McCabe v Ireland

Judgment Date01 January 2000
Neutral Citation[1999] IESC 52
CourtSupreme Court
Docket Number[S.C. No. 196 of 1998]
Date01 January 2000





[1999] IESC 52







Practice - Personal injuries - Duty of care - Preliminary point of law - Plaintiff suffered injury as a result of assault perpetrated by person on temporary release from prison - High Court ordered preliminary issue of law to be tried as to whether defendant owed duty of care in law to plaintiff in relation to prisoners on temporary release - Whether determination of preliminary point of law would involve determinations of fact - Whether discovery should be postponed until point of law determined - Whether preliminary hearing would duplicate proceedings - Rules of the Superior Courts 1986 (SI No 15 of 1986), O. 25, r.1.

A preliminary issue of law can only be tried in the context of established or agreed facts and where there is a dispute as to the facts the moving party must accept, for the purposes of the trial of the preliminary issue, the facts as alleged by the moving party. The Supreme Court so held in dismissing the appeal and further saying that discovery should be postponed until the preliminary issue is decided.




This is an appeal by the Plaintiff/Appellant against an order of the High Court (Kinlen J) made on the 18th of May 1998 whereby it wasordered:

"That without further pleadings a preliminary issue be tried before a judge sitting without a jury wherein the defendants shall be plaintiff's and the plaintiff defendant the questions at the trial of such issue to be"

(1) whether the defendants in the above entitled proceedings (or any of them) owed to the plaintiff a duty of care at common law in determining whether to cause orpermit a person to be released from prison on temporary release or in imposing conditions upon such temporary release.

(2) whether the defendants in the above proceedings (or any of them) owed to the plaintiff a duty of care at common law in the monitoring supervision or assessment of the behaviour of persons released from prison on temporary release

(3) whether the defendants in the above proceedings (or any of them) owed to the plaintiff any statutory duties in connection with the temporary release of prisoners."


The foregoing orders had been sought by the Respondents by notice of motion dated the 4th of February 1998. In her statement of claim delivered the 15th August 1996 the Plaintiff pleads at paragraphs 2, 3 and 4 as follows:


2 "2 The defendants or one or more of them their respective servants or agents were at all material times hereto the operators and occupiers of and were responsible for the management of Mountjoy Prison North Circular Road Dublin 7. At all material times herein the defendants or one or more of them their respective servants and agents were responsible for the temporary release of prisoners from Mountjoyprison.


3 On or about the 31st day of January 1995 the plaintiff was lawfully walking along the public footpath at or in the vicinity of Norseman Place, Manor Street, in the City of Dublin when the plaintiff was attacked and assaulted by a person or personson temporary release from Mountjoy prison in the course of a robbery or handbag snatching incident in consequence whereof the plaintiff was dragged along the ground and thereby sustained and suffered severe personal injuries loss and damage.


4 The said incident and the said personal injuries loss and damage occasioned to the plaintiff were caused by reason of the negligence breach of duty and breach of statutory duty and nuisance on the part of the defendants or one or more of them their respective servants and agents."


The Plaintiff suffered a very serious head injury causing a right-sided extra dural haemorrhage as a result of which the Plaintiff was in danger of death for some time and was detained in hospital for two or threeweeks.


The Respondents delivered their defence on the 17th September 1997 in which they fully traversed the various allegations of the Plaintiff and then at paragraph 23 they pleaded:

"Without prejudice to the foregoing, the defendants in releasing persons on temporary release, do not owe any duty of care to the plaintiff."


In an affidavit sworn on the 3rd February 1998 by Mr Michael Buckley the Chief State Solicitor to ground the application for the trial of a preliminary issue the deponent says at paragraphs 5, 6, 7 and 8 asfollows:


2 "5 The defendants delivered a defence to these proceedings on the 17th September 1997 and notices for particulars were raised on the 26th February 1997 and replied to on the 20th July 1997. I beg to refer to same when produced.


6 In that defence it is specifically alleged that the defendants in releasing persons on temporary release do not owe any duty of care to the public at large or the plaintiff and it is denied that any breach of statutory duties occurred. I am advised by counsel and believe that there are good grounds for believing that no such duties exist.


7 If the defendants are correct in this regard, this would determine the proceedings. I do not believe that there are facts in dispute between the parties such as would affect the determination of these matters as preliminary issues of law.


8 I say and believe that the determination of that issue in these proceedings would greatly reduce...

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