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.

How to Begin Civil Proceedings in the District Court

district-court-legal-proceedings

The District Court now has a jurisdictional limit of €15,000.

So, if you need to pursue a debt or a claim for damages for breach of contract, negligence, or on any ground for less than €15,000 you will commence proceedings in the District Court.

To do this, you file, for issue and service, a claim notice in the District Court.

What Must You Put in the Claim Notice?

A claim notice must—

(a) state the full name and address of the claimant and an address for service of documents on the claimant; and

(b) if the claimant sues in person, state an address for service of documents on the claimant; and

(c) if the claimant sues or the respondent is sued in a representative capacity, state the capacity in which the claimant sues or the respondent is sued in a representative capacity; and

(d) state the name and address of the respondent; and

(e) if the claimant sues by a solicitor, state the name or firm and business address of the solicitor and also, if the solicitor is the agent of another, the name or firm and business address of the principal.

A claim notice must contain a statement of claim which must—

(a) contain, in a summary form, a statement of all material facts on which the claimant relies, but not evidence by which those facts are to be proved;

(b) contain the necessary particulars of every fact;

(c) if the claim arises by or under any enactment, identify the specific provision of the enactment that is relied on;

(d) state specifically the amount or other relief or remedy sought; (e) state the place where and the date when the claim arose.

A statement of claim in a debt claim must state that the claim is for debt or liquidated damages, must specify the amount claimed by way of debt or liquidated damages and must include particulars of the claimant’s demand for payment.

Where the claim is founded on any written document, the statement of claim must state the date of the document and the parties to the document and:

(a) if the claim is for the payment of money, the amount claimed, or

(b) if the claim is for breach of contract, the alleged breach or breaches of the contract.

A statement of claim must contain a list of all correspondence and other documents on which the claimant will rely at the trial including the date if any and a brief description of each document.

In a debt claim, the claim notice must be indorsed with a statement as follows—

“If you pay the amount of €…… and costs of €……. to the claimant or the claimant’s solicitor within ten days and without filing and serving an appearance and defence you may avoid further costs.”.

If a claim notice is indorsed  as set out in the preceding paragraph, and the respondent pays the amounts claimed within the time limited for filing and serving an appearance and defence, then the civil proceeding is concluded.

Any claim by a consumer for damages under section 74 of the Consumer Protection Act 2007 (No. 19 of 2007) must be commenced by the issue and service in accordance with this Order of a claim notice, entitled in the matter of section 74 of the Consumer Protection Act 2007 and otherwise in the Form 40.01, Schedule C with such modifications as are appropriate.

 

Where Do You Commence Proceedings?

A claim notice must be filed with and issued by the Clerk for the Court area:

(a) in which the respondent or one of the respondents ordinarily resides or carries on any profession, business or occupation,

or at the election of the claimant,

(b) in proceedings founded on contract, (except proceedings arising from an agreement under the Consumer Credit Act 1995 or the European Communities (Consumer Credit Agreements) Regulations 2010 (S.I. 281 of 2010)) in which the contract is alleged to have been made, or

(c) in proceedings founded on tort, in which the tort is alleged to have been committed, or

(d) in ejectment proceedings, in which the lands the subject of the proceedings are situated.

Unless the Claim Notice is to be served outside the State a claim notice must be in Form 40.01, Schedule C, or in Form 40.02, Schedule C in a debt claim.

Appearance and defence

A respondent who intends to defend civil proceedings must give, or send by post, to the claimant or solicitor for the claimant an appearance and defence, in the Form 42.01, Schedule C, not later than 28 days after the service on him or her of the claim notice, and must at the same time file a copy of his or her appearance with the Clerk.

A defence must—

(a) contain a statement that the respondent intends to defend the claim notice; and

(b) state the name and address of the respondent and an address for service in the European Union at which documents required to be served on the respondent may be left; and

(c) if the respondent defends by a solicitor, state the name or firm and business address within the European Union of the solicitor and also, if the solicitor is an agent of another, the name or firm and business address of the principal.

Appearance and defence to debt claim

An appearance and defence in a debt claim must be in Form 42.03, Schedule C. A respondent who intends to defend a debt claim must give, or send by post, to the claimant or solicitor for the claimant his or her appearance and defence not later than 28 days after the service on him or her of the claim notice, and must at the same time file a copy of his or her appearance with the Clerk.

A defence in a debt claim must state whether the claim is:

(a) disputed as to both liability and amount;

(b) disputed only as to amount and if so, what amount is admitted to be due;

(c) admitted in full and if so, whether the respondent proposes to pay immediately or requires time for payment.

Appearance and defence in claims other than debt claims

Unless the respondent requires further particulars of statement of claim, a respondent to a claim other than a debt claim who contests or disputes all or part of a claimant’s claim must serve an appearance and defence in Form 42.01, Schedule C on the claimant at the address for service stated in the claim notice and must file a copy of the appearance with the Clerk.

A defence must state which of the facts stated in statement of claim are—

(a) admitted;

(b) denied;

(c) not admitted.

A respondent who, in the defence, does not state whether a fact stated in statement of claim is—

(a) admitted;

(b) denied;

(c) not admitted—

must be taken to admit the fact.

A respondent who states that a fact stated in statement of claim is denied must—

(a) give reasons for denying the fact; and

(b) if the respondent intends to prove a fact different from that stated in the statement of claim, state, with necessary particulars, the fact that the respondent intends to prove.

The respondent must state specifically, with particulars, any fact or matter which—

(a) makes the claim of the claimant not maintainable; or

(b) if not stated specifically, might take the claimant by surprise; or

(c) raises questions of fact not arising out of the statement of claim. (6) If the defence arises by or under any enactment, the defence must identify the specific provision relied on.

A defence must contain a list of all correspondence and other documents (other than any documents already identified in the statement of claim) on which the respondent will rely at the trial including the date if any and a brief description of each document.

The respondent may not rely on the defence of tender unless, within seven days after filing an appearance and defence, the respondent pays to the Clerk the amount alleged to have been tendered.

A respondent who has entered an appearance and defence in a debt claim which complies with the requirements of the rule above is not required to serve and file a defence which complies with the requirements of this rule unless an order has been made in the application for judgment on affidavit refusing judgment and giving permission to defend, in which case, the respondent must serve and file a defence which complies with the requirements of this rule within 21 days after the order is made.

Late filing and service of appearance and defence

A respondent may serve an appearance and defence and file an appearance at any time after the service of a claim notice with the written consent of the claimant, but an appearance and defence may not be served, except by permission of the Court, if the claimant has obtained judgment in default of appearance.

NOTICE REQUIRING COPY DOCUMENTS OR FURTHER PARTICULARS

This does not apply to debt claims.

A respondent may at any time before or at the time of delivery of a defence apply to the claimant in writing:

(a) for copies of all or any of the documents listed in the statement of claim on which the claimant relies or referred to in the statement of claim (Form 42.06, Schedule C);

(b) requiring the claimant to provide further particulars which the respondent asserts are reasonably necessary as to specified matters in the statement of claim (Form 42.07, Schedule C).

A claimant may within 28 days after delivery of a defence apply to the respondent in writing:

(a) for copies of all or any of the documents listed in the defence on which the respondent relies or referred to in the defence (Form 42.06, Schedule C);

(b) requiring the respondent to provide further particulars which the claimant asserts are reasonably necessary (Form 42.07, Schedule C).

COUNTERCLAIM

A respondent may set off or set up any right or claim the respondent alleges he or she has against the claimant as a counterclaim against the claim of the claimant, whether the respondent’s claim is a claim in damages or not.

A set off or counterclaim has the same effect as a cross action, so as to enable the Court to determine both the claim and the counterclaim at the same trial.

A counterclaim must be in Form 42.08, Schedule C.

STAY OR DISMISSAL OF CLAIM AND STRIKING OUT STATEMENT OF CLAIM OR DEFENCE

The Court may at any stage of the civil proceedings order to be struck out or amended any matter in any pleading which is unnecessary or scandalous, or which may tend to prejudice, embarrass, or delay the fair trial of the civil proceedings.

The Court may order any pleading to be struck out, on the ground that it discloses no reasonable cause of action or answer and in any such case or in case of the claim or defence being shown by the pleadings to be frivolous or vexatious, the Court may order the claim to be stayed or dismissed, or judgement to be entered accordingly, as the Court considers just.

What to Do Now

Sometimes, especially in debt collection matters, a solicitor’s letter to a debtor may have the desired effect and eliminate the need to bring proceedings in Court.

If you need a solicitor to handle things for you contact us.

Time Limits in Civil Litigation and the Statute of Limitations

time-limit-civil-litigation

The time limits within which you can bring a civil action in Ireland are set out in the Statute of Limitations, 1957, as amended by the Statute of Limitations (Amendment) Acts, 1991 and 2000.

However, other limitation periods are set out in the Civil Liability Act, 1961, the Liability for Defective Products Act 1991 and the Civil Liability and Courts Act 2004.

If an action is commenced within the limitation period, it will become statute barred and the defendant will have a good defence to the claim.

In general, when calculating the time period, it commences on the date that the cause of action occurred. However there are exceptions eg if the plaintiff is under a disability, where the defendant is deceased, where claims have to be submitted to the Injuries Board in the first instance and in certain personal injury actions  where the plaintiff only discovers at a later date that they have a cause of action.

Actions in Tort

A tort is a civil wrong. Generally, the limitation period for bringing such an action is 6 years.

However some torts such as negligence, nuisance or breach of duty and involving personal injury or an action for slander have different limitation periods.

Actions for Personal Injury Based on Negligence, Nuisance or Breach of Duty

Actions in this category must be brought within 2 years of

a)      The date on which the cause of action accrued or

b)      The date on which the Plaintiff first had knowledge of the injury, that the injury was significant, and the identity of the defendant.

When the plaintiff had the requisite knowledge as defined in section 2 of the Statue of Limitations (Amendment) Act 1991:

2.(1) For the purposes of any provision of this Act whereby the time within which an action in respect of an injury may be brought depends on a person’s date of knowledge (whether he is the person injured or a personal representative or dependant of the person injured) references to that person’s date of knowledge are references to the date on which he first had knowledge of the following facts:
(a) that the person alleged to have been injured had been injured,
(b) that the injury in question was significant,
(c) that the injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence, nuisance or breach of duty,
(d) the identity of the defendant, and
(e) if it is alleged that the act or omission was that of a person other than the defendant, the identity of that person and the additional facts supporting the bringing of an action against the defendant;
and knowledge that any acts or omissions did or did not, as a matter of law, involve negligence, nuisance or breach of duty is irrelevant.
(2) For the purposes of this section, a person’s knowledge includes knowledge which he might reasonably have been expected to acquire—
(a) from facts observable or ascertainable by him, or
(b) from facts ascertainable by him with the help of medical or other appropriate expert advice which it is reasonable for him to seek.
(3) Notwithstanding subsection (2) of this section—
(a) a person shall not be fixed under this section with knowledge of a fact ascertainable only with the help of expert advice so long as he has taken all reasonable steps to obtain (and, where appropriate, to act on) that advice; and
(b) a person injured shall not be fixed under this section with knowledge of a fact relevant to the injury which he has failed to acquire as a result of that injury.

Fatal Injury Actions

Actions for fatal injury claims must be brought within 2 years of the date of death.

Assault

An action for trespass to the person or assault and battery must be brought within 6 years of the accrual of the cause of action.

Defamation

An action for defamation (including libel and slander) can be brought within one year as set out in the Defamation Act, 2009. There is a possibility of having this extended to two years on application to Court.

Contract

Actions founded on contract or quasi-contract must be brought within 6 years of the breach of contract

1.1 Debts

Actions for the recovery of debts (liquidated sums) are based on contract and actions can be brought within 6 years of when the sum became due.

However, this can be changed if the debtor acknowledges the debt after it becomes due or he makes a part payment. The right of action in these circumstances will be deemed to have accrued on the date of acknowledgement of the debt or on the date of part payment.

This applies regardless of whether the statutory period has expired or not.

1.2 Defective Motor Vehicles

Claims for defective motor vehicles must be brought within 2 years of the date on which the cause of action accrued.

Defective Products

Actions for defective products must be brought within 3 years of either

a)      The date of accrual of the cause of action or

b)      The date on which you had knowledge of the defect, damage, and producer of the product.

Recovery of Land

Actions for the recovery of land must be brought within 12 years from the accrual of the right of action.

Actions against the Estate of a Deceased Person

These must be brought within 2 years of the death of the deceased person unless the proceedings were commenced within the relevant statutory period and were pending at the date of death.

Extension of the Limitation Period

Calculating the limitation period can be altered in certain limited circumstances eg

  • Fraud of the defendant-time begins to run when the fraud is discovered or when it could have been discovered with reasonable diligence
  • Mistake
  • Where the plaintiff is under a disability.

A person is under a disability according to the Statute of Limitations, 1957 when they are

1)      A minor

2)      A person of unsound mind

3)      A convict subject to the Forfeiture Act, 1870.

This definition was expanded by the Statute of Limitations (Amendment) Act 2000 to cover victims of sexual abuse.

A person under a disability can bring an action within the prescribed period of ceasing to be under the disability.

Personal Injury Assessment Board Act, 2003

A claim for personal injuries or a fatal injuries claim needs to be first made to the Injuries Board.

Once an application is acknowledged by the Injuries Board the limitation period stops running; but it recommences six months from the date of a letter of authorisation from the Injuries Board.

When Does Time Stop Running?

Time stops running when legal proceedings have been instituted.

This will depend on which Court you commence proceedings in.

District Court: when a Civil Summons has been sent by post to the Defendant or sent to a Summons Server

Circuit Court: when a Civil Bill or Personal Injuries Summons is issued

High Court: when the summons is issued out of the central office of the High Court.

If you think that you have a cause of action for a wrong done to you, it is essential that you see a solicitor as soon as possible so that any action taken is not ‘statute barred’ and is taken within the time prescribed under the law.

Dismissal for delay or want of prosecution

A court can dismiss proceedings if they are not resolved withing a reasonable time. The Master of the High Court can make an order to dismiss an action with costs for want of prosecution. This can also occur if there has not been a proceeding for 2 years since the last proceeding or where the plaintiff fails to attend for trial.

The Courts can also dismiss a claim for delay or want of prosecution where the interests of justice require it.

It’s worth noting that a plaintiff reserves the right to bring legal proceedings even if they are statute barred and out of time. The defendant must plead the statute of Limitations as a defence in these circumstances, or the Court cannot consider whether the case is out of time or not.

It can also occur that the Defendant can be estopped from pleading the statute of Limitations if the defendant or his agent lead the plaintiff, through conduct or words, to believe it would not be pleaded.

Negligence-An Essential Element of a Successful Personal Injury Claim

negligence

If you have suffered a personal injury, the question of “negligence” is an important one. This piece will explain what negligence is.

Legal actions in Ireland, such as medical negligence or personal injuries actions, are pursued on the basis of negligence which is a tort (a civil wrong).

There are four elements to the tort of negligence:

  1. The wrongdoer had a duty of care to the person who suffered loss or damage-you don’t owe a duty of care to everyone. However, you do owe a duty to those who are proximate, and where the danger is reasonably forseeable;
  2. The defendant failed to conform to the required standard in his/her behaviour/conduct. The required standard is that of the ‘reasonable person’ and Courts will address the question: did the defendant act as a reasonable person would?
  3. Did the plaintiff/victim suffer actual loss or damage? And was the damage or loss forseeable? This is the general principle of “remoteness” of damage.
  4. Was there a sufficiently close connection between the conduct of the defendant and the loss suffered by the plaintiff? This is the idea of “causation”.

Each of these elements must be present to successfully sue for negligence. And each of them has been well canvassed in various Courts in common law jurisdictions around the world.

For example, if a Court decides that a person had indeed a duty of care to the person who suffered loss or damage, it will then turn to the question of the standard of care.

In assessing this aspect of a negligence claim, Courts will look to

  • The seriousness of the threatened injury
  • The likelihood of an  accident
  • The social usefulness of the conduct complained of
  • The cost of eliminating the risk.

The third element above-actual loss suffered-must be proven as negligence on its own is not actually actionable. The general principle of ‘remoteness’ of damage is important here; this means that the loss should have been reasonably foreseeable.

The fourth element above is concerned with a sufficiently close causal relationship between the conduct complained of and the resulting damage.

There are two further aspects of negligence claims which must be considered before bringing any legal proceedings:

1. Assumption of risk

The Civil Liability Act, 1961, section 34(1)(b):

this subsection shall not operate to defeat any defence arising under a contract or the defence that the plaintiff before the act complained of agreed to waive his legal rights in respect of it, whether or not for value; but, subject as aforesaid, the provisions of this subsection shall apply notwithstanding that the defendant might, apart from this subsection, have the defence of voluntary assumption of risk;

This means that if the defendant can show that the plaintiff agreed to waive his/her legal rights before the act complained of, the action will be dismissed.

2. Contributory Negligence

This arises where the ‘victim’ was in some way responsible for the loss/damage suffered. The plaintiff’s compensation, if the claim is successful, will be reduced in proportion to the amount in respect of his/her own fault.

If you have suffered as a result of the negligent conduct of another, contact a solicitor.

Consumer Rights And Product Liability-What Rights Have Consumers for Defective Products?

 

defective products law ireland

Consumer rights and product liability in relation to defective products are governed by a combination of protections such as common law which protects against tort or civil wrongs such as negligence.

The law of contract will also provide relief to the consumer in relation to defective products; legislation such as Liability for Defective Products act 1991, the Civil Liability Act of 1961 and other more modern European legislation including directives and regulations.

Liability For Defective Products Act 1991

Under this act the consumer does not need to prove negligence on behalf of the supplier or retailer; he/she merely needs to show that the product caused the consumer damage because of a defect in the product. Liability For Defective Products Act, 1991

2.—(1) The producer shall be liable in damages in tort for damage caused wholly or partly by a defect in his product. (Section 2 Liability for Defective Products Act 1991).

It is a strict liability therefore the consumer does not need to show any negligence on the part of the manufacturer. So you just need to show a link between the product and the damage suffered.

The Statute of Limitations, that is the time within which an action must be brought, is three years. There is also a long stop cut off point of 10 years, that is a claim may not be brought after 10 years from the introduction of the product into circulation.

Common Law-Negligence

The consumer will need to prove that the manufacturer owed a duty of care to the consumer, that that duty of care was not upheld, that there was loss or damaged incurred by the consumer as a result of the failure in relation to the duty of care and there was a close connection between the injury suffered and the conduct of the supplier/manufacturer.

By whom is the duty of care owed?

  1. Manufacturers-there is a duty of care owed by a manufacturer to those who may foreseeably be damaged or injured by the product
  2. Repairers-garages repairing motor cars is an example
  3. Installers and assemblers
  4. Suppliers for reward are also potentially liable
  5. Retailers, although their duty may be narrower than a manufacturer’s

To whom is the duty owed?

The ultimate consumer of the product.

Causation

The consumer must show that the negligent supply/manufacture of the product caused injury or damage to the plaintiff or his property.

The principle of res ipsa loquitur applies in product liability case.

Learn more about negligence here.

Sale of Goods Act

The Sale of Goods Act 1893 and the Sale of Goods And Supply of Services Act 1980 state that the supplier has a contractual duty to the consumer in relation to the consumer in respect of defects in his product. It is difficult to recover under this act against a manufacturer as your contract will be with the retailer.

European Legislation

Various pieces of European legislation such as the European Directive on Product Liability and the European Communities (General Product Safety) Regulations 2004 also provide protection to the consumer in relation to defective and dangerous products.

Under the Liability For Defective Products Act 1991 liability is strict and no duty of care needs to be established and this is why it will be used on many occasions along with perhaps a legal action for breach of contract and/or negligence.

The time within which you can bring an action under the various headings above varies from 2 years in relation to a personal injury claim to 6 years for breach of contract under the Sale of Goods Act.

If you are unfortunate enough to suffer as a result of a dangerous/defective product make sure to retain the evidence carefully including the product itself, any invoices/receipts and a good note of where and when you purchased it.

National Consumer Agency

The National Consumer Agency is a good source of information in this whole area as it has some pretty strong powers under the Consumer Protection Act of 2007.