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34 Cards in this Set
- Front
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Limitation of Actions |
SLA 1991, SL & Courts 2004 11 (2) a Tort 6 years 11 (2) b Personal injury 2 years Defamation Act 2009 1 year 3 (1) Date of action or knowledge 2 (2) a, Injured, significant, identity, caused by neg or breach 2 (2) b, Facts observable, facts with medical or other expert 1957 Act 48(1) infant, unsound mind, convict of forfeiture Act 1870 1991 Act added sex abuse, psychological 49 (1) 2 years after disability 49 (2) used to have parents Repealed by section 5, not disabled but became disabled before aware of significance 71 (1) Fraud 71 (2) Concealed by Fraud PIAB |
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Cases |
Morgan v. Park Developments Ltd. [1983] House Hegarty v. O’Loughran [1990] Nose 74 - 82 Boylan v. Motor Distributors Ltd 1993 Maitland v. Swan and Sligo County Council Ovary 71, action 83 Gough v. Neary [2003] media Cunningham v. Neary[2004] Nothing to go on Bolger v O’Brien [1999] Back, 90, 92 Doc, 93 Whitely v. Minister for Defence [1998] 78 - 95 Gallagher v. Minister for Defence 1998 89 - 93, not aware serious O’Brien v. Keogh [1972] Parent, unconstitutional Toal v. Duignan [1991] 61 - 83 sterile Primor plc v. Stokes Kennedy Crowley [1996] Court own discretion Manning and others v. Benson and Hedges Ltd [2004] Cigarettes McDonald v. McBain [1991] house, fire Heffernan v. Brendan O’Herlihy (1998) solicitor |
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Psychiatric |
Victoria Railway Commissioners v Coultas 1884, mere terror
Byrne v Southern and Western Railway, 1884, reasonably foreseeable, in the zone Bell v Great Northern Railway 1884, health and capacity, was it negligence? |
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Progression |
Dulieu v White and sons 1901, Irish position adopted Hambrooke v stokes, 1925, unfair even tho not in the zone McLoughlin v O'Brien 1983 Bridge: reasonably foreseeable Wilberforce: Secondary victim lacks proximity |
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Alcock 1992 |
Oliver Close tie of love and affection Presence at the scene or aftermath Direct perception Criticism, contrary to Atkin in Donoghue |
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Rescuers |
McFarlane v EE Caledonia1994, Supply ship Chadwick v British Transport Commission 1967, volunteer rescuer at train crash White v Chief of South Yorkshire 1998, only considered primary if in physical danger or reasonable fear of danger |
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Ireland |
Mullally v Bus Eireann 1992, reasonably foreseeable simpliciter Kelly v Hennessy 1996 Hamilton: recognised, defendant negligent, foreseeable cause of psychiatric illness, perception of actual or risk, aftermath, close personal relationship, no rule of public policy |
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Bystander Ireland |
Curran v Cadbury 2000, Reasonably foreseeable, negligence of employer |
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Further psychiatric in Ireland |
Cuddy v Mays 2003, Brother, porter, close relationship and physical proximity to aftermath Devlin v National maternity hospital 2008, removed and retained organs, did not satisfy perception rule. |
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Trespass |
Cole v Turner 1794, least touching in anger Collins v Wilcock 1984 Wilson v Pringle 1986, schoolbag, must be hostile F. vs. West Berkshire H.A. [1990] Goff disagreed with hostile, prank, over friendly slap R v Ireland 1998 Walsh v Family Planning Services 1992 SC, limited the application of trespass, equating lack of consent with negligence 2nd Doctors, agreed to have operation by people with requisite skill and competence. McCarthy disagreed, technical assualt, nominal damages |
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Assault |
Thomas v National Union of Mine Workers 1986, gestures Dullaghen v Hillen 1957, customs, excess of powers but arrest and detention within powers. Fawsitt, "sticks and stones" Tuberville v Savage 1669 Byrne v Gilhooly 2004, fencing sword |
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False Imprisonment |
Dullaghen v Hillen, Fawsitt, imprisonment without walls Warner v Ridderford 1858, resident manager Bird v Jones 1845, regatta Philips v Great Northern Railway Co Ltd 1903 Ticket, Taxi, plainly could have left Meering v Grahame-White Aviation 1919, security guards, office, he wasn't aware, if not, can't expect substantial damages Burns v Johnston 1917, working day |
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Defences |
Self Defence White v Connelly 1927, wife, lover Gregan v O'Sullivan 1937, pitch fork Lane v Holloway 1968, 19 stiches Consent noventi non fit injuria R v Williams, sex to improve voice R v Brown ..... Medical Gillick v West Norfolk HA 1986, competent minor consent, no irish authority North Western Healthboard v W(H) and W(C) pku test, parents entitled to refuse |
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Vicarious |
Moynihan v Moynihan 1975 Duffy v Rooney & Dunnes Stores 1997 Counihan v Dublin Bus & ebbs 2005 Ready Mixed Concrete v Minister for Pensions 1969, owened, paint, uniform, maintenance, taxes, routes and substitutes Tierney v An Post 1999 Airfix footwear Ltd v Cope 1978 Smith v Stages 1989, reasonably incidental Century Insurance v NI Transport Board 1942 Iqbal v London Transport executive 1973, express prohibition Reilly v Ryan 1991, armed robbery, criticised, type of work |
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Sexual Abuse, vicarious |
Delahunty v South Eastern Healthboard, St Josephs Industrial School and Minister for education 2003 Visiting, hose master, assistant complained. not vicarious, school directly liable, failed D O C Lister v Lesley Hall Ltd 2002, HOL, fair and just to hold vicarious liable. Broad approach, totally unconnected with employment?, opportunity to commit act not enough, close connection test, if reasonable plaintiff should rely on masters advice and wrong committed dring course of work R v D, 89 - 99, army. failed to discharge burden of proof that there were no circumstances where he could inform someone |
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Bullying |
Majirowski v Guys and St Thomas NHS Trust 2006, homophobic manager, employer, statutory duty to prevent, argued employee had stat duty too. Rejected |
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Road Traffic Act s 118 |
owner consents to another using car and negligent injury occurs, user treated as owners employee, but only if user is acting within terms of consent. Guerin v Guerin and McGrath 1992 |
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Medical Negligence |
Bolam v Friern Hospital 1957 McNair, doctor knows best. GAP, Healy, lot of pwer in hands of profession Coonan v Dooley 1994, hip, birth, followed GAP O'Donavan v Cork Co Co 1967 Procedure widely adopted makes it no less negligent |
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Dunne v National Maternity Hospital 1989 |
The Dunne Principles · The standard regarding diagnosis and treatment is that the practitioner must act with thereasonable care expected of a practitioner of equal specialist or general status and skill. · The Courts will have regard to the general and approved practice which need not beuniversal but is adhered to by a substantial number of practitioners. · If a practitioner deviated from the general and approved practice the Plaintiff must furtherestablish that the course in fact taken by the defendant was “one which no medicalpractitioner of like specialisation and skill would have followed had he been taking theordinary care required from a person of his qualifications.” · An honest difference of opinion between two ways of treating the patient is notnegligence because a doctor followed one course. · If, however, a practitioner follows a practice with inherent obvious defects, following thatpractice is not a defence to negligence. |
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Additional |
Pyne v Western Health Board 2005, tablets, found employer vicarious |
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Informed consent |
Walsh v Family Planning Services 1992, orchialga. doctor owes a duty of care to enable informed consent. Courts have stated that trespass should be confined to wheresurgery was performed where no consent and failure to disclose certain risks goes tonegligence rather than battery |
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Irish position |
Although the professional standard approach adopted byFinlay CJ in Walsh was subsequently affirmed in Bolton v Blackrock Clinic, an authoritativeanalysis by Kearns J in Geoghegan v Harris (2000) has made a convincing case for areasonable patient analysis of due disclosure. The Supreme Court was persuaded byGeoghegan v Harris and wholeheartedly adopted the ‘reasonable patient analysis’ on theissue of disclosure in the case of Fitzpatrick v Royal Victoia Eye and Ear Hospital (2007). |
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Bolton v Blackrock Clinic, Wood and Commisky 1994 |
Larynx HC, negligence, TheSupreme Court differed from the High Court on the correct test to apply but upheld thefindings by the Hight Court. The Supreme Court accepted that the particular risk in thesecond operation was not disclosed but there was no breach of duty in circumstances wherethe second operation was necessary and the risk was slight. |
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Geoghegan v Harris (2000) |
Chin nerve
Severity Stats Circumstances Kearns J discussed disclosure Ultimately the plaintiff failed to recover damages in Geoghegan because the Courtconcluded that although the defendant was in breach of duty when he failed to disclose theremote risk of nerve damage, the plaintiff failed to establish a causal link between the nondisclosureand the injury. |
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Fitzpatrick v Royal Victoria Eye & Ear Hospital (2007) |
Supreme Court noted the move in England towards ‘the reasonable patient test’ held that the ‘patient-centred test’ is preferable and moresatisfactory from the point of view of both doctor and patient alike, than any ‘doctorcentred’approach favoured by part of this Court in Walsh |
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Winston v O’Leary (2006) |
vasectomy procedure performed by defendant |
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Causation |
The informed consent claim is difficult to discharge, largely because of the difficulties inproving causation. As John Healy notes in Principles of Irish Torts, a plaintiff must proveboth injury causation and decisional causation and the latter requires the plaintiff to showthat if he had been informed of the risks he would not have had the operation and thereforethe injury would not have occurred. The question of decisional causation is complicated andthere has been some debate as to the test to be applied. |
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Canterbury v. Spence & Washington Hospital Centre (1972) |
chose an objective assessment of whether or not the non-disclosure caused the Plaintiff tohave treatment he would otherwise have refused. Under an objective causation test, thePlaintiff must prove that the reasonable patient, duly informed |
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Reibl v Hughes 1980 |
hybrid test of causationwhich assesses the reasonable person in the patient’s position. The mixed subjective-objective approach favoured in Reibl was adopted by Kearns J inGeoghegan v Harris. |
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Chester v Afshar (2004 |
Dr Afshar advised her to have three vertebrae removed. Therewas a 1% to 2% risk that this operation would cause paralysis. However, Ms Chester wasnot warned of this risk and suffered paralysis of her legs. The court of first instance held thatthe causal link had been established and this finding was upheld by a majority of 3:2 in theHouse of Lords. Lord Walker |
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Contributory Negligence |
Butterfield v Forrester 1809 Hession v Hession 2005 car, girl O'Sullivan v Dwyer 1971 Fault or blame measured reasonable man Leahy Rawson 2003 Froom v Butcher 1976 Boyne v Bus Atha Cliath 2002, drunk Devlin v Mibi 2006, knew driver was drunk 50% Kelly v Hackett feeding baby Smith Baker, loose rocks, servants, waiver |
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Civil liabilty Act 1961 |
section 34 (1) a, Apportionment, b, reasonable man, agree to waive legal right, good defence Prior to act, consented if you knew risks but continued, smith v baker section 35 Situations Vicarious liable Plaintiff not immediate victim, deceased Concurrent wrongdoer section 57 not defence to show plaintiff breached civil / criminal law - brake light |
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William binchy |
Judicial Studies Institute Journal Tort in state of crises Shelley - Morris v Bus Atha Cliath 2002 High Heels, HC 25%, SC 50% |
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Additional |
McComiskey v McDermott 1974, rally car
O'Hanlon v ESB 1969, fuse extractor, no discussion, agreement for waiver Wagner v International Railroad Company 1921 Wrongdoer may not see coming of deliverer. Created situation - rescuer - creator liable. Haynes v Harwood 1935 horses Vellino v Chief Constable of Manchester |
