What Is the Civil Liability Claims System for Negligence Liability in Ireland Criticized for - Case Study Example

The judgement of Keane CJ in the case of Glencar Exploration plc v Mayo County Council as it pertains to the concept of the duty of care in Irish Law. Introduction The civil liability claims system for negligence liability in Ireland has come under heavy criticism for becoming increasingly litigious. It has been argued that the Irish civil litigation system has facilitated a compensation culture with widening concepts of duty of care1. To this end, some commentators have argued that Keane CJ’s restatement of the duty of care concept in Irish law has clarified the position by adopting a restrictive approach to duty of care thereby halting the de facto expansion of negligence based litigation and rendering it harder to establish duty of care in future cases2. The focus of this analysis is to critically evaluate the judgment of Keane CJ in the case of Glencar Exploration v Mayo County Council3 as it pertains to the concept of duty of care in Irish tort law. Moreover, it is submitted at the outset that in considering the impact of the Glencar decision on the tortious concept of duty of care in negligence, it is necessary to undertake a contextual review of the development of this area of negligence prior to the decision as a backdrop. I shall undertake this in section 1, with a critical review of Keane’s extrapolations in section 2. Section 1: Contextual Analysis & Overview The duty of care in tort of negligence was firstly introduced by Lord Esher in Heaven v Pender4 as a precursor to the modern law of negligence in the Irish law system5. Lord Esher put forward the doctrine of foreseeability as follows: “whenever one person is by circumstances placed in such a position with regard to another that everyone of ordinary sense would at once recognise that if he did not sue ordinary care and skill in his own conduct with regard to those circumstances he would cause danger or injury to the person or property of the other, a duty arises to use ordinary care and skill to avoid such danger6”. Since the foreseeability test, the tort of negligence developed into the requirements of duty of care, breach of duty and damage. For example, in Lievre v Gould7 Lord Esher asserted that negligence liability could not be imposed unless the defendant owed the plaintiff a duty of care By analogy with the English law approach it is evident that Irish law has adopted a similar approach following the leading decision in Donoghue v Stevenson.8 In this case the plaintiff had suffered damage as a result of finding a snail in her ginger beer bottle and she bought a claim against the manufacturers for damages. It was held in this case that even though the plaintiff had not bought the ginger beer and therefore had no rights under the law of contract, she could successfully pursue a claim against the manufacturer in the law of tort. Lord Atkin asserted that a manufacturer owed a legal duty of care to the ultimate consumer of his product. In discussing duty of care as a legal concept, Lord Atkin established the “neighbour” principle: “You must take reasonable care to avoid acts or omissions which you cannot reasonably foresee would be likely to injure your neighbour”. Lord Atkins continued to define the term “neighbour” in the legal sense as being “persons who are so closely and directly affected by my act that I ought to reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called into question.” This duty of care was further developed in the case of Anns v Merton London Borough9 asserted that the proximity test relies on a consideration of the nature of the relationship between the parties. The decision in Anns is arguably the most comprehensive attempt to assert a general principle applicable to the issue of duty of care. Lord Wilberforce commented that “the position has now been reached that in order to establish that a duty of care arises in a particular situation, it is not necessary to bring the facts of that situation within those of previous situations in which a duty of care has been held to exist. Rather the question has to be approached in two stages. First, one has to ask whether, as between the wrongdoer and the person who has suffered damage there is a sufficient relationship of proximity of neighbourhood such that, in the reasonable contemplation of the former, carelessness on his part may be likely to cause damage to the latter in which case a prima facie duty of care arises. Secondly, if the first question is answered affirmatively, it is necessary to consider whether there are any considerations which ought to negative or to reduce or limit the scope of duty or the class of person to whom it is owed”.10 However, this was test was rejected by the UK jurisdiction in Murphy v Brentwood11on grounds of lacking precision and risking floodgate negligence claims, with the UK courts preferring the established categories approach of Caparo v Dickman12, where the House of Lords confirmed the following three stage test to determine whether a duty of care exists: 1) Whether the consequence of the defendant’s actions were reasonably foreseeable; 2) Whether there was sufficient proximity to impose a duty of care; and 3) Whether it is fair, just and reasonable to impose a duty of care. The latter stage of the test is only applicable when the issue of whether a duty of care exists has to be determined by the courts In contrast, until Keane CJ’s judgment in Glencar, the Donoghue and Anns decisions were accepted by the Irish courts whose approach involved a focus on proximity and foreseeability and public policy considerations13whereas this cornerstone of English negligence law has been criticised for being too dogmatic and arguably out of date14. For example in the case of Ward v McMaster, Louth County Council and Nicholas Hardy & Co Limited15 it was held that the duty of care issue ultimately required a balancing exercising and arose from the proximity of the parties and the foreseeability for the damage, which had to be considered against the “absence of any compelling exemption based upon public policy16”. Such an approach clearly focuses on the Anns’ proximity approach and risks the widening of duty of care through ad hoc judicial determinations. Indeed in the Glencar decision, Keane CJ referred to the fact that the Ward decision has been relied upon as justification for support of the Anns proximity test in Irish law when considering duty of care. However, as evidenced by the decision in Glencar, the approach of the Supreme Court has seen a shifting dynamic and an adoption of the evolving restricted UK approach, which has in fact doubted the applicability of Anns v Merton in the continuing development of the duty of care due to the desire to limit floodgate claims. This is further evidenced if we continue to consider the pre-Glencar approach to duty of care. For example, in the case of Purtill v Athlone17 the Supreme Court was addressing an appeal with regard to the injury of a young boy resulting from activity at the premises of an abattoir. The circumstances of the claim indicated that the young boy in question regularly frequented the abattoir to observe the animal slaughter, the abattoir was aware of this and the door of the abattoir was always kept open and the gates were never locked during slaughtering. Additionally, the plaintiff took the detonators from the abattoir on several occasions and exploded them either in his back garden at home or in the garden shed. However on the occasion which precipitated the negligence claim, the detonator hit him in the eye and resulted in the loss of his right eye. As a result, he instituted legal proceedings against the abattoir for negligence however the abattoir argued that as he was a trespasser they did not owe him a duty of care. The Supreme Court rejected the defendant’s claim of trespass and focused on whether there was a duty of care for negligence liability. To this end, the Supreme Court felt that central issue was proximity and foreseeability of damage in line with established principles of tort law under Donoghue and Anns. The Supreme Court held that the relationship was proximate due to the frequency of the boy’s visits to the abattoir and therefore reasonably foreseeable. Moreover, the Supreme Court asserted that “when the danger is reasonably foreseeable, the duty to take care to avoid injury to those who are not proximate, when their proximity is known…. is based upon the duty that one man has to those in proximity to him to take reasonable care that they are not injured by his acts18”. However, it is precisely this rationale for establishing duty of care that was attacked by Keane CJ in the Glencar, which Keane felt was irreconcilable with the leading rationale of Lord Atkins in the Donoghue v Stevenson decision, which is discussed further in section 2 below. Additionally, it is arguable that the decision in the Purthill case was motivated by considerations of public policy however in Glencar Keane CJ felt that obfuscating the distinction between proximity and public policy was not helpful to determining duty of care in negligence. He expressly referred to the decision in McNamara v ESB19 to further support his point. In the McNamara case, the plaintiff was an injured boy who broke into the ESB substation and suffered injury. The ESB substation had been aware of children breaking into the substation. As such, ESB was found liable to owe the plaintiff a duty of care on grounds of proximity and foreseeability as at the time they knew and were aware of children entering the substation. As such, the Supreme Court felt that steps taken by ESB at the time were unreasonable in satisfying this duty of care on the objective test. These decisions pre-Glencar highlight the central issue exercising the Supreme Court has been the extent of the duty of care, which is inherently difficult to ascertain with certainty, however ad hoc judicial determinations have arguably widened the duty of care, which was issue at the centre of Keane’s judgment in Glencar. Section 2: Glencar decision and Keane CJ’s Judgment If we firstly consider the facts of the case, the defendant was public authority Mayo County Council and both companies were mining companies having carried out prospecting work in Mayo with the objective of mining gold. However Mayo County Council subsequently imposed a plan which included a total ban to mining in the county and which ceased the prospects of Glencar and Andaman continuing the exploration. As a result, both companies sued Mayo County council arguing excess of powers and that the mining ban was improper exercise of power. The High Court found for the plaintiffs in respect of the overturning the mining ban but rejected the claim for damages for pure economic loss. The companies then appealed to the Supreme Court which rejected their claim and examined the concepts of negligence and duty of care and indicated a willingness to bring Irish law more in law with recent English law, which has restricted the expansion of duty of care in recent years20. In the Glencar case, Keane CJ reviewed authorities and added the following to established authority pertaining to the duty of care in Irish tort law: “it seems to me that no injustice will be done if the courts are required to take the further step of considering whether, in all the circumstances, it is just and reasonable that the law should impose a duty of a given scope on the defendant for the benefit of the plaintiff”21. On this basis, it has been argued that the central impact of the Glencar decision is that there should be a limitation on the increasing compensation culture to prevent floodgate claims and a greater discretion of courts to reject claims where, notwithstanding a relationship of proximity and the foreseeability of loss, if it is not just and reasonable to impose liability22. Moreover, the obiter dicta of the Glencar decision was stated by Keane CJ thus: “there was no reason why courts determining whether a duty of care arose should consider themselves obliged to hold that it did in every case where injury or damage to property was reasonably foreseeable and the notoriously elusive test of proximity or neighbourhood should be said to have been met, unless very powerful public policy considerations dictated otherwise. It would seem that no injustice would be done if, in such circumstances a court required to take the further step of considering whether, in all the circumstances, it was just and reasonable that the law should impose a duty of care on the defendant for the benefit of the plaintiff23”. Whilst the rationale for such an approach is clearly welcome in attempting to prevent widening concepts a duty of care through the back door, it is questionable how far Keane CJ’s “just and reasonable” test differs from the public policy approach in Anns v Merton. Moreover, the inherent ambiguity of just and reasonable clearly lends itself to abuse. In considering negligence, Keane CJ divided the matters in dispute into two issues. Firstly, he addressed the applicant’s arguments regarding the public authority’s duty of care. Keane referred expressly to the assertion that the starting point was the decision in Donoghue v Stevenson, which he reiterates throughout his judgment. Whilst accepting the Donoghue v Stevenson decision as a starting point for determinations of liability in negligence, Keane expressly referred to the dicta of Lord Atkin where he stated that “The liability for negligence, whether you style it or treat it such as in other systems as a species of “culpa” is no doubt based upon a general public sentiment of moral wrongdoing for which the offender…. However the rule of law arise which limit the range of complainant and the extent of their remedy”24. To this end, Keane CJ argued that Lord Atkins’ view means that the tort of negligence intrinsically limits the range of complainants and the extent of their remedy has been ignored by Irish court jurisprudence when considering negligence claims. Moreover, Keane CJ refers to the issue of proximity as early as the decision in Le Lievre v Gould25 where Lord Esher asserted “if one man is near to another, or is near to the property of another, a duty lies upon him not to do that which may cause a personal injury to another, or may injure his property”26. Keane utilised this reference to reiterate his argument that liability in negligence and the duty of care is limited to damage caused by positive acts and not for economic loss claims or omissions. In referring to the applicability of the Anns v Merton test regarding proximity, Keane referred to the fact that later cases have clarified the “superficiality” of the Anns v Merton test such as Lord Reid’s assertions in the case of Dorset Yacht Co. Limited v Home Office27 “This is a temptation which should be resisted…. In determining whether or not a duty of care of a particular scope was incumbent upon a defendant it is material to take into consideration whether it is just and reasonable that it should do so”28. To this end, Keane prefers the Caparo v Dickman test and expressly referred to a comparative analysis between English jurisprudence and asserts how Donoghue v Stevenson has been adopted by Irish courts “and unquestionably represents the law in this jurisdiction29”. Indeed, Keane seems to prefer the dogmatic approach of Donoghue v Stevenson on grounds of the fact that the duty of care principle is intended to be limited. Again, whilst such an approach is arguably necessary to prevent floodgate claims, to simply assert as Keane CJ does that there is no liability for failure to act ignores the express statement in Donoghue v Stevenson itself that “you must take reasonable care to avoid acts or omissions”.30 Additionally, Keane refers to McMahon and Binchy’s reference to Anns v Merton test being applicable on grounds of the decision in the leading Irish decision of Ward v McMaster discussed in section 1 above31. In the Ward case, the plaintiffs had purchased a house from a builder and local authority, which subsequently was riddled with structural defects. They had not undertaken any surveys themselves and sued the vendor builder and local authority on grounds that as they were persons not of means the local authority knew that they wouldn’t have engaged their own independent surveyor and would have relied on the local authority having carried out an appropriate inspection. In the High Court, their claims succeeded, and Keane points to the fact that the High Court relied on the decision in Junior Books v Veitchi Co Limited32 and on this basis the following principles were applicable in Irish law when determining whether there was a duty of care: 1) Proximity of relationship; and 2) Imposition of a duty of care is just and reasonable. On this basis, Keane argued that there was therefore nothing to indicate that Ward was adopting a wider approach and appears to suggest that the “just and reasonable” test is already part of Irish tort law. Indeed, Keane CJ commented that “while the decision in Ward v McMaster has been treated by some as an unqualified endorsement by this court of the two stage test adopted by Lord Wilberforce in Anns v Merton London Borough Council, it is by no means clear that this is so “33. Moreover, Keane CJ argued that as there is dissent regarding Anns v Merton in the UK, it would not therefore be appropriate to hold this as the basis for the decision of the dicta in Ward v McMaster by analogy in Irish law. Indeed, the essence of Keane’s rationale appears to be Donoghue v Stevenson and in particular Lord Atkin’s “neighbour approach34” Keane CJ further argued that the categorisation approach by Anns v Merton is undesirable in widening the ambit of negligence law and that “There is in my view, no reason why courts determining whether a duty of care arises should consider themselves obliged to hold that it does in every case where injury or damage to property was reasonably foreseeable, and the notoriously difficult and elusive test of proximity or neighbourhood can be said to have been met, unless very powerful public policy considerations dictate otherwise. It seems to me that no injustice will be done if they are required to take the further step of considering whether in all the given circumstances, it is just and reasonable that the law should impose a duty of a given scope on the defendant for the benefit of the plaintiff.35” Furthermore, Keane’s rationale was rooted in the notion that the nature of proximity meant that unless there could be a public policy reason for not imposing a duty of care, the position in the Irish system pre-Glencar had effectively created a presumption of duty of care. In contrast, Keane’s decision in the Glencar case to one degree demonstrates a shifting dynamic from the traditional stance of Irish courts and brings Irish law in line with English law jurisprudence in recent years. On the other hand, it is questionable how far the just and fair approach differs to the public policy test and it is arguable that the Glencar decision can be understood in light of the fact that it was addressing a claim for pure economic loss, which is generally not recoverable in negligence subject to limited exceptions36. However, to this end Keane expressly stated that consideration of negligence claims for pure economic loss should be reserved for another.37 Additionally, the impact of the Glencar decision is evident from the case of Beatty v Rent Tribunal38 where the Supreme Court considered whether the Rent Tribunal could be sued in negligence. Whilst the courts agreed that negligence claim must fail, Ryan points out how the divergence in judicial approach is important in considering the impact of Keane’s statements in Glencar and the continuing ambiguity regarding duty of care particularly in relation to public authorities39. Firstly, Ryan refers to the fact that Fenelly’s reasoning for rejecting the negligence claim was on grounds of the restated negligence test in Glencar and that it “wouldn’t be fair, just and reasonable” to impose a duty of care on the tribunal and McCracken concurred with this approach40. Conversely, Geoghen argued that refusal to impose liability was on grounds of immunity from suit altogether rather than any application of the Glencar test, which demonstrates that the courts still struggle with the concept of duty of care particularly in addressing public authority liability41. Moreover, Ryan comments that the Glencar decision and subsequent judicial determinations indicate “A certain trend is discernible of a judicial unease with permitting recovery for pure economic loss42”. Overall, it is evident that the central marker of Keane CJ’s judgment is the express recognition of a need to preserve the overriding purpose of negligence liability whilst limiting floodgate claims. However, the ambiguity of “just and fair” arguably risks the same problems of widening duty of care on a case by case basis on policy grounds. On the one hand, it is arguable that the Keane decision was motivated by the reluctance to award damages for pure economic loss, nevertheless the decision in Beatty indicates a judicial aversion to addressing this issue directly and it remains to be seen how the Glencar judgment will be interpreted in the development of duty of care in Irish law. BIBLIOGRAPHY John Hodgson & John Lewthwaite, “Tort Law” (2007). 2nd Edition, Oxford University Press McMahon & Binchy (2005). Law of Torts 3rd Edition. Tottel Publishing McMahon & Binchy (2005). Casebook on Irish law of Torts, 3rd Edition. Tottel Publishing. Ryan, D. (2005). The Position in Tort of Public Authorities after Beatty v the Rent Tribunal. The Quarterly Review of Tort Law. Volume 1ssue 1. Walsh (2007). 2nd Edition. Irish Tort Law. Gill & Macmillan Limited. Quill, E. (2004). Torts in Ireland 2nd Edition. Gill and Macmillan Dublin 2004. Read More