Sam Fisher, a gold medalist swimmer observed a small toddler falling into a swimming pool and assumed the lifeguard on duty would see the child and save her.  However, the toddler drowned as a result. Does Sam Fisher have any legal liability toward the toddler?

What is Sam’s duty to the toddler? Under common law jurisdictions, and in Tort Law of Nonfeasance, a person does not owe a duty for not acting to the rescue of another in peril or in grave danger unless there is 1. A duty of care toward that person, e.g. Parent/Child, Teacher/Pupil, Employer/Employee[1]. 2. That you caused the danger or the injury to that person. Or 3. That through your actions you formed a duty of care to that person at the time the person was in danger e.g. You jumped in to save the toddler but decided not to. There is no legal duty on a person where there is no special relationship to rescue another only that of moral duty.  A person cannot be held liable for failure to act.

It is however understood in Criminal law that breach of duty of care is a negligent act in which a person can be held liable for not acting where there is an act or omission (failure to act) by the defendant.[2] This can come under 1. Under Contract, where the defendant is employed to protect the public. This was seen in the case of R v. Pittwood (1902)[3] where the employee failed in his duty, resulting in a person been killed due to his negligence and was convicted of manslaughter based on his contractual obligation to the public. 2. Under Statute,  this imposes a statutory duty on people to act as seen in Section 40.1. (a) Road Traffic Act, 1961[4] where a person must hold a current driving licence to operate a mechanically propelled vehicle on public roads and failure to produce the licence when asked by Gardai will be guilty of an offence. 3. Under Common Law,  Public Officials such as the Garda Síochána have a duty of care owed to the public. This was seen in the case of DPP v. Bartley (1997)[5] where a Garda received a complaint of a felony but did not under a common law duty to investigate the complaint. Failure to investigate will render the Garda liable for prosecution.

It can clearly be seen that Sam had no legal duty to act to save the toddler as he had no special relationship with the toddler nor did he cause the danger or the injury to the toddler. He was also not employed by the hotel to have a contractual obligation to the child. However, the hotel can be held liable for the death of the child as it was the lifeguard who had a duty of care for the toddler.

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[1] Kathleen Moore Walsh, Make that Grade: Irish Tort Law (3^rd edn, Gill & Macmillan 2010) 125.

[2] Conor Hanly, An Introduction to Irish Criminal Law ( Gill & Macmillian 1999) 42.

[3] R v Pittwood [1902] TLR 37.

[4] Road Traffic Act 1961, Section 40.1.(a).

[5] DPP v. Bartley [1997] IEHC 94.

The issue here is, has Sean Smiley allegedly been defamed by Joe King and Breda O’Leary?

Article 40.3.2[1] of the Irish Constitution guarantees a person the right to a good name. The legislation that governs Defamation in Ireland is the Defamation Act 2009[2]. Section 2[3] of the act states that a :

“ defamatory statement” is a statement that tends to injure a person’s reputation in the eyes of reasonable members of society, and “defamatory” shall be construed accordingly.

A defamatory statement can either be written, verbal, visual images, sounds, gestures or any other method of signifying meaning and therefore a false verbal accusation can constitute defamation. So, for Sean Smiley to bring a defamation claim, there must be three factors that fall under the category of defamation. Firstly, the comments must have been communicated to a third party.  Section 6(2)[4] of the 2009 Act provides that the tort of defamation consists of the publication of a defamatory statement to a third party (a). Publication means communication to a third party (i.e. not the plaintiff). Secondly, the accusation must refer to the claimant and thirdly, the statement must have been false.

In Nolan v Laurence Lounge t/a Grace’s Pub,[5] it was found that Leonard Nolan was defamed by Desmond Bond, the barman from  Grace’s  Pub in Rathmines Dublin. Mr Nolan told the court he went into the pub on his way home at around 8.30 pm, ordered a pint and placed a €10 note on the counter. The barman decided to pick up the note and holding it in the air he said: “you can clearly see that is fake ”.  Mr Nolan stated that there were about ten customers in the pub and two were sitting at the counter at the time of the incident, where the barman was speaking very loudly and that the other customers could clearly overhear the conversation.  Mr Justice McGrath said while he could not be certain as to what happened on the night, he regarded the evidence of Mr Nolan as “being more probable and likely”. He also regarded the publication of the defamatory statement, while there were in customers in the bar, as being excessive and awarded Mr Nolan €5,000 in damages.

It is clearly seen in the case above that a publication made orally can amount to defamation, as it was overheard by third parties. If the statement was just made to Mr Nolan without third parties then there would not have been a case of Defamation. Therefore, Sean Smiley can bring a defamation action but only, against Joe King as it was, he who published the accusation. Sam Smiley cannot take an action against Brenda O’Leary as she only published the accusation to Sean Smiley personally and not a third party.

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[1] Article 40.3.2⁰

[2] Defamation Act 2009.

[3] Defamation Act 2009 Section 2.

[4] Defamation Act 2009, Section 6(2).

[5] Nolan v Laurence Lounge t/a Grace’s Pub [2018] IEHC 352.

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