Introduction:
A duty of care is a legally recognised obligation requiring the defendant to adhere to a certain standard of behaviour to those it has a proximate relationship to for their protection against foreseeable unreasonable risks and is the first element that must be established in negligence in the law of torts. The concept of the duty of care acts as a control for the courts in limiting the extent of what is considered a foreseeable unreasonable risk and what type of damage suffered by the plaintiff is covered under negligence. From the outset of the courts recognizing a duty of care owed to the plaintiff by the defendant, under a number of concepts that have been established over time, the Irish courts have tended to accept the concepts established in British decisions and other places in the common law world, such as proximity and neighbourhood. The primary concepts of proximity and neighbourhood were first clarified by Lord Atkin in Donoghue v Stevenson[1] in 1932 were to be the leading concepts in the duty of care in Ireland for a number of years prior to the creation of a new concept of social policy in the Glencar Exploration p.l.c. v Mayo County Council in 2002.[2] Social policy allows the court to decide if it would be advantageous to society that the defendant and in future others in a similar situation owe a duty of care to persons similar to the plaintiff. This essay will focus on the evolution of duty of care in Ireland up to and following the decision in Glencar v Mayo County Council which is viewed as a defining case in the duty of care in Ireland and question whether the decision has slowed down developments in recognizing new duties of care in the eyes of the Irish courts. The essay will also attempt to establish that, if the decision in Glencar has slowed down the development in new duties of care, was it necessary to divert duty of care in Ireland from the liberal road to the conservative road.
Duty of care prior to Glencar Exploration p.l.c. v Mayo County Council:
The test in Donoghue is the landmark case in English law of tort.[3] Burns and Smith argue that the neighbour principle created in Donoghue is past its’ used by date and should no longer be used as a precedent in duty of care cases.[4] From analyzing duty of care cases in Ireland the neighbour principle is still very much used as a platform in establishing duty of care cases. McMahon and Binchy are of the opinion that the Irish courts were quick to implement test created by Lord Atkin in Donoghue in the trio of Irish cases Purtill v Athlone UDC[5], McNamara v ESB[6] and Tulsk Co-op v Ulster Bank Ltd[7] with an emphasis on the necessity of proximity in recognising a duty of care.[8] The major Irish case prior to the Glencar case in duty of care in Ireland is Ward v McMaster[9]. In Ward v McMaster McCarthy J created a two step test for the duty of care: the proximity of the plaintiff and the defendant and the foreseeability of the damage caused, before stating that ‘’the absence of any compelling exemption based upon public policy, which in order to trump the factors of proximity and foreseeability, had to be a very powerful one if it was to be used to deny an injured party his right to redress at the expense of the person or body that injured him.’’[10] McCarthy J adopts the two step test created in Anns v Merton London Borough Council[11], where Lord Wilberforce places proximity and foreseeability in one category and public policy in a second category with a requirement to satisfy both categories in recognising a duty of care owed. McCarthy J deviates slightly from the Anns by placing proximity and foreseeability into two individual categories and places little importance on public policy preventing a plaintiff from receiving a duty of care owed to them.[12] For the next decade the approach taken by McCarthy J was to be followed by the Irish courts in identifying a duty of care. The Irish courts generally observed the concepts of proximity and neighbourhood with little reference to policy prior to the decision in Glencar.
Glencar Exploration p.l.c. v Mayo County Council:
The decision by the Supreme Court in the Glencar is seen as a landmark decision in duty of care case law in Ireland. The plaintiffs in the case had been granted mining licenses by the Minister for Energy to mine for gold in an area south of Westport in Co. Mayo. In a separate action Mayo County Council adopted a mining ban in the County Mayo development plan, however in the mean time Glencar Explorations had spent large sums of money in the region of £2 million in preparation to begin mining.[13] The mining ban was held to be ultra vires and was lifted. The plaintiffs sued for negligence claiming they were owed a duty of care.[14] Keane CJ established a four-step test to duty of care in the Glencar case:
1. Reasonable foreseeability;
2. Proximity of relationship;
3. Countervailing public policy considerations;
4. Justice and reasonableness of imposing a duty of care.[15]
As before the requirement that the damage caused to the plaintiff was reasonably foreseeable by the defendant in owing a duty of care. There must be proximity of relationship between the plaintiff and the defendant. It must in the interests of public policy to award damages to the plaintiff and finally it must be just fair and reasonable to acknowledge a duty of care owed to the plaintiff. The decision saw the end of the two-step test in Anns being replaced with a four-step mentioned above. Binchy is of the opinion that the Glencar case is significant because it makes it much more difficult to establish a duty of care as more requirements have to be met but also because these requirements are not based on ‘fact situations’ but on the ‘functions of public authorities’.[16] Keane CJ uses the term ‘far-reaching’ in his judgement when describing the tests for duty of care in other jurisdictions and in the Ward case.[17] It is implied that ‘far-reaching’ is considered a negative aspect of duty of care in the eyes of Keane CJ as he goes on to reject the approach of McCarthy J taken in Ward. Ryan & Ryan believe the deliberate move away from Anns is a calculated desire to restrict the development of new duties of care and liability in negligence.[18] The decision in Glencar has resulted in an uneccessary slowing down in the development in recognising new duties of care.[19]
Developments in duty of care after Glencar Exploration p.l.c. v Mayo County Council:
The direction of duty of care in Ireland took a u-turn following the Glencar case. The ramifications of the Glencar case can be seen in Breslin v Corcoran and Motor Insurers Bureau of Ireland,[20] Fennelly J reiterated Keane CJ judgement in Glencar, that along with foreseeability and proximity, fairness, justice and reasonableness must be taken into consideration when forming a duty of care.[21] The more conservative approach now taken by the courts can again be seen in the Fletcher v Commissioner of Public Works[22], the Supreme Court overturned a decision to awarded damages to the plaintiff following the development of a psychiatric injury due to the plaintiff’s working conditions. Geoghegan J prioritized public policy to deny recovery of damages in overturning the High Court decision.[23] Geoghegan J expressed the need to curtail the scope of civil liability by applying ‘pragmatic control mechanisms’[24] This statement further confirms the Supreme Courts reluctance to award compensation for damages in the fear of an sharp rise in frivolous claims being brought before the court. In cases of pure economic loss such as Beatty v Rent Tribunal[25] the facts were similar to that in Ward and the court found in favour of the plaintiff. However, Ryan and Ryan argue that if the facts were not so similar to that in Ward, a plaintiff seeking damages for pure economic loss would find it much more difficult as the courts would be more likely to consider issues of public policy in light of Glencar.[26] Each of the cases mentioned above highlight the increasing difficulty plaintiffs face in having duty of care recognised following the Glencar case.
Conclusion:
The direction of duty of care in Ireland has taken a u-turn following the Glencar case preferring a more general approach to the, giving the courts a greater scope of flexibility to reject cases of liability. From the perspective of would be plaintiffs the decision in Glencar has slowed down the development of duty of care in Ireland as Keane CJ created the four-step test making it more difficult to argue a duty of care was owed to the plaintiff and the defendant is liable for any damages caused. It is now more difficult for a plaintiff to receive compensation for damage caused to them which will almost certainly result in few cases concerning duty of care being brought before the courts. The decision in Glencar has undoubtedly slowed down the development of duty of care in Ireland unnecessarily according to Binchy, Ryan and Ryan in their respective articles. In contrast, the slowing down of the duty of care is very much a real necessity in the eyes of the courts to maintain a control over the number of cases involving the duty of care coming before them as it seems to be a real concern that if damages were awarded to cases of a broad spectrum it would result in an unmitigated number of cases perhaps even fraudulent cases being brought to the courts in the hope that damages would be awarded to the plaintiffs of each case. The Irish courts seem to have moved to a position of playing it safe with the introduction of a four step test in Glencar seems to be a move to prevent a flood of cases claiming liability in Ireland.
[1] Donoghue v Stevenson [1932] AC 562.
[2] Glencar Exploration plc. v Mayo County Council [2002] 1 IR 84.
[3] P Burns & J Smith, ‘Donoghue v Stevenson – The Not so Golden Anniversary.’ 1983 46 The Modern Law Review at 163.
[4] P Burns & J Smith, ‘Donoghue v Stevenson – The Not so Golden Anniversary.’ 1983 46 The Modern Law Review at 163.
[5] Purtill v Athlone UDC [1968] IR 205.
[6] McNamara v ESB [1975] IR 1.
[7] Tulsk Co-op v Ulster Bank Ltd [1983] IEHC 2.
[8] B McMahon & W Binchy, Law of Torts (4th edition, Bloomsbury Professional 2013) at 182.
[9] Ward v McMaster [1988] IR 337.
[10] B McMahon & W Binchy, Law of Torts (4th edition, Bloomsbury Professional 2013) at 184.
[11] Anns v Merton London Borough Council [1978] A.C. 728
[12] B McMahon & W Binchy, Law of Torts (4th editon, Bloomsbury Professional 2013) at 184.
[13] R Ryan & D Ryan, ‘Some Comments About ‘’Caution’’: Emerging Trends in Irish Negligence Law’. (2004) Trinity College Law Review 7 at 116.
[14] B McMahon & W Binchy, Law of Torts (4th editon, Bloomsbury Professional 2013) at 186.
[15] B McMahon & W Binchy, Law of Torts (4th editon, Bloomsbury Professional 2013) at 191.
[16] W Binchy, ‘Recent developments in the Law of Torts.’ (2004) Judicial Studies Institute Journal 4(1) at 9.
[17] Glencar Exploration plc. v Mayo County Council [2002] 1 IR 84.
[18] R Ryan & D Ryan, ‘Some Comments About ‘’Caution’’: Emerging Trends in Irish Negligence Law’. (2004) Trinity College Law Review 7 at 121.
[19] R Ryan & D Ryan, ‘Some Comments About ‘’Caution’’: Emerging Trends in Irish Negligence Law’. (2004) Trinity College Law Review 7 at 114.
[20] Supreme Court, unreported, 27 March 2003.
[21] W Binchy, ‘Recent developments in the Law of Torts.’ (2004) Judicial Studies Institute Journal 4(1) at 19.
[22] Fletcher v Commissioner of Public Works [2003] 2 ILRM 94.
[23] R Ryan & D Ryan, ‘Some Comments About ‘’Caution’’: Emerging Trends in Irish Negligence Law’. (2004) Trinity College Law Review 7 at 126.
[24] Fletcher v Commissioner of Public Works [2003] 2 ILRM 94.
[25] Beatty v Rent Tribunal Unreported, High Court, 16 May 2003, O’Donovan J.
[26] R Ryan & D Ryan, ‘Some Comments About ‘’Caution’’: Emerging Trends in Irish Negligence Law’. (2004) Trinity College Law Review 7 at 133.
thevoiceofpoliticalnonsense 