P McD v The Governor of the X Prison

JudgeMr Justice Peter Charleton,Ms. Justice Dunne,Mr. Justice John MacMenamin,Mr. Justice O'Donnell
Judgment Date17 September 2021
Neutral Citation[2021] IESC 65
CourtSupreme Court
Docket Number[2020] IESC 000 [2020] IEHC 178 Supreme Court appeal number: S:AP:IE:2020:000094 Court of Appeal Record Number: 2019/ 120 PP High Court record number 2017/146 JR
The Governor of the X Prison

[2021] IESC 65

Clarke CJ

O'Donnell J

MacMenamin J

Dunne J

Charleton J

[2020] IESC 000

[2019] IECA 00

[2020] IEHC 178

Supreme Court appeal number: S:AP:IE:2020:000094

Court of Appeal Record Number: 2019/ 120 PP

High Court record number 2017/146 JR

An Chúirt Uachtarach

The Supreme Court

Crime & sentencing – Prisons – Hunger strike – Changed aspects of imprisonment – Claim for negligence

Facts: The appellant had been convicted of serious offences and sentenced to 12 year’s imprisonment in 2011. Whilst in solitary confinement by his own request, he began a hunger strike in protests at changes to the conditions of his imprisonment. Proceedings were issued by the Prison Governor seeking clarification from the High Court as to his legal and constitutional duties. During those proceedings, the appellant elected to come off his hunger strike and issued fresh proceedings alleging negligence on the part of the Governor and a failure to deal with complaints in accordance with the relevant policy. The High Court had found for the appellant on two grounds, but the Court of Appeal had allowed the Governor’s appeal. The matter now came before the Supreme Court.

Held, that the appeal would be dismissed. The Court was tasked with determining two issues, firstly whether the Court of Appeal was correct in overturning the finding of liability and secondly whether a declaration of a breach of the complaints policy was appropriate. Whilst the Justices agreed that the appeal should be dismissed, O’Donnell J, Dunne J and Charleton J stated that the grant of a declaration was inappropriate. MacMenamin J would have granted a limited form of declaration.

O’Donnell J, MacMenamin J, Dunne J and Charleton J all handed down judgments in the matter.

Appeal dismissed.

Judgment of Mr Justice Peter Charleton delivered on Friday 17 September 2021


Prior to Donoghue v Stevenson [1932] AC 562 and the evolution of the separate tort of negligence, the various wrongs sounding in civil damages were separate and distinct, as well as having precise definitions. While capable of being perpetrated with other torts, these wrongs were contained within describable and often mutually-exclusive boundaries. The rule in Rylands v Fletcher (1868) LR 3 HL 330 depended upon the definite action of bringing onto, or keeping on land, a dangerous or noxious substance or thing for which the landowner would be liable should damage be caused through its escape. Nuisance depended upon provable economic loss due to disturbance or such disturbance as would be unacceptable to a person of reasonable fortitude within the neighbourhood of the type, quiet residential or heavy industrial, where it occurred, now capable of being changed with democratic consultation through planning re-zoning; see Lannigan v Barry [2008] IEHC 29, reversed on different grounds at [2016] IESC 46. Trespass strictly prohibited unlawful personal touching or entry on land but was subject to a defence of ordinary social interaction, statutory intervention for countryside walkers, and the rule that the law provides no remedies to trifles. Conversion and detinue were as precisely defined as by statutory prescription; generally see Heuston, Salmond on the Law of Torts (17th edition, 1977).


Since its inception as a separate tort, derived from trespass, negligence has been defined, redefined, applied, held back and limited through judicial decisions. As early as 1883, the statement of Brett MR in Heaven v Pender 11 QBD 503, 507 came to generate the overarching principle that “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, without contributory negligence on his part, has suffered injury to his person or property.” This reflects the amorphous character of this tort: it has a tendency to burst through the boundaries of the situations as to which it is already applied and into new areas; it has applied a duty of care to downstream occupants in the control of dams for generating electricity exemplified in UCC v ESB [2020] IESC 66; and in giving advice resulting in a wrong where the plaintiff and the defendant advising that plaintiff are in a special relationship, exemplified by the arrest of a plaintiff in a dependant relationship of technical advice in Bates v Minister for Agriculture, Fisheries and Food [2018] IESC 5. Negligence is a separate wrong sounding in damages that is not to be used to swamp the elements of other clearly defined civil wrongs, exemplified in the denial of a remedy in negligence where the correct tort is the closely defined and circumscribed wrong of misfeasance in public office in Cromane Seafoods v Minister for Agriculture, Fisheries and Food [2016] IESC 6. Even contract cases are often pleaded as a parallel in negligence, but many carefully drafted written agreements “preclude a special relationship that otherwise might be argued to give rise to a duty of care”; Mero-Schmidlin (UK) Plc v Michael McNamara and Company [2011] IEHC 490.


In colloquial speech, negligence means failing to do, or carelessly doing, some action and usually with a harmful result to another. The fundamental principle in law differs little. Accidents, or events causing harm to a plaintiff, are not the responsibility of another person unless a plaintiff is in a position to prove that but for the negligent action or inaction of that other, the accident would have been avoided. Legally, negligence is defined as “conduct falling below the standard demanded for the protection of others against unreasonable risk of harm” where harm has been caused to a plaintiff in circumstances where the law imposes a duty to take care, and does not remove that duty by reason of it being unjust and unreasonable to bind the conduct of the parties through that duty in the circumstances; C Sappideen and P Vines (Eds), Fleming's The Law of Torts, (10th edn, Sydney, 2011) 7.10. Fundamentally, this is based on what is reasonable: when there should or should not be a duty is essentially a decision of policy, but one informed by common sense. What level of care should be taken is based on community standards and policy again seems to intervene as to whether a necessary causative line exists as between the alleged wrong and the damage claimed. This requires examining what can be considered an unreasonable risk of harm, what the relevant standard in guarding against that risk is and where that standard is demanded. There is a duty not to injure one's neighbour. As set out in Donoghue v Stevenson at 580, a neighbour may be described, negligence being hard to circumscribe by definitions, as those “persons who are so closely and directly affected by” the actions in question that the defendant “ought reasonably to have them in contemplation as being so affected when” the defendant was directing his mind “to the acts or omissions which are called in question.” There can be no proper legal analysis without a primary consideration of whether a duty of care is owed by a particular defendant towards the plaintiff who takes an action based on that defendant's alleged lack of care; Glencar Explorations Limited v Mayo County Council (No 2) [2002] 1 IR 84 at 154–155 in the judgment of Fennelly J. Without a legally imposed duty of care, the actions of a defendant which cause harm to a plaintiff are not actionable. Until the existence of a duty of care is established, an examination of the relevant and reasonable care standard is impossible. Where defined, the duty that the defendant is required to meet is based on reasonable care in the circumstances, whether professional or otherwise, and a failure in which establishes liability towards the plaintiff. No duty of care exists in the abstract. It is particular to the circumstances proven by a plaintiff; it is particular to the type of harm suffered by the plaintiff. Thus, whether by action or inaction, once a duty of care is established as applicable, those alleged to have acted below accepted standards will be liable where the legal requirement to have others in mind results in a wrong to the plaintiff.


No generalisation can be adumbrated which “can solve the problem upon what basis the courts will hold that a duty of care exists.” While there is agreement that “a duty must arise out of some ‘relation’, some ‘proximity’, between the parties” there remains the problem that “what that relation is no one has ever succeeded in capturing in any precise formula”; Fleming's The Law of Torts, 8.20. The original concept in Donoghue v Stevenson required more close description. Hence in Anns v Merton London Borough Council [1978] AC 728 at 751–752, it was set out that to establish a duty of care, firstly, proximity in the relationship between the plaintiff and the defendant had to be established, so that carelessness on the part of the latter would be reasonably foreseeable to cause damage to the former, and, secondly, to ask “whether there are any considerations which ought to negative, or to reduce or limit the scope of the duty or the class of person to whom” that duty was owed. This was followed in Ward v McMaster [1988] IR 337, 349 with the analysis centring on the duty of care as arising from the proximity of the parties, the foreseeability of damage and the absence of any compelling exemption based on public policy. Since then, a series of decisions have cast doubt on the Anns test; see Yuen Kun Yeu v Att-Gen of Hong Kong [1988] AC 175 PC at 190–192. In turn, Glencar, followed Caparo Industries Plc v Dickman [1990] 2 AC 605 at 618, requiring the situation in which the duty of care should be imposed as being “one in which the court considers it fair, just and reasonable that...

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2 cases
  • S.Y. (A Minor Suing by his Next Friend Aoife Dare) v The Minister for Children and Others
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    • 21 April 2023
    ...a number of authorities on the granting of declarations. In particular the decision of the Supreme Court in PMcD v Governor of X Prison [2021] IESC 65. The background to these proceedings were that the appellant had been sentenced to twelve years imprisonment for serious offences. While ser......
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    ...of the High Court that the defendant/respondent Governor had been negligent, and awarding damages to the plaintiff/appellant/deceased ([2021] IESC 65). The decision of the Supreme Court was unanimous, albeit that members of the Court differed as to the precise reasoning leading to that conc......

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