Recent developments in the law of torts

• Author: William Binchy
• Position: B.A., B.C.L., LL.M. (N.U.I.)., M.A. (Dublin), F.T.C.D., Professor of Law, School of Law, Trinity College Dublin
• Pages: 8-78

RECENT DEVELOPMENTS IN THE LAW OF TORTS

WILLIAM BINCHY*

I. INTRODUCTION

Tort law is now in a state of crisis. A strong spirit of hostility to

the old ‘compensation culture’ is abroad. Politicians are now in the

process of introducing radical changes, designed to reduce insurance

premiums by reducing the entitlements of injured plaintiffs. The

Personal Injuries Assessment Board is not the last word. It seems that

arange of strategies is in contemplation, including shortening the

limitation period for personal injury litigation and greater

proactivity in relation to perjury and exaggerated claims.

If these proposals had been seriously mooted a decade ago, one

might have envisaged a serious confrontation between the

Oireachtas and the courts. Today, I am not so sure. The Supreme

Court today is willing to defer significantly to executive and

legislative choices in relation to socio-economic policy. It is far from

clear that the Court would strike down legislation restricting the

rights of victims of torts, on the basis that the legislation violates the

constitutional right of access to the courts, the right to litigate or the

principle of equality.

Iwill be laying particular emphasis on the Supreme Court’s recent

pronouncements on tort litigation. In short, they involve a narrower

restatement of the duty of care in negligence, far more overt

reference to policy and pragmatic considerations than formerly and

awillingness to penalise plaintiffs heavily by a significant reduction

of damages for relatively trivial contributory negligence. I cannot yet

discernasimilar change of course in the High Courtor Circuit

Court. One suspects that it may develop shortly.

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*B.A., B.C.L., LL.M. (N.U.I.)., M.A. (Dublin), F.T.C.D., Professor of Law, School of Law,

Trinity College Dublin.

II. THE DUTY OF CARE

A. The Impact of the Glencar Decision

You will recall that in Glencar Exploration p.l.c. v. Mayo County1

Council the Supreme Court repudiated McCarthy J.’s test in Ward

v. McMaster2for determining the duty of care, holding, quite

surprisingly that this test, which had been applied in several Supreme

Court and High Court decisions, had been merely an obiter dictum.

McCarthy J. had adopted Lord Wilberforce’s ‘two-step’ test in Anns

v. Merton London Borough Council3whereby the court asks:

First ... whether, as between the alleged wrongdoer and

the person who has suffered damage there is a sufficient

relationship of proximity or 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 carearises.

Secondly, if the first question is answered affirmatively,

it is necessary to consider whether there are any

considerations which ought to negative, or reduce, or

limit the scope of the duty or the class of person to

whom it is owed or the damages to which a breach of it

may give rise ....4

McCarthy J. had compressed this formula into a duty:

…arising from the proximity of the parties, the

foreseeability of the damage, and the absence of any

compelling exception based upon public policy.5

Whilst not wishing to exclude the latter consideration, McCarthy

J. considered that it would “have 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”.6McCarthy J.

2004] Recent Developments in the Law of Torts 9

1[2002] 1 I.L.R.M. 481 (S.C.).

2[1988] I.R. 337 (S.C.).

3[1978] A.C. 728 (H.L.).

4[1978] A.C. 728 at 751-752 (H.L.).

5[1988] I.R. 337 at 349 (S.C.).

6[1988] I.R. 337 at 349 (S.C.).

expressed hostility to the ‘incrementalist’ approach, originating in

the High Court of Australia, which had found favour with the House

of Lords. Such an approach eshews broad principle and proceeds by

small steps, seeking to find close analogies between cases.

In Glencar,in contrast to Ward v. McMaster,7the Supreme Court

preferred the incrementalist approach. Keane C.J. did not strike

down McCarthy J.’s modification of the ‘two-step’ test in Anns but

instead added a third step, requiring the Court, before imposing a

duty of care in negligence, to be satisfied that it would be “just and

reasonable” to do so. Glencar is of crucial significance for a number

of reasons. First, and most obviously, it restricts the scope of the duty

of care by requiring plaintiffs to overcome three rather than two

hurdles. Secondly, its preference for incrementalism and its

scepticism about grand theory makes it harder to establish a duty of

care in previously unlitigated fact-situations and calls into question

certain widely held assumptions as to the scope of the duty in such

areas as pure economic loss, affirmative duties and the functions of

public authorities.

B. Psychiatric Injury, Irrational Fears and Policy Barriers

In Fletcher v. Commissioners of Public Works in Ireland8the

plaintiff, who worked as a general operative in Leinster House, was,

through the carelessness of his employer, exposed to significant

quantities of asbestos dust in the course of his employment.

Breathing in this dust opened up the risk in later life of contracting

avery painful and potentially lethal disease called mesothelioma.

The risk was very low but the plaintiff, on becoming aware of it,

developed a psychiatric injury.O’Neill J. imposed liability but the

Supreme Court reversed.

The short reason for overturning O’Neill J.’s verdict was that the

Supreme Court considered it inadvisable on policy grounds, for

negligence liability to extend to a psychiatric injury resulting from an

objectively irrational, even if reasonably foreseeable, fear. There are

certainly respectable policy arguments for drawing the line where the

Supreme Court did and several decisions in the United States of

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7[1988] I.R. 337 (S.C.).

8Supreme Court, unreported, 21 February 2003.