Liability for Injuries Caused by Animals-What You Should Know

animals damage law

The rules which relate to liability for damage or injury caused by animals fall into two categories:

  1. Special rules, providing for strict liability
  2. General rules in accordance with the principles of tort.

Liability Under the General Rules of Tort

Under the general rules of tort liability can arise under a number of headings:

  1. Negligence-the usual rules of negligence will apply
  2. Nuisance
  3. Trespass, and there is a distinction between general rules in relation to trespass and special rules of cattle trespass. Liability under cattle trespass is strict liability whereas other types of trespass may require negligence or intention on behalf of the cattle owner.
  4. Occupier’s Liability-liability may also arise under the Occupiers’ Liability Act, 1995.

Special Rules

One of the special rules concerning animals draws a distinction between wild animals and domestic animals.

The owner of a wild animal is strictly liable for any damage caused by that animal. This is the scienter principle.

The owner of a tame, domestic animal on the other hand will only be held liable if he is aware of a “mischievous propensity” in the animal to do damage that ultimately is complained of. It does not matter how the owner knows of this malicious tendency.

This mischievous propensity must be “a vicious, mischievous or fierce tendency”.

A defence in a scienter action will be the contributory negligence of the plaintiff, although this will only reduce the liability of the defendant.

Dogs

The Control of Dogs Act 1992 sets out the statutory position in Ireland with respect to liability of owners of doges for damage done. The Control of Dogs Act, 1986 is also relevant and section 21 of that act imposes strict liability for injuries caused by dogs to animals or persons. For strict liability to arise, however, in relation to a person there must have been an attack whereas there is strict liability in respect of damage done to livestock, with no need to show an attack took place.

A person will still have a cause of action under the scienter rule if he can show the dog had a mischievous propensity and the keeper of the dog knew this.

When a trespasser is injured by a dog the ordinary rules of negligence apply-this is not an incidence of strict liability (ref section 21(3), Control of Dogs Act, 1986).

The 1986 Act also provides remedies in the District Court for nuisance caused by barking dogs.

Cattle Trespass

Cattle which stray from their owner’s land onto another person’s property will give rise to their owner being held liable. This liability only arises when the cattle stray of their own accord.

“Cattle” includes horses, sheep, goats, pigs, assess, domestic fowl and deer.

Who is liable, however, the owner of the cattle or the owner of the land? It appears from decided cases that the person who has possession and control of the animals is liable, not the owner of the land or cattle.

The extent of the liability will be for damage done to land, crops, and animals.

Defences include

  • An act of God
  • The plaintiff’s own fault
  • Contributory negligence
  • The wrongful act of a third party.

Animals on the Road

The normal rules of negligence, discussed already, will apply. Section 2 of the Animals Act, 1985 abolished any immunity for liability in negligence. Strict liability does not apply, however, and to avoid liability a landowner needs to show that he took reasonable care in respect of fencing.

Horses in Urban Areas

The Control of Horses Act 1996 was introduced to deal with the problem of keeping horses in urban areas.

Professional Negligence Law in Ireland – The Facts You Should Know

professional negligence

Professional persons owe contractual duties to their clients, but they also owe a duty of care and can, therefore, be held liable in negligence.

When does professional negligence arise?

Is a professional expected to know everything in her field?

Must he always be right?

Customary Practice

A key principle in looking at this area is that of “customary practice”. If a member of a profession can show that he/she adhered to customary practice in his profession, he may avoid liability in negligence. He will further insulate himself from liability in negligence if he exercises a standard of care which a reasonably careful member of the profession would exercise.

Medical Negligence

The basic test is whether the doctor or medical professional has behaved reasonably. The seminal case in this area is Dunne v National Maternity Hospital in which Finlay CJ held that an

“the true test for establishing negligence in diagnosis or treatment on the part of a medical practitioner is whether he has been proved to be guilty of such failure as no medical practitioner of equal specialist or general status and skill would be guilty of if acting with ordinary care”.

The Courts have also warned against being wise after the event and failing to make allowances for the complicated task facing a doctor. Furthermore, a doctor will not be guilty of negligence if he makes an error of judgment provided that error is not an unreasonable one.

There is a duty to keep reasonably up to date with changing medical thinking and literature.

A specialist in a particular field is expected to have the ordinary skills that specialists in the same field hold.

General practitioners are obliged to make a reasonable diagnosis, not a correct one, and if he/she is uncertain should refer the patient for specialist investigation.

Other medical personnel are expected to act in accordance with the standards of reasonable members of their area of work; if they do not they may be held guilty of negligence.

The law does not require a medical professional to make a correct diagnosis in every case, only a reasonable one in the circumstances. The same principle of reasonableness applies in relation to treatment-what is necessary is that the doctor act reasonably in the provision of treatment.

Unqualified Persons

The Courts recognise that a person who has no medical qualifications cannot be held to the same standard as a medical professional when it comes to things such as ear piercing. Nevertheless, that person will be expected to have the medical skills he claims to have, even if he does not hold the medical qualifications.

Informed Consent

Treatment without informed consent could arguably be characterised as battery or negligence. In Ireland the Supreme Court has held that it is negligence. The law is in a confused and unsatisfactory state in relation to informed consent, with different approaches required in respect of elective surgery and non elective.

The Courts have also grappled with the problem of full disclosure to a patient in respect of proposed surgery versus not worrying the patient unnecessarily be setting out all possible risks, however remote.

 

A higher standard of disclosure and explanation will be required where the informed consent is in respect of treatment for the purposes of medical research.

Barristers

There appears to be a difference recognised between a barrister’s work as a court advocate and other legal work, with a view that a court advocate, whether barrister or solicitor, should enjoy a certain immunity as a public policy.

There is no definitive decision one way or the other in Ireland, however, with different approaches being taken in the United Kingdom.

Solicitors

Solicitors owe professional duties of care to their client in contract and in tort for negligence.

A solicitor’s liability in tort will even be owed to a person for whom he acts without reward and who relies on his professional care and skill.

The Standard of Care for Solicitors

A solicitor who gives incorrect advice where the law is clear will be liable in negligence. Where the law is not clear, however, advice may be reasonable, and therefore no negligence, although later turns out to be incorrect.

A solicitor may also be liable in negligence if he fails to give advice in a transaction in which he is engaged.

A solicitor can be held liable in negligence in litigation in a number of ways:

  1. Choosing the wrong Court to bring the case in;
  2. How he liaises with counsel on behalf of the client-where he puts his client’s claim fully before counsel and acts on counsel’s advice he will not be guilty of negligence;
  3. How he performs his advocacy duties;
  4. Delay in initiating or progressing litigation.

A solicitor acting in a property transaction, however, is in dangerous territory in respect of a potential negligence claim. Liquor licences can also cause problems and requires care.

A solicitor also needs to avoid following client’s instructions slavishly for the solicitor cannot abrogate his duty to use his skill, knowledge, and experience.

A solicitor will also leave himself open to a negligence claim if he has a conflict of interest between himself and his client.

Conclusion

A professional person must act in accordance with customary practice to avoid being liable in negligence; he may have an exposure for breach of contract, however.

Liability of Vendors, Builders and Lessors for Defective Premises

defective-premises

What is the liability, if any, of vendors, builders, or lessors of defective premises?

Let’s take a look.

Contract-liability of vendor and lessor

Caveat emptor is the contractual rule that prevails. Caveat emptor means “buyer beware”, therefore if you are a buyer you need to carry out your own enquiries and inspections, for neither the vendor nor lessor will be held liable for any defects in the premises, unless he has made some express warranty.

There are some exceptions, however, to the rule that no warranties are implied by the vendor or lessor of real property. For example:

  1. Where a vendor sells a house in the course of construction certain implied terms will be implied by the Courts
  2. A lessor of a furnished premises to be used for residential accommodation implies the premises will be fit for such occupation.

Tort

The general rule of negligence used to have no application in respect of a vendor or lessor of premises. That position has changed somewhat over the years.

The lessor of a building may now be liable in tort for defects created after the lease has been made if he alters the condition of the premises.

The lessor may also be liable if he creates a nuisance on the property or authorises usage of the property which causes wrongful interference with another’s use of the property.

In summary, the purchaser and tenants can sue in negligence if they can show proximity, reasonable foreseeability of damage, and breach of duty.

The Contract Builder

By contract builder I mean a builder who builds on specific instructions from a client, not one who buys a piece of land and speculatively builds a house.

The Courts have recognised there are implied terms, if not expressly stated, as follows:

  1. The work will be done in a good manner
  2. Proper materials will be supplied
  3. The house, when finished, will be reasonably fit for human habitation.

Furthermore, the contract builder will be liable in negligence for dangerous defects, in the same way as a manufacturer can be held liable for defective products. If the defects of quality did not lead to a danger to the health and safety of the occupier then the liability of the builder may only lie in contract, not negligence.

Contractual liability will also arise and the owner of the premises will benefit from the Sale  of Goods and Supply of Services Act 1980 and the contract between builder and house owner.

The Builder Vendor/Builder Lessor

This builder is one who builds on spec, not a contract builder referred to above.

We have seen above that the vendors and lessors of real property enjoyed an immunity by virtue of the caveat emptor principle, while the builder of the premises could be held liable in negligence or contract.

The builder vendor/builder lessor used to enjoy the immunity provided by “caveat emptor”. Down through the years, however, the Courts began to recognise that such builders could be held negligent for foreseeable damage to an occupier of his building.

The extent of the duty was in respect of quality defects, dangerous defects, and inconvenience.

Architects, engineers, surveyors, auctioneers

Architects, engineers, surveyors, and auctioneers may also be considered to be suitable defendants in negligence cases arising from the building context. A professional will not, however, be expected to possess qualifications which he does not hold himself out as possessing, for example, an auctioneer being sued for structural defects in a house.

The Duty and Standard of Care in Negligence Cases in Ireland

negligence ireland-duty of care

If you want to hold someone liable in negligence that person must owe you a duty of care. Not everybody owes you a duty of care, though.

In fact, it has been stated that you can be as negligent as you like towards the whole world if you do not owe them a duty of care.

And when a Court decides whether you do owe a duty of care or not, it will also look at the question of for what you may be liable, that is, the scope of the duty.

The Neighbour Principle

The neighbour principle is the guiding one in Ireland when deciding to whom you owe a duty of care.

It involves imposing a duty of care in respect of those persons who are proximate-persons who should reasonably be in your contemplation when you are acting or omitting to act; these are persons for whom the risks of reasonably foreseeable harm can be identified.

Put simply, there are two requirements:

  1. The proximity of the parties, and
  2. The foreseeability of the damage.

Scope of the Duty-Liable for What?

  1. Physical injury or damage

The careless infliction of physical injury or damage by one person on another will generally lead to a Court holding that that person had a duty of care.

This is not always the case, however, and an occupier of a premises, for example, owes no duty of care to a trespasser in respect of damages due to the state of the premises, by virtue of the Occupiers’ Liability Act, 1995.

  1. Psychiatric damage
  2. Pure economic loss

The Standard of Care

Assuming a person owes a duty of care in a particular situation, what is the standard of care required?

The standard of care is that which is to be expected from a reasonably careful person in the circumstances.

A reasonable person will be expected to know facts of common experience, such as the habits of ordinary animals, the behaviour of children, the way the weather changes, the basic properties of ordinary machinery, etc.

The Courts will, however, modify its objective approach to take account of the physical abilities of the person whose standard of care/actions are under scrutiny.

Assessing Whether Conduct is Negligent-Specific Factors

In deciding whether specific conduct is negligent Courts will look at a number of factors:

  1. The probability of an accident
  2. The seriousness of the threatened injury
  3. The social utility of the defendant’s conduct
  4. The cost of eliminating the risk.

The Probability of An Accident

The more likelihood of harm to the Plaintiff the more probable it is that the Court will decide that Defendant’s conduct unreasonable and negligent. The corollary is also true: the less risk of injury the less likelihood of a finding of negligence against the defendant.

The Seriousness of the Threatened Injury

Where the potential injury is great the creation of a slight risk may be negligent. The question of risk must be assessed in the light of the information reasonably available to the defendant.

The Social Utility of the Defendant’s Conduct

If the defendant’s conduct has high social utility, he will be afforded more latitude in any determination of negligence.

The Cost of Eliminating the Risk

A slight risk may be reasonable if the cost of eliminating it completely is excessive. The cost of elimination, however, is less of a factor where the risk of injury becomes high.

Conclusion

The law of negligence is a system based on the establishment of fault on the part of the defendant, and is not merely a system of financial compensation.

Fault will be decided on the basis of whether there is a duty of care, and, if so, whether the standard of care was not reached.

Proof of Negligence-How to Prove Negligence in Irish Civil Law

 

negligence law ireland

If you bring an action for negligence in Ireland, you must prove the defendant was negligent.

The standard of proof is on the balance of probabilities, which is the standard of proof in civil law cases. (The standard of proof in criminal cases is beyond a reasonable doubt).

Essentially, you must establish facts from which negligence can be inferred.

This does not mean you must prove or show how the accident occurred; simply because an event was not foreseen does not mean it cannot be reasonably inferred.

But you must show on the balance of probabilities that the defendant was guilty of negligent conduct which caused the accident.

There is also a principle in the law dealing with negligence-res ipsa loquitur.

Res Ipsa Loquitur

Res ipsa loquitur means “the thing speaks for itself”. There are some cases, where the thing speaks for itself and where there may be no other evidence to prove negligence.

But a presumption of negligence can arise from the fact of an accident. An example would be the case from which this phrase emanates-it involved a barrel of flour falling out the first floor window of a shop and hitting the plaintiff on the head.

The defendant shopowner claimed that there was no evidence of negligence, unless the act itself was evidence of negligence. The Court of Appeal in this case recognised that res ipsa loquitur was appropriate in some cases, and this was one of them.

When will this principle apply?

  1. When “the thing” is under the control of the defendant
  2. When the accident would not have occurred if the defendant who controlled “the thing” used reasonable care

This principle will not apply when there is an explanation of how the accident or event occurred.

If the principle applies in your case it will be up to the defendant to avoid liability by showing that the cause of the accident cannot be attributed to his negligence.

The Supreme Court decision in Hanrahan v Merck Sharp & Dohme (Ireland) limited held:

“in the tort of negligence, where damage has been caused to the plaintiff in circumstances in which such damage would not usually be caused without negligence on the part of the defendant, the rule of res ipsa loquitur will allow the act relied on to be evidence of negligence in the absence of proof by the defendant that it occurred without want of due care on his part”.

Conclusion

Assuming your case has the four essential elements of the tort of negligence you will still need to prove negligence to win your case.