It happened in 1932, in Donoghue v Stevenson  AC 562. The defence in the case relied on the fact that the Plaintiff had no privity of contract with the Defendant. She, the Plaintiff had consumed some of the contents of a bottle of ginger beer. She discovered what she perceived as the remains of a decomposing snail in the bottom of the bottle and became ill as a consequence. She had been given the beer by the purchaser.
Financial management is, reputedly, a highly regulated field. Whether that is so in Ireland is already in doubt. The Madoff Mess may show the truth of the situation. That aside, Ireland’s financial regulatory laws make provision for claims in civil law for breaches of certain duties imposed by statute. The facts of each case will determine if these are available to investors to recover their losses.
A plaintiff must prove the liability of the defendant. This is not equivalent to proving causation. Liability may arise where proof of an error in judgment or management is established, but the plaintiff must go in to prove that that error was the cause, or a cause, of the untoward outcome for the patient.
Each purchaser in a supply chain has a claim for breach of contract against the supplier. Thus, the shops and retailers generally in Ireland are obliged to make good the loss to the consumer by the breach of contract. That loss, currently is measured by the cost of the defective product. (The burden of proving the product is defective lies on the purchaser, but that is an issue unlikely to represent a problem).
The extent of injury inflicted on hospital patients by clinical negligence is a case in point. We do not know what it is. When it happens the consequences are real. Somebody somewhere pays for the injury. Clearly, the victim suffers the injury and pays in that fashion. The family of the victim may pay in care deployed or care costs paid. Or, if the family consists of children of the victim, the children may suffer diminished life opportunities by being deprived of care they would have got from the victim.
In a medical negligence action, in order to fix the Defendant with responsibility, the Plaintiff may have to prove that his illness (his medical condition) was not the cause of his injuries.
The quality of Lord Bingham’s minority judgment is a predictor that the issue will return and be reversed in the future.
With regard to the tort of negligence, road traffic accidents are exceptional. They are exceptional because they conceal the fact that, often, the factual cause of an event is not discovered.
Those with too much blood were sanguine. Those with too much phlegm were phlegmatic. Those with too much yellow bile were choleric, and those with too much black bile were melancholic. To be sanguine is to be courageous, hopeful and amorous. To be phlegmatic is to be calm and unemotional. To be melancholic is to be depressed, sleepless and irritable. To be choleric is to be easily angered and bad tempered.