The Tort of Negligence

The history of the tort of Negligence in Ireland and Britain is long.

The decision of Lord Atkins, in Donoghue v Stevenson [1932] AC 562, settled the principles for a very long time.

The most recent re-statement, in Ireland, of the principles to be applied by a court in determining whether liability in negligence should lie, occurred in Glencar Exploration Ltd, v Mayo County Council [2002] ILRM 481

As the Supreme Court noted in Glencar, it did not see it as desirable to establish liability in negligence for pure economic loss in the absence of a liability in contract. It noted the specific exception to this principle; where economic loss occurs due to negligent misstatement. (This principle was first established in Hedley Byrne & Co. Ltd. v Heller and Partners Ltd. [1964] AC 465).

In Glencar, the defendant local authority granted exploration rights for gold in County Mayo to the plaintiff. After the plaintiff expended a considerable sum on exploration the defendant decided not to grant any mining rights in Mayo. The court found that the defendant’s decision was unreasonable but declined to find the defendant liable to the plaintiff. (The plaintiff’s loss was money only. The plaintiff could not point to a contract or other source of entitlement whereby it could claim, other than in negligence, against the defendant. In these circumstances the chances of the plaintiff being successful were always very remote. The claim in negligence was a case of clutching at straws).

The Supreme Court went on add the somewhat redundant requirement that the court should find a liability where it “is just and reasonableâ€? to do so.

See Keogh v ESB & Eircom Ltd. IEHC [2005] for an example of a finding of negligence post Glencar.

In Keogh, the plaintiff was electrocuted as she was talking on the telephone. The electricity supply company had sited a transformer near her house. Due to a fault in the transformer her house was made “liveâ€? with the consequence that she was injured. (The plaintiff herself had no knowledge or recollection of the incident in which she was injured; essentially the evidence came from her partner who witnessed the event and the plaintiff’s litigation engineer who investigated the site).

As an example of a successful claim for negligent misstatement it would be hard to find a better one, on the facts, than Walsh v Jones Lang Lasalle [2007] IEHC

The defendant auctioneers issued a brochure relating to a property in Dublin for which they were the selling agents. Unfortunately, they were inaccurate in the measurements they gave for the building. Having bought the building the defendant found it was of a smaller size than he had been led to believe and of lesser value than he had paid. (There was, of course, no basis for him making a claim in contract; there was no contract between the plaintiff and the defendant).