The Supreme Court of the State of Ireland - Case Study Example

IN THE SUPREME COURT OF THE OF IRELAND No. 76/08 James Naughton, Plaintiff and Appellant, vs. Powers Pub, Defendant and Respondent. BRIEF OF APPELLANT On appeal from the District Court of the Twenty-Fifth Judicial District of the State of Ireland, in and for the County of Polpein ORAL ARGUMENT REQUESTED APPEARANCES: Robert C. Johnson 23, Wing Street, Tavalar Lane ATTORNEY FOR PLAINTIFF AND APPELLANT TABLE OF CONTENTS TABLE OF AUTHORITIES 3 STATEMENT OF THE ISSUES 4 STATEMENT OF THE FACTS 4-5 ARGUMENT 5-12 A. I. THE DISTRICT COURT ERRED IN HOLDING THAT DUTY OF CARE WOULD NOT EXTEND TO PUBLICANS BY IGNORING THE INTOXICATING LIQOUR ACT 2003 OF IRELAND II. THE DISTRICT COURT ERRED IN NOT HOLDING THE OWNER OF THE POWER PUB RESPONSIBLE FOR HIS NEGLIGENT ACT III. THE DISTRICT COURT ERRED IN NOT AWARDING COMPENSATION TO THE APPELLANT FOR THE INJURIES SUFFERED BY HIM CONCLUSION 12 TABLE OF AUTHORITIES Cases Donoghue v. Stevenson (1932) A.C. 562 Grant v. Australian Kinitting Mills(1936)A.C.85 Heaven v. Pender (1883) 11 Q.B.D. 503 Winterbottom v. Wright (1842) 10 M. Bourhill v. Young,(1943) A.C.92, at 104, per Lord Macmillan Glasgow Corporation v. Munir (1943) A.C.448, at 457 Booker v. Wenborn(1962) 1 AllE.R. 431 Ryan v. Youngs (1938) 1 Al E.R. 522 Champan v. Hoarse (1961) 108 C.L.R. 112, at 115, per Dixon C.J. Fardon v. Harcourt-Rivengton(1932) 146 L.T. 391 Palsgraaf v. Long Island Railroad Co (1928) 284 N.Y. 339: 162 N.E. 99 Blyth v. Birmingham Waterworks Co(1856) II Ex. 781, 784 Rigby v. Hewit (1850) 5 Ex. 240 Re Polemis and Furness, Wilthy & Co. Ltd. (1921) 3 K.B. 560 Johns v Cosgrove Statutes Intoxicating Liquor Act 2003 of Ireland STATEMENT OF THE ISSUES 1. Did the District Court err in holding that duty of care would not extend to publicans by ignoring the Intoxication Liquor Act 2003 of Ireland 2. Did the District Court err in not holding the owner of the Power Pub responsible for his negligent act despite the chain of causation being very clear 3. Did the District Court err in not awarding compensation to the appellant for the injuries suffered by him that turned him in to a paraplegic STATEMENT OF THE FACTS James Naughton lost a significant amount of money at the racetrack seeking solace he went to powers pub were he consumed pints of larger and five double vodkas and redbull. The pub landlord knew him and offered him a lift home he refused (no attempt was made to dissuade him) he then walked the mile to were his car was located. He then drove off in search of more beer he was spotted driving erratically by several pedestrians and he then went to superMacs were he consumed a mighty mac meal. He then drove of to nellanys pub and parked his car directly in front of the premises he was served one beer but was refused anymore frustrated he drove 15 miles were he knew there was more liquor he was driving a short distance were he crashed into a wall his spinal cord was severed and he was rendered a paraplegic as a result of the crash He filed a court action alleging both pubs owed him a duty of care because he was allowed to drive when drunk and was served alcohol when drunk. The second pub Nellanys agreed to a confidential settlement, which cannot be stipulated for legal reasons. The actions against the first pub powers was dismissed on grounds that no legal authority would extend such a duty on publicans. ARGUMENT 1. Negligence has two meanings in law of torts i.e. Negligence as a mode of committing certain torts, e.g., negligently or carelessly committing trespass, nuisance or defamation. In this context it denotes the mental element, and Negligence is also considered as a separate tort. It means a conduct which creates a risk of causing damage, rather than a state of mind. The House of Lords in 'Donoghue v. Stevenson'(1932) A.C. 562 treats negligence, where there is a duty to take care, as specific tort in itself, and not simply as an element is some more complex relationship or in some specialized breach of duty 'Grant v. Australian Knitting Mills(1936)A.C.85'. According to 'Heaven v. Pender' (1883) 11 Q.B.D. 503 "actionable negligence consists in the neglect of the use of ordinary care or skill towards a person to whom the defendant owes the duty of observing ordinary care and skill, by which neglect the plaintiff has suffered injury, to person or property". In an action for negligence the plaintiff has to prove that the defendant owed duty of care to the plaintiff, the defendant made a breach of that duty and the plaintiff suffered damage as a consequence thereof. By Duty of care to the plaintiff we mean a legal duty rather than a moral, religious or social duty. The Plaintiff has to establish that the defendant owed to him a specific legal duty to take care of which he has made a breach. There is no general rule of law defining such duty. It depends in each case whether that duty exists. 2. In this case the defendant raised the defence of "Privity of Contract Fallacy" quoting from the case 'Winterbottom v. Wright'(1842) 10 M. In that case Lord Abinger, C.B., said, "unless we confine the operations of such contracts as this to the parties who entered in to them, the most absurd and outrageous consequences, to which I can see no limit, will ensue." Since an action for tort is quite independent of any contract, there seems to be no reason why for an action in tort a contractual relation between the parties be insisted. This fallacy was done away with by 'Donoghue v. Stevenson' by allowing the consumer of drink an action in tort against the manufacturer, between whom there was no contract. Whether the defendant owes a duty to the plaintiff or not depends on reasonable foreseeability of the injury to the plaintiff. If at the time of the act or omission the defendant could reasonably foresee injury to the plaintiff he owes a duty to prevent that injury and failure to do that makes him liable. Duty to take care is the duty to avoid doing or omitting to do anything, the doing or omitting to do which may have as its reasonable and probable consequence injury to others, and the duty is owed to those to whom injury may reasonably and probably be anticipated if the duty is not observed 'Bourhill v. Young,(1943) A.C.92, at 104, per Lord Macmillan'. 3. In 'Glasgow Corporation v. Munir'(1943) A.C.448, at 457 Lord MacMillan explained the standard of foresight of the reasonable man : "The standard of foresight of the reasonable man is, in one sense, an impersonal test. It eliminates the personal equation and is independent of the idiosyncrasies of the particular person whose conduct is in question. The reasonable man is presumed to be free both from over-apprehension and from over-confidence, but there is a sense in which the standard of care of the reasonable man involves in it's application a subjective element." In 'Booker v. Wenborn'(1962) 1 AllE.R. 431 the defendant boarded a train which had just started moving but kept the door of the carriage open. The door opened outside, and created a danger to those standing on the platform. The Plaintiff, a porter, who was standing on the edge of the platform was hit by the door and injured. It was held that the defendant was liable because a person boarding a moving train owed a duty of care to a person standing near it on the platform. However, it is also a stated position that there is No liability when the injury is not foreseeable. In 'Ryan v. Youngs'(1938) 1 Al E.R. 522, defendant's servant, while driving a lorry, suddenly died, which resulted in an accident and consequent injury to the plaintiff. The driver appeared to be quite healthy and the defendant could not foresee his sudden death. It was held that the accident was due to an act of God and, defendant was not liable for the same. It is also an stated position that Reasonable foreseeability does not mean remote possibility. According to 'Champan v. Hoarse'(1961) 108 C.L.R. 112, at 115, per Dixon C.J. to establish negligence it is not enough to prove that the injury was foreseeable, but a reasonable likelihood of the injury has also to be shown because "foreseeability does not include any idea of likelihood at all." Lord Dunedin in 'Fardon v. Harcourt-Rivengton'(1932) 146 L.T. 391 said that "if the possibility of danger emerging is only a mere possibility which would never occur to the mind of a reasonable man, then there is no negligence in not having taken extraordinary precautions.. People must guard against reasonable probabilities but they are not bound to guard against fantastic possibilities." Even a counsel has a duty of care towards his client, the counsel should be careful in performing his professional duties. If a counsel, by his acts or omission causes the interest of the party engaging him in any legal proceedings to be prejudicially affected, he does so at his peril. Likewise, even a medical practitioner, when consulted by a patient owes him the following duties : a duty of care in deciding whether to undertake the case; a duty of care in deciding what treatment to give; and a duty of care in the administration of the treatment. A breach of any of the above mentioned duties give a right of action for negligence to the patient. It is also a settled position that Duty must be owed to the Plaintiff, Mere carelessness on the part of the defendant does not entitle the plaintiff to sue him, it has to be proved that the defendant owed a duty of care to the plaintiff. When the defendant owes a duty of care to persons other than the plaintiff, the plaintiff cannot sue even if he might have been injured by the defendant's act. This point was illustrated in 'Palsgraaf v. Long Island Railroad Co.' (1928) 284 N.Y. 339: 162 N.E. 99 The other important ingredient that the Plaintiff has to prove to bring about a action for negligence is that there is Breach of Duty made by the defendant. Breach of duty means non-observance of due care which is required in a particular situation. What is the standard of care required The standard is that of a reasonable man or of an ordinarily prudent man. If the defendant has acted like a reasonably prudent man there is no negligence. Lord Alderson B. stated in 'Blyth v. Birmingham Waterworks Co.' (1856) II Ex. 781, 784 that Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do or doing something which a prudent and reasonable man would not do" It should be left to the court to decide in the light of the peculiar circumstances of a given situation that what a reasonable man would have in contemplation, and what accordingly, the party sought to be made liable ought to have foreseen. The law requires taking of two points in to consideration to determine the standard of care required: the importance of the object to be attained, the magnitude of the risk, and the amount of consideration for which services etc. are offered. The law does not require greatest possible care but the care required is that of a reasonable man under certain circumstances. The law permits taking chance of some measures of risks so that in public interest various kinds of activities should go on. The degree of care required varies according to each situation. What may be a careful act in one situation may be negligent act in another. The law does not demand the same amount of care under all situations. The kind of risk involved determines the precautions which the defendant is expected to take. The degree of care depends also on the kind of services offered by the defendant and the consideration charged therefore from the plaintiff. For example a five star hotel charging a high or fancy price from its guests owes a high degree of care as regards quality and safety of its structure and services it offers and makes available. 4. As regarding Damages it is necessary that the defendant's breach of duty must cause damage to the plaintiff. The plaintiff has also to show that the damage that caused is not too remote a consequence of the defendant's negligence. There are some tests that can in whose light the damages the can be assessed like the test of reasonable foresight that says if the consequences of a wrongful act could have been forseen by a reasonable man, they are not too remote. If, on the other hand, a reasonable man would not have forseen the consequences they are too remote. As per the opinion of Pollock C.B. in 'Rigby v. Hewit'(1850) 5 Ex. 240 the liability of the defendant is only for those consequences that could have been forseen by a reasonable man placed in the circumstances of the wrongdoer" According to The test of Directness the test of reasonable foresight was rejected and the test of directness was considered to be more appropriate by the court of appeal in 'Re Polemis and Furness, Wilthy & Co. Ltd.' (1921) 3 K.B. 560 5. In this case the 'Chain of Causation' showing the direct link between the defendant's negligence and the appellant's injury is very clear. As per the facts of the case the Power Pub's owner knew the appellant and was also aware of the fact that he was heavily drunk and not in his senses but still he didn't made and real effort to dissuade the appellant from drinking more or going home on his own. It shows that the owner of the pub ignored his moral, professional, ethical and legal responsibility towards the Appellant. 6. In Johns v Cosgrove the Supreme Court of Queensland decided that 'It is not negligence merely to serve a person with liquor to the point of intoxication; but it is so if because of the circumstances it is reasonable, foreseeable that to do so would cause danger to the intoxicated party, such as, for example where the intoxication is so gross as to cause incapacity for reasonable self-preservation when it is or should be known that he or she may move into dangerous circumstances, and where no action is taken to avert thisThe danger would be enlarged if it were known that the intoxicated person would be negotiating dangerous traffic such as would be found where the hotel was situated between two major arterial roads, and his habit of going home unescorted was known' The 1997 Cosgrove decision places a heavy onus on alcohol servers. It is a general law that as a bar or restaurant owner, it is your responsibility to take actions to prevent underage drinking and serving alcohol to intoxicated adults. Where a liquor license holder is responsible for serving an intoxicated customer, he or she can be sued both by the intoxicated customer and by anyone injured by the intoxicated customer, as well as facing fines or a suspension of the license - possibly even jail time. The Licensing Act in Ireland even prohibits the sale of Liquor to an already intoxicated person. According to the Intoxicating Liquor Act 2003 of Ireland it is an offence to supply alcohol to a drunken person and to admit a drunken person to a bar. (A 'drunken person' is someone intoxicated to such a degree that they may endanger themselves or other people). Any licence holder that allows this to occur on their premises is liable to a summary conviction of 3,000 for a first offence and 5,000 for any subsequent offence. CONCLUSION So in the light of the Intoxicating Liquor Act 2003 of Ireland and various precedents the District Court Judgment should be reversed and the Power pub should be held directly or vicariously liable for the appellant's present condition and owe the appellant exemplary damages. Respectfully submitted this 5th day of December, 2008. Bibliography Bangia,R.K.Law of Torts. ALA Adams,Alix.Law For Business Students (4th Edition). Elliott,Catherine.Law of Tort. Pearson Education Ltd. Read More