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:
- The proximity of the parties, and
- The foreseeability of the damage.
Scope of the Duty-Liable for What?
- 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.
- Psychiatric damage
- 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:
- The probability of an accident
- The seriousness of the threatened injury
- The social utility of the defendant’s conduct
- 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.
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.