Some Comments about 'Caution': Emerging Trends in Irish Negligence Law

Author:Ray and Des Ryan
Position:Senior Sophister Law, Trinity College, Dublin/Senior Sophister Law, Trinity College, Dublin
Pages:114-135
SOME
COMMENTS
ABOUT "CAUTION":
EMERGING
TRENDS
IN
IRISH
NEGLIGENCE
LAW
RAY
RYAN*
AND
DES
RYAN**
Traditionally,
courts
do
not
always
use
the
actual
word
"policy
".
They
may
attempt
to
draw
artificial
limits
to
what
can
be
regarded
as
being
reasonably
foreseeable
or
they
may,
in
considering
proximity
or
other
questions
in
relation
to the
existence
of
a
duty
of
care
invoke
the
concept
of
reasonableness
so
that
a
duty
of
care
will
not
in
fact
be
imposed
if
the
court considers
it
unreasonable
to
do
so.
The
third
control
mechanism
which
the
court
may
impose
(is
to)
...
expressly
deny
a
claim
on
grounds
ofpublic
policy.'
The
judicial
retreat
from
Lord
Wilberforce's
two-stage
approach
to
the
duty
of
care
in
negligence
has
perhaps
been
the
single
most
striking
feature
in
the
development
of
the
law
of
torts
in
the
common
law
world
in
the
last
25
years.
It
will
by
now
be
well
known
that, with
its
decision
in
2001
in
Glencar
Exploration
Plc
and
Andaman
Resources
Plc
v.
Mayo
County
Council,
2
the
Supreme
Court
3
has
scotched
the
Anns
4
test
from
Irish
law.
Taking
"a
giant
step
in
the
reverse direction" 5
from
its
earlier
approach,
the
Supreme
Court
expressly
endorsed
the
development
in
England,
rejecting
Anns,
of
the
three-stage
test
for
the existence
of
the
duty
of
care,
as
explained
in
the
leading
case
in
that
jurisdiction,
Caparo
Industries
Plc
v.
Dickman.
6
More precisely,
the
Court
in
Glencar
decisively
rejected,
by
way
of obiter
comments, the
proposition
that
Mr.
Justice
McCarthy's
celebrated
judgment
in
Ward
v.
McMaster
7 was
a
correct statement
on
the
:.Senior
Sophister
Law,
Trinity
College, Dublin.
I Senior Sophister
Law,
Trinity
College, Dublin.
Fletcher
v.
Commissioner
of
Public
Works [2003]
1
IR
465,
at
518; [2003]
2
ILRM
94,
at
144
per
Geoghegan
J.
2
[2002]
1
IR
84;
[2002]
1
ILRM
481
(Hereinafter
Glencar).
Keane
C.J.,
Denham,
Murray,
McGuinness
and
Fennelly
JJ.
4
Anns
v.
Merton
London
Borough
Council
[1978]
AC
728
(Hereinafter
Anns).
5
Byrne
and
Binchy,
Annual
Review
of
Irish Law
2001(Thomson,
Round
Hall,
2002),
at
554.
6
[1990]
2
AC
605.
7
[1988]
IR
337, [1989]
ILRM
400
(Hereinafter
Ward).
©
2004
Ray
Ryan, Des Ryan
and
Dublin University
Law
Society
Some
Comments
About
"Caution"
test
for
inquiring
into
the
existence
of
the
duty
of
care.
Since
the
Ward
case
had
dominated
the
landscape
of
negligence
law
in
Ireland,
it
seems timely
to
speculate
as
to
the
shift
in
attitude
to
liability
issues
that
its
rejection
may
herald.
Sufficient
response
to
Glencar
has
now
been
articulated
in
a
series
of
cases
at
Superior
Court
level,
to
merit
an
analysis
of
the
effects
of
the
Glencar
formulation
on
Irish
negligence
law.
Whilst
it
was
previously
uncertain
as
to
whether
the
application
of
the
decision
would
result
in any
great
change
in
our negligence
jurisprudence,
it
is
now possible,
in
our
respectful
submission,
to
detect
at
Superior
Court
level
a
certain
hostility
to
recovery
in
negligence. Indeed,
in
several
decisions
-
many
of
them
handed down over
the
course
of
the
last
year
alone
-
the
courts
have
made
it
clear that
Glencar
has
ushered
in
a
whole
new climate
in
which
negligence
claims
are
to be
assessed.
8
We
suggest
that
the
Glencar
volte
face
is
worthy
of
close
consideration
in
this regard.
Concurring with
the
view that
in
Ward
"the
Irish
Supreme
Court
...
expressly rejected
the
incremental approach, expressing
a
preference
for
a
more general
approach
and
the
maintenance
of
flexibility,"9
we
would respectfully record
a small
voice
of
doubt
about
the
sagacity
of
the
decision
to
abandon
McCarthy
J.'s
formulation
in
Ward
and
replace
this
with
the
incrementalist
approach
adopted
by
the
English
courts.
But
our
analysis
of
the
Glencar
case
will
be
confined
to
an
assessment
of
what
can
be
gleaned from
this
new
departure
about
the
likely path
that
the
tort
of
negligence
will
tread
in
Irish
law.
Ruminating
on
the
practical
significance
of
the
Glencar
decision
for
the
tort
of
negligence
we
will focus
on
two
discrete
areas
of
tort
law
-
recovery
for
economic
loss, and
recovery for
psychiatric injury.
It
will
be
submitted
that
both
areas
of
Irish
negligence
law
are
likely
to be
profoundly
impacted
by
the
Glencar
reassessment
of
the
duty
of
care
issue.
We
select these
two
8
That the
Glencar
sentiments are
likely
to
dominate Irish tort law
seems
clear
from
subsequent developments
in
the
Courts.
Witness
inter
alia,
Kennedy
v.
Law
Society
of
Ireland,
Unreported, Supreme
Court,
20
December
2001;
Fletcher
v.
Commissioner
for
Public
Works
[2003]
1
IR
465;
[2003]
2
ILRM
94;
Breslin
v.
Corcoran
and
the
Motor Insurance Bureau
of
Ireland
[2003]
2
ILRM
189;
McGrath
v.
Minister
for
Justice
[2003]
1
IR
622.
There
are
already several
significant
High
Court
decisions
in
which
the
impact
of
Glencar
has
been
clearly
felt.
In
Leahy
v.
Rawson,
Unreported,
High
Court,
14
January
2003,
for
example,
O'Sullivan
J.,
in
the
course
of
his
analysis
of
Glencar,
referred
to
the
"more
cautious
approach"
to
negligence
actions now
in
vogue
in
this
jurisdiction.
More
recently, speaking
of
Glencar
in
Kennedy
v.
The
Law
Society,
Unreported, High
Court,
30
July
2003, Kearns
J.,
at
22
of
his
judgment
stated
that
recourse
to
the third
or
"policy"
stage
of
the
Caparo
test
as
adopted in
Glencar
was
"a
consideration
of
major
importance where
public
authorities are
exercising
statutory
powers and
need
the
freedom
to
do
so
without
the constant threat
of
litigation".
See
also
Beatty
and
Beatty
v.
Rent
Tribunal,
Unreported, High
Court,
16
May
2003;
O'Donovan
J.;
Wildgust
v.
Bank
of
Ireland
&
Norwich
Union
PLC,
Unreported,
High
Court,17
August
2001,
Morris
P.
9
Quill,
Torts
in
Ireland
(Gill
&
MacMillan,
1999),
at
23.
20041

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