Glencar Exploration p.l.c. v Mayo County Council | Analysis

The principle of the duty of care in negligence, as established by Lord Atkins in the case of Donoghue V Stevenson[1], was expanded greatly over the twentieth century. This expansion saw a move away from the incremental approach traditionally preferred in negligence cases, to the establishment of broader principles of the duty of care. However, the case of Glencar Exploration p.l.c. v Mayo County Council[2] had a significant impact on the development of the duty of care. This essay aims to show that although the decision of Glencar succeeded in limiting the expansion of the duty of care, it did not halt it completely. This will be done in three parts. First, the development of the principles established by Lord Atkins up until Glencar will be examined in order to understand how the duty of care expanded. Following this the case of Glencar Exploration p.l.c v Mayo County Council itself will be explored to gain insight into what the decision meant and how it affected the expansion of the duty of care. Finally, the impact of human rights law on the expansion post-Glencar will be analysed in order to demonstrate how the duty of care continues to change today.

The duty of care in negligence established by Lord Atkins in the famous case of Donoghue V Stevenson is one that has had a great impact on tort law. In this case Donoghue suffered from shock and illness due to the presence of a decomposing snail in her ginger ale, which had gone unnoticed due to the opaque glass of the bottle.[3] It was held by the court that the manufacturer owed a duty to the end consumer in cases where any defects would not be obvious to the consumer[4].This decision introduced the idea that the categories of negligence in which a duty of care was owed were not closed.[5] It was here that the ‘neighbour principle’ was established, putting forward that proximity did not just apply to those that were physically close to you. A neighbour was defined as someone “so closely and directly affected by my act that I ought reasonably to have (him) in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question”[6]. Lord Atkins opened the duty of care to expansion by suggesting that the categories in which a duty of care could traditionally be thought to exist were just “instances” rather than an exhaustive list of the situations where a duty of care applies.[7]

The principles expressed by Lord Atkin received the support of the judiciary and were subsequently endorsed in Hedley Byrne V Heller.[8] The duty of care was expanded to allow recovery for negligent misstatements on a lower standard than before.[9] This was a significant case as it extended the neighbour principle expressed by Lord Atkins to cover not only goods, but services as well. Following this was Dorset Yacht Co. Ltd V Home Office [10]. Here it was put forward that the neighbour principle should be applied “unless there is some justification or valid explanation for its’ exclusion”[11]. This was important as it emphasised the support of the judiciary for the principles established by Lord Atkins at this time. Furthermore, the nature of this case itself contributed to the expansion of the duty of care in negligence. Despite the fact that traditionally there was no duty of care to supervise third parties, this case imposed such a duty through the principles of reasonable foreseeability and proximity.[12]

Following these cases, the duty of care continued to expand to cover pure economic loss in the case of Anns V Merton London Borough Council[13]. Lord Wilberforce restated the duty of care, establishing a two-step test to decide if a duty could be held to exist. The first step involved asking whether “there is 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 care arises”[14]. The second step involved considering if there was anything that ‘ought to negative or to reduce or limit the scope of, the duty”[15]. This was an important advancement in the development of the duty of care in negligence, because this test prioritised reasonable foreseeability and proximity over the policy concerns that had previously dominated this area of tort law.

Lord Wilberforce’s two-step test initially received widespread support in the both the English and Irish judiciary. This test was endorsed by the Irish courts through the influential decision of Ward V McMaster[16]. Here McCarthy J promoted the principles of proximity and foreseeability of damage over policy concerns, putting forward that any policy concerns that would effect recovery must be one which is very powerful “ if it is to be used to deny an injured party his right to redress at the expense of the person or body that injured him.”[17]

McCarthy J proposed that the general principles established in the two-step test of Anns should be favoured over previous approaches to establish a duty of care, as it overcame the problem of rights and recovery being determined “by an accident of birth”[18]. Through his statements, McCarthy J endorsed the principles that had been established first by Lord Atkins, and expanded by Lord Wilberforce. The approach taken by McCarthy J was embraced by the Irish judiciary, and remained popular until the case of Glencar Exploration p.l.c V Mayo County Council[19]

Although the two-step test was at first popular, over time opinions began to change and this test became increasingly criticised. There were several reasons for the growing discontent, including the belief that this test had been too widely expressed to begin with.[20] To add to this, there was also a general feeling that the decision in the case of Junior Books[21] had brought the expansion of the duty of care too far. The Judicial Committee in Yuen Kun-yeu v AG of Hong Kong[22] was of the view that the two-step test had “been elevated to a degree of importance greater than its’ merits, and greater perhaps that is author intended”[23]. Although this was damaging to the support of Lord Wilberforce’s test, the true end of the two-step test came in the form of two cases: Caparo Industries plc V Dickman[24] and Murphy V Brentwood District Council.[25] These two cases signified an end to the broad expansion of the duty of care in negligence, and a return to the incremental approach previously favoured by the courts. Both Caparo and Murphy can be said to have had a significant impact on Irish law, as it was the disenchantment with the two-step test [26]expressed through the decision in these cases that triggered the change in Irish law with the case of Glencar Exploration p.l.c V Mayo County Council.

It may be said that the decision held by the Supreme Court in the case of Glencar Exploration p.l.c v Mayo County Council had a significant impact on limiting the expansion of the duty of care in negligence under Irish law. This was a case involving two companies that had received mining licenses to mine for gold in Co. Mayo. The county council had adopted a mining ban in their development plan that was later found to be ultra vires by the High Court.[27] Thus it was put forward by the applicants that by adopting such a ban, the county council had been negligent in their duties, and were therefore liable for the economic loss of the companies, amounting to £1,938, 264.[28] However it was held by the Supreme Court that the county council had owed no duty of care to the applicants and thus they were not liable for any economic losses that had been sustained.

The most important aspect of this case was that it replaced the two-step test that had been established by Lord Wilberforce that had, until this point, remained popular in Irish law. Keane CJ proposed that “that no injustice would be done if, in such circumstances, a court was required to take the further step of considering whether, in all the circumstances, it was just and reasonable that the law should impose a duty of care on the defendant for the benefit of the plaintiff.”[29] The result of this was a new test was created to establish whether or not a duty of care in negligence cases existed. The steps of Keane CJ’s test were as follows: ‘reasonable foreseeability, proximity of relationship, countervailing public policy considerations and the justice and reasonableness of imposing a duty of care’[30].

This new approach can be seen to focus on the distinction between morality and the law of negligence, as well as prioritising questions of policy over proximity.[31] Policy was considered to be an especially important concern in cases which involved public bodies. This was due to the perceived need to protect public bodies and ensure that they were able to not only dedicate their full time and resources to their original function, but also to ensure they would be able to continue to do their job without hesitation and fear of a negligence suit.[32]The effect of a policy centred approach such as this is that in many cases, especially those of pure economic loss, the courts can be seen to adopt a more conservative stance in awarding damages in situations of negligence. [33]

Such consequences can thus be seen in subsequent case law, such as that of Fletcher V. Commissioner of Public Works.[34] Here the Supreme Court chose to limit the scope of recovery for psychiatric injury by focusing on policy issues. Geoghegan J identified a key issue of policy in regards to distributive justice[35], putting forward the need for ‘pragmatic control mechanisms’[36] when deciding the scope for liability in cases such as this. Another key policy area that was discussed by Geoghegan J as reason for denying recovery was the concern that by imposing liability in this case, there would be an increase in the number of fraudulent claims brought before the court.[37] This is a common argument in terms of the duty of care in negligence, as the fear of opening up the ‘floodgates’ for cases against public bodies has often been cited as one of the main policy concerns for denying recovery.[38]

The decision of Glencar although limiting the expansion of the duty of care, did not stop the expansion completely. Due to the influence of the European Convention on Human Rights [ECHR] on domestic law, the duty of care in negligence has continued to change, although expansion in this area has been slow . The impact of human rights law is becoming increasingly important in areas where traditionally the courts have held there to be immunity. Osman v United Kingdom[39] is an important case in this area, as it was concerned with granting the police immunity from negligence cases for policy reasons. Originally this case had been dismissed by the High Court on the basis of an earlier case Hill V CC West Yorkshire Police[40]. However, this decision was appealed. The Strasbourg court held that if the authorities failed to take necessary measures within their powers, despite being aware of a serious risk of injury or death, then a breach of article 2 of the convention could be established[41] [However, in the case of Osman, no such breach was considered to have existed].[42] Furthermore, it was held that a breach of article 6 of the convention occurred when denial of an action amounted to widespread immunity for a public authority such as the police. This was quite a controversial decision as it went against policy arguments that had previously been approved of for granting police immunity.

Although a slight retreat from this stance could be seen in the later case of Z v United Kingdom[43], the test for establishing liability in Osman [knowledge of a real and immediate risk to life] remains useful for the courts in establishing a duty of care and thus liability.[44] The categories under which a duty of care may be established are not fixed, and it has been put forward that judges may be more likely to support the expansion of the duty of care when a human right is at risk. [45]. Furthermore, the principle of ‘Hill immunity’ is one that continues to be challenged today, thus demonstrating the influence that human rights law has had on the ability to establish a duty of care in negligence/

The recent case LM v The Commissioner of An Garda Síochána[46], shows that human rights law continues to shape the duty of care in negligence in Irish law. It was alleged in this case that because of Garda negligence LM had suffered from PTSD, as her father who had been convicted of her rape was successful on appeal due to ‘blameworthy prosecutorial delay’.[47] It was argued by the respondent that the action should be struck out on the basis of the earlier Hill case[48] which, as stated above, gave the police immunity from negligence. However, in this instance it was held by O’Donell J that “it was important that these cases were properly and fairly determined, which meant that the plaintiffs should be allowed to bring their case to trial.[49] This is an important case in Irish law as it demonstrates the impact that human rights law has on traditional principles, and how the ECHR emphasises the idea that such cases should be heard.

In conclusion, the case of Glencar Exploration p.l.c V Mayo County Council significantly impact the development of the principle of the duty of care in negligence, established by Lord Atkins. The main effect of this decision was that it slowed down the development of [though did not stop] new categories in which a duty of care could be established. Human rights law [such as the ECHR] has an important role to play in future developments in the duty of care in negligence cases. However, as human rights law is still evolving, it will take time to see the full impact that it may have in this area.

Bibliography

Anns V Merton London Borough Council [1978] AC 728

Arden, “Human rights and civil wrongs: tort law under the spotlight“ (2010), Vol 1 Public Law at 140

Bryan McMahon and William Binchy, The Law of Torts, 4th edn. (West Sussex: Bloomsbury Professional 2013)

Caparo Industries plc V Dickman. [1990] 2 AC 605

CHIEF CONSTABLE OF HERTFORDSHIRE POLICE V VAN COLLE [2007] 3 All ER 122

Donoghue V Stevenson [1931] AC 562

Dorset Yacht Co. Ltd V Home Office [1970] AC 1004

Fletcher V. Commissioner of Public Works [2003] 1 IR 465

Glencar Exploration p.l.c  v Mayo County Council [2002] 1 IR 84

Hedley Byrne V Heller [1964] AC 465

Heuston, ‘Donoghue V Stevenson In Retrospect’, (1957) Vol 20(1) The Modern Law Review 7

Hill V CC OF WEST YORKSHIRE POLICE [1988] 2 WLR 1049

Junior Books Ltd. V Veithchi Co. Ltd. [1983] 1 AC 520        

Morgan, ‘Policy Reasoning in Tort Law: the courts, the Law Commission and the critic’, (2009) Vol 125 Law quarterly review 215 at 217

Mullender, ‘Negligence, human rights and public bodies’, (2009) Vol 125 Law quarterly review 384

Murphy V Brentwood District Council [1991] 1 AC 398

LM v Gard Siochana [2015] IESC 81

McIvor, ‘GETTING DEFENSIVE ABOUT POLICE NEGLIGENCE: THE HILL PRINCIPLE, THE HUMAN RIGHTS ACT 1998 AND THE HOUSE OF LORDS’, (2010) Vol 69(1) The Cambridge Law Joural 133 at 135

Osman V United Kingdom (2000) 29 E.H.R.R. 245

Victorian Railways Commissioners v. Coultas  (1888)13 App. Cas. 222;

Ward V McMaster [1988] IR 337

Yuen Kun-yeu v AG of Hong Kong [1987] 2 All ER 705

Z V United Kingdom (2002) 34 EHRR 3

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[1] [1931] AC 562

[2] [2002] 1 IR 84

[3] Donoghue V Stevenson [1932] AC 562

[4] Ibid at 564

[5] Heuston, ‘Donoghue V Stevenson In Retrospect’, (1957) Vol 20(1) The Modern Law Review 7 at 7

[6] Donoghue V Stevenson [1932] AC 562 at 580

[7] Ibid at 580

[8] [1964] AC 465

[9] Ibid

[10] [1970] AC 1004

[11] Dorset Yacht Co. Ltd V Home Office [1970] AC 1004 at 1027

[12] Ibid at 1025

[13] [1978] AC 728

[14] Ibid at 752

[15] Ibid at 752

[16] [1988] IR 337

[17] Ibid at 349

[18] Ibid at 347

[19] [2002] 1 IR 84

[20] Bryan McMahon and William Binchy, The Law of Torts, 4th edn. (West Sussex: Bloomsbury Professional 2013)

[21] Junior Books Ltd. V Veithchi Co. Ltd. [1983] 1 AC 520

[22] [1987] 2 All ER 705

[23] Ibid at 710

[24] [1990] 2 AC 605

[25] [1991] 1 AC 398

[26] Bryan McMahon and William Binchy, The Law of Torts, 4th edn. (West Sussex: Bloomsbury Professional 2013)

[27] Glencar Exploration p.l.c  v Mayo County Council [2002] 1 IR 84

[28] Ibid AT 84

[29] Ibid at 85

[30] Bryan McMahon and William Binchy, The Law of Torts, 4th edn. (West Sussex: Bloomsbury Professional 2013) at 191

[31] Bryan McMahon and William Binchy, The Law of Torts, 4th edn. (West Sussex: Bloomsbury Professional 2013) at 191

[32] McIvor, ‘GETTING DEFENSIVE ABOUT POLICE NEGLIGENCE: THE HILL PRINCIPLE, THE HUMAN RIGHTS ACT 1998 AND THE HOUSE OF LORDS’, (2010) Vol 69(1) The Cambridge Law Journal 133 at 135

[33] Morgan, ‘Policy Reasoning in Tort Law: the courts, the Law Commission and the critic’, (2009) Vol 125 Law quarterly review 215 at 217

[34] [2003] 1 IR 465

[35] Ibid at 511

[36] Ibid at 511

[37] Ibid at 515

[38] See cases Victorian Railways Commissioners v. Coultas  (1888)13 App. Cas. 222; Hill V CC OF WEST YORKSHIRE POLICE [1988] 2 WLR 1049; Caparo Industries p.lc V Dickman [1990] 2 AC 605

[39] Osman V United Kingdom (2000) 29 E.H.R.R. 245

[40] [1988] 2 WLR 1049

[41] Mary Arden, Human rights and civil wrongs: tort law under the spotlight  (2010), Vol 1 Public Law at 140

[42] Osman V United Kingdom (2000) 29 E.H.R.R. 245

[43] (2002) 34 EHRR 3

[44] As seen in CHIEF CONSTABLE OF HERTFORDSHIRE POLICE V VAN COLLE [2007] 3 All ER 122

[45] Negligence, human rights, and public bodies

[46] [2015] IESC 81

[47] Ibid

[48]Hill V CC OF WEST YORKSHIRE POLICE [1988] 2 WLR 1049

[49] [2015] IESC 81