Tort - Quill's Summaries Of Recent Leading Cases.

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Shortt v The Commissioner of an Garda Síochána (Irish Police),
Ireland and the Attorney General (AG) IESC, 21 March 2007, [2007]

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a) Brief Summary of the Facts
The plaintiff was convicted of drug related offences on foot of perjured testimony of police officers and spent 27 months in jail. The unlawfulness of his conviction was vigorously denied for a considerable period of time, causing him to lose his first appeal to the Court of Criminal Appeal. The totality of his ordeal, from initial arrest to his ultimate vindication by the Court of Criminal Appeal certifying a miscarriage of justice, was approximately ten years beginning when the plaintiff was in his late fifties and ending when he was in his late sixties. There were, additionally, a number of other minor complaints, related to heavy-handed police tactics during the investigation of the plaintiff’s premises. The plaintiff suffered a loss of personal liberty, damage to reputation, and disruption of family life, leading to significant psychological and physical suffering, including the development of a heart condition. Liability in the civil action, based principally on sec. 2 of the Criminal Procedure Act 1993 for the miscarriage of justice, was conceded and the hearing in the IEHC was confined to quantification of damages.

The plaintiff was awarded € 1,923,871, consisting of € 1,356,221 in pecuniary losses to his business; € 12,650 in legal fees related to the criminal charges; € 500,000 in non-pecuniary damages since the date of the first charge (used as the start date for the miscarriage of justice claim); € 5,000 for suffering prior to the date of the first criminal charge (for the common law claims); and, finally, € 50,000 in exemplary damages. The plaintiff appealed the award.

b) Judgment of the Court
The Supreme Court (IESC) upheld the appeal in part and increased the award to € 4,623,871. The awards for pecuniary losses, legal fees and the € 5,000 for the period prior to the initial charge were all upheld. The non-pecuniary damages from the date of charge were raised to € 2.25 million (comprising both ordinary and aggravated damages) and the exemplary damages award was increased to € 1 million. The Court found that the appropriate basis for assessment for the miscarriage of justice was that set out in respect of claims for breach of constitutional rights in Conway v INTO,10 comprising ordinary compensatory damages for the harmful effects of the wrong, aggravated damages for the heightened feelings of hurt arising out of the behaviour of the defendant, both in the commission of the wrong and subsequently, and exemplary damages to censure the
wrongdoer’s conduct over and above its damaging effects on the plaintiff.

While each would normally be calculated separately, the Court found that the considerations relevant to the two categories of compensatory damages – ordinary and aggravated – were so closely interwoven, that a global award for both should be made and that it should expressly be stated to include an aggravated element. The Chief Justice (CJ), Mr. Justice Murray stated that the ordinary compensatory damages should be “far in excess” of the IEHC award, but did not specify how much of the € 2.25 million this was. On the issue of exemplary damages, the Court emphasised that the vicarious nature of the state’s liability had no bearing on its obligation to pay for the abuse of state power by individuals acting on its behalf and that quantification was at the court’s discretion as a measure of public disapproval, independent of the compensatory award.

c) Commentary
Given the suffering of the plaintiff over a protracted period, it is difficult to argue with the level of the award when the case is viewed in isolation. However, in light of prior jurisprudence on the various heads of damages involved, the decision is extraordinary and raises serious fundamental questions about quantification. Looking first at the non-pecuniary damages, while the IESC did not precisely state how much of the € 2.25 million was for “ordinary” compensation and how much was for aggravating factors, it must be assumed that
the bulk of the award was for “ordinary” compensation. This assumption flows from the fact that previous practice shows that in the rare cases where an aggravated damages award is made, it tends to be significantly smaller than the “ordinary” compensatory damages.11 So, if the “ordinary” compensatory damages in this case can be assumed to amount to at least € 1.5 million, then it greatly exceeds the upper limits previously placed on awards in respect of the most serious wrongs. Awards in respect of catastrophic personal injuries and serious sexual abuse in particular compare very poorly with this award; the level of suffering in such cases must come close to that in the present case, yet the damages awarded for such injuries are significantly lower.12

Direct comparison of suffering between differing kinds of harm is not possible, but a relative scale of values, with a rational prioritisation of the rights and interests affected by tortious wrongdoing can be attained. The present case suggests a significant imbalance between various types of harm in the current state of the law.13 Mr. Justice (J) Hardiman in Shortt (Geoghegan and Fennelly JJ concurring) did look at some comparisons to other cases in setting the level of compensation for non-pecuniary loss, specifically a more limited false imprisonment case and a serious defamation case.14 This shows some support in principle for the idea of a relative scale of values, but does not fully explore the range of values reflected in tort claims. It is to be hoped that either the courts in subsequent cases, or the legislature, will re-evaluate damages levels for non-pecuniary losses so as to implement a more rational scale of values across the spectrum of interests affected. It is also worth noting that, despite the size of the total award, there was no global review of the award – a practice undertaken in personal injury cases to curb the size of awards.15

The difference of approach in the IEHC and IESC on the inclusion of aggravated damages is also worth noting. Clearly in principle the facts are suited to such an award, based on the rationale underlying this head of damages.16 The IEHC only refused to make such an award because the factors normally taken into account in awarding aggravated damages had already been taken into consideration in assessing the non-pecuniary compensatory damages. The IESC’s approach, using a global sum due to the interwoven nature of the factors affecting both heads is not really conceptually different; rather, it is a semantic difference formally recording the fact of an aggravated element in the plaintiff’s suffering.

Ireland’s foremost tort scholar, Professor William Binchy characterises the distinction between aggravated and ordinary compensatory damages, as drawn by the IESC in this case, as “artificial and unconvincing”.17 The real difference between the two courts is the quantum assessed as a composite total for all the relevant considerations. The IEHC’s assessment was necessarily constrained, given the jurisprudence on upper levels of damages in other cases, and Finnegan P’s use of defamation as the closest comparison was understandable and probably more reflective of a proportionate scale of values than the IESC’s figure. In fact this reporter even suggested that the IEHC award was at risk of being struck down for being too high. The IESC, having greater latitude because of its position in the judicial hierarchy, was able to engage in a radical departure on quantum that was not really open to the IEHC.

The Court addressed a number of aspects of the law in respect of exemplary damages. First, although awards of both aggravated and exemplary damages are rare in the same case, there is no principled objection in light of the difference in their objectives, with the former addressing particular effects of the defendant’s behaviour on the plaintiff and the latter marking public censure of the defendant’s behaviour beyond the harm caused to the plaintiff.18 Secondly, the Court emphasised that, in respect of state liability, punishment and deterrence had no meaningful application, but a focus on making a public example of the wrongdoing was a relevant consideration in assessing the appropriate level of damages. Professor Binchy notes that too close an examination of the various components of the rationale might make the law unduly technical at the expense of individual justice.19 Thirdly, the IESC rejected the view from an earlier IESC decision that the amount of exemplary damages should generally be a fraction of the compensatory damages.20 The actual amount awarded here is significantly higher than any previous award of such damages, but this is hardly surprising or unreasonable in light of the exceptionally serious nature of the wrong.

One further point to note in respect of exemplary damages is that Murray CJ refers to vindication of plaintiff’s rights as part of the purpose of such damages. In principle, the compensatory damages should vindicate the plaintiff’s rights; in practice, compensation may fall short of total vindication. Thus, the Chief Justice may be correct. However, there is a danger that such an approach will blur the line between compensatory and exemplary damages – a line which is already blurred in earlier case law, which notes that aggravated
and exemplary damages may in practice serve equivalent purposes in individual cases.21

16 B.M.E. McMahon/W. Binchy, Law of Torts (3rd ed. 2001) [44.08]; E. Quill, Torts in Ireland (2nd ed. 2004) 518–9; J. Healy, Principles of Irish Torts (2006) [13.35] ff.; Law Reform Commission (LRC), Consultation Paper On Aggravated, Exemplary and Restitutionary Damages (1998) 5 and [7.43] ff. (available at http://www.lawreform.ie/publications/data/lrc97/lrc_97.pdf last accessed on 14 March 2008); see also E. Quill, Ireland, in: H. Koziol/B.C. Steininger (eds.), European Tort Law 2003 (2004) no. 9–13.

17 W. Binchy, Damages Awards after Shortt v An Garda Síochána: New Questions (2007) 2 (3) QRTL 20, 22.

18 McMahon/Binchy (fn. 16) [44.09] ff.; Quill (fn. 16) Torts in Ireland 519 ff.; Healy (fn.16) [13.39] ff.; LRC (fn. 16) chap. 7; see also Crofter Properties Ltd. v Genport Ltd. [2005] 2 ILRM 262; [2005] IESC 20.

19 Binchy (2007) 2 (3) QRTL 20, 25. In McIntyre v Lewis & Dolan [1991] 1 IR 121 the terms punitive and exemplary were treated as interchangeable and the IESC resisted any minute examination of a technical nature; McCarthy J at 138 and O’Flaherty J at 139; see also LRC (fn. 16) 5.

20 This view was expressed by O’Flaherty J in McIntyre v Lewis & Dolan [1991] 1 IR 121, 141. [2005] IEHC 140, noted by Quill (fn. 9) no. 29–31 (€ 35,000 general damages and € 10,000 aggravated damages); Connellan v St. Joseph’s Kilkenny [2006] IEHC 119 (€ 250,000 general damages and € 50,000 aggravated damages). Exceptionally, in Philp v Ryan [2004] 4 IR 241, the aggravated damages accounted for half of the € 100,000 awarded; the actual harm suffered in the circumstances was limited as the plaintiff had a terminal illness (which was not caused by the tort) and the aggravating circumstances were particularly objectionable. Also where personal rights are violated, but little actual harm results, the aggravated damages may be the principal vindication; e.g. Whelan v Madigan [1978] Irish Law Reports Monthly (ILRM) 136, where two plaintiffs each received £ 300 in aggravated damages, but only £ 88 and £ 48 each in damages for the consequences of the wrong.

12 The most favourable view of personal injuries damages, from a plaintiff’s perspective, places a limit of approximately € 400,000 on non-pecuniary damages (without aggravated damages); McEneaney v Monaghan County Council [2001] IEHC 114, noted by E. Quill, Ireland, in: H. Koziol/B.C.Steininger (eds.), European Tort Law 2001 (2002) at no. 51–53; the highest award for sexual assault to date was € 350,000 in Nolan v Murphy [2005] 2 ILRM 81, noted by Quill (fn. 9) no. 6.

13 This argument is developed more fully in E. Quill, General Damages and Relative Values in Irish Tort Law (2007) 2 (2) Quarterly Review of Tort Law (QRTL) 1. In Myles v McQuillan [2007] IEHC 333 Quirke J has also acknowledged that the tariff for personal injuries cases may need to be reviewed in light of the decision in Shortt. As the issue had not been argued by the parties, he was not in a position to explore the matter further.

14 The false imprisonment case was Walshe & Bedford v Fennessy & Others [2005] IESC 51, where the second named plaintiff was awarded € 100,000 in respect of 40 hours detention on suspicion of IRA membership; the defamation case was de Rossa v Independent Newspapers [1999] 4 IR 432, where £ 300,000 (€ 381,000) was awarded to a politician for allegations of anti-Semitism, support for communist oppression, involvement in serious crime and support for others so involved.

15 Reddy v Bates[1983] IR 141; Cooke v Walsh [1984] ILRM 208; Sinnott v Quinnsaworth [1984] ILRM 523.

10 [1991] 2 Irish Reports (IR) 305, 317 per Finlay CJ.

11 See FW v British Broadcasting Corporation [1999] IEHC 145 (€ 75,000 general damages and € 15,000 aggravated damages); Daly v Mulhern & the Motor Insurers’ Bureau of Ireland (MIBI)

8 The cases reported here are available on the Irish Courts Service judgments database, http://www.courts.ie/Judgments.nsf/Webpages/HomePage?OpenDocument&l=en and on the British and Irish Legal Information Institute website, http://www.bailii.org/.

9 The IEHC decision is analysed in E. Quill, Ireland, in: H. Koziol/B.C. Steininger (eds.), European Tort Law 2005 (2006) no. 32–35. There are several other cases arising out of similar police misconduct; see, for example Frank McBrearty & Company Ltd. v The Commissioner of an Garda Síochána & Others [2007] IEHC 373. The overlap between tort claims and compensation for a miscarriage of justice are considered in G.P. Byrne, Malicious Prosecution After Shortt and Malicious Use and Abuse of Civil Process (2007) 25 Irish Law Times (ILT) 127.

21 Kennedy & Arnold v Ireland [1987] IR 587, 594 per Hamilton P; LRC (fn. 16) also notes the overlap between the two categories ([1.06] and [7.46]) and acknowledges the vindicatory aspect of exemplary damages ([1.07] and [7.29]).

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Hayes v The Minister for Finance IESC, 23 February 2007, [2007]
IESC 8, [2007] 1 ILRM 442

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a) Brief Summary of the Facts
The plaintiff was a pillion passenger on a motorcycle that was being pursued by police because the driver was detected driving at excessive speed. The pursuit ended with the motorcycle crashing into another vehicle, resulting in serious injuries to the plaintiff. The plaintiff sued the state on the basis that the police were responsible as concurrent wrongdoers for causing the accident; the action was successful in the IEHC and the defendant appealed.22

b) Judgment of the Court
The IESC allowed the appeal and overturned the IEHC judgment, ruling that the trial judge was incorrect in drawing an inference from the facts that the police driver was in breach of the duty of care owed to the plaintiff.

c) Commentary
At first glance, a decision turning on the correct inference to be drawn from the facts would appear to be of little significance to the development of legal principle. However, the decision is the only modern Irish authority articulating the civil responsibility of the police in the conduct of vehicle pursuits and a finding of liability could have placed severe constraints on the ability of the police to fulfil their proper function. Two features of the pursuit led the IEHC to find the pursuit negligent; one was the absence of any radio reports of any other crime in the vicinity at the time; the second was the dangerousness of the pursuit itself, based on high speed on the open road and weaving through traffic in an urban area. On the first issue, the IESC held that all that was required for the commencement of a pursuit was that the police have reasonable grounds for doing so; placing a precondition of radio reports of another crime would unduly constrain the police. Consonant with comments in the 2004 report, the IESC also noted that failure to pursue would condone and reward the dangerous behaviour of those fleeing from justice.

On the specifics of the pursuit, the IESC rightly noted that the pursuit was not a single seamless event, but rather went through at least three phases, where different levels of behaviour by the police were called for. The open road phase, prior to reaching a built up area, was where the highest speeds were attained (100mph/160kph); although the speed was high, it was not unduly dangerous and the police remained a good distance back from the vehicle. The second phase was through the town (though this could be subdivided between the circumvention of the police roadblock at the outskirts and the pursuit through the town itself).

A greater degree of care was required at this point. The IESC did not specifically comment on whether the standard was complied with in this phase, but merely noted that the accident did not occur at this point. It is submitted that the facts do not disclose any unduly dangerous behaviour by the police in this phase. The third and crucial phase was after the exit from the town, on a narrow country road, when the police knew there was a further roadblock ahead; the IESC noted that the police vehicle did not pass 50mph/80kph during this period and remained behind an articulated truck for much of it, allowing a significant gap to develop between them and the motorcycle. The police were rightly held not to have been in breach of duty at this point.

One final point of note was a dictum by Kearns J that even if the police had been negligent, the behaviour of the driver was a novus actus interveniens, breaking the causal connection to the plaintiff’s injury. This may be correct in respect of any negligence in the earlier phases of the pursuit, but cannot be correct in respect of the final phase. If there had been negligence at this point, then erratic behaviour by the motorcyclist, leading to an accident would be one of the eventualities that the duty is designed to guard against and so, could not be an intervening cause such as to sever the causal connection between the breach and the injury.23

22 Unreported IEHC 17 February 2004; noted by E. Quill, Ireland, in: H. Koziol/B.C. Steininger (eds.), European Tort Law 2004 (2005) no. 17–20.

23 Breslin v Corcoran & MIBI [2003] 2 ILRM 189, 198 per Fennelly J, though the IESC misapplied the principle in that case, see Quill (fn. 16) Ireland, no. 14–17; even self inflicted harm does not break the causal connection if it comes within the range of consequences that the defendant had a duty to guard against; see Bank of New Zealand & Another v New Zealand Exchange Ltd. & Another [2008] New Zealand Court of Appeal (NZCA) 25, no. 117; Corr v IBC Vehicles Ltd. [2008] United Kingdom House of Lords (UKHL) 13; the Court of Appeal (EWCA) decision in Corr is analysed by U. Connolly, Corr v IBC – A Basis for Civil Liability for Employee Suicide? (2007) 2 (3) QRTL 16.

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Devlin v The National Maternity Hospital IESC, 14 November 2007, [2007] IESC 50:

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a) Brief Summary of the Facts
The plaintiff’s daughter died and a post-mortem was carried out by the defendant hospital. Organs were removed and retained without the plaintiff’s consent. The plaintiff suffered post-traumatic stress disorder and instituted proceedings against the defendant. Those proceedings were dismissed by the IEHC and the plaintiff appealed.

b) Judgment of the Court
The IESC dismissed the appeal and affirmed the order of the IEHC. The principles applicable to negligently inflicted psychiatric harm set out in Kelly v Hennessy were applied.24 The fourth of those principles requires the plaintiff to show that the injury resulted from the perception of injury or risk of injury to oneself or another person. The injury in this case resulted from the communication of information in respect of the retention of organs after the child was already dead and so did not result from the perception of an actual or apprehended injury to the plaintiff’s daughter and so the relevant criterion was not satisfied. An extension of the conditions for recovery on grounds of public policy was rejected as “[a]ny such development would give rise to uncertainty in the law of liability generally and to potentially unforeseeable repercussions.”

c) Commentary
The issue of organ retention is part of a broader historical problem, which has been the subject of two enquiries.25 Fortunately, changes in practice since 2000 make recurrence of such cases far less likely in the future. The result of this case is disappointing, as it reduces the prospects for any accountability for a clear failure by the hospital to consider the impact of its conduct on the families of deceased children. The decision represents a very narrow interpretation of the prior cases on negligently inflicted psychiatric harm and is inconsistent
with some aspects of them and so may add to, rather than remove, uncertainty in this area.

The IESC, in Fletcher v Commissioners of Public Works,26 held that the Kelly principles, while well suited to one off catastrophes, were not applicable to all categories of claim for negligently inflicted psychiatric harm. In the context of an employment relationship, it used the more general three part test for a duty of care set out in Glencar Explorations plc and Andaman
Resources plc v Mayo County Council (No 2).27 Arguably the prior relationship between the plaintiff and hospital would justify inclusion of the present case under the broader approach without unduly extending the bounds of liability for psychiatric injury.28

The current decision now casts doubt over some types of claim, especially ones arising out of stress. Stress does not always involve a fear of injury; neither does it necessarily involve the sudden appreciation of events (another of the requirements of the Kelly principles). It is now unclear whether a court should follow Kelly or Fletcher. If the case does not involve an employment relationship, then the decision in Devlin weighs in favour of following Kelly, but the facts may involve a prior relationship and suggest that a comparison to Fletcher is more appropriate (e.g. a school and pupil). The decision in Gray v Ireland, discussed below, is also difficult to reconcile with this judgment.


24 [1995] 3 IR 253.

25 Madden Report, http://www.dohc.ie/publications/madden.html accessed 9 January 2008. The government felt unable to publish an earlier report (the Dunne Report) following legal advice, see http://www.dohc.ie/press/releases/2005/20050504.html accessed 9 January 2008.

26 [2003] 2 ILRM 94, noted by P. Handford (2003) 11 Tort Law Review (Tort L Rev) 61; Quill (fn. 16) Ireland, no. 4–8; R. Byrne/W. Binchy, Annual Review of Irish Law 2003 (2004) 526 ff.

27 [2002] 1 IR 84; [2002] 1 ILRM 481, noted by Quill (fn. 12) no. 3–5; R. Byrne/W. Binchy, Annual Review of Irish Law 2001 (2002) 554 ff. The three parts being proximity, reasonable foresight and public policy. The broader approach has been used in a number of occupational stress cases, such as McGrath v Trintech Ltd. [2005] 4 IR 382; Maher v Jabil Global Services Ltd. [2005] IEHC 130; Quigley v Complex Tooling and Moulding [2005] IEHC 71; See also M.
Bolger, Claiming for Occupational Stress, Bullying and Harassment (2006) 3 Irish Employment Law Journal (IELJ) 108.

28 See P. Handford, Psychiatric Injury in Breach of a Relationship (2007) 27 Legal Studies (LS)

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Fitzpatrick v White IESC, 15 November 2007, [2007] IESC 51

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a) Brief Summary of the Facts
The plaintiff, a professional musician, had an operation to correct a squint in his left eye for cosmetic reasons. The named defendant was the nominee of the hospital where the procedure was performed. While the operation was carried out with due care, the plaintiff subsequently suffered slippage of the medial rectus muscle behind the left eye, causing the eye to turn outwards in addition to leaving him with double vision and headaches. These effects were partly rectified by a later operation. Muscle slippage is a rare, but known, complication of the type of surgery the plaintiff was undergoing. He alleged that he received no warning of this risk and that, had he been warned, he would not have undergone the surgery. The IEHC found that a warning had been given and that, in any event, the plaintiff would have undergone the operation irrespective of whether a warning was given.29 The plaintiff appealed to the IESC. He accepted that the trial judge’s finding of primary fact that a warning had been given was not open to appeal, but argued that the warning was given so late and under such pressured circumstances that it was insufficient and, consequently, legally invalid.

The warning was given to the patient 30 minutes before the operation, when he was in a hospital gown in a bed on a ward, but not yet sedated.

b) Judgment of the Court
The IESC dismissed the appeal and affirmed the order of the IEHC. While the Court found that it was undesirable that a warning should be given at a late stage, particularly where there were various opportunities to give the warning earlier, the plaintiff in this case was not prejudiced by the lateness of the warning. The evidence demonstrated that he was capable of making a clear
and rational decision at the time. In the circumstances, the warning was found to be sufficient to discharge the hospital’s duty. In consequence, the causal question did not require consideration, but the court noted, obiter, that it was satisfied with the trial judge’s ruling on the issue and would have upheld it had the warning been found to be inadequate.

c) Commentary
The decision is noteworthy because it addresses the timing, rather than the content of the warning in determining its legality. The decision does not definitively determine the balance between subjective and objective determination of the validity of consent. The particular decision against this plaintiff was based on a lack of prejudice based on the subjective level of comprehension and lucidity which emerged on the evidence. It does not tell us how the courts would react in cases where a reliable subjective understanding cannot be demonstrated, though it does offer some hints. The indication that the circumstances under which the warning was given were undesirable suggests that a breach of duty might be found where there is doubt about the patient’s comprehension of the risk. The inclusion of the subjective understanding of the patient in the standard of care inquiry is at odds with the general principle espoused earlier in
the judgment that the “reasonable patient” test is the correct one to determine whether the warning given meets the obligation of reasonable care. Perhaps it would have been better if the subjective comprehension of the plaintiff was treated as a causal issue, rather than as a facet of breach. The same result could have been achieved by stating that the warning fell below the standard of reasonable care, due to the time and circumstances of its delivery, but the lack of
any subjective prejudice to the plaintiff in assessing the risk and undertaking the procedure severs any causal connection between the breach and the harm. This would be consistent with the causal principle endorsed by the Court – that an inadequate warning is not a cause of the harm if a reasonable patient, on being properly informed of the risk, would have undertaken the procedure anyway; however, this objective assessment can be displaced by a subjective analysis where there is credible evidence providing a reliable picture of what this particular plaintiff would have done.30

The Court has not, as yet, addressed the more difficult question of the patient who would have deferred the procedure. 31

29 [2005] IEHC 479.

30 This approach has been emerging in the IEHC, see Geoghegan v Harris [2000] 3 IR 536 and
Winston v O’Leary [2006] IEHC 440.

31 Chappel v Hart (1998) 195 Commonwealth Law Reports (CLR) 232; Chester v Afshar [2005] 1
Law Reports, Appeal Cases (AC) 134 noted by K. Oliphant, England and Wales, in: H. Koziol/
B.C. Steininger, European Tort Law 2004 (2005) no. 4–11.

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Gray v The Minister for Justice Equality and Law Reform, Ireland
and the AG IEHC, 17 January 2007, [2007] IEHC 52: Privacy; State Liability; Psychiatric Harm

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a) Brief Summary of the Facts
AG, PG and their five children moved from Dublin to live in a small seaside town in the south west of Ireland in 1995. In February 1999 they agreed to temporarily provide accommodation for AG’s nephew on his release from prison, where he had served a lengthy sentence for rape. In early April 1999 the police
visited the house and following that visit the nephew returned to Dublin. The family were then contacted a number of times by local journalists and others, including friends of one of the children; press photographers showed up at their home and a series of stories were run over the course of approximately a week about the presence of a convicted sex offender in the town. The family returned to Dublin; for six months they had to reside in single bedroom bed and breakfast accommodation, living mainly on fast food; they spent the following six months in a two-roomed apartment, before finally being housed in a local authority house on a permanent basis. PG suffered from post-traumatic stress disorder (PTSD), which gradually reduced in intensity until she fully recovered in early 2006. The plaintiffs instituted proceedings against the state alleging negligence and violation of their constitutional rights to privacy and
peaceful enjoyment of their home. An allegation of assault and battery was also made by FG, the eldest son, in respect of the police visit to the house.

b) Judgment of the Court
Quirke J found that there was sufficient evidence to infer that the police had leaked the information to the press about the whereabouts of AG’s nephew and in consequence were in breach of obligations owed to the plaintiffs, for which the state was liable in damages. Based on the IESC decision in Ward v McMaster32 and the IEHC decision in Hanahoe v Hussey,33 a duty of care in negligence was established, breach of which entitled the plaintiffs to damages.

Based on the IEHC decision in Kennedy and Arnold v Ireland and the AG,34 unlawful interference with the constitutional right to privacy was held to be actionable and, while this right is a qualified one, there were no circumstances in this case which justified the disclosure of the information on public policy grounds. There was insufficient evidence to sustain the allegation of assault and battery. Consequently the police disclosure “comprised a violation of the constitutionally protected right enjoyed by each of the plaintiffs to privacy and the peaceful enjoyment of their home.” AG was awarded € 15,000 “for the upset, distress, inconvenience and disruption of his life” caused by the breach of duty; PG was awarded € 50,000 for personal injury and FG was awarded €5,000 as his level of “inconvenience, upset and disruption” was less intense than his father’s and suffered for a shorter period.

c) Commentary
The decision in favour of the plaintiffs is certainly justified. However, the reasoning in the judgment raises several conceptual problems. First, the decision on liability in negligence relies on a formulation of duty expressly rejected by the IESC.35 A duty can still be justified under the current approach; the police are certainly in a proximate relationship to the plaintiffs when gathering and disclosing information about them; harmful consequences are a reasonably foreseeable consequence of disclosure and it is fair, just and reasonable that the police are under a legal obligation to exercise care with respect to such sensitive information. The second, more fundamental, problem with a negligence action is the concept of actionable damage – the first and third plaintiffs did not suffer any injury and a recognised injury is a core element of a negligence claim. Unless the violation of the privacy right of itself constitutes a sufficient injury, no action in negligence should lie; recognition of privacy violation as an injury for the purpose of negligence would be a significant extension of the law and there is no indication that Quirke J believed himself to be embarking upon a new conceptual development. The second plaintiff did suffer a recognised injury – PTSD – but did not suffer it in a manner which satisfies the criteria in Kelly v Hennessy. Specifically, it did not result from a sudden shock and it is doubtful whether any perception of possible other injury was sufficiently immediate or central to the trauma to qualify under the requirement discussed earlier in Devlin v National Maternity Hospital. Thus, while a finding of liability in negligence in respect of the second plaintiff is conceptually justifiable and compatible with the approach of the IESC in Fletcher v CPW,
it is inconsistent with the subsequent approach of the IESC in Devlin. While Quirke J cannot have anticipated the IESC decision that would follow some ten months later, future courts may have to address the incompatibility of the two approaches.

A discrete claim for breach of constitutional rights is available in Irish law, where common law protection of the right is absent or inadequate.36 The Kennedy and Arnold decision clearly established the availability of such an action against the state for violation of privacy; there is also growing support for the
availability of such an action against private persons.37 The claims of the first and third plaintiffs are difficult to accommodate under existing torts and so can be justified under this approach. The fact that interference with the plaintiffs’ occupation of property was caused might suggest private nuisance as an appropriate cause of action, but the defendant’s behaviour did not arise out of the use of neighbouring property and, so, does not fit the normal parameters of that tort. In any event, the invasion of privacy should be actionable per se, and not dependent on proof of interference with some other right or interest.
The claims cannot be accommodated within the nominate torts, because they do not satisfy the established requirements. Trespass is unavailable as there is no physical contact to support a battery claim; any apprehension of harm is not sufficiently immediate to support an assault claim and the interference with liberty is indirect and so cannot sustain a false imprisonment claim. Defamation is not available, because the information was truthful and injurious falsehood is unavailable both because of the truth of the information and a lack of ensuing harm. An action on the case, a somewhat forgotten element of the armoury of the common law, used to forge new causes of action, might be a suitable way of accommodating the claim. It is submitted that either the action on the case or a constitutional claim is a more satisfactory approach than the solution in English law to use the equitable action for breach of confidence as a means of privacy protection.38 Constitutional claims do not coexist concurrently with common law claims, so there is a technical deficiency in Quirke J upholding the constitutional claim alongside the negligence claim in respect of the same wrong. The status of claim for interference with the right to peaceful enjoyment of the home in the present case is unclear; it is expressed as an adjunct to privacy in the judgment and is not discretely considered as a distinct right. Certainly, such a constitutional right might exist, but the precise manner of its protection through existing torts, such as private nuisance, or through the development of a tort of harassment,39 or through the constitutional action remain to be considered and developed.

The level of damages awarded is relatively low, given the degree of disruption suffered by the family. Given the award in respect of the third plaintiff, the family’s total award could have been increased by a modest amount had the other four children been included as plaintiffs. The award to the second plaintiff, in respect of PTSD, is in keeping with other Irish awards for psychiatric injury, but in general these compare poorly to other personal injury awards.40

36 Hanrahan v Merk, Sharp and Dohme Ltd. [1988] ILRM 629; W v Ireland (No. 2) [1997] 2 IR 142; McDonnell v Ireland [1998] 1 IR 141. Such claims are treated as quasi-torts in Irish law, see McMahon/Binchy (fn. 16) [1.09] ff.; Quill (fn. 16) Torts in Ireland, 352 ff.; Healy (fn. 16) [1.16] ff. The classification of the causes of action in Gray is considered further in D. Kelleher, A Very Private Affair (2007) 101 (5) Gaz 24, 27. For more general treatment of privacy claims in Ireland, see R. Slattery, Protection of Privacy Interests in Ireland: The Common Law, The Privacy Bill 2006 and the Privacy Injunction (2007) 14 Commercial Law Practitioner (CLP) 159.

37 There were two recent successful privacy claims against private defendants; one in the IEHC, Sinnott v The Carlow Nationalist, Irish Times 27 January 2007, see R. Byrne/W. Binchy, Annual Review of Irish Law 2006 (2007) 540 (newspaper printing a picture in which a sports participant’s genitals were visible, € 6,500 awarded), and one in the IECC, see the Irish Times 14 November 2007 (landladies using electronic surveillance on tenants, a total of € 115,000 awarded to 10 plaintiffs). In Domican v Axa Insurance Ltd. [2007] IEHC 14 an unwanted communication with the plaintiff was not a sufficient interference with privacy, but Clarke J expressed no principled objection to a horizontal privacy claim.

32 [1988] IR 337.
33 [1998] 3 IR 69.
34 [1987] IR 587.
35 Glencar Explorations plc v Mayo County Council [2002] 1 IR 84; see fn. 27.

38 Campbell v Mirror Group Newspapers Ltd. [2004] 2 AC 457, noted by Oliphant (fn. 31) no. 24–29; Associated Newspapers v HRH Prince of Wales [2007] 2 All England Reports (All ER) 139, noted by K. Oliphant, England and Wales, in: H. Koziol/B.C. Steininger (eds.), European Tort Law 2006 (2008) no. 37–39; Ash v McKennitt [2007] 3 Weekly Law Reports (WLR) 194.

39 Clarke J, in Domican v Axa Insurance Ltd. [2007] IEHC 14 and Dunne J, in O’C v The KLH & Anor [2006] IEHC 199, have expressed conflicting views on a tort of harassment; the former in favour of and the latter against an independent tort of harassment.

40 See Quill (2007) 2 (2) QRTL 1, 7–8.

Front 6

Byrne v Ryan IEHC, 20 June 2007, [2007] IEHC 207: Wrongful
Birth; Vicarious Liability41

Back 6

a) Brief Summary of the Facts
The plaintiff underwent an unsuccessful sterilisation operation at a hospital, of which the defendant is a nominee. The operation was carried out on 16 December 1999; on 30 March 2000 the plaintiff discovered that she was approximately
three months pregnant, having gone to an accident and emergency unit with severe abdominal pain. During her care at the defendant hospital (where the sterilisation had been carried out), some doubt arose as to whether the plaintiff had been pregnant at the time of the sterilisation operation; while the consultant treating her eventually came to the conclusion that she was not and that the sterilisation operation had failed, no clear note to that effect was recorded on her chart and she was not clearly informed of this at any stage during her care through the pregnancy. As a result, the plaintiff took no steps to address her fertility after the birth of the child and became pregnant again within four months. After the birth of that child she had a second sterilisation operation, which proved successful. The plaintiff sued the hospital for damages in respect of the pain, suffering and inconvenience of the two pregnancies, childbirth and the second sterilisation; she also sought to recover associated
medical costs and the cost of rearing the two healthy children. The hospital denied vicarious liability for the surgeon’s negligence, as it did not have sufficient control to satisfy the established test for vicarious liability. If found liable, the hospital argued that damages should not include the cost of raising the children, but conceded that damages would be payable for the “pain suffering and inconvenience of pregnancy and childbirth” and for the second sterilisation procedure.

b) Judgment of the Court
Kelly J held that, irrespective of the nature of the relationship between the hospital and the doctors providing treatment, there is a primary duty on the hospital to provide proper care for patients and this is not discharged simply by appointing qualified persons to perform the necessary tasks, but requires that the hospital remain responsible for the manner of performance by such persons. This duty applied both to the surgery and the obligation to inform the patient of the failure of the sterilisation operation. Even if this were not so, a hospital was vicariously liable for doctors employed as part of its staff, despite
the fact that the relationship did not conform to the control model in other vicarious liability cases. On the extent of liability, Kelly J rejected the claim for the cost of raising the children, citing public policy grounds, based on the House of Lords (UKHL) decisions in McFarlane v Tayside Health Board42 and Rees v Darlington Memorial Hospital NHS Trust,43 rejecting the view of
the High Court of Australia (HCA) in Cattanach v Melchior.44 € 90,000 was assessed as compensation for those heads of loss conceded by the defendant,45 with Kelly J reserving his opinion on whether pregnancy and childbirth could properly be regarded as injuries for which compensation should be payable.

c) Commentary
The approach taken by Kelly J places the question of whether the cost of rearing a healthy child is actionable damage within the framework of the duty of care inquiry and rejects the claim on grounds that it is not fair, just or reasonable to impose liability on the doctor or the hospital. The alternate approach, taken by the HCA in Cattanach and rejected by Kelly J, is more consistent with the general principles of torts; this approach considers the damage as consequential to a clear breach of duty and, therefore, falling under the principles of remoteness of damage. The general rule of remoteness in negligence cases
is that foreseeable types of loss are recoverable and plainly the financial cost arising from the birth of a child is a readily foreseeable consequence of the negligent performance of a sterilisation.46 The view, expressed by Lords Gill and Millet in McFarlane and cited by Kelly J, that the benefits of the child outweigh the loss is also of dubious value, as it uses an emotional benefit to offset a pecuniary loss; normally only pecuniary benefits are set off against pecuniary losses and non-pecuniary benefits are set off against non-pecuniary losses.47

The case taken by this plaintiff’s husband also failed.48 His claim was more clearly one for pure economic loss and the rationale used by Kelly J, within the duty of care concept, has clearer application to that case. A broader issue that is not addressed, however, is whether the interference with family rights and autonomy should be regarded as an actionable wrong for interference with constitutional rights.49 The issue of whether pregnancy and childbirth can be regarded as actionable harm was conceded, so the case does not establish any precedent on the issue. The tenor of the judgment suggests that Kelly J may
have been inclined to reject such a claim had it been contested.50

On the issue of the hospital’s liability, both of the theories advanced by Kelly J are supported by authority. A hospital’s vicarious liability for doctors in full time service is often cited as an exception to the control test ordinarily employed to determine the sufficiency of relationship for vicarious liability in tort.51 However, the concept of a non-delegable primary duty owed directly bythe hospital to the patient and based on its undertaking to provide care, which was preferred by Kelly J, is a conceptually more satisfactory explanation.52

The latter approach would ensure a hospital’s responsibility to the patient even where there was a clear lack of employment relationship with the negligent doctor, such as where a visiting doctor is allowed to carry out a procedure on a patient. While such cases may be rare, it would be better to ensure that the patient is properly protected, rather than risk liability turning on technical aspects of the relationship between the hospital and the medical personnel treating the patient.

46 Keane Ir Jur.; L.C.H. Hoyano, Misconceptions About Wrongful Conception (2002) 65 Modern Law Review (MLR) 883; E. Adjin-Tettey, Claims of Involuntary Parenthood: Why The Resistance? in: J. Neyers/E. Chamberlain/S.G.A. Pitel, Emerging Issues in Tort Law (2007). Even T. Weir, The Unwanted Child (2000) Cambridge Law Journal (CLJ) 238, expressing support for
the outcome in McFarlane, acknowledges that “the reasoning is uneasy” and that orthodox tort principles favour recovery in full.

47 Keane Ir Jur. Lord Gill was the trial judge in the Outer House of the Court of Session (Scotland); Lord Millet’s opinion was in the House of Lords.

48 Byrne v Ryan [2007] IEHC 206.

49 Keane Ir Jur. In Rees, the House of Lords allowed £ 15,000 general damages to the parents as a “conventional sum” in respect of the loss of autonomy involved. This was based in part on the view of Lord Millett in McFarlane. See also D. Nolan, New Forms of Damage in Negligence (2007) 70 MLR 59, 77 ff.

50 He expressly cited Lord Gill, who had also rejected this aspect of the claim in McFarlane at first instance. The reasoning cited by Kelly J from Lord Millet on the benefits outweighing the burdens was also used by Lord Millet to dissent from the majority on liability for pregnancy and birth. For detailed discussion of whether pregnancy and birth constitute physical injury, see Nolan (2007) 70 MLR 59, 71 ff.; C. Witting, Physical Damage in Negligence (2002) CLJ 189, 192 ff.

51 McMahon/Binchy (fn. 16) [43.22], Quill (fn. 16) Torts in Ireland, 498.

52 See R. Stevens, Torts and Rights (2007) 117 ff.; both Kelly J and Stevens cite Lord Justice (LJ) Denning (as he then was) in Cassidy v Ministry of Health [1952] 2 Law Reports, King’s Bench (KB) 343, 363 (EWCA) in support of this principle.

42 [2000] 2 AC 59.

43 [2004] 1 AC 309, noted by P. Cane (2004) 120 Law Quarterly Review (LQR) 189 and K. Oliphant, England and Wales, in: H. Koziol/B.C. Steininger (eds.), European Tort Law 2003 (2004) no. 34–41.

44 [2003] HCA 38; (2003) 215 CLR 1.

45 The breakdown of the award was € 45,000 in respect of the first child, € 35,000 for the second and € 10,000 for the second sterilisation operation.

41 Noted by Dr. C. Craven, Byrne v Ryan: Pregnancy and Children and Limitations on Recoverability for Actionable Wrongs (Part 1) (2007) 2 (3) QRTL 1; E. Keane, Rearing an Unexpected Child: A Compensatory Matter? Forthcoming Irish Jurist (Ir Jur).

Front 7

Walsh v Jones Lang Lasalle Ltd. IEHC, 24 January 2007, [2007]
IEHC 28: Negligent Misstatement; Disclaimer

Back 7

7. Walsh v Jones Lang Lasalle Ltd. IEHC, 24 January 2007, [2007]
IEHC 28: Negligent Misstatement; Disclaimer
a) Brief Summary of the Facts
The defendant, a large and well-known firm of auctioneers, advertised a commercial
property for sale. The brochure stated the floor area to be 23,057 square
feet. The plaintiff purchased the property in reliance on the brochure without
checking the measurements for himself. The price paid by the plaintiff was
IR£ 2,342,000 (approx € 2,974,000), a rate of approximately € 129 per square
foot. It later transpired that the actual size of the property was 21,248 square
feet, a difference of some 1,817 square feet from that represented. Thus, the
plaintiff had paid significantly more for the property than its value and, furthermore,
the rental income that could be generated was significantly less than he
had anticipated. The plaintiff sued for the economic loss, alleging a negligent
misstatement by the defendant. The defendant denied that it owed a duty to
the plaintiff, as the brochure contained a disclaimer that required purchasers to
verify relevant information for themselves and that the plaintiff either wholly
caused or at least contributed to his own loss by not having the property independently
examined (or doing so himself).
b) Judgment of the Court
Quirke J held that the disclaimer was ineffective, as it was not sufficiently clear
and prominent to warn of the possibility of grossly inaccurate information that
was presented in such a precise and prominent way as the measurements. Such
disclaimers were understood within the property business as covering minor
inaccuracies only. Based on evidence of the actual practice within the business
of commercial property sales in Dublin at the time, he accepted that it
was usual for purchasers to rely on measurements provided by reputable auctioneers
such as the defendant and that such measurements would determine
rental value and this in turn would influence the purchase price. Consequently,
applying the criteria set out in Wildgust v Bank of Ireland,53 he held that the
defendant had a sufficient relationship of proximity with the plaintiff; that the
plaintiff’s reliance on the representation was reasonably foreseeable and that
it was fair, just and reasonable to impose a duty of care on the defendant. The
degree of inaccuracy clearly indicated a failure to discharge the duty of reasonable
care. Damages were assessed on the basis of the diminution of value of the premises rather than on the diminution of rental income and the plaintiff
was awarded € 350,000.
c) Commentary
Despite the fact that negligent misstatement claims have been accepted in Ireland
for over 40 years, this is one of the few cases to turn on the interpretation
of a disclaimer and is the first to reject the application of an express disclaimer
contained in the document that contained the misrepresentation. As misstatement
cases are conceptually based on a voluntary assumption of responsibility,
they generally embrace the view that the defendant can avoid the imposition
of a duty by disclaiming such duty, without devoting much if any attention to
what constitutes a legally valid disclaimer. The disclaimer is mentioned as an
integral facet of the duty enquiry, rather than being treated under the stringent
requirements applicable to allegations that a plaintiff has waived liability. The
decision of Quirke J is the first in a tort case to evidence the judicial scepticism
of such clauses that is relatively commonplace in respect of exclusion clauses
in contracts and is to be welcomed. His approach in accepting the clause as valid
in respect of minor inaccuracies, but construing it as insufficiently clear and
prominent to apply to the facts that arose is reminiscent of the famous dictum
of Denning LJ in Spurling v Bradshaw54 and sets a fair balance between the
respective interests of the parties. It should serve as a caution to persons giving
specialist advice or information that tortious obligations cannot be lightly
avoided. Many judgments and commentaries on the duty, by focusing on voluntariness,
often create the mistaken impression that the imposition or otherwise
of a duty is dependent on the subjective determination of the maker of the
statement and that they can displace a duty with any kind of disclaimer. This
judgment highlights the fact that the objective effect conveyed by the maker of
the statement is at the core of determining whether the law will impose a duty
and that attempts by makers of statements to distance themselves from legal
responsibility for the effects of such statements will be subjected to a searching
enquiry by the courts. The decision has been criticised for not holding the
plaintiff responsible in part by way of contributory negligence.55

53 [2006] 1 IR 570; E. Quill, Ireland, in: H. Koziol/B.C. Steininger, European Tort Law 2006
(2008) no. 6–10.

54 [1956] 2 All ER 121, 125 suggesting that some exclusion clauses were so onerous that they
should be on the front of the document in red ink with a red hand pointing to them, to properly
alert the other party.
55 G. Byrne, Negligent Misrepresentation: Recent Developments in English and Irish Law (2008)
2(4) QRTL 22, 27.

Front 8

O’Neill v Dunnes Stores IEHC, 21 February 2007, [2007] IEHC 33:
Liability for Injury to Rescuer

Back 8

a) Brief Summary of the Facts
The plaintiff, a customer at a shopping centre, was injured when giving assistance
to the defendant’s security guard in detaining a suspected shoplifter.
He was approached in the car park by a cleaner asking for help to deal with a
robbery, he went to the back of the building and found the security guard struggling
with a man. He helped the guard to detain the man until the police arrived. Before the police had taken custody of the man, his accomplice returned
with a motorcycle chain and struck the plaintiff in the face with it. The plaintiff
instituted proceedings against the store.
b) Judgment of the Court
Kelly J found the defendant liable and awarded the plaintiff € 81,201.56 The
defendant was found to have inadequate security personnel on duty on the evening
in question; whereas the store normally had three security guards, there
was only one guard on duty on this particular evening, despite the fact that the
store was open late. The security guard was also left with inadequate available
means of communication; whereas he would have had a two-way radio to
communicate with other security personnel had they been on duty, he only had
a mobile phone to contact other staff members on this occasion. Furthermore,
while the security guard should have observed the suspects and waited for the
police, rather than intervening directly to detain them, his breach of the store’s
security protocol did not bring his behaviour outside the scope of his employment.
Consequently, the defendant was vicariously liable for his negligence in
contributing to the risk of injury to the plaintiff.
c) Commentary
Cases on injuries to rescuers are rare in Irish law; the principal authority is
the IESC decision in Phillips v Durgan,57 which established that if a person
negligently creates a situation of danger with a reasonably foreseeable possibility
of a rescue attempt, then that person owes a duty of care to the rescuer
in respect of reasonably foreseeable injuries incurred during the rescue. The
assistance offered to the security guard in this case clearly comes within that
principle, though Philips was not cited; the plaintiff relied exclusively on a
renowned passage from the judgment of Cardozo J in Wagner v International
Railroad Company.58 Fortunately, Kelly J’s approval of the passage cited is in
keeping with the IESC’s approach in Phillips. The recognition and protection
of persons providing voluntary assistance has been addressed more generally
by the LRC Consultation Paper on Civil Liability of Good Samaritans and
Volunteers,59 which proposes the introduction of a statute restricting the liability
of such persons for injuries they cause to cases involving gross negligence
on their part. The reiteration of the protection of rescuers as plaintiffs by Kelly
J in the present case is in keeping with the spirit of the protective attitude expressed
by the LRC.
56 € 40,000 for pain and suffering to date; € 10,000 for pain and suffering in the future; € 28,000
for loss of income and € 3,201 for agreed special damages.
57 [1991] ILRM 321, relying on the House of Lords decision in Ogwo v Taylor [1988] AC 431.
58 [1921] 232 New York Court of Appeals Reports (NY) 176.
59 LRC CP 47-2007, see also The Report of The Taskforce on Active Citizenship (2007), a report
to the Government, (last accessed 14 April 2007) available at http://www.activecitizen.ie/
UPLOADEDFILES/Mar07/Taskforce%20Report%20to%20Government%20(Mar%2007).pdf.

Front 9

Wildgust and Carrickowen Ltd. v Norwich Union Ltd. Supreme
Court, 22 March 2006, [2006] IESC 19; [2006] 1 Irish Reports (IR)
570; [2006] 2 Irish Law Reports Monthly (ILRM) 28: Negligent
Misstatement16

Back 9

a) Brief Summary of the Facts
The first plaintiff and his wife obtained a policy of life insurance from the defendant,
which was assigned to a third party – Hill Samuel Merchant Bankers –
in connection with a loan obtained from Hill Samuel by the second plaintiff,
a company owned by the first plaintiff and his wife. In March 1992 the direct
debit from the first plaintiff’s bank was not paid and the life policy lapsed.
The first plaintiff became aware of this in June 1992, the delay resulting from
a bank strike and a postal strike. In April 1992 Hill Samuel contacted the defendant,
having become aware of the lapse in payment, but was incorrectly
informed that an alternative payment had been made by the first plaintiff. Hill
Samuel would have paid the premium in order to preserve the policy. The first
plaintiff’s wife died in early 1993, but the defendant refused to pay out on the
lapsed policy. The plaintiffs sued, claiming that they suffered financial loss
as a result of a negligent misstatement by the defendant. The plaintiffs’ claim
failed in the IEHC on the ground that it would not be reasonable to impose a
duty in respect of a plaintiff who was not the recipient of the statement, had
no knowledge of the statement being made to a third party and had placed no
reliance on the statement. The plaintiffs appealed to the IESC.

b) Judgment of the Court
The IESC upheld the appeal. Geoghegan J noted that the distinction between
negligent misstatements and other forms of negligence and the special control
factors used by the English courts to determine the duty question in respect of
statements were principally directed at preventing indeterminate liability. As
there was no immediate indeterminacy problem in the case at bar, there was
no need for an Irish court to adopt those particular controls. He noted that,
while personal reliance on a misrepresentation was usually present in cases of
negligent misstatement, it was not an essential prerequisite to liability. He also
took guidance from cases on liability for negligent performance of services,
which are closely comparable to misstatement cases, but where personal reliance
is often absent.17 The facts here disclosed a sufficiently proximate or
special relationship between Mr. Wildgust and Norwich Union; the harm was
reasonably foreseeable and it was fair in the circumstances to impose a duty
on the defendant.
Kearns J, in a similar vein, found that Mr. Wildgust and Hill Samuel “were
both within a limited and determinate class of persons with a direct interest in
the transaction” and so were neighbours for the purposes of a duty of care. He
further noted that the House of Lords, in Spring v Guardian Insurance plc,18
had accepted that liability could arise from third party reliance on a misrepresentation.
Denham J concurred with both judgments.
c) Commentary
The IESC decision is to be welcomed, inasmuch as it emphasises that personal
reliance is not an essential prerequisite to the existence of a duty of care in
cases of negligent misstatement. Conceptually, reliance serves a causal function
in such cases and it should not matter whether the reliance is that of the plaintiff
or a third party, as long as the manner in which the statement is likely to
give rise to a loss to the plaintiff can be readily anticipated by the defendant.19
Anther welcome feature of the decision is that it aligns negligent misstatement
more closely with the general duty of care in negligence as a whole.
While both judgments acknowledge that there is a discrete line of authority
on negligent misstatements, in addition to those authorities they both
employ general negligence principles derived from the neighbour principle in Donoghue v Stevenson,20 as clarified in Caparo Industries Ltd. v Dickman21
and Glencar Explorations plc v Mayo County Council22 and treat misstatement
as a defined sub-category of the broader principle. On the narrower question
of whether the application of the law to the facts was correct, one could argue
for the exclusion of a duty on the basis of self-responsibility. The issue was not
directly addressed in either judgment, but it could be argued that the plaintiff
had constructive knowledge of the problem and was in a position to remedy the
situation himself and so, as a matter of policy, should not be owed a protective
duty by a third party. The plaintiff had, after all, been contacted by Hill Samuel
about the problem in April and could have checked directly with the defendant
at that point. The plaintiff’s belief that he had three months’ spare premium
paid on the policy was based on an earlier overpayment to the defendant, but
this had been repaid (albeit to his companies’ account, rather than his personal
account). Counter to this, it could be argued that the courts will not take such
a drastic line against private individuals dealing with seasoned corporations.
Historically, the Irish courts have shown a reluctance to deny a duty of care on
the basis that the plaintiff was in as good a position as the defendant to provide
the necessary protection against the loss.23 A rare example of an outright denial
of duty is John c. Doherty Timber Ltd. v Drogheda Harbour Commissioners.
24 In this case the defendant gave the plaintiff permission to leave goods
on its property and the plaintiff sued for loss caused when vandals damaged
the goods. The IEHC held that the defendant was not under a duty to provide
security measures to protect the plaintiff’s goods, as the plaintiff could readily
anticipate the risk and take appropriate measures. Wildgust can be distinguished
from Doherty on the basis that there was a prior relationship between
the parties and a positive contribution to the risk by the defendants in Wildgust,
whereas in Doherty there was no relationship between the parties, other than a
bare permission to permit the goods to be left on the property, and the plaintiff
was seeking to impose an affirmative duty on the defendant.




17 He cited Wall v Hegarty [1980] Irish Law Reports Monthly (ILRM) 124 and White v Jones
[1995] 2 Law Reports, Appeal Cases (AC) 207.
18 [1995] 2 AC 296, involving a reference to a prospective employer of a former employee.
19 On the causal function of reliance see C. Witting, Liability for Negligent Misstatements (2004)
[9.75] ff.; E. Quill, Maintaining the Distinction Between Duty and Liability (1998) 20 Dublin
University Law Journal (DULJ) 183 at 191 ff. The matter is more fully considered in the context
of fraudulent representations, see H.L.A. Hart/T. Honoré, Causation in the Law (2nd ed. 1985)
192–194; C. Rendell/M. Percival, Deceivers Ever: A Tale of Two Shopping Centres (1999) 7
Tort Law Review (Tort L Rev) 24; Levy v Langridge (1838) 4 Meeson & Welsby (M & W)
337; Edgington v Fitzmaurice (1885) 29 Law Reports, Chancery Division (Ch D) 459; Gould
v Vaggelas (1985) 157 Commonwealth Law Reports (CLR) 215; also the judgment of Lord
Wensleydale in Smith v Kay (1859) House of Lords Cases (HLC) 750.

14 Quill (fn. 2) no. 1–2.
15 E. Quill, Ireland, in: H. Koziol/B.C. Steininger (eds.), European Tort Law 2001 (2002) no. 1 and
no. 93–95.
16 http://www.bailii.org/ie/cases/IESC/2006/S19.html. Noted by R. Ryan/D. Ryan (2006) 1 (3)
Quarterly Review of Tort Law (QRTL) 13

20 [1932] AC 562.
21 [1990] 2 A.C. 605.
22 [2002] 1 Irish Reports (IR) 84; noted in Quill (fn. 15) no. 3–5; R. Byrne/W. Binchy, Annual
Review of Irish Law 2001 (2002) 554 ff.
23 It is more usual for the courts to find contributory negligence on the plaintiff’s behalf, allowing
for an apportionment of responsibility between the parties, see B.M.E. McMahon/W. Binchy,
The Law of Torts (3rd ed. 2000) [2.26].
24 [1993] 1 IR 315; see also E. Quill, Torts in Ireland (2nd ed. 2004) 29 ff.

Front 10

Sheridan v Kelly & McDonald IESC, 6 April 2006, [2006] IESC 26;
[2006] 1 IR 314: Trespass, Negligence, Right to Jury Trial25

Back 10

a) Brief Summary of the Facts
The plaintiff claimed that he was repeatedly sexually assaulted by the first
defendant, a Christian Brother and principal of the school that the plaintiff attended.
The second defendant was sued in a representative capacity on behalf
of the religious organisation. The pleadings included claims for trespass to
the person, negligence and breach of constitutional rights; the claim against the second defendant included both vicarious and direct liability. The plaintiff
sought trial by judge and jury, but the second defendant sought and was granted
a motion transferring the case to the personal injury list to be tried without
a jury. The plaintiff appealed.
b) Judgment of the Court
The IESC allowed the appeal and found that the plaintiff was entitled to a trial
before a jury. Sec. 1(1) of the courts Act 1988 abolished juries in IEHC actions
“in respect of personal injuries to a person caused by negligence, nuisance
or breach of duty”. Sec. 1(3) preserved the jury trial for cases of intentional
trespass to the person. Subsec. (3)(b) applies to cases where the trespass claim
is accompanied by a claim for another cause of action “in respect of the same
act or omission” and only allows the court to refuse a jury trial if it appears
that it is unreasonable to claim damages for trespass. The dispute between the
parties centred on whether the different claims arose “in respect of the same act
or omission”. The second defendant argued that the claim of direct negligence
in failing to control or supervise the first defendant amounted to different conduct
and so was not “the same act or omission” on which the other claims
were based. Fenelly J, for the court, held that since all of the harm for which
compensation is claimed stemmed originally from the acts of the first defendant,
the provisions of subsec. (3)(b) were sufficiently satisfied and, since the
propriety of a trespass claim could not be seriously disputed if the plaintiff was
able to substantiate the allegations made, the plaintiff’s entitlement to a jury
trial was sufficiently made out. The fact that there was some further conduct,
compounding the effects of the original acts complained of, was not sufficient
to bring the case outside of the parameters of the subsection, so as to deprive
the plaintiff of the right to a jury trial.
c) Commentary
The decision is consistent with the legislative intention to preserve the right
to jury trials in respect of intentional trespasses. It would be incongruous if
the liability of a secondary party, such as an employer, were to bring a clear
trespass case outside the parameters of the provision for jury trials merely because
some aspects of the facts alleged were not precisely those giving rise to
the trespass claim. The claim against the employer is clearly linked closely
with the trespass claim and a close parsing of the statutory provision, so as to
exclude a jury trial would be inappropriate. The result of a contrary decision
would probably force plaintiffs to bring separate proceedings against perpetrators
and their employers, in order to ensure the availability of a jury trial
against the perpetrator and this could run counter to the efficiency of having all
matters raised in a single trial.
Of course jury trials are not without difficulties of their own, as was highlighted
in a different context in the criminal case of Director of Public Prosecutions
(DPP) v Nally.26 In this case the accused was on trial for murder, arising out of an incident at his farm, where he fought with an intruder in his back yard,
and shot him twice with a shotgun. The first shot was allegedly accidental; a
struggle then ensued, in which the intruder displayed considerable force and
fighting experience; the accused struck the intruder numerous times with a
length of wood and fractured one of the man’s arms. As the intruder fled, the
accused went to a shed to obtain cartridges for his shotgun and pursued him
onto the public road, where the fatal shot was fired from a distance of a few
yards. The trial judge, on an application from the DPP had directed the jury to
find the accused guilty of either murder or manslaughter. On appeal the Court
of Criminal Appeal (IECCA) ordered a retrial, as the judge’s direction was in
contravention of an earlier IESC ruling that where an accused pleaded self-defence,
the issue had to be left to the jury; although the judge could give strong
guidance to the jury on an appropriate verdict, the possibility of acquittal could
not be removed by judicial direction. On his retrial, the accused was acquitted.
27 The acquittal reflects a very different view of the defence of reasonable
force, applicable in both criminal and civil law, compared to judicial rulings
on the matter. Traditionally, the courts have accepted that force may be used to
protect one’s person (or property), provided the force used is proportionate to
the perceived risk.28 The most favourable view of the cases would require the
defendant not to act recklessly, as measured by an objective standard. It seems
unlikely that a judge would rule that taking the time to retrieve ammunition
to reload, following the intruder out into the public road and shooting from
close range was proportionate, even though the initial threat was significant
and there was a reasonable prospect of later reprisal. On the facts presented,
the accused’s behaviour was intentional, or at least objectively reckless. While
his behaviour may have been subjectively proportionate, none of the cases support
a subjective standard of care. Differences in civil procedure, compared to
criminal procedure, may permit an appellate court to overturn such a jury ruling
were it to arise in a civil claim arising out of similar facts, though there is a
dearth of authority on the subject, as trespass actions are exceedingly rare.29
27 The jury verdict is reported in the Irish Times, 15 December 2006; see http://www.ireland.com/
newspaper/ireland/2006/1215/1165222087669.html (accessed 16 March 2007). Similarly, in a
criminal prosecution arising out of damage to an American plane at Shannon airport, a group of
protesters against the war in Iraq were acquitted by a jury; reported in the Irish Times, 25 July
2006; see http://www.ireland.com/newspaper/breaking/2006/0725/breaking37.htm (accessed
26 July 2006).
28 Gregan v Sullivan [1937] Irish Jurist Reports (Ir Jur Rep) 64; in this case a man in his thirties
was struck on the lip by a 65 year old man and responded by inflicting 13 puncture wounds on
the arms of the older man with a pitchfork, breaking one arm. A jury verdict of self-defence
in favour of the younger man was overturned on appeal. Ross v Curtis unreported IEHC, 3
February 1989; the defendant was not held liable for injuries inflicted by a misdirected warning
shot, fired from a lawfully held rifle. The plaintiff was one of a number of intruders on the
defendant’s premises in the early hours of the morning and had continued to advance towards
the defendant in the darkness after the defendant had issued a verbal warning.
29 For an introduction to Irish civil and criminal procedure, see R. Byrne/J.P. McCutcheon, The
Irish Legal System (4th ed. 2001) chap. 6. See also sec. 96 of the Courts of Justice Act 1924
governing civil appeals from jury trials, which permits a verdict to be overturned where it “was
against the weight of the evidence or was otherwise perverse.”

26 [2006] IECCA 128; http://www.bailii.org/ie/cases/IECCA/2006/C128.html.

Front 11

European Chemical Industries Ltd v MC Bauchemie Müller GmbH
IESC, 14 March, 2006, [2006] IESC 16; [2006] 2 ILRM 19:
Concurrent Wrongdoers, Contribution30

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a) Brief Summary of the Facts
The plaintiff/respondent in these proceedings, ECI, was a defendant in proceedings
taken by a Mr. D and sought to have the defendant/appellant, Müller,
joined as a third party to those proceedings. Müller successfully resisted that
attempt on the grounds that the notice of joinder was not served “as soon as is
reasonably possible”, as required by the governing legislation.31 Having failed
to have Müller joined as a third party to the original proceedings, ECI then instituted
separate proceedings for contribution and the IEHC set out two issues
for preliminary hearing to determine whether such separate proceedings were
permissible. The first issue was whether the defective attempt to attach Müller
to the original proceedings necessarily precluded the institution of separate
proceedings. If not, the second question was whether the failure of that application
should constitute grounds for exercising the judicial discretion to refuse
to allow the separate proceedings. The IEHC answered no to both questions
and held that the separate proceedings should be allowed to proceed. Müller
appealed to the IESC.
b) Judgment of the Court
The IESC upheld the IEHC ruling on the first question and held that the separate
proceedings were not necessarily precluded, but overturned the IEHC ruling
on the second question. The relevant statutory provision reads as follows;
“(1) A concurrent wrongdoer who is sued for damages or for contribution and
who wishes to make a claim for contribution under this Part –
(a) shall not, if the person from whom he proposes to claim contribution is already
a party to the action, be entitled to claim contribution except by a claim
made in the said action, whether before or after judgment in the action; and
(b) shall, if the said person is not already a party to the action, serve a thirdparty
notice upon such person as soon as is reasonably possible and, having
served such notice, he shall not be entitled to claim contribution except under
the third-party procedure. If such third-party notice is not served as aforesaid,
the court may in its discretion refuse to make an order for contribution against
the person from whom contribution is claimed.”
The first question concerned the first sentence of paragraph (b) and considered
whether the failed notice triggered the preclusion of separate proceedings. The
IESC held that a person who served an ineffective notice should be treated
in the same way as a person who had not served a notice at all and should be dealt with under the second sentence of paragraph (b).32 The second sentence
had previously been held by the IESC to mean that contribution actions could
only be taken by way of separate proceedings if contribution had been sought
in compliance with either sec. (a), or the first paragraph of sec. (b), but the
grounds for exercise of the discretion were not addressed in the earlier case.33
In the present case, the IESC held that, as the primary purpose of sec. 27 was to
encourage the gathering of all issues into a single set of proceedings wherever
possible, separate proceedings should be discouraged. In consequence, apart
from any question of prejudice to the defendant arising out of separate proceedings,
the trial judge’s discretion should be based on the justice of the case,
including the reasons for failure to comply with the procedure for third-party
joinder and the presumption should be against separate proceedings being permitted.
Geoghegan J, delivering the judgment of the court, expressed the matter
as follows; “[i]f there was no good reason why a third-party notice could
not have been served in accordance with the Act, then, I would take the view
that in most cases, irrespective of any question of prejudice, the new proceedings
should be rejected. There may be exceptional cases in which as a matter
of justice the action should not be rejected on that account alone. Otherwise,
a clear obligation to adopt a third-party procedure could become hopelessly
weakened to the point of being meaningless.” The case was remitted to the
IEHC to reconsider the exercise of discretion, in light of this ruling, bearing in
mind that factors considered and ruled upon in assessing reasonableness in the
third-party hearing would have to be considered res judicata.
c) Commentary
Given that the legislation governing concurrent wrongdoers has been operating
for 45 years, it is surprising that this is the first time the IESC has had to
directly address the crucial question of whether separate proceedings for contribution
may be taken by one wrongdoer against another. The interpretation of
the legislation by the IESC is doctrinally correct.34 Based on a literal interpretation
of the legislation, an outright bar on separate proceedings is not possible,
since the legislation clearly states that there is a judicial discretion to refuse a
contribution order. There must be some circumstances where that discretion
is not exercised. If the legislature had intended an outright ban, it would not
have provided for such discretion. The legislation did not, however, provide
any express criteria for the exercise of discretion and so a purposive approach
is required to discern the content of the provision. The IESC’s approach is
based on the general tenor of the legislation, which aims to consolidate all
issues into a single set of proceedings wherever possible. In light of that, it is
not surprising that the threshold required of a litigant to justify a second set of
proceedings is high.
32 Approving an earlier IEHC decision to the effect that the first sentence of paragraph (b) was
intended to apply to successful third-party notices only; McElwaine v Hughes, unreported IEHC
30 April 1997; Barron J.
33 The Board of Governors of St. Laurence’s Hospital v Staunton [1990] 2 IR 31.
34 Byrne/McCutcheon (fn. 29) chap. 14 provides comprehensive treatment of the tenets of statutory
interpretation in Irish law.


30 http://www.bailii.org/ie/cases/IESC/2006/S16.html.
31 Sec. 27(1)(b) of the Civil Liability Act 1961.

Front 12

L.O’K v L.H, The Minister for Education and Science, Ireland & The
Attorney General (AG) IEHC, 20 January 2006, [2006] IEHC 13:
Sexual Assault, Limitation of Actions, Vicarious Liability35

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a) Brief Summary of the Facts
The plaintiff alleged that she was sexually assaulted by the first defendant, who
was the principal of the school she attended, on a number of occasions in 1973.
Due to the psychological consequences, she did not become aware of the link
between the abuse and her ongoing psychiatric problems until June 1998. She
instituted proceedings on 29 September 1998. The first defendant did not contest
the allegations and a default judgment was obtained against him.36 At the
close of the plaintiff’s case against the State defendants, a non-suit was granted
in respect of allegations of negligence for not having procedures in place to
detect and prevent the abuse which occurred. The State defendants then argued
that the claim was statute barred, or alternatively that it should be dismissed
under the court’s discretion, due to undue delay. The State defendants also
denied being employers of the school principal and, consequently, were not
vicariously liable for his actions.
b) Judgment of the Court
On the limitations issues, deValera J ruled that sec. 3 of the Statute of Limitations
(Amendment) Act 1991 was applicable and, consequently, the time period
for initiation of a claim did not commence until June 1998, so the plaintiff’s
proceedings were in time. He further held that the delay between the
occurrence of the incidents and the initiation of proceedings did not prejudice
the defendants, as the factual allegations were not contested and the dispute
centred entirely on issues of law. On the question of vicarious liability,
deValera J followed the IEHC decision in Delahunty v South Eastern Health
Board and Others37 and held that the relationship between the Minister and
the first defendant was not that of an employer and employee and so the State
defendants could not be found vicariously liable for the first defendant’s
behaviour. On a final point, deValera J ruled that claims for interference with
the plaintiff’s constitutional rights to bodily integrity and privacy could not be
used to circumvent the effects of the application of principles of tort law to the
facts of the case.38
c) Commentary
The rulings in relation to the limitation of actions, dismissal of claims and the
constitutional issues are correct in substance, though there may be a technical
issue with respect to the applicable legislation in the case of the limitations is sue. The judgment does not clearly articulate all of the claims made, but some
at least appear to involve intentional trespass. The 1991 Act applies to claims
“in respect of personal injuries to a person caused by negligence, nuisance or
breach of duty” and that phrase has been held not to include claims for trespass
to the person.39 However, even if the 1991 Act did not apply, the plaintiff
would be entitled to an extension of time under the Statute of Limitations
(Amendment) Act 2000. This Act provides that psychological injury resulting
from childhood sexual abuse constitutes a disability for the purposes of sec. 49
of the Statute of Limitations 1957, delaying the running of time against the
plaintiff until the disability has ceased. Under this provision June 1998 would
still be the effective date for the beginning of the running of time.
The ruling on the absence of vicarious liability on the part of the State is more
problematic. The State has taken contrasting positions in recent cases arising
out of abuse in schools and those from residential institutions, denying vicarious
liability in the former category, while accepting it in the latter.40 On the
face of it, both services historically were provided and paid for under similar
structures; the State financed the service and provided a supervisory regime to
ensure maintenance of standards, but the day to day management and delivery
of the services was provided by private bodies, which were often religious
institutions.41 The difference in approach by the State is not clearly articulated
in the cases, but may stem from its differing constitutional functions in respect
of education on the one hand and supplanting the parental role in exceptional
cases on the other. Primary constitutional responsibility for education is placed
on parents, with the State being given a facilitative and regulatory role.42 In
respect of children affected by a serious and lasting breakdown of parental
responsibility, there is a mandatory responsibility on the State to intercede and
protect children.43 Thus, while both educational and residential services were
delivered via independent contractors, its position in tort differed. In respect
of schools, the facilitative nature of the State’s role suggests that it can rely on
the normal rule of not being vicariously liable for independent contractors. The
mandatory nature of its obligations in respect of children in need of protection
supports the view that the obligation is non-delegable; thus, performance of
the task may be contracted out, but legal responsibility for the manner of delivery
cannot thereby be evaded. Residential institutions also exercised juvenile
justice functions, which differ again from both of the educational functions discussed. The administration of justice is plainly a core State function and
must surely be regarded as non-delegable. The State’s position with respect to
schools is consistent with established rules on vicarious liability, since control
has been a central feature in determining a sufficient relationship and financial
arrangements have generally been disregarded.44 The degree of State involvement
in education raises serious questions as to whether it is truly comparable
to established categories of cases and whether an absence of responsibility
is sustainable. The foregoing hypothesis masks some further inconsistency in
the State’s position, in that it initially disputed vicarious liability for workers
in residential institutions. In the Delahunty case, cited by the IEHC, the claim
related to a residential institution, yet the State successfully argued that it was
not the employer of the perpetrator of the abuse. The result in the case could
still be justified on the basis that the plaintiff was not a resident of the institution,
but a visitor and so not the beneficiary of a non-delegable duty; however,
this was not articulated as the basis for the decision. The change in approach by
the State in residential institutions cases and its refusal to do likewise in respect
of schools is difficult to fully rationalise.


39 Devlin v Roche [2002] 2 ILRM 192, noted in E. Quill, Ireland, in: H. Koziol/B.C. Steininger
(eds.), European Tort Law 2002 (2003) no. 12–14.
40 See, for example, Connellan v St. Joseph’s Kilkenny & Others [2006] IEHC 119, where the
State conceded vicarious liability (it did, however, contest the occurrence of some of the instances
of abuse alleged by the defendant). The State also established a statutory compensation
scheme for persons abused in residential care under the Residential Institutions Redress Act
2002.
41 Now residential services are provided directly by the State, either through the health service in
respect of orphaned and abandoned children or the prison service in the case of juvenile offenders.
42 Art. 42 (1) establishes parental responsibility; Art. 42 (2)–(4) and Art. 44 (2) (4) set out the role
of the State; see G.W. Hogan/G.F. Whyte (eds.), Kelly’s Irish Constitution (4th ed. 2003).
43 Art. 42.5, Hogan/Whyte (fn. 42) [7.6.226] ff.


35 http://www.bailii.org/ie/cases/IEHC/2006/H13.html.
36 The plaintiff was later awarded € 305,104 by the IEHC against the perpetrator of the abuse;
[2006] IEHC 393; made up of € 150,000 general damages to date, € 50,000 general damages
in the future, € 50,000 aggravated damages, € 50,000 exemplary damages and € 5,104 special
damages.
37 [2004] 4 IR 361.
38 Relying on the IEHC decision in W (No. 2) v The AG [1997] 2 IR 141.

44 Lynch v Palgrave Murphy Ltd. [1964] IR 150; Phelan v Coilte Teoranta [1993] 1 IR 20; see
McMahon/Binchy (fn. 23) [43.10] ff.; Quill (fn. 24) 497 ff.

Front 13

O’Gorman v Jermyn & Ors IEHC, 5 December 2006, [2006] IEHC
398: Medical Negligence; Causation45

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a) Brief Summary of the Facts
The plaintiff, a young man of 21 years of age, underwent a biopsy for an abdominal
complaint. His tissue sample was mixed up with another sent to the
laboratory in or about the same time. As a result, he was misdiagnosed as having
incurable stomach cancer and had his stomach removed. After the removal,
later analysis showed the stomach was not cancerous and the laboratory error
came to light. The plaintiff sued the hospital and all of the persons involved in
his diagnosis and treatment. The hospital and the laboratory staff denied that
the mix up amounted to a breach of duty and further argued that, even if they
had been in breach of duty, the surgeon’s failure to question the diagnosis and
conduct further tests broke the causal connection between their negligence and
the plaintiff’s injury.
b) Judgment of the Court
Lavan J found that the hospital and its laboratory staff were liable to the plaintiff.
The hospital defendants did not give any evidence, but rather submitted the
report of the expert it commissioned to investigate the incident. Due to a lack
of evidence as to which member or members of staff were actually negligent,
Lavan J could only conclude that the error arose in the pathology department
and all of the defendants from that department and the hospital itself were liable.
The surgeon was found not to have been negligent; his reliance on the pathology
department was found to be reasonable, particularly so as the test that the other
defendants suggested he should have undertaken is less accurate than a biopsy.

c) Commentary
The decision accords with established principles. The mix up in the samples
must be presumed to be negligent, unless the defendants tender an adequate
explanation as to how else it may have occurred.46 Negligence on the part of
the surgeon is difficult to infer; it was alleged by the other defendants that the
rarity of the condition diagnosed,47 along with disparities between the diagnosis
and the symptoms presented and the availability of an alternative diagnostic test
all pointed to negligence. The suggested alternative diagnostic test was less accurate
than the one the surgeon believed had already been conducted, so a result
contrary to the biopsy might have been discounted in any case. Inconsistency
between symptoms and diagnosis would principally be a matter for the specialist
making the diagnosis and so, as a general rule, would not be something one
would expect the surgeon to question. This then leaves the rarity of the condition
as a ground for doubting the diagnosis; a legal test that requires surgeons
to doubt a diagnosis simply on grounds of the rarity of the condition could lead
to chaos in the health service. Surely the point of having a specialist department
for investigation and diagnosis is to take the responsibility away from the surgeon,
leaving him to trust the information provided by those specialists. While
there may be exceptional cases warranting a departure from this view, the current
case could not be regarded as such, in light of the fact that the hospital failed to
provide the court with any direct evidence of its procedures or the history of the
relationship between its surgeons and the pathology department. Even if there
had been negligence on the part of the surgeon it would be difficult to regard this
as completely exonerating the pathology department.48
An unseen, but central, element behind this dispute is the funding of medical
negligence claims in Ireland. The hospital and doctors each carry their own
coverage for their legal liabilities and the attempt to place the blame on the
surgeon was plainly an attempt to shift the financial responsibility on to his
indemnifier and away from that of the hospital. Since 2001 the State has been
seeking to introduce an enterprise liability scheme under which the hospitals
would carry liability for all medical malpractice cases in respect of patients in
their care, ending the duplication of indemnification and simplifying claims
by getting rid of the type of disputes seen in this case.49 A stumbling block has
been a lack of agreement between the government and the consultants over
historical liability (i.e. liability for cases where the malpractice incident was prior to the beginning of the scheme). The consultants were concerned that if
they were no longer paying premiums, they would no longer receive indemnity
for past events and so would be personally liable in such cases and face potential
bankruptcy. This view stemmed from the fact that their indemnity cover
is provided by mutual associations, rather than insurers, so indemnification is
discretionary and may be conditional on continued membership. This concern
has been borne out by the IESC decision in Barry v Medical Defence Union,
where it was held that the defendant was not contractually bound to indemnify
the plaintiff against civil liability or the cost of disciplinary hearings.50 The
only obligation on the defendant was to act fairly in making a determination
on whether to give discretionary assistance in a given case. The net result is
that the enterprise liability scheme is not yet operational and disputes between
hospitals and doctors on the allocation of responsibility continue, adding significantly
to the time and cost of cases. The result is that the plaintiff in the
current case, arising out of an operation on 19 March 2002, had to wait almost
4 years for resolution of what should have been a straightforward case.
46 The presumption either arises as an inference under the maxim res ipsa loquitur, or on the basis
of a reversal of the burden of proof on the grounds of the defendant’s superior capacity to establish
what happened. These two grounds have become somewhat intermingled in Irish case law,
see Quill (fn. 24) 441 ff.
47 Of the order of 1 in a hundred thousand.
48 For further consideration of the novus actus interveniens principle of legal causation in Ireland
see McMahon/Binchy (fn. 23) [2.24] ff.; Quill (fn. 24) 407 ff.
49 The State’s position is set out in B. Phelan, The Road To Enterprise Liability (Conference Paper
by a Principal Officer from the Department of Health and Children delivered at a conference
hosted by Hayes & Sons Solicitors, The Challenge of Change: Medical Indemnity in the 21st
Century, Dublin 16 February 2001). The proposed scheme is similar to those operating in the
UK, Australia and the USA.

Front 14

O’Keeffe v Hickey, The Minister for Education & Science, Ireland
and the AG, 19 December 2008, [2008] Irish Supreme Court (IESC)
72:2 Vicarious Liability; Conditions for a Sufficient Employment
Relationship

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a) Brief Summary of the Facts
The plaintiff was sexually abused when she was 8–9 years old by the school
principal of the primary school she attended; the abuse occurred during music
lessons, after school. She obtained € 53,000 from the Criminal Injuries Compensation
Tribunal (which does not give compensation for pain and suffering).
She also instituted tort proceedings against the perpetrator and the state, but
not the school manager, its management board or the Catholic Church.3 The first defendant did not dispute the case and judgment was obtained against
him; however, as a retired teacher with no significant means, he was unable to
pay much, if any, of the amount awarded against him. The state was granted
a non-suit in respect of negligence in not detecting and preventing the abuse
from occurring. In the trial court, the state’s pleas that the action was statute
barred or that there was undue delay in proceeding with the claim were both
rejected, but the state was relieved of vicarious liability for the first defendant’s
tort on the basis that it was not his employer.4 The plaintiff appealed to the
IESC against the ruling on the vicarious liability issue; there was no cross appeal
on the limitation of action or delay issues.
b) Judgment of the Court
The IESC upheld the IEHC decision that the state is not the employer of a
school teacher and so, is not vicariously liable for abuse of the plaintiff by the
first named defendant. While the state paid for the running of such schools,
including teachers’ salaries, set the academic syllabus (except in respect of
religious education), established qualification requirements for teachers, inspected
the schools and had a role in disciplinary processes, it was not involved
in the day to day management of the school. The school manger had
day to day management of the school’s affairs, in particular, the hiring and
firing of teachers. While the state has a constitutional obligation to provide for
free primary education, this has always been treated as distinct in law from a
direct obligation to provide such education and is regarded as an obligation
to have sufficient measures in place to ensure provision, which is satisfied by
financing third party provision of education.5 Relying on the well established
position in previous cases that financial arrangements are distinguishable from
other facets of the employment relationship for vicarious liability purposes and
that control is the core factor for establishing a sufficient relationship for the
purpose of determining tortious responsibility, the IESC, by a 4–1 majority,
held that the state was not the perpetrator’s employer.6
c) Commentary
The outcome of the case is not particularly surprising, if a little disappointing,
in not taking the opportunity to review the application of the control test for
the existence of a sufficient relationship for vicarious liability purposes. The
test has proved difficult to apply in some instances and has been the subject of much academic critique throughout the common law. The majority diverged
on the precise interpretation of the test. The more restricted view of control,
looking at the actual control exercised, was expressed by Hardiman J. He
forcefully stated that “[v]icarious liability is a form of strict liability which can
be immensely burdensome on the party upon whom it is imposed. It cannot in
my view justly occur at all except in a situation where the paying party said to
be vicariously liable has a real and actually exercisable power of control, in the
relevant area of behaviour, over the person for whom it is said to be vicariously
liable.” Historically, there have been many cases where vicarious liability has
been imposed in Ireland that would not satisfy this test, such as where an employer
has a theoretical entitlement to control that is not exercised in practice,
or where there is an employee with specialist skills, where the employer has no
more than administrative authority over the worker. In such cases, the personal
service element of the relationship is taken into account and persons doing the
vast bulk of their work regularly for the same entity are treated as employees
for vicarious liability purposes.7 Fennelly J refers to Hardiman J’s treatment of
control but expresses no clear view on whether he endorses it, but goes on to
refer to a lack of relationship in this case under “normal principles” of vicarious
liability. The Chief Justice (CJ), Mr. Justice Murray agreed with both judgments
on the absence of a relationship, while Denham J agreed with Fennelly
J on the issue. Geoghegan J, dissenting, found that the state’s role in education
went considerably beyond the financial and inspection aspects emphasised by
the majority and presented a much more borderline question on the classification
of the relationship between the state and the teacher. While he was
unwilling to hold that the state would have a sufficiently close relationship to
be vicariously liable for negligence in day to day matters, such as supervision
of children, it would have a sufficient relationship in respect of those facets of
a teacher’s behaviour that impinged on suitability to hold the position. This
more nuanced approach has not found favour; it is also probably fair to conclude
that the restrictive approach advocated by Hardiman J has insufficient
support and so, the approach to determining a sufficient relationship remains
unchanged. This makes the case of limited value as a binding authority outside
of the specific fact at issue – the relationship between the state and teachers is
insufficient to support vicarious liability. It is, nonetheless, significant as it is
the first IESC ruling on the specific issue and so, carries greater authority than
earlier IEHC rulings.
Of greater interest are the dicta on the scope or course of employment – i.e.
which tortious acts are sufficiently connected to a worker’s employment to
generate vicarious liability in the event of there being a sufficient employment
relationship between the worker and the defendant. The court was also divided
on this issue, but the majority expressed support for a broader interpretation
than that traditionally employed. Fennelly J found that other common law jurisdictions
are converging in the development of a “close connection test”, which is heavily factually dependent and he acknowledged that there was an
element of enterprise liability theory involved in the interpretation of the scope
of employment; on the facts of this case he suggested that music lessons on the
school premises were sufficiently connected to the principal teacher’s employment.
8 Murray CJ concurred with Fennelly J on the issue, while Geoghegan J
based his decision on a broader policy footing, drawing on different facets of
the cases cited to the court.9 Hardiman J preferred to confine vicarious liability
within traditional bounds and stated that imposing liability in these circumstances
“would require an enormous revolution in the principles of vicarious
liability as applied in Ireland.” He also specifically denounced the judicial imposition
of liability on grounds of deep pockets or enterprise liability, stating
such an extension was best left to the legislature to decide upon. He was also
critical of the 1975 IESC decision in Moynihan v Moynihan,10 imposing vicarious
liability on an insured homeowner in respect of gratuitous domestic services
provided by her daughter – clearly a decision influenced by deep pocket
thinking. Fennelly J reserved his view on the correctness of Moynihan, as it
had no relevance to the case at hand and he described it as “based on highly
unusual facts”. In a similar vein, Geoghegan J described the decision as sui
generis and having no application to the current case. The court did not address
the difference in approach between the state’s position in respect of schools
and its position in respect of residential institutions (as noted in the commentary
on the IEHC decision in the 2006 Yearbook).11 Clearly there is divergence
on the precise parameters of vicarious liability in Ireland and on the proper
underlying rationale for its imposition. There is a sufficient suggestion that the
IESC is open to developing the boundaries of liability (at least on the scope of
employment issue, if not on the determination of an employment relationship)
to encourage plaintiffs’ lawyers to pursue novel claims on this front.
8 Reliance was placed on Bazley v Curry [1999] 2 Supreme Court Reports, Canada (SCR) 534;
Lister v Hesley Hall Ltd. [2002] 1 Law Reports, Appeal Cases (AC) 215 and New South Wales v
Lepore (2003) 212 Commonwealth Law Reports (CLR) 511; The IEHC dictum of O’Higgins J
in Delahunty v South Eastern Health Board [2003] 4 IR 361, also supporting this approach, was
approved; the finding of a lack of sufficient connection in that case (because the victim was a
visitor and not a child under the perpetrator’s care) was also approved. The common law developments
are analysed by P. Giliker, Comparative Perspectives on Vicarious Liability: Defining
the Scope of Employment, in: J. Neyers/E. Chamberlain/S.G.A. Pitel (eds.), Emerging Issues in
Tort Law (2007).
9 He relies in particular on McLachlin J in Bazley v Curry [1999] 2 SCR 534 and the subsequent
Canadian decision in Blackwater v Plint [2005] 3 SCR 3 (involving joint vicarious liability of
Church and state). He eschewed any narrow focus on the scope of employment, but was more
broadly concerned with the justice of the case.
10 [1975] IR 192; the decision was also criticised by the High Court of Australia (HCA) in Scott v
Davis (2000) 74 Australian Law Journal Reports (ALJR) 1410.
11 Quill (fn. 4) no. 24.

7 See for example Phelan v Coillte Teo (the state forestry company) [1993] 1 IR 20; Byrne v Ryan
[2007] IEHC 207, noted by E. Quill, Ireland, in: H. Koziol/B.C. Steininger (eds.), European Tort
Law 2007 (2008) no. 23–26.


of the school manager in the intervening period between the abuse and commencement of the
litigation, were offered as an explanation for the omission of the Church or school management
as defendants. This is not an entirely convincing explanation.
4 [2006] Irish High Court (IEHC) 13, noted by E. Quill, Ireland, in: H. Koziol/B.C. Steininger
(eds.), European Tort Law 2006 (2008) no. 21–24. The damages payable by the first defendant
were assessed at just over € 300,000.
5 The principal case on the constitutional role of the state in the field of education is Crowley v
Ireland [1980] Irish Reports (IR) 102; analysed in G.W. Hogan/G.F. Whyte (eds.), J.M. Kelly:
The Irish Constitution (4th ed. 2003) no. 7.6.248 ff.
6 Vicarious liability is considered in B.M.E. McMahon/W. Binchy, The Law of Torts (3rd ed. 2000)
chap. 43; E. Quill, Torts in Ireland (2nd ed. 2004) chap. 14; J. Healy, Principles of Irish Torts
(2006) chap. 2, sec. IV.

1 Safety, Health and Welfare at Work (Quarries) Regulations 2008 (Statutory Instrument (SI)
28/2008), which provides an extensive set of regulations (71 sections and 4 schedules) governing
the safe operation of quarries. Legislative materials can be accessed on the website of the
Attorney General’s Office (AG), http://www.irishstatutebook.ie/home.html.
2 The current cases in this report are available on the Irish Courts Service judgments database,
http://www.courts.ie/Judgments.nsf/Webpages/HomePage?OpenDocument&l=en and on the
British and Irish Legal Information Institute website, http://www.bailii.org/.
3 Many schools in Ireland are run by members of religious institutions and the local parish priest,
or in this case a priest acting on his behalf, would act as the school manager. The history of
the idiosyncratic structure of Irish schools’ management is set out in considerable detail in the
judgments of Mr Justices (JJ) Hardiman & Fennelly, in this case and is briefly referred to on the
judgment of Geoghegan J. Geoghegan J indicates that practical reasons, flowing from the death

Front 15

Grant v Roche Products (Ireland) Ltd. and Others, 7 May 2008, [2008]
IESC 35: Wrongful Death; Vindication of Rights as a Purpose of Tort
Law

Back 15

a) Brief Summary of the Facts
The plaintiff’s son was a 20 year old university student with no personal or
family history of depression. His general medical practitioner referred him to
a dermatologist, who prescribed a four-month course of treatment for acne,
using one of the Roche group of defendants’ products – Roaccutane. During
the treatment, the young man displayed behavioural changes and, in the final
week of the treatment, he committed suicide. The plaintiff instituted a fatal
injuries claim against the Roche defendants, the Irish Medicines Board and the
dermatologist. The Roche defendants offered to pay fatal injuries damages in
full and costs without admission of liability; the plaintiff refused the offer. The
Roche defendants sought dismissal of the claim as an abuse of process, as it
could generate no material benefit to the plaintiffs. The President of the High
Court (P), Mr. Justice Finnegan rejected the application and the defendants
appealed to the IESC.12
b) Judgment of the Court
The IESC rejected the appeal and found that vindication of rights was a form
of benefit, so the plaintiff was entitled to pursue the case to seek judicial determination
of whether the defendants acted wrongfully and he should not be
forced to accept the settlement offer. Hardiman J (Murray CJ and Geoghegan
J concurring) stated that “where a very young man has died by his own hand,
there is a manifest benefit to his father and other relatives in establishing, if it
be the case, that his death had an exogenous cause and was not the result of a
free decision on his part.”
c) Commentary
The decision clarifies some procedural points which may be of marginal academic
interest, but are of significant importance for practitioners. First, the
offer by the defendants was not a tender or lodgement within the procedures
set out in the rules of court; this does not, in itself, preclude the bringing of an
application to dismiss; the inherent jurisdiction of the court may be invoked.13
In the present case, the application was rejected on its substantive merits, not
on any procedural infirmity. The court went on to review several authorities on
the exercise of the jurisdiction to strike out; first, it reiterated the established
parameters for doing so on the grounds that the litigation has no prospect of
success and ruled that, while the current plaintiff would have a difficult task proving his case, his case was not obviously without any chance of success.14
The court then considered what would constitute a sufficient abuse of process
and accepted that it had expanded past its historical bounds of having an ulterior
improper motive for proceeding and also incorporated situations where
no material benefit could ensue.15 In a rare judicial foray into the conceptual
purposes of tort claims the court found that such claims were an important
part of the machinery by which the state can fulfil its constitutional mandate
to vindicate the personal rights of the people in respect of injustice.16 The defendant’s
argument that tort claims such as this were solely concerned with the
monetary remedy was rejected. The decision is to be welcomed, as it highlights
the importance of doing justice in public and prevents a powerful corporate
defendant from denying the victim’s family their day in court and using its
financial muscle to avoid the potential for setting a precedent in respect of
their liability.17 The view expressed on the purposes of a claim is similar to that
of the House of Lords in Ashley v Chief Constable of Sussex Police,18 but the
IESC does not cite that decision.

12 [2005] IEHC 161.
13 The court considered a number of cases on the right of access to the courts in reaching this decision,
including AA v The Medical Council [2003] 4 IR 302; Johnson v Gore Wood & Co. Ltd.
[2002] 2 AC 1; Ashingdane v UK (1985) 7 European Human Rights Reports (EHRR) 528 and
Fayed v UK (1994) 18 EHRR 393. It was also noted that there was an outstanding justiciable
issue between the parties about the classification (as costs or losses incurred) of some expenses
incurred by the plaintiff.

14 Leading cases include Jodifern Ltd. v Fitzgerald [2000] 3 IR 321; Conlon v Times Newspapers
Ltd. [1995] 2 Irish Law Reports Monthly (ILRM) 76; DK v King [1994] 1 IR 166.
15 The traditional scope of abuse of process can be found in Varawa v Howard Smith Company
Ltd. (1911) 13 CLR 35 and Williams v Spautz (1992) 174 CLR 509; the broader view is derived
from McSorley v O’Mahony unreported (unrep.) IEHC, 6 November 1996 (Costello J).
16 Art. 40.3.2 of the Constitution provides that “The State shall, in particular, by its laws protect as
best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good
name and property rights of every citizen.”
17 While the cost and expense of litigation was cited by the defendants as their reason for preferring
settlement, the avoidance of a judicial determination on the liability issue seems more plausible,
given that the Irish courts have a history of plaintiff friendly decisions; see for example
Best v Wellcome Foundation Ltd. [1993] 3 IR 462, contrast with Loveday v Renton [1990] 1
Medical Law Reports (Med LR) 117; both are discussed in R. Goldberg, Causation and Risk in
the Law of Torts (1999) chap. 4.
18 [2008] 1 AC 962, noted by N.J. McBride [2008] Cambridge Law Journal (CLJ) 461. On vindication
more generally, see N. Weitzleb/R. Carroll, The Role of Vindication in Torts Damages
(2009) 17 Tort Law Review (Tort L Rev) 16.

Front 16

Herrity v Associated Newspapers (Ireland) Ltd., 18 July 2008, [2008]
IEHC 249: Privacy19

Back 16

a) Brief Summary of the Facts
The plaintiff and her husband were going through a marriage breakdown. The
husband provided one of the defendant’s newspapers with information on a relationship
between the plaintiff and a priest; the paper ran a series of stories on
the relationship, including photographs of the parties and transcripts of phone
conversations, obtained by a private investigator acting for the plaintiff’s husband.
The plaintiff claimed damages for invasion of privacy.
b) Judgment of the Court
Dunne J confirmed the existence of an action for enforcement of the constitutional
privacy right against a private defendant. She accepted that there is a distinction between information that by its very nature is private and unsuitable
for disclosure to third parties and information which is susceptible to disclosure,
based on competing considerations; in respect of the latter, disclosure
may be actionable if unlawful means are used to obtain the information. The
present case was concerned with the second aspect. The recording of the phone
conversations amounted to a breach of sec. 98 of the Postal and Telecommunications
Services Act 1983, as the phone subscription was in the plaintiff’s sole
name, leaving her husband without the authority to give a valid permission for
the recordings. In addition to outlawing unauthorised recording, the section
also precludes disclosure of the information obtained. Dunne J ruled that this
legislative constraint on freedom of expression was one that could be taken
into consideration by the court in giving primacy to privacy over freedom of
expression. Having regard to the principles on the assessment of damages set
out by the IESC in Shortt v Commissioner of An Garda Síochána (the Irish
police),20 she awarded the plaintiff € 60,000 in ordinary and aggravated compensatory
damages and a further € 30,000 in exemplary damages.
c) Commentary
The decision is a welcome one, which builds on developing jurisprudence in
the field of privacy protection in Ireland. The judgment contains a thorough review
of Irish authorities on privacy and takes the next logical step in the development
of this field. The defendant argued that the invasion of privacy claim,
established in earlier cases, was confined to state liability and did not extend to
claims against private entities. Dunne J accepted that only the state had so far
been held liable for damages actions that had gone to a full trial, but noted that
the enforceability of privacy rights against private parties had been an underlying
assumption in a number of interlocutory proceedings.21 After reviewing
those decisions in detail, she concluded that an action for damages against
private entities is available in suitable circumstances. She did not engage in
any detailed consideration of the classification of the action, but treated it as
a straightforward breach of constitutional rights claim.22 Because this action
succeeded, she did not need to determine the other issues raised and did not
express any views on them. Those issues were protection of privacy under the
European Convention on Human Rights and Fundamental Freedoms, breach
of confidence, breach of statutory duty and conspiracy.
Dunne J’s distinction between information which is inherently unsuitable for
disclosure without permission and that which may be disclosed, depending on
a balance between competing considerations, is appropriate. The distinction
between the two may be difficult to delineate in practice, but the dividing line did not need to be drawn on the facts raised. She identified freedom of expression
and public interest concerns as relevant counter-considerations in the latter
category of case and acknowledged that freedom of expression was given
significant weight in previous cases; those cases show a preference for legislative
over judicially imposed constraints.23 On the present facts, the breach of
telecommunications legislation plainly exceeded any legitimate grounds for
publication. The story of a relationship between a married woman and a priest
may be of public interest and reporting it may legitimately come within the
newspaper and the husband’s realm of expression, but the inclusion of the
content of the calls could not be protected by those interests.
The amount of damages awarded is high compared to the amount awarded in
Gray v Ireland,24 where the plaintiffs were forced to move home as a result of
the invasion of privacy by the police; they had to live for a year in unsuitable
accommodation, and one of them suffered post-traumatic stress disorder over
a period of approximately seven years. Mrs. Gray, who suffered PTSD, was
awarded € 50,000, while her husband was awarded € 15,000. These awards
look particularly low in comparison to the award in the present case. It is submitted
that it would be more appropriate to balance the awards by raising the
levels in cases like Gray, rather than reducing them in cases such as the present.
As there were no awards for aggravated or exemplary damages in Gray,
these categories could be utilised as a vehicle to redress the balance.

20 [2007] IESC 9, noted by Quill (fn. 7) no. 4–8.
21 M v Drury [1994] 2 IR 8 and Cogley v RTE [2005] 2 ILRM 529 in particular. This does overlook
some Irish Circuit Court (IECC) trials on the liability of private parties (one of which was
upheld by the IEHC in an ex tempore judgment), see Quill (fn. 7) no. 21, fn. 37. For detailed
treatment of privacy in Ireland, with comparative analysis, see H. Delany/E. Carolan, The Right
to Privacy (2008).
22 The classification issue is discussed by Quill (fn. 7) no. 20–21.
23 See in particular M v Drury [1994] 2 IR 8, relying on Lord Justice (LJ) Hoffman (as he then
was) in R. v Central Independent Television Plc [1994] Law Reports, Family Division (Fam)
192.
24 [2007] 2 IR 654, noted by Quill (fn. 7) no. 18–22; R. Byrne/W. Binchy, Annual Review of Irish
Law 2007 (2008) 563 f.

Front 17

Fitzpatrick and Ryan v K and the AG, 25 April 2008, [2008] IEHC 104:
Battery; Capacity to Refuse Consent to Medical Treatment

Back 17

a) Brief Summary of the Facts
The plaintiffs were representatives of a hospital that admitted Ms. K, a 23 year
old non-national who did not speak English, as a maternity patient; she had
been receiving ante-natal care for over two months before being admitted for
delivery. After the delivery of her son, Ms. K suffered a major haemorrhage,
placing her life in peril, but she refused a blood transfusion on the grounds
that she was a Jehovah’s Witness; she had represented that she was Roman
Catholic when she initially registered with the hospital. Communication was
conducted through a friend of Ms. K’s (related via marriage), who acted as
an interpreter. Ms. K was temporarily stabilised by the use of artificial blood
products, but the hospital remained concerned that she might die if another
haemorrhage occurred. She continued to refuse a transfusion and, on the day
of the birth, the hospital applied ex parte to the IEHC for an order permitting
them to give a transfusion. Abbott J, in an ex tempore judgment, granted an
order permitting the hospital to give Ms. K all appropriate treatment, including
transfusions and clotting agents. The order was put into effect approximately an hour after it was issued; Ms. K recovered and she and her son were discharged
from the hospital a week later. The case then came on for a full trial
for declaratory relief by the hospital; a permanent injunction, in similar form
to the interlocutory order, was originally pleaded, but was not pursued since it
became irrelevant after Ms. K’s recovery and discharge. Ms. K counterclaimed
for trespass, breach of rights under the constitution and the European Convention
on Human Rights and Fundamental Freedoms and for various declaratory
reliefs. The Attorney General was added as a defendant in light of the potential
constitutional issues that might be raised.
b) Judgment of the Court
Laffoy J held that the treatment of Ms. K contrary to her wishes was lawful, as
she lacked sufficient capacity to validly refuse the treatment. The hospital was
granted declaratory relief in a more limited form of declaration than that sought
and the patient’s counterclaims were rejected. In arriving at her conclusion,
Laffoy J expressed the following principles as governing the situation; adult
patients are subject to a rebuttable presumption of having sufficient capacity to
accept or refuse medical treatment; a competent adult may refuse treatment for
any or no reason (even an irrational reason); the gravity of the consequences
are relevant to capacity, such that clear and convincing evidence on the issue is
required in cases of extreme consequences (such as life and death decisions);25
the patient lacks capacity if she “does not sufficiently understand the nature,
purpose and effects” of the proposed treatment.26 In answering this enquiry
“the question of capacity falls to be determined by reference to what was
known to the Hospital personnel at the time of her refusal about Ms. K’s condition
and her circumstances.” As Ms. K demonstrated a lack of understanding of
the gravity of her condition, the hospital was objectively justified in doubting
her capacity to refuse consent and so had not acted unlawfully.
c) Commentary
While the Irish courts have previously considered the question of who has the
power to give or withhold consent to medical treatment in the case of clearly
incompetent patients, such as a comatose individual,27 and in the context of young children,28 they have not previously had to consider the parameters of
capacity in a case involving a lucid patient, expressing a clear, if controversial
view. The test for capacity, derived from Re C, was accepted by all parties,
so the authority of this decision is more limited than it would have been had
there been contested argument on the issue. The manner in which the test was
applied to the facts of the case is uncontroversial, provided the test itself is accepted;
the patient expressed the view that her condition could be improved by
consumption of “tomatoes, Coca Cola, eggs and milk”, clearly demonstrating
a lack of appreciation of realistic options in the circumstances. In practice, the
dividing line between irrationality demonstrating a failure to properly assimilate
information (which affects capacity) and irrationality in making a decision
(which falls within a competent person’s autonomy) may be difficult to draw
in future cases; it may be particularly difficult in cases where a person’s faith
causes her to doubt that she is actually in danger, as opposed to a situation
where a person appreciates the danger, but because of her faith chooses to let
nature run its course for better or worse.29
A more controversial facet of the decision is that capacity is to be determined
by a standard of objectively justified doubt on the part of the medical staff,
based on the evidence available to them at the time the decision is made. It is
understandable from a practical point of view that medical personnel should
be free to act once they reasonably believe they are entitled to do so, but it is
an inroad into patient autonomy which may be questioned in the future. The
standard applied by Laffoy J may be appropriate in a negligence claim, but
historically trespass has given greater weight to the individual’s autonomy.
The decision is consistent with an earlier IESC decision made in the context
of informed consent to eschew the use of trespass in cases of medical error.30
However, even informed consent decisions in negligence are moving from a
reasonable doctor to a reasonable patient standard of measurement.31 Trespass
has an advantage, from the patient’s point of view, of being actionable per se.
Thus, the absence of harmful consequences would not preclude an award of
substantial damages for the violation of the patient’s rights.
On the question of the burden of proof, the proposition that there is a rebuttable
presumption of capacity would indicate that it is the hospital that should prove incapacity. However, on the issue of clear and convincing evidence in cases of
severe consequences, it is plain in the judgment that the burden is placed on
the patient to show competence. This paradox can be explained on the basis
that the burden normally rests with the hospital, but transfers to the patient
in cases of extreme consequences. This is, in part, a consequence of constitutional
jurisprudence that a high level of proof is required to demonstrate a
waiver of constitutional rights.32 If the patient is asserting that she was willing
to risk her life, thereby waiving her right to life, she must clearly demonstrate
this; it is not for the hospital to demonstrate that she had not waived the right.
The net effect of the rulings on standard of measurement and burden of proof
mean that in life and death situations the patient must convince a hospital (not
a court) that she is competent and it is not for the hospital to satisfy itself, or an
impartial adjudicator, that the patient lacks competence.
Given the ruling on competence, the court did not have to consider the more
vexed question of whether a competent adult’s decision can be outweighed by
countervailing constitutional considerations, such as the child’s rights. This
latter issue had formed the basis of Abbott J’s interlocutory ruling, as he had
presumed the patient to be competent. Furthermore, the question of the effect
of the European Convention rights did not require determination and no view
was expressed on them.
Finally, on the question of procedure, Laffoy J considered the propriety of the
ex parte application. Adopting the procedural guidelines set out by the English
Court of Appeal St. George’s Healthcare NHS Trust v S,33 she considered that
it was an irregular procedure, however its irregularity was not sufficient to constitute
a violation of Ms. K’s constitutional rights so as to set aside the order of
Abbott J. The patient’s provision of false information on her religion resulted in
the hospital facing an emergency situation, which could have been avoided; given
the predicament the hospital was faced with, Laffoy J held that an application to
the IEHC was justified and, while an inter partes hearing may have been preferable,
it would have been difficult to arrange representation for Ms. K at such short
notice. Other irregularities noted were the hospital’s failure to give an undertaking
in damages and that the provision on liberty to apply in respect of the order did
not fully recognise the patient’s right to seek variation or discharge of the order.34
In consequence, the order of Abbott J would not preclude Ms. K pursuing a claim
for damages if she had made out a sufficient case on the substantive issue. The
judgment finishes with helpful suggestions on putting proper procedures in place
to deal with such situations in the future, including hospital guidelines, a practice
direction for the IEHC and a state designated representative to carry out the functions
performed by the Official Solicitor in England and Wales in such cases. An
application by the representative body for Jehovah’s Witnesses in Ireland to be
heard as amicus curiae was earlier rejected by Clarke J in the IEHC.35
32 G v An Bord Uchtála (the adoption board) [1980] IR 32. Hogan/White (fn. 5) no. 7.1.68–7.1.78.
33 [1999] Fam 26.
34 The principles governing undertakings are set out in B. Kirwan, Injunctions: Law and Practice
(2008) no. 6.76–6.80 and 6.241–6.246.
35 Fitzpatrick and Ryan v K and the AG [2008] 1 ILRM 68.

28 W v North Western Health Board [2001] 3 IR 622; see E. Feldman, Informed Consent. Should
there be a Reasonable Parent Test? in: C. Craven/W. Binchy (eds.), Medical Negligence Litigation:
Emerging Issues (2008). The ex parte ruling by Abbott J and other ex parte hearings
concerning treatment of children are considered by N. Hayes, Religious Objections to Blood
Transfusions (2008) 102(1) Law Society Gazette (Gaz) 20.
29 A mental illness may similarly create a difficulty in drawing the line. In Re C, the patient had delusions
that he had a great medical career, but this was not adjudged to deprive him of the ability
to assimilate and assess the necessary information, though it may have led him to an irrational
decision; he was held to be competent and Thorpe J refused to order treatment. In NHS Trust v
T (Adult Patient: Refusal of Medical Treatment) [2005] 1 All ER 387; the patient’s belief that
blood was evil was regarded by Charles J as a sufficient “misconception of reality” to deprive
her of capacity for the purposes of the test.
30 Walsh v Family Planning Services Ltd. [1992] 1 IR 496.
31 Fitzpatrick v White [2008] 2 ILRM 99, noted by Quill (fn. 7) no. 15–18.


25 These propositions are based on dicta from In Re a Ward of Court [1996] 2 IR 79 and the English
Court of Appeal decision, per Lord Donaldson, in Re T (Adult: Refusal of Medical Treatment)
[1992] 4 All England Law Reports (All ER) 649.
26 Re C (Adult: Refusal of Medical Treatment) [1994] 1 All ER 819, per Thorpe J. Laffoy J also
noted the clarification offered by Dame Butler-Sloss P (as she then was) in Re B (Adult: Refusal
of Treatment) [2002] 2 All ER 449 and Butler-Sloss LJ (as she then was) in Re MB (Medical
Treatment) [1997] 2 Family Law Reports (FLR) 426, that the ability to understand should not
be confused with the basis for making the decision to refuse, the latter of which may stem from
a difference in values between doctor and patient.
27 In Re a Ward of Court [1996] 2 IR 79; see also Law Reform Commission, Consultation Paper on
Vulnerable Adults and the Law: Capacity (CP37-2005), particularly Chapter 7 on capacity to make
health care decisions. The final reform proposals are in the Report: Vulnerable Adults and the Law
(LRC 83-2006); M. Donnelly, Assessing Legal Capacity: Process and the Operation of the Functional
Test [2007] 7(2) Judicial Studies Institute Journal 141; the Mental Capacity and Guardianship
Bill 2008, noted by H. Kennedy, (2008) 14(2) Medico-Legal Journal of Ireland (MLJI) 51.

Front 18

Dempsey v Waterford Corporation, 29 February 2008, [2008] IEHC
55: Private Nuisance; Public Authority Liability; Statutory Authority
Defence

Back 18

a) Brief Summary of the Facts
The defendant local authority was carrying out work on sewers in a major upgrade
of the service. In the course of connecting existing sewers to a new main
drainage system, sewage travelled through a disused 17th century brick culvert
into a room in the plaintiffs’ house, destroying an expensive parquet floor and
causing a noxious smell. The disused sewer did not appear on any maps or
other records of the defendant. The plaintiffs instituted proceedings, pleading
negligence, breach of statutory duty, trespass, nuisance and the Rylands v
Fletcher principle. The plaintiffs were successful in the Circuit Court and the
defendant appealed to the IEHC.
b) Judgment of the Court
Peart J allowed the appeal, holding that where a sewage leak was neither inevitable
nor negligent, but an unforeseen accident (in the pure sense of the term),
then no liability could attach. He ruled out trespass and breach of statutory duty
without further explanation and then considered the remaining three causes of
action. Negligence was ruled out due to the lack of a breach of the standard
of care; any duty imposed could not require “an exploratory digging of [the
street on which the plaintiffs lived] in order to confirm the existence or nonexistence
of such a culvert that they had no basis for suspecting might exist.”
Nuisance and Rylands v Fletcher were considered together and ruled out on
the basis that, to be liable for creating a nuisance, one had to have knowledge
of how one’s behaviour would be a nuisance. The defendant’s ignorance of the
presence of the old culvert precluded it from knowing that its works could be
a disruption to the plaintiffs in the manner which occurred.
c) Commentary
The decision is based on the following statement from a leading English practitioners’
text: “As the general rule is that no one is liable for nuisance unless
he either created it or continued it after knowledge or means of knowledge,
it follows that it is a defence to prove ignorance of the facts constituting the
nuisance, unless that ignorance is due to the omission to use reasonable care
to discover the facts.”36 Peart J held that this meant the defendant must have
knowledge of the likely interference via the disused drain at the time of acting.
Several difficulties arise from this interpretation of the statement and its
application to the facts. First, there is a question as to whether creating and
continuing should be considered disjunctively, with the statement in respect
of knowledge being confined to continuing (or adopting) a nuisance generated
by another? Liability in nuisance distinguishes between liability for creating
a hazard and liability for omissions, with a higher level of liability for the former,
so it is more consistent with authority to say that the knowledge requirement relates to the latter only.37 Even if knowledge of risk is required,38 surely
the general awareness that work on sewers may cause flooding in adjacent
premises suffices.39 The higher degree of knowledge on the defendant’s part
demanded here, that the precise means by which the harm may ensue must
be foreseen, brings the position closer to negligence than the traditional strict
liability of private nuisance for material damage caused by active conduct.40
A narrower ground for rejecting the plaintiffs’ claim would be the defence of
statutory authority.41 The case law provides such a defence where the nuisance
is an inevitable side effect of authorised works, but not where there has been
negligence in the conduct of the work; there is no clear authority on the present
type of case, where the disruption was neither inevitable nor negligent.
Extending the defence to the current scenario would have the benefit of protecting
public authorities (assuming that is considered to be appropriate), while
restricting the ability of private parties to avoid liability for disruption to neighbours
based on restricted risk awareness. A more general question raised by
the case is should a homeowner bear liability for the unanticipated side effects
of someone else’s activities? As between the actor and the victim, the greater
unfairness appears to lie in a finding of no liability. Where the actor is a public
authority, the fact that a private individual has to bear the cost of an accident
seems particularly odious. A home insurance policy may cover the material
losses, though this is not certain. Even if it does, it will not cover the disruption
caused to the use and enjoyment of the property, but only the material costs.

36 A.M. Dugdale (ed.), Clerk and Lindsell on Torts (18th ed. 2000) no. 19.66.
21
22

37 McMahon/Binchy (fn. 6) no. 24.72–24.84; Quill (fn. 6) 217–23; Healy (fn. 6) no. 10.36–10.37.
38 A view supported by J. Eekelaar, Nuisance and Strict Liability (1973) 8 Irish Jurist, New Series
(Ir Jur (ns)) 191 and more recently by M. Lee, What is Private Nuisance? (2003) 119 Law Quarterly
Review (LQR) 298. However, M.A. Vennell, The Essentials of Nuisance: A Discussion
of Recent Developments in The Tort of Nuisance (1977) 4 Otago Law Review (Otago L Rev)
56, cogently argues that foreseeability has historically had no part to play in nuisance by active
conduct causing material harm to land and should be confined to cases of interference with use
and enjoyment and nuisance by omissions.
39 In Gibbings v Hungerford [1904] 1 IR 211 the discharge of sewage was described by the Lord
Chancellor (C), Lord Ashbourne as a nuisance as well as a trespass, although the claim was for
trespass only.
40 The leading authorities on material damage are Halpin v Tara Mines Ltd. [1976–1977] ILRM
28 and Hanrahan v Merck Sharp & Dohme [1988] ILRM 629. Peart J’s approach mirrors that
taken in respect of the Rylands v Fletcher principle in Superquinn Ltd v Bray Urban District
Council and Others [1998] 3 IR 542, following Cambridge Water Co. Ltd v Eastern Counties
Leather plc [1994] 2 AC 264, discredited by the House of Lords in Transco plc v Stockport
Metropolitan Borough Council [2004] 2 AC 1.
41 As occurred in England in Marcic v Thames Water Utilities Ltd [2004] 2 AC 42. Leading Irish
authorities on the defence are Woodhouse v Newry Navigation Co. [1898] 1 IR 161; Guardians
of Armagh Union v Bell [1900] 2 IR 371; Wallace v McCartan [1917] 1 IR 377; Smith v Wexford
County Council (1953) 87 Irish Law Times Reports (ILTR) 98; Kelly v Dublin County Council
unrep. IEHC, 21 February 1986 and Superquinn Ltd v Bray Urban District Council and Others
[1998] 3 IR 542