Legal Guides

What is Negligence?

In the legal world, negligence is defined as the failure of a person to uphold a reasonable duty of care or breach the duty of care or standards of behaviours expected of them for the protection of people against unreasonable and avoidable risk of accident and injury.

For negligence to be established and proven there are several elements that must exist:

1. There must be a duty of care expected of the person at fault for the accident
2. There must be a breach of this duty of care
3. There must be loss or damage to the person making the claim
4. There must be a link between the breach of duty of care and the loss or damage sustained

In Lievre v Gould (1983) it was noted that ‘the question of liability for negligence cannot arise at all until it has been established that the man who has been negligent owed some duty to the person who seeks to make him liable for his negligence. A man is entitled to be as negligence as he pleases towards the whole world if he owes no duty to them’.

This basically shows us that if you are making a claim against another person that you need to be able to show that that other person had an obligation to act in such a way to prevent you from being involved in an accident or sustain any injury. If they had no obligation to you then you may not be able to pursue a claim for negligence.

What is Duty of Care?

Duty of care means that you should not act in such a way that will cause an accident or injury to another person.

For example, a shop owner has a duty of care to ensure that any spillages are cleaned up and a wet floor sign is in place to prevent any person from slipping and injuring themselves when in their shop. If they fail to clean up a spill or leave a wet floor sign down, they may be seen to have neglected their duty of care to provide a safe shopping environment to the public.

In Irish law, a duty of care is owed to any person that is classed as your neighbour. This may bring some questions to mind, like, who is my neighbour?

Your neighbour is considered to be any person that is closely and directly affected by your actions, that you ought to reasonably have them in mind when carrying out your acts.

For example, for a shop owner, legally their neighbours are those who shop in their shop, i.e. people that would be negatively affected by their actions should the shop owner be negligent and fail to provide a hazard-free shopping environment causing an accident and injury to customers.

Duty of Care and Negligence in Personal Injury Cases*

The person making the claim must be able to show that the party at fault failed to meet the duty of care owed to them. They must be able to show that the actions or inactions of the party at fault caused the accident and injury.

The level of duty of care owed to a person will depend on the case type, accident type and specific details that led to the accident. Here is a list of common accidents that may result in a personal injury claim  for negligence:

Road Traffic Accidents and Road User Negligence*

While on the road, all road users have a duty of care towards other road users and must operate their vehicle in accordance with the rules of the road, which includes adhering to the speed limit, yielding at certain points on the road, adhering to traffic lights etc and not to endanger any other road users in the process. This duty of care extends to other vehicles on the road and pedestrians along the way.

Negligence and a breach in duty of care may be established in cases where a road user:

• Is speeding
• Fails to stop at a red light
• Does not yield where they should
• Driving under the influence of alcohol or drugs
• Texting or talking on the phone while driving

Workplace Accidents and Employer Negligence*

Under the Safety, Health and Welfare at Work Act 2005 employers must ensure employees safety, health and welfare at work as fare. This is their duty of care and is expected of them as far as is reasonably practicable to avoid accidents in the workplace.

In ensuring they meet their duty of care they must:

• Provide and maintain a safe working environment, which extends to the provision and maintenance of machinery and equipment.
• Ensure that any risks associated with the use of certain tools, machines or substances are minimised.
• Ensure that exposure to physical agents, noise and vibrations are minimised.
• Prevent any improper behaviour likely to put the employees at risk of accident or injury.
• Provide health and safety training for all employees.
• Provide adequate personal protective equipment to employees (at no cost to employees).
• Appoint a person within the company as the Safety Officer.
• Carry out a risk assessment of their workplaces regularly to identify any hazards and risk that may arise from those hazards and identify the steps needed to eliminate or minimise these risks where possible.

Employer negligence may be established in cases where the employer failed to meet the above criteria. Some examples of workplace accidents relating to employer negligence are:

• Accident and injury sustained in cases where an employee injures themselves while carrying out a work task where there was no or inadequate personal protective equipment.
• Injury sustained to the back due to manual handling, where an employee had not received manual handling training or was not provided with the tools needed to move heavy objects and hurt their back in the process.
• Slip and fall on a wet floor where no wet floor sign was displayed.

Accidents in Public Places* and Negligence

Where a person or business upholds a property or space for public use, that person or business has a duty of care to the people who visit that space and must provide a safe environment as far as reasonably possible to avoid a public place accident. Some examples of public places that have a duty of care to the public that visit them are:

• Public parks upheld by the county or town councils
• Public footpaths and roads upheld by the county or town councils
• Restaurants
• Shops and supermarkets and shopping centres
• Schools, creches, daycare centres
• Nursing homes
• Playgrounds – either provided by a business or county or town councils
• Hotels and leisure centres

For all businesses or people responsible for the upkeep of a public place there is an expected duty of care they have towards the public. That duty of care is to take reasonable care to provide a safe environment, some examples of claims made are:

• Slip and fall on a wet floor in a supermarket or shop where a spillage was not cleaned up in an appropriate timeframe or no wet floor sign was displayed.
• Trip and fall on a broken footpath
• Fall down a set of stairs because of a broken handrail or inadequate lighting
• Food poisoning in a restaurant because of poor hygiene in the kitchen
• An object falling from a height in a shopping centre injuring a passer-by below

In each of the above examples, the business owner or person responsible for providing a safe environment for the public was negligent in their duties and this led to an accident and injury to a member of the public.

Medical Negligence*

The relationship between a doctor and patient is one of trust and is entered by consent by the patient. There is an expected duty of care owed to the patient by the doctor. It is expected that the doctor or medical professional will use a degree of care and skill expected of a person in their position.

A medical professional who fails to show this standard of care and has caused an avoidable injury to a patient or caused a patient’s current condition to worsen unnecessarily may be seen to have committed medical negligence.

Some example of medical negligence are:

• Errors made during surgery
• Misdiagnosis
• Failure to notice or act upon noticing an illness or medical need
• Delays in diagnosis
• Retention of a surgical instrument after surgery
• Incorrect interpretation of medical exam results
• Failure to advice patient of risks associated with a procedure or drug before proceeding
• Operating without consent
• Wrong Site Surgery
• Poor or substandard aftercare
• Prescription errors

Establishing Negligence

Once duty of care has been established the next task is to establish negligence. In doing so there are a couple of questions to ask:

1. Did a duty of care exist?
2. Can you prove that this duty of care was breached?
3. Did you suffer an injury because of a breach in duty of care?
4. Did you sustain a loss as a result?

For example, if a car accident happened because a driver had driven through a red light and collided with another car as a result. In this case:

Did a duty of care exist?

Yes, we know that as a road user, the driver had a duty of care towards other road users. They are expected to not drive their vehicle in a certain way that will put other road users at risk.

Can you prove that this duty of care was breached?

Yes, in this case, CCTV can show that the car ran through a red light and caused the accident. By not following the rules of the road and stopping at the red light they are seen to be in breach of their duty of care towards other road users.

Did you sustain an injury because of a breach in duty of care?

The person in the other car sustained a fracture and some soft tissue injuries.

Did you sustain a loss as a result?

As a result, they spent some time in the hospital, underwent scans and tests and were then unable to work until they recovered. In this case, the loss sustained by the injured party was a loss of earnings, costs of medical bills and physical injuries.

Contributory Negligence

Personal injury claims are not always straightforward, in some cases, the injured party may be found to have caused their injuries or found to have contributed to the severity of their injuries. This is known as Contributory negligence. It has been defined as the failure of the injured party in a personal injury claim to act prudently where their actions contributed to the cause of the accident and their injuries. It may sometimes be used as a line of defence by the defendant when a claim is made against them.

For example, in the workplace, where an employer has acted appropriately and provided adequate training and tools for manual handling and moving heavy objects and the employee chooses to ignore the tools needed and proceed to attempt to lift an object themselves. Where they injure themselves having ignored their training and tools available they may be seen to be responsible for the accident and injury.

Another example where contributory negligence increases the severity of an injury is where a car accident is caused by another person, but the injured party was not wearing their seatbelt. While the injured party did not cause the car accident the fact that they were not wearing a seatbelt most likely increased the severity of the injuries sustained. This may influence the claim.