Recent developments in the law of torts

AuthorWilliam Binchy
PositionB.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
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.
8 [4:1Judicial Studies Institute Journal
*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.
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
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
10 [4:1Judicial Studies Institute Journal
7[1988] I.R. 337 (S.C.).
8Supreme Court, unreported, 21 February 2003.

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