of a 3^rd party.

In McKew v. Holland and others [1969] 3 All ER 162 the house of lords held that the plaintiff’s conduct is going down the steep flight unaided was unreasonable and had the effect off breaking the chain of causation. Lord Reid stated,” if the injured man acts unreasonably, he cannot hold the defendant liable for injury caused by his own unreasonable conduct.

The defendant cannot be liable for your own accident. It is generally accepted that the intervening act of the third party must be a voluntary one.

In Hayes V Minister for finance (2007) regarding the motorbike being pursued by the Gardi resulting in injury to the pillion passenger, the Supreme Court held that the failure of the motorbike to stop led Gardi to suspect criminal activity and therefore the decision to pursue was not in breach of the duty of care to the passengers of the bike where their belief was reasonable.

The nature of the third party’s driving amounted to a Novus Actus which caused the plaintiff’s injuries. The court held that to hinder the Gardi in their efforts to prevent offences by relaxing the causation requirement would offend the consideration as to whether, in all the circumstances, it was just and reasonable to impose a duty of care.

Proof of negligence is the last element I would like to mention, the doctrine of Res Ipsa Loquitur is literally translates as ‘the thing speaks for itself’. The standard of proof or degree of proof required to discharge the burden of proof in civil cases is referred to as ‘the balance of probabilities’.

In Mallerr v McMonagle [1970] AC 166 the quote “...Anything that is more probable than not is treated as certain”.

In Scott v London and St. Katherine docks Co. [1861] ER Rep. 246 the plaintiff was passing under a loading bay of the defendant’s warehouse when six  sacks of sugar fell from the bay and landed on him. There was no clear explanation as to how this happened. The jury was for the defendant on the basis that satisfactory evidence of negligence of the defendant had not been presented.

The plaintiff will then have discharged the burden of proof. On the further evidence on behalf of the defendant this inference can be rebutted.

In conclusion, contributory negligence in common-law jurisdictions is generally a defence to a claim based on negligence, an action in tort. This principle is relevant to the determination of liability and is applicable when plaintiffs have, through their own negligence, contributed to the harm they suffered.