Public Authorities I
Cases
Sunderland v Louth County Council
[1990] ILRM 658 (SC)
McCarthy J
The relevant facts
On 11 November 1976, the county council, pursuant to the Local Government (Planning and Development) Act 1963 (the Planning Act) granted to Michael McGreavey permission for the erection of a dwelling house at Mooretown, Dromiskin, Co Louth, subject to conditions which are not relevant. Mr McGreavey, who is an electrician employed by the ESB, and had no previous building experience, built a house with the aid of direct labour.
He carried out no check on the suitability of the site and, when the house was built, he decided to sell it. He then discovered that the planning permission did not apply to the site on which he had built the house and, pursuant to s 28 of the Planning Act obtained a permission for retention of the dwelling house on 24 July 1978. Mr and Mrs Sunderland, the plaintiffs, saw the house and had received a report on its condition from Fergus Flynn-Rogers, an architect. This was following on an inspection not a survey. The county council confirmed in a letter of 9 April 1979 to the plaintiffs solicitors ‘that in general the conditions of the planning permission granted have been complied with.’
The plaintiffs bought the house for £27,000; they also bought disaster. In late December 1979, following rain, the garden became flooded; the flooding continued until April 1980; sewage from the septic tank manhole began to escape into the garden and to float around the house; the lavatory bowl in the bathroom rose and at times the lavatory could not be used; water from the washing machine in the kitchen would empty through the waste pipe exit over a long period; the washing machine could not be used; the back garden could not be cultivated; there was a constant smell of dampness in the rooms. Pumping the water was useless; the fire brigade could do nothing. Flooding recurred in later years though to a lesser extent. Because of the refusal of an adjoining landowner to co-operate, the situation effectively cannot be remedied. The house is uninhabitable. The plaintiffs sued the builder and obtained a decree for £27,000; the builder is no mark. They sued the architect; the trial judge held that Mr Flynn-Rogers had done what he was engaged to do; that he had no responsibility to examine ordnance survey maps or the documents of the planning application or the planning permission; he was held not to be negligent and the action against him was dismissed.
The plaintiffs sued the county council as the planning (and housing, sanitary and health) authority for the administrative area in which the dwelling house is situated; the claim was dismissed and the plaintiffs appealed.
The grounds of appeal
The plaintiffs submit that:
(a) It is just and reasonable that a duty to the occupier should attach to the county council- see Ward v McMaster [1988] IR 337.
(b) A sufficient relationship exists between the plaintiffs and the county council to create such a duty – see Dorset Yacht Co Ltd v Home Office [1970] AC 1004, 1039.
(c) Damage can be foreseen to result from a want of care by the county council and there is no compelling exemption based on public policy.
By way of elaboration the plaintiffs argued that the grant of planning permission implies that the development will
(a) Comply with the county development plan, or, at least, not be at variance with it;
(b) not be in fundamental terms insanitary;
(c) not in fundamental terms amount to a public nuisance;
(d) not be an environmental hazard;
(e) not be de facto a health hazard;
(f) follow after a view of the premises for securing the foregoing.
The essential proposition is that a planning authority giving planning permission encompasses a duty of care to any person who may be affected and, in particular, a duty of care to an occupier. The authority, it is said, should have refused planning permission on the grounds that there was no effective drainage.
The county council denies that there is any such duty to a prospective occupier. The council argues that:
(a) The initial duty is on the developer.
(b) The grant of planning permission does not necessarily mean compliance by the developer; it only means that the council has considered the application and its own plan; the grant of permission is not a green light to proceed.
The council further argues that, since inspection by the plaintiffs’ architect did not reveal the defect, there could be no fault on the part of the planning authority in a like failure. Further, by analogy with Ward v McMaster, the plaintiffs did not rely upon the planning permission.
The Planning Act
…..
Whilst the plaintiffs allege a duty of care in the alternative under s 26 (grant of permission in respect of a different site) or s 28 (grant of permission to retain) my view, if it does exist, then it must exist under both sections. The dwelling was not erected on site No 5, the permission site, but on a new site which the trial judge has found was unsuitable for drainage by means of a septic tank; he has made no finding, for he was not required to do so, that the first site was also unsuitable. It follows that, if there was any breach of duty, it related solely to the new site in respect of which the permission to retain was granted. Before the grant, no inspection of the constructed house was carried out; there was no investigation of the site but an inspection was carried out by a planning assistant, who was a geographer or economist. The extent of the council’s examination of the application for retention may well be criticized if, and only if, the duty of the council extended so as to safeguard the interests of prospective occupiers of the dwelling as constructed. It is not suggested that the duty was owed to Mr McGreavey. It depends, therefore, on the relationship that existed between the plaintiffs and the council. Was it such as to establish a duty of care in favour of the plaintiffs as occupiers over and above such duty as rested upon the council in respect of the public as a whole, pursuant to the statutory obligations imposed on the council by the Planning Act. In my judgment, it did not; the absence of such a duty is fatal to the plaintiffs’ case.
In Siney v Dublin Corporation [1980] IR 400 a legal relationship of landlord and tenant existed between the parties; in Ward v McMaster a mortgagor-mortgagee relationship existed. True it is that the damage that was caused to the plaintiffs could be foreseen; but it would require that the council could reasonably foresee that a prospective occupier would not carry out an investigation to learn whether or not the site was suitable for drainage by means of a septic tank; that, equally, future purchasers would not carry out such an inspection. Both Siney and Ward were cases where the statutory duty of the local authority arose under the Housing Act 1966, an Act which is demonstrably and unequivocally designed towards the protection and improvement of the housing conditions of persons who are not able by their own resources to provide it for themselves. So also a number of the English cases cited – Dutton v Bognar Regis
UDC [1972] 1 QB 374; Anns v Merton London Borough [1978] AC 728; Governors of the Peabody Donation Fund v Sir Lindsay Parkinson & Co Ltd [1985] AC 210; Investors in Industry Ltd v South Bedfordshire District Council [1986] QB 1034 – were cases under the Public Health Act I 937, an Act directed towards the protection of the public health and welfare or, in the Peabody case, under the London Government Act 1963, which prohibited the erection of buildings unless drains were constructed to the satisfaction of the council.
The fundamental difference between what may be called planning legislation and housing legislation is that the first is regulatory or licensing according to the requirements of the proper planning and development of the area but the second is a provision in a social context for those who are unable to provide for themselves; if they are unable to provide for themselves then the duty on the providers reaches the role that would be taken by professional advisers engaged on behalf of the beneficiary. This is in marked contrast to the watch-dog role that is created under the Planning Act a watch-dog role that is for the benefit of the public at large. This is emphasised by the existence of the appeals procedure, formerly to the relevant minister of the government, assigned by him to a junior minister, and since 1976 carried out by the planning appeals board (An Bord Pleanala). The latter body has a national jurisdiction but must still deal with any planning appeal by the test of local standards the proper planning and development of the area. It would follow from the plaintiffs’ argument that there would be imposed upon the planning appeals board in the case of an application for retention of a dwelling house constructed without permission, a duty to carry out an examination of the drainage system including the suitability of the soil, presumably irrespective of whether or not the applicant for such permission had done so. Such a duty would lie upon the board as much in the case of a large scale housing development, and, presumably, separately in respect of each house, as it would for a single development such as here. The liability, whether it be of the planning authority or of the planning appeals board, would remain indefinitely towards any occupier.
I point to these consequences, not in terrorem but, rather, to seek to identify on a reasonable approach the intention of the legislature in enacting the relevant parts of the Planning Act. That Act was to make provision, in the interest of the common good, for the proper planning and development of cities, towns and other areas, whether urban or rural; the Act permits the making of building regulations, which, if they had existed, might well enure to the benefit of the plaintiffs. There are no such regulations relevant to County Louth.
Conclusion
The Act in conferring statutory powers on planning authorities imposed on them a duty towards the public at large. In my view, in conferring those powers, the Oireachtas did
not include a purpose of protecting persons who occupy buildings erected in the functional area of planning authorities from the sort of damage which the plaintiffs have suffered. This being so, the council, in the exercise of those powers, owed no duty of care at common law towards the plaintiffs. It follows that the claim must fail and the appeal be dismissed
Ward v. McMaster
[1988] IR 337 Supreme Court
Walsh J.
I agree with the judgment of McCarthy J.
Henchy J.
Louth County Council (‘the Council’) are a housing authority for the purposes of the Housing Act, 1966. By virtue of s. 39 of that Act they were empowered, subject to regulations made under the Act, to make a loan for the acquisition of a house. The first plaintiff (‘the plaintiff’) having agreed to buy a house on the outskirts of Dundalk, Co. Louth, for £24,000, applied to the Council for a loan of £12,000. Under the relevant regulations made under the Act, and under the terms of the written scheme prepared and issued by the Council for the making of such a loan, the Council were bound, before making any advance, to satisfy themselves, by means of a report by their valuer, as to the actual value of the house and that the house provided adequate security for the loan.
For the purpose of satisfying those requirements the Council sent out a local auctioneer and valuer to make a report on the house in question. His report consisted of the replies he gave to a series of questions set out in a typed form furnished to him by the Council. Amongst the replies given by him was one saying that in his opinion the house was a reasonable risk for a loan over 30 years and one giving his valuation of the house as approximately £25,000.
It turned out that those opinions were wildly incorrect. The house was not a reasonable security for the loan and it was grossly overvalued at £25,000. Although, as events proved, it was not a good security for the loan of £12,000 applied for, the loan was granted. With the aid of the loan the plaintiff bought the house from the man who a few years earlier had built it, but when the plaintiff and his wife went into occupation they found that it was riddled with defects, most of them concealed structural defects. So fundamental and widespread were those defects that the plaintiff and his wife had to abandon the house. They moved into rented premises. Apparently the house still remains unoccupied. It seems to have been written off as a habitable dwellinghouse.
In the proceedings which the plaintiff and his wife brought in the High Court, Costello J. found in favour of the plaintiff in his claim in negligence against the first defendant (the vendor); and also against the Council, based on an allegation that they were negligent in not having a proper valuation carried out, so that, to his detriment, he was induced to rely on the adequacy of their valuation. The issue in this appeal by the Council is (apart from the question of the amount of the damages awarded) whether that finding of negligence should be upheld.
It was held by Costello J. in the High Court that the auctioneer who carried out the valuation for the Council was not negligent, and there is no appeal against that finding. The auctioneer was absolved on the ground that he was only an auctioneer and estate agent and, as such, is not to be blamed for not having the skill and competence necessary for the discovery of the hidden defects in the house. That unappealed finding must be accepted in this appeal as being correct.
As to the Council, the allegation of negligence against them does not necessarily fail because the valuer engaged by them was acquitted of negligence. What is relied on as negligence on their part is their failure to engage as a valuer a person who was competent to value the house in the light of (amongst other things) its structural condition. This, it is said, could have been done by engaging a person who was both an auctioneer and a surveyor, or, alternatively, by engaging as well as an auctioneer or valuer a person qualified to investigate the structural condition of the house. As I understand the submissions made in this Court on behalf of the Council, they do not deny that they were wanting in care in employing as a valuer a person who was lacking in the skill necessary to appraise the structural condition of the house. In effect they concede a want of due care on their part, but they say that the care in which they were wanting arose, not out of any duty of care owed to the plaintiff but as part of th the duty of care owed by them to the public, or more specifically, to that section of the public who by paying rates or taxes funded the Council as a housing authority.
For my part I gratefully acknowledge the assistance given by counsel on both sides in presenting an extensive array of decided cases relevant to the liability of public authorities in circumstances similar to those in this case. I do not propose to analyse or assess the different and not always reconcilable approaches adopted in those cases, because I consider that the salient features of this case are sufficiently clear and distictive to enable the point at issue to be decided on well-established principles.
The Council were plainly in breach of their public duty, imposed by the Regulations made under s. 39 of the Act, to ensure by a proper valuation that the house was worth £24,000 and that it was a good security for a loan of £12,000 repayable over a period of 30 years. However, the breach of such a public duty would not in itself give a cause of action in negligence to the plaintiff: see Siney v. Corporation of Dublin [1980] I.R. 400. It is necessary for him to show that the relationship between him and the Council was one of proximity or neighbourhood which cast a duty on the Council to ensure that, regardless of anything left undone by the plaintiff, he would not end up as the mortgagor of a house which was not a good security for the amount of the loan. A paternalist or protective duty of that kind would not normally be imposed on a mortgagee in favour of a mortgagor, but the plaintiff was in a special position.
It has to be remembered that one of the primary duties imposed on the Council by the Act was the elimination of all uninhabitable dwellings in their area. It follows that they should have realised that it would be in breach of their statutory functions if they granted a loan for the purchase of a house which turned out to be uninhabitable. The consequences to the plaintiff of a failure on their part to value the house properly should have been anticipated by the Council in view of factors such as that, in order to qualify for the loan, the plaintiff had to show that he was unable to obtain the loan from a commercial agency such as a bank or a building society and that his circumstances were such that he would otherwise need to be re-housed by the Council. A borrower of that degree of indigency could not have been reasonably expected to incur the further expense of getting a structural survey of the house done. The plaintiff, like the Council, relied on the opinion of a man who was only an auctioneer. He considered that the Council would have the house approved by a surveyor and that it would be superfluous for him to engage a surveyor. That was an understandable attitude and one that ought to have been foreseen by the Council, particularly when regard is had to the fact that one of the preconditions of the loan required the plaintiff to insure the house against fire for at least its full value. The Council must be taken to have impliedly assured the plaintiff that the house would be a good security for the loan.
In the light of the special relations between the plaintiff and the Council I consider that, apart from their public duty in the matter, the Council owed a duty to the plaintiff to ensure by a proper valuation that the house would be a good security for the loan. It would be unconscionable and unfair if they were to be allowed to escape liability in negligence on the ground that the plaintiff himself should have taken the necessary steps to ascertain that the house was sound. In the light of the statutory rights and duties of the Council it must, in my view, be held that they owed a duty to the plaintiff to observe due care in the valuation of the house and that they failed to carry out that duty. If they wished to avoid the incidence of that duty they could have so provided in one of the pre-conditions of the loan.
I would dismiss this appeal by the Council against the finding of liability in negligence made against them.
Griffin J.
I agree with the judgments of Henchy J. and McCarthy J.
McCarthy J.
The County Council appeals against so much of the order of the High Court (Costello J.) as held it liable to compensate the first plaintiff, the husband of the second plaintiff, for damage suffered because of the breach by the Council of its common law duty of care to the husband who was the purchaser for £24,000 of part of the lands described in folio 3708 County Louth being site 13 on a map attached to the contract and situated at Faughart, Dundalk, Co. Louth. He sought and obtained from the County Council a loan of £12,000 to enable him to purchase “a dwellinghouse at Lower Faughart, Dundalk.” The house turned out to be unfit for human habitation, although, before the loan was sanctioned, the County Council had obtained a “valuer’s certificate” that the house was in good sanitary condition and repair, and if necessary, readily saleable. The plaintiffs left their home and sued the vendor, who was also the builder and, clearly, at the time no mark for damages, the County Council and the firm engaged by the County Council as “valuer”. The vendor/builder had no answer, was decreed and has not appealed; the “valuer” was held by the trial judge not to have fallen short of the standard of care required of him; the County Council was decreed with a right of contribution of 90 per cent from the vendor/builder (a right which is worthless) and it appeals against the award made to the first plaintiff. The second plaintiff succeeded against the vendor/builder and no appeal has been pursued in that respect. In my judgment, the appeal by the County Council fails.
1. The Loan Scheme
Section 39 of the Housing Act, 1966, made provision for loans by housing authorities for acquisition or construction of houses and for the making of regulations for that purpose, at the same time repealing a great body of legislation going back to 1878 and set out in the first schedule to the Act. The Minister made the Housing Authorities (Loans for Acquisition or Construction of Houses) Regulations, 1972. He prescribed that the amount of the loan should not, so far as relevant, exceed £3,000 or 95 per cent of the value of the house. The expressed limitation was, subsequently, raised. Regulation 4 (1) provided that the value of a house, germane to this case, should be “the amount which, in the opinion of the housing authority, the house, if sold on the open market, might reasonably be expected to realise together with so much, if any, of the legal and other expenses incidental to the acquisition of the ownership of the house as the housing authority may consider proper”. Regulation 5 provided for a form of appeal from the determination as to value from the housing authority to the Commissioner of Valuation.
Regulation 12 provided:
“Before making a loan a housing authority shall satisfy themselves –
(a) that the borrower occupies or intends to occupy the house as his normal place of residence;
(b) that the value of the ownership of the house is sufficient to provide adequate security for the loan;
(c) that the title to the ownership is one which an ordinary mortgagee would be willing to accept;
(d) that the borrower is not a borrower in respect of any other loan made by them under the Act or is not the proprietor of a house in respect of which an advance, or any part of an advance, made by them under the Small Dwellings Acquisition Acts, 1899 to 1962, remains unpaid;
(e) that the repayment of the loan to the housing authority is secured either by –
(i) an instrument vesting the ownership (including any interest already held by the borrower) in the housing authority subject to the right of redemption by the borrower, or
(ii) in a case where the ownership of the borrower consists of a leasehold interest, by an instrument of mortgage by subdemise subject to a nominal reversion, vesting the term of the subdemise in the housing authority subject to the right of redemption by the borrower, or
(iii) where the title to the ownership is registered under the provisions of the Registration of Title Act, 1964 by an instrument charging the ownership with payment to the housing authority of the amount of the loan together with the interest thereon.”
Louth County Council, in carrying out its statutory duty, published a scheme for the making of loans by the Council under s. 39 of the Act of 1966 and the Regulations of 1972, as amended. I quote the following:
“6. No advance shall be made by the Council until the Council is satisfied, as a result of a report by the Council’s valuer, as to the actual value of an existing house . . . and that . . . is so situated as to be readily saleable, in the event of a sale by the Council becoming necessary, due to default by the borrower.”
“16. (a) Every house in respect of which an advance is made must be insured against fire by the borrower for at least the full value of the house.”
As part of the scheme the Council further published an application form, which contained the following provision:
“2. Applications shall be considered only from persons who are unable to obtain loans from commercial agencies, e.g. Building Societies, Banks and whose circumstances would otherwise necessitate their being re-housed by the Council.”
2. The application
The first plaintiff duly applied for a loan of £12,000; the County Council retained the third defendant acting through Pascal McLoughlin, who had 25
years experience of this kind of work, to prepare a valuer’s certificate. Mr. McLoughlin did so in the form (dated 12th August, 1980) appended to this judgment, valuing the house at approximately £25,000. On foot of that valuer’s certificate, the Council allocated a loan of £12,000 to the first plaintiff and by letter of the 29th August, 1980, duly notified him with the requirement that the house should be insured against fire for the sum of £26,000 at least.
The plaintiffs, who lived in Newry, were moving to Dundalk in 1980 and had asked Mr. Matthews, an auctioneer, to be on the look out for a house, resulting in the house at Lower Faughart. They visited the house with Mr. Matthews in the summer of 1980 and could see nothing wrong with it; Mr. Matthews told them that it was a good buy. The first plaintiff applied for the loan and paid what he described as “a surveyor’s fee” thinking that “if the surveyor passed the house then the house was okay, the County Council would not have given me the loan if the house was not alright.” When asked that maybe he should have got an engineer or surveyor on his own behalf he replied:
“I thought that when the Council went out and they passed it, their surveyor was out, if the Council were putting half the money into it, their word was as good as anybody’s, you know, because half their money was in it too.”
Finally, the trial judge put to him:
“It seems to me that the effect of his evidence seems to be that it was his experience in Northern Ireland which lead him to believe somebody would go out – is that right?”, and the first plaintiff agreed.
3. The condition of the house
The learned trial judge in findings now unchallenged held that all items of floor construction were sub-standard; that the foundation was structurally unsound and unsafe; that there were noticeable slopes in floors and ceilings and poor timber-work; all being “hidden” defects, in the sense that they were not discoverable by the sort of examination which a lay person with no professional qualifications would be expected to carry out: “But I accept the evidence (and this is of particular importance when considering the claim against the defendant Council) that these defects were discoverable by a reasonably careful inspection carried out by a person with ordinary professional qualifications in house construction such as those that an architect or an engineer would have obtained.” [1985] I.R. 29 at pages 35 and 36.
Further defects of a similar kind were then identified. Pascal McLoughlin regarded his functions as requiring him to consider merely the visual appearance of the house and then informed the Council of its market value. This he did on the 12th August, 1980, in the “valuer’s certificate”.
4. The legal relationship
Costello J. held [1985] I.R. 29 at p. 52:
“In the light of the facts to which I have referred it seems to me that there was a sufficient relationship of proximity or neighbourhood between the plaintiff and the Council such that in the reasonable contemplation of the Council
carelessness on their part in the carrying out of the valuation of the bungalow the plaintiff was going to purchase might be likely to cause him damage. They should have been aware that it was unlikely that the plaintiff (in view of his knowledge that they were going to value the premises and his very limited means) would himself employ a professional person to examine it and so they should have known that if the valuation was carelessly done it might not disclose defects in the premises and as a result the plaintiff might suffer loss and damage. So it seems to me that a prima facie duty of care existed and there is nothing in the dealing between the parties which should restrict or limit that duty in any way. In particular no warning against reliance on the proposed valuation was given.”
Depending his view on s. 39 of the Act of 1966, the learned trial judge held that there was a private law duty of care in favour of the first plaintiff it being “just and reasonable” that the Court should so hold.
Mr. O’Flaherty S.C., on behalf of the second defendant, has rested his appeal upon three main propositions:
(1) That since each party (the plaintiffs and the County Council) had to look to themselves to safeguard their situation, there was no duty of care cast upon the Council in respect of the first plaintiff. None such arose from their established proximity.
(2) Even if there was such a duty, that there was no risk of damage reasonably foreseeable to the County Council and, consequently, no breach of duty.
(3) That the omission held to be culpable arose from a decision of policy or discretion which was not open to question by the courts in an action such as this. It was, it is said, a policy decision within the discretion of the County Council not to have any inspection other than that which produced a valuer’s certificate: to carry out such inspections in every instance through an engineer or like qualified person would greatly reduce the amount of money available in loans with consequent damage to the true purpose of the relevant part of the Housing Act.
It is convenient first to deal with the third proposition. The monetary argument does not bear critical examination. The County Council would not require to have an engineering inspection in any case in which the relevant house is newly built since procedures for grants involve inspections at the material times with regard to such things as foundations etc., whilst the house is being built. Likewise, houses of significant age would not require such inspections to deal with defects arising from subsidence; visual inspection by a relatively unqualified person would be quite adequate to disclose such defects. In any event, I see no bar to the County Council expressly excluding any representation to be inferred from the fact that it sanctions a particular loan.
Since preparing the draft of this judgment my attention has been drawn to the decision of the Court of Appeal in England in Harris v. Wyre Forest D.C. [1988] 1 All E.R. 691 where, in a somewhat analogous case, a local authority was relieved of liability in negligence because of such an exclusion clause.
Having regard to this conclusion, it is not necessary for me to express an opinion as to whether or not what so-called policy considerations are, in that context, free from review in the courts in an action of this kind. The argument traversed a wide field of authority all but four of which were cited to Costello J. Curran v. Northern Ireland Co-Ownership Housing Association Ltd. (1985) 8 N.I.L.R. Bulletin 22 was decided by Carswell J. in the Northern Ireland High Court after the High Court hearing in the instant appeal although before judgment was delivered. With the able assistance of counsel, we have travelled well charted legal seas seeking, for my part, to find a well marked haven, whether it be in Australia, Canada, Northern Ireland or England. Certainly, the judicial complements manning the several ports are not marked by unamimity. The Canadian Supreme Court divided three to two, the High Court of Australia similarly, and whilst the House of Lords in Curran [1987] A.C. 718 was unanimous it did not deal with a case like to the present one, the point in which it was dealt with in the Court of Appeal in Northern Ireland (1986) N.I.L.R. Bulletin 1 was not the subject of an appeal itself. Much judicial eloquence and invention has been spent on examining and analysing the observations of Lord Atkin in Donoghue v. Stevenson [1932] A.C. 562. Anns v. Merton London Borough [1978] A.C. 728 was described by Lord Bridge in Curran as being the high water mark of the application of Donoghue with particular reference to the words of Lord Wilberforce identifying two stages of establishing liability for breach of duty to take care. The elaborate analysis of Brennan J. in the High Court of Australia in Sutherland Shire Council v. Heyman (1985) 59 A.L.J.R. 564 led to the verbally attractive proposition of incremental growth in this branch of the law; such a proposition, however, suffers from a temporal defect – that rights should be determined by the accident of birth. Albeit that Anns v. Merton London Borough [1978] A.C. 728 is the high-water mark, I would not seek to dilute the words of Lord Wilberforce at pp. 751 and 752:
“[T]he position has now been reached that in order to establish that a duty of care arises in a particular situation, it is not necessary to bring the facts of that situation within those of previous situations where a duty of care has been held to exist. Rather the question has to be approached in two stages. First one has to ask whether, as between the alleged wrongdoer and the person who has suffered damage there is a sufficient relationship of proximity or neighbourhood such that, in the reasonable contemplation of the former, carelessness on his part may be likely to cause damage to the latter – in which case a prima facie duty of care arises. Secondly, if the first question is answered affirmatively, it is necessary to consider whether there are any considerations which ought to negative, or to reduce or limit the scope of the duty or the class of person to whom it is owed or the damages to which a breach of it may give rise . . .”
In Curran (1985) N.I.L.R. Bulletin 22 after an exhaustive review of authority, Carswell J. accepted the proposition from Charlesworth and Percy on Negligence that “it will be an essential fact to be proved, in any case, that the defendant has assumed responsibility for giving his opinion, advice or even information” and
that the voluntary assumption of responsibility for the accuracy of the statement in question is the basis of the doctrine. Carswell J. later examined the proposition that it follows from the fact that a public body is under a statutory power or duty that it owes a duty of care at common law with particular emphasis on Peabody Fund v. Sir Lindsay Parkinson Ltd. [1985] A.C. 210, a case cited by the learned trial judge in the instant appeal. As Carswell J. pointed out in Curran, Peabody Fund v. Sir Lindsay Parkinson Ltd. [1985] A.C. 210, in the jurisdiction where it would be binding, is not a conclusive authority on the ambit of the duty of care although affording a valuable amount of guidance. Carswell J. rested his judgment finally upon the view that the obligation resting upon the Housing Executive was to see to the proper application of public money in improvement grants, the latter limb of the claim in Curran.
In the Court of Appeal in Northern Ireland (1986) 8 N.I.L.R. Bulletin 1, Gibson L.J. delivering the judgment of the Court, carried out a like exercise in the review of authority, identifying s. 30 of the Building Society Act (Northern Ireland), 1967, and s. 30 of the English Building Society Act, 1962, as creating a statutory warranty by a Building Society to a member that the purchase price is reasonable in the event of it making an advance to the member to defray the purchase price. Again, the conclusion (p. 17) was that:
“. . . though the Executive must be taken to have known when it offered the mortgage that the plaintiffs would rely upon it to the extent of deducing that an appropriate valuation had been given to the Executive, there were no facts upon which one could assume that the Executive was accepting responsibility for the careful preparation of the valuation which preceded the offer.”
Again, at p. 20:
“I am unable to accept that the Executive by informing the plaintiffs of the amount which it was willing to advance on the security of the house, though it was a mistaken figure negligently arrived at, can be taken impliedly as undertaking to be responsible for any loss suffered as a result of negligence in the appointment of the valuer at the suit of the plaintiff, who without any inducement by or representation on behalf of the Executive voluntarily elected not to be advised in the matter but to accept the figure proposed by the Executive as the amount of the advance to him. In reaching that conclusion, I am conscious of the caveat issued by Lord Reid in Mutual Life and Citizens Assurance Co. Ltd. v. Evatt [1971] A.C. 793 at p. 813 of the report with reference to the terms of the speeches in Hedley Byrne, namely ‘we do not think it would be useful to quote expressions from speeches used without having in mind circumstances such as we have here’. But insofar as the facts of this case are clearly within the area of contemplation in the Hedley Byrne case, I have no doubt that a condition precedent to liability is that the Executive should have indicated to the plaintiffs, or so acted as to mislead them into believing, that the Executive was accepting responsibility for its opinion. That condition is not established by the matters set out in the statement of claim or by any of the other matters which we have permitted the plaintiffs to call in aid.”
The latter quotation identifies a circumstance that did not help the resolution of the difficult legal issue in Curran that the case was tried and disposed of without evidence upon issues raised by what were clearly defective pleadings.
Yuen Kun Yeu v. A.-G. of Hong Kong [1987] 3 W.L.R. 776 was a decision of the Judicial Committee of the Privy Council in which the judgment of the Committee was delivered by Lord Keith of Kinkel. Having cited the familiar passage from Lord Wilberforce in Anns he pointed to the subsequent judicial resiling from the two-stage test in England and in Australia (by Brennan J. and Gibbs C.J. in Sutherland). Lord Keith disposed of the second stage of the Annstest, the public policy factor, by reference to Rondel v. Worsley [1969] 1 A.C. 191 dealing with the liability of a barrister for negligence in the conduct of proceedings in court, and Hill v. Chief Constable of West Yorkshire [1987] 2 W.L.R. 1126 the claim by the mother of the last victim of the “Yorkshire Ripper” for damages on the grounds of the negligence of the police in failing to apprehend the murderer before the death of her daughter. Glidewell L.J. as an additional reason for dismissing the action at its preliminary stage, pointed to what might be termed the “floodgates” or “appalling vista” line of argument. Lord Wilberforce, in McLoughlin v. O’Brian [1983] 1 A.C. 410 had been unimpressed by the floodgates reasoning. Lord Keith concluded at p. 785 that:
“In view of the direction in which the law has since been developing, their Lordships consider that for the future it should be recognised that the two-stage test in Anns v. Merton London Borough Council [1978] A.C. 728, 751-752, is not to be regarded as in all circumstances a suitable guide to the existence of a duty of care.”
Insofar as it is used to support the appellant’s case, I find the reasoning lacking in force. Whilst Costello J. essentially rested his conclusion on the “fair and reasonable” test, I prefer to express the duty as arising from the proximity of the parties, the foreseeability of the damage, and the absence of any compelling exemption based upon public policy. I do not, in any fashion, seek to exclude the latter consideration, although I confess that such a consideration must be a very powerful one if it is to be used to deny an injured party his right to redress at the expense of the person or body that injured him.
Siney v. Corporation of Dublin [1980] I.R. 400. The claim here was for damages for injury caused to the plaintiff’s furniture and clothing and the nature of the plaintiff’s occupation of the flat provided by Dublin Corporation. So far as relevant to the instant appeal, it is apposite to quote the words of O’Higgins C.J. at pp. 408-410:
“To answer this question, [the application of an exclusionary rule] regard must be had to the Housing Act, 1966, under which this letting was made, and to the position, powers and obligations of the defendants under that Act. The Act of 1966 is a major piece of social legislation which is aimed at dealing with the distressing problem of families that are unable to provide for themselves and being either homeless or living in overcrowded, unhealthy and unfit houses. The Act sought to establish administrative machinery under which such conditions could be eliminated gradually throughout the country, and by
means of which new and suitable dwellings could be provided for those in need . . . The Act also empowers the Minister for the Environment to provide grants for persons endeavouring to provide their own houses, either by building, or by repairing or reconstructing existing accommodation: see sections 13-23. The Minister was also empowered to give grants to housing authorities in order to promote and finance schemes for the assistance of people seeking to build or otherwise provide their own housing accommodation: see sections 24-43 . . . In short, the aim of the Act of 1966 was to bring into existence decent housing which, in each functional area, would be introduced by the housing authority and the standards of which would be maintained by that authority.”
Later at p. 412 he said:
“I will merely say that the statutory duties imposed by the Housing Act, 1966, are so imposed for the benefit of the public. Under the Act they are enforceable under s. 111 by the Minister. In these circumstances no right of action is given to a private citizen if the complaint is merely that the duties so imposed, or any one of them has or has not been carried out. The mere fact that a housing authority has failed to discharge a duty imposed upon it does not give to a complaining or aggrieved citizen a right of action for damages.”
Again, at p. 414, he said:
“In this case it is sufficient to say that many of these recent decisions recognise a possible liability where the exercise of statutory powers in a negligent manner results in injury to persons occupying houses for whose protection or benefit these powers were intended . . . Obviously, that inspection should have been carried out to ensure what had been built or provided accorded with the statutory requirements as to fitness for human habitation. Had the inspection by the defendants been so carried out, it would have disclosed that the ventilation system in this particular flat was defective and inadequate and that the defect was likely to lead to excessive humidity and to the kind of conditions of which the plaintiff and his family subsequently complained. In the circumstances the undetected defect in the ventilation was a serious concealed danger of which the incoming tenant, the plaintiff, could not have been aware and which he could not reasonably have been expected to discover. In these circumstances I can see no basis for suggesting that the principle of Donoghue v. Stevenson should not apply.”
Henchy J., having referred to the Act of 1966, said at p. 419:
“When the defendants, as the housing authority, prepared and adopted a building programme and then exercised their powers under s. 56, sub-s. 1, to provide these flats for letting, it was a necessary postulate of the statutory scheme of things that the flats would not add to the stock of houses unfit or unsuitable for human habitation. Indeed, it would be positively inconsistent with the powers and the duties of the defendants, as a housing authority under the Act, to provide a flat that was not fit for habitation. The defendants’ powers (set out in ss. 66-69) of getting uninhabitable houses repaired, or closed and demolished if not repairable, are so specific and drastic that it must be deemed a necessary element of the statutory intent that the defendants are to use their
powers under the Act in such a way that a dwelling built and let by them is fit for habitation, and that the tenant of the dwelling may act on an unarticulated assurance by them that it is fit for habitation. In other words, the letting agreement in this case should be read as if it contains an express term warranting the flat to be habitable.”
Later, at p. 421 he said:
“Following on Donoghue v. Stevenson it has been established by a line of decisions (such as Dutton v. Bognor Regis U.D.C. , Anns v. Merton London Borough and Batty v. Metropolitan Realisations Ltd. ) that where a person, including a builder or a local authority, carelessly provides a dwelling in which there is a concealed defect which the occupier could not have discovered by inspection, the person who provided the dwelling may be liable in negligence for personal injury or economic loss suffered as a result of the defect. The precise conditions or limitations of that liability need not now be considered, for I have no doubt that the principle of liability evolved in those cases is applicable to the circumstances of this case.”
In Shelton v. Creane and Arklow U.D.C. (Unreported, High Court, 17th December, 1987) Lardner J. accepted the principle stated by Costello J. in the instant case.
I turn then to the two main propositions advanced in support of the appeal:
1. The duty of care,
2. Reasonable foreseeability.
1. The duty of care
The proximity of the parties is clear: They were intended mortgagors and mortgagee. This proximity had its origin in the Housing Act, 1966, and the consequent loan scheme. This Act imposed a statutory duty upon the County Council and it was in the carrying out of that statutory duty that the alleged negligence took place. It is a simple application of the principle in Donoghue v. Stevenson [1932] A.C. 562 confirmed in Anns v. Merton London Borough [1978] A.C. 728 and implicit in Siney v. Corporation of Dublin [1980] I.R. 400 that the relationship between the first plaintiff and the County Council created a duty to take reasonable care arising from the public duty of the County Council under the statute. The statute did not create a private duty but such arose from the relationship between the parties.
2. Reasonable Foreseeability
In my view, it does not require much imagination for the officers of the Housing Authority to contemplate that a purchaser under the scheme will both lack the personal means of having an expert examination and may well think, as the first plaintiff thought, that the very circumstances of the housing authority investing its money in the house was a badge of quality.
These two considerations are both involved in the first leg of the Annsprinciple. I do not understand it to be argued that there are considerations which ought to negative or to reduce or limit the scope of duty or the class of person to
whom it is owed or the damages to which a breach of it may give rise, within the second leg of the observations of Lord Wilberforce. It follows, in my view, without entering into the question of whether or not it is “just and reasonable” to impose the duty, that the duty arose from the proximity of the parties, the injury caused was reasonably foreseeable, the breach was established, and the first plaintiff was entitled to succeed.
The appeal on liability should be dismissed.
Glencar Exploration plc and Andaman Resources plc v Mayo County Council
[2002] 1 ILRM 481
[Judgments delivered by Keane C.J.and Fennelly J.; Denham, Murray, and McGuinness J.J. concurring.]
JUDGMENT delivered the 19th day of July, 2001, by Keane C.J.
1. The facts in this case, to the extent that they are not in dispute, are summarised with such admirable clarity in the High Court judgment under appeal, that I can limit myself. for the purposes of this judgment, to a relatively brief résumé.
2. The applicants are two publicly quoted companies engaged in prospecting for and mining ores and minerals. On 30 May 1968, they were granted ten prospecting licences by the Minister for Energy for the purpose of exploring for gold in an area south of Westport in Co. Mayo. Those licences were renewed from time to time and, during the period from the date on which they were granted to the adoption by the respondents of what has been described as a ‘mining ban’ in the County Mayo Development Plan on 17 February 1992, they expended a sum of £1,938,264 in prospecting for gold in the relevant areas. In July 1990, Mr McCullough, the managing director of the first applicant, had written to the respondents pointing out that the applicants’ exploration work in south Mayo was well advanced and that they hoped to develop a gold mine in the area.
3. Although the results of the prospecting activities were highly encouraging, the applicants were of the view that, if the gold which appeared to exist in these areas was to be commercially mined, a further substantial investment would be required. They accordingly entered into a joint venture agreement with a company called Newcrest Mining Ltd, one of the largest Australian gold producers (hereafter ‘Newcrest’) in November 1991. Under that agreement, Newcrest was to spend at least £1.6 million on further exploration and, in return, was to be given a 51% interest in the venture. In February 1992, however, Newcrest withdrew from the joint venture as a direct result, the applicants alleged, of the inclusion in the county development plan of the mining ban.
4. The applicants then applied for and were granted leave to institute the present proceedings by way of judicial review in the High Court, in which they claimed, inter alia, the following reliefs:
(1) Declarations that the respondents were not empowered by the relevant legislation to include the mining ban in the County Mayo Development Plan and that it was ultra rues the legislation, unreasonable and contrary to constitutional and/or natural justice;
(2) An order of certiorari quashing so much of the development plan as included the mining ban; and
(3) Damages for negligence and breach of duty, including breach of statutory duty.
5. A statement of opposition having been filed on behalf of the respondents, the substantive hearing of the claim for judicial review came on before Blayney J. In a reserved judgment delivered on 13 November 1992 and reported in [1993] 2 IR 237, he granted the declaration sought by the applicants that the mining ban was ultra vires the respondents powers under the relevant legislation and was, accordingly, null and void. The applicants’ claim for damages was adjourned with liberty to apply.
6. The learned High Court judge found that the inclusion of the mining ban was ultra vires the respondents on two grounds:
(1) That a development plan under Part III of the Local Government (Planning and Development) Act 963 (hereafter ‘the 1963 Act’) must consist of a written statement and plan indicating the development objectives for the area of the planning authority, that such development objectives must be positive in character and that an objective which aims to prevent development cannot be such an objective;
(2) That the use of land for the purpose of winning and working of minerals is prima facia exempted development under the relevant regulations, that only An Bord Pleanála may determine whether such development is or is not exempted development and that, accordingly, the respondents could not, as a matter of law, include the mining ban in their development plan.
7. The applicants had relied on a further ground in support of their claim, i.e. that the mining ban was in breach of the policy of the government as conveyed to them in a letter dated 16 December 1991 written on behalf of the Minister for Energy and that, accordingly, the respondents had not had regard, as they were statutorily obliged to do, to the policy of the government. The learned High Court judge, however, while satisfied that the respondents had acted in disregard of government policy, did not find it necessary to come to any conclusion as to the effect in law of their having done so, having regard to his conclusion that, in any event, the mining ban was ultra vires.
8. On 11 December 1995, the applicants brought a notice of motion seeking directions as to the time and mode of trial of the applicants’ claim for damages. It was ordered by consent that points of claim and defence should be delivered, that discovery should be made by both parties and that the applicants should be at liberty to amend their claim for damages by extending it to a claim for damages for breach of duty not to inflict damage by acting ultra vires and to respect the applicants legitimate expectations, for misfeasance in public office and for wrongful interference with the applicants’ constitutional rights.
9. The application came on for hearing before Kelly J. In his written judgment delivered on 20 August 1998, the learned High Court judge dismissed the applicants claim for damages. In particular, while finding that the respondents were negligent in adopting the mining ban, in the sense that they did something which no reasonable authority would have done, he was satisfied that the negligence in question did not give rise to any right to damages.
10. The applicants have appealed to this court from the dismissal by the learned High Court judge of their claim for damages. While no notice to vary the judgment in the High Court ‘was served on behalf of the respondents, arguments were advanced to this court on the hearing of the appeal to the effect that the findings of negligence by the High Court judge were erroneous in point of law.
11. It is now necessary to consider in some more detail the circumstances in which the mining ban w as adopted by the respondents.
12. The question as to whether mining should he permitted in the Westport area gave rise to acute controversy in the early 1990s. It had come to a head with the ‘work carried out by Burmin Exploration and Development plc and Tara Mines plc on the slopes of Croagh Patrick. There was similar opposition to a proposed development by Ivernia West in an area about a mile south east of the Westport urban district area.
13. When the applicants obtained their prospecting licences, the development plan which had been made by the respondents under Part III of the 1963 Act did not contain a mining ban. In 1990, a new draft development plan was put on public display by the respondents. Paragraph 3.6.1 of the draft plan, dealing with mineral extraction, was as follows:
It is clear that there are large potential mineral resources within the county from the scale of exploration currently underway. Development of the resources will have major implications for the environment, water resources, aquaculture, tourism and employment.
Policy
It is the policy of the council that where mining and quarrying developments would seriously injure the visual environment, water resources, aquaculture, tourism, sites of archaeological, geological, historical, religious or scientific interest, the development shall not be permitted.
It is the policy of the council that, as part of any planning application for the large scale extraction of minerals, an environmental impact assessment under EC Directive 85/337/EC and SI No. 349 of the 1989 European Communities (Environmental Impact Assessment) Regulations 1989, shall be required by the Mayo County Council.
Objectives
It is an objective of the council to ensure, through control of mineral extraction developments. that the physical environment, flora and fauna is reinstated, on a phased basis. and with land, farms and vegetation in keeping with the natural environment.
It is an objective of the council to ensure that all forms of discharges from mineral extraction shall be strictly controlled and monitored and that any breaches ~ such controls be prosecuted in accordance with the appropriate legislation.
It is an objective of the council to ensure that adequate environmental safeguards are enforced to minimise disturbance and nuisance during operations.
It is an objective of the council that features of archaeological interest are protected and preserved and if this is not possible that they be properly surveyed and recorded.
14. The mining ban was effected by an amendment to this section of the development plan which was passed at a meeting of the respondents held on 11 March 1991 It consisted of the insertion of a paragraph between the two paragraphs under the heading ‘Policy’ as follows:
It is the policy of the council that no development and/or work shall take place in relation to minerals (as defined by the Minerals Act 1940 as amended) in the areas shown dotted on map 10A.
15. Map 10A indicated that the area in which mining was prohibited consisted of over 300 square miles extending from Achill Head in the west to Westport in the east and from Ballycroy in the north to Inisturk Island in the south. There was already a map 10 in the development plan delineating what were described as ‘areas of special scenic importance’ and which included some, though not all, of the area delineated as the mining ban area in map 10A. It should be noted that, at an earlier stage, the possibility of making a special amenity area order in respect of the area subsequently affected by the mining ban had been considered by the respondents but rejected by them.
16. There was support for the mining ban across party lines, two of its most enthusiastic supporters being Mr Seamus Hughes and Mr Enda Kenny, who represented the Fianna Fail and Fine Gael parties respectively on the council. Indeed at the meeting of the respondents held on 11 March 1991, the vote in favour of amending the draft plan in this fashion was passed unanimously. The amended draft plan was then put on display and various representations and objections were received and circulated to the respondents. Among them was a letter from the applicants which, however, was received outside the statutory period for the receipt of such representations.
17. On 11 November 1991 the respondents, having considered the written representations received in relation to the mining ban, resolved that the development plan should be amended so as to include the mining ban. The draft plan as amended could, in the normal course, have been adopted by the respondents at their meeting in the following December. However, on the day of the meeting, the letter already referred to on behalf of the Minister for Energy was received by them. That letter stated inter alia:
I am directed by the minister to state that he views with grave concern the draft policy statement in relation to minerals development in parts of County Mayo. The statement runs contrary to stated government policy that mineral resources should be explored for and should he exploited where this can be done in an environmentally acceptable manner. The statement, which implies that planning permission would be automatically refused to any mining project means that there will in fact, be no exploration investment whatsoever…
The minister is of the view that there is in principle nothing fundamentally wrong with the existing planning procedures and that it should be possible to accommodate the needs of both the mining industry and those concerned with the environment within the current legal and procedural framework.
Finally, I am directed by the minister to state that it is his official view that the statement proposed for the draft development plan should be deleted.
18. In view of the contents of this letter, the meeting of 16 December was adjourned. A motion was proposed by six members of the respondents to rescind the resolution of 11 November 1991 which had approved the inclusion of the mining ban in the draft development plan. At a meeting of the respondents on 17 February 1992 that motion was defeated by 22 votes to eight.
19. The mining ban which was thus inserted in the development plan and which led to the institution of these proceedings was adopted by the elected members of the respondents despite repeated advice from the officials of the respondents that it was not an appropriate course to take. The relevant evidence is referred to in detail in the judgment of the learned High Court judge: it is sufficient to say that the county manager, the senior executive planner and the county engineer were all of the view that the ban was unwise for a number of reasons. First, it was in the interest of the council, through prospecting activities, to find out what minerals were actually in the county, irrespective of whether or not permission to extract them was forthcoming: prospecting in the area would be improbable if the mining ban was adopted. Secondly, each application for such permission, in the event of the mining ban not being adopted, would he judged on its merits and in the light of all the relevant planning considerations and the provisions of the EC Directives on the environment.
20. Mr Hughes and Mr Kenny appear to have been under the impression that the effect of the mining ban would not be to prevent any mining development in the prohibited area: it would simply ensure that any application for permission was considered by the elected members, who could then decide that a permission should be granted, although constituting a material contravention of the development plan. It was, however, pointed out by the officials that this would not necessarily be the case, since, under the relevant legislation, the application for permission would come before the elected members only where the county manager decided to institute such a process. They also said that it was the duty of the elected members to take such steps as might be necessary to secure the objectives in the plan and that, if the plan were adopted, the granting of a permission in defiance of it could well be successfully challenged by an objector on the ground that the council were behaving irrationally and illogically. The difficulties arising from the fact that the course adopted by them was also contrary to stated government policy were also pointed out to them.
21. The respondents were also advised as to the legal implications of the mining ban by one of the foremost authorities on planning law at the time, Mr Philip O’Sullivan SC (now O’Sullivan J.). The county solicitor, Mr Michael Browne, in response to a letter from the county secretary on 15 May 1991, pointed out that those who had objected to the adoption of the mining ban might succeed in having the resolution declared invalid for a number of reasons, which he enumerated, and said that he considered he should submit a detailed case to advise to senior counsel. He specifically referred to the fact that it was public knowledge that the first named applicants had been prospecting in the relevant area for some time.
22. In his opinion, Mr O’Sullivan said that he had not seen map 10A but that since the terms of the ban referred to ‘areas’ in the plural he assumed that it referred to a number of different locations and that the map was prepared with the degree of attention to detail and care to limit the exclusionary prohibition to specified amenity locations rather than by reference to a crude exclusionary policy.
23. He went on:
In my opinion a planning authority is perfectly within its rights to make a decision in principle in its development plan that no mining would take place in particular areas where they perceive such mining activities are in conflict with amenity or other natural resources and to have a policy in the development plan stating this. A planning authority in general is under a positive obligation to formulate policies and to express them in the development plan and in my opinion the proposed amendment is doing just this. I assume the proposal is reasonable in the sense that it is made by reference to objective criteria.
24. Commenting on this passage in Mr O’Sullivan’s opinion, the learned High Court judge said that had he seen map 10A and been aware of the evidence adduced in the hearing in the High Court, there could be little doubt but that he would have concluded that the ban was nothing more than a ‘crude exclusionary policy’. He would also probably have concluded that the proposal could not be regarded as reasonable. because it was not made by reference to objective criteria. However as Kelly J went on to point out, it appears that, unfortunately, it was mistakenly thought by the respondents that they were legally empowered to impose the ban, despite the important caveats in Mr O’Sullivan’s opinion. Minutes of the meeting of 17 February 1992 record the manager as stating:
The council was informed that it was legally entitled to include such a ban although advised not to do so.
The High Court Judgment
25. In his judgment, Kelly J having set out the facts, went on to deal with the various legal headings under which the applicants’ claim for damages was brought.
26. The first was the tort of misfeasance in public office. He said that he was satisfied that the applicants had not established that, in opposing the ban, the elected members of the respondent were actuated by malice against the applicants or realised that what they were doing amounted to an abuse of office. While he was of the view that considerable criticism could be made of the approach of the elected members to the ban, he was satisfied that they were responding in good faith to the pressures brought to bear on them by the electorate: while they had acted unlawfully, they had also acted honestly and in the belief that they were entitled in law to adopt the ban.
27. As to the claim based on a breach of statutory duty, Kelly J said that he was of the view that the duties imposed by the relevant sections of the 1963 Act and the Local Government Act 1991 were for the benefit of the public or the government and that, accordingly, no action for damages lay at the suit of individual member of the public in respect of the alleged breach of duties.
28. As to the claim based on legitimate expectations, Kelly J held that, while the applicants were entitled to expect that any application they might make for permission would be fairly considered by the respondents, that expectation had not been frustrated, since no such application had ever been made. He was also satisfied that, even if any legitimate expectations on their part had been frustrated by the actions of the respondents, damages would not be available as a remedy in respect of it because of the absence of a contractual relationship or a relationship similar thereto, between the parties. He also rejected submissions that the applicants were entitled, in the alternative, to damages for what was alleged to be a wrongful invasion of their property rights under the Constitution.
29. As to the claim based on negligence, Kelly J said that he had concluded that the respondents had acted negligently in adopting the mining ban in the sense that they did something which no reasonable authority would have done. He expressed his conclusions as follows:
Whatever may have been the motives of the elected members, they set about achieving their goal in a way which, in my view, no reasonable local authority in receipt of the advice which they obtained would have done. It is not the function of elected representatives to slavishly give effect to their constituents’ demands come what may. They must exercise a degree of judgment in any particular case.
In this case, the evidence demonstrates that the provision of the mining ban was unnecessary. The existing planning code was sufficient to protect all legitimate planning interests. This was the advice they received from their officials. It was also the view made clear to them by the Minister for Energy. Not merely was it unnecessary from a planning point of view, but the evidence was that it was in fact contrary to the best interest of the county because it would drive away investment and exploration and the county would lose the chance of evaluating the benefits of any project put forward for planning permission. Furthermore, there was in my view no objective justification for the adoption of the ban, It was to operate in respect of all minerals, regardless of their method of extraction, value or the quantity likely to be extracted. The ban was of enormous span and it was clear, particularly from the evidence of Mr Dunleavy, that little or no thought went into the nature or the extent of the ban. It was nothing more than a crude exclusionary policy.
30. However, while Kelly J was of the opinion that, to that extent, the respondents had acted negligently in adopting the mining ban, he also came to the conclusion, having reviewed the authorities, that, in so acting, they were not in breach of any duty of care which they owed to the applicants and that, accordingly, no actionable claim for damages for negligence had been established.
31. Although, as a result of those conclusions, Kelly J was satisfied that the applicants’ claim for damages should be dismissed, he went on to consider the extent of the damages to which they would have been entitled had they succeeded in their claim. He was of the view that, if the damages were to be assessed as of the date of the mining ban, they would be entitled, at the most, to one-tenth of the expenditure they had actually incurred, ie £193,826.40. If, however, the damages were to be assessed as of the date of the trial, then they would have to be reduced further, because of the greater unlikelihood of permission ever having been granted as a result of the enactment of a European Union habitats directive: in that event, the most they could have hoped to recover was one-twentieth of the expenditure incurred by them.
Submissions of the parties
32. The claim of the applicants based on misfeasance in public office was not pursued in this court.
33. As to the claim based on breach of statutory duty and the applicants’ constitutional rights, Mr Sreenan, SC and Mr Brady SC on behalf of the applicants submitted that the judgment of Finlay CJ in Pine Valley Developments Ltd v. Minister for the Environment [1987] IR 23, [1987] ILRM 747, left open the possibility of an action for damages arising from the commission of an ultra vires administrative action where the action in question was in breach of a duty owed to a particular person. They submitted that where, as here, the breach of a statutory duty had caused loss and damage to an individual, the latter was entitled to be compensated and that the granting of any immunity to public authorities in such circumstances was not in accordance with the jurisprudence of the European Court of Human Rights or of the Court of Justice of the European Economic Communities, citing in support the decisions in Osman v. United Kingdom 29 EHRR 245 and Francovich v. Italy (Case-6/90 [1991] ECR I-5357. They further submitted that, in any event, even adopting what they described as the restrictive interpretation of the tort of breach of statutory duty by the trial judge, the duty to have regard to government policy was in fact for the benefit of a limited class of persons who were the beneficiaries of that policy, i.e. the holders of mining licences.
34. As to the claim based on legitimate expectations, they submitted that the trial judge had been in error in treating their claim as based on a representation, express or implied, that they would obtain planning permission. The legitimate expectation on which they relied was that the respondents would act lawfully and with due regard to the advices they received from their officials and to relevant government policy as communicated to them, that they would not seek to prejudge all applications for planning permission for mining development within a substantial part of the area for which they were responsible and that they would act legally and fairly towards the applicants. They submitted that it was clear from cases such as Fakih v. Minister for Justice [1993] 2 IR 406; Dascalu v. Minister for Justice High Court (O’Sullivan J.) 4 November 1999 and Philips v. Medical Council [1991] 2 IR 115; [1992] ILRM 469 that a person could legitimately expect that public authorities would act in accordance with the law. They also cited in support the decision of this court in Duff v. Minister for Agriculture (No. 2) [1997] 2 IR 22. They further submitted that the trial judge was wrong in law in holding that damages would not be available for a breach of a legitimate expectation in the absence of a subsisting contractual or equivalent relationship, citing in support the decisions in Duggan v. An Taoiseach [1989] ILRM 710 and Webb v. Ireland [1988] IR 353; [1988] ILRM 565.
35. As to the finding of the High Court that the claim for damages for negligence was not maintainable because of the absence of any duty of care, they submitted that the existence of a duty of care had not been traversed in the points of defence furnished by the respondents. On the assumption that the respondents were entitled to argue that no duty of care existed, they submitted that this was not the law, having regard to the decision of the High Court and the Supreme Court in Ward v. McMaster [1985] IR 29; [1988] IR 337; [1989] ILRM 400.
36. The duty of care arose by virtue of:
(a) the foreseeability of damage to the applicants as a consequence of the respondents’ action;
(b) the statutory framework under which the relationship between the parties existed;
(c) the relationship of proximity between the parties, there being no factors in the relationship between the parties that would negative a duty of care;
(d) the absence of any factors that would make it ‘fair and reasonable’ to relieve the respondents from any duty of care, applying the formulation adopted by Costello J. at first instance in Ward v. McMaster.
37. They further submitted that, if the criteria laid down by McCarthy J. in Ward v. McMaster for determining whether a duty of care existed were to be adopted, the argument for holding that the respondents were under a duty of care was even more compelling.
38. On behalf of the respondents, Dr Forde SC submitted that, on the facts of the present case, no question of a legitimate expectation, as that doctrine had been developed in the authorities in Ireland and the United Kingdom, arose. The applicants had never applied for planning permission and, accordingly, could not contend that any expectation they might have of obtaining such a permission had been frustrated by any action on the part of the respondents: the evidence, indeed, established that the applicants had expressly refrained from applying for planning permission in order to preserve their possible claim for damages. In any event, he submitted that the doctrine of legitimate expectation was a guarantee of procedural fairness, not of substantive outcomes, citing Tara Prospecting Ltd. v. Minister for Energy [1993] ILRM 771. Moreover, damages were not a remedy for the breach of a legitimate expectation, assuming one existed, in the absence of a subsisting contractual or equivalent relationship. Webb v. Ireland was not authority for the proposition that a remedy by way of damages was available in cases of a breach of legitimate expectation: in that case, there had been an express assurance that the plaintiff would be reasonably treated and the court had treated this as a form of promissory estoppel rather than legitimate expectation.
39. As to the claim for damages based on a breach of statutory duty, Dr Forde submitted that it had been clear since the decision in Cutler v. Wandsworth Stadium Ltd. [1949] AC 398 that, for a liability to damages to arise, it had to be established that the legislature intended that a breach of the Act should result in an award of damages in favour of a category of persons to which the plaintiff belonged. The ultra vires act found by Blayney J. to have been committed by the respondents in adopting the mining ban was, at most, a breach of a duty owed by the respondents to the public in general and not to any specific category of persons to whom the plaintiff belonged.
40. As to the contravention alleged to have been committed of the duty under the 1991 Act to have regard to the policy of the government, Dr Forde submitted that the trial judge was erroneous in point of law in inferring from the evidence that the respondents had acted in breach of their duty: both the trial judge and the applicants, in their submissions to this court, mistakenly assumed that, because the respondents, having considered the Minister’s letter, had decided to proceed with the mining ban, they had acted in disregard of the policy of the government. The 1991 Act did not oblige the respondents to implement government policy, but rather to have regard to it in arriving at a decision. That did not mean, he said, that, having given appropriate consideration to the policy in question, they were then obliged to give effect to that policy.
41. Dr Forde further submitted that, in any event, even assuming that the respondents were in breach of their duty under the 1991 Act, that was a duty owed at best to the government or one of its individual ministers and not to any category of persons to which the plaintiff belonged.
42. As to the claim based on negligence, Dr Forde took issue with the inferences of fact drawn by the trial judge from the evidence. Since he had correctly found that the elected representatives believed with good reason that they had the legal power to impose the ban, there was no basis for his finding that they had acted negligently. Specifically, he gave no reason for holding that the ban had not been made by reference to objective criteria. Nor was it negligent for the elected representatives to act the contrary to the advise of their officials on a matter of policy such as this on which their constituents had strong views. It was also not an act of negligence on their part to decline to have regard to government policy, even supposing that that was what the elected representatives did.
43. On the assumption that the trial judge was entitled to infer from the evidence that the respondents had acted negligently, in the sense that they had done what no reasonable authority should have done, Dr Forde submitted that this afforded them no cause of action against the respondents. In the first place, the law of negligence was intended to provide redress for personal injuries and physical damage to property: it was only in exceptional circumstances, which did not arise here, that liability could arise in negligence for exclusively economic loss. He cited in this context the summary of the law in McMahon and Binchy on the Law of Torts, 3rd ed. chapter 10. He further submitted that there was no authority for the proposition that a duty of care rested on a local authority in circumstances such as the present: the decision in Ward v. McMaster was clearly distinguishable. He said that it had also been held in a number of cases, such as Yuen Kun Yeu v. Attorney General of Hong Kong [1988] AC 175; Pine Valley Developments Ltd. v. Minister for the Environment and Dunlop v. Woollahra Municipal Council [1982] AC 158 that where a decision in a policy area by a public authority was in issue, liability in negligence should not normally arise. He said that the public policy underlying that principle was reinforced, in the case of local authorities, by the fact that, if the respondents were made liable in the present case, they would be liable to a surcharge.
44. Dr Forde further submitted that the collapse of the joint venture agreement with Newcrest and the impossibility of getting other joint venturers was not reasonably foreseeable by the respondents. He further submitted that the respondents’ resolution was not the cause of any loss that the applicants’ claimed to have sustained: even if the resolution had not been adopted, the provisions of the county development plan prohibiting mining and quarrying development which would impair the visual environment, etc., might well have resulted in a refusal of planning permission. The collapse of the joint venture with Newcrest, moreover, was not caused by the ban, but by the low price of gold, the failure of the government to take any action regarding the ban and the subsequent unilateral act of Newcrest.
45. In reply, Mr Brady submitted that, in determining whether a duty of care existed, the correct approach was to look first at the conduct of the alleged wrongdoer and then determine whether, in the circumstances of the particular case, a legal relationship in the form of a duty to exercise reasonable care existed. He submitted that this was in accordance with the well known tests adopted by Lord Wilberforce in Anns v. Merton LBC [1978] AC 728 and by Costello J at first instance and McCarthy J in this court in Ward v. McMaster. He also urged that, far from indicating any public policy against a finding of negligence in cases such as the present, the statutory liability to a surcharge reflected a public policy in favour of making such findings where appropriate.
Conclusion
46. Before stating my conclusions on the issues that arise in this appeal, I think it appropriate to make some observations concerning the decision of Blayney J which gave rise to the claim for damages the subject of the appeal.
47. The first ground on which he found the resolution adopting the mining ban ultra vires was that it was not positive in nature but simply constituted a restriction on a particular form of development. He based that conclusion on the undoubted fact that, by virtue of s. 19(2) of the 1963 Act, a development plan is to consist of a written statement and a plan indicating the ‘development objectives’ for the area in question. He pointed out that ‘development’ is defined in s. 3(1) as ‘the carrying out of any works on, in or under land…’ From that, he inferred that the ‘development objectives’ referred to must have as their aim the carrying out of works on, in or under land and that they must be positive in character.
48. That is at least questionable, since sub-s. (2)(a)(i) states that the ‘development objectives’ referred to may include objectives:
for the use solely or primarily . . . of particular areas for particular purposes (whether residential, commercial, industrial, agricultural or otherwise)…
49. Thus, in the case of agricultural land, development plans may, and frequently do, legitimately include provisions ensuring that, during the currency of the plan, the land will continue to be used as agricultural land. Far from requiring the carrying out of any works on the land, such an objective would have the effect of restricting any development which would involve a change of use of the land, save for exempted development.
50. Even more critically, however, the learned judge does not appear to have had any regard to sub-s. (3) which provides that:
Without prejudice to the foregoing subsection and subs. (5) of this section, a development plan may indicate objectives for any of the purposes mentioned in the Third Schedule to this Act. . .
51. At this point the word ‘objectives’ is used without any qualification and the Third Schedule itself indicates a number of objectives which can be achieved which do not require the carrying out of works of any sort, such as (of particular relevance in the context of the present case) in Part IV at paragraph 7:
Preservation of views and prospects and of amenities of places and features of natural beauty or interest.
52. As to the second ground on which the learned judge found the mining ban ultra vires, it is undoubtedly the case that it was for An Bord Pleanala, and not the planning authority, to decide in any particular case whether a particular development constituted an exempted development or not. However, it seems to me that the prohibition of mining in a particular area could not, in law, have the effect of restricting the carrying out of any exempted development. Under the then law, contained in the Local Government (Planning and Development) Regulations 1977 (SI No. 65 of 1997) the following was an exempted development:
The use of land for the purpose of the winning and working of minerals, the carrying out of works incidental thereto (other than open cast mining or surface working or the deposit of refuse or waste materials) and, in the case of land other than land situate in an area to which a special amenity area order relates, the erection or placing of structures on the land for such specific purposes.
53. It will be noted that open cast mining or surface working is removed from the category of exempted developments and, accordingly, the effect of the mining ban would have been to require permission to be obtained for any such development in the area of the ban. No doubt the fact that the mining ban would not preclude purely underground mining would limit its efficacy to that extent, but it by no means follows, in my view, that the ban was thereby rendered ultra vires.
54. It is noteworthy in this context that Mr O’Sullivan advised the council that the imposition of the ban would be lawful, provided that the prohibition was limited to specified high amenity locations and not by reference to a crude exclusionary policy. The ban might well have been successfully challenged on the ground that it failed to meet the criteria identified by Mr O’Sullivan but that did not happen.
55. The parties naturally accepted that, there having been no appeal from the decision of Blayney J, it is binding as a matter of law for the purpose of these proceedings. I would expressly reserve for another occasion the question as to whether the decision that the mining ban was ultra vires on the grounds set out in the judgment of Blayney J was correct in point of law.
56. I consider next the different headings under which it has been contended on the hearing of this appeal that the applicants were entitled to damages.
(1) Breach of statutory duty and the applicants’ constitutional rights
57. The first breach of statutory duty alleged against the respondents arises out of the provisions of s. 19 of the 1963 Act which imposed on the respondents an obligation to make a development plan for their area. The applicants cannot complain that the respondents did not fulfil their obligation under that section, because they manifestly did. Their complaint is rather that the development plan which they made in fulfilment of their obligation under the section contained, in the form of the mining ban, a provision which was ultra vires. On one view, that complaint was met when the offending section of the plan was deleted in consequence of the judgment and order of the High Court and it is difficult to see how, in those circumstances, a claim for damages for breach of statutory duty could be well founded.
58. However, apart from that consideration, it seems to me that, in any event, a claim for damages for breach of the statutory duty imposed by s. 19 could not arise in the circumstances of the present case. The applicants, in abandoning their claim based on the tort of misfeasance in public office, have in effect conceded that the respondents, in adopting the mining ban, were not deliberately and dishonestly abusing the powers conferred on them under the 1963 Act. The decision by the respondents to include the mining ban constituted the purported exercise by them of a power vested in them by law for the benefit of the public in general. It was not the fulfilment by them of a duty imposed by statute for the specific protection of particular categories of persons, the breach of which may lead to an action for damages. It follows that the ultra vires exercise of the power in the present case could not of itself provide the basis for an action in damages. This view of the law is authoritatively confirmed by the judgment of Finlay CJ in Pine Valley Developments v. Minister for the Environment where he cited with approval the following statement of the law in the 5th edition of Wade on Administrative Law at p. 673:
The present position seems to be that administrative action which is ultra vires but not actionable merely as a breach of duty will found an action for damages in any of the following situations:
1. If it involved the commission of a recognised tort, such as trespass, false imprisonment or negligence.
2. If it is actuated by malice, e.g. a personal spite or a desire to injure for improper reasons.
3. If the authority knows that it does not possess the power which it purports to exercise.
59. The learned Chief Justice added that he was satisfied that there would not be liability for damages arising under any other heading.
60. In the present case, paragraphs 2 and 3 in the passage cited are clearly not applicable. It will be necessary to consider at a later point in this judgment whether the ultra vires act in the present case involved the commission of the tort of negligence.
61. The applicants sought to rely on the reference in the passage quoted to an administrative action which is ‘not actionable merely as a breach of duty’ and submitted that it was, accordingly, envisaged that in some instances at least an ultra vires administrative act might be actionable as a breach of duty. That is undoubtedly so, but only where, as pointed out by the learned Chief Justice, the statutory duty in question is imposed on the body concerned for the specific protection of the rights of individuals. It is clear that this is not such a case.
62. As for the damages allegedly sustained by the applicants as a result of the breach of their constitutional rights, a similar claim was made in Pine Valley, but was also rejected. In that case, the ultra vires decision by the Minister for Local Government (as he then was) to grant permission for the development of the plaintiff’s lands was treated by Finlay CJ in the course of his judgment, as having probably contributed towards a diminution in the value of the land in the plaintiff’s hands. Similarly, it could no doubt be said in the present case that the imposition of the mining ban contributed to a reduction in value of the property right represented by the prospecting licences which was vested in the applicants. Finlay CJ, however, said that:
That fact, itself however, does not, in my view necessarily mean that an injustice was done to the plaintiffs and I am certain that that does not constitute an unjust attack on the plaintiffs’ property rights…
I am satisfied that it would be reasonable to regard as a requirement of the common good an immunity to persons in whom are vested statutory powers of decision from claims or compensation where they act bona fide and without negligence.
Such an immunity would contribute to the efficient and decisive exercise of such statutory powers and would, it seems to me, tend to avoid indecisiveness and delay, which might otherwise be involved.
63. I am satisfied that those considerations also apply to the present case. The remedy available to persons affected by the commission of an ultra vires act by a public authority is an order of certiorari or equivalent relief setting aside the impugned decision and not an action for damages, to allow which, in the case of public officials, would be contrary to public policy for the reasons set out by Finlay CJ in the passage just cited.
64. It was urged in the present case that this view of the law was not in accordance with the provisions of the European Convention on Human Rights and Fundamental Freedoms as applied by the European Court of Human Rights in Osman v. United Kingdom. At the time of writing, the Convention is not part of our domestic law. However, I am in any event satisfied that the decision in Osman is of no assistance to the applicants. That was a case in which the courts in the United Kingdom had struck out proceedings for negligence against the police brought by the family of a victim of manslaughter. The Court of Appeal had done so on a preliminary application on the basis of a so-called exclusionary rule laid down by the House of Lords on grounds of public policy in Hill v. Chief Constable of West Yorkshire [1989] AC 53. That was held to be in breach of article 6(1) guaranteeing to everyone the right to have any claim relating to civil rights and obligations brought before a court or tribunal. However, that was because the court was considering a claim in negligence and not one based on an ultra vires act. It was, moreover, a case in which the merits of the applicants’ claim having regard to the facts of the particular case had never been the subject of an adjudication by a competent tribunal. In the present case, the plaintiffs’ claim based on negligence has been fully considered and rejected by the High Court and has been the subject of a fully argued appeal to this Court.
65. It was also submitted that the decision in Pine Valley and of the High Court in the present case were not in accordance with EC Law as laid down by the Court of Justice in Francovich v. Italy. However, the decision in the latter case was to the effect that an action for damages would lie against a public authority in a member state which had acted in breach of EC Law where damage had been sustained as a result. The applicants’ claim for damages in the present case is grounded on alleged breaches of Irish law and not of EC Law.
(2) Legitimate expectation
66. The doctrine of legitimate expectation, as it has come to be called, derives, it would seem, from the jurisprudence of the European Court of Justice, although some have seen it as also constituting a development of the English doctrine of promissory estoppel. It made its first appearance in our law in Smith v. Ireland and Others [1983] ILRM 300 where Finlay P, as he then was, found on the facts that it had not been established that a legitimate expectation of the plaintiff had not been met. In Council of Civil Service Unions v. Minister for the Civil Service [1985] AC 374, Lord Diplock said that it arose in the case of decisions which affected other persons by
(a) altering rights or obligations of that person which are enforceable by or against him in private law; or
(b) … depriving him of some benefit or advantage which either
(i) he had in the past been permitted by the decision maker to enjoy and which he can legitimately expect to be permitted to continue to do until there has been communicated to him some rational grounds for withdrawing it on which he has been given an opportunity to comment, or
(ii) he has received an assurance from the decision maker will not be withdrawn without giving him first an opportunity for advancing reasons for contending that they should not be withdrawn.
67. In the same case, Lord Roskill said:
As the cases show, the principle is closely connected with ‘a right to be heard’. Such an expectation may take many forms. One may be an expectation of prior consultation. Another may be an expectation of being allowed time to make representations especially where the aggrieved party is seeking to persuade an authority to depart from a lawfully established policy adopted in connection with the exercise of a particular power because of some suggested exceptional reasons justifying such a departure.
68. There is authority in Ireland for the proposition that, to the extent that the doctrine of ‘legitimate expectation’ exists in our law, the circumstances in which it arises are those identified in the passages cited. As Costello J pointed out in Tara Prospecting Ltd v. Minister for Energy [1993] ILRM 771 (a case coincidentally also arising out of the exploration of gold in County Mayo) at p. 783:
…The case law developed in England has established that a duty to afford a hearing may be imposed when such expectations are created by public authorities. The correlative right thus arising is therefore a procedural one. And it is important also to recognise that the claim I am now considering is a very different one. It is not that the legitimate expectations which the applicants held entitled them to a fair hearing (such a right arising from constitutional and well established common law principles I have already considered), but that they created a right to the benefit itself which should be enforced by an order of mandamus….
69. Having considered the authorities in Ireland and elsewhere, he then went on to hold inter alia that:
In cases involving the exercise of a discretionary statutory power the only legitimate expectation relating to the conferring of a benefit that can be inferred from words or conduct is a conditional one, namely, that a benefit will be conferred provided that at the time the Minister considers that it is a proper exercise of the statutory power in the light of current policy to grant it. Such a conditional expectation cannot give rise to an enforceable right to the benefit should it later be refused by the Minister in the public interest.
70. It has been said that this is an unduly restrictive approach and that there is no reason, in logic or principle, why the doctrine cannot be successfully invoked so as to declare a person entitled, in an appropriate case, not simply to fair procedures, but to the benefit which he was seeking in the particular case. (See the decisions of the High Court in Duggan v. An Taoiseach [1989] ILRM 710 and Abrahamson v. Law Society of Ireland [1996] 1 IR 403; [1996] 2 ILRM 481.)
71. It is unnecessary, however, in the context of the present case to determine whether the more expansive approach suggested by those decisions is to be preferred to the view of the law taken by Costello J in Tara Prospecting Ltd.v. Minister for Energy. The applicants cannot, and do not, complain that they were deprived of a benefit in the form of a grant of planning permission which, in the language of the doctrine, they reasonably and legitimately expected to receive. They never applied for such a permission. Their complaint is that the respondents imposed an improper and illegal constraint on the manner in which they would propose to consider an application from the applicants for permission, in the form of the mining ban. That unlawful fetter on the powers of the applicants was removed by the decision of the High Court and thereafter the doctrine of legitimate expectations ceased to have any relevance in this case.
72. It should also be pointed out that the judgment of Finlay CJ in Webb v. Ireland, on which the applicants also relied, proceeded on the basis that the facts in that case gave rise to a sustainable claim based on promissory estoppel, rather than on the doctrine of legitimate expectations as that doctrine has been explained in the other authorities to which I have referred. Webb was, moreover, a decision which turned on particular facts – specifically the assurance that the finder of the chalice would be honourably treated – which have no parallel in the present case.
(3) Negligence
73. There are two preliminary matters which must first be considered.
74. It was submitted on behalf of the applicants that the existence of a duty of care had not been traversed in the points of defence furnished by the respondents. However, at paragraph 19 of the points of defence the respondents denied that they were guilty of negligence or breach of duty and the particulars of negligence and breach of duty are also expressly denied in paragraph 22. It was clearly implicit in those pleas that the respondent was contending that it was under no duty of care or, if it was, that it was not in breach of the relevant duty. Apart from that consideration, whether a duty of care existed in the particular circumstances of this case was a matter of law and, on the orthodox view of the function of pleadings, the absence of a duty of care did not have to be expressly pleaded by the respondents. There is, of course, no question of the applicants having been taken in any way by surprise either in this court or in the High Court, having regard to the detailed written submissions furnished in both courts on the legal aspects of the case, and I would, accordingly, reject the submission based on this pleading point.
75. The second issue is in relation to the findings of fact made by the learned trial judge. As already noted, although no notice to vary had been served on behalf of the respondent, Dr Forde argued that the inferences of fact drawn by the trial judge from the evidence were not justified.
76. Although the trial judge found that the respondents had acted negligently in adopting the mining ban, I think that it is clear that, in so finding, he was not holding that they had been in breach of any duty of care they owed the applicants: a finding to that effect would have been inconsistent with the conclusions he later reached, after a consideration of the authorities, that the respondents had not been in breach of any duty of care they owed the applicants. He did, however, conclude that, in adopting the mining ban, they had done something which no reasonable local authority would have done.
77. I am satisfied that this was an inference which the trial judge was entitled to draw from the evidence and is not one which should be set aside by this court. The uncontested evidence was that the ban was adopted in the face of unequivocal advice from the officials of the respondent that it was unnecessary in planning terms and would be contrary to the interests of the people of County Mayo, since it would be a disincentive to investment and exploration and the absence of any prospecting would mean that the county would not know the extent of its mineral resources. The ban, moreover, was clearly to operate in an arbitrary manner and could not be objectively justified as being solely designed to protect high amenity locations. I will return at a later point to the question as to whether the trial judge was correct, in point of law, in also holding that the respondents had acted unlawfully in acting, as it was claimed they did, in disregard of government policy.
78. The next, and final, issue which has to be determined is as to whether the trial judge was correct in point of law in holding that, although the respondents’ action in adopting the mining ban was properly characterised as one which no reasonable planning authority could have taken, it did not constitute a breach of a duty of care owed by the respondents to the applicants as a result of which they suffered loss and are entitled to damages.
79. This has resulted in a impressively wide ranging discussion in this court as to the nature of the modern tort of negligence. The starting point is obviously the famous passage in the speech of Lord Atkin in Donoghue v. Stephenson [1932] AC 562 which, however often quoted, must be set out here again, but including an introductory passage, which is of critical importance, and is frequently omitted:
At present I content myself with pointing out that in English law there must be, and is, some general conception of relations giving rise to a duty of care, of which the particular cases found in the books are but instances. The liability for negligence, whether you style it such or treat it as in other systems as a species of ‘culpa’ is no doubt based upon a general public sentiment of moral wrongdoing for which the offender must pay. But acts or omissions which any moral code would censure cannot in a practical world be treated so as to give a right to every person injured by them to demand relief. In this way rules of law arise which limit the range of complainants and the extent of their remedy. The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer’s question, Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour The answer seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which were called in question.
80. The opening passage indicates that, in Lord Atkin’s view, while the law of negligence involves some general conception of relations giving rise to a duty of care, it necessarily embodies rules of law which limit the range of complainants and the extent of their remedy. The well known biblical reference is then followed by Lord Atkin’s clarification of the dicta in Le Lievre v. Gould [1893] 1 QB 91 which suggested that the duty of care arose because of the ‘proximity’ of the person or property injured to the person or property which caused the injury. He pointed out that ‘proximity’ in this context should not be confined to ‘mere physical proximity’ but should extend:
to such close and direct relations that the act complained of directly affects a person whom the person alleged to be bound to take care would know would be directly affected by his careless act.
81. That was clearly an essential clarification when what was under consideration was the duty of the manufacturers of articles to the ultimate purchaser with whom they had no relationship in contract.
82. Finally, it should be noted that in Le Lievre v. Gould, in a passage cited with approval by Lord Atkin (subject to the qualification just mentioned), Lord Esher said:
If one man is near to another, or is near to the property of another, a duty lies upon him not to do that which may cause a personal injury to that other, or may injure his property.
83. That passage is of importance for two reasons. It makes it clear in the first place, that, in general, the law of negligence is directed to a positive act which causes injury or damage rather than a failure to take action so as to prevent such injury or damage. No doubt in the course of a particular operation an omission to do something may render the defendant amenable in damages: the failure of a motorist to give a required signal which results in an accident converts a blameless form of driving into negligent driving.
84. The second feature of the law of negligence identified in that passage is that, in general, for a defendant to be found guilty of negligence the careless act must have caused personal injury to, or damage the property of, the plaintiff. The law of negligence normally does not afford redress to those who have suffered what has come to be described in the authorities as ‘economic loss’ simpliciter.
85. Lord Atkin’s speech in Donoghue v. Stephenson thus established (or on another view, apparently his own, simply confirmed) that reasonable foreseeability on the part of the defendant that his actions would be likely to injure the plaintiff was a necessary but, of itself, insufficient condition of liability in negligence. It was also necessary for the plaintiff to establish that there was a relationship of ‘proximity’ between himself and the defendant which gave rise to the legal duty to take care that the foreseeable consequence was avoided. However, in cases where the damage occurred outside the familiar territory of the highway and the workplace, the application of these principles has led, throughout the common law world, to a vast range of judicial decisions not always easy to reconcile.
86. So too with the principle that no action for negligence lay in respect of purely economic loss. A major qualification of that principle was established in Hedley Byrne & Co. Ltd v. Heller & Partners Ltd. [1964] AC 465 in the case of pecuniary loss caused by a negligent misstatement, but until the much discussed decision of the House of Lords in Junior Books Ltd. v. Veitchi Co Ltd. [1983] 1 AC 520 it remained the law in both England and Ireland that, negligent misstatement apart, no action in negligence lay in respect of such damage.
87. In the following passage in his speech in Anns v. Merton London Borough Council [1978] AC 728 at p. 751, Lord Wilberforce set out the principles which in his view determined the existence of the scope of a duty of care:
Through the trilogy of cases in this House, Donoghue v. Stephenson, Hedley Byrne & Co Ltd. v Heller & Partners Ltd. and Home Office v. Dorset Yacht Co. Ltd the position has now been reached that in order to establish that a duty of care arises in a particular situation, it is not necessary to bring the facts of that situation within those of previous situations in which a duty of care has been held to exist. Rather the question has to be approached in two stages. First, one has to ask whether, as between the alleged wrongdoer and the person who has suffered damage, there is a sufficient relationship of proximity or neighbourhood such that, in the reasonable contemplation of the former, carelessness on his part may be likely to cause damage to the latter, in which case a prima facie duty of care arises. Secondly, if the first question is answered affirmatively, it is necessary to consider whether there are any considerations which ought to negative, or to reduce or limit the scope of the duty or the class of person to whom it is owed or the damages to which a breach of it may give rise. . . .
88. In later English cases, doubts were expressed as to whether this formula was of such universal applicability as a superficial reading might suggest. In Governors of the Peabody Donation Fund v. Sir Lindsay Parkinson & Co Ltd [1985] AC 210 at p. 240 Lord Keith of Kinkel said of this reading of the passage (and an observation of a similarly general nature by Lord Reid in Dorset Yacht Company Ltd.):
This is a temptation which should be resisted … in determining whether or not a duty of care of a particular scope was incumbent on a defendant it is material to take into consideration whether it is just and reasonable that it should be so.
89. In Yuen Kun Yeu v. Attorney General of Hong Kong, the judicial committee of the Privy Council said that the two step test had:
been elevated to a degree of importance greater than it merits, and greater perhaps than its author intended.
90. Moreover, in the compressed form adopted by Lord Wilberforce, it was open to the possible interpretation that foreseeability alone was a sufficient criterion of liability. It was also seen as eroding the distinction, already noted, between positive acts causing injury or damage and a failure to prevent such injury or damage.
91. Ultimately, in Caparo Industries Plc. v. Dickman [1990] 2 AC 605, a different approach was adopted, epitomised in a passage in the judgment of Brennan J in the High Court of Australia in Sutherland Shire Council v. Heyman (1985) 60 ALR 1:
It is preferable in my view that the law should develop novel categories of negligence incrementally and by analogy with established categories, rather than by a massive extension of a prima facie duty of care restrained only by undefinable considerations which ought to negative, or to reduce or limit the scope of the duty, and the class of person to whom it should be owed.’
92. In Caparo, Lord Bridge summed up the approach in England as follows:
What emerges is that, in addition to the foreseeability of damage, necessary ingredients in any situation giving rise to a duty of care are that there exists between the party owing the duty and the party to whom it is owed a relationship characterised by the law as one of proximity’ or ‘neighbourhood’ and the situation should be one in which the court considers it fair, just and reasonable that the law should impose a duty of a given scope on the one party for the benefit of the other.
93. The law in Ireland must now be considered. The decisions in both Donoghue v. Stephenson and Hedley Byrne v. Heller & Partners Ltd. have been considered and adopted by our courts in a number of cases and unquestionably represent the law in this jurisdiction. It has also been said (see, for example, the 3rd edition of McMahon and Binchy on the Law of Torts, chapter 6) that the two stage test adopted by Lord Wilberforce in Anns is also the test which must be adopted in this jurisdiction, having regard to the decision of this court in Ward v. McMaster.
94. The plaintiffs in that case, a married couple, had purchased a house from a builder. Shortly afterwards, they discovered that it contained serious structural defects which, if not repaired, would render it dangerous and a risk to health. The plaintiffs had bought the house with the assistance of a loan from the local authority under the relevant housing legislation. They had not had any independent examination of the house by a surveyor carried out before they bought it, but it had been examined on behalf of the local authority by an auctioneer. The plaintiffs sued both the builders/vendor and the local authority. Their claim against the latter was based on the contention that the local authority should have known that the plaintiffs, not being persons of means, would be unlikely to retain their own independent surveyor and would have relied on an appropriate inspection having been carried out on behalf of the authority. In fact, as already noted, the examination was carried out by an auctioneer who was not a qualified surveyor and whose report did not reveal the defects in the house.
95. In the High Court, the plaintiffs’ claim against both the builder and the local authority succeeded. Although the damage which resulted was, on one view, purely economic loss, Costello J in the High Court was satisfied that it was recoverable in the light of the decision in Junior Books Ltd. v. Veitchi Company Ltd. Having considered the authorities in England, he stated the legal principles which were applicable in determining whether a duty of care arose in the circumstances of that case to be as follows:
(a) When deciding whether a local authority exercising statutory functions is under a common law duty of care the court must firstly ascertain whether a relationship of proximity existed between the parties such that in the reasonable contemplation of the authority carelessness on their part might cause loss. But all the circumstances of the case must in addition be considered, including the statutory provisions under which the authority is acting. Of particular significance in this connection is the purpose for which the statutory powers were conferred and whether or not the plaintiff is in the class of persons which the statute was designed to assist.
(b) It is material in all cases for the court in reaching its decision on the existence and scope of the alleged duty to consider whether it is just and reasonable that a common law duty of care as alleged should in all the circumstances exist.
96. In the case of the local authority, he held that it was within the reasonable contemplation of the second named defendant that carelessness on its part in carrying out the valuation of the house might be likely to cause damage to the purchaser. It was consistent with the local authority’s public law powers that they should be accompanied by a common law duty of care in favour of the plaintiffs and he further held that, for similar reasons, it was ‘just and reasonable’ that the court should hold that a duty of care arose in that case.
97. The local authority appealed to this court which unanimously upheld the judgment of Costello J. However, although there was, as in this case, an extensive debate as to the nature and scope of the duty of care, Henchy J was satisfied that the facts of the case were such that it could be decided in accordance with what he described as ‘well established principles’. In his view, the relationship between the first named plaintiff and the local authority was such that the latter owed a duty to him to take due care in the valuation of the house since they should have known that, in the light of his lack of means, he would rely on their having carried out an appropriate valuation. There is, accordingly, nothing in his judgment to indicate that he was adopting the more expansive view of the extent of the duty of care, rightly or wrongly attributed to Lord Wilberforce in Anns, rather than the more restrictive approach subsequently adopted in the English authorities.
98. By contrast, in the only other judgment delivered in this court, McCarthy J expressly endorsed the two stage test adopted by Lord Wilberforce and added
Whilst Costello J essentially rested his conclusion on the ‘fair and reasonable’ test, I prefer to express the duty as arising from the proximity of the parties, the foreseeability of the damage, and the absence of any compelling exemption based upon public policy. I do not, in any fashion, seek to exclude the latter consideration, although I confess that such a consideration must be a very powerful one if it is to be used to deny an injured party his right to redress at the expense of the person or body that injured him.
99. As to the passage already cited from the judgment of Brennan J in Sutherland Shire Council v. Heyman, the learned judge commented that:
This verbally attractive proposition of incremental growth …suffers from a temporal defect – that rights should be determined by the accident of birth.
100. Finlay CJ and Griffin J said that they were in agreement with the judgments of both Henchy J and McCarthy J: Walsh J confined his concurrence to the judgment of McCarthy J
101. While the decision in Ward v. McMaster has been treated by some as an unqualified endorsement by this court of the two stage test adopted by Lord Wilberforce in Anns, it is by no means clear that this is so. As already noted, Henchy J was satisfied that the case could be decided by reference to ‘well established principles’ and made no reference in his judgment to the two stage test in Anns. Since Finlay CJ and Griffin J expressed their agreement with both the judgments of Henchy J and McCarthy J, it is not clear that the observations of the latter in relation to the two stage test in Anns necessarily formed part of the ratio of the decision. Given the far reaching implications of adopting in this jurisdiction a principle of liability in negligence from which there has been such powerful dissent in other common law jurisdictions, I would not be prepared to hold that further consideration of the underlying principles is foreclosed by the dicta of McCarthy J in Ward v. McMaster.
102. In considering whether that approach, or the more cautious approach favoured in Caparo Industries plc. v. Dickman and Sutherland Shire Council v. Heyman should be adopted, I think it is helpful to refer again to the philosophy reflected in Lord Atkin’s approach in Donoghue v. Stephenson. The bystander who sees a building on fire and knows that there are people inside no doubt foresees that if he waits for the fire brigade to arrive rather than attempting to rescue them himself they may die. But the law has never imposed liability in negligence on a person who fails to act as a more courageous citizen might in such circumstances. A strict moral code might censure his timidity: the law of negligence does not. It is precisely that distinction drawn by Lord Atkin between the requirements of morality and altruism on the one hand and the law of negligence on the other hand which is in grave danger of being eroded by the approach adopted in Anns as it has subsequently been interpreted by some. There is, in my view, no reason why courts determining whether a duty of care arises should consider themselves obliged to hold that it does in every case where injury or damage to property was reasonably foreseeable and the notoriously difficult and elusive test of ‘proximity’ or ‘neighbourhood’ can be said to have been met, unless very powerful public policy considerations dictate otherwise. It seems to me that no injustice will be done if they are required to take the further step of considering whether, in all the circumstances, it is just and reasonable that the law should impose a duty of a given scope on the defendant for the benefit of the plaintiff, as held by Costello J at first instance in Ward v. McMaster, by Brennan J in Sutherland Shire Council v. Heyman and by the House of Lords in Caparo Industries plc. v. Dickman. As Brennan J pointed out, there is a significant risk that any other approach will result in what he called a ‘massive extension of a prima facie duty of care restrained only by undefinable considerations…’
103. I observe, in this context, that it has been suggested in England that the difference in approach between Anns and Caparo may ultimately be of no great significance, since the considerations which, in a particular case, may negative the existence of a duty of care under the Anns formulation are consistent with an assessment as to whether it is just, fair and reasonable to impose such a duty in the particular circumstances. (See the comments of Lord Hoffman in Stovin v. Wise [1996] AC 923 at p. 949.)
104. In the present case, we are concerned with negligence alleged against a public authority in the performance of a statutory function. The circumstances in which a duty of care can be said to arise in the case of such authorities when exercising statutory functions has also given rise to an enormous volume of decided cases in the common law world, to many of which we were referred. There are, of course, many instances in which a public authority will be liable in negligence because the duty of care imposed on the law by them is no different from that arising in private law generally. Obvious examples are the duties owed by local and other public authorities arising out of their occupation of premises or their role as employers. In such cases, the plaintiff does not have to call an aid the fact that the defendants may have been exercising a statutory function: their duty of care as occupiers, employers, etc., is no greater, but also no less, than that of their counterparts in the private sector.
105. Difficulties have arisen, however, in determining whether, and to what extent, a statutory authority can be made amenable in damages for the negligent exercise of a power which they were entitled, but not obliged, to invoke. In Anns, it had been held that, although a local authority was not under a duty to inspect the foundations of buildings, it could be made liable where proper consideration had not been given to the question as to whether they should inspect or not. In Siney v. Dublin Corporation [1980] IR 400, this court held that, where a flat had been provided by a local authority pursuant to their duties under the relevant housing legislation, they were obliged to take reasonable care to ensure that it was fit for human habitation and that, accordingly, they were liable in damages because appropriate humidity tests had not been carried out in order to determine whether the flat would be sufficiently ventilated. In Ward v. McMaster, as we have seen, the local authority were found liable in damages for having failed to carry out a valuation by a qualified surveyor in circumstances where it could not be suggested that they were under a statutory duty to provide themselves or anyone else with such a valuation, although they were undoubtedly authorised so to do. Again, in the judgments of Costello J at first instance and McCarthy J in this court, Anns is cited with approval as authority for the proposition that a duty of care arises in such circumstances.
106. In Anns, it was suggested that the imposition of a duty of care in cases of this nature was justified where the nature of the statutory power was such that it was obviously the intention of the legislature that it would be exercised and that, accordingly, a negligent failure to exercise what were described as ‘operational’ powers or duties could give rise to liability. In subsequent cases in England, however, it has been said that the distinction between policy and operations may not be a particular useful guide in determining whether a duty of care should be found to exist in any particular case. Similar considerations apply to the distinctions drawn in some of the authorities between discretionary and non-discretionary decisions.
107. For the purposes of this case, it is sufficient to say that the mere fact that the exercise of a power by a public authority may confer a benefit on a person of which he would otherwise be deprived does not of itself give rise to a duty of care at common law. The facts of a particular case, however, when analysed, may point to the reasonable foreseeability of damage arising from the non-exercise of the power and a degree of proximity between the plaintiff and the defendant which would render it just and reasonable to postulate the existence of a duty of care. That approach is consistent with the reluctance of the law to impose liability for negligence arising out of an omission to act rather than out of the commission of positive acts which may injure persons or damage property. In the present case, the decision by the respondents that they would not grant planning permission for any mining development within the area covered by the ban was, on the assumption that it was intra vires, the exercise by them of a statutory power which would result in the withholding of a benefit from the applicants which would foreseeably result in their suffering financial loss. But, although such a loss was undoubtedly reasonably foreseeable, when one bears in mind that the powers in question were exercisable by the respondents for the benefit of the community as a whole and not for the benefit of a defined category of persons to which the applicant belonged (as in Siney and Ward v. McMaster), I am satisfied that there was no relationship of ‘proximity’ between the plaintiffs and the respondents which would render it just and reasonable to impose liability on the respondents.
108. In considering whether such a relationship of ‘proximity’ existed and whether it would be just and reasonable to impose a duty of care on the respondents, I think one also has to bear in mind that this was not a case in which it could reasonably be said that the applicants, in incurring the expense of their prospecting activities, could be said to have been relying on the non negligent exercise by the respondents of their statutory powers. Their position is in contrast to that of the plaintiffs in both Siney and Ward v. McMaster where, in each case, they belonged to a category of persons for whose benefit a particular statutory framework had been created and who might reasonably be said to have relied on the local authority in each case taking reasonable care in the exercise of the statutory powers vested in them. The applicants in the present case could rely on no more than a general expectation that the respondents would act in accordance with the law which is not, in my view, sufficient to give rise to the existence of a duty of care.
109. It is also far from clear that the applicants have established that what the High Court judge found to be the unreasonable manner in which they had adopted the mining ban caused the damage of which they complain. Had they observed the criteria which Mr O’Sullivan SC had advised were appropriate in adopting the ban they would still have been found to have acted ultra vires in the High Court on the grounds set out in the judgment of Blayney J Accordingly, even if they had confined the ban to a significantly smaller area in a manner which could have been justified on objective criteria relating to the need to protect areas of particular scenic beauty, and which included those areas in which the applicants were prospecting, it would still have been set aside on those grounds. I should add that I am also satisfied that Dr Forde was correct in submitting on behalf of the respondents that it had not been established that the respondents had acted in breach of their statutory obligation pursuant to s. 7(1)(e) of the Local Government Act 1991 to
have regard to….
(e) policies and objectives of the government or any Minister of the government in so far as they may affect or relate to its functions…
110. There was no evidence to indicate that the respondents simply ignored the letter from the Minister for Energy: on the contrary, they adjourned the meeting at which they were to make the vital decision so that the Minister’s views could be considered. The fact that they are obliged to have regard to policies and objectives of the government or a particular Minister does not mean that, in every case, they are obliged to implement the policies and objectives in question. If the Oireachtas had intended such an obligation to rest on the planning authority in a case such as the present, it would have said so.
111. There remains the question of economic loss. The reason why damages for such loss – as distinct from compensation for injury to persons or damage to property – are normally not recoverable in tort is best illustrated by an example. If A sells B an article which turns out to be defective, B can normally sue A for damages for breach of contract. However, if the article comes into the possession of C, with whom A has no contract, C cannot in general sue A for the defects in the chattel, unless he has suffered personal injury or damage to property within the Donoghue v. Stephenson principle. That would be so even where the defect was latent and did not come to light until the article came into C’s possession. To hold otherwise would be to expose the original seller to actions from an infinite range of persons with whom he never had any relationship in contract or its equivalent.
112. That does not mean that economic loss is always irrecoverable in actions in tort. As already noted, economic loss is recoverable in actions for negligence misstatement. In Siney, economic loss was held to be recoverable in a case where the damages represented the cost of remedying defects in a building let by the local authority under their statutory powers. Such damages were also held to be recoverable in Ward v. McMaster, the loss being represented by the cost of remedying defects for which the builder and the local authority were held to be responsible. In both cases, the loss was held to be recoverable following the approach adopted by the House of Lords in Anns. While the same tribunal subsequently overruled its earlier conclusion to that effect in Murphy v. Brentwood District Council [1991] 1 AC 398, we were not invited in the present case to overrule our earlier decisions in Siney and Ward v. McMaster.I would expressly reserve for another occasion the question as to whether economic loss is recoverable in actions for negligence other than actions for negligent misstatement and those falling within the categories identified in Siney and Ward v. McMaster and whether the decision of the House of Lords in Junior Books Ltd. v. Veitchi Co. Ltd. should be followed in this jurisdiction.
113. I would dismiss the appeal and affirm the order of the High Court.
Fennelly J.
114. I agree with the judgment of the Chief Justice that the appeal should be dismissed. The appeal raises issues of importance concerning the liability of public authorities to pay compensation for ultra vires decisions.
115. It is necessary for a proper understanding of the issues to be aware of the facts. These have been very fully explained both in the judgment of the learned High Court judge and that of the Chief Justice. Any repetition of those accounts would be needless and wasteful. I will content myself with recounting the barest essentials facts so as to highlight the central legal issues.
116. The appellants, at all material times, held licences to prospect for minerals in areas of Count Mayo. These were granted to them in 1986 by the Minister for Energy under statutory powers. As a result of prospecting and exploration operations pursuant to the licences, they had made findings of gold deposits in commercial quantities in these area but this was an expensive business. They had expended some £2 million in proper and effective reliance on their rights under the licences. The finds were attractive enough to persuade Newcrest Mining Ltd, an important Australian gold producer, to agree in 1991 to invest £1 .6 million in the venture and, in reality, by acquiring a 5 1% interest to become a partner in the enterprise.
117. The elected members of the respondent, the planning authority for the County of Mayo, adopted a new development plan, in early 1992. Amidst considerable controversy, an amendment providing for a policy which would amount to an effective ban on mining development was included in the plan. It said:
It is the policy of the council that no development and/or work shall take place in relation to minerals (as defined by the Minerals Act 1940, as amended) in the areas shown dotted on map 10A.
118. I will call this, for the sake of brevity, the ‘mining ban.’ Obviously, the statute is the Minerals Development Act 1940. The mining ban purported to affect an area, delineated in map 10A. of some 300 square miles, in the Westport electoral area, constituting about one seventh of the area of the entire county, and including the areas covered by the appellants’ licences.
119. The result of the mining ban was that the prospective partner withdrew. For practical purposes the entire venture has become what was colourfully described by the managing director of the first named appellant as a ‘dead duck.’ Its investment expenditure is written off as a total loss. The learned trial judge found that the appellants have no further intention of carrying out any work in the areas covered by the licences.
120. The appellants challenged the validity of the mining ban in judicial review proceedings. In a judgment of 13 November 1992. Blayney J held the mining ban to be ultra vires the powers of the respondent and made an order annulling it. I do not consider it necessary to review the reasons for that decision. Although the Chief Justice raises significant queries as to its correctness, the respondent did not appeal the order of the High Court, which now must be regarded as correct. The starting point for consideration of the legal issues on the appeal is that the respondent, as planning authority, in purported exercise of its statutory powers, made a decision, which it had no power to make. As a consequence, it became obvious that the appellants’ mining prospect was rendered valueless. The learned trial judge has found as a fact that the mining ban caused the appellants’ mining project to collapse and that the judgment of Blayney J did not lead to any revival of confidence. The appellants claim that they should be allowed to recover damages from the respondent for losses in the form of the monies expended by them prior to the imposition of the mining ban.
121. A large part of the argument concerning the liability of the respondent necessarily centred on the contents of the legal advice received by the respondent from its solicitors and counsel regarding its power to include the mining ban in its development plan combined, of course, with the respondents state of knowledge of the likely effect of the mining ban on the appellants.
122. The knowledge of the respondent of the appellants’ interest is easily established. The appellants objected in writing to the draft development plan on 2 May 1991. Its letter was transmitted to Mr Michael Browne, the county solicitor, who, in conveying his legal advice dated 5 May 1991 to the respondent at the height of the controversy specifically drew attention to the fact that the appellant had been prospecting in the area for some time. He presciently warned that adversely affected mining companies might seek judicial review. On 5 December 1991, the appellants wrote to the respondent pointing out that the only areas selected for inclusion in map 10A were areas which had been of particular interest to mining companies. They demanded the withdrawal of the mining ban and put the respondent clearly on notice of its intention to sue it for any loss it would suffer as a result of the ban. Thus, the respondents were fully conscious not only of the fact that the mining ban would cause loss to mining companies and the appellants in particular but that they would be sued for any consequential losses. Loss to the mining interest was, of course, inherent in the mining ban. Its very purpose was to make it difficult if not impossible for mining to be permitted in the area covered by map 10A.
123. The position regarding the state of knowledge of the respondent of its legal power to impose the mining ban is not so clear cut. Central to this issue is the advice of Mr Philip O’Sullivan, senior counsel, now O’Sullivan J and the respondent’s appreciation of its effect. Mr Browne had raised in quite a pointed way the question of the validity of the resolution to include the mining ban in the development plan. He covered issues of powers under the planning acts, breach of Article 43 of the Constitution and legitimate expectation all of which, to some degree, have made an appearance in the course of this litigation. Mr Browne’s advice was not, of course, conclusive. He said:
In view of the risks to the council in adopting this resolution as an objective of the plan and the many and complex areas of Iaw involved I would require some time to complete inquiries . . . to consider further the implications and to submit a detailed case for the opinion of the appropriate senior counsel.
124. In the event, Mr O’Sullivan was asked to advise. Because of its central role in considering the matters now before the court, at the risk of repetition, I will set out in full the part of his opinion which is cited by the learned trial judge:
125. I have not seen map 10A referred to in the resolution proposing the amendment to the mineral policy in the draft plan, but the wording refers to areas in the plural and I make the assumption that the map refers to a number of locations where mining activity is to be excluded. This suggests that the map was prepared with a degree of attention to detail and care to limit the exclusionary prohibition to specified high amenity locations rather than by reference to a crude exclusionary policy. In my opinion a planning authority is perfectly within its rights to make a decision in principle in its development plan that no mining would take place in particular areas where they perceive such mining activities are in conflict with amenity or other natural resources and to have a policy in the development plan stating this. A planning authority in general is under a positive obligation to formulate policies and to express them in the development plan, and in my opinion the proposed amendment is doing just this. I assume the proposal is reasonable in the sense that it is made by reference to objective criteria. It does not have to be the best policy or a policy which a judge would approve, or a policy which no one could criticise or which could not be improved. Providing it is based on objective criteria and is made bona fide, having regard to the proper planning and development of the area then, in my opinion, it is within the powers of the planning authority to have such a policy and the jurisdiction to make it is contained in Part III of the 1963 Planning Act as amended.
126. Having quoted this extract, the learned trial judge continued:
127. Had Mr O Su1livan seen map 10A, comprising as it does three hundred square miles or one-seventh of the total area of Co. Mayo, and had he been privy to the evidence in this case, I have little doubt but that he would have concluded, as indeed do I, that this ban was nothing more than a crude exclusionary policy. The map was not prepared with a degree of attention to detail. Care was not taken to limit the exclusionary prohibition to specified high amenity locations. Neither could the proposal be regarded as reasonable because it was not made by reference to objective criteria.
128. The learned trial judge then concluded: ‘It is clear from the foregoing that in essence the legal advice was to the effect that there was no power to impose it’ (meaning the mining ban). In this passage, the learned trial judge reached a conclusion as to what the opinion of Mr O’Sullivan would have been if he had seen map 10A. In doing so, he was possibly influenced by the reasoning of Blayney J. However, that decision was delivered subsequent to Mr O’Sullivan’s opinion. The core of the opinion was to the effect that a planning authority was entitled to ‘make a decision in principle in its development plan that no mining would take place in particular areas. . . .’ Kelly J may, of course, be right, but there is a degree of speculation involved. Personally, I am not persuaded that Mr O’Sullivan’s opinion would necessarily have been different if he had seen map 10A. In so saying, I acknowledge that I am, myself, influenced by the doubts cast on the correctness of the judgment of Blayney J. In any event, I do not agree with the learned trial judge’s summation of the effect of Mr O’Sullivan’s opinion being that there was no power to impose the mining ban. Kelly J himself made it clear, in any case, in an ensuing passage, that the opinion was not so understood. He went on:
That said, I am by no means satisfied that the import of Mr O’Sullivan’s advice was understood by the respondent. His advice as to the legal ability to include the ban was clearly conditional on the matters addressed in that part of the opinion from which I have just quoted. The conditions were not met. Yet the respondent appears to have concluded that the advice was to the effect that there was power to proceed, This is particularly clear when one reads the minutes of the meeting of 17 February 1992. There, there is set forth the advice of the county manager on the procedural aspect of that meeting In the course of his recital of the events giving rise to the motion being proposed, he is reported to have said:
The council considered the written representations following the last public display, at a meeting held on 11 November 1991. The plan contained a ban on mineral extraction in a specific area as outlined in map 10A. The council was informed that it was legally entitled to include such a ban although advised not to do so.
This strongly suggests that Mr O’Sullivan’s advice was understood as an imprimatur for the proposal whereas, properly understood, it did not even amount to a nihil obstat.
In any event, I am of opinion that the respondent believed (wrongly) that it had power to impose the ban.
129. The legal issues can thus be approached on the basis that Mr O’Sullivan’s opinion was not understood by the respondent as questioning the power to adopt the mining ban. My only gloss on the judgment of the learned trial judge is that I do not necessarily think that the respondents were misreading Mr O’Sullivan’s opinion when they reached that conclusion.
Damages for ultra vires acts
130. I will now turn to the legal issues which arise on the appeal. These and in particular the arguments of the appellant have been fully explained in the judgment of the Chief Justice. The starting point of the plaintiff’s claim has to be the decision of Blayney J that the mining ban was ultra vires the powers of the respondent. Since it had no power to adopt the mining ban and since the appellants suffered loss as a result of its inclusion in the development plan, they should be compensated by the respondent for the making of this invalid decision. Such a crude characterisation of the issue does not, of course, do justice to the appellants’ arguments. They do not suggest that they can establish the right to be compensated without bringing themselves within the four walls of one of the established causes of action. The lack of any link between the invalidity of a decision of a public authority and loss caused by it underlies to a substantial extent the real legal issues in the case.
131. As the learned trial judge correctly pointed out, ‘there is no direct relationship between the doing of an ultra vires act and the recovery of damages for that act.’ This fundamental proposition can be underlined in two ways.
132. Firstly, an individual needs no power to perform a wide range of actions which affect others and with the potential to affect them adversely. An individual’s activity is not actionable, however, unless it consists of the commission of some civil wrong, most usually a breach of contract or a tort. The fact that a public authority must act within the scope of the powers conferred upon it has no necessary connection with loss which may be suffered by persons affected by it. Many people or bodies corporate are affected for better or worse by the actions of public authorities in the performance of their statutory functions. However, the incidence of gain or loss to individuals is unrelated to the validity of the decisions made. A valid decision is no more or less likely to cause loss than an invalid one. Breach of a specific statutory duty is, of course, a special case to which I will return.
133. Secondly,.the nature of the tort of misfeasance in public office emphasises that lack of vires is insufficient on its own to ground a cause of action sounding in damages. Keane J, as he then was, observed in his judgment in McDonnell v. Ireland [1998] 1 IR 134 at p. 156, that that ‘tort is only committed where the act in question is performed either maliciously or with actual knowledge that it is committed without jurisdiction and with the known consequence that it would injure the plaintiff. …’ The common characteristics of those two alternative elements of that rare and unusual civil wrong are, as explained by Clarke J in Three Rivers DC v. Bank of England (No 3) [1996] 3 All ER 558 at p. 632, in a passage cited by the learned trial judge as being that the tort ‘is concerned with a deliberate and dishonest wrongful abuse of the powers given to a public officer.’ The appellants have not, of course, pursued their appeal against the rejection by the learned trial judge of their reliance on misfeasance in public office. Nonetheless, the conditions demanded by the law for success in invoking it explain the policy of the law that public authorities should not be at risk of claims for damages if they exercise their powers bona fide. Finlay CJ in a well-known passage from his judgment in Pine Valley Developments Ltd v. Minister for the Environment [1987] IR 23; [1987] ILRM 747 at pp. 38/759 said:
I am satisfied that it would be reasonable to regard as a requirement of the common good an immunity to persons in whom are vested statutory powers of decision from claims for compensation where they act bona fide and without negligence. Such an immunity would contribute to the efficient and decisive exercise of such statutory powers and would, it seems to me, tend to avoid indecisiveness and delay, which might otherwise be involved.
134. In his judgment in the same case, Henchy J stated:
Breach of statutory duty may occur in a variety of circumstances and with a variety of legal consequences. Here we are concerned only with a breach of statutory duty in the making of a decision which has been committed by statute to the decision-maker. The weight of judicial opinion as stated in the decided cases suggests that the law as to a right of damages in such a case is as follows. Where there has been a delegation by statute to a designated person of a power to make decisions affecting others, unless the statute provides otherwise, an action for damages at the instance of a person adversely affected by an ultra vires decision does not lie against the decision-maker unless he acted negligently, or with malice …in the sense of spite, ill-will or suchlike improper motive), or in the knowledge that the decision would be in excess of the authorised power:
see, for example, Dunlop v Woohllhara Municipal Council [1982] AC 158; Bourgoin SA v Ministry of Agriculture [1985] 3 All ER 585. While the law as I have stated it may be lacking in comprehensiveness I believe it reflects, in accordance with the requirements of public policy, the limits of personal liability within which persons or bodies to whom the performance of such decisional functions are delegated are to carry out their duties.
135. I respectfully agree with those statements. I would add that the absence of the right to automatic compensation for loss caused by an ultra vires act can find further justification from the protection of individual rights afforded by the existence of the remedy of judicial review. While the sufferer of loss from a lawful but non-tortious private act is entirely without a remedy, a similarly positioned victim of an ultra vires act of a public authority, by way of contrast, has at his disposal the increasingly powerful weapon of judicial review. Thus, he may be able to secure, as in this case, an order annulling the offending act. In appropriate cases, a court may be able to grant an interlocutory injunction against its continued operation. I believe that the considered statements of the law made in Pine Valley remain the law, despite apparent inconsistency with some dicta in the majority judgments in Duff v. Minister for Agriculture (No. 2) [1997] IR 22, which appear to treat liability for damages as automatically flowing from a mistake of law said to have been made by a minister. The Pine Valley case, though fully considered and applied in the High Court judgment of Murphy J in that case, does not figure at any point in the judgments of the Supreme Court. I do not believe that it can have been intended to depart from such an important principle as that laid down in Pine Valley.
136. On the appeal, the appellants pursued only the claims based respectively on breach of statutory duty, negligence, breach of legitimate expectations and infringement of constitutional rights. I propose to consider the first three. As already stated, I agree with the Chief Justice that the appeal should be dismissed. It is only in respect of the issue of legitimate expectations that my views may appear to differ to any extent.
Breach of statutory duty
137. In my judgment, the learned trial judge was correct to say that: ‘nowhere do I find either expressly or by implication that it (s. 19 of the Act) creates any duty which the legislature intended to be enforceable by an individual in a claim for damages.’ He was, in that passage thinking of the type of statutory duty that is not infrequently imposed by the legislature with the object of protecting the interests of or creating a benefit for an identifiable class of persons. The notion of a protective norm is familiar to many systems of law. For example, the appellants have cited Francovich v Italy (Case C’—6/90) [1991] ECR 1—5357, the decision which first established the principle and then laid down the criteria for establishing state liability for breach of a provision of European Community law. The first condition enunciated by the Court of Justice is that the community act which is invoked – in that case a directive – ‘should entail the grant of rights to individuals’ (paragraph 40 of the judgment). A duty imposed by statute on a public body will not be held to create a right to damages for its breach unless it can be shown to have within the scope of its intendment a reasonably identifiable protective purpose and identifiable class intended to benefit.
138. It is not possible without straining language to transpose that principle to the present case. The statutory duty, in the sense of obligation, which is imposed by the Local Government (Planning and Development) Act 1963 on planning authorities is, as the Chief Justice has made clear and as seems to be accepted by the appellants, to adopt a ‘plan indicating development objectives for their area’. However, that is a ditty imposed for the benefit of the public and not for the protection of any particular class of the public. Moreover, it is not the duty whose breach is invoked by the appellants. It was, in fact, observed when the plan was adopted. Their complaint is that the respondent acted ultra vires when it decided to include the mining ban in the development plan. The decision to include any particular objective in such a plan is more appropriately characterised as the exercise of a discretion. Whether the decision fell properly within the range of the statutory powers of the body in question is nihil ad rem. No breach of statutory duty is involved. I agree with the Chief Justice’s response to the appellants’ argument based on the qualifying phrase in the judgment of Finlay CJ in Pine Valley, which it is claimed leaves the door open for liability for an act which is ‘not actionable merely as a breach of duty’.
139. The appellants developed this argument in their written submissions stating that the degree of immunity granted to public authorities by virtue of the strict restrictions on the tort of breach of statutory duty were inconsistent with the jurisprudence of the European Court of Human Rights, in particular Osman v. United Kingdom (1998) 29 EHRR 245. The latter case originated in an action for damages commenced against the police alleging negligence in investigating complaints with tragic consequences. In Osman the Court of Human Rights held that the United Kingdom had violated article 6(1) of the convention by denying the complainants access to a court. The Court of Appeal had struck out the applicants’ statement of claim for failure to disclose a reasonable cause of action against the police. The police could not be held liable in negligence, under the precedent of Hill v. Chief Constable of West Yorkshire [1989] AC 53, for failures in the investigation of crime even to persons, who, like the applicants, had justifiably sought protection from known and identified persons who posed a real and imminent threat to their safety.
140. In evaluating the relevance of this case-law to the present case, it has to be borne in mind that the pertinent article of the convention guarantees the right to a fair trial, a right held to include the right to have access to a court competent to adjudicate on a complaint. Article 6 does not purport to regulate the substance of the legal remedies available under the law of the contracting states. The Court of Human Rights took the view that English law, as it had been interpreted by the Court of Appeal, conferred an automatic blanket immunity on the police from civil suit in respect of their acts or omissions in the investigation and suppression of crime. It was this component of English law which was held to prevent the English courts from even considering competing public interest considerations. In effect, counsel for the United Kingdom had been unable to persuade the court that ‘the rule as interpreted by the domestic court did not provide an automatic immunity to the police.’
141. Had the matter stood on the basis of the Osman ruling alone, I would not have been persuaded that Irish law confers any blanket immunity on public authorities for the consequences of their negligent acts of the sort which was there found to exist. Moreover, as it happens, the Court of Human Rights has taken the opportunity to clarify its Osman ruling in a case decided since the hearing of the appeal in the present case. On 10 May 2001, it gave judgment in Z. v United Kingdom (Application No. 29392/95,), a case concerning the liability of local authorities for alleged failures in the performance of its functions regarding the taking into care of children feared to be at risk. The court was at pains to stress, recalling earlier case-law, that article 6 did not guarantee any particular content for the relevant rights and obligations in the domestic law of the contracting states. It accepted that the House of Lords in particular, in its development of the public policy element of the law of negligence, had not conferred any blanket immunity on the public authorities in question in that case. It also frankly acknowledged that its own judgment in Osman had to be ‘reviewed in the light of the clarifications subsequently made by the domestic courts and notably the House of Lords’ (paragraph 100 of the judgment).
142. The judgments of the Court of Human Rights may be useful sources of persuasive authority where they contain reasoning relevant to the interpretation of legal rights guaranteed by the convention which are analogous to rights which are known in our law and Constitution and which our courts have to apply. The value of the Osman case as an authority is, in my view, undermined for the present case by the fact that it is concerned with a right of access to justice rather than the substance of the legal right asserted. The appellants claim in essence that the civil wrong of breach of statutory duty is unduly narrow, by reason of its failure to include within its scope the claim made in this case, namely that the appellants should be compensated for the ultra vires act of the respondent. This is a claim that the substance of the legal right being asserted insufficiently protects the interests of the appellants. The appellants’ access to the courts have not been restricted or impaired. The convention cannot via article 6 supply what is lacking in Irish law. I agree with the respondent that Osman is irrelevant.
Negligence
143. On the issue of negligence, I am in full agreement with the judgment of the Chief Justice and with his extensive treatment of the English and Irish case-law. I should advert, at first, as does the Chief Justice in his judgment, to the parameters of the appeal. The appellants failed in their claim because the learned trial judge held that the respondent did not owe them a duty of care in the exercise of their statutory powers pertaining to the drawing up of the development plan and specifically the inclusion of the mining ban. The appellants take issue with this conclusion in their notice of appeal. They say in particular that the learned trial judge:-
– gave undue weight to his view that the statutory powers were to be operated for the benefit of the public at large;
– having made findings of negligence, should have concluded that there was a duty of care;
– failed to conclude that there was no compelling reason to base an exemption from liability based on public policy.
144. They object, however, that the defence did not specifically contest the existence of a duty of care.
145. It seems to me artificial in the highest degree to ask this court to parse the pleadings of the parties in the High Court, when it seems that the existence of a duty of care was very fully considered on its merits by the learned trial judge and in circumstances where no significant objection appears to have been taken in the High Court. It is commonplace that the issues debated become transformed as a trial proceeds. If one party finds itself significantly disadvantaged by having to deal with a point not pleaded, that will become an issue at the trial and the trial judge will make rulings to ensure the fairness of the hearing. The points of claim and defence, in fact, seem to have concentrated very much on the question of whether the respondent was under a duty to ensure that it did not adopt a development plan containing a provision which it had no power to adopt. They focus very much on whether the respondent had taken proper legal advice or had proper regard to the advice which it had received.
146. I agree with the Chief Justice that the existence of a duty of care must be regarded as being in issue on the appeal. However, I think it is impossible before proceeding to discuss that issue to ignore the nature of the findings of negligence made by the learned trial judge, upon which the appellants place so much reliance. They do not, in fact, relate to the alleged duty not to act in excess of statutory powers. They are contained in the following passage from the judgment under appeal:
I have come to the conclusion that the imposition of the mining ban in the present case was done negligently. Whatever may have been the motives of the elected members, they set about achieving their goal in a way which, in my view, no reasonable local authority in receipt of the advice which they obtained would have done. It is not the function of elected representatives to slavishly give effect to their constituents’ demands come what may. They must exercise a degree of judgment in any particular case.
In this case, the evidence demonstrates that the provision of the mining ban was unnecessary. The existing planning code was sufficient to protect all legitimate planning interests. This was the advice they received from their officials. It was also the view made clear to them by the Minister for Energy. Not merely was it unnecessary from a planning point of view, but the evidence was that it was in fact contrary to the best interests of the county because it would drive away investment in exploration and the county would lose the chance of evaluating the benefits of any project put forward for planning permission. Furthermore, there was in my view no objective justification for the adoption of the ban. It was to operate in respect of all minerals, regardless of their method of extraction, value or the quantity likely to be extracted. The ban was of enormous span and it was clear, particularly from the evidence of Mr Dunleavy, that little or no thought went into the nature or the extent of the ban. It was nothing more than a crude exclusionary policy.
In concluding that the council were negligent in the sense that they did something which no reasonable authority would have done, I have yet to address the question as to whether that negligent act was done in the context of a duty of care being owed to the applicants. It is only in such context that a right to damages would arise.
147. This approach, by making findings of negligence before determining whether a duty of care exists, risks reversing the correct order of analysis. Admittedly, it was the course followed in this court in Pine Valley, where it was held that the minister could not be considered negligent without pronouncing on the existence of a duty of care. The elements of the tort of negligence are the existence of a duty of care, lack of proper care in performing that duty and consequential damage. The lack of care which we commonly call negligence consists in commission or omission of acts. In order to be actionable, the acts or omissions must be such as will reasonably foreseeably cause damage to any person to whom the duty is owed. Mere causation is not enough. As a matter of principle, it seems to me that the failure to exercise due care can only be established by reference to a recognised duty. Then one can know what sorts of act are liable to cause damage for which one is liable. This dilemma is well-illustrated by the passage from the judgment of Kelly J, which I have just quoted. At the beginning and the end of the passage, he concludes that the respondent acted as ‘no reasonable authority would have done’, a test more relevant to the validity of the exercise of statutory powers than to the failure to respect that standard of care which is owed to another to whom a duty is owed. This is consistent with the concrete criticisms made in the rest of the passage. Whether the mining ban was ‘unnecessary’ or ‘contrary to the best interests of the county. .’ or lacked ‘objective justification’ are not in my view relevant to the question of negligence. To treat these conclusions uncritically as having found the respondent to have acted negligently not only begs the question as to whether it owed the relevant duty of care but also obscures the difficult issue of liability for pure economic loss. The learned trial judge was perfectly entitled to expose the actions of the respondent to the severest criticism. However, these particular criticisms do not appear to me to have any bearing on the issue of negligence. I agree, of course, with the Chief Justice that these findings of the learned trial judge cannot be disturbed on this appeal. I also agree with his view that the making of such findings did not mean that the learned trial judge was finding the respondent to be in breach of any duty of care owed to the appellants. For these reasons, the passage in question ceases to have relevance for the issues to be decided on this appeal.
148. In these circumstances, the question has to be whether the making of an admittedly ultra vires decision can form the basis for any finding of negligence against the respondent. In this connection, the focus has to be on the legal validity of the decision. I will consider whether a public authority in the position of the respondent can be held to owe a duty of care to persons affected by its decisions to see that the decision falls within the scope of its statutory powers.
149. That seems to me to be the real issue here.
150. Let us consider the position on the hypothesis that the planning authority had the power to adopt the mining ban. On that assumption, could it have been liable to persons, natural or legal, to compensate them for economic damage suffered as the result of the incidence of the operation of the plan? In my judgment, the answer would clearly be in the negative. The development represents the culmination of a process designed to gather the views of all relevant interests, economic and social, and to give appropriate weight to them in the plan formally adopted. The authority is required to publish its proposals and receive representations from those affected or potentially affected. In its final form, it inevitably represents a whole series of compromises between potentially conflicting economic, social and environmental aims – the list is not exhaustive – and objectives. The preference given to one objective will be to the disadvantage of another and consequently to those who have an interest in that other. This is inherent in the process. In certain circumstances, a person whose property is affected by a provision in a development plan may have the right to receive compensation. Such provisions recognise the possibility that an invasion of rights for the common good may be entitled to recompense from the public purse. However, as a general proposition, those affected by the restrictive provisions of a development plan are not entitled to payment. Equally obviously, landowners affected by zoning provisions or businesses affected by restrictions adopted for policy reasons in the general interest cannot, in my view, be regarded as coming within the scope of any duty of care owed by the authority in the framing of its plan.
151. This type of effect is quite different from that which arose in Ward v. McMaster [1988] IR 337; [1989] ILRM 400. The loss suffered by the plaintiff in that case did not flow inevitably from the decision of the local authority to make the loan but rather from an act of incidental negligence in the performance of its statutory function. Similarly in Siney v. Dublin Corporation [1980] IR 400, the defendant housing authority owed a duty of care to the tenant of a flat which it provided in pursuance of its statutory power because the tenant was entitled to rely on it to ensure that the flat would be habitable. In each of these cases, an individual direct relationship came into existence by reason of the statutory context. They do not support any principle of liability arising from lack of care in the decision-making process producing foreseeable loss.
152. I return then to what I consider to be the nub of the case, whether a successful claim can be made for damages for the fact of the decision being invalid. It may be no accident that almost all of the cases in which courts have had to consider this issue concern the exercise of planning powers. The most relevant authority in this jurisdiction is Pine Valley. The judgment of Finlay CJ dealt with the claim for damages in negligence as follows:
Having regard to that finding, I am quite satisfied that the learned trial judge was right in reaching the conclusion which he did that the first defendant could not be said to have been negligent or to have been guilty of negligent misrepresentation. If a minister of state, granted as a persona designata a specific duty and function to make decisions under a statutory code (as occurs in this case), exercises his discretion bona fide, having obtained and followed the legal advice of the permanent legal advisers attached to his department, I cannot see how he could be said to have been negligent if the law eventually proves to be otherwise than they have advised him and if by reason of that he makes an order which is invalid or ultra vires. . . . I am, therefore, satisfied that in so far as the plaintiffs have appealed against the learned trial judge’s findings, that an action in damages for negligence or for negligent misrepresentation does not and cannot lie, the appeal must fail.
153. The court, having found that the minister had not, in fact, been negligent because he had taken legal advice, did not consider whether the minister would have been liable if he had taken no legal advice, in other words whether he owed a duty of care to take advice. In Pine Valley, it should be recalled, there was a close causal relationship between the losses allegedly suffered by the plaintiff and the invalidity of the decision. The plaintiff was in a position to argue at a minimum that a decision to grant planning permission would foreseeably be relied upon by potential purchasers of the affected land who would equally foreseeably suffer loss if the permission turned out to be invalid. Consequently, it could be argued that the minister should exercise reasonable care in deciding whether he had power to make the decision, In the result, the judgment of the Supreme Court did not determine whether the minister had any such obligation. He had, in fact, taken legal advice. Even though the advice was actually mistaken, the minister was not liable, because he had reasonably followed legal advice from a reputable source.
154. This problem was considered only slightly more directly in two Privy Council cases in the 1980s. In Dunlop v Woollahra Municipal Council [1982] AC 158, also, as it happens, a case concerning losses caused by an invalid planning decision, the authority had passed two resolutions subsequently held to be invalid (one for lack of vires and one for failure to observe fair procedures) which adversely affected the plaintiffs interest in a development site. Although it was expressly argued that the council owed a duty to the plaintiff to exercise reasonable care not to affect adversely his property rights by passing invalid resolutions, the Privy Council, whose advice was delivered by Lord Diplock, contented itself with saying that it shared the doubts of the New South Wales Supreme Court as to the existence of any such duty of care. It ruled against the claim in negligence on the rather more debatable ground that the plaintiff was in as good a position as the council to know that the decision was void: ‘He can ignore the purported exercise of the power’ (see p. 172.) The existence of a duty of care to take legal advice was also considered by the Privy Council in Rowling v Takaro Properties Ltd [1988] AC 473, a case which concerned a decision by a New Zealand government minister to refuse his consent under statute to an investment transaction involving the sale of shares to a non-New Zealand investor. The New Zealand Court of Appeal annulled the decision on the ground that the minister had mistakenly taken into account a reversion factor, i.e. the desirability that the property should revert to New Zealand interests. An action for damages was brought against the minister. The advice of the Privy Council on the issue of duty of care, upon which the respondent relied strongly. contains the following interesting statement (p. 500):
The character of the claim is novel. So far as their Lordship are aware, it has never previously been held that where a minister or other governmental agency mistakes the extent of its powers and makes a decision which is later quashed on the ground of excess of statutory powers or of an irrelevant matter having been taken into account, an aggrieved party has a remedy in damages for negligence.
155. The Privy Council did not, however, find it necessary to provide a definitive answer. It did, nonetheless, suggest some powerful considerations militating against the imposition of the duty of care. These may be summarised:
— since the process of judicial review is available to correct any legally erroneous administrative decisions, the effect of such decisions is likely to be limited to delay;
— it is most unlikely that a mistaken ministerial view of the law will amount to negligence: even a judge may be mistaken in construing a statute;
— the imposition of a duty of care may be counterproductive: public authorities may become over-cautious;
— it will be extremely difficult to say in which cases a minister is under a duty to seek legal advice; it would not be reasonable to expect a minister to seek legal advice before exercising a statutory discretion.
156. Even if somewhat tentatively, the Privy Council (at p. 503) suggested:
In all the circumstances, it must be a serious question for consideration whether it would be appropriate to impose liability in negligence in these cases, or whether it would not rather be in the public interest that citizens should be confined to their remedy, as at present, in those cases where the minister or public authority has acted in bad faith.
157. Counsel for the respondent also referred the court to a decision to similar effect by the Supreme Court of Canada in 1970 (Welbridge Holdings Ltd v Metropolitan Cprporation of Greater Winnipeg (1970) 22 DLR (3d) 470). That court firmly rejected as ‘incredible’ the proposition that the municipality which had in the ultimate view of a court (albeit upon the advice of counsel) acted beyond its powers could be held to have ‘owed a duty of care giving rise to liability in damages for its breach.’
158. In my judgment, the concerns of the Privy Council are highly relevant to the question of whether and in what circumstances a duty of care to act within the limits of its statutory powers should be held to exist. If a duty to obtain legal advice is to become a component of the duty of a public authority, in which cases will it apply? An enormous number of discretionary statutory powers are exercised on a daily basis. An obligation to seek legal advice even as a counsel of perfection could have a paralysing effect on public administration. As is clear from the judgment of the learned trial judge, the mere fact of an ultra vires decision does not confer a right to compensation. It is equally clear that liability of that type including liability for failure to take legal advice has never in fact been imposed. Individuals enjoy protection from the consequences of unlawful public action in three respects: firstly, if that action consists of the commission of a recognised existing tort, including, in certain cases, negligence; secondly, unlawful decisions can be quashed on judicial review; thirdly, misfeasance in public office by knowing or malicious abuse of power, combined with the right in appropriate cases to award exemplary or punitive damages is the most appropriate remedy. I do not consider that a general duty to take legal advice can realistically be imposed on public authorities.
159. As a matter of principle, it would not be wise to rule out the possibility that a case may in the future present itself where the relationship between a person liable to be affected by a ministerial or other public law decision is entitled to expect that care will be exercised in and about the decision to take legal advice and the manner of its taking. At the least, I think it would have to be shown that the statutory power in question was of the type which is designed to protect particular interests and that the plaintiff comes within its scope. In addition, it would probably be necessary for the claim to arise from the context of the type of individual transaction which was the subject-matter of Ward v. McMaster or perhaps from the sort of reliance on the expertise of another which formed the background to Hedley Byrne & Co Ltd v. Heller & Partners Ltd [1964] AC 465. I do not consider, however, that this is such a case. There is, of course, no doubt that the appellants’ interest was well known to the respondent at the time the decision was in contemplation. The appellants could scarcely have made their interest more clear or their complaint more insistent. The respondent was fully aware that the appellants would be affected by a mining ban. But that is not enough to take them out of a class of mining enterprises actual and potential similarly affected. They were not engaged in any direct legal relationship with the respondent. Their prospecting licences had been granted by the State. They had not made any application for planning permission, not that that would necessarily alter the position. In short, I do not believe that the respondent owed a duty of care to the appellants either to take legal advice or to take further steps to follow it up.
160. In addition to the foregoing, I think it is clear in any event that the effect of the legal advice actually given, as I have summarised it above, was not understood as casting any doubt on the respondent’s power to impose the mining ban. For that reason, the respondent could not be held to have acted negligently, I would uphold the decision of the learned trial judge that the respondent did not owe a duty of care to the appellants to ensure that its decision to adopt the mining ban was valid.
Legitimate expectations
161. I am in full agreement both with the learned trial judge and with the Chief Justice that the appellants have not made out a case for infringement of their legitimate expectations. This is because the particulars of failure they allege do not come, in my view, in any meaningful way at all within the concept of action or inaction by a public authority which an affected individual has the right legitimately to expect. Consequently, I am not sure that this is an appropriate case in which to delineate the contours of the principle of legitimate expectations.
162. I believe that the learned trial judge was correct in concluding that:
There is neither allegation nor evidence supporting any promise, express or implied, on the part of the respondent. It was never represented to the applicants that they would obtain planning permission. Furthermore, the applicants could not, in my view, have had a legitimate expectation that planning permission would be given for mining even in the absence of the mining ban.
163. In their written submissions, the appellants say:
The appellants submit that they had a legitimate expectation that the respondent would act lawfully; that the respondent would have regard to ministerial and governmental policy; that the respondent would only include development objectives in the development plan; that the respondent would pay due regard to the advices of the county manager, county engineer, senior executive planner and solicitor advising Mayo County Council; that the respondent would not act contrary to its legal obligations having received the letter from the Minister for Energy dated 16 December 1991; that the respondent would not seek to circumvent the statutory procedure for the making of a special amenity area order by the misuse of the powers to make a development plan; that the respondent would not seek to prejudge all applications for the development of mines within a substantial part of the area for which they were responsible; that the respondent would act legally and fairly toward the appellants.
164. None of these matters, which paraphrase and repeat the submissions of the appellants as summarised in the judgment of the learned trial judge, amount in substance to saying any more than that the appellants had a legitimate expectation that the respondent would act properly and lawfully. Kelly J was right, in my view, to seek in the evidence or submission something in the nature of an undertaking or promise or representation express or implied addressed to or applicable to the appellants. I do not say that there must be a direct nexus. It may be sufficient that the claimant belongs to a class or group of persons affected by an act which is accompanied by or implies an intention to follow an identifiable course of conduct by the public authority. Every citizen can, however, assert an expectation that public authorities will act within the law, but that is clearly not enough. If it were, the doctrine would be almost meaningless and would duplicate the ordinary right, for example, to seek judicial review of administrative action. For that reason, I would dismiss the appeal. Consequently, my further comments on this issue are obiter.
165. The principle of respect for legitimate expectations is generally acknowledged to have originated in German administrative law where it is stated to constitute a fundamental, even a constitutional principle. Its proximate origins are to be found in the decision of the Court of Justice in 1973 (Commission v Council (Case 81/72) [1973] ECR 575), a case described as the locus classicus of the principle, concerning the indexation of pay of community officials. The council had gone back on a decision to adopt an average of two indices for annual pay increases in favour of the single lower one, and the commission challenged this before the court. The court annulled the relevant parts of the Council regulation, resting its decision on what it called ‘the rule of protection of the confidence that the staff could have that the authorities would respect undertakings’ (paragraph 10 of the judgment). Thus there came to be recognised the doctrine, described in the headnote of the case as ‘legitimate confidence’ corresponding to the French ‘confiance légitime’. In the context of European Community law, the doctrine undoubtedly has potentially substantive content. Part of the milk quota regime was annulled for failure to take account of the legitimate expectations of a group of farmers who should have been allowed a quota. (Mulder v Minister van Landbouw en Visserij (Case 120/86,)[1988] ECR 2321).
166. The Chief Justice in his judgment has reviewed a number of the cases on the doctrine of legitimate expectations as it has come to be recognised independently in our courts as well as in the United Kingdom. The dilemma he identifies is whether the doctrine, as Costello J ruled in Tara Prospecting Ltd v. Minister for Energy [1993] ILRM 771, confers only a conditional expectation’ capable of being withdrawn by the authority, following a fair hearing in the public interest, or whether it is capable of conferring substantive rights. I agree with the Chief Justice that it is not necessary for the court to choose in this case between those two alternatives. The appellants have not identified any meaningful legitimate expectation.
167. It is true that an official exercising a statutory power will, in most cases, have no greater obligation than to afford a hearing to an affected individual before departing from a prior position or policy. In other cases, this may not be enough. The damage may be done. It may not be possible to restore the status quo. If the official position is altered, the court may have to furnish ‘such remedy as the equity of the case demands’ (per Denning MR in Amalgamated lnvestment & Property Co. v Texas Commerce International Bank [1982] QB 84 at p. 122). The Court of Justice seems to me to accord due weight to the competing imperatives of private justice and public policy in an often quoted passage (Tomadini v. Amministrazioni delle Finanze dello Stato (Case 84/78) [1979] ECR 1801 at paragraph 20):
… [I]f in order to deal with individual situations the community institutions have laid down specific rules enabling traders in return for entering into certain obligations with the public authorities to protect themselves – as regards transactions definitively undertaken – from the effects of the necessarily frequent variations in the detailed rules for the application of the common organisation the principle of respect for legitimate expectations prohibits those institutions from amending those rules without laying down transitional measures unless the adoption of such a measure is contrary to an overriding public interest.
168. In order to succeed in a claim based on failure of a public authority to respect legitimate expectations, it seems to me to be necessary to establish three matters. Because of the essentially provisional nature of these remarks, I would emphasise that these propositions cannot be regarded as definitive. Firstly, the public authority must have made a statement or adopted a position amounting to a promise or representation, express or implied, as to how it will act in respect of an identifiable area of its activity. I will call this the representation. Secondly, the representation must be addressed or conveyed either directly or indirectly to an identifiable person or group of persons, affected actually or potentially, in such a way that it forms part of a transaction definitively entered into or a relationship between that person and group and the public authority or that the person or group has acted on the faith of the representation. Thirdly, it must be such as to create an expectation reasonably entertained by the person or group that the public authority will abide by the representation to the extent that it would be unjust to permit the public authority to resile from it. Refinements or extensions of these propositions are obviously possible. Equally they are qualified by considerations of the public interest including the principle that freedom to exercise properly a statutory power is to be respected. However, the propositions I have endeavoured to formulate seem to me to be preconditions for the right to invoke the doctrine.
Convery v. Dublin County Council
[1996] 3 I.R. 153
Keane J. S.C.
Keane J.
The facts of this case are largely not in dispute. The plaintiff is the secretary of a residents’ association in Tallaght which represents people living in three roads in the Springfield Estate, i.e. Alderwood Park, Alderwood Avenue and Alderwood Way. The plaintiff herself has lived in the area since the early 1970s. She and other residents living on these roads have been involved for some time in a vigorous campaign to combat what is acknowledged by the defendant in these proceedings (the County Council) to be a major traffic problem. It is not in dispute that the roads in question have been carrying volumes of vehicular traffic for some time now which are far greater than the volumes for which they were designed. The congestion increased significantly as a result of the development of The Square shopping centre at Tallaght and the plaintiff and the other residents anticipate that, unless some steps are taken, it will deteriorate further as a result of the development of a hospital, a Dublin Bus headquarters and a leisure centre.
In effect, what has been happening is that both commercial traffic and motorists, many of them resident in the area, are using these roads as a short cut or, as it is now sometimes called, a “rat run”. The residents, angered by what they considered the culpable inaction of the County Council, eventually began the present proceedings. A plenary summons was issued on the 2nd December, 1993, in which the plaintiff claimed:
“(1) An injunction directing [the County Council], its servants and agents to take such steps as are necessary to prevent vehicular traffic using Alderwood Park, Alderwood Way and Alderwood Avenue, Tallaght, as an access route to Tallaght Town Square and other termini.
(2) A mandatory injunction directing [the County Council], its servants and agents to comply with the resolution of the Councillors of the defendant directing the temporary closure of Alderwood Park, Alderwood Way and Alderwood Avenue to vehicular traffic using same as an exit route.
(3) An injunction directing [the County Council], its servants and agents to abate the nuisance that is caused by the aforesaid vehicular [traffic] through Alderwood Park, Alderwood Way and Alderwood Avenue.
(4) Damages for nuisance.
(5) Further and other relief.
(6) Costs.”
The plaintiff then brought an application for an interlocutory injunction, which came on for hearing in the High Court before Carroll J. and which was treated as the hearing of the action. The plaintiff in a grounding affidavit said that as a result of the development of The Square shopping centre, the number of vehicles running through Alderwood Park had increased from 4,000 per day to approximately 12,000 per day and that this situation had become “extremely intolerable” for the residents. She referred to a traffic survey which she said had been conducted by Dublin County Council officials and in particular by their senior engineer, Mr. John Henry. This survey, having analysed the traffic flows, said that there were three possible solutions to the problem, the closure of Alderwood Park at its junction with the Old Blessington Road, the opening of Maplewood Road on to the Cookstown/Old Bawn Road and the closure of Alderwood Avenue at its northern end where a number of shops are situated. The plaintiff said that she believed that all of the participants in that survey agreed to be bound by its findings, but that the agreement had not been honoured by the County Council. She also said that the residents were finding cracks on the front walls of their homes and that there had also been some serious accidents at the junction of old Blessington Road and Alderwood Park. The residents were also suffering, she alleged, from”unbearable” noise levels and the fumes were such as to oblige the residents to keep their windows closed even in warm weather.
The plaintiff also referred to a location map provided with the deeds to the properties in the estate and said that it was clear from that map that Alderwood Park was never intended to be opened in its present state and that the Old Blessington Road was to have been a cul de sac, but that these plans had been changed for reasons unknown to the residents.
In a replying affidavit, Mr. Henry said that he did not know the basis on which it was claimed that the traffic passing through Alderwood Park had increased from 4,000 vehicles per day to approximately 12,000 per day. He denied that it was intended that the findings of the report referred to in the plaintiff’s affidavit were to be binding and, said that, in any event, no recommendations were included in the report. He said that the road closure proposals discussed were strongly resisted by the majority of the residents of the Springfield area, who took the view that the new traffic pattern would result in similar or greater traffic problems elsewhere in the Springfield area.
In another affidavit filed on behalf of the County Council, Mr. John Murphy, a senior administrative officer in its Roads Department, referred to decisions that had been taken by the elected members of the County Council. He said that a proposal by the elected members that bollards should be installed at Alderwood Avenue/Virginia Heights was advertised in the daily newspapers and approximately 2,000 objections were received to the proposal, following which the Roads and Traffic sub-committee agreed not to proceed with the proposal. At that time, the elected members passed a resolution to provide bollards at the junction of Alderwood Park/Blessington Road. On the 25th February, 1991, however, the elected members of the Council declined to pursue that proposal. On the 21st July, 1993 the County Manager advertised his intention temporarily to close the access at the junction of Alderwood Park/Blessington Road, following which 2,481 objections were received. On the 29th July, 1993, the County Manager, having considered the objections, decided not to proceed with the closure.
It appears to have been common case that, while the suggested closures would undoubtedly create traffic problems for other residents in the estate, these would be alleviated by the construction of the Cookstown/Old Bawn Road to which Maplewood Road would eventually be connected. While that project was shown as a five year objective in the development plan, there was at the time of the hearing in the High Court no commitment of the necessary funds by the Department of the Environment. We were informed, however, during the appeal that the funds were now being made available and that work on the new road would commence shortly.
There was also oral evidence at the hearing in the High Court. One of the witnesses, Mr. Kieran O’Malley, a town planning consultant, said that he had examined a “landscape map”, which was one of the documents on foot of which planning permission had been granted for the development of the estate, and on which the words “proposed cul de sac” appeared beside what he called “a hammerhead configuration” at the western end of the Old Blessington Road. There was no such indication at the eastern end but he thought that this was probably because the map did not go as far as the junction with the proposed Old Bawn/Cookstown Road. There was, however, a draft action plan for the area in 1974 which appeared to show a cul de sac at the eastern end.
In a reserved judgment, the learned trial judge said:
“I am quite satisfied that when the estate was being developed the planning permission required that the Alderwood area would form its own enclave within the Springfield estate, the only access being from the local distributor road, Maplewood Avenue. Instead of that, a temporary arrangement for access to the estate via Alderwood Park has become a convenient means of exit for many of the houses in parts of the estate further away from Tallaght Square, not to mention through traffic, including commercial traffic, from outside the estate.
I fully accept that the traffic conditions which the residents of Alderwood Park/Way/Avenue have to endure daily amounts to a public nuisance.
The question is whether the Council can be forced to abate the nuisance.
The Council can be sued for public nuisance if it arises due to negligence by the Council in the exercise of its statutory duties – see Kelly v. Dublin County Council (Unreported, High Court, O’Hanlon J, 21st February, 1986).”
She went on to say that the County Council, as planning authority, had permitted extensive development east of the Alderwood area (including The Square) without ensuring that the road infrastructure was adequate or would be so within a reasonable period and that it had not required substantial contributions from developers to ensure that at least a portion of the Cookstown/Old Bawn Road could be constructed.
She also said that the elected members of the Council had bowed to the large numbers of voters who had objected and had wrongly given priority to their representations over the legitimate complaints of a relatively small number of householders. She added that, in her opinion, the failure of the County Council to take any concrete steps to alleviate the problem amounted to negligence. She concluded:
“I will grant relief in terms that I will direct the Council to abate the nuisance within a reasonable time. It has a number of options and it is up to it to choose. I will hear submissions on what would be a reasonable time.”
It would appear that, following the delivery of this judgment, no order of the High Court was made up in order to give the County Council time to decide what option it would take.
The County Council initially sought to comply with the judgment by making use of its powers as a road authority under the Road Traffic Act, 1994 to close off one of the entrances to Alderwood Park. It appears, however, that its efforts to do so were physically frustrated by residents of the other areas, some of whom also instituted proceedings in the High Court seeking an interim injunction to restrain the County Council from interfering with vehicular access to and from Alderwood Park to the Old Blessington Road. The County Council then decided to abandon the attempts to close off the access and the High Court was so informed.
Carroll J. then made an order on foot of her judgment requiring the County Council to close Alderwood Park at its junction with Old Blessington Road within 7 days from the making of the order. The County Council now appeal from that judgment and order to this Court.
Submissions of the parties
On behalf of the County Council, Mr. O’Donnell submitted that the plaintiff had not sought to challenge any of the decisions of the County Council by way of judicial review and, in the result, the Court in this case was not concerned with any questions of public law. The appeal was solely concerned with a private law issue, i.e. as to whether the County Council was liable in tort for the damage alleged to have been caused to the plaintiff by the volume of traffic passing through Alderwood Park, Way and Avenue.
As to the claim founded on public nuisance for which the County Council was allegedly responsible, Mr. O’Donnell submitted that it gave rise to both factual and conceptual difficulties. It was not clear at what stage the right of the plaintiff to sue arose, since there was no indication as to the number of cars which could lawfully travel along the road without constituting any nuisance. He submitted, however, that the conceptual problem was even greater, since the public nuisance found to exist in the High Court was caused by individual acts none of which were unlawful, i.e. the exercise by motorists of the public right to pass and repass on a public highway. He cited in this connection the English decision of Gillingham Borough Council v. Medway (Chatham) Dock Co. Ltd. [1993] Q.B. 343 and said that the decision of O’Hanlon J. in Kelly v. Dublin County Council (Unreported, High Court, O’Hanlon J., 21st February, 1986) referred to by Carroll J was clearly distinguishable. In the latter case, the defendants had been found liable for a private nuisance resulting from their operations on a plot of land in their ownership in a residential area and a defence that they had acted without negligence in the exercise of their statutory power had been rejected.
As to the claim which had succeeded in the High Court based on negligence, Mr. O’Donnell accepted that the modern authorities, in Ireland and elsewhere, established that, in certain circumstances, a public authority could be held liable for the negligent exercise of a discretionary power. However, he submitted that the leading Irish cases ( Siney v. Dublin Corporation [1980] I.R. 400; Ward v. MacMaster [1985] I.R. 29 (High Court); 1988 I.R. 337 (Supreme Court); Sunderland v. McGreavey [1987] I.R. 372 (High Court); Sunderland v. Louth County Council [1990] I.L.R.M. 658 (Supreme Court)) established that such a liability would only arise where a duty of care in favour of the plaintiff existed independently of the duty to the public as a whole imposed on the authority by the relevant legislation. He submitted that, in the present case, the duties of the County Council as a planning authority and a road authority were owed to the public in general and that they were under no duty of care towards the plaintiff which could give rise to an action such as the present.
On behalf of the plaintiff, Mr. Reidy submitted that the findings by the High Court Judge that the County Council had been guilty both of creating a public nuisance and of negligence were findings of fact which should not be set aside by this Court. He submitted that, in the present case, the initial nuisance was attributable to the failure of the County Council to require a sufficient contribution from the developers of The Square towards the cost of the construction of the Old Bawn/Tallaght Road and that its continuance was due to the failure on its part to perform its statutory duties as a road authority, a failure which, as the High Court had found, was motivated by political considerations. He submitted that the High Court Judge was also entitled to find as a fact that the County Council had been guilty of negligence in permitting a contravention of a planning permission which had been granted by it by not taking steps as the road authority to close off the access at the Old Blessington Road as envisaged by that permission. He submitted that these actions or omissions on the part of the County Council were properly described as”operational decisions”, applying the dichotomy favoured by Lord Wilberforce in Anns v. London Borough of Merton [1978] A.C. 728, and, accordingly, gave rise to an action for negligence by the County Council in the performance of its duties.
The applicable law
The County Council is a body which has duties, powers and functions which it must exercise for the benefit of the public. The High Court is invested with a supervisory jurisdiction designed to ensure that such bodies act in accordance with the law and, in particular, do not act in a way which is arbitrary, unreasonable or oppressive or offends against any constitutional norms. That jurisdiction is invoked in our modern law by the judicial review procedure.
Various acts and omissions of the County Council which have come under scrutiny in the present proceedings arose from its statutory role as a planning authority and roads authority. The judicial review procedure has not been invoked by the plaintiff in the present case and it is agreed by the parties that, in the result, no questions of public law, which would have been relevant in such proceedings, arise in the present case. This, it is accepted, is a case in which the plaintiff could only succeed if she established that the County Council had been guilty of an actionable tort. The claim on her behalf is that the actions or omissions of the County Council amounted to a public nuisance or to negligence.
A public nuisance consists of an act or omission which causes injury to, or materially affects the reasonable comfort and convenience of, the public, or a section of the public. It is, however, only actionable at the suit of an individual, if he has suffered particular damage over and above that suffered by other members of the public.
While the authorities demonstrate that the use of land in such a way as to alter the character of an area by bringing greater volumes of people and traffic to it may give rise to an action in private nuisance (see Dewar v. City and Suburban Racecourse Company [1899] 1 I.R. 345; O’Kane v. Campbell [1985] I.R. 115), they have no relevance to the present case, where the acts or omissions complained of do not arise from operations on land of the County Council and the action is framed as one in public nuisance. The same can be said of the decision of Kelly v. Dublin County Council (Unreported, High Court, O’Hanlon J., 21st February, 1986) which arose out of the operations by the defendant local authority on a particular plot of land in their ownership and occupation.
It has been held in England – in Gillingham Borough Council v. Medway (Chatham) Dock Co. Ltd. [1993] Q.B. 343 – that even a lawful use of the public highway may, in extreme circumstances, amount to a public nuisance. In that case, the defendants were operating a commercial port on the site of a former naval dockyard and the plaintiffs, the relevant local authority, alleged that the use of the roads leading to the port by heavy goods vehicles amounted to a public nuisance for which the defendants were responsible. The court rejected that claim, noting that the plaintiffs themselves had given permission under the relevant legislation for the activities by the defendants which had led to the increased traffic and that the control of the traffic was a matter for it in its capacity as planning authority and not for the courts. Buckley J. observed at p. 358 that:
“It is not necessary for me to hold that otherwise lawful use of a highway can never amount to a public nuisance, whatever the circumstances
and however excessive the use. Extreme circumstances may arise when it could be right so to hold (see Halsey v. Esso Petroleum Company Ltd. [1961] 1 W.L.R. 683).”
No authority was cited to us for the proposition that a local authority, in its capacity as a planning or road authority or in any other capacity, can be held liable in public nuisance because of volumes of traffic on the highway resulting, not from any operations carried on by it, but indirectly from decisions taken by it as a local authority.
The action for negligence depends on the establishment by the plaintiff of a duty of care to her on the part of the County Council of which it has been in breach and as a result of which the plaintiff has suffered damage. As to whether a duty of care existed in the present case, the law was stated as follows by Costello J. (as he then was) in Ward v. MacMaster [1985] I.R. 29 at p. 49:
“(a) When deciding whether a local authority exercising statutory functions is under a common law duty of care the court must firstly ascertain whether a relationship of proximity existed between the parties such that in the reasonable contemplation of the authority carelessness on their part might cause loss. But all the circumstances of the case must in addition be considered, including the statutory provisions under which the authority is acting. Of particular significance in this connection is the purpose for which the statutory powers were conferred and whether or not the plaintiff is in the class of persons which the statute was designed to assist.
(b) It is material in all cases for the court in reaching its decision on the existence and scope of the alleged duty to consider whether it is just and reasonable that a common law duty of care as alleged should in all the circumstances exist.”
In that case, the plaintiff was the purchaser of a house in respect of which one of the defendants, a local authority, had advanced a loan in exercise of its powers under the Housing Act, 1966. It was required by that Act, and the regulations made under, it to satisfy itself, before making the loan, as to the value of the house and for that purpose retained a valuer to value the property. The latter, who had no qualifications in building construction, inspected the bungalow and found no defects. There were in fact serious defects which came to light at a later stage.
Costello J. found that, in the light of these facts, there was a sufficient relationship of proximity between the plaintiff and the local authority such that in the reasonable contemplation of the latter carelessness on its part in the carrying out of the valuation of the bungalow might be likely to cause the plaintiff damage.
That conclusion was upheld on appeal to this Court (see [1988] I.R. 337). In the course of his judgment, McCarthy J., after analysing the various leading decisions in other common law jurisdictions on this topic, concluded (at p. 349) that:
“Whilst Costello J. essentially rested his conclusion on the ‘fair and reasonable’ test, I prefer to express the duty as arising from the proximity of the parties, the foreseeability of the damage, and the absence of any compelling exemption based upon public policy. I do not, in any fashion, seek to exclude the latter consideration, although I confess that such a consideration must be a very powerful one if it is to be used to deny an injured party his right to redress at the expense of the person or body who injured him.”
Applying those tests, McCarthy J. found that the proximity of the parties was clear and said at p. 351:
“The [Housing Act, 1966] imposed a statutory duty upon the County Council and it was in the carrying out of that statutory duty that the alleged negligence took place. It is a simple application of the principle in Donoghue v. Stevenson [1932] A.C. 562 confirmed in Anns v. Merton London Borough [1978] A.C. 728 and implicit in Siney v. Dublin v. Corporation [1980] I.R. 400 that the relationship between the first plaintiff and the County Council created a duty to take reasonable care arising from the public duty of the County Council under the statute. The statute did not create a private duty but such arose from the relationship between the parties.”
He was also satisfied that it was reasonably foreseeable by the local authority that the plaintiff would lack the means to carry out an expert examination and would rely on the inspection by the housing authority.
It is clear from the judgments in that case that the fact that the plaintiff belonged to a particular category of persons for whose benefit the powers and duties of the housing authority under the Act were to be exercised – i.e. applicants for loans who could not obtain such assistance from commercial institutions – was of critical importance in determining whether they owed him a duty of care in the exercise of those powers and duties.
This is in sharp contrast to the decision in Sunderland v. Louth County Council [1990] I.L.R.M. 658 where a local authority was sued for what was alleged to be its negligence in granting a planning permission for the retention of a house built on a site where serious drainage problems arose
because of the unsuitability of the site. The plaintiff’s claim failed in the High Court, whose decision was upheld by this Court on appeal. McCarthy J., with whom the other members of the court agreed, drew this important distinction at pp. 662 and 663 of the judgment:
“Both Siney and Ward were cases where the statutory duty of the local authority arose under the Housing Act 1966, an Act which is demonstrably and unequivocally designed towards the protection and improvement of the housing conditions of persons who are not able by their own resources to provide it for themselves. So also a number of the English cases cited – Dutton v. Bognor Regis U.D.C. [1972] 1 Q.B. 374; Anns v. Merton London Borough Council [1978] A.C. 728; Governors of the Peabody Donation Fund v. Sir Lindsay Parkinson & Co. Ltd. [1985] A.C. 210; Investors in Industry Limited v. South Bedfordshire District Council [1986] Q.B. 1034 – were cases under the Public Health Act, 1937, an Act directed towards the protection of the public health and welfare or, in the Peabody case, under the London Government Act 1963 which prohibited the erection of buildings unless drains were constructed to the satisfaction of the Council.
The fundamental difference between what may be called planning legislation and housing legislation is that the first is regulatory or licensing according to the requirements of the proper planning and development of the area but the second is a provision in a social context for those who are unable to provide for themselves; if they are unable to provide for themselves then the duty on the provider reaches the role that would be taken by professional advisers engaged on behalf of the beneficiary. This is in marked contrast to the watchdog role that is created under the Planning Act, a watchdog role that is for the benefit of the public at large.”
He summed up his view as follows:
“The Act in conferring statutory powers on planning authorities imposed on them a duty towards the public at large. In my view, in conferring those powers, the Oireachtas did not include a purpose of protecting persons who occupy buildings erected in the functional area of planning authorities from the sort of damage which the plaintiffs have suffered. This being so, the council, in the exercise of those powers, owed no duty of care at common law towards the plaintiffs.”
The decision in Weir v. Dun Laoghaire Corporation [1983] I.R. 242 was also referred to in the submissions. In that case, the plaintiff was injured when she fell while walking directly across a road towards a shopping centre which fronted upon the pavement on the far side of the
road. At the time of her accident, a bus lay-by was being constructed by a third party alongside the far pavement, which was being narrowed for the purpose of extending the width of the road surface along the length of the far pavement. The surface of the proposed lay-by was two inches lower than the surface of the road and the plaintiff’s fall was caused when she tripped in passing from the level of the road to the surface of the proposed lay-by. A fourth party had been granted by the defendant, as the planning authority, permission to build the shopping centre and, on an appeal by an objector, the Minister for Local Government, while granting the permission, had imposed a condition that the fourth party must provide a bus lay-by beside the shopping centre if the defendant planning authority should so require. The defendant, which was also the highway authority, did so require, authorised the fourth party to construct the bus lay-by and approved the plans for the construction.
The plaintiff claimed damages in the High Court for the alleged negligence of the defendant. The trial judge refused the defendants’ application to have the plaintiff’s claim withdrawn from the jury on the ground that the defendant was not liable for the acts and omissions of the third party. The jury then found that the defendant Corporation had been negligent and assessed damages. On an appeal to this Court, the majority (O’Higgins C.J. and Hederman J.) held that there was evidence to support the jury’s findings of negligence. O’Higgins C.J., in the course of his judgment, having referred to the facts, said at p. 247 that:
“From these facts, it can fairly be inferred that the provision of the bus lay-by had been required by the defendants as the planning authority, and that the work was carried out by [the third party] on behalf of the developers and with the knowledge and approval of the defendants as the planning authority.”
He concluded that in these circumstances, the defendant, having licensed the works in question, was fixed with knowledge of them as the highway authority and was accordingly liable in damages to the plaintiff.
In a dissenting judgment, Griffin J said that a highway authority could be held liable for damage caused by misfeasance, where an interference with the highway is effected by its servants or by an independent contractor engaged to do work on its behalf (although not for casual or collateral negligence of the contractor). The fact that it had given planning permission, in its capacity as planning authority, to another party to carry out the work was not, in his view, to be equated with its doing the work themselves or through the agency of an independent contractor.
It would seem from the judgments that the attention of the Court in that case was not drawn to s. 26, sub-s. 11 of the Local Government (Planning and Development) Act 1963 which provides that:
“A person shall not be entitled solely by reason of a permission or approval under this section to carry out any development.”
It is clear from this provision that a planning authority (or An Bord Pleanála on appeal) which is confined in reaching its decision to considering the matters referred to in the preceding subsections of s. 26, cannot be said to have authorised the developer by the grant of a permission to commit an act which would be otherwise unlawful, whether because it interfered, for example, with the right to light of other property owners or created an unacceptable hazard for persons such as the plaintiff in Weir v. Dun Laoghaire Corporation [1983] I.R. 242. While the latter decision was cited in Sunderland v. McGreavey [1990] I.L.R.M. 658 it is not referred to in the judgment of McCarthy J. It is, however, clearly irreconcilable with the decision in that case and must, I think, be regarded as having been reversed sub silentio.
Conclusions
There can be no doubt that the plaintiff and the other residents of these roads have had to endure a serious interference with the normal amenities of life in a residential area as a result of a volume of traffic which is greatly in excess of the design capacity of the roads. At the same time, the difficulties encountered by the County Council in attempting to cope with the problem should not be underestimated. While the weight to be given to them is a matter on which different views could doubtless be taken, it could hardly be expected wholly to disregard the claims by other residents in this area that closing off the access to these roads would simply create problems for them.
As to the claim founded on nuisance, the traffic did not originate in any premises owned or occupied by the County Council and was not generated as a result of any activities carried on by it on land in the area. The fact that the traffic reached a volume which caused significant inconvenience and discomfort for the residents was the result of a combination of factors: the development of large scale residential and commercial projects by private interests, the decisions of thousands of individual drivers to use this particular route, and the failure of central government to allocate funds for the provision of the necessary roads infrastructure, to mention the most obvious. The decisions of the County Council to which objection is taken is only one of a number of factors which has resulted in the present position. To treat the County Council, in these circumstances, as being the legal author of a public nuisance would be entirely contrary to principle and wholly unsupported by authority.
As to the claim founded on negligence, it is clear that the plaintiff has failed to establish that there was a relationship between her and the County Council which created a duty to take reasonable care arising from its public duty under any statute. The powers and duties of the County Council as planning authority and roads authority are vested in it in order to ensure the proper planning and development of its area and the provision and maintenance of an appropriate road network in that area. While its exercise of those powers and duties can be regulated by the High Court by means of the judicial review process so as to ensure that they are exercised only in accordance with law, the plaintiff does not belong to any category of persons to whom the Council, in the exercise of those powers, owed a duty of care at common law.
I would allow the appeal, set aside the order of the High Court and substitute therefor an order dismissing the plaintiff’s claim.
Carey v. Mould & Anor [2004] IEHC 66 Peart J.
On the day of this accident the plaintiff was aged 62 years. By trade he is a builder who has worked at that trade since he left school in his teenage years.
The accident giving rise to these proceedings took place at a junction at Slavery, near Buncrana, Co. Donegal where the plaintiff resides. He was driving to his home on the date in question at about 1pm. He knows the road intimately and has driven that way regularly for a great number of years.
As one drives along this main road from the direction of Buncrana, the road veers to the right. Another road, the minor road from the direction of Cleggan, meets this road at the point at which the main road veers to the right. The 1st defendant was travelling along this minor road, towards the junction with that main road, in other words travelling towards the plaintiff.
The 2nd defendant, Donegal County Council, (“the Council”) had erected a Stop sign on the minor road close to the point at which that road meets the main road, in order to alert drivers on the minor road to stop, in order to let traffic on the main road continue along that main road, as the plaintiff was so doing on this day. However it appears that in some way, that Stop sign had been interfered with, as a result of which it was not facing in the intended direction on this date, but instead was turned 180 degrees so that it was in fact facing the direction from which the plaintiff was travelling.
Therefore on the date of this accident the plaintiff was travelling along the main road, and turned or veered around to the right as he was perfectly entitled to do, as he had right of way. But the 1st defendant was travelling towards the plaintiff on what he thought was a straight road on which he could continue, as if he had a right to proceed past the junction to his left, in the safe knowledge that any traffic coming onto that road from the left would yield, and that any oncoming traffic, such as the plaintiff, would halt before making a turn to their right, or would simply continue in a straight direction past him in the Cleggan direction..
On this occasion the plaintiff proceeded to veer around to his right in the knowledge that any oncoming traffic would stop at the stop sign referred to. However, because the Stop sign was facing the wrong way, the 1st defendant continued straight ahead through the junction. A factor also is that the plaintiff had, as was his entitlement, no indicator flashing in order to indicate his intention to veer to his right because he had the right of way. Therefore the 1st defendant was not even aware that the plaintiff was intending to travel across his path in order to continue on his way along the main road. A collision was therefore inevitable, and so it happened.
The evidence has been that the Stop sign at the junction, which ought to have told the 1st defendant that he was required to stop, had been interfered with, so that he was not aware of its existence. Because of this interference the evidence has been that the 1st defendant assumed that he in fact was on the main road and could with impunity and in safety continue along what he thought was a straight main road. However there is also evidence that some 100 metres back from the junction there was in place on that date a yellow sign on the left with words in black informing a driver such as the 1st defendant that there was a stop sign ahead at 100 metres. There was also a white stop line at the junction. These signs and markings had been placed at this point by the Council in order to alert drivers such as the 1st defendant that they were required to stop in order to allow drivers such as the plaintiff to pass along the main road in front of them.
I am not required to decide whether the plaintiff has proven to the necessary degree that either the 1st defendant or the Council breached the duty of care which they owed in their respective capacities to the plaintiff.. The defendants have agreed a quantum of damages in respect of the plaintiff’s injuries and have let the plaintiff out so to speak, in the sense that the only issue for decision by me is the question as to which of the defendants is liable to the plaintiff, or if both are liable, then to what degree each is so liable as between them.
The 1st defendant has accepted that the plaintiff was entitled to proceed along the main road, and to cross in front of him in so doing. In other words, he accepts that the road on which the plaintiff was travelling is the main road, and that the obligation was on him (the 1st defendant) to stop before proceeding past the junction. However he says that the Council is liable because the sign was not facing in the correct direction, for whatever reason, and there was no other sufficient warning to him that he was obliged to stop at the junction to allow the plaintiff to pass along the main road across his path. He accepts that the yellow sign placed 100 metres before the junction was in place on this date, but he very fairly accepted that he did not see it.
The Council submits that if he had been keeping a proper lookout he would have seen that sign, and that even if the Stop sign was facing the wrong way he would and should have realised that he had an obligation to yield to the plaintiff and stop at the junction. The Council also submits that on the evidence the 1st defendant was travelling at 25mph as he came down the incline towards this junction and there is no evidence that he slowed in any way as he came to the junction itself, and that he is therefore liable for the accident which occurred.
The 1st defendant on the other hand, who lives in Northern Ireland and was on holidays in the area at the time, and was not therefore familiar with this junction, as the plaintiff was, says that he did nothing wrong since the sign was facing the wrong way, and he submits that the yellow sign was not sufficient to alert him to the necessity to stop at this junction.
There has also been evidence from Garda Wallace that she was called to the scene of this accident a short time after it happened. She confirmed that the Stop sign was turned around the wrong way, but she also gave evidence that the white stop line on the 1st defendant’s side of the junction was partially faded to the extent that immediately after the accident she contacted somebody by telephone at the Council to tell them about this. She also stated that she had also personally typed a letter to the Council informing them of the problem at this junction. The Council have denied ever receiving such a letter, and Garda Wallace has not produced a copy of the letter to the Court, but she was sure that she had sent such a letter. Whether the letter was sent or not, I am satisfied that she was of the opinion on that date that the road marking was somewhat faded through age.
As I have said what I have to decide is which defendant is liable to the plaintiff, or if both are partially liable, in what proportions.
The Council has submitted that by placing the Stop sign at the junction, it has fulfilled its statutory obligation to alert the public to the necessity to stop. It submits that there is no statutory obligation to place white lines on the road, and that in addition it placed a yellow warning sign which I have already referred to at a position about 100 metres back from this junction, and maintains that even if some person by whatever means had turned that Stop sign around the other way, that yellow sign ought to have been sufficient to alert the 1st defendant to the necessity to stop at the junction. It is also submitted that the 1st defendant in any event should have slowed as he approached this junction even if he did not appreciate that he needed to halt or stop at the junction.
Mr Donal Kelleher, an engineer in the employment of the Council gave evidence that there was no history of accidents at this junction, and that the priority of the roads at this junction had remained unchanged for many years. In other words, it has been the case for years that traffic coming from the direction from which the plaintiff was travelling could proceed to their right along what is the main road, and that traffic coming from the direction of the 1st defendant must halt and yield to same. He also said that the manner in which this Stop sign was placed on the pole in question was in accordance with the method recommended in the Traffic Signs Manual. It had been suggested to him by Mr Ralston S.C. on behalf of the 1st defendant, that a better method of fixing would be to place a bolt through the sign and the pole in order to ensure that it could not be turned round in the other direction as this one had been. However, Mr Walker was of the view that placing a bolt through the sign and the pole as suggested would in fact result over time in weather damage through corrosion and that this could affect adversely the clarity and efficiency of the sign in the future.
Mr Colm Smith S.C on behalf of the 2nd defendant has submitted that the Council had done everything in its power to ensure that the public received adequate warning in respect of this junction. He accepted that it was potentially a dangerous junction in the total absence of any signage, but submitted that the Council had placed signage at the junction, and also 100 metres back from the junction, as well as placing white line markings on the road itself, and that it could not be expected to anticipate that some person would turn the sign around so that it faced the wrong way, and ceased to serve its intended purpose.
Mr Gavin Ralston S.C. on the other hand, on behalf of the 1st defendant, submitted that his client had, in the circumstances, done nothing wrong, since the sign which was intended to warn him of the junction ahead at which he was to stop, was facing the other way, and that given the nature of this road, which reasonably appeared to his client to be a straight main road, he did not fail in any duty of care upon him to the plaintiff in the circumstances. He submitted that his client’s speed at the time was reasonable and not excessive, and that it was not reasonable to find the 1st named defendant culpable for not adverting to the yellow warning sign 100 metres back from the junction given its size and position.
What is not in doubt in this case is that the plaintiff is completely blameless for this accident. That is accepted by the defendants. What is also clear from the way in which the case developed is that the defendants accept that there has been negligence on the part of one or other defendant, or a combination of both, since the quantum of damages has been agreed, and the plaintiff was not required by the defendants to take any part in the issue arising as between the defendants. Had that not been the situation as the case developed, this Court would have had to decide whether the plaintiff was able to make out a sufficient case of negligence against either defendant. That interesting question, however, does not arise for determination by me.
As far as the 1st defendant is concerned, I am satisfied that he was not travelling at an excessive speed as he proceeded towards this junction. However I am satisfied that the yellow sign placed 100 metres back from the junction was placed there for a purpose, which was to give an early warning to a driver, such as him, that he was approaching a junction at which he was required to stop. The 1st defendant very fairly accepted that he did not remember seeing that sign. If he had seen it, I am satisfied that he would at least have been aware of the junction and the need to stop, and would at the least have become puzzled that there was no Stop sign visible. He would undoubtedly have been alerted to the fact that there was no question of just proceeding along this otherwise straight road, as if it was one continuous main road. He would have been put on some sort of lookout if he had seen the yellow sign. Why he did not see the sign is of no concern to me. The fact is that he did not, and this transformed the mishap to the Stop sign itself into a far greater misfortune than it would have been had the yellow sign been observed.
However the fact that the 1st defendant failed to observe the yellow sign does not absolve the County Council from blame. It has the statutory obligation to main a safe road system. While it cannot be expected to be aware automatically of every occasion on which a sign is turned around the wrong way, perhaps by mischief, it retains an overall responsibility to ensure that roads are safe and that all traffic users are aware of potential dangers, including persons such as the 1st defendant, a tourists, who would not be familiar with a potentially dangerous junction, such as that involved in this accident. I am satisfied that this junction is, and was on this date, even ignoring the fact that the Stop sign was facing the wrong way, an inherently hazardous junction, and one requiring that very clear warnings be apparent to any road user, particularly one such as the 1st defendant who was a visitor to the area. It is an unfortunate fact of everyday life that signs such as this Stop sign can become turned in the wrong direction for whatever reason. No doubt this is why the Council felt it was desirable to give road users an early warning of the junction by placing the yellow sign 100 metres back from the junction. However it is also clear to me that the Council would not have regarded that yellow sign alone as an adequate warning to a road-user such as the 1st defendant, to stop at the junction, hence the fact that it placed the Stop sign, and also the white Stop line at the junction itself. That white line marking was partially faded on this date, according to the evidence of Garda Wallace, which I accept in that regard.
Mr John Mooney, Consulting Engineer on behalf of the 1st defendant, has suggested a number of ways in which a junction, such as the present one, could be improved as far as safety is concerned. He is of the view that without the Stop sign this is a hazardous junction, and that for instance, some sort of island design could be placed at the junction which would mandate traffic such as the first defendant to stop and wait till traffic such as the plaintiff had passed. He also suggested that at the Stop sign there could also be white lettering on the road itself saying “STOP”, as often happens. He also suggested that the Council could have placed a larger type of yellow warning signing indication the need to stop at the junction which would not be subject to the possible hazard of being turned the wrong way by accident or otherwise.
I am satisfied that while the Council had fulfilled the letter of their statutory obligation by erecting the Stop sign at this junction, that is not the full extent of its obligations to the public. Firstly, this is an inherently dangerous junction requiring special steps to be taken in order to ensure as far as possible that an accident such as the present one did not happen. In recognition of this it went further than its statutory obligation by providing a white Stop line at the junction, and a yellow warning 100 metres back from the junction. However the white line was partially faded, and the yellow sign, it has to be said, from the photographs, is not a large, unmissable type of sign. Nevertheless, I believe that the 1st defendant ought to have seen it, and if he had, he might possibly have realised that he was at a junction at which he was required to stop and give way to the plaintiff.
I am satisfied that, as between the defendants, while the 1st defendant was at fault in that regard, he is at fault to a much lesser extent than the Council, whose duty it is to ensure the safety of the roads. I am particularly mindful of the fact that the 1st defendant was a tourist and was therefore completely unfamiliar with this junction. The Council was in a position to ensure the safety of this junction to a much greater degree than was the case, such as in the manner suggested by Mr Mooney, to which I have referred. Having said that, I have a degree of sympathy for the Council which cannot reasonably and fairly be expected to be aware of the fact that some person has turned a sign around so that it ceases to serve the purpose for which it was intended.
In all the circumstances, I find the 1st defendant liable to the extent of 15%, as he ought to have at least seen the yellow sign. It was there and he ought to have at least noted it and been on the look-out. The Council is liable to the extent of 85% for the plaintiff’s damages, since I am of the view that they are primarily liable as between the defendants for the fact that this junction presented a greater hazard than it ought to have on the day in question.
I give judgment accordingly.
Flynn v. Waterford County Council [2004] IEHC 335
Finnegan P.
The Defendant is sued as the Road Authority responsible for a road leading from Portlaw to the main Kilmeaden to Carrig-on-Suir Road designated in the Defendant’s records as the A16. The section of the A16 is known locally as Priests Lane and is approximately one half mile long. It is some thirteen to fourteen feet wide but is splayed and slightly wider at its junction with the Kilmeaden to Carrig-on-Suir Road. On the date of the accident giving rise to this claim a Stop sign was located at some nine feet from the junction. The Plaintiff’s Engineer gave evidence that there was also a stop line with the word “stop” painted on the roadway: however Garda Maurice Clifford who investigated the accident gave evidence and introduced a sketch map of the scene which did not show any stop line nor the word “stop” but merely a centre line on Priests Lane. He had taken photographs of the scene but these had been mislaid and had not been located. On the balance of probability I am satisfied that the sketch map represents the road markings at the date of the accident. In addition to the Stop sign there was an advance warning sign provided at a distance of seventy five yards from the junction. John Whelan who was then the Road Overseer for the Defendant for the area gave evidence that he gave an instruction on the 28th July 1999 for a new advance warning sign to be erected to replace another sign which had been vandalised. The instruction went to Paul Kelly. The vegetation on the ditch had been cut in July. Paul Kelly a general worker with the Defendant gave evidence that he received the instruction at 7.55 a.m. on the 28th July. On that day he saw a vandalised advance warning sign on Priests Lane. He filled a dumper with the necessary equipment and replaced the sign. There was a concrete pole on which the vandalised sign had been placed but this was broken. He got a new sign from the Depot and erected the same on a new metal pole some ten yards closer to the junction. He used a strimmer to clear vegetation on the ditch to clear the view to the sign. If this evidence is correct the new sign had been erected prior to the accident and the vegetation trimmed.
The Plaintiff’s father gave evidence of having inspected the locus of the accident some two weeks after the accident. He saw the warning sign in the ditch all bent and faded. It was some distance from the present location, there was vegetation around it and you could hardly see it if driving. The sign was not on a pole and he believed it was on a tree.
On the balance of probabilities I am satisfied that an instruction was given to replace the sign on the 28th July 1999 but that Mr. Paul Kelly, the Defendant’s General Worker is incorrect in his recollection that he carried out the work on that day but rather that the work was not carried out until after the date of the accident.
The legal issue to arise in this action is whether there is an obligation upon the Road Authority, the Defendant, to erect signs and to maintain them.
Dr. Denis Wood, Engineer on behalf of the Plaintiff gave evidence of best practice and in this regard relied upon Layout of Roads in Rural Areas 1968 H.M.S.O. and Junctions and Access: The Layout of Major/Minor Junctions 1984 U.K. Department of Transport. He also referred to the Traffic Signs Manual produced by the Department of the Environment in 1996. I accept these as setting out best practice both in relation to road signs and road markings and the clearing of vegetation. However I am satisfied that none of these publications impose a duty on a highway authority if one does not otherwise exist at law.
The Plaintiff relied upon the Roads Act 1993. Section 2. of the Act defines “road” as follows –
(a) any street, lane, footpath, square, court, alley or passage,
(b) any bridge, viaduct, underpass, subway, tunnel, overpass, overbridge, flyover, carriageway (whether single or multiple), pavement or footway,
(c) any weighbridge or other facility for the weighing or inspection of vehicles, toll plaza or other facility for the collection of tolls, service area, emergency telephone, first aid post, culvert, arch, gulley, railing, fence, wall, barrier, guard-rail, margin, kerb, lay-by, hard shoulder, island, pedestrian refuge, median, central reserve, channelliser, roundabout, gantry, pole, ramp, bollard, pipe, wire, cable, sign, signal or lighting forming part of the road, and
(d) any other structure or thing forming part of the road and –
(i) necessary for the safety, convenience or amenity of road users or for the construction, maintenance, operation or management of the road or for the protection of the environment, or
(ii) prescribed by the Minister.
Thus “road” includes both poles and signs forming part of the road. Section 2(3) of the Act provides as follows –
“Nothing in this Act affects any existing rule of law in relation to the liability of a Road Authority for failure to maintain a public road.”
Section 2(4) provides as follows –
“The maintenance of a public road includes the provision and maintenance of public lighting.”
The Road Traffic Act 1961 section 95(3) as amended provides as follows –
“(3)a The Road Authority may provide for public roads in their charge such information signs and warning signs as they consider desirable.”
Section 95(5)a provides as follows –
“A road authority shall provide for public roads in their charge such regulatory signs (other than special category signs) as may be requested by the Commissioner.”
I cite the last provision in which the word “shall” is used as opposed to “may” in section 95(3)a. On this basis I find that section 95(3)(a) confers a discretionary power on a Road Authority and not an obligation. Applying the principles enunciated by the Supreme Court in Glencar v Mayo County Council and Another 2002(1 I.R. 112) to section 95(3)a I am satisfied that it was not the intention of the Legislature in enacting that provision to confer on an individual an entitlement to claim for damages. Where a statutory provision does not give a private right to sue it would be most unusual that it should nevertheless give rise to a duty of care at common law: Gorringe v Calderdale Metropolitan Borough Council (2004) 2 All ER 326. Lord Hoffmann at p. 336 said –
“In the absence of a right to sue for breach of the statutory duty itself it would in my opinion have been absurd to hold that the Council was nevertheless under a common law duty to take reasonable care to provide accommodation for homeless persons whom we could reasonably foresee would otherwise be reduced to sleeping rough. And the argument would in my opinion have been even weaker if the Council, instead of being under a duty to provide accommodation merely had a power to do so.”
In the present case the Defendant merely has a power to erect signs. I am satisfied that that power does not give rise to a cause of action in a person who suffers injury because of their failure to do so as a breach of statutory duty. Neither can the failure to do so give rise to an action for negligence at common law.
The Roads Act 1993 I am satisfied does not alter the common law save and except that it includes within the duty to maintain a road a duty to provide and maintain public lighting. The failure of a Road Authority to maintain a public road does not confer upon an individual a right to civil redress for damages: Brady v Cavan County Council (2000) 1 ILRM 81 and Harbinson v Armagh County Council (1902) 2 IR 538
Accordingly if the Plaintiff is to sustain his claim he must do so at common law. Taking it that the sign was in disrepair and that it was largely obscured by vegetation and that the result of this was that the sign was not visible to a motorist going along Priests Lane until he was almost upon the sign can this give rise to a claim in negligence? The Plaintiff relies upon the following proposition in Pratt and McKenzie Law of Highways 20th Edition 1962 at page 142 –
“Where a highway authority places something in the highway under statutory powers and not for the purposes of maintaining the highway … they are bound to keep and repair the statutory work so placed and are liable to an action for injury arising out of their failure to do so.”
The authority cited for this proposition is Skilton v Epsom and Ewell UDC (1936) 2 All ER 50. In that case the highway authority had inserted studs into the highway for the purposes of directing traffic. One of the studs came loose and injured the Plaintiff. At first instance it was held that the stud was not part of the highway and that therefore the exemption for non feasance did not apply to the Defendant. On appeal the Court of Appeal was unable to express a view as to whether the stud was or was not part of the highway but determined that this was not in the circumstances of the case material and the case was decided by asking the question whether the Highway Authority had caused a nuisance in the highway and this question being answered in the affirmative the Plaintiff succeeded. I am satisfied that the Plaintiff cannot bring himself within the principle upon which that case was decided – that a common law liability might arise from acts done on or around the highway that have created a source of danger to users of the highway. In the circumstances giving rise to this claim the existence of the obscured sign does not constitute a nuisance.
If no sign had been erected this could not give rise to a claim by an individual for damages for breach of statutory duty: Glencar v Mayo County Council and Another 2002 1 IR 112. If the failure to erect a sign cannot give rise to liability can the Road Authority be liable if having erected a sign they fail to maintain the same by ensuring that it remains visible? In Gorringe v Calderdale MBC 2004 2 All ER at 334 Lord Hoffmann said –
“If the Highway Authority at common law with no duty other than to keep the road in repair and even that duty was not actionable in private law, it is impossible to contend that it owes a common law duty to erect warning signs on the road. It is not sufficient that it might reasonably have foreseen that in the absence of such warnings, some road users might injure themselves or others. Reasonable foreseeability of physical injury is the standard criterion for determining the duty of care owed by people who undertake an activity which carries a risk of injury to others. But it is insufficient to justify the imposition of liability upon someone who simply does nothing: who neither creates the risk nor undertakes to do anything to avert it.”
In the present case had the Defendant done nothing it would not have attracted a common law duty of care. Having given a warning the circumstances which prevailed on the day of the accident were such that the warning was less than that which was desirable but even then the Defendant had done more than it was at common law obliged to do. In these circumstances it seems to me that no liability at common law arises.
The Plaintiff also relied on Bird v Pearse 1979 RTR 369. In that case the highway authority carried out resurfacing which obliterated white lining on the road which had established a system of priorities at a junction. It was held foreseeable that there was a risk of drivers misunderstanding their priorities at the junction in that the Highway Authority had created a pattern of traffic flow which did not exist before they placed the white lines on the road, a pattern which drivers could be expected to rely upon. In these circumstances there was a duty of care to the Plaintiff to prevent accidents occurring as a result of the removal of the white lines. The decision in that case was based upon the highway authority encouraging a pattern of behaviour among road users and altering the same without warning. No such conduct on the part of the Defendant arises in the present case.
The Plaintiff has failed to satisfy me that the Defendant in this case was in breach of statutory duty or indeed if a breach of statutory duty should arise having regard to the statutory provisions that the same confers upon him a right of action. Further he has failed to establish the existence of a duty on the Defendant at common law to maintain the sign which it had erected so that it would be clearly visible. Accordingly I dismiss the Plaintiff’s claim.
Felloni v. The Mayor; Aldermen and; Burgesses of the City of Dublin; [1998] ILRM 133
Morris J
In this case the plaintiff’s claim can be summarised as follows. She said she resided with her aunt at her aunt’s premises which is a flat and she said that it became necessary for her because of the defect in the door to go about the closing of the door behind her by putting her fingers around the edge of the door, giving it a sharp pull and allowing it to slam in the hope that she would have got her fingers out of the way in time in order to avoid an accident, but she says on 20 February 1991 when she was 15 years of age, she was sent on a message by her aunt. She tried to perform this manoeuvre but unfortunately her timing was wrong with the result that she lost the tip of the finger on her left hand which is shown in the photographs that have been submitted and particularly in photograph No. 4.
Now, the basis upon which the claim is put on behalf of the plaintiff is as follows. It is said that the corporation as the housing authority under the Housing Act 1966 is fixed with the obligation of providing the tenant with a house that is reasonably fit for human habitation and because of the failure on the part of the corporation to provide the house with a handle with which the tenant and their licensees could close the door with safety this rendered the premises unfit for human habitation and it is put further on the basis that the corporation had an additional obligation to keep the premises in a reasonable state of repair and since it had an obligation to carry out repairs of which it was aware it had an obligation to respond to the notification of this defect by attending at the premises and carrying out such repairs as were necessary, in particular in putting a handle on the door.
First of all, I am satisfied that at the time when the flat was handed over to the corporation this defect which has now been described was not present and that seemed to be manifested by the fact that there exists on the door of the premises as shown in the photographs produced by the corporation the remains of what was obviously a knocker and it would appear to make sense to me that the corporation, when it originally delivered up this apartment to the tenant would have provided it with the ordinary door furniture, which can take the form of a Yale lock, a letter box and some form of door knocker, which would also act as a pull in order to allow somebody leaving to pull the door shut behind them, and therefore, I am satisfied from this photograph that has been produced by the corporation that that was the condition of the flat originally but with the passage of time and I dare say use, that knocker became defective and it became necessary for Mrs Carroll and her invitees to close the door as she describes by using her key as a pulling mechanism.
Now, I am satisfied also that there would be an obligation on the part of the corporation if it became aware of the fact that there was a defect in the door which made it necessary for the tenant and their invitees to expose themselves to the risk of injury. There was an obligation on the corporation to attend to such a defect. However, I am not satisfied that the corporation was ever made aware of any such defect and I believe that this arises because of the fact Mrs Carroll did not see it herself as anything in the nature of a problem. I accept with some reservation part of her evidence but accept the evidence of the way that she said that at one stage she got a friend of hers and a nearby neighbour to put a bolt on this door and I feel that if she had seen it as desirable or necessary in the interest of safety to have a knob on the door she would either have got in touch with the corporation or indeed with her neighbour or some friend and asked them to put a knob on the door. I am not satisfied that she ever saw it as a problem herself. I am not satisfied she ever notified the corporation, and therefore I find no evidence of negligence on the part of the corporation in delivering the flat which was fit for human habitation in the first instance, nor do I find any evidence of negligence in that it failed to respond to a legitimate complaint made in respect of the door. I want to go further in this case; I want to say this, even if I were to find that there was negligence on the part of the corporation and a failure to comply with its obligations under the Housing Act 1966 , I believe that that negligence would be overwhelmed and overtaken by the negligence on the part of Mrs Carroll and on the part of the plaintiff in this case in allowing the state of affairs to continue whereby presumably a number of times a day they would voluntarily expose themselves to what must have been a risk of injury in the slamming of the door when the remedy was available to them at little or no expense, to remedy the problem by fixing some sort of handle onto the door at minimal expense. I am satisfied on the authority of Crowley v. A.I.B. [1987] IR 382 ; [1988] ILRM 225 and on Conole v. Redbank Oyster Co. [1976] IR 191 that whatever negligence there was on the corporation if there was any, in failing to make this door safe, that negligence was overwhelmed and overtaken by the continued negligence on the part of the plaintiff herself who was at that time 15 years of age, and if I may say so, a young lady of the world, and on the part of the tenant, Mrs Carroll and her husband in failing to bring about the remedy that was readily available to them and accordingly for all of these reasons, in my view the plaintiff’s case fails.
Atlantic Marine Supplies Ltd v Minister for Transport
[2010] IEHC 104JUDGMENT of Mr. Justice Clarke delivered on the 26th March, 2010
1. Introduction
1.1 The second named plaintiff (“Mr. Rogers”) is the principal behind the first named plaintiff company (“Atlantic”). Mr. Rogers and Atlantic have been in the business of providing safety equipment for fishing boats for some considerable period of time. It is fully accepted by all involved in these proceedings that Mr. Rogers and Atlantic carry out their duties in that regard to the highest standards.
1.2 At the core of the complaint made by Atlantic in these proceedings is a contention that the first named defendant (“the Minister”) has failed to enforce legally binding measures in respect of the equipment which fishing boats are required to carry for safety purposes (specifically life rafts). As a consequence it is said that a great number of fishing boats have life rafts which are not appropriate. As a consequence, in turn, it is argued that significant financial loss has been caused to Atlantic by reason of the alleged lack of enforcement to which I have referred.
1.3 It should also be noted that Atlantic is, by virtue of the services which it provides, itself the subject of a requirement to be certified to provide such services. It should immediately be noted that there has never been any suggestion that Atlantic has failed to carry out its role in full compliance with its obligations. It is, however, said that Atlantic is constrained, by virtue of the consequences of that certification, to provide and service particular types of equipment only. In circumstances where it is said that the alleged lack of enforcement, to which I have referred, permits many fishing boats to operate with a lower standard of equipment, Atlantic claims that it is deprived of the opportunity to seek to exploit the market in the supply and service of the higher standard equipment which, on Atlantic’s case, many fishing boats should carry.
1.4 In any event, it is also important, at this early stage, to note that there are a series of separate legal bases on which Atlantic claims to be entitled to damages arising out of the alleged failure of regulation on the part of the Minister. Each of the relevant headings brings with it its own difficult legal questions. However, for present purposes, I should simply note that the four bases on which Atlantic claims to be entitled to damages are as follows:-
A. Breach of duty;
B. Breach of statutory duty;
C. Breach of constitutional rights; and
D. Legitimate expectation.
1.5 As there was no significant dispute as to primary facts, only a limited dispute as to inferences that might properly be drawn from those facts with, perhaps, a more significant dispute as to the proper characterisation of the situation which might be said to flow from that undisputed evidence, it is perhaps most convenient to start by setting out those facts which are not in dispute and the allegations that underlie Atlantic’s case.
2. The Undisputed Facts and the Allegations
2.1 Mr. Rogers started fishing out of Killybegs in County Donegal in 1971. In 1982 he decided to start his own business in relation to life saving equipment. It would appear that, at the relevant time, there was no service station on the West Coast dealing with the sale and service of marine life saving equipment. In that context, Mr. Rogers spoke to the then Chief Surveyor of the Minister together with a number of manufacturers of life rafts.
2.2 It is clear from the evidence that the suppliers of relevant equipment maintain a rigorous certification process whereby those operating service stations in this field are required, in order to obtain an initial certification, to attend for significant training, and, as the price of maintaining certification, have further regular training requirements imposed on them, and are subjected to regular inspections. The evidence makes clear that Mr. Rogers and Atlantic have, at all material times, been in good standing with the suppliers for whom they hold certification.
2.3 In order to establish the relevant service station, Atlantic initially obtained a site from the then Department of the Marine and built an appropriate structure designed to allow for the servicing of the type of life rafts then in use.
2.4 Subsequently, larger life rafts (as required for larger vessels) came on stream which required an expanded premises capable of servicing those larger life rafts. On that basis, Atlantic bought different lands on which a larger service station was built.
2.5 In the early days it would appear that the relevant form of certification from the relevant department (the department has gone through a variety of names over the years) was in the form of a letter from the Chief Surveyor. However, from in or around 1990, it would appear that a formal certificate was issued. Atlantic has, at all relevant times, held the appropriate certification.
2.6 It, therefore, follows that Atlantic has at all times satisfied both the suppliers of its equipment and the relevant department that it is up to standard for the provision of the important services with which it is charged.
2.7 It will be necessary in due course to refer in some more detail to the relevant regulatory regimes applicable to the use by fishing boats of life rafts. However, for the purposes of this narrative it should be noted that there is a clear and unambiguous statutory obligation on all fishing vessels in excess of 12 metres to carry a specified type of life raft and other safety equipment (in fact the regime differs somewhat depending on whether the boat concerned is over or under 15 metres but nothing turns on that fact for the purposes of this case). The position in respect of fishing vessels of less than 12 metres is less clear. The statutory regime applying to larger vessels, to which I have referred, does not apply to vessels under 12 metres. However, such vessels (along with all vessels which are involved in fishing) require a licence. For reasons which it will be necessary to explore in more detail, there is a statutory pre-condition to the award of such a sea-fishing boat licence which is to the effect that the vessel is appropriately certified as complying with a Code of Practice published by the Minister. The interpretation of that Code of Practice is itself a matter of some debate to which it will be necessary to turn in due course. However, on the case made by Atlantic and Mr. Rogers, it is suggested that the true construction of the Code of Practice requires that any fishing vessel (including those under 12 metres) which carries a life raft is required to ensure that the relevant life raft conforms with certain international specifications.
2.8 It is the assertion by Atlantic to the effect that there is widespread non-observance of that requirement which is at the heart of these proceedings. It will be necessary to refer in more detail to SOLAS standards for life rafts which is the recognised maritime international safety standard. On Atlantic’s case all fishing vessels are required, if they carry a life raft at all, to carry a SOLAS standard life raft or a life raft which meets analogous standards. It is clear that Atlantic became concerned about what it felt was a failure on the part of the Minister to enforce what Atlantic believed to be the appropriate statutory regime. Atlantic came to the view that many fishing boats were carrying life rafts which did not meet the relevant standard. There was significant correspondence and meetings between Atlantic and representatives of the relevant department (including meetings with senior officials and the then Minister for Marine and Natural Resources, Frank Fahey), in the early years of the 2000s.
2.9 Atlantic maintains that there are a very significant number indeed of fishing vessels which carry life rafts which do not meet the necessary standard. It is said that, in all or, at a minimum, a significant number of such cases, the failure to carry an approved life raft is in breach of the code of conduct to which I have referred. It is further said that this situation is, at least in significant part, due to a lack of adequate enforcement on the part of the Minister.
2.10 It is also alleged that one of the consequences of that state of affairs is that the number of relevant higher standard life rafts in the market place is significantly reduced with a consequent and significant loss of profit to Atlantic by reason of not having the opportunity to make the relevant sales and, it would appear, more significantly, not having the opportunity to earn further revenues by servicing the life rafts in question on a regular basis (it being typically a term of compliance with relevant standards that life rafts are regularly serviced in accordance with appropriate recommendations). It should be noted that any question of the quantification of damages to which Atlantic might be entitled has, by agreement between the parties and the court, been left over for further consideration so that this judgment is concerned solely with the question of the entitlement, if any, at the level of principle, of Atlantic to damages.
2.11 In the course of evidence it was established that, during a number of spot checks carried out by Joseph O’Sullivan (an engineer called to give evidence on behalf of Atlantic), a significant majority of fishing vessels of less than 12 metres which were found in the ports visited by the engineer concerned on a random basis, had life rafts which did not appear to be of the standard which Atlantic asserts are required by the Code of Practice. The expert evidence tendered on behalf of Atlantic established that a significant difference exists between life rafts primarily designed for use on sporting yachts on the one hand and life rafts designed for fishing vessels and other commercial boats on the other hand. Amongst the distinctions which can properly be drawn between the two is the fact that servicing of such life rafts is required on a more regular basis in the context of fishing and commercial ships. The reason for this appears to stem from the fact that fishing and commercial boats are in almost continuous use, while pleasure or yachting vessels are less regularly at sea. Mr. O’Sullivan’s evidence established that a very high number indeed of smaller Irish fishing vessels appear to carry life rafts designed for the yachting sector. The inferences to be drawn from that evidence and, perhaps more importantly, the way in which any such inferences should be characterised, was the subject of some dispute between the parties. However, the primary evidence given on behalf of Atlantic was not disputed. I should in passing note that while there was very limited evidence from which it might, on one view, be suggested that there were breaches of the undoubted formal statutory regime which exists in respect of vessels of 12 metres or more, it did not seem to me that any such evidence could give rise to an inference of lack of enforcement in respect of such boats.
2.12 In the context of the fact that there is a difference in the regulatory regime in respect of fishing vessels dependent on the size of those vessels, it is relevant to note that it was established that the number of vessels in relevant categories currently on the register of licensed fishing vessels is as follows:-
Vessels of less than 12 metres 1,777 84.821%
Vessels of less than 15 metres 1,854 88.496%
Vessels between 15 and 24 metres 132 6.301%
Vessels of 24 metres and above 109 5.203%
It will be seen that by far the preponderance of vessels in the Irish fishing fleet are those of less than 12 metres. It follows that, as a matter of fact, it is the regulatory regime in respect of such vessels which has the greatest potential, in practice, to influence the commercial business of safety equipment suppliers and servicers such as Atlantic.
2.13 Against that brief factual background it is appropriate to turn next to the regulatory regime.
3. The Regulatory Regime
3.1 As indicated earlier there was, in the end, no real dispute between counsel as to the applicable statutory regime in respect of fishing vessels of greater than 12 metres length. It was accepted that the regime technically differed as and between vessels of, on the one hand, more than 15 metres in length and, on the other hand, vessels between 12 and 15 metres in length. However, the net and combined effect of various measures including the Merchant Shipping (Life Saving Appliances) Rules 1967 and the Merchant Shipping (Life Saving Appliances) Rules 1993, is accepted as being that such that all such vessels are required to carry a SOLAS standard life raft including a so called SOLAS “B” pack. SOLAS stands for the International Convention for the Safety of Life at Sea. That Convention was adopted on the 1st November, 1974, by the International Conference of Safety of Life at Sea which was convened by the International Maritime Organisation. SOLAS entered into force on the 25th May, 1980, but has been amended subsequently by means of protocols. It would appear that many of the measures adopted in this jurisdiction are designed to ensure that Ireland complies with its obligations under that Convention, to which Ireland is a party. Of particular relevance to the issues which I have to decide is that SOLAS contains, amongst many other things, provisions in respect of life rafts. SOLAS life rafts are an approved type of life raft for six persons or more which comply with the relevant requirements. The life raft comes packed in a glass reinforced plastic container and should contain an emergency pack which is either an “A” pack or, in respect of smaller vessels, a “B” pack. A “B” pack is essentially a scaled down version of an “A” pack. In either case, SOLAS provides for a significant list of items which are required to be in the pack concerned providing for such matters as a hand pump, paddles, a sea anchor, a first-aid kit, various devices designed to attract attention and thermal protective aids.
3.2 It should also be noted that the certification of Atlantic as a relevant service provider is in accordance with the provisions of SOLAS. There was no dispute between the parties but that the proper interpretation of the use of SOLAS related terms such as, for example, a SOLAS “B” pack, in Irish regulations and in Marine Notices incorporated into the Code of Practice to which I will refer in due course, should be interpreted by reference to SOLAS itself. It was not suggested (nor could it have been) that SOLAS is directly applicable in this jurisdiction. The way in which Ireland has chosen to give effect to its obligations under SOLAS is by means of the various regulatory measures in the maritime field, some of which are referred to in the course of this judgment. It follows, of course, that an Irish Court in construing those Irish measures should attempt to do so in a manner that ensures that Ireland complies with its obligations under SOLAS. Thus, it is appropriate to refer to SOLAS for the purposes of determining the meaning of SOLAS related terminology. No greater application of SOLAS as a matter of domestic law was urged on behalf of Atlantic. I did not understand counsel for the Minister to contest but that SOLAS references in the relevant Irish regulatory documentation must be taken to mean references to relevant items in the way in which those items are defined or explained in SOLAS.
3.3 However, the real issue of contention between the parties, so far as the statutory regime is concerned, centres on the Code of Practice promulgated by the Minister. The Code of Practice was introduced by the Minister in 2004. I will refer, in due course, to certain material terms of the Code. However, it is important to note that, when first introduced, the Code had no statutory basis. It is clear that, in parts, the Code specifies requirements which arise under specific statutory regimes and, thus, draws attention to what are undoubtedly statutory obligations arising from relevant statutory instruments. In 2006, s. 97 of the Sea Fisheries and Maritime Jurisdiction Act 2006, inserted a new s. 4 into the Fisheries (Amendment) Act 2003 (“the 2003 Act”). Section 4(2) of the 2003 Act specifies that a sea-fishing boat is not to be used for sea-fishing, nor are persons on board such boats to fish for sea fish, except in accordance with a sea-fishing boat licence. A breach of that requirement constitutes an offence.
3.4 Subsections (a) and (b) of s. 4(9) of the 2003 Act apply to larger boats. It is s. 4(9)(c) which applies to smaller boats and is in the following terms:-
“Where a code of practice published by the Minister for Transport relating to the safety and sea-worthiness of sea-fishing boats of a class to which paragraph (b) does not apply requires a survey to be carried out of a sea-fishing boat of such class for the purpose of establishing whether or not such boat complies with the requirements specified in the code of practice, the licensing authority shall not grant or renew a sea-fishing boat licence in respect of the boat unless a declaration of compliance with the code of practice has been provided to the licensing authority.”
3.5 It is clear, therefore, that there is a statutory pre-condition to the grant of a sea-fishing boat licence to the effect that a declaration of compliance with the Code of Practice must be supplied.
3.6 As pointed out earlier, the Code of Practice itself was, in fact, in existence since 2004. However, the Code received a statutory status, in the form of s. 4(9)(c) of the 2003 Act in 2006. From that time on there was a statutory prohibition on the giving of a sea-fishing boat licence, save where a Certificate of Compliance with the Code was made available.
3.7 There was a significant debate between the parties as to how it was appropriate to characterise s. 4(9)(c) of the 2003 Act. It seems to me clear that the section does not impose, as such, an obligation on anyone to comply with the Code of Conduct. It should, of course, be noted, as pointed out, that the Code of Conduct itself often draws attention to the fact that certain legal requirements lie on the owners and operators of sea-fishing boats under a variety of legislative provisions. Obviously those legislative provisions have direct statutory effect on and bind parties governed by them. However, to the extent that the Code of Conduct goes further and specifies either mandatory requirements or recommendations, which are not of themselves obligations contained within enforceable statutory instruments, then the Code does not, of itself, give rise to any statutory obligation. A person who is in breach of the Code does not commit an offence. Neither is such a person guilty of a civil wrong, save to the extent that the relevant obligation recorded in the Code is otherwise of statutory effect from a source outside of the Code.
3.8 On the other hand, it seems equally clear to me that the Code has, from 2006, a statutory status. There is a clear requirement that an applicant for a sea-fishing boat licence is required to produce a Certificate of Compliance with the Code. That requirement is a direct statutory requirement. It would be unlawful for the licensing authority to grant a sea-fishing boat licence in circumstances where a Certificate of Compliance with the Code was not available for s. 4(9)(c) of the 2003 Act expressly prohibits the grant of a licence in such circumstances. The Certificate of Compliance is a Certificate of Compliance with the Code for the time being. It follows that the Code has a quasi statutory status in that it is a document by reference to which statutory rights and obligations arise.
3.9 The entitlement of an applicant to obtain a sea-fishing boat licence for which the relevant applicant might otherwise qualify, may be lost because the relevant fishing boat does not comply with the Code of Practice and thus, cannot be the subject of a valid Certificate of Compliance. It follows that compliance or otherwise with the Code of Practice can legitimately lead to the grant or refusal of a licence and, thus, the entitlement of the person concerned to engage in sea-fishing.
3.10 It seems to me that codes of practice, in general terms, can have a range of standing so far as statute is concerned. At one extreme is a code of practice which is issued merely for the purposes of guidance to persons in a particular industry or sector. As such it may provide a useful benchmark by which to consider appropriate standards but would have no added legal status. Even in an action for negligence, such a code of practice would have no formal status although reference could, undoubtedly, be made to such a code as supporting a contention that a particular practice (or the lack of it) was in accordance with appropriate standards of care.
3.11 At the other extreme might lie a code of practice which was expressly authorised by statute, where failure to comply with the provisions of the code concerned amounted to an offence or was otherwise rendered unlawful. In such circumstances breach of the code, per se, would be unlawful.
3.12 It seems to me that the Code of Practice in this case lies somewhere between those two extremes. It is not enforceable per se. It goes, however, beyond mere guidance for it has an indirect statutory effect such as can preclude persons from obtaining a sea-fishing boat licence if they fail to comply with its terms. It will be necessary to turn to how such status should properly be characterised in due course.
3.13 However, before going on to consider the legal issues which arise concerning the potential liability of the Minister and the other defendants in these proceedings, it is next appropriate to turn to the provisions of the Code insofar as they are relevant to the case made by Atlantic.
4. The Code of Practice
4.1 Any review of the Code of Practice must note that the Code, in its terms, distinguishes between provisions which contain mandatory language such as “shall”, on the one hand, and language which connotes a recommendation by the use of words such as “may”, on the other hand. The Code is, therefore, clear and states in terms that some of its provisions are mandatory while some of its provisions amount to recommendations alone. So far as mandatory recommendations are concerned, some of same involve a repetition of matters which are independently governed by express statutory provisions and, thus, would be mandatory even if they were not referred to in the Code. Others may well amount to matters which, so far as the Code itself is concerned, are mandatory even though they may not be directly enforceable as being in breach of an express statutory provision. These latter matters are mandatory in the sense that they must be complied with in order for a boat to be properly said to comply with the Code of Practice and thus be validly the subject of a Certificate of Compliance and thus, in turn, suitable for the grant of sea-fishing boat licence.
4.2 The relevant provisions of the Code of Practice concerning inflatable life rafts are to be found in s. 7.4 which provides as follows:-
“7.4 Inflatable Life rafts
Where carried, inflatable life rafts must be of a capacity to accommodate all persons on board. The life raft must be stowed in a GRP container and be fitted in a position to enable it to float free if the vessel sinks, and be fitted with an approved HRU. If this is not practicable, for example, in an open vessel, it is recommended that the life raft should be stowed in an accessible place; it may be contained within a valise. While it may not be capable of floating free it must be readily accessible to throw overboard. If it goes down with the vessel it will not operate. Life rafts must be equipped with “SOLAS ‘B’ Pack”.
7.4.1 The requirements for the carriage of life rafts are as follows:-
i) All vessels with 4 or more persons on board must carry one or more life rafts, regardless of their area of operation.
ii) All vessels operating beyond 5 miles from a safe haven must carry a life raft.
iii) All vessels operating less than 5 miles from a safe haven with fewer than 4 persons on board are recommended to carry a life raft.
7.4.2 Vessels of Loa greater than 12 metres and vessels carrying more than 4 persons must carry an approved MED/SOLAS life raft.
Vessels of Loa 12 metres or less or carrying 4 persons or less may carry non-SOLAS/non-MED life rafts. Guidance on the carriage of non-SOLAS type inflatable life rafts is given in Marine Notice No. 2 of 2003.”
4.3 A number of comments need to made about the text which I have cited. First, it seems clear that s. 7.4 does not require any life raft to be carried in at least some circumstances. The section commences with the words “where carried”. The text also makes clear in s. 7.4.1(iii) that vessels operating less than five miles from a safe haven with fewer than four persons on board are recommended to carry a life raft.
4.4 Furthermore, it is clear from s. 7.4.2 that vessels of greater than 12 metres must carry an approved MED/SOLAS life raft while vessels of 12 metres of less or carrying four persons or less may carry non-SOLAS/non-MED life rafts but that guidance on the carriage of such non-SOLAS type life rafts is to be found in what is described as Maritime Notice No. 2 of 2003.
4.5 It would appear that Maritime Notices are issued from time to time for the purposes of bringing important information to the attention of those with an involvement in maritime affairs. Some such notices involve bringing regulatory or quasi regulatory matters to the attention of interested parties. One such notice was Marine Notice No. 2 of 2003. The relevant portion of the text of that notice reads as follows:-
“The Department of Communications, Marine and Natural Resources wishes to remind skippers and those working onboard registered fishing vessels that inflatable life rafts should be approved and comply with the Marine Equipment Directive and SOLAS Convention. However, the Department recognises that for small fishing vessels, less than 40 feet, that such vessels are not required by statute to carry inflatable life rafts. The Department also recognises that the smallest approved MED/SOLAS inflatable life rafts are for six persons, this may discourage the voluntary carriage of inflatable life rafts on such small fishing vessels. In this regard the Department wishes to encourage the voluntary carriage of inflatable life rafts on small fishing vessels and it has accepted the following non-Solas/non-MED inflatable life rafts for such vessels.
• DSB 4 Person Inflatable Life raft, SOLAS type, B Pack
• RFD 4 Person Inflatable Life raft, SOLAS type, B Pack
• Viking 4 Person Inflatable Life raft, SOLAS type, B Pack
• Zodiac 4 Person Inflatable Life raft, SOLAS type, B Pack”
4.6 It will be recalled that the minimum size of a SOLAS approved life raft is one suitable for six persons. It was pointed out in the relevant Marine Notice that, for smaller boats i.e. those less than 12 metres (or 40 feet), and which are not, as such, required by statute to carry inflatable life rafts, it was acknowledged that smaller life rafts would be appropriate. It will, however, be noted that in each of the four approved cases, a SOLAS “B” pack is specified.
4.7 In addition, it is necessary to make reference to Marine Notice No. 8 of 2005 which is stated to supersede Marine Notice No. 2 of 2003. The relevant provisions of that Notice read as follows:-
“The Department recognises that small fishing vessels of length overall less than 40 feet are not required by statute to carry inflatable life rafts and that the smallest approved MED/SOLAS inflatable life rafts are for six persons. To facilitate compliance with the Code of Practice and to encourage the voluntary carriage of inflatable life rafts the Department has accepted the following non-SOLAS / non-MED inflatable life rafts. Only these life rafts listed will be accepted on fishing vessels, which are either:
(a) not required to carry a SOLAS / MED approved life raft or
(b) recommended to carry a life raft.
The life raft is to be fitted with a Hydrostatic Release Unit and stowed, if practicable, in such a position that it can be easily and quickly launched on either side of the vessel. The life raft is to be serviced at an approved life raft servicing station at intervals not exceeding 12 months.
Accepted non-SOLAS / non-MED inflatable life rafts
• DSB 4 Person Inflatable Life raft with SOLAS B Pack
• RFD Surviva 4 Person Inflatable Life raft with SOLAS B Pack
• RFD SEASAVA PRO ISO 9650 4 Person Inflatable Life raft with SOLAS B Pack
• Viking DK 4 Person Inflatable Life raft with SOLAS B Pack
• Zodiac 4 Person Inflatable Life raft with SOLAS B Pack
• EUROVINIL ISO/DIS 9650 4 Person Inflatable Life raft with SOLAS B Pack”
4.8 It seems to me to follow that the Code of Practice must now be construed as making reference to Marine Notice No. 8 of 2005, given that that Notice is specified as replacing Marine Notice No. 2 of 2003. It will be noted that, as with the 2003 Notice, each of the so called non-SOLAS/non-MED life rafts approved are specified as requiring a SOLAS “B” pack. It is also important to note that it is made clear that only such life rafts are to be accepted on fishing vessels which are either “not required to carry a SOLAS/MED approved life raft” or are “recommended to carry a life raft”.
4.9 The net affect of each of those measures seems to me to create a situation where it is possible to take two views concerning the proper intent of the Code of Practice incorporating the relevant Marine Notices.
4.10 First, so far as the Code of Practice is concerned, any boat operating with four or more persons or five miles beyond a safe haven is required to carry a life raft. In the case of vessels of more than 12 metres the requirement is that the life raft be an approved MED/SOLAS life raft. In the case of vessels less than 12 metres, the life raft must, by virtue of the Marine Notices, be of one of the types authorised by those Notices. The fact that the Code of Practice makes reference to the 2003 Notice (and by necessary implication any amendment of it), incorporates at least the relevant portions of those Notices in to the Code of Practice. Each of the life rafts mentioned in either of the Notices requires a SOLAS “B” pack. It follows that all vessels (even those of 12 metres or less), which operate outside the four persons/five miles parameter, are required to carry a life raft which is one of those specified in the Marine Notices (currently Marine Notice No. 8 of 2005). The status of vessels which are less than 12 metres and which operate within the five mile and four person limit is less clear. The Code of Practice speaks of a recommendation while Marine Notice No. 8 speaks of only those life rafts specified in that Notice as being permitted. The Code itself, as opposed to the Marine Notices, is not clear on whether there is or is not an obligation on a boat of less than 12 metres operating within the four person/five mile limits to carry an approved life raft.
4.11 That analysis seems to me to stem from the natural wording of the Code of Practice. It does, perhaps on one view, produce a somewhat paradoxical result. There can be little doubt that a vessel of 12 metres of less operating within the five miles/four person limit is not required, under the Code of Practice, to carry any life raft. It also appears that such a vessel, operating within those limits, if it chooses to carry a life raft must, if it is to comply with the Marine Notices and, perhaps, the Code of Practice, carry a life raft of the type specified in the relevant Marine Notices. The question arises as to the sense of such a provision. On one view it might be said that carrying some life raft is at least better than carrying no life raft. On the other hand, it might be argued that it is better that vessels not put to sea with a form of life raft which is considered to be underspecified thus, perhaps, leading those on board into a false sense of security.
4.12 I fully understand that, as is apparent from the terms of the Marine Notices, the intention of the Minister was at all times to seek to encourage an upgrading in the quality of lifesaving equipment on fishing vessels. It is clear that by far the preponderant number of fishing vessels in the Irish fleet are of less than 12 metres. Those vessels are not, therefore, caught by the mandatory statutory requirements to which I have referred. A decision was clearly taken not to extend those mandatory statutory requirements to such smaller vessels. However, it is apparent from the Marine Notices that the intention was to seek to encourage the use of life rafts in all cases. In such circumstances, it may well be that there was a case for some degree of what might be called “constructive fudge” concerning the precise parameters of the obligations in relation to smaller fishing vessels in respect of life rafts. If the Code of Practice had continued to operate with its original status as being simply a recommendation with no statutory consequence at all, then there might well have been a justification for retaining some degree of constructive fudge as a means of encouraging compliance in circumstances where the mandatory imposition of compliance was not regarded as beneficial. However, it seems to me that that situation changed when the Oireachtas chose to confer a statutory status on the Code of Practice. Given that the Code of Practice creates a mandatory obligation on those seeking licences, it seems to me that it needs to be clear in its terms. It is, to say the least, unfortunate that the provisions of the Code of Practice concerning the obligations of those with smaller vessels operating within the five mile/four person limit lack clarity. If nothing else came out of this case, then it seems to me to be of vital importance that the Minister takes an early opportunity to make absolutely clear in unambiguous terms as to the requirements of the Code of Practice. If it is the Minister’s intention that the Code of Practice requires (as Marine Notice No. 8 seems to suggest) that it is preferred that a vessel have no life raft rather than have a non-complying life raft, then that should be said in clear terms. If that is not the intention, then equally the Code of Practice needs to make clear what precisely are its requirements concerning life rafts in respect of the smaller vessels within the five miles/four persons limitation.
4.13 In the absence of any such amendment to the Code of Practice to date, then I must do the best I can with the existing text. For the reasons which I have sought to analyse, I am satisfied that, on a proper construction of the current Code of Practice by reference to Marine Notice No. 2 of 2003, which is expressly incorporated into it, and Marine Notice No. 8 of 2005, which is expressed to be an amendment of Marine Notice No. 2 of 2003, the Code of Practice is currently not complied with by any vessel carrying an unapproved life raft. It will be recalled that the evidence established that a significant number of fishing vessels observed by Mr. O’Sullivan, the engineer, had life rafts which were designed for the yachting sector. It is clear on the evidence that none of the relevant life rafts so described by Mr. O’Sullivan were of the type specified in either Marine Notice No. 2 of 2003 or Marine Notice No. 8 of 2005. It follows that there are a significant number of Irish fishing vessels which carry unapproved life rafts contrary to the Code of Practice as I have interpreted it.
4.14 Against that background it seems next appropriate to turn to the legal issues which arise in relation to the potential liability argued as applying to the Minister under the various headings which I have previously identified.
5. The Legal Bases for Atlantic’s Claim
5.1 As indicated earlier, four legal bases were, in the alternative, put forward for Atlantic’s claim. In fairness it should be noted that counsel for Atlantic accepted, in the course of argument, that the contention that Atlantic’s claim could be based on breach of constitutional rights could not be said to put Atlantic’s claim any further than might arise under the other headings. While Atlantic does enjoy property rights and Mr. Rogers does enjoy a right to earn a living, any claim for breach of those rights could only arise in circumstances where it could be said that a relevant defendant was guilty of some wrongdoing which interfered with the right in question. The right to damages for breach of a constitutional entitlement is, at the level of principle, clear (see for example Meskell v. CIE [1971] I.R. 121). However, it is also clear that, where an entitlement to pursue damages in respect of the same set of circumstances arises under a traditional head of claim, such as damages for tort or damages for breach of contract, the courts will only permit the invocation of a claim for damages for breach of constitutional rights in circumstances where the existing law (in the instances cited, the Law of Tort or the Law of Contract) can be said to fail to adequately protect any constitutional rights involved.
5.2 In those circumstances, it was accepted by counsel for Atlantic that, in the event that I was not persuaded that the Law of Tort (including where appropriate claims for breach of statutory duties), or the Law of Legitimate Expectation, provided Atlantic with a remedy, then the Constitution would not avail Atlantic.
5.3 In substance, therefore, two areas arose for consideration. The first was as to whether Atlantic might be able, at least in principle, to pursue a claim for damages for negligence or breach of statutory duty. For reasons which I will explore these areas raise issues which are not necessarily the same, but nonetheless there is a close connection between both and I propose dealing with them together.
5.4 A second and separate area involves Atlantic’s contention that it is entitled to damages for breach of legitimate expectation. I propose dealing with that question in due course, but will turn first to the question of breach of duty including breach of statutory duty.
6. A Breach of Duty or Statutory Duty?
6.1 The starting point under this heading has to be note that, while there may be a significant overlap between the area of breach of duty and breach of statutory duty in a context such as that with which I am concerned in these proceedings, it was not argued on behalf of either party (correctly in my view) that the two potential areas of claim are identical. The House of Lords in Stovin v. Wise [1996] AC 923, came to the view that, ordinarily, a common law duty of care would not arise in circumstances where any relevant statutory provision could not be said to have imposed a statutory duty on the person concerned. In the course of his speech in Stovin, Lord Hoffman said, at pp. 952/953 that if a statutory duty:-
“[D]oes not give rise to a private right to sue for breach, it would be unusual if it nevertheless gave rise to a duty of care at common law which made the public authority liable to pay compensation for foreseeable lost caused by the duty not being performed. It will often be foreseeable that loss will result if, for example, a benefit of service is not provided. If the policy of the Act is not to create a statutory liability to pay compensation, the same policy should ordinarily exclude the existence of a common law duty of care.”
6.2 It is, however, important to note the Lord Hoffman used the words “ordinarily” to imply that there may be circumstances where that ordinary position will not apply. In that context, it is important to note that in Glencar Exploration Plc v. Mayo County Council (No.2) [2002] I I.R. 84, Fennelly J. noted the following at p. 159:-
“As a matter of principle, it would not be wise to rule out the possibility that a case may in the future present itself where the relationship between a person liable to be affected by a ministerial or other public law decision is entitled to expect that care will be exercised in and about the decision to take legal advice and the manner of its taking. At the least, I think it would have to be shown that the statutory power in question was of the type which is designed to protect particular interests and that the plaintiff comes within its scope. In addition, it would probably be necessary for the claim to arise from the context of the type of individual transaction which was the subject-matter of Ward v. McMaster [1988] I.R. 337 or perhaps from the sort of reliance on the expertise of another which formed the background to Hedley Byrne v. Heller and Panners Ltd [1964] AC 465. …They were not engaged in any direct legal relationship with the respondent. Their prospecting licences had been granted by the State. They had not made any application for planning permission, not that that would necessarily alter the position. In short, I do not believe that the respondent owed a duty of care to the applicants either to take legal advice or to take further steps to follow it up.”
6.3 In relation to statutory duty per se it is clear from cases such as Moyne v. The Londonderry Port and Harbour Commissioners [1986] I.R. 299 and Sweeney v. Duggan [1991] 2 I.R. 274, that the question of whether a plaintiff is entitled to claim damages for breach of statutory duty must start with the consideration of whether, taking the relevant statutory regime as a whole, it can be said that it was “intended by the legislature that an aggrieved plaintiff would be entitled to damages”.
6.4 Having regard to those general principles, it seems to me that the following three questions arise:-
A. Is a statutory duty placed on the Minister in respect of the licensing of sea-fishing boats with particular reference to the Code of Practice?
B. If so, is the scheme of the relevant legislation such as it can be said that it was intended that entities or persons such as Atlantic and/or Mr. Rogers could maintain a claim in damages?
C. If not, is there nonetheless a sufficient proximity or relationship between the parties such as to meet the test identified in Glencar Exploration.
6.5 In approaching the first of those questions it is important to have regard to what the statutory provision itself requires. For the reasons which I have analysed earlier in the course of this judgment, at para. 3.5, it is clear that the only statutory requirement present is in the form of a prohibition on the grant of a relevant sea-fishing boat licence unless the appropriate certification of compliance with the Code of Practice is in place. It might be said that there is a statutory duty not to grant a licence in circumstances where the necessary certification was not in place. However, it is not suggested on the facts of this case that the licences have been granted in the absence of relevant certification. Rather it is said that, on the basis of the interpretation of the Code of Practice urged on behalf of Atlantic, sea-fishing boats are licensed (presumably on the basis of an appropriate certification) in circumstances where those boats do not, in fact, comply with the Code of Practice and further that such boats operate other than in accordance with the Code.
6.6 It seems to me to follow that what, in truth, Atlantic urges is that there is a statutory duty on the Minister to ensure a high level of compliance with the Code of Practice through the licensing system. However, it seems to me that to impose such a duty, as a matter of statute, on the Minister, would require that the statute concerned contained wording which imposed a clear statutory obligation on the Minister to ensure enforcement of the licensing regime, not merely to the extent of the express statutory obligation not to permit the licensing of boats which did not have a Certificate of Compliance, but also to the extent of ensuring that such boats did actually and continue to comply with the obligations contained in the Code of Practice during the lifetime of any relevant licence. I am prepared to accept, for the purposes of argument, that there may be circumstances in which a failure of regulation can give rise to a breach of statutory duty. However, for such to be the case, it seems to me that the relevant legislation would need to provide in express or necessarily implied terms for a specific duty of a particular type on the relevant regulator, from which the court might conclude that the proper construction of the relevant statute was such as imposed a statutory duty on the regulator concerned to act in a particular way or to refrain from acting in a particular way.
6.7 I am not satisfied that the statutory regime in this case can be so construed. The only statutory obligation is such as precludes the licensing of a boat which does not have a Certificate of Compliance. The regime does not require that the licensing authority be satisfied, either at the time of licensing or thereafter, that the boat continues to be compliant. It may very well (indeed one could go so far as to say it must) be the case that it would be prudent for the Minister to take reasonable steps to ensure that the Certificate of Compliance system is not abused, either by fishing vessels being certified as being compliant with the Code of Practice when they are not or, by the operators of fishing vessels who have the benefit of a legitimate and correct Certificate of Compliance altering the boat or the mode of its operation in a way which brings the vessel concerned outside the Code of Practice. However, to read the Act as imposing a statutory obligation on the Minister to act in such a way would seem to me to be to read too much into the Act. It might well be said that a failure on the Minister to ensure that the Certificate of Compliance system is not abused could lead to legitimate criticism of the Minister. It is, however, in my view a “bridge too far” to say that any such failure amounts, if it be established, to a breach of statutory duty. For those reasons I am not satisfied that, properly construed, the relevant legislation imposes an obligation on the Minister, as a matter of statutory duty, to ensure continuing compliance with the Code of Practice.
6.8 As pointed out earlier, the Code of Practice has not direct statutory effect. Rather, it has statutory relevance in that it is a document by reference to which a statute operates. However, that aspect of the statute only operates as part of the licensing system and then only to the extent that a Certificate of Compliance with the Code of Practice needs to be produced. In those circumstances, there is just too much of a gap between the Code of Practice and the statute to suggest that there is an implied statutory obligation on the Minister to ensure compliance with the Code of Practice rather than the undoubted obligation to ensure that licences are not granted to those who do not have a Certificate of Compliance with the Code of Practice.
6.9 If I be wrong in that view, then it would follow that it would next be necessary to consider whether the policy of the statute is such that it can be said, considering the Act as a whole, that it was intended by the legislature that an aggrieved plaintiff would be entitled to damages for breach of statutory duty.
6.10 The first element of that question is to identify who the relevant aggrieved plaintiff might be. It is clear that the purpose of the relevant provision in the statute is to procure safety at sea by requiring that only licensed fishing vessels can fish and by stipulating that, in order to be so licensed, such boats are certified as complying with the standards specified in the Code of Practice. The persons who are in the direct contemplation as beneficiaries of the legislation are, therefore, fishermen.
6.11 There may be legislation whose primary focus is to regulate a particular industry, business or sector to ensure, for example, fair conditions as and between operators within the relevant area. It does not seem to me that the 2003 Act (as amended) is such legislation. The legislation is not designed to regulate the businesses of those who operate fishing boats as and between themselves for the purposes of ensuring fair competition between such businesses. Still less is the legislation designed for the purposes of conferring benefits on or otherwise regulating the business operations of those, such as Atlantic, who might provide services to fishing boats. Even if, therefore, the relevant legislation in this case could be said to impose a statutory duty of any type on the Minister, it does not seem to me that, taking the legislation as a whole, it could be said that the Act intended that a plaintiff, such as Atlantic, operating in the field of supplying services to fishing boats, should be entitled to obtain damages for any breach of that statutory duty.
6.12 A more difficult question might arise in circumstances where the relevant claimant was a fisherman who sought to suggest that he had suffered as a result of a failure by the Minister to comply with any statutory obligations on the Minister under the Act. A more detailed analysis of the Act as a whole might be necessary in such circumstances to determine whether it could be said that such a fisherman claimant might be a person whom the legislator intended would be entitled to damages. However, no such question arises on the facts of this case.
6.13 Even if, therefore, I had been satisfied that the 2003 Act (as amended) imposed a statutory duty on the Minister of the type alleged to have been breached in these proceedings, I would not have been of the view that it would have been open to Atlantic to maintain a claim for breach of such statutory duty, for it does not seem to me that the legislation, taken as a whole, can be said to imply an intention on the part of the legislature that commercial operators in a position such as Atlantic would be entitled to damages for any such breach of duty.
6.14 Under this heading it is finally necessary to turn to the question of whether there might be circumstances in which an entity such as Atlantic might be able to claim damages for a common law breach of duty, notwithstanding the fact that it will only be in rare cases that such a common law duty will be found where the relevant statute does not give rise to a legitimate claim for damages for breach of statutory duty.
6.15 In that regard it is important to analyse the criteria identified by Fennelly J. in Glencar Exploration. First, Fennelly J. noted that it would have to be shown that the statutory power in question “was of the type which is designed to protect particular interests and that the plaintiff comes within its scope”. It seems to me that, for reasons similar to those which I have already analysed in relation to the claim for breach of statutory duty, it can not be said that a service provider to the fishing industry, such as Atlantic, comes within the scope of those whom the statute is designed to protect. It is clear that the statute is designed to enhance safety for the benefit of fishermen, rather than to protect the commercial interests of service providers to the fishing industry.
6.16 Fennelly J. further noted that it would probably be necessary, in order that it should succeed, that any relevant claim would arise from an individual transaction or special circumstances which would bring the potential claimant inside the proximity test. The basis put forward on behalf of Atlantic for suggesting that this limb of the test was met is the fact that Atlantic is itself certified to provide safety related services to the fishing fleet. There is no doubt but that that is so. It is also true that, by being so certified, Atlantic subjects itself to significant limitations on the way in which it can carry out its business. However, that fact, of itself, does not, it seems to me, create a sufficient degree of proximity between Atlantic and the Minister such as would give rise to a duty of care on the part of the Minister to operate an entirely separate licensing regime (i.e. that which operates in relation to sea-fishing boats by reference to the Code of Practice) which was designed for an entirely separate purpose, in such a manner so as to have regard to a duty of care to Atlantic.
6.17 In those circumstances, I am not satisfied that it can be said that the Minister owed any duty of care to a company, such as Atlantic, which operates as a fishing boat service provider in relation to the operation of the licensing system in relation to the operation of fishing boats themselves.
6.18 For all of those reasons I am not satisfied that there is any legitimate legal basis for the claim made on behalf of Atlantic in respect of either breach of duty or breach of statutory duty. It follows that it is next necessary to turn to the claim made in respect of legitimate expectation.
7. Legitimate Expectation
7.1 Atlantic claims that is has a legitimate expectation, which can give rise to a claim in damages, which is to the effect that the Minister will, in substance, rigorously enforce the licensing regime so that fishing vessels will not be permitted to carry life rafts which do not conform with the Code of Practice and the Marine Notices referred to in it.
7.2 Whether a legitimate expectation of that type can arise was the subject of dispute at the hearing before me. I should, firstly, note that complaint was made that a claim under this heading was not properly before the court having regard to the pleadings. However, counsel for the Minister, in my view quite correctly, did not vigorously pursue that point given that the factual basis for the claim under this heading was the same as the basis for the claim under the various other headings pursued, and the question of a legitimate expectation arising had been explored in the written submissions. I propose, therefore, dealing with this aspect of the claim.
7.3 In Lett & Company Ltd v. Wexford Borough Corporation & Ors [2007] IEHC 195, I had occasion to analyse the criteria, on the then current state of the jurisprudence, for the determination of the existence or otherwise of a legitimate expectation. I summarised my views in para. 4.7 of the judgment in that case in the following terms:-
“4.7 In the light of those authorities it seems to me that, on the current state of the development of the doctrine of legitimate expectation, it is reasonable to state that there are both positive and negative factors which must be found to be present or absent, as the case may be, in order that a party can rely upon the doctrine. The positive elements are to be found in the three tests set out by Fennelly J. in the passage from Glencar Exploration to which I have referred. The negative factors are issues which may either prevent those three tests from being met (for example the fact that, as in Wiley, it may not be legitimate to entertain an expectation that a past error will be continued in the future) or may exclude the existence of a legitimate expectation by virtue of the need to preserve the entitlement of a decision maker to exercise a statutory discretion within the parameters provided for in the statute concerned or, alternatively, may be necessary to enable, as in Hempenstall, legitimate changes in executive policy to take place. I therefore propose to approach the contentions of the parties as to the existence of a legitimate expectation in this case by first considering the positive elements of the test.”
7.4 As is also clear from my judgment in Lett, an issue arose in that case as to whether, at the level of principle, it is open to a party to claim damages per se for breach of a legitimate expectation. There is no doubt that the possibility of such a claim was noted by McCracken J. in Abrahamson v. The Law Society of Ireland [1996] 1 I.R. 403. However, for the reasons set out at para. 4.15 of my judgment in Lett, I came to the view that that issue did not, truly, arise in the case under consideration. The expectation which I found arose on the facts of Lett was, in itself, to the effect that the relevant plaintiff company would be entitled to compensation. The plaintiff in Lett did not, therefore, strictly speaking obtain damages for a breach of legitimate expectation but rather obtained compensation calculated by the court on the basis that it had a legitimate expectation to that compensation.
7.5 In addition to the question of damages, the issue also arises on the facts of this case as to whether a legitimate expectation can give rise to substantive rights rather than purely procedural entitlements. That debate was noted by Keane J. in the course of his judgment in Glencar Exploration but, for the reasons which he addressed, it was found unnecessary to resolve same. In this regard a useful starting point is, in fact, the comprehensive review of the authorities both in this jurisdiction and in other common law jurisdictions to be found in the 2nd Edition of Delaney on “Judicial Review of Administrative Action” between pp. 175 and 201. To that discussion might be added the fact that Lett itself is, at least in one sense, a case in which a substantive benefit (i.e. compensation) was provided. No claim was pursued which sought to establish an entitlement to a particular procedure being followed. Likewise, given that, as I pointed out in Lett, the genesis of the doctrine of legitimate expectation in Ireland is frequently traced back to Webb v. Ireland [1988] IR 353, it could also be said that that genesis derives from a case in which the relevant plaintiffs obtained a substantive benefit (again compensation) rather than a procedural benefit.
7.6 I have come to the view that there is no reason in principle why the doctrine of legitimate expectation cannot be invoked to obtain a substantive rather than a purely procedural benefit. However, it does seem to me that the negative factors which I identified in Lett as being likely to prevent a legitimate expectation arising are much more likely to apply, in practice, to cases where a substantive rather than a procedural benefit is asserted. There are likely to be very few cases where a legitimate expectation concerning compliance with a particular procedure could infringe the principles frequently invoked against recognising a legitimate expectation on the facts of a particular case. It is highly improbable that imposing an agreed procedure could, for example, lead to a party obtaining a right which they did not have, such as led the Supreme Court to reject the claim in Wiley v. Revenue Commissioners [1994] 2 I.R. 160. Likewise, the preservation of an entitlement of a decision maker to exercise a statutory discretion within the parameters provided for in the statute concerned, is most unlikely to be interfered with by requiring the relevant decision maker to comply with expectations legitimately arising in respect of the procedures to be followed. Other examples could be given.
7.7 The limitations on the doctrine of legitimate expectation which I summarised in the paragraph from Lett referred to above (and there may well, in time, come to be other such limitations) are much more likely to have application in cases where a substantive rather than a procedural expectation is sought to be relied on. It follows that those limitations will necessarily impact to a significant extent in cases where substantive expectations are sought to be advanced. It does not, however, in my view follow that there can be no circumstances where a substantive legitimate expectation can be enforced by the courts.
7.8 It will, therefore, fall to the court to determine whether the undoubted limitations which arise on the doctrine of legitimate expectation are such, in relation to an individual case and having regard to the policy considerations applicable to a case of that type, as outweigh the undoubted public interest in ensuring that decisions are properly made within the statutory or administrative framework applicable to them. To take but a simple example, one might consider two separate licensing regimes. In one case there might, for good policy reasons, be a limited number of licences capable of being offered (for example because of some physical limitation such as the availability of wavelengths). In the other, any person who met appropriate criteria might be entitled to a licence. In the first case the grant of a licence to any one individual would necessarily involve a potential adverse consequence for other contenders. In the second case, no such consequences would arise. It would be difficult to envisage circumstances where it would be possible to afford a plaintiff or applicant a substantive legitimate expectation which would have the effect of giving rise to an impermissible interference with the entitlements of third parties. A substantive legitimate expectation would be most unlikely, therefore, if at all, to be capable of being found in respect of a licensing regime of the first aforementioned type of case. However, a greater degree of latitude would undoubtedly arise in the second type. No third party rights or interests would be involved. Clearly a substantive legitimate expectation could not arise such as would cause someone who was not properly entitled (by reference to relevant criteria) to the licence concerned, for reasons such as those identified in Wiley. The purpose of the regime would, presumably, be to ensure that only those who met certain criteria could hold a licence. If a person clearly did not meet the necessary criteria, then it is difficult to envisage circumstances when a court could, in effect, force the grant of a licence to such person irrespective of what expectations might have been created in the mind of the claimant by the actions of those involved in the licensing process. In a case where, however, it was not established that the relevant claimant failed to meet the statutory criteria concerned, then the policy reasons for declining to enforce a legitimate expectation might be significantly less weighty.
7.9 I have, therefore, come to the view that it is possible for a legitimate expectation to exist in relation to a substantive rather than a purely procedural matter. However, significant care needs to be exercised in the case of a claim to a legitimate expectation for a substantive benefit, for the public policy requirements which need to be given significant weight are much more likely to be present and are much more likely to weigh heavily in the case of a substantive rather than a procedural legitimate expectation.
7.10 In addition, I see no reason in principle to depart from the view expressed by McCracken J. in Abrahamson to the effect that a claim in damages can, in an appropriate case, lie in respect of a breach of legitimate expectation. Indeed, there may well be cases where an award of damages, rather than a substantive interference with the statutory or administrative system under review, may be more appropriate. It is possible that there may be circumstances (particularly where a claimant has significantly changed his position as a result of a legitimate expectation) where it would be unjust not to provide the claimant concerned with some remedy. There may well, in those circumstances, be cases where it would not be appropriate to afford a substantive remedy as such in the sense of a remedy which interfered with the statutory or administrative process under review. In at least some of those cases it may well be that damages would be the appropriate remedy.
7.11 Against that general background it is next necessary to turn to the facts of this case.
7.12 The first issue that needs to addressed, applying the first test identified by Fennelly J. in Glencar Exploration, is to determine whether the relevant public authority has made a statement or adopted a position amounting to a promise or representation, express or implied, as to how it will act in respect of an identifiable area of its activity.
7.13 In assessing whether that aspect of the test is met, a number of facts need to be identified. First, Atlantic is itself certified in accordance with the SOLAS regime to provide safety equipment services to those who have to comply, under the sea-fishing boat licensing regime, with the Code of Practice and is, on the evidence, required to go to a significant effort and expense in maintaining that certification. Second, the Minister has promulgated the Code of Practice. Third, the Oireachtas has determined both that all sea-fishing boats need a sea-fishing boat licence and that a Certificate of Compliance with the Code of Practice is a mandatory requirement for the grant of any such licence. It seems to me that it can properly be said, therefore, that the Minister has “adopted a position” which amounts, at a minimum, to an implied representation, that only sea-fishing boats which comply with the Code of Practice, at least in general terms, will be allowed to operate under licence. I use the phrase “at least in general terms” because it would, of course, be important to note that the Minister could only refuse or terminate a licence where it was proportionate so to do in the light of any failure of compliance established. It must be noted that the primary purpose of the licensing regime is to ensure compliance rather than to punish non-compliance. The appropriate response to a minor non-compliance is to require that it be remedied in early course rather than to prevent the sea-fishing boat concerned operating thus depriving those involved in the relevant sea-fishing boat of their living. However, subject to that caveat, I am satisfied that it is appropriate to characterise the actions of the Minister as being such as amount to an implied representation that the Code of Practice will be applied albeit through the licensing regime.
7.14 The second requirement identified in Glencar Exploration is that the relevant representation must be addressed or conveyed either directly or indirectly to an identifiable group of persons, affected actually or potentially in such a way that it forms part of a transaction definitively entered into or a relationship between that person or group and the public authority, or that the person or group has acted on the faith of the representation. There can be little doubt that the primary group of persons to whom such representation might be held to have been made are fishermen whose safety on board sea-fishing boats is the focus of the legislation as a whole and the Code of Practice in particular. However, given that Atlantic is also certified by the same Minister to provide services which are intimately connected with that aspect of the Code of Practice with which I am concerned, I am also satisfied that such certified service providers, such as Atlantic, come within the scope of an identifiable group of persons affected by the representation and who are likely to place reliance on it in determining whether it is appropriate to incur the significant outlay of time, money and effort necessary to obtain and maintain their own licensed status.
7.15 As I pointed out in Lett, one of the principal reasons for the evolution of the doctrine of legitimate expectation stems from the fact that there may be cases where it is unjust to allow a public authority to stand on its technical legal rights. It follows that there may be circumstances where the parties who are within the group to whom an express duty of statutory care may be more confined than the group to whom a legitimate expectation obligation may be owed. It seems to me that this is such a case. Even if a statutory duty arose in this case, it could not extend beyond fishermen. However, a somewhat wider group, including closely connected entities such as Atlantic, can be said to be within the class of those to whom a representation may, by implication, be said to have been made, by virtue of the other elements which I have identified at para. 7.14.
7.16 The third test requires that the relevant representation must be such as to create a reasonable expectation in the group of persons concerned to the effect that the relevant public authority will abide by the representation to the extent that it would be unjust to permit the public authority to resile from it. I am also satisfied that this test is met on the facts of this case. Atlantic has incurred significant expenditure and put in significant effort in maintaining its own certified position. In deciding whether it wishes to do so (and to continue to do so), Atlantic is, in my view, entitled to place reliance on the implied representation of the Minister that the Code of Practice will be reasonably enforced. It would, in my view, in those circumstances be unjust to permit the Minister to resile from the representation as to reasonable enforcement such as exists in this case. Atlantic is not, however, entitled to expect that the Code will remain unchanged. The risk that relevant regulatory regimes may change over time is one of the risks that any party contemplating an involvement in a connected business venture will have to have regard to.
7.17 In those circumstances it seems to me that the three positive criteria identified by Fennelly J. in Glencar Exploration are met on the facts of this case. It is next necessary to turn to the question of whether there are any reasons, deriving from the negative criteria which I identified in Lett & Company or otherwise, which might prevent an enforceable legitimate expectation arising.
7.18 First, there does not seem to me to be any factor of the type identified in Wiley. To require the Minister to reasonably enforce, through the licensing system, the Code of Practice, as for the time being promulgated, could not lead to any person getting something that they were not entitled to or to any person not getting something which they were entitled to. Second, it does not seem to me that the imposition of an obligation on the Minister to reasonably enforce the Code of Practice through the licensing system in any way fetters the Minister’s discretion. If, on due consideration, the Minister does not think that the Code of Practice as currently promulgated is appropriate, then there is nothing to prevent the Minister from changing it. All that is being asked of the Minister is that he be consistent in enforcing, in a reasonable way, his current version of the Code of Practice. Such a requirement does not, in any way, fetter the Minister’s discretion either under statute or otherwise. If the Minister chooses to change the Code of Practice, then any subsequent certification for the purposes of the 2003 Act will be in accordance with the Code as so amended. The Minister retains a full entitlement to alter the Code of Practice in any way which he may consider appropriate.
7.19 There does not, therefore, seem to be any overriding policy objection to recognising a legitimate expectation to the effect that the Minister will reasonably enforce the Code of Practice to the extent that that may be possible under the licensing regime. That licensing regime confers a licensing power. The regime operates by express reference to certification of compliance with the Code of Practice. Those factors create a legitimate expectation that the code will be enforced in that way. Atlantic is within the contemplation of those who might be affected by a lack of enforcement, by reason of the fact that it too is certified to provide some of the services expressly mentioned in the code, being the safety requirements in relation to life rafts and the like, to which I have referred. I am, therefore, satisfied that, at least in general terms, a legitimate expectation arises that the Minister will enforce or cause to be enforced the code of conduct through the licensing system to a reasonable extent.
7.20 However, it does not seem to me that any such expectation could extend to an obligation on the Minister to ensure that the code is enforced in all circumstances. The Minister clearly retains a discretion as to how to deal with any failure of compliance with the Code of Practice (save that it is not permitted to grant a license, by reason of the clear wording of the 2003 Act, as amended, in cases where a Certificate of Compliance is not made available). Likewise, no regulator or enforcement agency will ever achieve complete compliance with a relevant regulatory regime. It does not seem to me that any person could entertain a legitimate expectation that complete compliance would arise. Any representation which the Minister might impliedly be said to have made (so as to meet the first test identified by Fennelly J. in Glencar Exploration), could only extend to reasonable enforcement having regard to the resources reasonably available for enforcement and having regard to the need to act proportionately so far as the rights of individual fishing vessel operators are concerned, when cases of non-compliance are identified. Against the background of that finding, two further questions arise. The first is as to whether it can be said, on the evidence, that the Minister has failed to meet the legitimate expectation of enforcement identified. The second is as to whether damages lie in that eventuality. I turn to the first of those questions.
8. Has There Been a Failure on the Part of the Minister?
8.1 While it is true to say that concerns of the type now advanced were expressed on behalf of Atlantic some time ago, it seems clear on the evidence that almost all of those concerns were expressed in the early years of the last decade. In that context it is important to identify the time when any legitimate expectation, on which Atlantic might rely, first arose. Up to the passage of the 2006 Act, there was no statutory basis for the Code of Practice at all. While the code was there, the Minister had no means of enforcing it. It does not seem to me, therefore, that any legitimate expectation of enforcement could be said to have arisen prior to the Code of Practice achieving what I have described as a quasi statutory status on the enactment of the 2006 Act. It was only when that Act came into force that the Minister had a means, through the licensing system, of procuring its enforcement of the obligatory passages of the Code of Practice. A legitimate expectation as to enforcement necessarily implies the means of enforcement.
8.2 In those circumstances, it seems to me that many of the complaints made by Atlantic occurred at a time when no legitimate expectation existed. It does not appear that, other than in the context of this case through the giving of oral evidence in the witness box, the attention of the Minister was drawn to what seems to be a significant scale of non-compliance with the life raft provisions of the Code of Practice (on the basis of the manner in which I have interpreted those provisions earlier in the course of this judgment). It does appear, on the facts as they emerged in the course of evidence, that there are a significant number of fishing vessels which, by inference, operate outside of the 5 mile/4 person parameter, but which carry life rafts of a type which are not designated in Marine Notice 8 of 2005. For the reasons which I have already sought to analysis, I am satisfied that such boats do not comply with the Code of Practice in those circumstances.
8.3 I should also have regard to the fact there was evidence that some level of enforcement has been engaged in by Minister such that licenses have been suspended for failure to comply with some of the standards specified in the Code of Practice. In the circumstances, it does not seem to me to have been established that there has, to date, been a sufficient failure of enforcement on the part of the Minister so as to give rise to a breach of the legitimate expectation which I have found arises in favour of Atlantic on the facts of this case. I am satisfied on the evidence that there is a material level of non compliance. The evidence of Mr. O’Sullivan bears no other inference. However, there is no evidence as to those breaches identified by Mr. O’Sullivan, or the like, having been brought to the attention of the Minister. There was evidence that there had been spot checks in the past which were designed to ensure that Certificates of Compliance with the Code of Conduct accurately reflected actual compliance. IT would, in my view, require evidence directed towards the failure of the Minister to take reasonable steps as to enforcement (having regard especially to the fact that the Minister could, legitimately, take some comfort from the presence of Certificates of Compliance) before a finding of breach of legitimate expectation could be made. However, it seems to me that evidence now having been placed before the Minister, in the form of the evidence given in this action, there is now a pressing obligation on the Minister to do one of two things.
8.4 The Minister must first review the terms of the Code of Practice and consider whether it should continue in its present form. If the Minister wishes, in the light of the issues which were addressed in the course of these proceedings, to amend the Code of Practice then it is, of course, open to him so to do. If any such amendment alters the position so that the apparent breaches of the Code of Practice identified in the evidence in this case would no longer be a breach of the Code of Practice, then no issue of continuing enforcement would arise.
8.5 Second, however, should the Minister decide to continue with the Code of Practice in something substantially like its present form insofar as life rafts are concerned, then it seems to me that there is a pressing obligation on the Minister to now act so as to procure a much higher level of enforcement than has been identified in the past. It is next necessary to turn to the question of damages.
9. Damages
9.1 In the light of those findings it does not seem to me that it would be appropriate to make an award of damages in favour of Atlantic. Any issues concerning compliance with the Code of Practice up to the coming into force of the 2006 Act could not, for the reasons which I sought to analyse, give rise to a legitimate expectation and thus no claim for damages in respect of any such period could, in any event, arise.
9.2 In relation to the period since then, it does not seem to me that there was sufficient evidence to satisfy me that the Minister was guilty of a culpable failure to enforce. I have come to this view not least because the detailed evidence of non-compliance put before the court had not been notified to the Minister prior to the hearing. However, in the light of the evidence given in this case, it would seem to me that, in the absence of any material alteration in the Code of Practice, a failure on the part of the Minister to take significant action to now ensure compliance might well amount to such a culpable failure.
10. Conclusions
10.1 It seems to me that it would not, for those reasons, be appropriate to make any award of damages to Atlantic. However, it does seem to me that Atlantic has established an obligation on the part of the Minister to either alter the Code of Practice or enforce it as it now is. In the circumstances, it seems to me that the appropriate course of action to adopt is to adjourn these proceedings for a period of time to allow the Minister to consider the findings contained in this judgment and to formulate the action which the Minister intends to take.
10.2 In those circumstances, I propose adjourning the proceedings for mention until the last day of Easter term. In the meantime, I would invite the Minister to consider the matters determined in this judgment and to indicate to Atlantic, in advance of that hearing, what position the Minister intends to adopt.
Cromane Foods Ltd v Minister for Agriculture, Fisheries and Food
[2016] IESC 6
Judgment of Mr. Justice John MacMenamin dated the 22nd day of February, 2016
1. The judgment appealed against raises rather deep questions. The issues raised relate both to the theory and practice of the concept known as “operational negligence”. While I admire the elegance with which the High Court judgment seeks to address the evidence and the law, I would respectfully disagree with its conclusion. In fact, the circumstances in this case provide an apt case-history of the problems which can actually arise with the concept. I would uphold the appeal in regard to legitimate expectation, and concur with my colleagues, Clarke J., Dunne J. and Charleton J., in so concluding. Together with Dunne J. and Charleton J., I would also uphold the appeal on the operational negligence issue for reasons I now set out.
2. The unavoidable fact is that strong policy considerations arise in this appeal. One cannot deny that legitimate concerns are consistently expressed on how, in law, to identify means of redress for wrongful actions by the executive which detrimentally effect private individuals. Clarke J. eloquently makes the case for the concept of operational negligence in his judgment. No one would envisage a return to the era which preceded Byrne v. Ireland [1972] I.R. 241, where the State was, effectively, immune from suit. But what is necessary, is that changes in the law of negligence, and reformulations of the law on State liability, should be carefully and incrementally approached, with a clear view as to their long term consequence. There is always a concern that radical alterations in the law emerge within the narrow confines of one case which have unforeseen consequences. In some instances, such as the discovery of the snail in a bottle of ginger beer in the Wellmeadow Café in the Scottish town of Paisley, the consequences are, generally, for the public good (Donoghue v. Stevenson [1932] UKHL 100, [1932] AC 562 ). But, even in this instance, it is doubtful whether either the majority or minority of the House of Lords who deliberated on the appeal could have foreseen the exponential expansion in the law of negligence which followed.
Introduction
3. In fact, an unguarded inception of State liability for operational negligence, both in its conception, and its means of application, might potentially raise even more profound issues than Donoghue v. Stevenson. It requires little imagination to imagine circumstances where the threat, either in prospect, or in retrospect, of an operational negligence claim, might be such as to stifle any administrative action in an area of potential controversy. There is undoubtedly, a strong public interest in ensuring that a proper balance is struck between private and public rights and duties. However, there is perhaps an even stronger public interest in ensuring government actually functions for the general public good, and that administrators do not consider themselves impeded from making any decision for fear of being immersed in a morass of litigation. It is not hard to conceive of operational negligence proceedings being brought in circumstances where millions (or perhaps billions) of Euro might be at stake as a consequence of an executive or administrative decision or action. There is no doubt that the courts and the law will be much occupied in the foreseeable future with the need for protecting the individual against wrongful executive decision and action. Such developments may come from either national or European courts or legislators. But, what is fundamentally necessary, insofar as possible, is that clear lines of demarcation and principle are identified in developing the law. Further, what is of prime importance is to ensure that a judiciary does not become a form of surrogate unelected government, vesting itself with the power to second-guess prima facie lawful government actions in areas of discretion which do not raise questions of vires. These are not small considerations.
Conceptual Difficulties of Operational Negligence
4. Even on first impression, the appeal before us illustrates the inherent risks in engaging in an “operational negligence” analysis of the decisions of a public authority which, on the face of things, was acting intra vires. How should a court of law, with all the luxury of hindsight, engage in this form of critique of the actions or inactions of the appellant Minister and his department? Such a process, as here, necessarily involves a post hoc analysis of a series of omissions to act. As we will see, time-span of the tort is unclear; arguably the Minister’s failure to put himself in a position to comply with E.U. law, could stretch back over a decade prior to 2008, the year in which, I infer, the judgment holds the tort was actually committed. By 2008, a series of more proximate decisions, which are referred to later, were ones in which there were, simply a series of invidious choices between broad public and private interests. One might ask, how well equipped are the courts to engage in such a retrospective scrutiny, even before going on to consider how long such an “inquiry” (I use the word advisedly), might take in other instances. It is not hard to think of rather deeper and broader issues where the stakes are higher even than those considered here.
5. The High Court ultimately held that the tort here was committed in the year 2008. That is what the judgment says at a number of points. But taking that essential point as established, what was actually put into the equation was not one isolated act, wherein one might identify classical indicia of negligence, but, rather, something very much broader. The judgment necessarily contains a description of the complex background to what occurred pre 2008. Is the omission to act, over these previous 8 or 10 years, itself a tort of operational negligence? At points, the judgment seems to suggest that it is. It is said that the Minister, over a period of years, failed to carry out appropriate surveys on Castlemaine Harbour, so that baseline statistics would be available, so as to comply with E.U. environmental law. It is very hard to avoid the inference that this is all to be encompassed as part of the tort. Yet, elsewhere, the actual elements of the tort appear to be ministerial and executive actions, carried out within 2008, and all of which were, on their face, lawful, carried through on foot of statutory instruments, and intended to ensure that the State was, eventually, compliant with E.U. law. How then is a court to reconcile the paradox that, as a matter of public law, the impugned acts or omissions must be seen as lawful; but as a matter of private law they were not? How is one to assess the question of causation?
6. Some of these considerations underlie the objections which are to be found, both in academic and legal commentary, on the common law courts’ embarkation on a journey of uncertain destination, (and uncertain staging posts), beginning with Anns v. Merton L.B.C. [1978] AC 728. If a court is determining whether ‘operational negligence’ occurred, how does it balance the needs (and duties) of the State, responsible for the public interest, against the private interests of individuals? The common law recognises that clear distinctions (and consequences) derive from the difference between wrongful acts, (feasance), and omissions to act (non-feasance). This is a distinction which, although criticised, may, at least, be defensible at the level of principle on constitutional, political, moral, and economic grounds. Lest there be misunderstanding, I do not have the slightest concern that the law should continue to develop, as it must, but it is necessary that the judges themselves be cautious – as we urge others to be.
7. The concept carries with it, too, an inherent risk of elision between ‘omission’, often incapable of giving rise to legal liability, and an affirmative duty, which does. The case law, as it developed, has addressed a wide range of public and private concerns. It is difficult to see a consistent pattern. At times, the courts have, laudably and understandably, adopted a victim-oriented approach, whereby public funds may serve a welfare or protection purpose; elsewhere judges have adopted a more robust approach, taking account of the potential allocation of public funds, against a backdrop of concerns, expressed both in Ireland and elsewhere, as to trenching on the constitutional domain of the executive.
8. Statutory duties are mandatory in character. Other powers leave public bodies with the discretion or power of choice. In this appeal, we address a discretionary power. If a Minister is exercising a discretion, it is unclear by what legal standard are his or her discretionary actions, or inactions, to be judged. Are the courts to adopt some form of unreasonableness standard (as in Keegan)? Alternatively, perhaps courts should base the standard purely on the “neighbourhood” Donoghue v. Stevenson principle. These questions remain to be fully addressed, especially were it to be suggested that the lower standard should apply as to a range of justiciable government actions.
9. A further and equally fundamental conceptual difficulty lies in a frequent lack of distinction between ‘policy’ and ‘operation’, as enunciated in Lord Wilberforce’s speech in Anns, but then sought to be applied elsewhere. It is difficult to distinguish between the two, where one may give rise to liability, and the other may not. This confusion may derive from the case law of the United States, and particularly what Fleming’s learned authors wrote was a concept “unwisely transplanted, as most writers think, from the very different environment of the U.S. Federal Tort Claims Act” (cf. generally, Fleming’s Law of Torts, 10th Edition, Law Book Company, 2011, Chapter 8). I focus now on the decision under appeal.
The Legal Authorities Relied on in this Judgment
Duff v. The Minister for Agriculure
10. The judgment under appeal hinges on the approach adopted by this Court in Duff v. The Minister for Agriculture (No. 2) [1997] 2 I.R. 22. Here, as elsewhere in legal history, one might comment that cases acquire a “patina” of having “decided” some principle of law, when on close-examination one finds the position much less certain.
11. In Duff, three members of a court of five (O’Flaherty, Blayney and Barrington JJ.), held for the plaintiff, in circumstances where this Court held the defendant Minister had made a mistake in law in granting a reference-quantity out of the national quota for development farmers whom he had promised to assist, causing the farmer-plaintiff loss and damage. However, Hamilton C.J. and Keane J. strongly dissented from this finding. It is necessary to enquire whether there was, in fact, a clearly established, principled, ratio which is of precedential value to operational negligence. Blayney J. agreed with the judgment of Barrington J. However, the third member of the majority, O’Flaherty J., formulated his decision on a quite different analysis, relying on legitimate expectation, and drawing explicitly on the principle of restitution. The question, which arises is as to whether certain passages from this judgment, now cited below, can be characterised as representing a clear ratio of the majority of the court in Duff on the question of operational negligence, rather than it being a judgment more positively informed by the principles of legitimate expectation? On the question of the exercise of ministerial discretion, Barrington J. held at p. 89 -90:
“As previously stated, the plaintiffs could have had no legitimate expectation that the law would not be changed. Neither could they have any right that the Minister would exercise his discretion under art. 3 of Council Regulation EEC/857/84 in their favour. But once the Minister had decided to give them a reference quantity out of the national quota the Minister had a duty, and they had a right to expect, that the Minister would implement this decision in a lawful manner. The Minister, in breach of his duty and of their rights attempted to implement his decision in a manner which was unlawful. As a result the plaintiffs did not receive the special reference quantities to which they were entitled and have, in consequence, suffered damage and loss.” (Emphasis added)
12. He continued at p. 90:
“The trouble is that the method which the Minister chose to provide for the development farmers was unlawful. He chose this method due to a mistake of law on his part. When he discovered his mistake, in the autumn of 1984, the situation had changed because the national quota had been divided up without making provision for the national reserve out of which the development farmers could receive their quota. It was now too late, or the Minister felt it was too late, to retrieve the situation. …”
13. The judge added at p. 90:
“If, as appears to be the case, the plaintiffs have suffered loss and damage as a result of the Minister’s mistake of law it appears to me just and proper in the circumstances of this case, that the Minister should pay them compensation.”
14. But, a close analysis of the judgments in Duff raises serious questions as to whether it could, even at the time it was delivered, have been characterised as a clear authority for establishing, in principle, a tort of operational negligence. I deal with later judicial doubts on the judgments below. While counsel for the plaintiff farmer did cite many of the then relevant legal precedents on negligence of public authorities, a careful reading of the entirety of Barrington J.’s judgment, in fact, indicates that it can more fairly be characterised as a judgment inspired by legitimate expectation. Indeed, in the paragraph immediately following the words “compensation for their loss”, (above), that judge went on to say at p. 90:
“The principle of legitimate expectation is one of the fundamental principles of Community law. It provides, inter alia, that those who in good faith act under representations of agents of the State shall not be frustrated in their expectations.” (Emphasis added)
The judge did not go on to characterise the claim as being one of operational negligence, properly so called.
15. The learned authors of Hogan & Morgan’s Administrative Law, 4th Edition, 2010, at paragraph 18.151, p. 1007, understandably comment guardedly on Duff:
“…[T]he plaintiffs appear to have succeeded on the ground of something like a negligent error of law in that the Minister had misunderstood the EC Directive which he was applying. This may be classified as a special case of operational negligence as opposed to the negligent exercise of a discretionary power. One might query, however, whether the sort of public policy defence which won the day for the State in Pine Valley Developments Limited v. The Minister for Environment applied here. Moreover, in as much as Barrington J. was suggesting that damages flow from a finding that the decision was ultra vires, he has been overruled”.
While accepting the authors’ point that there may have been reluctance to allow a legitimate expectation against a statutory power as in Duff, it goes too far, I think, to describe the judgment as being one of ‘operational negligence’, without much further glossing. I add here that, insofar as E.U. law principles are concerned, the tort, as found in the judgment under appeal, ultimately, does not derive from a Frankovich breach of E.U. law, but rather the damage caused by the implementation of E.U. law after a breach thereof was identified by the ECJ.
16. One’s concerns as to the precedential value of Duff are not allayed by subsequent judicial observations. What Fennelly J. said about the decision in Glencar (No. 2) [2002] 1 IR 84 at p. 150 are very much on point. He commented:
“I believe that the considered statements of the law made in Pine Valley Developments v. The Minister for Environment [1987] I.R. 23 remain the law, despite apparent inconsistency with some dicta in the majority judgments in Duff v. Minister for Agriculture (No. 2) [1997] 2 I.R. 22, which appear to treat liability for damages as automatically flowing from a mistake of law said to have been made by a minister. Pine Valley v. The Minister for Environment, though fully considered and applied in the High Court judgment of Murphy J. in that case (Duff), does not figure at any point in the judgments of the Supreme Court. I do not believe that it can have been intended to depart from such an important principle as that laid down in Pine Valley.”
17. It is difficult to avoid the conclusion that the rationale for the judgment now appealed is predicated on Duff, a judgment which, at its highest, was decided on its own facts. I do not believe it can be seen as a precedential authority for operational negligence. The judgment is not mentioned in the most leading recent textbook on Irish Tort law (cf. McMahon & Binchy, Bloomsbury, 4th Edition, 2013; nor, earlier, in Healy, Principles of Irish Torts, Clarus Press, 2006). Liability for damage does not automatically flow from a mistake of law said to have been made by a Minister. To my mind, there is now no precedential basis for finding that a concept of ‘operational negligence’, based on such a slim foundation, could constitute a cause of action giving rise to loss and damage, especially in the absence of any consideration in the judgment appealed of other important authorities, such as Pine Valley and Glencar.
Pine Valley
18. In the first of these, Pine Valley [1987] I.R. 23, this Court, held, unanimously, that where a Minister is exercising a public statutory duty, he or she will not be liable in damages, even for an ultra vires action, unless the exercise of the power involves the commission of a tort, or is actuated by malice, or unless the authority knew that it did not possess the power which it purported to exercise. A Minister, in reaching his or her decision to grant a licence, and acting bona fide, in pursuance of advice which they had been given by a departmental senior legal advisor, could not be guilty of negligence or negligent misrepresentation. At page 36 of the Report, Finlay C.J. adopted with approval the following propositions from the 5th edition of H.W.R. Wade, Administrative Law, at p. 673 as follows:
“The present position seems to be that administrative action which is ultra vires but not actionable merely as a breach of duty will found an action for damages in any of the following situations:-
1. If it involves the commission of a recognised tort, such as trespass, false imprisonment or negligence.
2. If it is actuated by malice, e.g. personal spite or a desire to injure for improper reasons.
3. If the authority knows that it does not possess the power which it purports to exercise.” (Emphasis added)
19. To this, Finlay C.J. added:
“I am satisfied that there would not be liability for damages arising under any other heading.”
20. I lay emphasis on the term “recognised tort”; Finlay C.J. thereby precluded any potential liability arising under any other heading of tort.
Glencar
21. I move then to further consider the later judgment of this Court in Glencar [2002] 1 IR 84. Many of the passages from the judgments of Keane C.J. and Fennelly J. are now so well known as hardly need repetition. They express the law applicable.
22. I instance here Keane C.J.’s judgment wherein he stated at p. 139:
“There is, in my view, no reason why courts determining whether a duty of care arises should consider themselves obliged to hold that it does in every case where injury or damage to property was reasonably foreseeable and the notoriously difficult and elusive test of “proximity” or “neighbourhood” can be said to have been met, unless very powerful public policy considerations dictate otherwise. It seems to me that no injustice will be done if they are required to take the further step of considering whether, in all the circumstances, it is just and reasonable that the law should impose a duty of a given scope on the defendant for the benefit of the plaintiff, as held by Costello J. at first instance in Ward .v. McMaster, by Brennan J. in Sutherland Shire Council .v. Heyman and by the House of Lords in Caparo Industries Plc. .v. Dickman. As Brennan J. pointed out, there is a significant risk that any other approach will result in what he called a “massive extension of a prima facie duty of care restrained only by indefinable considerations …” ([2002] 1 IR 84, at 139).
23. Very appositely to the instant appeal, Keane C.J. also went on to doubt the utility of a distinction between policy and operational actions of public authority. He said at p. 140 – 141:
“For the purposes of this case, it is sufficient to say that the mere fact that the exercise of a power by a public authority may confer a benefit on a person of which he would otherwise be deprived does not of itself give rise to a duty of care at common law. The facts of a particular case, however, when analysed, may point to the reasonable foreseeability of damage arising from the non-exercise of the power and a degree of proximity between the plaintiff and the defendant which would render it just and reasonable to postulate the existence of a duty of care. That approach is consistent with the reluctance of the law to impose liability for negligence arising out of an omission to act rather than out of the commission of positive acts which may injure persons or damage property.”
24. Insofar as any of these observations were obiter dicta their authority was put beyond question by the judgment of Fennelly J. in this Court in Breslin v. Corcoran [2003] 2 IR 203 at p. 207. Can the concept of ‘operational negligence’, as identified in this case, comfortably fit within the framework of the established jurisprudence? In my view, it does not. On this alone, the appeal on this second operational negligence issue must necessarily succeed.
25. I am not persuaded that comparisons with Laffoy J.’s magisterial judgment in Minister for Communications v. Figary Water Sports Development Company Limited [2005] IESC 74, are apposite. In Figary, this Court, Clarke J., Laffoy J., and Charleton J., was not addressing the issue of operational negligence; but rather, a situation where there had been a breach of duty, including statutory duty, by the Minister, in circumstances where the Minister owed a specific duty to a very specific group. The application of statutory duty, the judgment held, could not be wholly divorced from the landlord and tenant relationship which existed between the parties. I would re-emphasise that, as I understand matters, the primary finding as to the causa causans in the judgment under appeal derived from the measures which the Minister took to remedy Ireland’s failure to implement relevant Directives. Here, by contrast, it is difficult to characterise the tort, as described in the judgment, as a failure to implement E.U. law, giving rise to cause of action for the respondents. Insofar as the judgment makes other findings as to the pre-2008 situation, one might ask whether these are operational negligence, or the background to the negligence as found? For a tort, there must be some causation, not merely a situation.
26. At no stage was it argued in this appeal that Pine Valley, Glencar, or Breslin, were wrongly decided. A process of dis-application of authoritative statements of the law cannot be initiated through the back door. In fact, further concerns emerge, as now outlined.
Application to the Judgment under Appeal
27. I now turn to consider the manner in which the High Court judgment ([2013] IEHC 338) sought to apply the concept of operational negligence. It must be remembered, in fairness, this was in the context of that the High Court also held that there had been breach of legitimate expectation by the defendant. It is not unfair to comment that many of the indicia of legitimate expectation ‘leaked in’ to the identification of operational negligence, as expressed in the judgment under appeal. They are very different concepts.
28. The judgment describes the manner in which, during the early 1990’s, the possibility of designation of Castlemaine Harbour as a Special Protection Area (SPA) was under consideration. There was the public notice, published in the Irish Times on the 7th April, 1993. This was issued from the National Parks & Wildlife Service of the Office of Public Works. Hypothetically, such a notice might be characterised as announcing an intention to classify only Castlemaine Harbour as an SPA. But, such a characterisation would be entirely misleading. One must look at the scope of the representation in order for there to be negligence. In fact, the notice went no further than to say:
“It is not envisaged that designation will restrict the usage pattern of these areas for activities such as fishing, water sports, sailing and game hunting, or their use for shellfish culture.” (Emphasis added)
This “envisaging” cannot be recharacterised as a tacit or implicit representation to the respondents. It related to a much broader range of activities than the mussel harvesters in Castlemaine Harbour. The full text of this notice is referred to in judgments of my colleagues.
29. To be clear, the notice did not refer only to Castlemaine Harbour. Rather, it in fact referred to 12 separate and distinct areas (including Castlemaine), stretching from Louth to Shannon, from Inner Galway Bay to Ballycotton. It was decidedly not, therefore, a notice which made reference only to the respondents’ area of activity. Nor was its content confined to the activity of mussel harvesting. Similar observations would arise regarding any government notice issued at the same time, presumably to much the same effect. It is difficult to conceive how any of these works could be regarded as a representation or a statement upon which the respondents could rely for negligence purposes. Here, and elsewhere, full context is all important. The words went no further than to say “It is not envisaged”.
30. The difficulty in pinning down the rather mercurial content of operational negligence is discernable throughout the judgment, despite the thought provoking and comprehensive way in which the judge sought to approach the issue.
31. He describes the events after the 1993 notice, as follows at par. 41:
“What happened from then onwards, the annual allocation of seed collection authorisations and the constant refurbishing of the plaintiffs business gave rise to a pattern of events where the plaintiffs had good reason to rely upon the comfort given to them that there would not be a summary closure of their business without some good scientific reasons or without some consultation process before doing so.” (Emphasis added)
The emphasised words are each rather broad terms. One must look then to the meaning of ‘pattern of events’, and the ‘good scientific’ reasons as they arise in this case. One might also ask, did this paragraph describe the tort? If so, it was not represented, as such, in the Statement of Claim at the outset of the case.
32. This earlier ‘pattern of events’ culminated in, or was broken by, the judgment of the Court of Justice in December, 2007. This was, undoubtedly, a trigger-event. It is necessary now to consider, again, how the High Court judgment deals with the judgment of this Court in Duff v. The Minister for Agriculture [1997] 2 I.R. 22, in the context of the Court of Justice’s finding that no assessments had been carried out, inter alia, in Castlemaine Harbour before granting harvesting authorisation to the respondents. The High Court judgment reads at par. 49:
“The carrying out of screening tests is all within the control of the Minister. In 2008 the Minister finds himself barred from exercising a discretion as a result of not having carried out an appropriate assessment before granting the seed authorisation, despite the fact that he did so in previous years and did so under a mistake of law on his part. That brings us right into a situation analogous to what happened in the Duff case (where the Minister was barred from exercising his discretion in relation to the milk quota because of a mistake of law). The mistake of law in the present case is more than just a pure mistake of law in the legal sense. It is a mistake of law in how the Minister thought it was appropriate to manage the aquaculture business in a balanced way with protecting the environment; the mistake of law that we are looking at here has a relevance in terms of how the regime was managed. There was operational negligence in failing to carry out the regular scientific tests or monitoring that would have provided the baseline data to equip the Minister either to have a proper screening test or to have a fully informed appropriate assessment. The delay could have been avoided if the Minister had not been guilty of operational negligence, which was part and parcel of his mistake of law. These matters are now translated into loss and damage of the plaintiffs in the same way as the farmers in the Duff case.” (Emphasis added)
33. The unavoidable inference here is that the tort of operational negligence was one of long term omission; one, moreover, where, over a period of many years, the Minister failed to carry out regular scientific tests or monitoring, which would have provided the baseline data. These omissions were characterised as part of the Minister’s ‘mistake, in law’, which translated into loss and damage for the respondents. But, it is hard to see where does the negligent “cause” begin, and over what did it occur. This description does not only deal with 2008. But, elsewhere, the clear intent of the judgment is that the failure arose because the Minister failed to act quickly in 2008 to remediate the respondents’ position, as a consequence of the ECJ judgment. The High Court judge held, elsewhere in the judgment: “The State were negligent and in breach of duty to the plaintiffs in delaying the re-opening of the said mussel seed fishery, in delaying carrying out tests to exclude environmental risks, and in allowing the plaintiffs to expend substantial monies on renewing their vessels.” This can only refer to 2008. One is left with a tort having the following ingredients: (a) neglecting to ensure assessment as and from 2000 onwards, (b) mistaking E.U. law consisting in, inter alia, (c) the Minister’s error as to how it was appropriate to manage the aquaculture business; and (d) delay in re-opening after 2008. These are very broad headings indeed for a tort, lasting over many years. I question whether this constitutes a justifiable controversy at all.
Was the Tort a Series of Omissions or Positive Acts?
34. The passage just quoted also provokes other problems, derived from the criticisms of operational negligence itself. One might again legitimately pose the question, did the operational negligence here consist in acts, omissions, or both? Seeking to place operational negligence within the categories of tort law, there is a problem of identifying whether this was misfeasance or nonfeasance. Here, again, the tort, as described here, is impossible to pin down.
Timing
35. As pointed out earlier, even though the tort was held, in terms, to have occurred in 2008, the judgment criticises the failure of the Minister (or perhaps successive Ministers), in failing to carry out “regular scientific tests, or monitoring”. The administrative omissions, however, clearly took place significantly before that year. One might legitimately ask, when did these tortious omissions commence, and what was their nature and content? There is a want of clarity in the evidence, in what act or commission allegedly caused damage to the respondent? One might infer that, prior to 2008, the Minister actually had regard to the respondents’ private interests, over many years, by condoning harvesting, even at the cost of failed adherence to E.U. law. I cannot conclude the Minister’s condonation of the activity, or omission to act in that earlier lengthy period of time, was a wrong committed against the respondents, when the situation was to their benefit?
36. There then arises a further unavoidable question, that is, whether, if the Minister had, in fact, acted between 2000 and 2008, the respondents would inevitably have incurred significant losses, by a similar necessary suspension of activity in Castlemaine Harbour, as occurred from 2008 onwards, in order to obtain appropriate baseline data? If the detailed surveys complained of were necessary to establish the baseline, one is only left to speculate as to how these surveys could have been carried out without exactly the same or similar cessation of activity in the harbour, albeit in earlier years.
The Glencar Principles
37. It is also useful to analyse and contrast the operational negligence concept, as realised, in the context of the ‘Glencar’ considerations of proximity, foreseeability, standard of care, and what is just and reasonable. It is most fruitful to analyse the just and reasonable test first.
‘Just and Reasonable’
38. The diverse nature of the statutory regime governing the activity of mussel harvesting in Castlemaine Harbour is described in Clarke J.’s judgment. It does not require further rehearsing here, other than again to emphasise its very complexity, including, as it did, the need to apply and implement the Common Fisheries Policy; the E.U. Habitats Directive; Candidate Special Area of Conservation (“cSAC”); Special Protection Area under the Birds Directive; Fisheries Acts, including the Fisheries (Amendment) Act, 1997; and statutory instruments made, including the Mussel Fishery (Castlemaine Harbour) Order, 1979 (Exclusive Rights to Mussel Bed Cultivation); Sea Fishing Boat Licence issued under s.4 of the Fisheries (Amendment) Act, 2003, as amended by s.97 of the Sea Fisheries & Maritime Jurisdiction Act, 2006; Mussel Seed Authorisation (MS 35/08) granted under the Sea Fisheries & Maritime Jurisdiction Act, 2006; and an order opening the mussel fishery pursuant to s.15 of the Sea Fisheries & Maritime Jurisdiction Act, 2006. As well as this, a number of statutory instruments were promulgated, giving effect to the Birds Directive and Habitats Directive.
The Court of Justice
39. In the case cited earlier, the Court of Justice found, that the State’s failure arose under Article 6(3) of the Habitats Directive, which provided that any plan or project likely to have a significant effect on an area of conservation should be subject to “appropriate assessment of its implications for the site, in view of the site’s conservation objectives”. The duty imposed upon the national authority was to “agree to the plan or project, only after having ascertained that it will not adversely affect the integrity of the site concerned …”. The obligation was to carry out such appropriate assessment in advance of any consent to the plan or project. European Union law did not permit carrying out of an assessment while the project was in being. The purpose of the appropriate assessment is to ensure that, prior to consent, any risk of adverse effects could be excluded.
40. These principles were also articulated in the Court’s decision in Case C-127/02 Waddenzee, which made clear that such assessment(s), must be carried out prior to approval being granted, and authority may be given only if the State authorities have “made certain that it will not adversely affect the integrity of that site”. The Court held that there must be no reasonable scientific doubt remaining as to the absence of such effects. Additionally, it is necessary to identify what the “conservation objectives” of a site are.
41. Relevant also is the fact that in Commission v. Ireland [2007] ECR I-10947 (Irish Wild Birds), the Commission complained that Ireland had “… systematically failed to carry out a proper assessment of those [aquaculture] projects situated in SPA’s or likely to have effects on SPA’s, contrary to Article 6(3) and (4) of the Habitats Directive.” The Court of Justice held at I – 11077, par. 240:
“It is clear that Ireland merely stated, without offering further explanation, that the Irish scheme for authorising mollusc farms, including the provisions on consultation, does in fact provide for detailed consideration of all aspects of an aquaculture development project before a decision is taken on authorisation.”
42. But, then the court held at I – 11077, par. 242, that its conclusion that Ireland had failed to comply with the Directive was:
“…supported by the fact that Ireland has not put forward any specific scientific studies showing that a prior, detailed ornithological study was carried out, in order to challenge the failure to fulfil obligations alleged by the Commission.” (Emphasis added)
What was necessary for compliance was for this State to have excluded the risk of aquaculture projects having a significant effect on the site.
43. The court held at I – 11077, par. 243:
“Under Article 6(3) of the Habitats Directive, an appropriate assessment of the implications for the site concerned of the plan or project implies that, prior to its approval, all aspects of the plan or project which can, by themselves or in combination with other plans or projects, affect the site’s conservation objectives must be identified in the light of the best scientific knowledge in the field. The competent national authorities are to authorise an activity on the protected site only if they have made certain that it will not adversely affect the integrity of that site. That is the case where no reasonable scientific doubt remains as to the absence of such effects. …”
44. In the light of these very explicit conclusions, one might well pose the question whether a finding of operational negligence in 2008 could be just and reasonable, having regard to the Glencar principles. Counsel for the State in these proceedings appositely, but with considerable understatement, described the “complexity of the situation” which the State faced in 2008 due to what was termed “the changed understanding” of the State’s obligations under the Directives.
Negligence in 2008
45. It is necessary now to consider the measures taken by the State from 2008 onwards. The judge pointed to a series of meetings which took place. A number of working groups were assembled. Different departments and statutory bodies were consulted, including the Departments of the Environment, Heritage and Local Government, the Marine Institute, the National Parks & Wildlife Service and Bord Uisce Mhara. The DG Environment of the European Commission was also heavily involved. The task of carrying out an assessment was obstructed by the fact that there had been no conservation objectives identified. This delay, in turn, was due to the absence of available baseline data, which then had to be collated. Without this material, opening the mussel seed fishery was contrary to the State’s obligations under the various Directives, as the European Commission made clear. But, the High Court judgment held, these steps were not enough, so far as the respondents were concerned, and too dilatory.
46. In Charleton J.’s judgment, there can be found a table provided by counsel for the appellant in these proceedings which identifies some 21 legislative events which took place and which affected, inter alia, this fishery, between the 29th November, 2007 and the 8th December, 2010. This included some 7 changes which either opened or closed the fisheries.
47. Disregarding any other issue as to whether a loss was actually sustained in each year, or by which respondent any loss was incurred, the mussel fishery in Castlemaine Harbour was open between the 5th October, 2008 to the 31st December, 2008, the 30th April, 2009 to the 14th May, 2009, 15th September, 2009 to the 23rd September, 2009, 29th April, 2010 to the 25th May, 2010, and the 30th August, 2010 to the 2nd December, 2010. In fact, the evidence established that these openings were achieved after negotiation with DG Environment, even though the conservation objectives were set, ultimately, only in December, 2010. The plaintiffs’ claim relates to losses due to the closures in 2008 and 2010, when it is said starfish predation on unfished mussel seed during the late summer period of each year depleted the stock to especially low levels.
48. In the light of the foregoing, it must be doubted if it could ever be said that, as a matter of law, even if all the other Glencar threshold-steps were satisfied, it would, in the light of all this complexity on a national scale, nevertheless, be ‘just and reasonable’ to impose liability upon the defendant/appellant. Again, it must be emphasised that the judgment rested on the authority of Duff, and not on Glencar. One cannot simply ignore the broader context of the decision-making. Had Glencar criteria been part of the consideration, it is difficult to see how it would be “just and reasonable” to impose liability in 2008, in circumstances where the evidence and the facts as found, so clearly established that the Department and the Minister were, by then, having to closely focus on a series of national legal requirements imposed by the Directives and the judgments of the Court of Justice.
49. One turns to the other Glencar criteria. Put shortly, I do not think that the conduct of the Minister at any time amounted to a breach of duty of care. The description of what occurred prior to 2008 is too broad to constitute a justiciable controversy; absent more, I believe the description of the duties as devolving upon the exercise of the discretion, in 2008, is constitutionally untenable. The duty of care is addressed first.
Duty of Care
50. I do not believe a duty of care existed between the appellants and these respondents in 2008. The Minister’s Department was undoubtedly aware of the Castlemaine situation, but it was also in the context of an awareness regarding all the other operations of a similar nature within the State. In the years 2008 to 2010 some 150 Natura 2000 Surveys had to be carried out by the State. The question of where national priorities lay, or who should receive resources, or where surveys should be carried out first; all were pre-eminently questions for the executive, even accepting meetings actually took place between representatives of the respondents and the Department between 2008 and 2010. But it is difficult to find that anywhere in the relationship there could be said to be a ‘duty of care’ or ‘proximity’, even if loss might have been foreseeable. It is said that the respondents’ situation was within the knowledge or contemplation of the appellant. But, presumably, so too was the situation of the other operators. So too was the duty to comply with E.U. law, and the risk of having penalties for non-compliance. But it cannot be said that, in Lord Atkins words, the respondents were “so closely and directly” affected by the Minister’s actions or omissions (whenever they occurred) that the duty to them took primacy, in 2008, over the duty to comply with E.U. law. If it be said the duty of care existed in the years prior to 2008, I am not persuaded the Minister committed an actionable wrong when the respondents were actually permitted to carry on their activities.
The Threshold for Negligence
51. In fact, the closely connected issue of standard of care presents as great a challenge as that of duty of care. It impacts on the entire time-span encompassed. First, it is questionable whether the law can comfortably accommodate a situation where operational negligence would involve a Donoghue v. Stevenson test. That threshold is a low one based, as Lord Atkins put it, on knowledge of the affect of actions or omissions on one’s neighbour. But, to cite inaction between 2000 and 2008 raises an entire range of issues already touched on in this judgment, again including proximity and whether there was a duty of care at all. It is unclear if the actions of a Minister in an area of discretion are to be considered on the basis of the standards applicable in a professional negligence action, or, alternatively perhaps, on Keegan standards. All of these questions, seem to me, to present insuperable difficulties, at least in the instant case. As to a ‘professional negligence’ standard, there was no concrete evidence about what would have been the normally accepted procedure by a person in the position of the Minister. Were a Keegan test adopted, a court would have to hold that a Minister acted, or omitted to act, in a way no Minister could reasonably act. In short, applying a higher standard implies evidential deficits, and a misapplication of the law; applying a lower standard far too easily places a court in a position of being a surrogate decision maker in this area, an issue further explored below, especially bearing in mind the fact that, prima facie, the Minister was acting ultra vires.
The Statutory Instruments
52. I mention also the fact that at no stage prior to the case did the respondents challenge the statutory instruments under which the appellants operated. From the year 2008 onwards, these were promulgated in order to regularise the situation, and to render the position in Castlemaine Harbour in accordance with the law of the European Union. I find it difficult to conceive that a court could impose a legal duty in circumstances where the impugned actions of the State authority were actually carried out under law, and in order to implement a legal duty. There is an insuperable dichotomy between the private and public dimensions of the actions of these State authorities, yet a further illustration of the conceptual difficulties which can arise.
Constitutional Questions
53. Consideration of the incidents of operational negligence, as described in the judgment, finally, leaves one with the concern that deep questions arise regarding whether, what was so characterised, whether before or after 2008, might trench on the role of the executive. As an illustration of this concern, and the intermingling of legitimate expectation and operational negligence, the High Court judgment describes the following, [2013] IEHC 338 at par. 52:
“The plaintiffs operated lawfully and were entitled to expect that this regime would continue and they had organised their business and expended considerable sums of money in this legitimate expectation. The “operational” negligence on the part of the State was in failing to carry out proper scientific investigations or monitoring between 2000 and 2008 which would have provided base line studies for the prompt carrying out of an appropriate assessment so as to have permitted the timely reopening of Cromane Harbour for mussel seed collection (as in previous years). The breach of legitimate expectation of the plaintiffs is that they were entitled to expect that in the normal way Cromane Harbour would regularly reopen annually for mussel seed collection because the Minister would operate such a regime of granting Aquaculture Licences and also managing the SPA and cSAC in Cromane Harbour and also in a lawful way.” (Emphasis added)
54. Two points arise from this passage. The first is the elision between legitimate expectation and operational negligence ingredients. This has been touched on. Second, the “operational negligence”, referred to in this part of the judgment, was “in failing to carry out proper scientific investigation or monitoring between 2000 and 2008” (Emphasis added). This is quite distinct from any finding that there was a dilatory approach from the beginning of the year 2008 onwards.
55. Later, and repeating a passage quoted earlier, the judgment characterises matters, in a passage quoted earlier, in a quite different way at par. 55:
“The defendants were negligent and in breach of their duty to the plaintiffs in delaying the reopening of the said mussel seed fishery, in delaying carrying out tests to exclude any environmental risks and in allowing the plaintiffs to expend substantial monies on renewing their vessel. …”
This could only refer to 2008 onwards.
56. But, again at par. 55:
“The State did not operate the regime in an orderly way which would have allowed harmony between environmental protection and the plaintiffs continuing with their business.”
This quotation appears to describe a much longer period.
57. And later again at par. 56:
“The Minister was negligent in failing to operate the protection of the environment in a balanced way which would allow for protection of the aquaculture business. This arose from a) failure to carry out investigations, b) inconsistency in the activities permitted and c) allowing the plaintiffs to spend huge sums of money on renewing their vessel. The result is a glaring lack of a structured approach. There is a requirement on the part of the decision maker, who has the controlling decision making in relation to the plaintiffs’ ability to earn their livelihood, not to make sudden, unmeasured, haphazard and arbitrary decisions; the process should be managed in an orderly way by regularly gathering information, so that all parties can organise their affairs in an appropriate way with minimum disruption.”
This description relates to periods both pre and post 2008.
58. It will be seen also that, here, the operational negligence is characterised as being an omission to operate the protection of the environment in a balanced way.
59. The concern on the passages quoted arise, not least, because of the political context, and perhaps a political and legal balancing exercise which the Minister performed, not just in 2008, but on the face of things, over the much longer preceding period. It is not suggested the Minister, or any of his predecessors, acted mala fides toward these respondents, or any of the other harvesters. The Minister committed no wrong to the respondents prior to 2008, during the time they were actually engaging in their business without interruption. It is unclear how this metamorphoses into an actionable wrong. No challenge was made to the statutory instruments under which the Minister acted. The underlying unanswered question lies in the extent and range of the tort, as well as whether an omission to act, in say 2003, was, at that time, a detriment to the respondents. There is, therefore, a disjunction between causation and damage.
60. The expositions of the claim of the “later” negligence illustrates the extent to which, the challenges the Department faced in 2008, was by then a truly national issue concerning a range of mussel harvesters in different parts of the country; rather than simply the respondents. It is impossible to put out of one’s mind the sense that a court, which operates within different parameters and constraints from a Minister; was asked to assess matters and arrive at conclusions from evidence, which quite understandably was confined, and removed from broader national considerations; hence leading to a constitutionally questionable outcome. Actions in negligence cannot simply be based on a process of second-guessing administrative actions in an area of discretion.
61. This case does not concern statutory duties, but rather Ministerial discretion exercised in a particularly difficult situation. I accept it can be said that a situation evolved which might have been of the Minister’s own making. But, in a tort action, a court is not asked whether the State, or its servants, might, in hindsight, have “done better”. There must be, rather, an actionable wrong. The difficulties arise because one cannot say that at any randomly chosen time, perhaps in the years 2004 or 2005, it can be legitimately said the Minister was actually engaging in a negligent act by omitting to have the baseline survey conducted, and which was in a manner to the respondents’ detriment. Inescapably, questions arise as to causation, the nature of the duties owed, and to whom such duties are owed. By way of contrast to obligations arising from a simple breach of statutory duty, there was here, at by 2008, if not well before, one overarching legal duty on the Minister, which was to comply with, and implement, E.U. law. This was the public duty which he had to apply from 2008, if not well before. The fallacy in this case is to seek to isolate or divorce some private duty owed to the respondents from the overarching public or State duty, which the Minister simultaneously owed.
62. I do not preclude the possibility that, in the future, the jurisprudence on State liability may develop or evolve further. But, this is a case where I think the law should not be developed, but rather applied. One simply cannot ignore legal authorities, such as Pine Valley and Glencar, and the fact that, in acting as he did in 2008, the Minister was acting on a matter of public interest where specific duties were vested in him, and the State. I would uphold the appeal, and reverse the judgment of the High Court. The issue of damages does not, therefore, arise.
Judgment of Mr Justice Charleton delivered on Monday 22nd of February 2016
1. The facts are as stated in the judgment of Clarke J. From that statement of facts, those most salient to this judgment may usefully be recalled for the purposes of this judgment, which concurs with that of MacMenamin J. As in Clarke J’s judgment, the plaintiffs/respondents will be referred to collectively as the fishermen and the defendants/appellants, being in reality the State, will be so named.
The background
2. All roads back from this litigation lead back to the decision of the Court of Justice of the European Union in Commission v Ireland (Case C-418/04) [2007] ECR I-10947, delivered on the 13th December, 2007. Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora, O.J. L206/7 22.7.1992, (The Habitats Directive), required that on the designation of a place as a special area of conservation (SAC), no activity could take place without an appropriate assessment first determining that such activity would not affect the integrity of the site. The Habitats Directive was transposed into Irish law by the European Communities (Natural Habitats) Regulations 1997 (S.I. No. 94 of 1997). Castlemaine Harbour, together with numerous other sites in the State, was notified to the European Commission as a candidate special area of conservation in accordance with the provisions of Article 4 of the Habitats Directive as transposed by the Regulations of 1997. Part of the drive to do this came from the Europe-wide campaign to identify and protect, by the year 2000, areas for inclusion in the conservation project known as Natura 2000. Candidate sites and sites accepted by the European Commission attract the same protection in Irish, and consequently European, law. Castlemaine Harbour had earlier been designated as a special protection area for birds (SPA) under Council Directive 79/409/EEC of 2 April, 1979 on the conservation of wild birds, as transposed into Irish law by the European Communities (Conservation of Wild Birds) Regulations 1985 (S.I. No. 291 of 1985). This designated four sites listed in its schedule but not including Castlemaine Harbour, but by the European Communities (Conservation of Wild Birds)(Amendment)(No. 2) Regulations 1994 (S.I. No. 349/1994), Castlemaine Harbour was added to the Schedule of the 1985 Regulations and thereby designated an SPA. Consequently, Article 6 of the Habitats Directive applied as and from the moment of designation. A reading of the text, in its ordinary and literal sense, meant that immediately upon designation, nothing apart from conservation work, in other words work to enhance the site as an SAC or SPA, could take place within its boundaries. Article 6.1 required the State to establish “conservation measures” for the site. Article 6.2 made it an obligation that the State “take appropriate steps to avoid, in the special areas of conservation, the deterioration of natural habitats and the habitats of species”. This is a matter important to the objectives of the Directive. Overall, each designated site in Europe came under the protection of Article 6.3 which reads:
Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site’s conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public.
3. Effectively, whether understood to do so or not, this Article requires everything apart from conservation work to stop. Pre-planned or commenced construction work may be excepted, but is not relevant here. To a degree, the absolute nature of the effect of designation was clarified by the exceptions set out in the remainder of article 6. The exceptions demonstrate how complete the prohibition in Article 6.3 is. A negative assessment did not stop a plan or project within a designated site if it “must nevertheless be carried out for imperative reasons of overriding public interest, including those of a social or economic nature”, provided there were compensatory measures to ensure the “overall coherence of Natura 2000”. Where, and this was never the case in Castlemaine, a site hosted a priority natural habitat or species, the only justificatory reasons that might be raised for a plan or project not aimed at conservation, had to be related to “human health or public safety, to beneficial consequences of primary importance for the environment” or, if not these “to other imperative reasons of overriding public interest”, agreed to by the Commission.
4. Landelijke Vereniging tot Behoud van de Waddenzee, Nederlandse Vereniging tot Bescherming van Vogels v Staatssecretaris van Landbouw, Natuurbeheer en Visserij (Case C-127/02) [2004] ECR I-07405, dealt with a reference for a preliminary ruling under Article 234 EC. The proceedings were concerned with the mechanical fishing of cockles in the Waddenzee. The Court of Justice of the European Union interpreted Article 6 in a literal manner, stating at para. 61, that every plan or project requires prior approval within a designated site, to determine if the proposal has any effect on that site. As the Court stated:
[A]n appropriate assessment of the implications for the site concerned of the plan or project implies that, prior to its approval, all the aspects of the plan or project which can, by themselves or in combination with other plans or projects, affect the site’s conservation objectives must be identified in the light of the best scientific knowledge in the field. The competent national authorities, taking account of the appropriate assessment of the implications of mechanical cockle fishing for the site concerned in the light of the site’s conservation objectives, are to authorise such an activity only if they have made certain that it will not adversely affect the integrity of that site. That is the case where no reasonable scientific doubt remains as to the absence of such effects.
5. Thus the touchstone of either the continuation, or authorisation, of any activity on such a protected site, which is not for its conservation, is that the authorities must make “certain” that there will be no impact on its ecology. Commission v Ireland (C-418/04) followed that decision. The court rejected arguments by parties to those cases that activities which existed prior to designation could continue. In particular, and most relevant here, the negative potential effects of shellfish farming were accepted as having the potential to destroy feeding areas for birds. The finding of the Court was a reiteration of the law as set out in Waddenvereniging and Vogelbeschermingsvereniging, (Case C-127/02). The national authorities, if followed, were only entitled to authorise activity on the site “if they have made certain that it will not adversely affect the integrity of that site.” That was only possible where “no reasonable scientific doubt remains as to the absence of such effects”; see para. 243. None of this is or was, as Hanna J put the matter on page 29 of his judgment in the High Court, “the discretion of the Minister” or “the annual discretion” of the Minister. On the designation of a site there is no such discretion. It is clear that nothing impacting on a site can occur unless it is certain that it will not affect the integrity of the site. Nothing could be further from any notion of discretion.
6. Three facts which are salient to the legal analysis stand out. The State in good faith had designated approximately 140 of these sites without, first of all, terminating existing activities. Examples might range from turf cutting to mussel cultivation. It is the latter here. In the result, from December 2007, after the decision in Commission v Ireland (C-418/04), emergency measures had to be taken to allow economic operators some latitude for the continuation of even limited business activity within the sites. This was done essentially by Irish public servants negotiating with the Commission. There was nothing about the actions of the State defendants in this case, which in any way could be characterised as obstructive of the needs of the fishermen. On the contrary, the State witnesses, in the aftermath of that judgment, were attempting to balance the competing interests of compliance with European law over several important sites, about 40 of which were sea based, and the difficulties caused to many, including these fishermen. That is the first important fact. Secondly, the State had never made any unequivocal representation that the designation of the sites as SACs or as SPAs would not change their status and thus outrule harvesting or other business activities. The identification and designation of sites was, under the Directives, an obligation on all member states. The height of the public declarations made by the State in relation to twelve sites was that it was “not envisaged that designation will restrict the current usage pattern of … fishing, watersports, sailing or game hunting or their use for shellfish culture.” The sites included Galway Bay, this site, Shannon Estuary, Cork Harbour, Shangarry, Ballymacoda, Blackwater Estuary, Tramore, Wexford Harbour, Sandymount Strand Dublin, Malahide Estuary and Dundalk Bay. Thirdly, the opening and closing of the mussel fishery at Cromane Harbour in County Kerry was done under a legal regime which required the making of delegated legislation for each such decision. Some comment is required on this since in the judgment of Clarke J, what is to be considered is not the existence of such statutory instruments but the overall policy behind, and the decisions which led to, their passing. Since the view taken here is that a statutory instrument is required to be removed from the legal landscape, before there can be any question of liability for negligence arising, some further statement is required of the background. A similar view is taken in the judgment of MacMenamin J.
Control of fishing
7. The mussel fishery in Castlemaine Harbour was only available as a mussel fishery when opened by the appellant Minister. The relevant opening dates were: 2008, from 5th October 2008 to 31st December; 2009, from 30th April to 14th May and from 15th September to 23rd December; 2010, from 29th April to 25th May and from 30th August to 2nd December. As set out in the judgment of Hanna J, acts of natural predation on mussel seed meant that the harvest on two years from 2008 and 2010 were disappointing, a circumstance the trial judge found would have been avoided by longer opening of the fishery during those two years. An important legal context in which this occurs was not argued by either side. Consequently, it is mentioned here only in passing and not with a view to giving a definitive legal ruling. Rights on the foreshore are limited as regards private citizens. With possible exceptions for grants prior to independence, the State controls the foreshore in Ireland; Attorney-General v McIllwaine [1939] IR 437. Without permission from the relevant department of State, work by way of dredging the sea bed within the limits of the exclusive competence of the State cannot take place. Thus, it was perhaps relevant in this case that what was enabled in the opening of the harbour at Castlemaine was an activity that did not seem to occur as of right but was only enabled through permission. Consequently, it is arguable that absent a finding that either permission had been given, or a legitimate expectation of such permission was engaged, any rights in respect of the use of the foreshore may not here have been present. That point can come to be important when considering whether the State has committed any tort in the closure of the relevant seabed and foreshore. The tort contended for in the judgment of Hanna J in the High Court is the loss of fishing and harvesting rights to the fishermen. It is not established that there ever was any such right. Consequently, any loss of a privilege granted year to year cannot be taken as an element of the tort of negligence.
8. Each of the four stages of mussel cultivation was subject to statutory control. In May 2008, the fishermen purchased a new vessel and this was licensed under s.4 of the Fisheries (Amendment) Act 2003, as amended by s.97 of the Sea-Fisheries and Maritime Jurisdiction Act 2006. To fish for mussel seed, the first stage in this operation, the fishermen needed, and in fact held, a mussel seed authorisation under section 13 of the Act of 2006. This entitled the taking of a limited weight of mussel seed. This was then transplanted as a first stage and, on natural growth in the nutrient rich waters, a further transplantation took place, followed by harvesting. All in all, it is a process taking 2 to 3 years. The cultivation was authorised by an aquaculture licence held by the fishermen and issued under the Fisheries (Amendment) Act 1997. Since, however, the cultivation takes place in Castlemaine Harbour, the inlet where the mussels grow in their final stages must be open to harvesting work. Section 15 of the Act of 2006 empowers the appellant Minister to open the fishery. This is done by statutory instrument. Section 15 provides:
The Minister may to supplement the common fisheries policy, as he or she thinks proper, by regulations prescribe measures for the purpose of protecting, conserving or allowing the sustainable exploitation of fish or the rational management of fisheries that restrict, or otherwise regulate, fishing or fishing gear or equipment or the buying, handling, weighing, trans-shipping, transporting, landing, processing, storing, documenting or selling of fish. Such regulations may apply to any or all of the following:
(a) fishing boats within the exclusive fishery limits or internal waters;
(b) an Irish sea-fishing boat, wherever it may be;
(c) any person engaged in buying, handling, weighing, trans-shipping, transporting, landing, processing, storing, documenting or selling of fish; and
(d) nets and their usage during any time or season or at any place within the exclusive fishery limits or internal waters.
9. No issue has been raised to the effect that this statutory power did not apply to the opening of the fishery in Castlemaine Harbour. In itself, it is central to what follows that this section of the Act of 2006, gives the purpose and policy of the actions of the appellant Minister. It is for the “protecting, conserving or allowing the sustainable exploitation of fish” as well as the “rational management of fisheries” through a power enabling the appellant Minister to “restrict, or otherwise regulate, fishing”. A separate question will arise as to whether any duty of care arose in decisions as to allowing or forbidding the use of Castlemaine Harbour for cultivation of mussels. This section does not in any way point to a duty towards those who may wish to fish within the territorial limits of the State’s waters. Instead, a clear indication is given that in considering any restriction or regulation of fishing, under that particular section of the Act of 2006, the appellant Minister is entirely concerned with conservation considerations. As in the judgment of MacMenamin J, that becomes central to any issue of where a duty of care might lie should such a duty arise in the first place.
10. The following table was adapted from that provided at the hearing of the legislative measures whereby the fishery was opened or closed on particular dates:
S.I. Name Date Parent Act or Measure Effect on Castlemaine Harbour and on other salt water fishery areas This site Effective date
789/07 Mussel Seed (Prohibition on Fishing) 29/11/07 2006 Act Prohibition on fishing (all areas) Shut 30/11/07
162/08 Mussel Seed (Prohibition on Fishing) (revocation) 04/06/08 2006 Act Revokes 789/07 (opens fishery all areas) Open 09/06/08
176/08 Mussel Seed (Prohibition on Fishing) 06/06/08 2006 Act Prohibits fishing in Scheduled areas including Castlemaine Harbour Shut 09/06/08
194/08 Mussel Seed (Prohibition on Fishing) (No. 2) 18/06/08 2006 Act Closes entire fishery Shut 01/07/08
347/08 European Communities (Control on Mussel Fishing) 22/08/08 Birds Directive Revokes 194/08 Restricts fishing in Scheduled areas (i.e. SPAs including Castlemaine Harbour) Shut 23/08/08
395/08 European Communities (Control on Mussel Fishing) (Amendment) 03/10/08 Birds Directive Removes Castlemaine Harbour from schedule to 347/08 (opens fishery there) Open 05/10/08
605/08 Mussel Seed (Prohibition on Fishing) (No. 3) 23/12/08 2006 Act Closes entire fishery (incl Castlemaine Harbour) Shut 31/12/08
108/09 European Communities (Control on Mussel Fishing) (Amendment) 24/03/09 Birds Directive Minor amendment to 347/08 Shut 24/03/09
150/09 Mussel Seed (Prohibition on Fishing) (revocation) 22/04/09 2006 Act Revokes 605/08 (opens fishery generally but still closed in SPAs under 347/08 except Castlemaine Harbour) Open 30/04/09
186/09 European Communities (Control on Mussel Fishing) (Amendment) (No. 2) 07/05/09 Birds Directive Reinserts paragraph (u) of Schedule in 347/08 (closes fishery in Castlemaine Harbour) Shut 14/05/09
197/09 Mussel Seed (Prohibition on Fishing) (No. 2) 13/05/09 2006 Act Closes entire fishery Shut 14/05/09
341/09 Mussel Seed (Prohibition on Fishing) (No. 2) (Revocation) 25/08/09 2006 Act Revokes 197/09 (opens fishery, but SPAs still closed under 347/08) Shut 26/08/09
346/09 European Communities (Habitats and Birds) (Sea-Fisheries) 27/08/09 Birds Directive and Habitats Directive Provides for Natura fishery plans and permits, confers various powers on authorised officers, creates offences etc. Shut 27/08/09
379/09 European Communities (Control on Mussel Fishing) (Amendment) (No. 2) 21/09/09 Birds and Habitats Directives Revokes 186/09 (Removes Castlemaine Harbour from Schedule to 347/08) Open 15/09/09
554/09 Mussel Seed (Prohibition on Fishing) (No. 3) 22/12/09 2006 Act Closes entire fishery Shut 23/12/09
174/10 Mussel Seed (Opening of Fisheries) 29/04/10 2006 Act Opens entire fishery (subject to 347/08) Open 29/04/10
228/10 Mussel Seed (Closing of Fisheries) 24/05/10 2006 Act Closes entire fishery Shut 25/05/10
412/10 European Communities (Control on Mussel Fishing) (Amendment) 26/08/10 Birds and Habitats Directives Deletes paragraph (u) in Schedule of 347/08 (removing Castlemaine Harbour from restricted list)(duplicates 379/09) Shut 30/08/10
413/10 Mussel Seed (Opening of Fisheries) (No. 2) 26/08/10 2006 Act Opens entire fishery Open 30/08/10
572/10 Mussel Seed (Closing of Fisheries) (No. 2) 29/11/10 2006 Act Closes entire fishery Shut 02/12/10
592/10 European Communities (Control on Mussel Fishing) (Amendment) (No. 2) 08/12/10 Habitats Directive Re-inserts Paragraph (u) (Castlemaine Harbour) into Schedule of 347/08 Shut 08/12/10
11. In effect, every opening and every closure of the mussel cultivation operation in Castlemaine Harbour was done through subsidiary legislation. Notwithstanding that the relevant statutory instruments remain in place, although spent in terms of force by the passage of time, the fishermen sought and obtained damages in the High Court for negligence in such operation. Yet, every such decision was done through an existing and still operative enactment. That cannot be right.
Statutory powers
12. The State as appellant has argued that it was not within the competence of the High Court to find negligence as against the appellant Minister, without first of all finding that the statutory instruments which controlled the fishery were invalid. There was no warrant, the State asserted, for the finding of Hanna J that a statutory instrument was negligently signed into law; it was either valid or invalid and while valid could not be characterised as a negligent action. Since a statutory instrument was law, albeit through a delegation of legislative power, the State contended that it operated as a bar to a negligence finding as to any decision or policy that lay behind it. A statutory instrument, on the State’s submissions, could be found invalid because of the maker exceeding jurisdiction or because of a misconstruction of statutory powers or through a finding of abuse or, as an executive act, possibly where the reason for making it flew in the face of fundamental reason and common sense, thereby exceeding jurisdiction. Judicial review was the only remedy, the State contended; though this could be pursued as part of a plenary action. On behalf of the fishermen, it was contended that the statutory instruments in question were no more than the expression of executive action and as such were capable of being the expression of a negligent policy through what was called operative negligence. Damages could validly be awarded, counsel for the fishermen argued, because the object of their action in negligence and in negligent misrepresentation was the set or series of inactions that resulted in a failure by the appellant Minister to inform himself as to the environment in Castlemaine Harbour. It was also contended that mussel cultivation would not have affected the protected sites, overlapping SACs and SPAs, the consequence of which was to undermine the fishermen’s livelihood; the statutory instruments in that context being a matter of history. Both sides on this appeal also had views as to the availability in this particular context of judicial review. For the State it was argued that quashing the relevant statutory instruments was possible; time limits on action in O.84, r.1 of the Rules of the Superior Courts, 1986 of 3 months, at this time 6 months, while requiring prompt action and probably resulting in the window of fishing being past by the time of trial were liable to recur and so could not be characterised as an exercise in mootness. Counsel for the fishermen, on the other hand, contended that judicial review time limits, whether under O.84 or through the same limits applying to plenary actions, rendered the effect of the statutory instruments part of the background only.
13. Hanna J dealt with this issue by first of all reciting the arguments for the fishermen at page 16 thus:
The blanket ban was not a matter of law but rather of poorly informed decision making on the part of the Department because it did not have any scientific information available to it and was ignoring the signs from the information that it already had, that the adverse impacts from mussel seed fishing in Cromane were nil or negligible. Furthermore, there should have been a balancing exercise on the part of the decision makers, weighing on one side the impact on a person’s constitutional right to earn a livelihood, as against the need to protect the environment. The evolution and the preparation of scientific information in 2010 were too slow and there was no good reason why the reopening should not have been allowed much sooner than it was.
The counter argument of the State was recited at pp. 17 to 18 of the judgment of the High Court:
The defendants were not negligent or in breach of duty in delaying the reopening of the mussel seed fishery or in delaying carrying out of tests to exclude any environmental risks. The designation of the harbour as an SPA in accordance with the Habitats Directive is a matter of law and the plaintiffs are not entitled to rely on any representation as to its effect or to hold any legitimate expectation arising from any such representation and such representations are denied. The statutory instruments opening and closing the fishery in Cromane are pieces of legislation lawfully made enjoying the presumption of constitutionality until such time as a court says otherwise. The defendants ask how could a public official be liable for negligence or breach of legitimate expectation if it is simply complying with the law? In order for the plaintiffs to succeed in a claim for negligence they must show that there is an invalidity or unlawfulness in the statutory instruments which have been lawfully made and still enjoy the presumption of lawfulness.
14. At p.23 of his judgment, Hanna J places the passing of the statutory instruments as a matter of administration, stating that “the decision of the Minister to close Cromane Harbour was an implementation of policy rather than a policy decision.” The trial judge did not specifically address any question as to the statutory instruments opening and shutting Castlemaine Harbour.
15. MacMenamin J finds it “difficult to conceive that a court could impose a legal duty in circumstances where the impugned actions of the State authority were actually carried out under law”, paragraph 52, and that view should be supported. Article 15.2.1º of the Constitution confers the “sole and exclusive power of making laws for the State” on the Oireachtas and further declares that “no other legislative authority has power to make laws for the State.” Subordinate legislation is enabled by Article 15.2.2º through provision “by law for the creation or recognition of subordinate legislatures” and for their “powers and functions”. Legislation by regulation is regularly if not consistently provided for in legislation. This form of legislative delegation is part of a reality that “the framing of rules at a level of detail” appropriate to statutory instruments “would inappropriately burden the capacity of the legislature”; Maher v Minister for Agriculture [2001] 2 IR 139 at 245 per Fennelly J. Such powers as are delegated by primary legislation cannot be exceeded; City View Press v An Comhairle Oiliúna [1980] IR 381. Delegated power is limited because law making power is exclusively vested in the legislature, which alone is subject to direct democratic control by the people and hence “may not be surrendered”; Laurentiu v Minister for Justice [1999] 4 IR 26 at 63 per Denham J. The scope of a statutory instrument must encompass what a reasonable legislature would have envisaged in delegating such powers; Incorporated Law Society of Ireland v Minister for Justice [1978] ILRM 112. Similarly, restricted articles under the Health Act 1947 could be applied to medical preparations and not to non-medical products such as tobacco; United States Tobacco International Inc. v Attorney General [1990] 1 IR 394. Cassidy v Minister for Industry and Commerce [1978] IR 297 As Fennelly J explained in Kennedy v Law Society of Ireland (No3) [2002] 2 IR 458 at 468:
The Oireachtas may, by law, while respecting the constitutional limits, delegate power to be exercised for stated purposes. Any excessive exercise of the delegated discretion will defeat the legislative intent and may tend to undermine the democratic principle and, ultimately, the rule of law itself. Secondly, the courts have the function of review of the exercise of powers. They are bound to ensure respect for the laws passed by the Oireachtas. A delegatee of power which pursues, though in good faith, a purpose not permitted by the legislation by, for example, combining it with other permitted purposes is enlarging by stealth the range of its own powers.
16. Respect by the judicial branch of government for legislation passed by the Oireachtas, is expressed within the terms of the Constitution by reserving to the judiciary the power to condemn laws which are repugnant to the Constitution; Article 15.4.1º. There has certainly to be a judicial power to condemn delegated legislation, since many decisions have commented both on the preservation of the national parliament in its exclusive law making functions and the requirement of vigilance that delegated legislative powers are not exceeded. Hence, judicial scrutiny over delegated legislation cannot be confined to a consideration of the conformity of statutory instruments with the Constitution; instead, it extends to the limits of jurisdiction of the body or person on whom that law making power is conferred. Hence, heretofore, the grounds upon which a statutory instrument might be condemned included whether a reasonable legislature could have contemplated whether the powers delegated in the making of subsidiary legislation might have been used for the purpose impugned; whether jurisdiction was exceeded and perhaps other grounds encompassing legislative competence in relation to reasonableness; most recently see Island Ferries Teoranta -v- Minister for Communications, Marine and Natural Resources & ors [2015] IESC 95. This analysis therefore differs from any view that a legislative policy may be condemned on what are essentially negligence grounds and that extant laws may be scrutinised in negligence grounds as to the policy behind same.
17. In the judgment of Clarke J, the view is expressed that the statutory instrument could not have been condemned and that therefore it is possible to legally impugn the policy behind it. Judicial review under O.84 of the Rules of the Superior Courts, 1986, is not an impossibility in this context. Nor is a plenary action, which is subject to the same time limits as to commencement; see O’Donnell v Dún Laoghaire Corporation [1991] ILRM 301. Judicial review is, in principle, a swift remedy for the resolution of conflicts between the administration and the rights and expectations of citizens and businesses. Central to the argument put forward by the fishermen was that by the time even the swiftest of cases could come up, the period within which fishing could have taken place would have already past. This cannot be an answer to a court condemning secondary legislation on negligence grounds. In any event, judicial review would have been open. It required an order of the appellant Minister to open the fishery for mussel cultivation in Castlemaine Harbour and a failure to open the fishery could have been subject to a pre-mandamus demand letter asserting rights, accepting that a differing view might be taken as to whether there were any rights to use the foreshore in this context. In anticipation of the recurrence of that event, an obvious fact on the ground, since the State has always had an insufficient level of data on bird species and the likely impact of mussel cultivation, a demand could have been made for the opening of the harbour in the following year; allowing ample time for litigation. Unlikely as it was that any such judicial review would be met by a mootness argument on behalf of the State, even where the issue was as to the jurisdiction to, or perhaps reasonableness of, affecting an opening of the harbour at the wrong time, this was a situation likely to re-occur and where the over-riding consideration of doing justice between the parties could profitably be argued to be more important. Hence, by the time of potential litigation, the issue was not moot.
18. As Barrington J adverted to in Laurentiu v Minister for Justice [1999] 4 IR 26 at 70, judicial respect for, and restraint in respect of, legislation is an aspect of the doctrine of the separation of powers. As he put it: “the rights of the citizen will be secure only if the legislature makes the laws, the executive implements them and the judiciary interprets them.” In the context of this constitutional structure, eliding or bypassing delegated legislation and stating that either the thrust of the policy behind it was negligent, or that the necessity for the delegated legislation arose through neglect of duty, is to cross a boundary. That may be illustrated in an example. While primary legislation is not subject to challenge on the basis of jurisdiction, since the Oireachtas has ample law-making powers, where constitutional rights conflict it is for the national parliament to make a reasonable reconciliation. What if the courts were empowered to bypass such a law and to substitute, as an exercise in policy, a separate and distinct view as to which right should be primary and consequently award damages on the basis that a balance had been ill set? Another example would be to award damages on the basis that the necessity for legislation arose because of neglect, seeing fit to ignore the terms of legislation specifically barring that remedy. Depending on the circumstances, the legislature interfering in current litigation would be a trespass on such boundaries in the other direction; Buckley and Others v Attorney-General and Another [1950] IR 67. Boundaries are there to be observed where the constitutional norm separates powers.
19. The courts may go thus far: primary legislation may be unconstitutional; secondary legislation may be unconstitutional and also may be beyond the powers conferred by the parent legislation; since also secondary legislation may be an expression of administrative fiat, it could be that an improper purpose would allow the overturning of such legislation since that would go beyond delegated powers, as would a decision expressed through secondary legislation which flies in the face of fundamental reason and common sense. There can be no warrant, however, for ignoring secondary legislation and stating that the policy behind it was negligent. This sets secondary legislation at nought. In effect, it might as well not be there at all. The existing authorities suggest that secondary legislation must first be condemned before there can be any question of any analysis of negligent policy, so-called.
Duty of care
20. Negligence, of itself, does not exist in a vacuum. It is a convenient way of expressing a tortious wrong which does not simply depend upon a failure to exercise reasonable care. Before one can even go there, there has to be an analysis of, and clear definition of, the duty of care which that negligent conduct is argued to be a breach of. The trial judge in his analysis combined the issues of duty of care with negligence in deciding that by failing to have regard to the entitlements of the fishermen in opening the harbour for a shorter time in 2008 and 2010, and in not earlier conducting the study which would have enabled the hitherto normal opening season, the appellant Minister caused them loss. At pp. 32 to 33 of his decision, Hanna J expressed the matter thus:
One must look at the scheme by which the defendant operated the management of Cromane Harbour. So between breach of legitimate expectation and common law negligence in terms of a breach of duty, the plaintiffs say that the Department failed in its duty to them in how it operated the licensing scheme in the harbour. The relevant Department failed in its duty to the second named plaintiff in how it operated the licensing scheme in the harbour. The defendants were negligent and in breach of their duty to the plaintiffs in delaying the reopening of the said mussel seed fishery, in delaying carrying out tests to exclude any environmental risks and in allowing the plaintiffs to expend substantial monies on renewing their vessel. In behaving in such a manner the plaintiffs lost the limited opportunity of obtaining the required mussel seed to be used in connection with their mussel farming business, as a result of which they have suffered loss and damage. The State did not operate the regime in an orderly way which would have allowed harmony between environmental protection and the plaintiffs continuing with their business. The sequence of events points out what should have been a necessary state of knowledge on the part of the defendants, who nevertheless decided to sit on their hands and allow matters to carry on in what appears to be defiance of the clearly stated will of the European Court of Justice. Failure to comply with obligations with European law is relevant in flavouring the state of knowledge of what the parties understood as being their modus vivendi that came to a screeching halt in June 2008.
The Minister was negligent in failing to operate the protection of the environment in a balanced way which would allow for protection of the aquaculture business. This arose from a) failure to carry out investigations, b) inconsistency in the activities permitted and c) allowing the plaintiffs to spend huge sums of money on renewing their vessel. The result is a glaring lack of a structured approach. There is a requirement on the part of the decision maker, who has the controlling decision making in relation to the plaintiffs’ ability to earn their livelihood, not to make sudden, unmeasured, haphazard and arbitrary decisions; the process should be managed in an orderly way by regularly gathering information, so that all parties can organise their affairs in an appropriate way with minimum disruption.
21. Inherent in his decision is that if there is negligence causing economic loss or other damage, there is a duty of care to prevent this and that the failure to take reasonable steps in this regard founds a cause of action. MacMenamin J’s analysis of the ingredients whereby liability had been found in this case, points up the difficulties in upholding the judgment of Hanna J. Much of this analysis seems to revert to the trial judge’s earlier acceptance of an argument on behalf of the fishermen that the opening for mussel cultivation of Castlemaine Harbour during the spring and summer months was at the “discretion of the Minister”. Upon the declaration of an SPA or SAC, in this case both kinds of protected site, and as earlier pointed out, the appellant Minister had no discretion. Instead, the protection of the environment was the only consideration open to him under Article 6 of the Habitats Directive. Timing is important here. The drive to open new areas of conservation under the European scheme known as Natura 2000, as the name implied, was to increase habitat and species protection in the run up to the millennium. In any question of negligence, the time when the acts or omissions that are to be called into question are to be analysed is at the time when whoever would be thereby affected, the neighbours on Lord Atkin’s celebrated analysis; Donoghue v Stevenson [1932] AC 562 at 580. Here, those neighbours are claimed to be the fishermen; the persons towards whom the Minister is claimed by Hanna J to have owed a duty of carefulness. The time when perhaps there might be any question of negligence is when, knowing that there are fishermen working in the harbour, and knowing that Article 6.3 forbids all work in a site that has not previously been assessed as not affecting it, apart from conservation work, a site is designated. Was that not the year 2000? Hence, in this case there is perhaps a limitation issue as well; though, this has not been pleaded in defence by the State.
22. Negligence is “conduct falling below the standard demanded for the protection of others against unreasonable risk of harm”; C Sappideen and P Vines (Eds), Fleming’s Law of Torts, 10th Ed., (Sydney, 2011) 7.10. It is impossible to analyse liability for the tort of negligence without not only examining what can be considered an unreasonable risk of harm, and what the relevant standard in guarding against that risk is, but also where that standard is demanded. The requirement to love one’s neighbour is translated in Lord Atkin’s dictum into a duty not to injure one’s neighbour. That concept as originally defined was directed towards those “persons who are so closely and directly affected by” the actions in question that the defendant “ought reasonably to have them in contemplation as being so affected when” the defendant was directing his mind “to the acts or omissions which are called in question.” The starting point to any legal analysis is to consider and decide whether a duty of care is owed by a particular defendant, towards the plaintiff who complains of that defendant’s lack of care. Absent a duty of care, the actions of a defendant which cause harm to a plaintiff are not actionable. Further, until the existence of a duty of care is established, it is impossible to elucidate what the standard is that the defendant is required to meet, a failure in which establishes liability towards the plaintiff. A duty of care does not exist in the abstract for every decision which may impact on the economic activities of others. The primary analysis must be on, whether in making decisions that could affect others, the decision maker was bound to have regard to the particular interests of the economic actors claiming prejudice to their interests.
23. That this is the starting point in any analysis of negligence was made clear by this Court’s decision in Glencar Explorations Limited v Mayo County Council (No 2) [2002] 1 IR 84 at 154-155 in the judgment of Fennelly J:
This approach, by making findings of negligence before determining whether a duty of care exists, risks reversing the correct order of analysis. Admittedly, it was the course followed in this court in Pine Valley Developments v. The Minister for Environment [1987] I.R. 23, where it was held that the minister could not be considered negligent without pronouncing on the existence of a duty of care. The elements of the tort of negligence are the existence of a duty of care, lack of proper care in performing that duty and consequential damage. The lack of care which we commonly call negligence consists in commission or omission of acts. In order to be actionable, the acts or omissions must be such as will reasonably foreseeably cause damage to any person to whom the duty is owed. Mere causation is not enough. As a matter of principle, it seems to me that the failure to exercise due care can only be established by reference to a recognised duty. Then one can know what sorts of act are liable to cause damage for which one is liable … I agree, of course, with the Chief Justice that these findings of the learned trial judge cannot be disturbed on this appeal. I also agree with his view that the making of such findings did not mean that the trial judge was finding the respondent to be in breach of any duty of care owed to the applicants. For these reasons, the passage in question ceases to have relevance for the issues to be decided (sic) on this appeal.
24. Over decades, courts in this and other jurisdictions have grappled with the appropriate concepts whereby the imposition of liability may accord with the interests of justice and the function of the law of torts in ordering society so as to minimise harm and promote good relations between those who interact on the basis of a duty of care. As Fleming comments, Fleming’s Law of Torts, 8.20, there is no “generalisation” which “can solve the problem upon what basis the courts will hold that a duty of care exists.” While there is agreement that “a duty must arise out of some ‘relation’, some ‘proximity’, between the parties” there remains the problem that “what that relation is no one has ever succeeded in capturing in any precise formula.” Respect for precedent and its application, apart from being an obligation rooted in the certainty which the legal system owes to litigants, offers a fixed basis upon which any analysis of the duty of care can rest. What was originally the concept in Donoghue v Stevenson developed in Anns v Merton London Borough Council [1978] AC 728 at 751, through the speech of Lord Wilberforce, whereby to establish a duty of care, firstly, proximity in the relationship between the plaintiff and the defendant had to be established, so that carelessness on the part of the latter would be likely to cause damage to the former, and, secondly, to ask “whether there are any considerations which ought to negative, or to reduce or limit the scope of the duty or the class of person to whom” that duty was owed. This approach was adopted by this court in Ward v McMaster [1988] IR 337 where McCarthy J analysed the duty of care as arising from the proximity of the parties, the foreseeability of damage and the absence of any compelling exemption based on public policy. In Caparo Industries Plc v Dickman [1990] 2 AC 605 at 617, a new test had been introduced requiring the situation to “be one in which the court considers it fair, just and reasonable that the law should impose a duty of a given scope upon the one party for the benefit of the other”. When Glencar Explorations Limited v Mayo County Council (No 2) came for decision before this court in 2001, the various struggles which judges in various jurisdictions had grappled with were reformulated by Keane CJ into a test which has been invariably later quoted and which was described in Breslin v Corcoran [2003] 2 IR 203 at 208 by Fennelly J as “the most authoritative statement of the general approach to be adopted … when ruling on the existence of a duty of care”. The Glencar test is thus:
There is, in my view, no reason why courts determining whether a duty of care arises should consider themselves obliged to hold that it does in every case where injury or damage to property was reasonably foreseeable and the notoriously difficult and elusive test of ‘proximity’ or ‘neighbourhood’ can be said to have been met, unless very powerful public policy considerations dictate otherwise. It seems to me that no injustice will be done if they are required to take the further step of considering whether, in all the circumstances, it is just and reasonable that the law should impose a duty of a given scope on the defendant for the benefit of the plaintiff.
25. As to foreseeability, it has been often remarked that almost anything may be regarded as foreseeable. What is reasonable in such foresight is a matter for judicial assessment. As to duty, if the State has exclusive rights over the foreshore and if there has been no setting of legitimate expectation of continuance of use, can it be said, in the light of the decision of the former Supreme Court in Attorney-General v McIllwaine [1939] IR 437, that there is any such duty? As a concept, proximity has been described as “artificial” by Lord Oliver in Alcock v Chief Constable of South Yorkshire [1991] 3 WLR 1057 at 411. Perhaps what is reasonably foreseeable can generate fulfilment of the test of proximity? As Fleming remarks at 8.330, there is “no simple formula that determines duty; simplicity though desirable is not to be trusted … A matrix of policy and principle will always need to be considered in the light of the particular circumstances.”
26. This appeal concerns an aspect of the liability of public authority. Perhaps because of the specific availability of the tort of misfeasance in public office, the rising tide of liability in negligence has not impacted where genuine questions of choice need to be made. The alternative is, as MacMenamin J points out, the creation of vague duties of care towards all who might be affected by public policy. As put in McMahon and Binchy, Law of Torts, 4th Ed., (Dublin, 2013) at 6.78 the functions of public authorities:
… require them to have regard to a host of policies, interests and rights that potentially pull in different ways. If a duty of care were too easily imposed on public authorities towards all of those affected by their acts, choices and omissions, in some instances the authorities would be hamstrung, unable to discharge their functions with any confidence or creativity. Courts are conscious of this reality when addressing the duty of care.
Here, it is the function of the department of government responsible for the implementation of both a fisheries policy that sustains limited resources and compliance with obligations to the environment. The most important is a duty in European law. In this case, there can be said to be little or nothing to be argued in the realm of choice as between the expenditure on one option in preference of another, or the pursuit of a particular aim over another that constitutes policy. Choosing one rather than the other is a fundamental function of central and of local government. It is also an area of decision making that the courts are ill equipped to make. The courts should not trespass on it. Improper conduct can be impugned through judicial review or through an action on misfeasance in public office. That supposes that public officials had some kind of a choice. Here, there was no choice. Article 6.3 of the Habitats Directive required that nothing be pursued apart from conservation measures at Castlemaine Harbour unless that alternative, here of economic exploitation, was proven beyond doubt to have no impact on either the protected site or the protected bird species. To a degree, if there was arguably any choice here at all, it very hard one at that. The unchallenged estimate on this appeal was that approximately 40 sites were affected by the need to close until any non-conservation activity was cleared through an appropriate assessment. So, which of these 40 was to be given priority? It is hard to argue that Castlemaine Harbour was in any stronger position for the allocation of resources than any other site. Further, concentration on that site would leave economic operators in other sites waiting longer. The response of the State parties was vigorous negotiation with the Commission to attempt to salvage whatever could be recovered for the benefit of users of the sites. That cannot amount to a misfeasance in public office.
27. Hanna J regarded what he saw as the failure to give priority to these fishermen over those in the multiple other sites affected by the decision in Commission v Ireland (C-418/04) and to implement, over a lightening-quick time frame as suggested by an expert witness, an appropriate assessment as operational negligence. This concept of operational negligence has not, to this point, been accepted in an Irish court. It is rightly rejected by MacMenamin J. Drawing a distinction between policy and operational errors so called is, according to Fleming at 8.400, one unwisely transported from “the very different environment of the US Federal Tort Claims Act.” This distinction Fleming describes as “largely illusory”. Were that to be adopted, and this judgment takes the view that it should not, certainly section 15 of the judgment of Clarke J in this case makes an attractive analysis; see particularly paragraph 15.11.
28. In a passage particularly relevant to this appeal, Walton (Ed), Charlesworth and Percy on Negligence, 12th Ed., (London, 2010) at 2.286, states:
It is axiomatic that public bodies owe public law duties, enforceable by writs of certiorari, prohibition and mandamus, to give proper consideration whether to act in any particular circumstances and, if action is decided, to act within power. On occasion these duties have been seen as providing the basis for imposing a duty of care in private law. On this view the conduct of a public body must be unlawful and outside the ambit of any statutory discretion before it can come under a duty, actionable in damages, to a victim of its conduct. In particular, in X (Minors) v Bedfordshire County Council, Lord Browne-Wilkinson said that where Parliament has conferred a statutory discretion on a public authority, it is for that authority, not for the courts, to exercise the discretion; nothing which the authority does within the ambit of the discretion can be actionable at common law. But if the decision complained of falls outside the statutory discretion it can (but not necessarily will) give rise to common law liability, this depending on issues of justiciability. So on this view the initial inquiry is into the question whether the conduct was within or outside power.
29. It is not necessary to analyse the decision of the House of Lords in X (Minors) v Bedfordshire County Council [1995] 2 AC 633, save to note that at 739 Lord Browne-Wilkinson commented that the analysis of whether there is a common law duty of care as between a government authority and those affected by its actions “must be profoundly influenced by the statutory framework within which the acts complained of were done.” What stands out in reading that case is the unpredictability of any of the outcomes in the joined cases in accordance with the principles enunciated. With the introduction of operational negligence, certainty of law is dissolved and public decision making becomes subsidiary to the views of experts at several removes from the pressures of government. The law has not so developed. The rationale for excluding the excise of discretionary powers is that where the statutory framework places the decision making power in the context of a choice between action on a particular issue, through the expenditure of funds that may also be needed elsewhere, or in the context of a choice between the allocation or resources insufficient to cover all needs, it is both a matter of policy and administrative choice. Further, it is also the reposing of trust by the legislature in administration and not in the litigation process. In that regard, administration should not have to look to prospective second-guessing by the courts, as this would trammel the discretionary power conferred. Instead, in any area of governmental activity it would become possible to find an expert to say that a different policy might have enhanced any contended for benefit to litigants, or not taken same away and to construct, through operative negligence, a realm where a duty of care is inventively and artificially owed to all prospective beneficiaries of whatever allocation of resources may be made. To take an example: what would there be to stop a suit which claimed that property price inflation had not been prudently controlled, thus leading to loss in the very sector where those with such responsibilities ought to have realised there was a duty of care and failed to have foreseen a crash in house prices? That development is logically a practical outcome of the adoption of operational negligence. It would be impossible both conceptually and practically. It would involve the courts in arrogating a function which has not been given to the judiciary under the Constitution. A further point might be made. Negligence is not all encompassing. It has not swamped every other tort. If ill is broadcast of a person, the remedy is defamation. If a person is illegally arrested, the remedy is false imprisonment. If in public office, something is done which affects rights, the remedy may be judicial review in terms of overturning a decision in excess of jurisdiction or, if damages are sought, tort law requires that a claimant should prove misfeasance in public office. The authorities heretofore support the maintenance of those traditional boundaries. In the context here under discussion, the delimitation of remedies is particularly strong. In Pine Valley Developments v Minister for Environment [1987] IR 23 at 38, Finlay CJ stated the principle thus:
I am satisfied that it would be reasonable to regard as a requirement of the common good an immunity to persons in whom are vested statutory powers of decision from claims for compensation where they act bona fide and without negligence. Such an immunity would contribute to the efficient and decisive exercise of such statutory powers and would, it seems to me, tend to avoid indecisiveness and delay, which might otherwise be involved.
In the same case, Henchy J at page 40 had stated:
Breach of statutory duty may occur in a variety of circumstances and with a variety of legal consequences. Here we are concerned only with a breach of statutory duty in the making of a decision which has been committed by statute to the decision-maker. The weight of judicial opinion as stated in the decided cases suggests that the law as to a right to damages in such a case is as follows. Where there has been a delegation by statute to a designated person of a power to make decisions affecting others, unless the statute provides otherwise, an action for damages at the instance of a person adversely affected by an ultra vires decision does not lie against the decision-maker unless he acted negligently, or with malice …in the sense of spite, ill-will or suchlike improper motive), or in the knowledge that the decision would be in excess of the authorised power: see, for example, Dunlop v. Woollahra Municipal Council [1982] AC 158; Bourgoin S.A. v. Ministry of Agriculture [1985] 3 All E.R. 585. While the law as I have stated it may be lacking in comprehensiveness I believe it reflects, in accordance with the requirements of public policy, the limits of personal liability within which persons or bodies to whom the performance of such decisional functions are delegated are to carry out their duties.
30. The importance of the relevant statutory framework was emphasised in Glencar Explorations Limited v Mayo County Council (No 2). There, the decision to impose a mining ban was unlawful but no automatic entitlement to damages arose as a result. On no analysis of the relevant legislation did a county council in ratifying a draft development plan, owe a duty to those who held mining exploration licences. Fennelly J, quoting the statements above from the Pine Valley case, proceeded:
I respectfully agree with those statements. I would add that the absence of the right to automatic compensation for loss caused by an ultra (sic) vires act can find further justification from the protection of individual rights afforded by the existence of the remedy of judicial review. While the sufferer of loss from a lawful but non-tortious private act is entirely without a remedy, a similarly positioned victim of an ultra vires act of a public authority, by way of contrast, has at his disposal the increasingly powerful weapon of judicial review. Thus, he may be able to secure, as in this case, an order annulling the offending act. In appropriate cases, a court may be able to grant an interlocutory injunction against its continued operation. I believe that the considered statements of the law made in Pine Valley Developments v. The Minister for Environment [1987] I.R. 23 remain the law, despite apparent inconsistency with some dicta in the majority judgments in Duff v. Minister for Agriculture (No. 2) [1997] 2 I.R. 22, which appear to treat liability for damages as automatically flowing from a mistake of law said to have been made by a minister., Pine Valley v. The Minister for Environment , though fully considered and applied in the High Court judgment of Murphy J. in that case, does not figure at any point in the judgments of the Supreme Court. I do not believe that it can have been intended to depart from such an important principle as that laid down in Pine Valley.
31. In the pursuit of a remedy in damages, it may appear that negligence as a tort has submerged other existing remedies. Hence, those pursuing damages for defamation often plead that the publication of particular facts was done negligently and those claiming false arrest may also pose as an alternative, that facts were negligently assumed prior to arrest. Tort law, however, retains the precise definition of each wrong as giving rise to an entitlement to damages and this is not to be elided to an imprecise application of proximity or reasonable care considerations. The appropriate tort for a wrong committed in the course of an administrative duty is that of misfeasance in public office. That requires malice, as defined in this context, to be actionable. Hence, since the Pine Valley case the following statement of Finlay CJ from p.673 of that decision has been applied as the law:
The present position seems to be that administrative action which is ultra vires but not actionable merely as a breach of duty will found an action for damages in any of the following situations:
1. If it involves the commission of a recognised tort, such as trespass, false imprisonment or negligence.
2. If it is actuated by malice, e.g. a personal spite or a desire to injure for improper reasons.
3. If the authority knows that it does not possess the power which it purports to exercise.
32. In this context, leaving any decision on the matter to an appropriate case, negligence might arise in the context of public administration, not through making a decision which allocates resources or pursues aims in a particular direction, but perhaps through failing to deal with the very task which the legislation has entrusted to the body, such as the administration of applications within a set time frame. In that regard Clarke J cites Minister for Communications, Marine and Natural Resources v Figary Water Sports Development Company Limited [2015] IESC 74. That case is, however, an example of how a duty of care can arise in an administrative body, there from a duty to process applications for regional funds under the relevant European scheme, and can be broken by simply deciding not to fulfil that duty. Of course, State parties can be negligent. The State can commit a tort. That, however, is not to incorporate a new concept into the law whereby the tort of misfeasance in public office may be by-passed through simply claiming in circumstances akin to those in Glencar Explorations Limited that a public body had been negligent in its approach. The correct analysis is confined to misfeasance in public office. Negligence as a concept would completely submerge that tort and replace it with an alternative analysis: could matters have been done better, was damage caused, were not the alleged injured parties close enough to the public authority that they should have considered their interests? Instead, the elements of the tort of misfeasance in public office are what are available to those who feel let down by an official decision. Malice is clearly not present here on the findings of Hanna J. Furthermore, there is no question here of the appellant Minister knowing that he did not possess this power. Every power was statutorily based and every decision was expressed correctly through a statutory instrument.
33. The statutory matrix came from two sources: the powers conferred on the appellant Minister under the relevant legislation, firstly, and the obligations of the State under European legislation, secondly. The Sea-Fisheries and Maritime Jurisdiction Act 2006 confers power on the appellant Minister under s.13 to grant authorisations for fishing, qualified by time, species and area to be fished. Section 14 of that Act mandates the appellant Minister to implement the common fisheries policy. Section 15, under which the relevant regulations as to opening and closing of Castlemaine Harbour were made, is quoted above. Its purpose is to enable the Minister to supplement the common fisheries policy. The statutory purposes are set out in s.13 as “the proper and effective management and conservation and rational exploitation of fishing opportunities” and in s.15 as “protecting, conserving or allowing the sustainable exploitation of fish or the rational management of fisheries”. Insofar as regulations made under s.15 might under ordinary circumstances be regarded as the exercise of a discretionary power as to how through restricting fishing, tackle, opening and closing seasons, dealing in fish and areas to be fished within the exclusive twelve mile competence of the Minister within our national waters, there is nothing in the statutory scheme which set up an obligation towards fishermen or any requirement apart from what could be regarded as the overall purpose of the sustainable and rational management of fish stocks.
34. On this structure of legislative imperatives and entitlements, one might do a tort analysis based on breach of statutory duty as giving rise to liability. That does not assist the fishermen. This is not a statutory scheme directed towards particular individuals or a class of individuals and nor is it a scheme which gives particular or special protection beyond its legislative aims in favour of an identified group. If any duty is owed at all under the Act of 2006, it is towards the furthering of the common fisheries policy of the European Union and the sustenance of fishing opportunities. Of itself, this must involve restrictions on untrammelled taking of sea stocks. Conservation is for the benefit of the community as a whole. Ministerial competence extends within the twelve mile national exclusive fishing zone and there and elsewhere for the purpose of furthering the fisheries policy worked out on a Europe-wide basis. This does not give rise to any statutory duty in favour of the fishermen. Even where that was not the case, as commented earlier in this judgment, there was no basis upon which any discretion can be exercised in favour of economic exploitation within an SAC or an SPA, since there can be no question of analysing the Habitats Directive as being concerned with anything other than the protection of the environment and species within the protected areas. There is no discretion vested in the appellant Minister to exempt either the fishermen or any other economic actor within the protected area. The duty of care is towards the wider community, expressed as the protection of the environment. Hence, there cannot be, and could not have been in this instance, any duty of care which might found an action in negligence.
34. It might also usefully be commented that such limited opening times, about which the fishermen complain, were brought about only through serious efforts on behalf of the respondent Minister in negotiation with the European Commission. What was achieved was more than the blanket ban that applied automatically as a matter of law because of Article 6.3 of the Habitats Directive.
Legitimate expectation
35. Only a brief observation is appropriate in relation to the judgment of Clarke J and the concurring judgment of MacMenamin J on legitimate expectation. As Fennelly J remarks in Glencar Explorations Limited v Mayo County Council (No 2) at 162, the doctrine of legitimate expectation is related to that of promissory estoppel as it applies in matters of contract. Essentially, for promissory estoppel to apply, there must be “clear and unequivocal promise or assurance which is intended to affect the legal relations” between parties to a transaction which is understood as such, and before it is withdrawn the party to whom the representation is made, acts upon it in such a way that “it would be inequitable to permit the first party to withdraw the promise”, that is to act inconsistently with it; McGhee (Ed), Snell’s Equity, 32nd Ed., (London, 2010). While estoppel by convention can arise through acting upon “an assumed state of fact or law, the assumption being either shared by both or made by one and acquiesced in by the other” this is not a warrant for jumping to conclusions. The common bases upon which the parties act must, on objective assessment be “unambiguous and unequivocal”; Peel (Ed), Treitel’s The Law of Contract 13th Ed. (London, 2011) at 3.094. There is nothing in the decision of this Court in Courtney v McCarthy [2008] 2 IR 376 to suggest any other test. Moving from private law into the field of a private expectation set up in consequence of a statement by a public authority, the harmony between legitimate expectation and promissory estoppel, or estoppel by convention, should be maintained. In no case is there any warrant for analysing any expectation as legitimate where it is not based upon an unambiguous and unequivocal declaration. As Clarke J states, at paragraph 10.7, that is absent in this case.
Damages
36. In the original action in the High Court there were two plaintiff companies. Cromane Seafoods Limited is a firm which buys seafood products and exports them. Whatever the nature of the memorandum of incorporation of this company, it had no direct relationship with the dredging of mussels in Castlemaine Harbour or their transplanting, nurturing and harvesting. It is not enough that both companies shared directors or had identical directors. The second-named plaintiff O’Sullivan McCarthy Mussel Development Limited held the relevant licence and the relevant aquaculture licence and the relevant permission in relation to the use of the harbour at Castlemaine and the foreshore. Hanna J assessed damages in favour of O’Sullivan McCarthy Mussel Development Limited at €275,000 and in favour of Cromane Seafoods Limited at €125,000. The trial judge held, essentially, that Cromane Seafoods Limited was entitled to that sum of damages by reason of the laws deriving from the unavailability of mussels from O’Sullivan McCarthy Mussel Development Limited. The trial judge stated:
So, what is the loss? Apart from Mr. O’Sullivan, the Court was offered evidence on behalf of the plaintiff by Mr. Kevin Wynne, Chartered Accountant, who acts as the plaintiffs’ accountant. For the defence, the court heard from Mr. Sean Bagnall, also a Chartered Accountant. Both of them dealt separately, as one would expect, with the two plaintiffs respective losses. As already noted, the defendants, through Mr. Paul McGarry, S.C. argued forcefully that the plaintiffs were not in the same position. The first named plaintiff was a buyer of mussels and could deal with any supplier, anywhere. The plaintiffs were at arms length from each other and this, in effect, extinguished sufficient proximity from the torts of the defendants to enable the first named plaintiff to recover damages. Earlier in this judgment, I recounted the discreet nature of the business conducted by the respective plaintiffs in Cromane Harbour. I also noted the fact that this ongoing modus operandi was, from the evidence which I have heard, well known to the defendants both in terms of the Department of Agriculture, Fisheries and Food and on the part of the “on the ground” Departmental officials. Cromane Seafoods Limited bought up the entire stock of the O’Sullivan McCarthy Development Limited’s produce as well as others. The arrangements in Cromane Harbour were such that it is unlikely that any favourable arrangement would have been arrived at between the first named plaintiff and the second named plaintiff. It is verging on the unthinkable that, dealing as it did, with ‘the other producers of mussels in Cromane harbour that the first named plaintiff would have been in a position to come to a “favourable deal” with the second named plaintiff. I am satisfied that, given the specific circumstances regarding the mussels fishing industry in Cromane Harbour, the plaintiffs were at all material times dealing at arms length. I am further satisfied that given the level of involvement and knowledge on the part of the defendants that the defendants knew or ought to have known that any damage to the local mussel industry caused by the closure of the harbour would impact, not alone upon the second named plaintiff, but also upon the first named plaintiff.
The first named plaintiff is, in my view, in sufficient proximity, therefore, to recover damages for the reasonably foreseeable loss incurred through the abrupt closure of Cromane harbour in 2008 and, notwithstanding some degree of consultation, the late opening of same in 2010.
37. This finding must be corrected, despite there being no basis for liability. Whatever the potential argument for recovery in the case of the company having the relevant licences to exploit mussels and to grow them within Castlemaine Harbour, no possible argument for a connection based upon proximity or foreseeability could rationally bring the other company within the scope of any potential damages that might be awarded. That company could be in no special position in terms of the purchase of mussels and it is difficult to know what special arrangements would entitle a company to state that it lost in consequence of purchases being unavailable at less than market value from a related company. Further, there is no analysis of any attempt that might have been made to mitigate this loss through the purchase of mussels from other sources and the shipping of these to the main markets in France and elsewhere.
Result
38. The appeal should be allowed. Any analysis of liability in negligence must commence with the consideration of whether a duty of care exists between the plaintiff and defendant. Where the relationship is governed by statutory powers, the first point of analysis must be the legislative matrix. It must be shown that these powers expressly set up a duty of care to be exercised by the defendant in favour of the plaintiff or that such a duty of care arises by necessary implication. In the context of discretion as to the allocation of resources or as to the order in which problems might be tackled, any argued for existence of a duty of care may, depending on the context, be inimical both to the wider duty owed within that statutory context to the community at large and also to the non-application of the law of negligence even where the decision maker acted beyond the powers conferred, unless that decision maker otherwise acted wrongfully by misfeasance in public office. This requires malice, in the sense of improper motive, or knowledge by the decision maker that the decision would be in excess of the delegated powers. Otherwise, public bodies may also commit recognised torts, including negligence. Here, there was nothing to suggest that the duty of the appellant Minister under the Sea-Fisheries and Maritime Jurisdiction Act 2006 gave rise to any duty of care towards these fishermen. On the contrary, the considerations in the legislation are expressly directed towards the conservation of fish stocks, their rational exploitation, the furtherance of the common fisheries policy and the consequent benefit towards the community. Even if that were not the case, no discretion arose once Castlemaine Harbour had been declared an SPA and an SAC. Under the Habitats Directive, article 6.3, the duty of the State was clear, which was to conserve the protected sites and to not allow any non-conservation activity until it was certain that it would not impact upon the environment and the species within. Hence, any amelioration in the decisions made as to the opening of Castlemaine Harbour, were negotiated from the European Commission by the appellant Minister as a concession. All this was done in good faith.
39. The analysis in this judgment precludes any award of damages from negligence based on an underlying policy which is expressed in the application of either primary or subordinate legislation to situations without that legislative justification being removed first of all through judicial review in the case of delegated legislative powers or by a declaration of constitutionality in the case of Acts of the Oireachtas.
40. There was no basis, in terms of the press statement relied on, as founding a legitimate expectation. There was no entitlement for anyone to conclude that it was clear and unequivocal that Castlemaine Harbour would not be shut by reason of the designation of much of that area as an SPA or an SAC.
41. Finally, damages should not be awarded to related companies on the basis of any analysis that a wrong was perpetrated against one of them which was felt by the other because they shared common directors.
Judgment of Mr. Justice Clarke delivered the 22nd February, 2016.
1. Introduction
1.1 The circumstances in which the State may be liable for mistakes on the part of officials or employees is a complex and sometimes controversial area of the law. That a mistake occurred in this case which had, at least, some impact on the plaintiffs cannot be doubted. The issue which this case raises is as to whether there is any proper legal basis on which it can be said that the defendants/appellants (“the State” unless the context otherwise requires when “the Minister” will be used) is liable in damages. I will collectively refer to the plaintiffs/respondents as “Cromane”, unless the context makes it clear that it is only the first named plaintiff/respondent which is being referred to. The second named plaintiff/respondent will, when separately relevant, be referred to as “O’Sullivan McCarthy”. In the High Court, Cromane put forward two bases on which it was asserted that it was entitled to an award of damages. First, it was said that it was possible and appropriate for the Court to award damages under the heading of legitimate expectation. Second, it was said that damages arose under the tort of negligence.
1.2 For present purposes, it is sufficient to note that the circumstances which give rise to these claims arise out of the implementation in Ireland of European Union environmental legislation. In the events that happened, O’Sullivan McCarthy was, for a period of time, precluded from continuing to carry on its business of harvesting mussels in Castlemaine Harbour as a result of the absence of necessary permission to carry on that activity after new measures for the authorisation of such activity in protected areas had come into force. Cromane has argued that the Minister was in breach of a legitimate expectation or, alternatively, was negligent arising out of the circumstances in which it was forced to cease its activities.
1.3 The trial judge (Hanna J.) found in favour of Cromane under both headings and made an award of damages in the sum of €125,000 in respect of Cromane and €275,000 in respect of O’Sullivan McCarthy. The State has appealed to this Court against that finding. In addition to raising questions as to whether an award of damages can properly be made either in the context of legitimate expectation or on the basis of negligence, the State has also appealed against the amount of damages awarded and also, as a separate basis of appeal, by asserting that damages could not, in any event, be awarded in favour of Cromane in respect of any losses attributable to that company.
2. The Issues
2.1 On that basis, there are four sets of issues at least potentially before this Court on this appeal. The first and second issues concern whether, in the circumstances of this case, it was properly open to the trial judge to make an award of damages at all under the headings of, respectively, legitimate expectation or negligence.
2.2 In the event that both of those issues were to be found in favour of the State then clearly no further issues would arise. However, in the event that this Court were to uphold at least the principle of an award of damages under either (or, of course, both) headings, then the two separate issues which relate to the question of damages would require to be addressed. On that basis, the third issue concerns the calculation of damages by the trial judge (in that context it should be recorded that Cromane cross appealed on the basis that the calculation by the trial judge of the award of damages was inconsistent, it was said, with some of the judge’s findings as to the evidence) and the fourth issue concerns whether it was appropriate, even if damages, in principle, were available to O’Sullivan McCarthy, to award any damages in favour of Cromane in respect of losses attributable to that company. In that latter context, it should be noted that the issue between the parties concerns the level of connection of Cromane with the alleged cause of action.
2.3 As already noted, the underlying issues which arise in these proceedings concern certain licensing functions of the State, and in particular the Minister, relating to the shellfish operations of Cromane. As will be discussed later in this judgment, O’Sullivan McCarthy is a separate legal entity which has a shareholding connection with Cromane. O’Sullivan McCarthy is involved in cultivating shellfish. Cromane was not, therefore, directly affected by any of the licensing issues which are at the heart of these proceedings, but claims to have suffered loss indirectly as a result of the inability of O’Sullivan McCarthy to supply shellfish because of the licensing difficulties to which I have referred. The separate question which arises in the context of Cromane is, therefore, as to whether, even if O’Sullivan McCarthy is entitled to successfully maintain proceedings for either or both of legitimate expectation or negligence, Cromane is likewise entitled, notwithstanding the more remote connection of that company to the events which give rise to these proceedings.
2.4 The background to this case is to be found in the developing legislative framework enacted at European Union level for the purposes of protecting the environment. In that context, it is necessary to turn briefly to that framework.
3. The EU Framework
3.1 Council Directive 92/43/EEC of the 21st May, 1992 (“the Habitats Directive”) was concerned with the conservation of natural habitats and of wild fauna and flora (O.J. L 206 4/7 22.7.1992). In respect of activity which it was proposed should take place in a Special Area of Conservation (“SAC”) as specified under the Habitats Directive, it was required that an appropriate assessment first be carried out to determine whether such activity would affect the integrity of the site.
3.2 The European Communities (Natural Habitats) Regulations 1997 (S.I. No. 94 of 1997) were introduced for the purposes of transposing the Habitats Directive into Irish law. As part of the gradual measures introduced for the purposes of implementing the Habitats Directive, various candidate SACs (“cSAC”) were identified and notified to the relevant European authorities. Castlemaine Harbour was one such area identified.
3.3 It is also worth noting that, as will be discussed in section 5 of this judgment, in parallel with those developments, Castlemaine Harbour had earlier been designated as a special protected area for birds under the Irish implementing measures designed to transpose Council Directive 79/409/EC (“the Birds Directive”).
3.4 In any event, the critical legal requirement which, as a result of those measures, applied to Castlemaine Harbour was Article 6.3 of the Habitats Directive which reads:-
“Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site’s conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public.”
3.5 One of the questions which arose was as to whether that provision applied, or applied in the same way, in respect of existing activities which were being carried out in an area of conservation prior to its designation as such and, indeed, prior to the relevant European legislation or its Irish implementing measures coming into force. The relevance of that question to these proceedings is that, as will appear later in this judgment, the activities which Cromane was carrying on in the harbour were well established prior to the developments in European environmental and conservation law to which I refer.
3.6 The European Court of Justice (“ECJ”) delivered two important judgments in relation to the interpretation of Art. 6 of the Habitats Directive in the mid-noughties. These were – Landelijke Vereniging tot Behoud van de Waddenzee, Nederlandse Vereniging tot Bescherming van Vogels v. Staatssecretaris van Landbouw, Natuurbeheer en Visserij (Case C-127/02) [2004] ECR I-07405 and Commission v. Ireland (Case C-418/04, ECR [2007] I-10947). The net effect of both of these decisions was to make clear that the regime specified in Art. 6 was required to be applied to activities which existed prior to the designation of an area as a SAC or cSAC. Furthermore, it was made clear that the requirement for an appropriate assessment of the implications of any such activity required that the relevant authorities had, prior to authorisation, to be satisfied that, in the words of the ECJ, “in the light of the site’s conservation objectives…no reasonable scientific doubt remains as to the absence of such effects” (being adverse effects on the integrity of the site).
3.7 This interpretation of the legal position undoubtedly caused significant difficulties for the Minister and also, as a result, for Cromane. As will be clear from an account of the facts to which I will shortly turn, the Minister had provided various forms of permission which allowed for the continuation of Cromane’s activities notwithstanding the coming into force in this jurisdiction of the regime under the Habitats Directive. However, no specific analysis or assessment had been carried out and, indeed, the necessary scientific work had not been engaged in so as to allow for an immediate assessment of the type which the ECJ held was required in order that activity be permitted.
3.8 As a result, it was clear that, as a matter of law, the Minister could not grant any permissions which would have the effect of allowing activity within the boundaries of the protected area unless and until an appropriate assessment had been carried out and such assessment satisfied the requirements identified by the ECJ, being that there was no reasonable scientific doubt as to the absence of adverse effects.
3.9 While efforts were made to deal with the situation which had emerged as a result of the decision of the ECJ in Commission v. Ireland, there can be no doubt that, at least to some extent, the existing commercial activities of Cromane were interfered with. There can also be little doubt but that the Minister was mistaken as to the proper interpretation of the Habitats Directive and its Irish implementing measures for it is clear that the Minister considered that it was possible to continue to provide appropriate licences for the existing activities of Cromane notwithstanding that they were to take place in a protected area and notwithstanding the fact that no specific assessment had been carried out. It is as against that background that the claim for damages in respect of breach of legitimate expectation and/or negligence was brought. On that basis it is appropriate to turn to the facts.
4. The Facts
4.1 The trial judge found that, in general terms, the business currently being carried out by Cromane in Castlemaine Harbour had been in place since the 1970s. However, so far as the issues which are now before this Court are concerned, the relevant events commenced in the early 1990s. At that time, the possibility of the designation of areas as special protection areas was under consideration. On the 7th April, 1993, a public notice was published in the Irish Times by the National Parks and Wildlife Service of the Office of Public Works announcing the intention to classify Castlemaine Harbour as a special protection area. That notice stated that:-
“It is not envisaged that designation will restrict the current usage pattern of these areas for activities such as fishing … or their use for shellfish culture”
It was also suggested in evidence that this statement was echoed in a Government Notice at the time. On this issue, the trial judge, at p. 14, found as follows:-
“… there was a representation made to the plaintiffs in both the government notice and the newspaper notice of 1993. There was comfort given. What happened from then onwards, the annual allocation of seed collection authorisations and the constant refurbishing of the plaintiffs business gave rise to a pattern of events where the plaintiffs had good reason to rely upon the comfort given to them that there would not be a summary closure of their business without some good scientific reasons or without some consultation process before doing so.”
4.2 Thereafter, the mussel fishing business carried on by Cromane proceeded without interruption until difficulties were encountered in relation to the permission regime which is at the heart of these proceedings. I will turn shortly to that regime. However, so far as the situation on the ground is concerned it is also necessary to note that in May, 2008, O’Sullivan McCarthy spent in excess of €1 million renewing a mussel cultivator, “Western Adventure” T246, in order to qualify for a new certificate of compliance under the Torremolinos Protocol of 1993 relating to the Torremolinos International Convention for the Safety of Fishing Vessels 1997 as provided for in European Council Directive 97/70/EC, as amended, and as transposed into national law by the Fishing Vessels (Safety Provisions) Regulations, 2002 (S.I. No. 418 of 2002).
4.3 It should also be noted that there were various communications between Cromane and/or O’Sullivan McCarthy, on the one hand, and State agencies, on the other hand, which it is said led to the State generally being, at least in broad terms, aware of the commercial activities being conducted in Castlemaine Harbour. The trial judge also accepted that the Department of Agriculture, Fisheries and Food has at all times been fully aware of what was described as the modus operandi of Cromane and that there was, at all times up to the matters complained of, a close and good working relationship with the Department including “on the ground” operations through the offices of departmental officials. In this regard, the trial judge accepted that the Department was “well aware of the workings and operational activity in Cromane” and that the Department “knew, through constant contact and face-to-face communication in Cromane through its officials how the plaintiffs (and others) carried on their business.”
4.4 Further, the evidence before the trial court, which was accepted by Hanna J., was to the effect that attempts to import mussel seed from elsewhere in the country proved unsuccessful and that, given the location of their fishery grounds, such alternative supply was not viable.
4.5 In respect of the assessments which were required to be carried out before the harbour could be opened, the High Court found that the carrying out of screening tests was within the control of the Minister. Hanna J. accepted the evidence of Dr. O’Connor, expert witness for Cromane, that if there had been a screening test carried out this project would have been “screened out as having no adverse consequence on the environment”. Dr. O’Connor gave evidence that he could have undertaken the appropriate analysis within two months, which analysis, the High Court found, should have been done quickly in 2008.
5. Licensing and Permissions
5.1 As set out in the judgment of the High Court, Castlemaine Harbour has been a Special Protection Area (SPA) since 1979 in accordance with Council Directive 79/409/EEC (“the Birds Directive”) as amended. In 2000, a wider area of protection, a Candidate Special Area of Conservation (cSAC), was opened under Council Directive 92/43/EEC (“the Habitats Directive”) as amended. As it comes within the remit of both of these Directives, the site is known as a “Natura 2000 site”. As a consequence, the harbour is closed annually for a period of time to allow for stock conservation, and authorisation of the Minister is required to obtain mussel seed.
5.2 Apart from the protection afforded to the harbour under the Natura 2000 scheme, appropriate licences must be granted to O’Sullivan McCarthy in order that they may engage in their commercial activities, such as the bottom cultivation of mussels, in this area. Secondly, it is required that Castlemaine Harbour be “open” for the purposes of these aquacultural activities. The opening and closing of the harbour in this regard is governed by Statutory Instruments made by the Minister which will be outlined in more detail in due course.
5.3 In fact, in relation to individual licences, O’Sullivan McCarthy was licensed to engage in bottom cultivation of mussels at two sites in Castlemaine Harbour (301A and 301B) in accordance with a ten-year aquaculture licence granted under the Fisheries (Amendment) Act 1997 and a Molluscan Shellfish (Conservation of Stock) permit which allows them to move seed to farm the mussels. It also has a sea-fishing boat licence (number 141805994) issued under the Fisheries Acts 1959 to 2006 for its boat Western Adventure II. O’Sullivan McCarthy is involved in fishing and transplanting mussel seed to the aquaculture site licensed at Castlemaine Harbour.
5.4 Traditionally, O’Sullivan McCarthy obtained mussel seed from an area within the bay. From there, it placed the seed in the nursery ground for further development for a period of six weeks. The mussel seed collection activities usually lasted for a period of twenty days during the summer months. As noted by the trial judge, these were almost invariably non-consecutive days as they were determined by tidal and weather conditions. After that, the seed was taken from the nursery ground and then put into other areas (one shared area under the Fishery Order Licence and two other areas within the SPA where O’Sullivan McCarthy had exclusive rights under Aquaculture Fishing Licenses) where it was left for a period of two years for later harvesting.
5.5 Up to the determination of the ECJ in Commission v. Ireland on the 13th December 2007, Cromane carried out these commercial activities within the harbour on a regular basis. However, following the determination of the ECJ, a decision was made not to open the harbour for mussel seed fishing activity during the summer months in 2008. In this regard, an overview of the Statutory Instruments regulating the opening and closing of the Harbour will demonstrate the access, or lack thereof, extended to Cromane in order to operate within the Harbour.
6. Statutory Instruments
6.1 An overview of the Statutory Instruments regulating the opening and closing of the harbour and the permissions required to operate therein is necessary at this point. In essence, a sequence of S.I.s was introduced by the Minister to open and close the harbour for mussel fishing each year. There were some 29 Statutory Instruments outlined in the Book of Statutory Instruments as prepared by the State, but it is not intended to refer to all of those instruments here. The focus will be on the relevant Statutory Instruments purporting to regulate the opening and closing of the harbour for Cromane’s purposes, and those relevant to the operation of their activities.
6.2 Closure of the harbour began, for these purposes, on 30th November, 2007, with S.I. 789/2007, also known as the Mussel Seed (Prohibition on Fishing) Regulations 2007. Two Statutory Instruments were then introduced to take effect from 9th June, 2008. The first, S.I. 162/2008 revoked S.I. 798/2007 which theoretically opened the fishery. However, the second, S.I. 176/2008, imposed a prohibition on fishing for mussel seed within the areas described in the schedule thereto, which included, inter alia, an area in Dingle Bay described at paragraph (u) of the Schedule, and comprising an area which included Castlemaine Harbour.
6.3 It would appear that in 2008, the harbour was not opened for fishing until 5th October, by which time the season for mussel seed fishing had passed as serious damage had been done to the mussel seed by predators such as starfish and green crabs.
19.2 In 2009, the situation was different. The fishery was opened for mussel seed collection on 30th April by S.I. 150/09 and remained open until 14th May.
6.5 However, another statutory instrument was introduced in 2009 which is relevant to the Court’s analysis. The European Communities (Habitats and Birds) (Sea Fisheries) Regulations 2009 (S.I. 346/09), commenced on 27th August, 2009, provided for the issuance of so-called Natura permits, which added what Cromane describe as an “extra layer of regulation” in terms of the operation of their commercial activities within the harbour. As this S.I. was commenced after Cromane had obtained the requisite mussel seed in 2009, it did not impact on their operations that year.
6.6 However, in 2010, the regulatory landscape was as follows. In fact, S.I. 174/2010 opened the fishery on the 4th of May and it remained open until the 25th of May that year, which was within the season for obtaining mussel seed. However, Cromane did not gain access to the fishery until August that year when it was opened for a second period of time, by which time the mussel seed had been seriously damaged. It emerged in argument before this Court that what had prevented Cromane from operating their activities in May that year was, in fact, that a Natura permit was not obtained by them until August 2010. Cromane state that they applied for such a permit as soon as they learned that it was required, and argue that this extra layer of authorisation was but part and parcel of their case and that the lack of essential scientific information available to the Department, in essence, lead to the imposition of a regulatory scheme that was poorly informed and, consequently, in breach of their rights. However, it was strongly disputed by the State that this was ever part of Cromane’s case. Ultimately, it did emerge in Cromane’s argument before this Court that the matter of the Natura Permit scheme and any purported connection with the absence of monitoring and scientific tests of the fishery site had not specifically arisen before the trial court.
7. Interim Measures
7.1 As noted, the determination of when the harbour was open or closed, for present purposes, was regulated through a series of Statutory Instruments made by the Minister under the legislation as outlined in the previous sections of this judgment. However, certain interim measures are also relevant. For example, Cromane refers to a letter from the Minister to Cromane on 2nd July, 2008, stating as follows:-
“It is the environmental issues associated with the Natura 2000 sites that have caused the delayed opening of the mussel seed fishery in Cromane. In order to comply with the requirements of the Habitats and Birds Directive, baseline data for the area must be collected and then an appropriate assessment carried out on the area based on this data.”
The letter further stated that:-
“The interim approach is being finalised at the moment with a view to presenting it to the European Commission in the near future. Any re-opening of the Mussel seed fisheries in 2008 will be dependent on the Commission agreeing to the management/interim approach proposed.”
7.2 In light of these matters, it is necessary to set out what actually occurred on a year by year basis after the difficulties arising from the decision of the ECJ first arose.
7.3 In essence, as Hanna J. described the matter, concerns arose in the Department of Agriculture and Fisheries and in the Department of the Environment as to whether there was a risk of adverse environmental impact in the areas of the SPA arising from the gathering of the mussel seed. Following the determination of the ECJ, it was decided not to open Castlemaine Harbour for mussel seed fishing activity in 2008 as would normally occur during the spring/summer months. Between late August, 2008, and 9th September, 2008, various statements were made by the Minister to Cromane to the effect that the harbour remained closed for mussel seed fishing. Ultimately, as outlined in the previous section of this judgment, Castlemaine Harbour was not opened by the Minister for mussel fishing until 5th October, 2008. By then, the season for mussel seed fishing had passed, and predators such as green crabs and starfish had seriously damaged the mussel stock. As a result, O’Sullivan McCarthy was without any stock of mussels from 2008 for maturation on their licensed sites.
7.4 In 2009, the “relaxation” of the regulations pertaining to the closing of the harbour occurred from the 30th of April, 2009, to the 14th of May, 2009, within the season for mussel seed fishing, so that Cromane had sufficient opportunity to gain access to the fishery.
7.5 However, in 2010, although the relevant “relaxation” of the regulations closing the harbour for commercial mussel fishing operations occurred at the appropriate time, the difficulty in accessing the fishery stemmed from the “extra layer of regulation” imposed under S.I. 346/2009, which introduced the requirement for a Natura Permit in order to gain access to the harbour, and the fact that one was not obtained by Cromane until August of that year. As noted earlier, it was stated in argument before this Court that the Natura permit was sought and obtained as soon as Cromane became aware that such was necessary.
8. The Relationship Between Cromane Seafoods Limited and O’Sullivan McCarthy Mussel Development Limited
8.1 Cromane and O’Sullivan McCarthy are two separate corporate entities that have worked closely together for a period of years. They also have a common shareholding, and Castlemaine Harbour is the centre of their operations. O’Sullivan McCarthy sells all of its harvested mussels to Cromane. However, Cromane does have other suppliers in the Castlemaine area.
8.2 The State argued that Cromane and O’Sullivan McCarthy have chosen, for business reasons that have presumably served them over the years, to organise their relationship inter se in the manner they have done, that is to say, using two companies with separate legal personalities and accounts. Quite simply, it is said that Cromane is a downstream purchaser of goods from the party with whom the State dealt, namely O’Sullivan McCarthy. The State submits that any dealings it had with Mr. O’Sullivan or Mr. McCarthy were had with them as directors of O’Sullivan McCarthy.
8.3 In essence, it is stated that Cromane purchases shellfish and fish for wholesale from O’Sullivan McCarthy and from others holding Aquaculture Licences situate at Castlemaine Harbour. O’Sullivan McCarthy engages in the cultivation and wholesale of molluscs.
9. Causation and Damages
9.1 In all claims for damages it is usually necessary to establish liability (for example a breach of contract or a tort), causation (a causal link between the cause of action established and some consequence or consequences) and quantum or amount (being a valuation of the amount of damages which it is necessary to award). In the ordinary course of events it is normal to first address questions which relate to the liability of a party to pay damages at all before going on to consider causation and the amount of those damages or, indeed, issues which might affect how those damages should be calculated. However, there are some cases where an alternative approach may make more sense. For reasons which I hope will become apparent, this case is, in my view, such a case.
9.2 I have already identified some of the issues which arose on this appeal under the broad damages heading. One of those issues concerned the losses claimed in respect of 2010. As already noted, that year was the third year after problems emerged concerning Cromane’s business. It is clear that Cromane was unable to carry on its business in the first year (2008) and while, therefore, there remain significant disputes between the parties as to the manner in which the trial judge went about the task of calculating the losses attributable to that year, there can be no doubt but that, if liability is established, O’Sullivan McCarthy (but not necessarily Cromane) is entitled to such damages as they might be able to establish in respect of 2008. Again, it is common case that O’Sullivan McCarthy was able to conduct its business in the ordinary way in the second year (2009) so no question of damages in respect of that year arises. There is, however, a question about the third year (2010) to which I now turn. It is clear that the trial judge awarded damages in respect of losses attributable to an interference with O’Sullivan McCarthy’s business in that year. That O’Sullivan McCarthy did not carry out its ordinary business during the normal season for 2010 is not in dispute. However, in the course of questioning by the Court at the hearing of this appeal, it became clear that, to use the language which was applied to the situation on the ground at that time, the harbour was, in fact, “open” during the normal time when harvesting would have occurred in the year in question. It may well be that there was another licensing or permission difficulty which prevented O’Sullivan McCarthy from actually conducting its commercial activities during the relevant period in that year. As already noted, it was said at the hearing of the appeal that a Natura 2000 permission or licence may also have been required and may not have become available until well after the period during which relevant activity was to take place.
9.3 However, having carefully reviewed the evidence which was given before the High Court, it does not seem to me that the trial judge had any evidence before him to explain the precise legal basis on which it was not possible for O’Sullivan McCarthy to carry out its activities in 2010. It cannot have been because the harbour was “not open” for the harbour was, in fact, “open”, in the sense in which that term was used, during the relevant period.
9.4 The reason why this is of very great significance is that without having a clear finding of fact as to the legal reason why activity did not occur in the year in question, it is impossible to assess whether any of the alleged failings on the part of the Minister (whether breach of legitimate expectation or negligence) could have been responsible for the inability of O’Sullivan McCarthy to conduct its activities that year. I can well see that, from a colloquial point of view, and from O’Sullivan McCarthy’s perspective, it may not have mattered very much as to which licence or permission was absent for, from a commercial point of view, the only thing which was likely to have really mattered to O’Sullivan McCarthy was whether it could carry on its business or not.
9.5 However, from the point of view of a claim in damages, the precise legal reason why O’Sullivan McCarthy was unable to carry on its activities in that year is crucial. To take but a simple example, there was little or no evidence as to the criteria which needed to be met in order to obtain a so-called Natura 2000 licence or in relation to the facts necessary to establish an entitlement to such a permission or licence. Even if it could be established that the Minister was in breach of legitimate expectation or negligent in failing to have ensured that the necessary scientific work had been done to enable a proper assessment to be carried out so as, in turn, to enable a valid permission to be given, there could well have been other reasons why, in any event, O’Sullivan McCarthy did not, at the time in question, qualify for the necessary licence or permission. There was insufficient evidence tendered on this point. If it were, for example, to be the case that there was some reason, wholly independent of the necessary scientific assessment, why O’Sullivan McCarthy could not have carried on its activities in the third year, then there would be no arguable causal link between any alleged failure on the Minister’s part and O’Sullivan McCarthy’s inability to carry on its business in that year, for even if the Minister had secured the availability of the necessary scientific information to meet the requirements of the Habitats Directive so as to allow O’Sullivan McCarthy’s activity to be authorised, they would not have been able to carry on that activity anyway for some separate and independent reason.
9.6 Whether there was such an independent reason, or whether the reason why O’Sullivan McCarthy did not have all of the necessary permissions were truly based on the same problem concerning the absence of an adequate scientific assessment, we just do not know, for this issue was not addressed in the High Court, there was no evidence on which the High Court judge could have reached any conclusions in that regard, and there is no basis on which this Court can now be expected to make assumptions about the reasons.
9.7 In that context, it must be recalled that the onus of proof in respect of damages (including causation) lay on O’Sullivan McCarthy. It was for O’Sullivan McCarthy to establish the precise legal reason why it was unable to carry on its activities in any relevant year in respect of which damages were claimed and to establish any factual basis for suggesting that there was a causal link between any of the alleged failures on the part of the Minister and that inability. There just was no evidence presented at the trial from which any sustainable conclusion in that regard could be reached. I am, therefore, satisfied that, in any event, and irrespective of the situation which might properly be said to arise either in respect of legitimate expectation or negligence, no claim for loss in respect of 2010 can be sustained, for there was no evidence from which it could legitimately or sustainably be concluded that there was a causal link between any such alleged failure on the part of the Minister and the inability of O’Sullivan McCarthy to conduct its business in that year.
9.8 It follows that this case must be confined to the claim in respect of 2008. The reason why it seemed to me to be appropriate to address this question first was that there was at least the possibility that somewhat different considerations might apply to the issue of whether the Minister might be said to be liable (and in particular liable in negligence) depending on whether one was assessing damages arising in 2008, on the one hand, or 2010, on the other hand. This is so not least because the manner in which the Minister and his officials responded to the problem which emerged was arguably a much more significant potential issue so far as the third year is concerned but is of much less significance so far as the first year is concerned, for the closure in that year occurred at a time very soon after the judgment of the ECJ in Commission v. Ireland and at a time when the Minister and his officials had had a very short period to respond.
9.9 In the light of that finding, I will leave over the question of the criticisms made on behalf of the Minister of the manner in which the High Court carried out the assessment of damages in respect of the first year until I have set out my views on the proper legal analysis of O’Sullivan McCarthy’s claim that it is entitled to damages in respect of that year under either heading. I will also leave over an assessment of the position in respect of Cromane for, as already noted, the issue which the case made on their behalf raises relates to the fact that the effect on the business of Cromane of the licensing regime was indirect rather than direct. However, in order properly to address the legal issues which arise under that heading it is necessary to identify the legal basis (if any) on which a claim under either legitimate expectation or negligence might be sustained at all. I propose to turn first to the question of legitimate expectation.
10. Legitimate Expectation
10.1 First it should be acknowledged that, as Fennelly J. noted in Glencar Exploration plc v. Mayo County Council (No.2) [2002] 1 IR 84, the jurisprudence in the area of legitimate expectation continues to evolve. The views which Fennelly J. expressed in that case were described by him as provisional but they have come to be accepted as providing at least the broad outline of the law in this area. At pp. 162-163 of his judgment in that case, Fennelly J. said the following:-
“Firstly, the public authority must have made a statement or adopted a position amounting to a promise or representation, express or implied as to how it will act in respect of an identifiable area of its activity. I will call this the representation. Secondly, the representation must be addressed or conveyed either directly or indirectly to an identifiable person or group of persons, affected actually or potentially, in such a way that it forms part of a transaction definitively entered into or a relationship between that person or group and the public authority or that the person or group has acted on the faith of the representation. Thirdly, it must be such as to create an expectation reasonably entertained by the person or group that the public authority will abide by the representation to the extent that it would be unjust to permit the public authority to resile from it. Refinements or extensions of these propositions are obviously possible. Equally they are qualified by considerations of the public interest including the principle that freedom to exercise properly a statutory power is to be respected. However, the propositions I have endeavored to formulate seem to me to be preconditions for the right to invoke the doctrine.”
10.2 More recently, O’Donnell J., writing for this Court in Lett & Company Limited v. Wexford Borough Council and ors [2014] 2 I.R. 198, [2012] IESC 14, expressly adopted the tests identified by Fennelly J. in Glencar. I should also add that there has been a debate for some time as to the question of whether damages can be awarded in a claim where it is established that there is a breach of a legitimate expectation. For reasons principally connected with the fact that the matter had not been fully argued, O’Donnell J. was reluctant, in Lett, to express a definitive view on the issue, but he did cite the judgment of McCracken J. in Abrahamson v. Law Society of Ireland [1996] 1 I.R. 403 in which it was stated that the courts would endeavour to obtain a benefit in respect of which a legitimate expectation arose “or to compensate the applicant… by an award of damages…”. It is, I think, fair to say that, while not definitively decided, the tendency in the more recent case law has been to recognise that, at least in some cases, an award of damages for breach of legitimate expectation may be permissible. However, it will be necessary to consider that question in this case only if there is a breach of legitimate expectation in the first place.
10.3 It is also worth noting that in my own judgment in the High Court in Lett (Lett & Company Limited v. Wexford Borough Corporation and ors [2012] 2 I.R. 198, [2007] IEHC 195), I suggested that the case law established, in addition to the positive elements which must be met in order for a legitimate expectation to arise as set out in the three tests identified by Fennelly J. in the passage from Glencar to which I have referred, that there were also negative factors whose presence might exclude a legitimate expectation. In that context, at para. 29, I said the following:-
“The negative factors are issues which may either prevent those three tests from being met (for example the fact that, as in Wiley v. The Revenue Commissioners [1994] 2 I.R. 160 , it may not be legitimate to entertain an expectation that a past error will be continued in the future) or may exclude the existence of a legitimate expectation by virtue of the need to preserve the entitlement of a decision maker to exercise a statutory discretion within the parameters provided for in the statute concerned or, alternatively, may be necessary to enable, as in Hempenstall v. Minister for Environment [1994] 2 I.R. 20, legitimate changes in executive policy to take place.”
I do not see any reason to depart from those views at this stage. However, it is inevitable that the starting point has to be to consider whether the criteria identified by Fennelly J. in Glencar have been met.
10.4 In summary, those criteria are first that there must be an appropriate promise or representation, second, that it must be addressed to an identifiable group of persons creating a relationship between that group of persons and the public authority concerned, and third, that the expectation created by the promise or representation in question must be such that it would be “unjust to permit the public authority to resile from it”. It is hardly a surprise that Fennelly J. started with the question of the promise or representation itself, for it is necessary to identify what it is that the public authority said or did (or, perhaps, in an appropriate case, refrained from doing or saying) that amounted to what Fennelly J. described as a “promise or representation” as to how it would “act in respect of an identifiable area of its activity”. Therefore the starting point must be an analysis of the actions or statements attributed to the Minister in those circumstances. I will shortly turn to that analysis.
10.5 In passing, it should be said that, while it will almost always be necessary to look at the representation or promise to identify the person or persons to whom it might be said to have been directed, it may be, at least in respect of some of the matters relied on in this case, that that issue would not prove unduly problematic, for those persons were a definable group which was engaged in commercial activity within the areas which were proposed to have special status conferred upon them, and whose activities might, therefore, have the potential to be interfered with by the introduction of the Habitats Directive and its implementation. Thus, the second leg of the test may not pose particular difficulties on the facts of this case. The third leg of the test, however, is more problematic, for it is necessary to identify the precise nature of the promise or representation made and, indeed, the circumstances in which it came to be made, in order to determine whether it would be unjust to allow it to be resiled from. There can, therefore, often be a close connection between the question of whether there truly was a representation or promise (as opposed to a vague indication) and whether it would be just to permit the relevant public authority to resile from same.
10.6 It must be recalled that Cromane relies on certain specific matters as amounting to the representation or promise in this case. It is necessary to identify these and to analyse whether they can properly be said, either individually or cumulatively, to amount to the sort of representation or promise which would meet the first leg of the criteria identified by Fennelly J. in Glencar.
10.7 As noted earlier, the only representation which it can be said was expressly made by the Minister to Cromane was to the effect that “it is not envisaged” that there would be any restriction on traditional activities. That statement was made in April, 1993, and was in the context both of developing European environmental legislation and also in the context of the process leading to the identification of areas within Ireland which would be designated for the purposes of that European legislation. It could not be said to amount to a clear commitment on the part of the Minister that there could never be any adverse consequences. What the consequences were going to be of the designation of an area for European environmental purposes was a matter of European law.
10.8 As events unfolded, it became clear that the Minister did not have the legal authority, as a matter of European law, to allow for the uninterrupted continuance of traditional activities in protected areas unless and until an appropriate assessment had been carried out. The Minister had no discretion in the matter. The Minister was bound by European law as interpreted by the ECJ. The Minister could give no greater assurance than that, in the then view of the Minister, it was not envisaged that there would be problems for traditional activities. But the question of whether there would be such problems was not a matter within, as it were, the Minister’s gift. It was determined by the proper application of European law. Such an indication by the Minister does not, in my view, amount to the type of representation which meets the criteria identified by Fennelly J. in Glencar. It is neither precise nor is it of a nature which could, in any event, be delivered by the Minister, for it was not within the Minister’s power, as a matter of European law, to insist that there would be no interference with traditional activities.
10.9 For those reasons, I am not satisfied that it was legitimate to entertain an expectation, based on the sort of comments made in 1993, that European law might not, nonetheless, interfere with traditional activities.
10.10 Next, reliance is placed on the fact that, as found by the trial judge, the ongoing activities of Cromane were carried out to the knowledge of the Minister and on the basis of annual legal measures put in place by the Minister which facilitated the so-called opening of the harbour. However, as was noted by this Court in Wiley v. The Revenue Commissioners [1994] 2 I.R. 160, the fact that there may have been an error in the past cannot create a legitimate expectation that that error will be continued into the future. The fact that the Minister was mistaken in his view that traditional activities, of which the Minister undoubtedly knew, could continue provided that the Minister put in place the appropriate legal measures, and was also in error about the fact that those legal measures could be put in place in conformity with European law without carrying out an appropriate assessment, cannot create a legitimate expectation to the effect that that situation would continue.
10.11 While there undoubtedly was significant expenditure, and while the incurrence of expenditure on foot of a representation may form part of the Court’s assessment in determining whether it would be appropriate to allow a public authority to resile from a representation made, expenditure will not be relevant if there was no legitimate expectation in the first place.
10.12 Finally, before leaving this aspect of the analysis, it is worth commenting on one of the representations which was made on behalf of local producers to the Minister after difficulties had been encountered arising from the decision of the ECJ. It was said to the Minister that he was disregarding local interests and jobs by reason of an unproven risk to the environment. Unfortunately from the perspective of those local producers, that is just what the Minister was required to do as a matter of European law. As interpreted by the ECJ, a permission for activity in a protected area can only be given when there is an appropriate assessment. An appropriate assessment requires that, on a scientific assessment, risk be excluded. The Minister was required, therefore, as a matter of European law, to be concerned not with unproven risk but rather with proven absence of risk. Until a sufficient analysis had been carried out to justify a finding that absence of risk had been proved, the Minister was precluded, as a matter of European law, from giving any permission which would have allowed for the continuance of mussel farming in the harbour. Given that legal position, it is impossible to see how any party could have entertained a legitimate expectation that the Minister would permit unlawful activity.
10.13 On that basis, I am not satisfied that the actions of the Minister and his officials could be said to amount to the sort of representation or promise which can, even potentially, give rise to a legitimate expectation. It follows that it is unnecessary to reach any definitive view as to whether a pure claim for damages for breach of legitimate expectation can be maintained. In the High Court in Atlantic Marine Supplies Ltd & Anor v. Minister for Transport & Ors [2010] IEHC 104 I came to the view that such a claim could be made. I remain tentatively of that view, but like O’Donnell J. in Lett, I would prefer to leave it until a case in which the issue fairly and squarely arose and was decisive for the result to come to a definitive view on the issue. It might, for example, be the case that a proper review of the underlying principles and their application might lead to the conclusion that, while damages may be claimed in some cases, there may be circumstances where damages would not be appropriate for various reasons of policy. In that context, it might be necessary to consider whether the finite resources which may be available under a particular statutory scheme could, in substance, be required to be at least in material part diverted to those who might successfully bring a legitimate expectation claim where the overall effect of such a decision might be to require that those resources were allocated in a way other than in accordance with the statute concerned. If it is not possible, by legitimate expectation, to require that a particular decision be made in a particular way, for to do so might be to infringe on the proper exercise of a statutory decision-making role, then there may be cases where the award of damages may do much the same thing.
10.14 However, I would leave these issues to a case in which those questions squarely arose. For the purposes of this case, I am satisfied that there was no sufficient and clear representation or promise made to the effect that there would be no potential impact on commercial activity within the proposed areas and, therefore, the claim in legitimate expectation must fail. To that extent I would, therefore, allow that aspect of the Minister’s appeal. It follows that Cromane’s claim in damages must then be considered on the alternative basis proposed, being that of negligence. For the reasons already identified I am also satisfied that the claim concerned can only relate to losses attributable to the first year. Against that background, I now turn to the question of negligence.
11. Negligence
11.1 One of the curious features of the law of negligence is the extent to which it is, on the one hand, routinely and mundanely applied without any great controversy in a large number of cases on a daily basis but, on the other hand, has generated, at the level of high principle, perhaps more debate than any other issue of controversy in the common law world. The vast majority of negligence actions pass off without any direct reference to the law of negligence at all. This is, doubtless, because the routine application of the law of negligence to the sort of circumstances in which it is most commonly invoked is wholly uncontroversial, so much so that the parties and their advisors do not even need to discuss how it might be applied. The contentious motor accident case hardly ever turns on a debate concerning the parameters of the law of negligence except in unusual cases such as McComiskey v. McDermott [1974] I.R. 75 where this Court had to consider an injured navigator in a motor rally car and the extent of the duty of care owed by the driver of that car to his navigator. Ordinarily, contentious motor accident cases turn on the facts as to how the accident happened, the injuries actually suffered by the claimant and questions concerning the appropriate compensation for such injuries.
11.2 On the other hand, it would, in my view, be fair to characterise the legal debate concerning the proper scope of the law of negligence over the last century or so as being a search for a coherent scheme which also worked in practise. I remain unconvinced that the search has been successfully concluded. Why is it necessary, in the context of this case, to address these issues? The reason is that the claim of negligence in these proceedings is not one of those routine types of claim where the parameters of the law are so well established and well known that it need not be mentioned. Rather, this case requires an analysis of where the boundaries of the law of negligence lie in order to determine whether liability may arise. It is inevitable, therefore, that at least to some extent it is necessary to return to some of the issues which have been the subject of long-standing debate and which concern the scope of the law of negligence.
11.3 As a starting point, it might well be appropriate to attempt to analyse why this area has given rise to so much difficulty and so much debate in almost all common law jurisdictions. Can I suggest that perhaps part of the true underlying difficulty stems from the fact that we live in a highly interactive world where each of our fortunes are constantly affected, sometimes trivially, sometimes significantly, by decisions made or actions taken or avoided both by ourselves and by many others on a daily, or even hourly, basis? One of the lessons which the modern area of mathematics which has come to be known as “chaos theory” has taught is that in a highly interactive model very tiny variations at one point in time can make huge differences in conditions at another point in time and often in a far different place. The theory is often associated with the title of a talk given by one of the fathers of that area of mathematics, Edward Lorenz, at the 139th meeting of the American Association for the Advancement of Science in 1972 which appeared under the title “Does the flap of a Butterfly’s wings in Brazil set off a Tornado in Texas?”
11.4 I do not, for a moment, suggest that many (or perhaps any) lawyers have had chaos theory specifically in mind as they search for solution to the elusive question of a principled approach to the law of negligence. However, I do suggest that lawyers and judges have intuitively understood one of the underlying lessons which chaos theory has taught us. The messy world of human beings involves a hugely dynamic system in which we constantly interact with each other in ways great and small. In such a situation it is inevitable that many actions or inactions have a myriad of consequences, some trivial, some potentially significant. A set of traffic lights breaking down on a busy commuter route will inevitably cause some level of traffic chaos. For most, the consequence will be a small irritation and perhaps an apology to a (hopefully) understanding boss, co-worker or client. To some, the consequences may be more severe. A missed flight which had to be rebooked at significant expense. A missed interview and a lost opportunity to obtain a job. Anxiety and tension which might trigger illness or a row with colleagues or friends which might have lasting consequences. The list could go on and on.
11.5 While it might be an exercise in reverse engineering, it is appropriate to recall that the underlying principle of almost any area of redress in law is to attempt to put a party back into the position in which it was before any wrongful act occurred. But the range of potential consequences of a minor lapse can be so wide, so disparate, so disproportionate to the extent of the lapse and, as one moves away from direct to consequential or indirect knock-on effects, so difficult to analyse, it is hardly surprising that judges have been concerned to ensure that some limit has to be placed on the extent of legal liability for lack of care and, indeed, the scope of that duty of care itself.
11.6 However, the undoubted acknowledgement that there has to be some limit does not provide any easy answer to the question which has troubled the jurisprudence for many years, which is as to where that limit should be placed or, perhaps, even more fundamentally, by reference to what type of principle or overall approach should we assess where those limits are to be placed in particular types of cases.
11.7 Those broad questions arise in two ways in the circumstances of this case. The first is as to the general overall approach. The second is more particular and concerns the application of that overall approach in the particular context of the fact that the defendant in this case is a public authority. I will turn shortly to a consideration of each of those questions in order. However, the fact that the defendant in this case is a public authority leads to one further general observation.
11.8 I have already sought to identify why it might be said that the question of finding an appropriate means of imposing a limit on the scope of the law of negligence has proved problematic. However, there is, at least potentially, a second aspect of that general problem which comes into focus in the circumstances of this case. The general problem stems from the fact that the range of consequences of any individual act can potentially be so extensive that some limitation must be placed, however difficult it may be to define that limitation. The second issue is that there may be particular circumstances where there is an additional reason for not imposing potential liability, being that there are important countervailing factors of policy which lean against the creation of the prospect of liability in certain types of cases. The undesirability of causing disproportionate interference in the orderly operation of public (and indeed at least arguably certain important private) functions can be an important factor which must be taken into account. If judgements require to be made with a backward glance towards the risk of being sued for negligence then the judgement-making process may be impaired to the detriment of all. There is at least an argument that this may provide, in certain cases, a justification for excluding liability when it might otherwise arise. Against that very general background, I turn first to the question of the limits of the duty of care.
12. The Limits of the Duty of Care
12.1 It might be said that the first occasion on which there was an attempt to develop the general principle behind the disparate case law on the question of a duty of care was in Donoghue v. Stevenson [1932] AC 562. In Lord Atkin’s famous speech in that case he made the point, which I have already sought to address in this judgment, that in the practical world there cannot be given a right “to every person injured”… “to demand relief”. Lord Atkin then went on to establish the so-called neighbour principle by which he meant that a duty of care was owed to “persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question”.
12.2 The next major development can probably be said to have occurred in Anns v. Merton London Borough Council [1978] AC 728, which reaffirmed the proximity or neighbourhood principle but also added a second question which required the Court to consider whether there were any reasons which ought to negative or to limit the scope of the duty or the class of persons to whom it is owed or the damages to which a breach of it might give rise. While Anns was applied in this jurisdiction, Keane C.J., in Glencar expressed the view that it was not clear that there had been an unqualified endorsement of Anns. In Glencar, this Court considered the further development of the law in the United Kingdom which is found in Caparo Industries plc v. Dickman [1990] 2 AC 605. In that case, the two-step approach adopted in Anns, being proximity and an analysis of whether there were countervailing requirements, was replaced by at least three steps, being forseeability of damage, proximity, and the fairness, justice and reasonableness of imposing a duty of care. I will briefly return to the question of whether there may, in fact, be four steps. What Keane C.J. suggested in Glencar was that there is a further requirement that, in all the circumstances, “it is just and reasonable that the law should impose a duty of a given scope on the defendant for the benefit of the plaintiff”.
12.3 It might, however, be said that part of the problem encountered in attempting to identify a general principle has been that the principles have been expressed in such very general terms that it may be very difficult to identify, with any real level of precision, how those principles are to work in practice. It is easy to see that there may be a limit to the duty of care created by proximity or neighbourhood. It is said that it relates to those who one might reasonably have had in one’s contemplation. But just where that boundary might lie in practice can be hugely debateable. Likewise, it is easy to say that there should be a limit on a duty of care by reference to the requirement that it be “just and reasonable” that the duty be imposed. But where does it stop being just or reasonable in practice to impose the limit?
12.4 There has been, at least to some extent, what has been described by academic commentators as an incremental or gradualist approach to defining the boundaries of the duty of care by reference to the evolution of the existing circumstances in which a duty of care has been found to exist and by reference to its application by analogy to new circumstances.
12.5 It may well be that Keane C.J. in Glencar identified four matters that required to be considered, being forseeability, proximity, the presence of countervailing public policy considerations and the justice and reasonableness of imposing a duty of care. Be that as it may, it may not be necessary, for the purposes of this case, to attempt, yet again, to identify whether it is possible to identify any overarching principle for placing a boundary on the duty of care which does not run the risk of being open to criticisms such as creating a test which was “slippery” (see Stovin v. Wyse [1996] AC 923) or “will o’ the wisp” (see Caparo Industries v. Dickman [1990] 2 AC 605). But at least that debate forms the backdrop to what is the important issue which must be addressed in this case which concerns the extent to which public authorities may be held to owe a duty of care. Before turning to that specific question, it is appropriate to briefly deal with how the jurisprudence of the European Court of Human Rights (“ECHR”) has dealt with questions concerning the exclusion of state or public authority liability in the context of the common law duty of care.
13. The Convention on Human Rights
13.1 In this context, the first significant case which arose before the ECHR was Osman v. United Kingdom [1999] 1 FLR 193. However, the ECHR returned to the matter in Z v. United Kingdom (2002) 34 EHRR 3, in which the Court accepted that it may not have properly understood the relevant principles of the common law when giving judgment in Osman. The House of Lords, in the underlying proceedings which gave rise to Z, being X v. Bedfordshire County Council [1995] 2 AC 633, had struck out a negligence action against a local authority for failure to prevent abuse of children. It was held that an action of that type failed the ‘fair and reasonable’ requirement specified in Caparo. In Z, the ECHR accepted that the development of the law concerning the duty of care which stems from Caparo involved the application of what it described as the ‘fair, just and reasonable criterion’ as an intrinsic element of the duty of care. On that basis, the ECHR accepted that the law did not “disclose the operation of an immunity”. On that basis, the Court concluded:-
“In the present case, the Court is led to the conclusion that the inability of the applicants to sue the local authority flowed not from an immunity but from the applicable principles governing the substantive right of action in domestic law”.
13.2 It is, however, clear that the existence of an immunity rather than the possibility that, on proper analysis, a particular type of cause of action may fail because of the absence of the fair and reasonable test, might well have given rise to concerns as to compatibility with the European Convention on Human Rights. Those authorities seem to me to at least have the capacity to inform the proper approach to considering whether state or public authorities can properly be excluded from liability.
14. The Position of State or Public Authorities
14.1 It must be recalled that one of the more significant trends in many areas of law in relatively recent times has been an extension of the circumstances in which the State itself or its agencies or public bodies can be exposed to legitimate legal action. It is, of course, the case that very many actions taken by public authorities have a real and substantial effect either on the population generally or on particular sectors or sections who may be affected by relevant decision making. Almost any policy decision will have an effect, whether positive or negative, on some group of persons. However, as the authors of McMahon and Binchy, The Law of Torts, 4th Ed., (Dublin, 2013) point out at para. 6.78 “If a duty of care were too easily imposed on public authorities towards all of those affected by their acts, choices and omissions, in some instances the authorities would be hamstrung, unable to discharge their functions with any confidence or creativity.”
14.2 Precisely for that reason, courts have frequently found either that there was insufficient proximity between a public decision or action and a particular consequence or have held that there were sufficient countervailing factors which made it inappropriate to impose a duty of care on a public authority in particular circumstances.
14.3 However, in my view, courts should be careful not to be overprotective of public authorities. In one of the majority judgments in this case, MacMenamin J. makes a point similar to that identified by McMahon and Binchy in the paragraph from Law of Torts just cited. I do not disagree with the suggestion that courts, in defining the duty of care to be imposed on public authorities, need to exercise care to ensure that the proper exercise of public power in the public interest is not stifled. Likewise, I do not disagree that courts, in considering any possible expansion of the law concerning the duty of care, need to be cautious and adopt an incremental approach so as to minimise the risk of unintended consequences. However, it seems to me that those concerns can be addressed within the confines of the third criterion identified in Glencar. What leans against the imposition of a duty of care in certain cases involving public authorities is the countervailing factor derived from the fact that the actions of the public authority concerned may involve questions of policy, discretion or adjudication which are to be determined in the public interest and whose exercise in that manner should not be stifled.
14.4 However, it does not seem to me to follow that every act or omission of a public authority which takes place in the course of the exercise of public power can necessarily be properly characterised as involving the determination of policy, the exercise of a discretion or an adjudicative power. Within the overall context of the exercise of public power, certain actions are purely administrative. The consequences of extending a duty of care in respect of those purely administrative actions may well be far removed from the consequences of extending a duty of care to decisions involving policy, discretion or an adjudicative role. It follows that the weight to be attached, as a countervailing factor, against imposing a duty of care in respect of such purely administrative actions must be much less. It further follows that there must be cases where, therefore, appropriate scrutiny must lead to the view that there would not be a sufficient countervailing factor to justify excluding a duty of care, on a proportionate basis, in respect of such purely administrative acts.
14.5 Why, without good reason and the presence of an appropriate countervailing factor, should public authorities not be liable for the consequences of their actions in exactly the same way as anyone else? It may well be that, in practice, it will be a lot more likely that an appropriate countervailing factor will be found to be present in the actions of public authorities precisely because of the public nature of the functions to which those actions relate. But in the light of the need to guard against giving the State an immunity or, indeed, excessive protection, it seems to me that it is appropriate that a court carefully scrutinise any restriction sought to be imposed on the potential liability of a public authority to ensure that it is justified and proportionate in the light of the public interest sought to be protected. That is not to say that, after appropriate scrutiny, there may well be an entirely appropriate basis, stemming from the public nature of the activity concerned, which would justify treating a public authority differently from a private person. But the Court should scrutinise the circumstances of the case to satisfy itself that there truly are countervailing public interest factors sufficient to provide a legitimate basis for excluding a duty of care which might otherwise arise.
14.6 The fact that, as in Glencar, the public authority was carrying out a function designed for the public benefit (in that case the adoption of a development plan) may very well provide such a justification which would withstand scrutiny. Likewise, the position of adjudicative bodies which was considered in Beatty v. Rent Tribunal [2006] 2 IR 191, may provide an appropriate justification. Other examples could readily be given.
14.7 It must, in that context, be recognised that the sort of actions or functions frequently carried out by public bodies or officials may differ very significantly both in their nature and as to their effect from actions or functions carried out by private persons or bodies. It is inevitable, therefore, that whatever general approach is adopted for the purposes of defining the limits of the duty of care, the application of that general approach in practise is likely to differ as between public and private persons or bodies at least when public entities are carrying out functions which are peculiarly within the public domain.
14.8 I note this last qualification because, of course, sometimes a public official may simply be doing something which could just as easily be done in a private context. A statutory body charged with, for example, establishing a utilities network (such as electricity) could hardly expect to have a different standard or duty of care applied to it when constructing safe power lines than that which might apply to a private electrical contractor doing much the same thing. A public official who happens to drive a car in the course of their public duties could not (except in very unusual circumstances) expect to be assessed on any different basis to any other road user just because they happen to be driving about in the course of their official business.
14.9 But there are functions which public authorities carry out which have no easy parallel in the private sphere.
14.10 Returning to Glencar, it does not seem to me that the application of the principles of proximity and forseeability in a relatively even-handed way as and between public and private persons or bodies should, at least in the vast majority of cases, cause too much difficulty. Persons or bodies carrying out public functions should be entitled to the same, but no more, limitations on the duty of care applied to them deriving from the exclusion of liability in respect of consequences for a lack of care which might not be regarded as foreseeable or which might be regarded as excessively remote. Where those boundaries might lie in an individual case may, of course, be subject to legitimate, and sometimes difficult, debate. But those difficulties can arise just as much in the application of those principles in unusual situations arising in a purely private context.
14.11 It is in the context of the third criterion, being the question of the presence of a sufficient countervailing policy or public interest factor, that a legitimate distinction between the public and private spheres is most likely to arise. It is not that that principle may not apply in the context of a purely private relationship between plaintiff and defendant. It is just that the sort of countervailing policy or public interest factors whose proper application may lead to the exclusion of a duty of care may more commonly arise in the public sphere and may, therefore, lead more frequently, on their proper application, to an exclusion of liability in that sphere.
14.12 Finally, although it is unnecessary for the purposes of this case to reach any concluded view of the question, it is at least open to argument that the possible fourth criterion mentioned in Glencar (being that it must be just and equitable to impose liability) does not really add very much to the overall picture. If there is a situation of reasonable proximity between the parties and if the loss arising is foreseeable and if there are no countervailing policy factors which would warrant excluding liability, it must be asked whether there could often be a basis for saying that it would nonetheless be in accordance with justice and equity to decline to impose a duty of care.
14.13 I should also express my agreement, at least in general terms, with one of the observations made by Charleton J. in the course of his judgment in this case. There is, as Charleton J. points out, a risk that an excessive expansion of the law of negligence may come to, as it were, “swamp” other torts. It would make a nonsense of the carefully worked-out parameters of various other torts if a party were to find it easy to get around those parameters established in case law for the boundaries of the tort in question by simply bringing a claim in negligence. However, it seems to me that there is a solution to that problem. It must be assumed that there are legitimate policy factors which inform the parameters of all torts. The fact that the courts have defined the limits of the tort of misfeasance in public office in a particular way must be taken to stem from an analysis of the competing entitlements of those affected by the wrongful acts of public officials or bodies when exercising legal powers, on the one hand, and the need to ensure that such legal powers can be reasonably exercised for the public good, on the other. Torts such as misfeasance in public office have their boundaries and limitations precisely because, over the years, courts have come to the view that balancing factors, such as those which I have identified, require that liability be confined within the boundaries of the tort as thus defined. That analysis clearly gives rise to what might, in the context of the jurisprudence on the scope of the duty of care, be said to amount to a “countervailing factor”. If there is a good reason, in accordance with existing jurisprudence in respect of another tort, for limiting the scope of that tort in a particular way, then there would equally be likely to be a similar good reason or countervailing factor which would limit the duty of care in a similar way.
14.14 When analysed in that way, it does not seem to me to be likely that negligence could readily be used to get round the limitations which the law has carefully put in place in respect of other torts, for those very limitations themselves derive from an assessment of countervailing factors which would need to be taken into account in assessing the duty of care.
14.15 I should say in passing that I agree with MacMenamin J. that it is difficult to characterise with any precision the legal basis on which the plaintiffs succeeded in Duff v. Minister for Agriculture (No.2) [1997] 2 I.R. 22. It is true that the decision of this Court in that case has been the subject of academic commentary and discussion in subsequent cases which, it might be fairly surmised, suggest that the decision is something of an outlier. I agree that it cannot be taken to be an approval for the concept of operational negligence (a concept to which I will return in the course of this judgment).
14.16 This much can, however, be said. Duff is a case where liability was placed on a State authority (the Minister in that case) in circumstances where the Minister in question had, because of a mistaken view of the law, put himself in a position where he could no longer deal appropriately with the dairy farmers who had lost out on milk quota. The Minister had allocated Ireland’s national quota without making provision for those who had availed of other schemes put in place by the same Minister which had encouraged them to invest in dairy farming in a manner which led to significant loss when it proved impossible to allocate sufficient quota to them. The Minister’s difficulty did not concern a policy decision as to the allocation of the national milk quota as such, for it would have been very difficult to see how any liability could have been imposed for such a pure policy decision. Rather, the Minister’s liability stemmed from dealing with the national quota on the basis of a mistaken view of the law which put him in a position where he was no longer, as a matter of EU law, able to accommodate the plaintiffs. There are, at least, some parallels between the circumstances which underlay the claims in Duff and those which underlie the claim in this case. That being said, the undoubted difficulty with characterising the precise legal basis on which it can confidently be suggested that a majority of this Court found in favour of the plaintiffs leads me to the view, in common with MacMenamin J., that it is difficult to derive great assistance from Duff in resolving the undoubtedly difficult issues which arise in this case.
14.17 I would conclude this section by simply reiterating that a court should be careful, in applying the basic requirements of proximity, forseeability and absence of countervailing policy factors not to do so in a way which excludes liability on the part of state authorities in an unjustifiable and disproportionate way which operated on a materially more generous basis than that which would be applied in the private sphere.
15. Application of Principles
15.1 It is important to start by attempting to identify precisely what it is that it might be said that the Minister did wrong. I have already set out the reasons why the Minister was obliged, as a matter of European law, not to permit the continuance of Cromane’s activities until there had been an appropriate assessment which justified giving any necessary permission. Therefore, there could not have been a duty, as such, to refrain from closing the harbour until an appropriate assessment had been carried out. The Minister had no legal power, as a matter of European law, to open the harbour in the circumstances which had arisen. To the extent that the harbour could be opened, it was only permissible in accordance with the interim measures agreed with the European Commission. Any wider permission given by the Minister either to Cromane, or, indeed, anyone else, would have been a breach of European law.
15.2 It is for that reason that I do not consider that the issue raised by both MacMenamin and Charleton JJ. in their judgments in this case concerning the question of whether it is permissible to seek, as it were, to go behind the relevant statutory instruments without first considering whether they can be quashed, properly arises. In the circumstances which had arisen by 2008 to 2010 there could have been no legitimate basis for quashing those statutory instruments, for the Minister was obliged, as a matter of European law, to take the position which he did. In passing, I should note that if I had considered the issue of the continuing validity of the statutory instruments to be relevant, it would have been necessary to have regard to cases both from this jurisdiction (such as the judgment of Henchy J. in Burke v. Minister for Labour [1979] I.R. 354) and the United Kingdom (see the judgment of Lord Sumption in Bank Mallat v. H.M. Treasury (No. 2) [2014] AC 700) which undoubtedly seek to distinguish between secondary legislation of general application and measures which, although secondary legislation in form, amount in substance to an individual decision relating to permissions and the like. While the issues which required to be determined in those cases differ materially from the issue which might have arisen in this case, and while, therefore, those cases are undoubtedly not directly on point, nonetheless the fact that courts have consistently regarded individual decisions which are taken in the form of a statutory instrument in a different light from secondary legislation of general application might well have affected the proper analysis of the approach to the statutory instruments in this case had I considered that such an analysis required to be conducted for a proper resolution of the case.
15.3 In those circumstances, it seems to me that the real question is as to whether the Minister might be said to have owed a duty of care which required him to ensure that an appropriate assessment was carried out at an earlier stage. There are a number of issues which might arise in relation to such a contention, not least the question of whether loss might have occurred in any event but only in a different year. It will be necessary to return to some of those questions in due course. But for present purposes, in attempting to identify whether there is a duty of care at all, I will assume that any such problems might be overcome. The question which arises in relation to the duty of care is as to whether it can be said that the Minister owed a duty of care to put himself into a position where it would be possible, as a result of the assembling of sufficient necessary data, for him to carry out an appropriate assessment so as to consider whether it would be lawful to permit the continuance of Cromane’s activities and to do so at a time which would, had the relevant assessment led to the appropriate conclusion, have allowed those activities to continue uninterrupted. We know, of course, why the Minister did not procure the carrying out of the necessary scientific work. The Minister had a mistaken view of the law under which it was felt that it was permissible to allow traditional activities to continue. On that basis, the necessary underlying scientific work which would have allowed for an appropriate assessment had not been carried out. However, we know that, when an appropriate assessment was ultimately carried out, it did prove possible to meet the standard required and to permit a recommencement of Cromane’s activities. It seems clear, therefore, as a fact, that had an appropriate assessment been carried out at a much earlier stage, permission could and would have been given for the continuance of the relevant activities.
15.4 The real question on the duty of care, therefore, comes down to this. In the light of developments in European law, did the Minister owe a duty of care to those who, to his knowledge (and up to then with his permission), were carrying out activities in protected areas, to ensure that he had appropriate survey(s) and other scientific evidence available to enable a decision to be made for the purposes of considering whether to permit the continuance of traditional activities and, should appropriate evidence be found to be present, to allow those activities to be authorised?
15.5 Put in that way, the potential duty of care certainly meets the test of forseeability. It was clearly foreseeable that the absence of sufficient scientific information would not allow an appropriate assessment to be carried out and that there would be likely to be a consequential interruption in the ability of those engaged in traditional activities to continue with their business. Also those persons are a relatively finite group. They are those who were engaged in such activities, in the various areas in the country which were to, or were likely to, have special protected status conferred on them. Furthermore, as pointed out elsewhere in this judgment, some comfort had been given to those carrying out such activities. They were, therefore, reasonably in the Minister’s contemplation. In my view the proximity test is, therefore, likewise met.
15.6 For the reasons which I have already sought to analyse, it seems to me that the proper way to approach the question as to whether a public authority, such as the Minister, may then have a duty of care imposed is to first consider whether a duty of care would be imposed on a private individual in an analogous circumstance and then to consider whether there is any sufficient countervailing factor which could provide a proportionate basis for not imposing a like duty on a public authority.
15.7 It is important to emphasise that the question which is now being addressed is as to whether a duty of care, in the narrow sense in which I have sought to define it earlier in this judgment, can properly be said to arise in the circumstances of this case. The question is not, as it was in Glencar, as to whether a public authority owes a duty of care in relation to implementing a public duty such as the formulation of a development plan in (as was the case in Glencar) or in making an actual decision on whether, as a result of an appropriate assessment, it is permissible to allow activity in a protected area, such as might have arisen in other circumstances connected with this case. Rather, the question is whether a duty of care exists to ensure that the Minister is put in a position to make a proper legal decision in the first place.
15.8 The underlying facts, as found by the trial judge, are these. First, the Minister was well aware, through his officials, that there were traditional activities of a commercial variety being carried on by various operators including Cromane. Second, the Minister was clearly aware, in the light of the indication given that it was not envisaged that those traditional activities would be affected by designation, that there was a potential issue which might arise concerning whether the business and property interests of those carrying on such traditional activities might be interfered with. The Minister was, therefore, fully aware that any failure to place himself in a position to make a sustainable decision, one way or the other, on whether to allow such activities to continue had the potential to have a significant effect on those carrying on such activities. In my view a private party, placed in as analogous a position as it might be possible to envisage, would undoubtedly have a duty of care to those who were likely to be foreseeably and proximately affected by their activities. They are persons who ought reasonably to have been in contemplation.
15.9 It is also of particular importance to recall that the issue which was ultimately determined by the ECJ in Commission v. Ireland had been brewing for some time. Doubtless the Minister took advice on the matter and doubtless there were arguments both ways as to whether the position adopted by the Commission, on the one hand, and Ireland, on the other, were correct as a matter of European law. However, it must or should at least have been clear to the Minister for some significant period of time prior to the decision of the ECJ that there was a risk that the view expressed by the Commission would be found to be correct and that, if that should prove to be the case, an immediate problem would be posed arising from the absence of any sufficient scientific analysis to enable permissions to be granted. It follows that, at least from the time when the prospect of proceedings against Ireland being taken by the Commission were first mooted, it was clearly foreseeable that, in the event that the Commission were proved to be right, a small and defined group of operators (being those who were carrying out traditional activities in protected areas) would suffer losses by temporary closure even if it should ultimately prove possible, after an appropriate assessment, to permit the recommencement of those traditional activities.
15.10 I do not consider that the fact that there may be a number of persons in a particular category necessarily affects the application of the proximity test. The pedestrians who may be said to be within the proximate and foreseeable duty of care of a motorist driving down a busy city street may be quite numerous. But they are clearly defined. They are the people whom one might reasonably expect could be injured in the event that the motorist drives negligently. Likewise, the people who might suffer from a failure on the part of the Minister to put himself in a position to make a sustainable decision on whether traditional activities could, as a matter of European law, continue, were equally clearly defined and were, as it happened, at least to a very large extent, actually known to the Minister or officials in his department.
15.11 To say, therefore, that the forseeability and proximity tests are not met in the circumstances of this case would, in my view, be to afford the State a degree of immunity or exclusion which would not be afforded in a comparable private situation. For the reasons which I have already sought to analyse I would, therefore, regard such an approach as inappropriate and would find that the forseeability and proximity tests are met on the facts of this case.
15.12 It is next necessary to consider whether there is any good reason why the fact that a public authority was concerned should lead to finding that there is a countervailing policy factor of sufficient weight to justify the exclusion of a duty of care. It is important to note that the duty of care which I have characterised does not involve any policy or discretionary considerations or adjudicative roles. It is not concerned with the allocation of resources or the making of statutory decisions. Rather, it is a duty to take reasonable steps to ensure that the Minister would be in a proper position to make a decision under European law and any relevant Irish measures.
15.13 In the light of that analysis, I should turn first to a general observation about some of the criticism which MacMenamin J. directs towards the judgment of the trial judge. I do not necessarily disagree with much of that criticism. There may well have been a lack of clarity as to the precise duty of care or negligence which led the trial judge to find in favour of Cromane. There may, to an extent, have been occasions where concepts more appropriate to legitimate expectation claims strayed into an analysis of the claim in negligence. I should not, therefore, be taken as being in full agreement with the reasoning of the trial judge as to the manner in which he found that there was a duty of care and that it had been breached. This judgment is, however, concerned with identifying whether it is appropriate to impose the rather specific duty of care which I have sought to identify. That duty of care did not extend over any prolonged timeframe for it commenced when the Commission formally took the position that Ireland was in breach of its obligations under European environmental law. The comments of MacMenamin J. concerning the lengthy time span over which it would be necessary to review the acts of the Minister and, indeed, the fear of hindsight creeping in to a post hoc analysis of the actions of the Minister seem to me to have little application in assessing a duty of care of the precise type which I have identified.
15.14 As a preliminary to the commencement of proceedings against Ireland, the Commission was, of course, required to furnish a reasoned opinion as to why it was said that Ireland was in breach of its obligations. As appears from the judgment of the ECJ, there was a range of issues raised by the Commission concerning Ireland’s compliance with the directives in question. There was, as is usual practice, correspondence which predated the reasoned opinion. Given the range of issues, a number of reasoned opinions were, in fact, sent by the Commission to Ireland with the latest of same being dated the 11th July, 2003. From that time onwards it must at least have been clear to the Minister that the Commission had not been persuaded by Ireland’s arguments and was of the view that Ireland was in breach of a range of obligations including the one concerning appropriate assessment which is at the heart of this case.
15.15 The Commission is not, of course, always right in such matters. Any Member State who disagrees is free to argue their case before the Court of Justice. But a reasoned opinion from the Commission is not in the same category as speculation or even an allegation by a private individual. It represents the considered view of the body which, under the Union treaties, is charged, amongst other things, with ensuring that Union law is properly transposed and implemented in Member States. The duty of care which I suggest requires to be analysed is, therefore, one which arises in a specific timeframe and operates against the backdrop of a formal contention on the part of the Commission that an appropriate assessment (requiring, necessarily, appropriate scientific data) would be required to allow for the continuance of traditional activities.
15.16 On the same topic, I should also add that I do not necessarily disagree with MacMenamin J. that a specific duty of care might not be said to have arisen in relation to the actions of the Minister in the period after the judgment of the ECJ in Commission v. Ireland. Clearly, in the situation which had by then arisen, Ireland was on the back foot and it was, doubtless, necessary to make many decisions concerning the allocation of resources necessary to allow an appropriate assessment to be carried out. However, given that I have, for reasons already advanced in this judgment, taken the view that Cromane’s claim in respect of the 2010 season cannot be sustained in any event, it does not seem to me that questions about the actions taken by the Minister between 2008 and 2010 arise at all and, therefore, the question of whether the Minister might have owed a duty of care during that period does not seem to me to be relevant.
15.17 That leads to a consideration of what, in my view, is the central issue concerning liability for negligence in this case, which is an issue on which I must, respectfully, disagree with the majority. I should emphasise that, for reasons which I will set out, I do not think it is either necessary or appropriate for this Court in these proceedings to determine whether the concept of operational negligence which has developed in the United Kingdom and has been applied in some circumstances in other common law countries forms part of the law of Ireland. However, it is necessary to at least commence any proper analysis by a consideration of that concept.
15.18 A distinction in the law of the United Kingdom between operational negligence (for which the State may be liable) and decisions made by the State involving policy matters (for which liability may not be imposed) was initially developed in the House of Lords in Dorset Yacht Co Ltd v. Home Office [1970] AC 1004 and Anns v. Merton LBC [1978] AC 728, in the latter of which cases Lord Wilberforce sought to distinguish between policy and operational decisions. Later, in Rowling v. Takaro Properties Ltd. [1988] AC 473, Lord Keith, considering the justiciability of policy decisions, stated that policy decisions were “unsuitable for judicial resolution, of which notable examples are discretionary decisions on the allocation of scarce resources or the distribution of risks.”
15.19 However, the leading authority on the circumstances in which the discretionary nature of public decision-making may preclude the existence of a duty of care is the decision of the House of Lords in X (Minors) v. Bedfordshire CC [1995] 2 AC 633. In Bedfordshire, Lord Browne-Wilkinson stated that the first consideration must be “is the negligence relied upon negligence in the exercise of a statutory discretion involving policy considerations: if so the claim will pro tanto fail as being non-justiciable.” A second question set out by Lord Browne-Wilkinson in this context was “were the acts alleged to give rise to the cause of action within the ambit of the discretion conferred on the local authority?” In order so to determine, a court would have to consider whether the decision was “so unreasonable that no reasonable authority could have made it.” However, this latter aspect of the test has been criticised for purporting to introduce a reasonableness test in relation to whether a duty was owed, rather than forming part of a consideration of any applicable standard of care. The authors of Clerk and Lindsell on Torts (21st Ed., 2014), at para. 14-08, suggest that it is arguable that the test did not form part of the ratio in Bedfordshire at all since, as was pointed out by Lord Hutton in Barrett v. Enfield LBC [2001] 2 AC 550, the claims in Bedfordshire were ultimately struck out on grounds of justice and reasonableness and not ambit of discretion, and therefore Lord Browne-Wilkinson’s speech did not preclude a ruling that a duty could be owed even if the decisions were within the ambit of discretion.
15.20 Further differences emerged in Phelps v. Hillingdon LBC [2001] 2 AC 619 where Lord Slynn stated that the fact that the acts in question were “carried out within the ambit of a statutory discretion is not in itself a reason why it should be held that no claim in negligence can be brought.”
15.21 In the more recent case of Connor v. Surrey County Council [2011] QB 429, Laws L.J., on reviewing the authorities, summarised the relevant principles as follows at para. 103:
“(1) Where it is sought to impugn, as the cause of the injury, a pure choice of policy under a statute which provides for such a choice to be made, the court will not ascribe a duty of care to the policy-maker. So much is owed to the authority of Parliament and in that sense to the rule of law. (2) If a decision, albeit a choice of policy, is so unreasonable that it cannot be said to have been taken under the statute, it will (for the purpose of the law of negligence) lose the protection of the statute. While this must, I think, point to the same kind of case as does the Wednesbury rule [1948] 1 KB 223 (since only a Wednesbury perverse decision will be out with the statute), Wednesbury is not made a touchstone of liability for negligence in such cases: the immunity arising in (1) is lost, but the claimant must still show a self-standing case for the imposition of a duty of care along Caparo lines and he may be unable to do so. (3) There will be a mix of cases involving policy and practice, or operations, where the court’s conclusion as to duty of care will be sensitive to the particular facts:
‘the greater the element of policy involved, the wider the area of discretion accorded, the more likely it is that the matter is not justiciable so that no action in negligence can be brought’: per Lord Slynn, in Barrett’s case [2001] 2 AC 550 , 571.”
15.22 It is clear that the trial judge in this case was satisfied to apply the concept of operational negligence and was also satisfied that it had been established that operational negligence occurred. It is also clear that while, as noted above, the concept has been accepted to an extent in the United Kingdom, it has been the subject of some academic commentary (not all favourable) and criticism from the courts of other common law jurisdictions. Part of that criticism stems from the fact that many decisions may, in reality, involve a mixture of policy questions and operational matters.
15.23 The authors of Charlesworth and Percy on Negligence, 13th ed., (London, 2014) at para. 2-307 described the commentary and criticism in the following terms:-
“A distinction between policy matters and operational matters was initially developed in the House of Lords, and was then taken up in Canada, New Zealand, and (to a limited extent) Australia. But doubts also were expressed, with the distinction being described as ‘difficult’ and ‘unhelpful’. The core objection, articulated in the US Supreme Court in US v Gaubert [111 S Ct 1267 (1991)], is that discretionary acts involving choice or judgment are not concerned exclusively with policy-making or planning functions, and that day-to-day decisions regularly require judgment as to which of a permissible range of courses is the wisest. As was pointed out by Lord Hoffman in Stovin v Wise, virtually any activity by a public body involves making decisions about priorities and resources. The policy/operational distinction did not provide a reliable guide as to where a dividing line ought to be drawn.”
The description of the doctrine as “difficult” or “unhelpful” come from the Australian decisions in Pyrenees Shire Council v. Day (1998) 192 C.L.R. 330 and Romeo v Conservation Commission of the Northern Territory (1998) 192 C.L.R. 431.
15.24 However, it does not seem to me to be necessary, for the purposes of this case, to enter into a detailed consideration of the applicability or otherwise of the law on operational negligence in this jurisdiction and, indeed, if it be applicable, what its boundaries are. It seems to me that the question which arises can properly be addressed within the confines of the “countervailing policy factor” aspect of the test identified by this Court in Glencar. As noted earlier, that factor may, in practise, be more likely to exclude a duty of care in cases involving the State. That factor will be particularly present where the action that is being taken by the State or its agencies or officers involves policy, discretion or adjudication to a significant and material extent. The reason for that is obvious. It is inevitable that policy choices involve benefits (or at least less harm) for some, and harm (or at least less benefit) for others. The consequences of making a particular choice may well be foreseeable. The persons who may benefit or lose may be readily identifiable. But the making of policy choices and their implementation are at the very heart of democratic government. To limit the proper working of the democratic process in making those policy choices by imposing a duty of care would endanger proper policy making and would, in all likelihood, prove almost impossible to operate in practise. Those who suffer as a result of a policy choice would doubtless always complain that it was made without sufficient care or regard for their interests. But by what standard of care is the judgment which led to the relevant policy choice being adopted to be assessed? There are, therefore, very sound reasons why courts would strongly lean in favour of excluding a duty of care under the “countervailing policy” leg of the test identified in Glencar where, to any significant extent, a relevant public decision or action can be said to be materially influenced by policy or discretionary considerations.
15.25 Likewise, the nature of other public roles, such as adjudication on legal obligations or benefits, may provide a basis for identifying a sufficient countervailing factor which may lean against the imposition of a duty of care. Those who are charged with adjudicating must, in the public interest, be free to carry out their task without having to keep a close eye on a possible claim in negligence, for to do otherwise would undoubtedly impermissibly skew the adjudication process.
15.26 But there are some public decisions or actions which do not involve any significant policy, discretion or adjudication element at all. This may be so even though the scheme or statutory structure within which the particular activity takes place may itself involve questions of policy. A very good recent example can be found in the decision of this Court (Laffoy J.) in Minister for Communications, Marine and Natural Resources v. Figary Water Sports Development Company Ltd. [2015] IESC 74. One aspect of that case involved a claim that the State was liable for the way in which it had administered a claim for a grant. Obviously there might well have been many questions of policy involved in a decision as to whether to grant aid in the circumstances of the case. The scheme involved did not confer an absolute entitlement to aid in any particular circumstances. However, the relevant agency failed to progress the claim in a proper manner such that the plaintiff lost out on any chance of securing grant aid. Laffoy J., writing for this Court, held that the State was, in those circumstances, liable for the loss of chance even though the Court significantly differed from the view taken by the High Court as to the proper approach to the calculation of damages.
15.27 The lack of care on the part of the State identified in Figary did not involve any material question of policy. It simply related to the administration of a scheme even though the scheme itself was, of course, heavily influenced by policy. Figary is, in my view, an example of the fact that the countervailing policy limb of the Glencar test will be much less likely to avail the State as a defence where the lack of care alleged does not involve, to a material extent, questions of policy and discretion or, indeed, as in Beatty, questions of adjudication.
15.28 If it was said that the Minister, in the circumstances of this case, had, by reason of a lack of care, come to a wrong decision concerning the actual grant of a licence or permission then very different considerations might well apply.
15.29 However, the duty of care asserted in this case is one which is confined to a matter which lies well to the implementation or administrative rather than policy or discretion end of the spectrum. It is said that due to a mistake of law on the part of the Minister (even after what transpired to be the correct view of the law was formally identified to the Minister by the European Commission), no steps were taken to ensure that scientific and other information and data was available to enable an appropriate assessment to be carried out. This is not an issue which is even a mixed question of administration and policy. If, for example, the Minister had put in place measures to acquire some level of scientific information but it had been found by the courts, whether in this jurisdiction or in Europe, that the Minister was mistaken as to the level of information which was necessary to make an appropriate assessment, then there might be questions as to whether a duty of care extended to the decision as to the precise type of information to be collated.
15.30 Likewise, if the Minister had to make a policy decision as to how to allocate resources and thus prioritised the collection of scientific information and data in some areas over others, it might be appropriate to characterise such a determination by the Minister as being towards the policy end of the spectrum. I accept that the boundary between purely administrative matters and matters which may amount to a mixed question of policy or discretion and implementation or administration may not always be very easy to define. But in this case I am satisfied that the allegation of negligence falls squarely on the administrative side of that boundary. There was no question of policy which impacted on the Minister’s decision. The Minister simply got it wrong in taking the view that traditional activities could be authorised to continue without an appropriate assessment.
15.31 In particular, the Minister got it wrong by failing to put in place measures to secure the appropriate scientific data to enable an appropriate assessment to be carried out long after it had become clear, by reason of the position adopted by the Commission, that there was, to put it at its mildest, a significant doubt as to whether the Minister’s position was correct.
15.32 The failure of the Minister was in omitting to take any steps towards assembling the necessary scientific data to allow an appropriate assessment to be carried out at least after his position had been significantly questioned by the Commission. A similar failure by a private individual in an analogous situation would, in my view, be likely to lead to the Court imposing a duty of care and finding that private individual negligent in failing to comply with the duty of care in question. I can see no sufficient countervailing factor to suggest that a state or public authority, in the circumstances of this case, should be any the less liable.
15.33 On that basis, I cannot agree with the conclusions of the majority. MacMenamin J. speaks of the balancing exercise which the Minister felt called upon to perform. On that basis it is suggested that the fallacy in Cromane’s case is to seek to isolate a private duty from the over-arching public or State duty which the Minister owed. However, it seems to me that the duty of care which I suggest should be held to lie on the Minister does not derive from any balancing exercise at all and does not involve any aspect of the undoubted over-arching public duty which the Minister was obliged to perform. Against what can it be said that the Minister was balancing when he decided not to assemble the necessary scientific information and data (despite the Commission’s reasoned opinion) prior to the decision of the ECJ? What over-arching public duty would have been in any way impaired by the collection of such data? There is no evidence to suggest that the failure to assemble the necessary data was based on any decision involving policy, discretion or adjudication.
15.34 Because, for the reasons already identified, I do not think it is either necessary or desirable in the context of this case to come to a concluded view as to whether operational negligence, in the sense in which that concept has developed in the courts of the United Kingdom, forms part of the law of tort in this jurisdiction, I will not use that term. However, it seems to me that it is possible for a state authority to be liable in respect of the tort of negligence when, in respect of a purely administrative part of its function not involving, to any material extent, questions of policy, discretion or the like, it is in breach of a duty of care in accordance with Glencar principles to a person to whom that duty is owed. Where such negligence is alleged, the important countervailing factor which often operates to the exclusion of a duty of care in cases involving policy, discretion or adjudication will be missing, and will provide no sufficient and proportionate justification for the exclusion of a liability which might otherwise be said to arise in the event that the tests of forseeability and proximity were met.
15.35 For the reasons already advanced, I do not consider that the failure of the Minister to collect the appropriate data in this case involved any question of policy, discretion or adjudication. Subject to one final factor to which I will shortly turn, it seems to me to follow that it is appropriate to impose a duty of care on the Minister such as that which I have sought to identify and to find that the Minister was in breach of that duty of care even though my reasons for coming to that conclusion may differ somewhat from those of the trial judge. Before touching on that final factor, I should briefly comment on the views expressed by MacMenamin J. concerning the applicability of constitutional issues to the analysis in this case.
15.36 The concern which MacMenamin J. expresses is that the creation or recognition of a species of negligence in the form of operational negligence might trench on the constitutional role of the executive. There may well be issues which could arise under that heading in the event that the courts in this jurisdiction were to consider a concept of operational negligence which closely modelled itself on the United Kingdom jurisprudence. However, the form of administrative negligence which I have sought to identify is precisely defined by reference to situations where there is no material or significant element of policy, discretion or adjudication. In those circumstances, it does not seem to me that the constitutional concerns expressed by MacMenamin J. affect the conclusions which I have reached.
15.37 One final factor needs to be assessed. It is, of course, the case that the Minister was under no absolute obligation to grant any particular licences or permissions. In such a case there will almost always be significant questions of policy involved in the decision of whether to grant or refuse. In many such cases, a duty of care will not arise precisely because of the third limb of the Glencar test. However, the situation which arises in this case is different. First, these were traditional activities which provided many of those concerned with their livelihoods. The Minister had at least gone so far as to provide some comfort to those involved in such traditional activities to the effect that it was not envisaged that those activities would be impaired by the creation of protected areas for the purposes of EU environmental law. While that comfort cannot, for the reasons already identified, give rise to a legitimate expectation, it does, in my view, give rise to at least a duty on the part of the Minister to put in place any reasonable measures necessary to enable the Minister properly to consider whether it was appropriate to grant any particular licence or permission. In circumstances where significant doubt had arisen, as a result of the position adopted by the Commission, as to whether the Minister could continue to grant licences or permissions in the absence of having sufficient scientific data to carry out an appropriate assessment for the purposes of EU environmental legislation, it seems to me that the Minister owed a duty of care to put in place measures to ensure that an appropriate assessment could be carried out. It is that failure which it seems to me has been established in this case.
15.38 While the duty of care which I have identified as having been breached may differ slightly from the duty of care identified by the trial judge, I am not satisfied that there is any material difference in substance. At para. 15.7 of his judgment, Hanna J. identified the question as being as to “whether a duty of care exists to ensure that the Minister is put in a position to make a proper legal decision in the first place”. Likewise, the case made by Cromane both in its amended statement of claim and in its written submissions before the High Court suggested that the appropriate studies “should have been available well before this period of time, and it was as a result of the failure of the Minister to have this relevant information that he was so poorly equipped to reopen the Cromane Harbour [sic] for mussel fishing any sooner than he did…” (see para. 8 of the submissions). I am, therefore satisfied that the duty of care which I have found to be breached comes within the scope of the case made by Cromane in the High Court and, indeed, the findings of the trial judge.
15.39 I would, therefore, uphold the decision of the trial judge that there was a duty of care on the Minister in the narrow circumstances in which I have defined it in the course of this judgment and that there was a breach of that duty of care. Before going on to the question of the calculation of damages there are two further points which arise. The first concerns the argument that the loss would have arisen anyway, and the second concerns the distinct legal personalities of Cromane and O’Sullivan McCarthy respectively. I now turn to those issues.
16. Would the Loss have occurred anyway?
16.1 The argument under this heading is to the effect that it was likely that some period would have been lost in any event in the light of the developments in European law which were to the effect that an appropriate assessment had to be carried out in order for traditional activities to continue in protected areas. For the reasons already analysed there is no doubt but that, as a matter of European law, traditional activities could not have been continued without an appropriate assessment. The real issue of causation which arises, therefore, is as to whether there is any causal link between the Minister’s breach of duty of care and loss. The reason why it might be said that there is no such causal link is because it might be argued that, once European law changed, an appropriate assessment would have to have occurred at some stage. On that basis it might be said that it followed that the necessary scientific inquiry would have to have been made in order for an appropriate assessment to have been carried out. It might further be argued that, during the course of assembling the necessary data, there would inevitably have been a period during which lawful production would not have been possible in the harbour. On that basis it might finally be argued that the only consequence caused by the Minister’s breach of duty of care might be said to have been that the harbour was closed in 2008 rather than some earlier year (for the reasons already addressed I am not satisfied that the question of closure in 2010 can really be sustained).
16.2 However, on the basis of the findings of the trial judge, which findings were supported by evidence, it seems clear that, had the Minister arranged for the collection of the appropriate scientific data at least as early as the time when the Commission challenged the Minister’s view as to whether traditional activities could be continued without an appropriate assessment, the assessment required as a matter of EU law could have been completed within a timeframe which would not have led to any cessation of business. Given the events which have happened, we know that it proved possible lawfully to permit the relevant activities to continue once the appropriate assessment had been carried out. It follows that there is no reason to believe that, had the appropriate assessment been carried out in a timely fashion, a similar decision would not then also have been made thus leading to no cessation of business. It follows that there is a direct causal link between the failure of the Minister to assemble the necessary scientific data and carry out an appropriate assessment at least soon as the Commission’s position became clear and the inability of O’Sullivan McCarthy to carry on their activities at least during the 2008 season.
17. The Position of Cromane
17.1 The argument here suggests that Cromane was not directly affected by the negligence of the Minister. In that sense, a distinction is made between the positions of O’Sullivan McCarthy, who are the party directly affected by the Minister’s actions, and that of Cromane, who are only indirectly affected by reason of being downstream purchasers from O’Sullivan McCarthy. It is, of course, the case that there are close connections between the two companies involving common shareholders and directors. They also have a very close business relationship. But they are separate legal entities.
17.2 The argument put forward on behalf of the State suggests that there is no reason in principle to distinguish between Cromane, as a downstream purchaser from O’Sullivan McCarthy, and any other wholesaler, transporter or retailer who might have been involved in the overall business which operated downstream to the mussel harvesting business of O’Sullivan McCarthy. If, for example, there were a local supermarket which could establish that it suffered loss because it had to purchase supplies on a less commercially attractive basis because of the effect on O’Sullivan McCarthy’s mussel harvesting business, why should such a commercial entity not be regarded in the same light as Cromane?
17.3 In my view, that argument is well made. Persons choose to conduct their business as individuals or corporate entities for a whole range of reasons. When choosing to conduct business as a corporate entity, persons may choose to operate as a single company, or a number of companies which form part of a formal group or, as here, by entirely separate legal entities. There is a whole range of legal and fiscal consequences for those decisions. Sometimes they may happen to benefit parties. Sometimes they may not. But they are decisions made by those involved in the economic activity themselves. They must live with the consequences, both good and bad.
17.4 It does not seem to me that the fact that an entirely separate company with an entirely separate legal personality happens to have common directors and shareholders takes away from the fact that Cromane, as a downstream purchaser from O’Sullivan McCarthy, cannot be said to be in any different position, as a matter of principle and as a matter of law, from any other downstream purchaser. Such downstream knock-on effects do not, in my judgment, meet the proximity test identified as far back as Donoghue v. Stephenson and reiterated in Glencar. In my view, the trial judge was incorrect to allow the claim attributable to Cromane.
18. Damages
18.1 The first point to be made is that the scope of damages is, of course, significantly limited by reason of the limitations on liability which have already been analysed in this judgment. The trial judge distinguished between the damages attributable to Cromane, on the one hand, and O’Sullivan McCarthy on the other hand. On that basis, there would be no difficulty in removing from the equation those damages attributable to Cromane on the basis of my view that the State does not have any liability to Cromane itself.
18.2 However, even so far as O’Sullivan McCarthy is concerned, it is clear that the damages now must exclude those losses said to be attributable to the 2010 season, again for the reasons already indentified in this judgment. But apart altogether from that, the State made further arguments concerning the calculation of the damages which the trial judge awarded to O’Sullivan McCarthy. The State was critical of the acceptance by the trial judge of the evidence of the plaintiff’s expert, Mr. Wynne, on a number of bases. First, it is said that Mr. Wynne based his figures on revenue in the three years prior to the year of assessment which, it was argued, removed the undoubted variation in price during those years from the equation. There was evidence that the market price was not stable during that period and that it had decreased from €1,518 per tonne in 2006 to €698 per tonne in 2010. On the other hand, Cromane drew attention to the fact that the price for 2008 (which is, after all, the only year in respect of which damages are now to be calculated) was somewhat higher than average.
18.3 The State also drew attention to the fact that the accounts for 2010 (which would reflect mussel seed obtained in 2008 and harvested in 2010) showed no sales of mussels in the year in question. However, those accounts show expenditure of €68,027 on mussel seed purchases in 2008. This, according to the State, is a matter of “serious concern” for two reasons. First, the State suggests that the trial judge did not rule on this matter which it is said was a “significant issue in controversy relating to the quantification of damage.” Second, the State suggests that the explanations given by the expert, Mr. Wynne, and Mr. O’Sullivan of O’Sullivan McCarthy differed in regard to the purpose of that expenditure. For example, it is said that Mr. Wynne appears to have attributed the 2008 expenditure to the purchase of mussel seed from local fisherman. In contrast to that evidence, Mr. O’Sullivan attributed €13,000 of the expenditure to the purchase of mussel seed while the explanation for the balance of the expenditure, which the State described as “incomprehensible”, involved a complex barter system involving an exchange of grown mussels for work done by other fishermen who, it is said, did not appear as employees or service providers to either Cromane or O’Sullivan McCarthy in the accounts furnished to the Court. The State argued, in their submissions, that Mr. Wynne and Mr. O’Sullivan gave “starkly different explanations for the expenditure.” Further points, which it is not necessary to go into in detail about at this stage, were also made.
18.4 It is also necessary at this point to mention the fact that Cromane also cross-appealed on the basis that the damages awarded by the trial judge were ultimately inconsistent with the specific findings which the trial judge made deriving from the evidence presented in relation to those damages.
18.5 Without reaching a definitive view in respect of each of the points raised, I am satisfied that the difficulty with the evidence and figures would make it impossible for this Court to put itself in a position where it could conduct a fair and just calculation of the damages properly attributable to O’Sullivan McCarthy arising out of the closure of the harbour in 2008. To attempt that exercise would involve the Court in excessive speculation which might end up being unfair to one or other party. In the circumstances, it seems to me that the proper course of action to adopt would be to remit the question of damages back to the High Court but, in so doing, to direct that the damages to be assessed must be confined to those arising out of the closure of the harbour in 2008 and must be confined to losses suffered by O’Sullivan McCarthy.
18.6 On that basis, I would remit the question of the calculation of O’Sullivan McCarthy’s damages back to the High Court. It follows that the cross appeal should not be allowed as all issues of calculation not dealt with in this judgment should arise on the remittal.
19. Conclusions
19.1 I would allow the appeal in respect of legitimate expectation, allow the appeal in respect of negligence relating to Cromane, but dismiss the appeal in respect of liability for negligence in respect of O’Sullivan McCarthy. I would allow the appeal in respect of the quantum of damages in relation to O’Sullivan McCarthy and remit that question to the High Court. I would also dismiss the cross appeal by Cromane, as the quantification of damages should, in my view, be addressed on the remittal.
19.2 So far as the quantification of damages in respect of O’Sullivan McCarthy are concerned, I would confine the assessment of those damages by the High Court, when the case is remitted back, to an assessment of losses attributable to the inability of O’Sullivan McCarthy to do business in the 2008 season only. I would exclude from the calculation of such damages any losses alleged to be attributable to the 2010 season.
UK Cases
Mitchell v Glasgow City Council
House of Lords
[2009] UKHL 11, [2009] 3 All ER 205
LORD HOPE OF CRAIGHEAD: . . .
2 The pursuers are the deceased’s widow and his daughter. They claim damages from the defenders for the loss, injury and damage which they suffered as a result of the deceased’s death. They base their case on two grounds. The first is negligence at common law. The second is that the defenders acted in a way that was incompatible with the deceased’s right to life under art 2 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (as set out in Sch 1 to the Human Rights Act 1998) and was accordingly unlawful within the meaning of s 6(1) of the Human Rights Act 1998. On 30 June 2005 the Lord Ordinary, Lord Bracadale, dismissed the action: [2005] CSOH 84, 2005 SLT 1100. On 29 February 2008 an Extra Division (Lady Paton, Lord Reed and Lord Penrose) by a majority (Lord Reed dissenting) recalled the Lord Ordinary’s interlocutor and allowed a proof before answer on the pursuers’ case at common law. By a different majority (Lady Paton dissenting) it excluded from probation their averments that the defenders acted in a way that was incompatible with the deceased’s convention right: [2008] CSIH 19, 2008 SC 351. The defenders appeal to your Lordships against the allowance of a proof before answer. The pursuers cross-appeal against the exclusion from probation of their case under the Human Rights Act 1998 . . .
6 On 26 July 2001 the defenders wrote to Drummond inviting him to a meeting to be held on 31 July 2001. He was told that the purpose of this meeting was to discuss the incident of 10 July 2001 and the notice of proceedings for recovery of possession that had been served on him in January as they were considering issuing a further notice. Drummond attended the meeting on 31 July 2001, which began at 2pm. The defenders
told him that a fresh notice of proceedings to recover possession would be served on him. They said that they would continue to monitor complaints about his behaviour. They told him that continued anti-social behaviour could result in his eviction. Drummond lost his temper and became abusive. He then apologised to the defenders’ staff for having lost his temper. After leaving the meeting Drummond returned to Bellahouston Drive. At about 3pm he assaulted the deceased and inflicted the injuries which caused his death.
7 The defenders did not warn the deceased that they had summoned Drummond to the meeting that was held on 31 July 2001. Nor did they make any attempt to warn either him or the police about his behaviour at the meeting or of any possible risk of retaliation against the deceased as a result of it. The pursuers’ case is that if he had been given these warnings the deceased would not have died. He would have been alerted to the fact that Drummond was likely to be angry and violent. He would have been on the look out and taken steps to avoid him. The pursuers also allege that the deceased’s death was caused by the defenders’ failure to act on the repeated complaints by instituting proceedings against Drummond to recover possession by October 1999. But they gave notice in their written case that they did not intend to maintain that argument, which the Lord Ordinary had rejected. It has been held in a series of cases that a local authority is not normally liable for errors of judgment in the exercise of its discretionary powers under a statute: see Hussain v Lancaster City Council [1999] 4 All ER 125, [2000] QB 1; X (Minors) v Bedfordshire CC, M (a minor) v Newham London BC, E (a minor) v Dorset CC [1995] 3 All ER 353, [1995] 2 AC 633; D v East Berkshire Community Health NHS Trust, K v Dewsbury Healthcare NHS Trust, K v Oldham NHS Trust [2005] UKHL 23 at [82], [2005] 2 All ER 443 at [82], [2005] 2 AC 373, per Lord Nicholls of Birkenhead. So it is the allegations of a failure to give warnings that, for the purposes of this appeal, form the basis of the pursuers’ case against the defenders at common law and under the statute . . .
..
The case at common law
14 The issue of principle on which the defenders challenge the pursuers’ common law case was put into sharp focus by Mr McEachran at the outset of his argument. He said that there had been an operational failure by the defenders in circumstances where it was reasonably foreseeable that harm would flow to the deceased if they did not warn him about their meeting with Drummond. He stressed that his case was presented on a very narrow front. All he was saying was that there was a duty to warn, and that this duty arose because harm to the deceased was reasonably foreseeable. Beguilingly simple though this submission was, it raises fundamental issues about the scope of the duty that is owed to third parties by landlords, whether in the public or the private sector, whose tenants are abusive or violent to their neighbours.
15 Three points must be made at the outset to put the submission into its proper context. The first is that foreseeability of harm is not of itself enough for the imposition of a duty of care: see, for example, Home Office v Dorset Yacht Co Ltd [1970] 2 All ER 294 at 306-307, [1970] AC 1004 at 1037¬1038, per Lord Morris of Borth-y-Gest; Smith v Littlewoods Organisation Ltd [1987] 1 All ER 710 at 714, [1987] AC 241 at 251 (reported in the Session Cases as Maloco v Littlewoods Organisation Ltd 1987 SC (HL) 37 at 59), per Lord Griffiths; Hill v Chief Constable of West Yorkshire [1988] 2 All ER 238 at 241, [1989] AC 53 at 60, per Lord Keith of Kinkel. Otherwise, to adopt Lord Keith’s dramatic illustration in Yuen Kun-yeu v A-G of Hong Kong [1987] 2 All ER 705 at 710, [1988] AC 175 at 192, there would be liability in negligence on the part of one who sees another about to walk over a cliff with his head in the air, and forebears to shout a warning. The second, which flows from the first, is that the law does not normally impose a positive duty on a person to protect others. As Lord Goff of Chieveley explained in Smith v Littlewoods Organisation Ltd [1987] 1 All ER 710 at 729, [1987] AC 241 at 271, the common law does not impose liability for what, without more, may be called pure omissions. The third, which is a development of the second, is that the law does not impose a duty to prevent a person from being harmed by the criminal act of a third party based simply upon foreseeability: Smith v Littlewoods Organisation Ltd [1987] 1 All ER 710 at 730-735, [1987] AC 241 at 272-279, per Lord Goff…
17 In this case, as Mr McEachran pointed out, there was a relationship of proximity between the deceased and the defenders. He was their tenant, and so too was Drummond who lived next door. The defenders had accepted that they had a responsibility for the situation that had arisen as the parties’ landlords. This was why they had decided to take steps to address Drummond’s antisocial behaviour. That being so, he said, the only question was whether harm to the deceased was reasonably foreseeable as a result of
the action which they were taking. He referred to passages in the speech of Lord Mackay of Clashfern in Smith v Littlewoods Organisation Ltd [1987] 1 All ER 710 at 719-722, [1987] AC 241 at 258-261, which indicated that the test was whether in all the circumstances a reasonable person in the position of the defenders would be bound to anticipate that there was a real risk that the type of damage that resulted was likely to occur. Liability, he suggested, depended on the degree to which the harmful act was reasonably foreseeable: [1987] 1 All ER 710 at 721, [1987] AC 241 at 261.
18 There are other indications in the authorities that a high degree of likelihood of harm may be an appropriate limiting factor: see Home Office v Dorset Yacht Co Ltd [1970] 2 All ER 294 at 300, [1970] AC 1004 at 1030, per Lord Reid. In Hartwell v A-G of the British Virgin Islands [2004] UKPC 12 at [21], [2004] 4 LRC 458 at [21], [2004] 1 WLR 1273, Lord Nicholls said that the concept of reasonable foreseeability embraced a wide range of degrees of possibility, from the highly probable to the possible but highly improbable. As the possible adverse consequences of carelessness increase in seriousness, so will a lesser degree of likelihood of occurrence suffice to satisfy the test of reasonable foreseeability. In that case the police authorities had entrusted a gun to an officer who was still on probation and had shown signs of instability and unreliability. As Lord Nicholls explained at [32], loaded hand guns are dangerous weapons and the serious risks if a gun is handled carelessly are obvious. On the other hand the precautionary steps required of a careful person are unlikely to be particularly burdensome. Where such an article is handed over, the class of persons to whom the duty of care is owed is wide and the standard of care required is high.
19 It is not difficult to see that a duty of care was owed in the situation that arose in Hartwell v A-G of the British Virgin Islands. But it is not so easy to reconcile an approach that relies generally on the likelihood of harm with the general rule that a person is under no legal duty to protect another from harm. Addressing this point in Smith v Littlewoods Organisation Ltd [1987] 1 All ER 710 at 735, [1987] AC 241 at 279, Lord Goff said:
`I wish to emphasise that I do not think that the problem in these cases can be solved simply through the mechanism of foreseeability. When a duty is cast on a person to take precautions against the wrongdoing of third parties, the ordinary standard of foreseeability applies; and so the possibility of such wrongdoing does not have to be very great before liability is imposed . . . Per contra, there is at present no general duty at
common law to prevent persons from harming others by their deliberate wrongdoing, however foreseeable such harm may be if the defender does not take steps to prevent it.
20 Lord Reed [dissenting in the court below in Mitchell] examined this issue with great care, and concluded that Lord Goff’s analysis of the problem that arises in cases where harm is caused by a third party’s wrongdoing is to be preferred: 2008 SC 351 (para 94). The scope of the duty in cases where the risk has been created by the defender, such as Hartwell v A-G of the British Virgin Islands [2004] 4 LRC 458, [2004] 1 WLR 1273, may be capable of being determined by assessing the degree of likelihood of injury. But I agree with Lord Reed that Lord Goff’s approach is the one that should be applied to the problem raised by this case. We are dealing here with an allegation that it was the defenders’ duty to prevent the risk of harm being caused to the deceased by the criminal act of a third party which they did not create and had not undertaken to avert. The point at issue is whether the defenders were under a duty in that situation to warn the deceased that there was a risk that Drummond would resort to violence. I agree that cases of this kind which arise from another’s deliberate wrongdoing cannot be founded simply upon the degree of foreseeability. If the defender is to be held responsible in such circumstances it must be because, as Lord Reed suggests in para 97, the situation is one where it is readily understandable that the law should regard the defender as under a responsibility to take care to protect the pursuer from that risk.
Fair, just and reasonable
21 As the cases have developed it has become clear that Lord Goff was right to insist that something more than foreseeability is required, and answers have been provided to the question what that should be. As to what it is, in Caparo Industries plc v Dickman [1990] 1 All ER 568 at 573-574, [1990] 2 AC 605 at 617-618, Lord Bridge of Harwich referred to a series of decisions of the Privy Council and of this House which had emphasised the inability of any single general principle to provide a practical test which can be applied to every situation to determine whether a duty of care is owed, and if so, what is its scope . . .
22 [Having referred to the threefold test in laid down in Caparo (p. 39,
ante) and to Lord Bridge’s acknowledgment in Caparo that ‘proximity’ and `fairness’ were not much more than ‘convenient labels’, LORD HOPE continued:] [Lord Bridge in Caparo] said that the law had moved in the direction of attaching greater significance to the more traditional categorisation of distinct and recognisable situations as guides to the existence, the scope and the limits of the various duties of care which the law imposes. These are cases where, as Lord Reed suggested in para 97, the imposition of a duty of care is readily understandable.
23 It is possible to identify situations of that kind. One is where the defender creates the source of danger, as in Haynes v Harwood [1935] 1 KB 146, [1934] All ER Rep 103, where a van drawn by horses in a crowded street was left unattended and bolted when a boy threw a stone at them. Hartwell v A-G of the British Virgin Islands [2004] 4 LRC 458, [2004] 1 WLR 1273 may be seen as a case of this kind. Another is where the third party who causes damage was under the supervision or control of the defender, as in Home Office v Dorset Yacht Co Ltd [1970] 2 All ER 294, [1970] AC 1004 where the Borstal boys who escaped from the island and damaged the plaintiff’s yacht were under the control and supervision of the officers who had retired to bed and left the boys to their own devices. Another, which is of particular significance in this case, is where the defender has assumed a responsibility to the pursuer which lies within the scope of the duty that is alleged: Elguzouli-Daf v Metropolitan Police Comr, McBrearty v Ministry of Defence [1995] 1 All ER 833 at 843, [1995] QB 335 at 350, per Steyn LJ; Swinney v Chief Constable of Northumbria Police Force [1996] 3 All ER 449, [1997] QB 464. Other examples of that kind which may be cited are Stansbie v Troman [1948] 1 All ER 599, [1948] 2 KB 48, where a decorator who was working alone in a house went out leaving it unlocked and it was entered by a thief while he was away . . .
[LORD HOPE then set out other examples and went on to reject the argument that the Caparo test did not apply to a case like Mitchell which involved personal injury (and see further note 2, p. 46, ante) and also the argument that the test was not part of the law in Scotland. He continued:]
This case
26 Lord Bridge was careful to emphasise in Caparo Industries plc v Dickman [1990] 1 All ER 568, [1990] 2 AC 605 that the question to which the three-fold test must be directed is not limited to the question whether there is a duty
of care at all. It is to be applied to the question whether the situation gives rise to a duty of care of a given scope. It is the scope of the duty that lies at the centre of the argument in this case. The defenders do not deny that they owed a duty of care to their tenants in the exercise of their contractual duties as landlords, it having been accepted that this does not extend to the exercise of discretionary powers under the statute: Hussain v Lancaster City Council [1999] 4 All ER 125, [2000] QB 1. But this case falls outside the ambit of their contractual duty. In short the question is whether, acknowledging that the defenders were the deceased’s neighbour’s landlords, that relationship was such that it is fair, just and reasonable that they should be held liable in damages for the omissions to warn that are relied on in this case. As Taylor LJ observed in the Court of Appeal in Caparo Industries plc v Dickman [1989] 1 All ER 798 at 821, [1989] QB 653 at 703, the question is one of fairness and public policy.
27 The assertion that there was a duty to warn is deceptively simple. But the implications of saying that there was a duty to warn in this case are complex and far-reaching. This, it may be said, is a clear case where there had been threats to kill and Drummond’s behaviour suggested that, if provoked, he might give effect to them. But if there was a duty to warn in this case, must it not follow that there is a duty to warn in every case where a social landlord [an aspect of Scottish law involving some security of tenure for tenants] has reason to suspect that his tenant may react to steps to address his anti-social behaviour by attacking the person or property of anyone he suspects of informing against him? And if social landlords are under such a duty, must social workers and private landlords not be under the same duty too? In this case it is said that the duty was owed to the deceased. But others in the neighbourhood had complained to the defenders about Drummond’s behaviour. Was the duty to warn not owed to them also? It is said that there was a duty to keep the deceased informed of the steps that they proposed to take against Drummond, and in particular to warn him that a meeting had been arranged for 31 July. This suggests that the defenders would have had to determine, step by step at each stage, whether or not the actions that they proposed to take in fulfilment of their responsibilities as landlords required a warning to be given, and to whom. And they would have had to defer taking that step until the warning had been received by everyone and an opportunity given for it to be acted on. The more attentive they were to their ordinary duties as landlords the more onerous the duty to warn would become.
28 These problems suggest that to impose a duty to warn, together with the risk that action would be taken against them by anybody who suffered loss, injury or damage if they had received no warning, would deter social landlords from intervening to reduce the incidence of anti-social behaviour. The progress of events in this case shows that the defenders were doing their best to persuade Drummond to stop abusing his neighbours. These attempts might have worked, as no doubt they have done in other cases. Far better that attempts should be made to cure these problems than leave them unsolved or to be dealt with, inevitably after the event, by the police. As in the case of the police, it is desirable too that social landlords, social workers and others who seek to address the many behavioural problems that arise in local authority housing estates and elsewhere, often in very difficult circumstances, should be safeguarded from legal proceedings arising from an alleged failure to warn those who might be at risk of a criminal attack in response to their activities. Such proceedings, whether meritorious or otherwise, would involve them in a great deal of time, trouble and expense which would be more usefully devoted to their primary functions in their respective capacities: see Lord Brown of Eaton-under-Heywood’s observations in Van Colle v Chief Constable of Hertfordshire Police [2008] 3 All ER 977 at [133], [2009] 1 AC 225. There are other considerations too. Defensive measures against the risk of legal proceedings would be likely to create a practice of giving warnings as a matter of routine. Many of them would be for no good purpose, while others would risk causing undue alarm or reveal the taking of steps that would be best kept confidential.
29 As I have already noted, in Caparo Industries plc v Dickman [1989] 1 All ER 798 at 821, [1989] QB 653 at 703, Taylor LJ summed the matter up by saying that fairness and public policy were the tests. Public policy was at the root of the decision in Hill v Chief Constable of West Yorkshire [1988] 2 All ER 238, [1989] AC 53 about the scope of the duty owed by the police which the House followed in Brooks v Metropolitan Police Comr [2005] UKHL 24, [2005] 2 All ER 489, [2005] 1 WLR 1495 and again in Smith v Chief Constable of Sussex Police: see,Van Colle v Chief Constable of Hertfordshire Police [2008] 3 All ER 977, [2009] 1 AC 225. I would take the same approach to this case. The situation would have been different if there had been a basis for saying that the defenders had assumed a responsibility to advise the deceased of the steps that they were taking, or in some other way had induced the deceased to rely on them to do so. It would then have been
possible to say not only that there was a relationship of proximity but that a duty to warn was within the scope of that relationship. But it is not suggested in this case that this ever happened, and Mr McEachran very properly accepted that he could not present his argument on this basis. I would conclude therefore that it would not be fair, just or reasonable to hold that the defenders were under a duty to warn the deceased of the steps that they were taking, and that the common law case that is made against them is irrelevant. I would also hold, as a general rule, that a duty to warn another person that he is at risk of loss, injury or damage as the result of the criminal act of a third party will arise only where the person who is said to be under that duty has by his words or conduct assumed responsibility for the safety of the person who is at risk.
X (Minors) v Bedfordshire County Council
House of Lords
[1995] UKHL 9, [1995] 3 All ER 353
LORD BROWNE-WILKINSON: . . .
My lords, in each of these five appeals the plaintiffs by their statements of claim allege they have been injured by public authorities in the carrying out of functions imposed upon them by statute. The defendants have applied to strike out the claims on the grounds that they disclose no cause of action. In the first group of appeals (the Bedfordshire and Newham cases), the allegations are that the public authorities negligently carried out, or failed to carry out, statutory duties imposed on them for the purpose of protecting children from child abuse. In the second group (the Dorset, Hampshire and Bromley cases), the plaintiffs allege that the local authorities failed to carry out duties imposed upon them as education authorities by the Education Acts 1944 to 1981 in relation to children with special educational needs.
Although each case is different, all of them raise in one form or another the difficult and important question to what extent authorities charged with statutory duties are liable in damages to individuals injured by the authorities’ failure properly to perform such duties. Such liability may be alleged to arise in a number of different ways: it can be based on breach of statutory duty simpliciter, on the failure to carry out the statutory duty without due care or on a breach of a common law duty of care. In considering the decided cases, and consequently the argument submitted on these appeals, it is not always clear which basis of liability is under consideration. I therefore propose, before turning to the individual appeals, to attempt a more general analysis of the problems raised in this field so far as they affect these cases.
GENERAL APPROACH
Introductory—public law and private law
The question is whether, if Parliament has imposed a statutory duty on an authority to carry out a particular function, a plaintiff who has suffered damage in consequence of the authority’s performance or non-performance of that function has a right of action in damages against the authority. It is
important to distinguish such actions to recover damages, based on a private law cause of action, from actions in public law to enforce the due performance of statutory duties, now brought by way of judicial review. The breach of a public law right by itself gives rise to no claim for damages. A claim for damages must be based on a private law cause of action. The distinction is important because a number of earlier cases (particularly in the field of education) were concerned with the enforcement by declaration and injunction of what would now be called public law duties. They were relied on in argument as authorities supporting the plaintiffs’ claim for damages in this case . . .
Private law claims for damages can be classified into four different categories, viz: (A) actions for breach of statutory duty simpliciter (i.e. irrespective of carelessness); (B) actions based solely on the careless performance of a statutory duty in the absence of any other common law right of action; (C) actions based on a common law duty of care arising either from the imposition of the statutory duty or from the performance of it; and (D) misfeasance in public office, i.e. the failure to exercise, or the exercise of, statutory powers either with the intention to injure the plaintiff or in the knowledge that the conduct is unlawful.
Category (D) is not in issue in this case. I will consider each of the other categories but I must make it clear that I am not attempting any general statement of the applicable law: rather, I am seeking to set out a logical approach to the wide ranging arguments advanced in these appeals.
…
(B) The careless performance of a statutory duty—no common law duty of care
This category comprises those cases in which the plaintiff alleges (i) the statutory duty and (ii) the ‘negligent’ breach of that duty but does not allege that the defendant was under a common law duty of care to the plaintiff. It is the use of the word ‘negligent’ in this context which gives rise to confusion: it is sometimes used to connote mere carelessness (there being no common law duty of care) and sometimes to import the concept of a common law duty of care. In my judgment it is important in considering the authorities to distinguish between the two concepts: as will appear, in my view the careless performance of a statutory duty does not in itself give rise to any cause of
action in the absence of either a statutory right of action (category (A) above) or a common law duty of care (category (C) below).
Much of the difficulty can be traced back to the confusion between the ability to rely on a statutory provision as a defence and the ability to rely on it as founding a cause of action. The source of the confusion is to be found in the dictum of Lord Blackburn in Geddis v Proprietors of Bann Reservoir (1878) 3 App Cas 430 at 455-456:
Tor I take it, without citing cases, that is now thoroughly well established that no action will lie for doing that which the legislature has authorized, if it be done without negligence, although it does occasion damage to anyone; but an action does lie for doing that which the legislature has authorized, if it be done negligently. And I think that if by a reasonable exercise of the powers, either given by statute to the promoters, or which they have at common law, the damage could be prevented it is, within this rule, “negligence” not to make such reasonable exercise of their powers.’
This dictum, divorced from its context, suggests that the careless performance of a statutory duty in itself gives rise to a cause of action for damages. But it has to be read in context.
………..
In my judgment the correct view is that in order to found a cause of action flowing from the careless exercise of statutory powers or duties, the plaintiff has to show that the circumstances are such as to raise a duty of care at common law. The mere assertion of the careless exercise of a statutory power
or duty is not sufficient.
(C) The common law duty of care
In this category, the claim alleges either that a statutory duty gives rise to a common law duty of care owed to the plaintiff by the defendant to do or refrain from doing a particular act, or (more often) that in the course of carrying out a statutory duty the defendant has brought about such a relationship between himself and the plaintiff as to give rise to a duty of care at common law. A further variant is a claim by the plaintiff that, whether or not the authority is itself under a duty of care to the plaintiff, its servant in the course of performing the statutory function was under a common law duty of care for breach of which the authority is vicariously liable.
Mr Munby QC, in his reply in the Newham case, invited your Lordships to lay down the general principles applicable in determining the circumstances in which the law would impose a common law duty of care arising from the exercise of statutory powers or duties. I have no doubt that, if possible, this would be most desirable. But I have found it quite impossible either to detect such principle in the wide range of authorities and academic writings to which we were referred or to devise any such principle de novo. The truth of the matter is that statutory duties now exist over such a wide range of diverse activities and take so many different forms that no one principle is capable of being formulated applicable to all cases. However, in my view it is possible in considering the problems raised by these particular appeals to identify certain points which are of significance.
(1) Co-existence of statutory duty and common law duty of care
It is clear that a common law duty of care may arise in the performance of statutory functions. But a broad distinction has to be drawn between: (a) cases in which it is alleged that the authority owes a duty of care in the manner in which it exercises a statutory discretion; and (b) cases in which a duty of care is alleged to arise from the manner in which the statutory duty has been implemented in practice.
An example of (a) in the educational field would be a decision whether or not to exercise a statutory discretion to close a school, being a decision which necessarily involves the exercise of a discretion. An example of (b) would be the actual running of a school pursuant to the statutory duties. In such latter
case a common law duty to take reasonable care for the physical safety of the pupils will arise. The fact that the school is being run pursuant to a statutory duty is not necessarily incompatible with a common law duty of care arising from the proximate relationship between a school and the pupils it has agreed to accept. The distinction is between (a) taking care in exercising a statutory discretion whether or not to do an act and (b) having decided to do that act, taking care in the manner in which you do it.
(2) Discretion, justiciability and the policy/operational test
(a) Discretion
Most statutes which impose a statutory duty on local authorities confer on the authority a discretion as to the extent to which, and the methods by which, such statutory duty is to be performed. It is clear both in principle and from the decided cases that the local authority cannot be liable in damages for doing that which Parliament has authorised. Therefore if the decisions complained of fall within the ambit of such statutory discretion they cannot be actionable in common law. However, if the decision complained of is so unreasonable that it falls outside the ambit of the discretion conferred upon the local authority, there is no a priori reason for excluding all common law liability.
That this is the law is established by the decision in the Dorset Yacht case and by that part of the decision in Anns v Merton London Borough [1977] 2 All ER 492, [1978] AC 728 which, so far as I am aware, has largely escaped criticism in later decisions . . .
. . . [I]n seeking to establish that a local authority is liable at common law for negligence in the exercise of a discretion conferred by statute, the first requirement is to show that the decision was outside the ambit of the discretion altogether: if it was not, a local authority cannot itself be in breach of any duty of care owed to the plaintiff.
In deciding whether or not this requirement is satisfied, the court has to assess the relevant factors taken into account by the authority in exercising the discretion. Since what are under consideration are discretionary powers conferred on public bodies for public purposes the relevant factors will often include policy matters, for example social policy, the allocation of finite financial resources between the different calls made upon them or (as in the Dorset Yacht case) the balance between pursuing desirable social aims as against the risk to the public inherent in so doing. It is established that the
courts cannot enter upon the assessment of such ‘policy’ matters. The difficulty is to identify in any particular case whether or not the decision in question is a ‘policy’ decision.
(b) Justiciability and the policy/operational dichotomy
In English law the first attempt to lay down the principles applicable in deciding whether or not a decision was one of policy was made by Lord Wilberforce in Anns v Merton London Borough [1977] 2 All ER 492 at 500, [1978] AC 728 at 754:
`Most, indeed probably all, statutes relating to public authorities or public bodies, contain in them a large area of policy. The courts call this “discretion”, meaning that the decision is one for the authority or body to make, and not for the courts. Many statutes, also, prescribe or at least pre¬suppose the practical execution of policy decisions: a convenient description of this is to say that in addition to the area of policy or discretion, there is an operational area. Although this distinction between the policy area and the operational area is convenient, and illuminating, it is probably a distinction of degree; many “operational” powers or duties have in them some element of “discretion”. It can safely be said that the more “operational” a power or duty may be, the easier it is to superimpose on it a common law duty of care.’
As Lord Wilberforce appreciated, this approach did not provide a hard and fast test as to those matters which were open to the court’s decision.
….
From these authorities I understand the applicable principles to be as follows. Where Parliament has conferred a statutory discretion on a public authority, it is for that authority, not for the courts, to exercise the discretion: nothing which the authority does within the ambit of the discretion can be actionable at common law. If the decision complained of falls outside the statutory discretion, it can (but not necessarily will) give rise to common law liability. However, if the factors relevant to the exercise of the discretion include matters of policy, the court cannot adjudicate on such policy matters and therefore cannot reach the conclusion that the decision was outside the ambit of the statutory discretion. Therefore a common law duty of care in
relation to the taking of decisions involving policy matters cannot exist.
(3) Ifjusticiable, the ordinary principles of negligence apply
If the plaintiff’s complaint alleges carelessness, not in the taking of a discretionary decision to do some act, but in the practical manner in which that act has been performed (e.g. the running of a school) the question whether or not there is a common law duty of care falls to be decided by applying the usual principles, i.e. those laid down in Caparo Industries plc v Dickman [1990] 1 All ER 568 at 573-574, [1990] 2 AC 605 at 617-618. Was the damage to the plaintiff reasonably foreseeable? Was the relationship between the plaintiff and the defendant sufficiently proximate? It is just and reasonable to impose a duty of care? See Rowling v Takaro Properties Ltd and Hill v Chief Constable of West Yorkshire [1988] 2 All ER 238, [1989] AC 53.
However, the question whether there is such a common law duty and if so its ambit, must be profoundly influenced by the statutory framework within which the acts complained of were done. The position is directly analogous to that in which a tortious duty of care owed by A to C can arise out of the performance by A of a contract between A and B. In Henderson v Merrett Syndicates Ltd [1994] 3 All ER 506, [1994] 3 WLR 761 your Lordships held that A (the managing agent) who had contracted with B (the members’ agent) to render certain services for C (the names) came under a duty of care to C in the performance of those services. It is clear that any tortious duty of care owed to C in those circumstances could not be inconsistent with the duty owed in contact by A to B. Similarly, in my judgment, a common law duty of care cannot be imposed on a statutory duty if the observance of such common law duty of care would be inconsistent with, or have a tendency to discourage, the due performance by the local authority of its statutory duties.
(4) Direct liability and vicarious liability
In certain of the appeals before the House, the local authorities are alleged to be under a direct duty of care to the plaintiff not only in relation to the exercise of a statutory discretion but also in relation to the operational way in which they performed that duty.
This allegation of a direct duty of care owed by the authority to the plaintiff is to be contrasted with those claims which are based on the vicarious liability
of the local authority for the negligence of its servants, i.e. for the breach of a duty of care owed by the servant to the plaintiff, the authority itself not being under any relevant duty of care to the plaintiff. Thus, in the Newham case the plaintiffs’ claim is wholly based on allegations that two professionals, a social worker and a psychiatrist, individually owed professional duties of care to the plaintiff for the breach of which the authorities as their employers are vicariously liable. It is not alleged that the authorities were themselves under a duty of care to the plaintiff.
This distinction between direct and vicarious liability can be important since the authority may not be under a direct duty of care at all or the extent of the duty of care owed directly by the authority to the plaintiff may well differ from that owed by a professional to a patient. However, it is important not to lose sight of the fact that, even in the absence of a claim based on vicarious liability, an authority under a direct duty of care to the plaintiff will be liable for the negligent acts or omissions of its servant which constitute a breach of that direct duty. The authority can only act through its servants.
Barrett v Enfield London Borough Council
House of Lords [1999] 3 All ER 193
LORD SLYNN OF HADLEY:
……..
On this basis, if an authority acts wholly within its discretion—i.e. it is doing what Parliament has said it can do, even if it has to choose between several alternatives open to it, then there can be no liability in negligence. It is only if a plaintiff can show that what has been done is outside the discretion and the power, then he can go on to show the authority was negligent. But if that stage is reached, the authority is not exercising a statutory power, but purporting to do so and the statute is no defence.
This, however, does not in my view mean that if an element of discretion is involved in an act being done subject to the exercise of the overriding statutory power, common law negligence is necessarily ruled out. Acts may be done pursuant and subsequent to the exercise of a discretion where a duty of care may exist—as has often been said even knocking a nail into a piece of wood involves the exercise of some choice or discretion and yet there may be a duty of care in the way it is done. Whether there is an element of discretion to do the act is thus not a complete test leading to the result that, if there is, a claim against an authority for what it actually does or fails to do must necessarily be ruled out.
Another distinction which is sometimes drawn between decisions as to `policy’ and as to ‘operational acts’ sounds more promising. A pure policy decision where Parliament has entrusted the decision to a public authority is not something which a court would normally be expected to review in a claim in negligence. But again this is not an absolute test. Policy and operational acts are closely linked and the decision to do an operational act may easily involve and flow from a policy decision. Conversely, the policy is affected by the result of the operational act (see R v Chief Constable of Sussex, ex p International Trader’s Ferry Ltd [1999] 1 All ER 129, [1998] 3 WLR 1260).
Where a statutory power is given to a local authority and damage is caused by what it does pursuant to that power, the ultimate question is whether the particular issue is justiciable or whether the court should accept that it has no role to play. The two tests (discretion and policy/operational) to which I have referred are guides in deciding that question. The greater the element of policy involved, the wider the area of discretion accorded, the more likely it is that the matter is not justiciable so that no action in negligence can be brought. It is true that Lord Reid and Lord Diplock in Home Office v Dorset Yacht Co Ltd accepted that before a claim can be brought in negligence, the plaintiffs must show that the authority is behaving so unreasonably that it is not in truth exercising the real discretion given to it. But the passage I have cited was, as I read it, obiter, since Lord Reid made it clear that the case did
not concern such a claim, but rather was a claim that Borstal officers had been negligent when they had disobeyed orders given to them. Moreover, I share Lord Browne-Wilkinson’s reluctance to introduce the concepts of administrative law into the law of negligence, as Lord Diplock appears to have done. But in any case I do not read what either Lord Reid or Lord Wilberforce in Anns’ case (and in particular Lord Reid) said as to the need to show that there has been an abuse of power before a claim can be brought in negligence in the exercise of a statutory discretion as meaning that an action can never be brought in negligence where an act has been done pursuant to the exercise of the discretion. A claim of negligence in the taking of a decision to exercise a statutory discretion is likely to be barred, unless it is wholly unreasonable so as not to be a real exercise of the discretion, or if it involves the making of a policy decision involving the balancing of different public interests; acts done pursuant to the lawful exercise of the discretion can, however, in my view be subject to a duty of care, even if some element of discretion is involved. Thus accepting that a decision to take a child into care pursuant to a statutory power is not justiciable, it does not in my view follow that, having taken a child into care, an authority cannot be liable for what it or its employees do in relation to the child without it being shown that they have acted in excess of power. It may amount to an excess of power, but that is not in my opinion the test to be adopted: the test is whether the conditions in Caparo Industries plc v Dickman [1990] 1 All ER 568, [1990] 2 AC 605 have been satisfied.
In Rowling v Takaro Properties Ltd [1988] 1 All ER 163 at 172, [1988] AC 473 at 501 Lord Keith of Kinkel, said in giving the opinion of the Privy Council in relation to the policy/operational test:
`They incline to the opinion, expressed in the literature, that this distinction does not provide a touchstone of liability, but rather is expressive of the need to exclude altogether those cases in which the decision under attack is of such a kind that a question whether it has been made negligently is unsuitable for judicial resolution, of which notable examples are discretionary decisions on the allocation of scarce resources or the distribution of risks (see especially the discussion in Craig Administrative Law (1983) pp 534-538). If this is right, classification of the relevant decision as a policy or planning decision in this sense may exclude liability; but a conclusion that it does not fall within that category does not, in their Lordships’ opinion, mean that a duty of care will
necessarily exist.’
Both in deciding whether particular issues are justiciable and whether if a duty of care is owed, it has been broken, the court must have regard to the statutory context and to the nature of the tasks involved. The mere fact that something has gone wrong or that a mistake has been made, or that someone has been inefficient does not mean that there was a duty to be careful or that such duty has been broken. Much of what has to be done in this area involves the balancing of delicate and difficult factors and courts should not be too ready to find in these situations that there has been negligence by staff who largely are skilled and dedicated.
Yet although in my view the staff are entitled to rely mutatis mutandis on the principle stated in Bolam v Friern Hospital Management Committee
[1957] 2 All ER 118, [1957] 1 WLR 582,1 the jurisdiction to consider whether there is a duty of care in respect of their acts and whether it has been broken is there. I do not see how the interests of the child can be sufficiently protected otherwise. . . .
In the present case, the allegations which I have summarised are largely directed to the way in which the powers of the local authority were exercised. It is arguable (and that is all we are concerned with in this case at this stage) that if some of the allegations are made out, a duty of care was owed and was broken. Others involve the exercise of a discretion which the court may consider to be not justiciable—e.g. whether it was right to arrange adoption at all, though the question of whether adoption was ever considered and if not, why not, may be a matter for investigation in a claim of negligence. I do not think it right in this case to go through each allegation in detail to assess the chances of it being justiciable. The claim is of an on-going failure of duty and must be seen as a whole. I do not think that it is the right approach to look only at each detailed allegation and to ask whether that in itself could have caused the injury. That must be done but it is appropriate also to consider whether the cumulative effect of the allegations, if true, could have caused the injury.
Nor do I accept that because the court should be slow to hold that a child can sue its parents for negligent decisions in its upbringing that the same should apply necessarily to all acts of a local authority. The latter has to take decisions which parents never or rarely have to take (e.g. as to adoption or as to an appropriate foster parent or institution). In any case, in respect of some matters, parents do have an actionable duty of care.
On the basis that X and ors (minors) v Bedfordshire CC does not conclude the present case in my view it is arguable that at least in respect of some matters alleged both individually and cumulatively a duty of care was owed and was broken.
LORD HUTTON:
I consider that subsequent decisions have shown that the underlying principle to be derived from the passages in the judgments of Lord Reid and Lord Diplock in Home Office v Dorset Yacht Co Ltd relating to negligence in the exercise of a statutory discretion is that the courts will not permit a claim for negligence to be brought where a decision on the existence of negligence would involve the courts in considering matters of policy raising issues which they are ill-equipped and ill-suited to assess and on which Parliament could not have intended that the courts would substitute their views for the views of ministers or officials.
. . .These judgments lead me to the provisional view that the fact that the decision which is challenged was made within the ambit of a statutory discretion and is capable of being described as a policy decision is not in itself a reason why it should be held that no claim for negligence can be brought in respect of it. As I read it this is what is said by the Privy Council in its judgment in Rowling v Takaro Properties Ltd [1988] 1 All ER 163 at 172, [1988] AC 473 at 501. It is only where the decision involves the weighing of competing public interests or is dictated by considerations which the courts are not fitted to assess that the courts will hold that the issue is non-justiciable on the ground that the decision was made in the exercise of a statutory discretion . . .
. . .I do not think that the speech of Lord Browne-Wilkinson in X and ors (minors) v Bedfordshire CC precludes a ruling in the present case that although the decisions of the defendant were within the ambit of its statutory
discretion, nevertheless those decisions did not involve the balancing of the type of policy considerations which renders the decisions non-justiciable . . .
. . . I consider that where a plaintiff claims damages for personal injuries which he alleges have been caused by decisions negligently taken in the exercise of a statutory discretion, and provided that the decisions do not involve issues of policy which the courts are ill-equipped to adjudicate upon, it is preferable for the courts to decide the validity of the plaintiff’s claim by applying directly the common law concept of negligence than by applying as a preliminary test the public law concept of Wednesbury unreasonableness (see Associated Provincial Picture Houses Ltd v Wednesbury Corp [1947] 2 All ER 680, [1948] 1 KB 223) to determine if the decision fell outside the ambit of the statutory discretion. I further consider that in each case the court’s resolution of the question whether the decision or decisions taken by the defendant in exercise of the statutory discretion are unsuitable for judicial determination will require, as Lord Keith stated in Rowling v Takaro Properties Ltd [1988] 1 All ER 163 at 172, [1988] AC 473 at 501, a careful analysis and weighing of the relevant circumstances . . .
. . . I would not strike out the action at this stage on the ground that it gives rise to issues which are non-justiciable. If it does appear at the trial that the case gives rise to an issue which relates to a matter of policy such as the balancing of competing public interests, then the judge can at that stage rule out the issue as being non-justiciable.
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The standard of care
Although I would allow this appeal for the reasons which I have given and would permit the action to proceed to trial, I wish to emphasise that the considerations relied on by the defendant on the issue of justiciability will be of relevance and important when the trial judge comes to consider the question whether the plaintiff has established a breach of the duty to take reasonable care . . .
I would allow the appeal.
Phelps v Hillingdon London Borough Council
House of Lords
[2000] UKHL 47, [2000] 4 All ER 504
LORD SLYNN OF HADLEY: . . .
My Lords, the appeals in these four cases were heard together. They all raise questions as to the liability of a local education authority for what is said to have been a failure, either by the local authority or by employees for whom the local authority was vicariously liable, in the provision of appropriate educational services for children at school.
………The common law
It does not follow that the local authority can never be liable in common law negligence for damage resulting from acts done in the course of the performance of a statutory duty by the authority or by its servants or agents. This House decided in Barrett v Enfield London BC [1999] 3 All ER 193, [1999] 3 WLR 79 that the fact that acts which are claimed to be negligent are carried out within the ambit of a statutory discretion is not in itself a reason why it should be held that no claim for negligence can be brought in respect of them. It is only where what is done has involved the weighing of competing public interests or has been dictated by considerations on which Parliament could not have intended that the courts would substitute their views for the views of ministers or officials that the courts will hold that the issue is non-justiciable on the ground that the decision was made in the exercise of a statutory discretion. In Pamela’s case there is no such ground for holding that her claim is non-justiciable and therefore the question to be determined is whether the damage relied on is foreseeable and proximate and whether it is just and reasonable to recognise a duty of care (Caparo
Industries plc v Dickman [1990] 1 All ER 568 at 573-574, [1990] 2 AC 605, at 617-618). If a duty of care would exist where advice was given other than pursuant to the exercise of statutory powers, such duty of care is not excluded because the advice is given pursuant to the exercise of statutory powers. This is particularly important where other remedies laid down by the statute (e.g. an appeals review procedure) do not in themselves provide sufficient redress for loss which has already been caused.
Where, as in Pamela’s case, a person is employed by a local education authority to carry out professional services as part of the fulfilment of the authority’s statutory duty, it has to be asked whether there is any overriding reason in principle why (a) that person should not owe a duty of care (the first question) and (b) why, if the duty of care is broken by that person, the authority as employer or principal should not be vicariously liable (the second question).
I accept that, as was said in X (minors) v Bedfordshire CC, there may be cases where to recognise such a vicarious liability on the part of the authority may so interfere with the performance of the local education authority’s duties that it would be wrong to recognise any liability on the part of the authority. It must, however, be for the local authority to establish that: it is not to be presumed and I anticipate that the circumstances where it could be established would be exceptional.
As to the first question, it is long and well-established, now elementary, that persons exercising a particular skill or profession may owe a duty of care in the performance to people who it can be foreseen will be injured if due skill and care are not exercised, and if injury or damage can be shown to have been caused by the lack of care. Such duty does not depend on the existence of any contractual relationship between the person causing and the person suffering the damage. A doctor, an accountant and an engineer are plainly such a person. So in my view is an educational psychologist or psychiatrist or a teacher including a teacher in a specialised area, such as a teacher concerned with children having special educational needs. So may be an education officer performing the functions of a local education authority in regard to children with special educational needs . . .
I fully agree with what was said by Lord Browne-Wilkinson in X (minors) v Bedfordshire CC [1995] 3 All ER 353 at 395, [1995] 2 AC 633 at 766 that a head teacher owes ‘a duty of care to exercise the reasonable skills of a headmaster in relation to such educational needs; and a special
advisory teacher brought in to advise on the educational needs of a specific pupil, particularly if he knows that his advice will be communicated to the pupil’s parents, ‘owes a duty to the child to exercise the skill and care of a reasonable advisory teacher’. A similar duty on specific facts may arise for others engaged in the educational process, e.g. an educational psychologist being part of the local authority’s team to provide the necessary services. The fact that the educational psychologist owes a duty to the authority to exercise skill and care in the performance of his contract of employment does not mean that no duty of care can be or is owed to the child. Nor does the fact that the educational psychologist is called in in pursuance of the performance of the local authority’s statutory duties mean that no duty of care is owed by him, if in exercising his profession he would otherwise have a duty of care.
That, however, is only the beginning of the enquiry. It must still be shown that the educational psychologist is acting in relation to a particular child in a situation where the law recognises a duty of care. A casual remark, an isolated act may occur in a situation where there is no sufficient nexus between the two persons for a duty of care to exist. But where an educational psychologist is specifically called in to advise in relation to the assessment and future provision for a specific child, and it is clear that the parents acting for the child and the teachers will follow that advice, prima facie a duty of care arises. It is sometimes said that there has to be an assumption of responsibility by the person concerned. That phrase can be misleading in that it can suggest that the professional person must knowingly and deliberately accept responsibility. It is, however, clear that the test is an objective one (Henderson v Merrett Syndicates Ltd [1994] 3 All ER 506 at 521, [1995] 2 AC 145, 181). The phrase means simply that the law recognises that there is a duty of care. It is not so much that responsibility is assumed as that it is recognised or imposed by the law. The question is thus whether in the particular circumstances the necessary nexus has been shown.
The result of a failure by an educational psychologist to take care may be that the child suffers emotional or psychological harm, perhaps even physical harm. There can be no doubt that if foreseeability and causation are established, psychological injury may constitute damage for the purpose of the common law. But so in my view can a failure to diagnose a congenital condition and to take appropriate action as a result of which failure a child’s level of achievement is reduced, which leads to loss of employment and wages. Questions as to causation and as to the quantum of damage,
particularly if actions are brought long after the event, may be very difficult, but there is no reason in principle to rule out such claims.
As to the second question, if a breach of the duty of care to the child by such an employee is established, prima facie a local or education authority is vicariously liable for the negligence of its employee. If the educational psychologist does have a duty of care on the facts is it to be held that it is not just and reasonable that the local education authority should be vicariously liable if there is a breach of that duty? Are there reasons of public policy why the courts should not recognise such a liability? I am very conscious of the need to be cautious in recognising such a duty of care where so much is discretionary in these as in other areas of social policy. As has been said, it is obviously important that those engaged in the provision of educational services under the statutes should not be hampered by the imposition of such a vicarious liability. I do not, however, see that to recognise the existence of the duties necessarily leads or is likely to lead to that result. The recognition of the duty of care does not of itself impose unreasonably high standards . . .
The duty in this case on the basis, therefore, that an educational psychologist may owe a duty of care in performing duties on behalf of the local education authority. Was the Judge justified in finding that there was a duty here and that there was a breach?
…………..
Pamela thus succeeds on the basis of vicarious liability of the local authority. I do not consider that the case of direct liability on the part of Hillingdon is made out, nor indeed was necessary. Your Lordships have, however, been asked to consider whether such a claim can exist and such a question is relevant in the case of Jarvis.
Direct liability
In X (minors) v Bedfordshire CC [1995] 3 All ER 353 at 392, [1995] 2 AC 633 at 762, Lord Browne-Wilkinson said:
`. . . I reach the conclusion that an educational authority owes no common law duty of care in the exercise of the powers and discretions relating to children with special educational needs specifically conferred on them by
the Act of 1981′.
It seems to me that if he had not thought that the service of psychological advice was offered to the public (which in fact in the present case it was not), but was ‘merely part and parcel of the system established by the defendant authority for the discharge of its statutory duties under the Act of 1981’ (page 763C), he would have accepted that there was no duty of care in respect of an educational psychologist in the present case.
I do not rule out the possibility of a direct claim in all situations where a local authority is exercising its powers. If it exercises its discretion by deciding to set up a particular scheme pursuant to a policy which it has lawfully adopted, there is no, or at least there is unlikely to be any, common law duty of care. If, however, it then, for example, appoints to carry out the duties in regard to children with special educational needs a psychologist or other professionals who at the outset transparently are neither qualified nor competent to carry out the duties, the position is different. That may be an unlikely scenario, but if it happens, I do not see why as a matter of principle a claim at common law in negligence should never be possible. Over-use of the distinction between policy and operational matters so as respectively to limit or create liability has been criticised, but there is some validity in the distinction. Just as the individual social worker in Barrett v Enfield London Borough Council (supra) could be ‘negligent in an operational manner’ (Lord Woolf, MR [1998] QB 367 at page 378, my speech [1999] 3 WLR 79, 97E), so it seems to me that the local education authority could in some circumstances owe a duty of care and be negligent in the performance of it. The fact that the parents have their own duties under Section 36 of the Act of 1944 and that consultation and appeal procedures exist (of which the parents may or may not be informed) does not seem to me to lead to the conclusion that a duty of care does not or should not exist.
Since the authority can only act through its employees or agents, and if they are negligent vicarious liability will arise, it may rarely be necessary to invoke a claim for direct liability. After the argument in these cases, I do not, however, accept the absolute statement that an education authority ‘owes no common law duty of care . . . in the exercise of the powers . . . relating to children with special educational needs’ under the Act of 1981. That issue, however, as I have said does not fall for decision in Pamela’s case.
I would accordingly allow the appeal and restore the order of Garland, J.
LORD CLYDE: . . .
In principle it is not immediately easy to see why the law should not admit the possibility of a duty of care upon professional employees of an education authority. Indeed the decision in E (A Minor) v Dorset CC., reported with X and ors (minors) v Bedfordshire CC . . . [1995] 3 All ER 353, [1995] 2 AC 633, directly supports the existence of such a duty of care upon an educational psychologist. As Lord Browne-Wilkinson observed `Psychologists hold themselves out as having special skills and they are, in my judgment, like any other professional bound both to possess such skills and to exercise them carefully’ (see [1995] 3 All ER 353 at 393, [1995] 2 AC 633 at 763). In principle the same view should apply to any professional member of the staff of an education authority. Where a child privately consults an educational psychologist there should be a duty on the latter to exercise due professional care in the giving of advice. While a basis for a claim might be found in contract in such a case, by way even of an implied term of an obligation to take reasonable care, it would be curious if it could not be found also in tort. If in the private arena an educational psychologist culpably erred in the diagnosis which he or she made of the cause of a child’s disability and the child suffered some consequential loss or injury, there would seem to be no reason why a liability in damages should not follow. It would be surprising if the same was not also to be possible where the advice is given by one employed by an education authority. One consideration which influenced the Court of Appeal ([1999] 1 All ER 421, [1999] 1 WLR 500) in their holding in Phelps that there was no duty of care was the fear that by admitting a vicarious claim the immunity which local education authorities may enjoy against direct claims could readily be circumvented. But it has to be noticed that one consideration which weighed with Lord Browne-Wilkinson in excluding a direct claim in E (a minor) v Dorset CC was that a vicarious liability would be available . . .
It does not seem to me that there is any wider interest of the law which would require that no remedy in damages be available. I am not persuaded that the recognition of a liability upon employees of the education authority for damages for negligence in education would lead to a flood of claims, or even vexatious claims, which would overwhelm the school authorities, nor that it would add burdens and distractions to the already intensive life of
teachers. Nor should it inspire some peculiarly defensive attitude in the performance of their professional responsibilities. On the contrary it may have the healthy effect of securing that high standards are sought and secured. If it is thought that there would only be a few claims and for that reason the duty should not be recognised, the answer must be that if there are only a few claims there is the less reason to refuse to allow them to be entertained. As regards the need for this remedy, even if there are alternative procedures by which some form of redress might be obtained, such as resort to judicial review, or to an ombudsman, or the adoption of such statutory procedures as are open to parents, which might achieve some correction of the situation for the future, it may only be through a claim for damages at common law that compensation for the damage done to the child may be secured for the past as well as the future.
Any fear of a flood of claims may be countered by the consideration that in order to get off the ground the claimant must be able to demonstrate that the standard of care fell short of that set by the Bolam v Friern Hospital Management Committee [1957] 2 All ER 118, [1957] 1 WLR 582 test. That is deliberately and properly a high standard in recognition of the difficult nature of some decisions which those to whom the test applies require to make and of the room for genuine differences of view on the propriety of one course of action as against another . . .
Not only may there be difficulties in establishing negligence in relation to the making of professional judgments in particular circumstances or the exercise of a professional choice in particular cases, but there may well be practical difficulties in the adequacy of records or of recollection about the details regarding the educational progress and achievements of a particular child which may be highly relevant to the claim which is brought. But that there may be such difficulty is no reason for excluding deserving cases. There may also be severe difficulty in establishing a causal connection between the alleged negligence and the alleged loss and in the assessment of any damages. But these possible difficulties should not be allowed to stand in the way of the presentation of a proper claim, nor should justice be altogether denied on the ground that a claim is of a complex nature. That any claims which are made may require a large number of witnesses, a consideration which weighed with the Court of Appeal, and involve considerable time and cost, are again practical considerations which should not be allowed to justify a total exclusion of an otherwise legitimate claim . . .
A distinction may be suggested between on the one hand matters of policy or discretion and on the other hand matters of an operational or administrative character. But this kind of classification does not appear to provide any absolute test for determining whether the case is one which allows or excludes a duty of care. The classification may provide some guide towards identifying some kinds of case where a duty of care may be thought to be inappropriate. Where a statutory authority has to make a choice between various courses of action, all of which are within its powers, and the choice involves a weighing of resources and the establishment of priorities, it will in general be inappropriate that someone injured through the particular decision which the authority has made should have a remedy in damages. But it was recognised by Lord Browne-Wilkinson in X (minors) v Bedfordshire CC [1955] 3 All ER 353, [1995] 2 AC 633 at 738 that even in matters of a discretionary character the authority may be liable in damages if its decision falls without the ambit of the discretion, as where the action taken is so totally unreasonable as to amount to an abuse of the discretion. Beyond that, as Lord Keith of Kinkel observed in Rowling v Takaro Properties Ltd [1988] 1 All ER 163 at 172, [1988] AC 473 at 501:
`. . . classification of the relevant decision as a policy or planning decision in this sense may exclude liability; but a conclusion that it does not fall within that category does not, in their Lordships’ opinion, mean that a duty of care will necessarily exist’.
Another circumstance which may give rise to difficulty in the present context is that there may be a multi-disciplinary unit concerned in the giving of the advice. But that is a practical problem which cannot constitute a legal bar on a claim. Even where such a situation exists it should be possible to disentangle the relevant parts played by particular individuals and identify where the alleged negligence occurred. The problem may not of course be significant for a plaintiff if a claim can lie directly against the authority, as in Barrett v Enfield London BC [1997] 3 All ER 371, [1998] QB 367. Certainly the view of the commission in Z v UK, [2000] 2 FCR 245 at 272 in para. 114 of their report took the view that the multi-disciplinary aspect of child protection work ‘may provide a factual complexity to cases but cannot by itself provide a justification for excluding liability from a body found to have acted negligently’. At least in the present cases there is no difficulty in identifying the advice given by each of the professional persons involved,
and in particular in identifying that it was particularly within the area of expertise of the educational psychologist to make the diagnosis.
I turn now from matters of policy to matters of proximity and foreseeability. One question which arises here is whether the advice was being given to the education authority for their guidance, and not to the child nor the parents. Circumstances may of course occur where it can be shown that although the parents had some involvement with the decision making process the advice given was not intended to be acted upon by them nor was reliance expected to be placed by them on it. On the evidence [the judge] was certainly entitled to reach the conclusion that the psychologist also owed a duty to the plaintiff through her parents. In the particular circumstances of the case of Phelps it appears perfectly clear that the plaintiff and her parents were going to and did rely upon the advice . . .
So far as the case of Phelps is concerned I have reached the view that there was a duty on the educational psychologist to exercise due care to the appellant . . .
The appellant claims a direct liability on the authority as well as a vicarious liability. But there is no necessity to explore that aspect of the matter in the case of Phelps which can succeed upon the basis of a vicarious liability. With regard to the other cases where the issue is still open, careful consideration would require to be given to the view expressed by Lord Browne-Wilkinson in X (minors) v Bedfordshire CC [1955] 3 All ER 353 at 391-392, [1995] 2 AC 633 at 761-762, along with the further qualification which he added in Barrett v Enfield London BC [1999] 3 All ER 193 at 197, [1999] 3 WLR 79 at 83. But it may be open to argument that a prohibition upon a direct liability should not be a matter of absolute exclusion. Where the parents of a child have participated in the decision under attack it may well be difficult to allow a claim that the decision was negligently taken. But the case might be different if the parents did not take a hand in the making of the decision. It may be that few cases would arise of direct claims, but it might not seem that justice is being served if on that account the door of the court should be closed. The point may be open to further argument but it would be inappropriate to embark upon that chapter without any inquiry into the facts. I am certainly not prepared to deny the possibility that such a duty may exist. A comparable point was raised in Cassidy v Ministry of Health [1951] 1 All ER 574, [1951] 2 KB 343 and some academic support for the proposition can
be found in Montgomery ‘Suing Hospitals Direct’ (1987) 137 New LJ 573, referred to in Clerk and Lindsell on Torts (17th edn, 1995) p 455 (para. 8¬63). Given the room for argument on the point in the present context it seems to me that this is pre-eminently a point to be resolved after trial when the facts have been explored . . .
Gorringe v Calderdale Metropolitan Borough Council
House of Lords
[2004] UKHL 15, [2004] 2 All ER 326
LORD HOFFMANN:
7 My Lords, on 15 July 1996, on a country road in Yorkshire, Mrs Denise Gorringe drove her car head-on into a bus. It was hidden behind a sharp crest in the road until just before she reached the top. When she first caught sight of it, a curve on the far side may have given her the impression that it was actually on her side of the road. At any rate, she slammed on the brakes and at 50 miles an hour the wheels locked and the car skidded into the path of the bus. Mrs Gorringe suffered brain injuries severely affecting various bodily functions including speech and movement.
8 On the face of it, the accident was her own fault. It was certainly not the fault of the bus driver. He was driving with proper care when Mrs Gorringe skidded into him. But she claims in these proceedings that it was the fault of the local authority, the Calderdale Metropolitan Borough Council (the council). She says that the council caused the accident by failing to give her proper warning of the danger involved in driving fast when you could not see what was coming. In particular, the council should have painted the word `SLOW’ on the road surface at some point before the crest. There had been such a marking in the past, but it disappeared, probably when the road was mended seven or eight years before……..
·
18 Mr Wingate-Saul submits that a common law duty has been created by (or ‘in parallel’ with) s 39(2) and (3) of the Road Traffic Act 1988:
(3) Without prejudice to the generality of subsection (2) above, in pursuance of their duty under that subsection each local authority—(a) must carry out studies into accidents arising out of the use of vehicles on roads . . .within their area, (b) must, in the light of those studies, take such measures as appear to the authority to be appropriate to prevent such accidents, including the dissemination of information and advice relating to the use of roads, the giving of practical training to road users or any class or description of road users, the construction, improvement, maintenance or repair of roads for which they are the highway authority . . . and other measures taken in the exercise of their powers for controlling, protecting or assisting the movement of traffic on roads . .
19 These provisions, with their repeated use of the word ‘must’, impose statutory duties. But they are typical public law duties expressed in the widest and most general terms: compare s 1(1) of the National Health Service Act 1977: ‘It is the Secretary of State’s duty to continue the promotion . . . of a comprehensive health service . . .’ No one suggests that such duties are enforceable by a private individual in an action for breach of statutory duty. They are enforceable, so far as they are justiciable at all, only in proceedings for judicial review.
20 Nevertheless, Mr Wingate-Saul submits that s 39 casts a common law shadow and creates a duty to users of the highway to take reasonable steps to carry out the necessary studies and take the appropriate measures. At any rate, their conduct in compliance with these duties must not be such as can be described as ‘wholly unreasonable’. The judge found that it was unreasonable for the council not to have painted a warning sign on the road and Potter LJ thought that he was entitled to come to this conclusion.
21 The effect of statutory powers and duties on the common law liability of a highway authority was considered by this House in Stovin v Wise (Norfolk CC, third party) [1996] 3 All ER 801, [1996] AC 923 . . .
22 . . . I pointed out in my speech [in Stovin] that the council had done nothing which, apart from statute, would have attracted a common law duty of care. It had done nothing at all. The only basis on which it was a candidate for liability was that Parliament had entrusted it with general responsibility for the highways and given it the power to improve them and take other measures for the safety of their users.
23 Since the existence of these statutory powers is the only basis upon which a common law duty was claimed to exist, it seemed to me relevant to
ask whether, in conferring such powers, Parliament could be taken to have intended to create such a duty. If a statute actually imposes a duty, it is well settled that the question of whether it was intended to give rise to a private right of action depends upon the construction of the statute (see Hague v Deputy Governor of Parkhurst Prison, Weldon v Home Office [1991] 3 All ER 733 at 741,748-752, [1992] 1 AC 58 at 159, 168-171). If the statute does not create a private right of action, it would be, to say the least, unusual if the mere existence of the statutory duty could generate a common law duty of care.
24 For example, in O’Rourke v Camden London BC [1997] 3 All ER 23, [1998] AC 188 a homeless person sued for damages on the ground that the council had failed in its statutory duty to provide him with accommodation. The action was struck out on the ground that the statute did not create a private law right of action . . .
25 In the absence of a right to sue for breach of the statutory duty itself, it would in my opinion have been absurd to hold that the council was nevertheless under a common law duty to take reasonable care to provide accommodation for homeless persons whom it could reasonably foresee would otherwise be reduced to sleeping rough. (Compare Stovin v Wise [1996] 3 All ER 801 at 827-828, [1996] AC 923 at 952-953.) And the argument would in my opinion have been even weaker if the council, instead of being under a duty to provide accommodation, merely had a power to do so.
26 This was the reasoning by which the majority in Stovin v Wise came to the conclusion that the council owed no duty to road users which could in any circumstances have required it to improve the intersection. But misunderstanding seems to have arisen because the majority judgment goes on to discuss, in the alternative, what the nature of such a duty might have been if there had been one. It suggests that it would have given rise to liability only if it would have been irrational in a public law sense not to exercise the statutory power to do the work. And it deals with this alternative argument by concluding that, on the facts, there had been no breach even of such a duty. The suggestion that there might exceptionally be a case in which a breach of a public law duty could found a private law right of action has proved controversial and it may have been ill-advised to speculate upon such matters.
32 ……………Speaking for myself, I find it difficult to imagine a case in which a common law duty can be founded simply upon the failure (however irrational) to provide some benefit which a public authority has power (or a public law duty) to provide. For example, the majority reasoning in Stovin v Wise was applied in Capital and Counties plc v Hampshire CC [1997] 2 All ER 865, [1997] QB 1004 to fire authorities, which have a general public law duty to make provision for efficient fire-fighting services (see s 1 of the Fire Services Act 1947). The Court of Appeal held, in my view correctly, that this did not create a common law duty. Stuart-Smith LJ (giving the judgment of the Court of Appeal) said:
`In our judgment the fire brigade are not under a common law duty to answer the call for help, and are not under a duty to take care to do so. If therefore they fail to turn up or fail to turn up in time because they have carelessly misunderstood the message, got lost on the way or run into a tree, they are not liable.’
33 The Court of Appeal in Lamer’s case went on to hold that on the facts there had been no breach of duty. But the consequences of the door which it left open can be seen in the present case. The council was obliged to give discovery of documents relating to its accident studies undertaken pursuant to s 39(3)(a), the decision-making process by which it decided what measures in the light of such studies were appropriate and the steps which had been taken to implement such measures. It was heavily criticised by the judge for the lateness and insufficiency of such discovery. The trial lasted six days, during which the council called a number of its officers as witnesses and was criticised for not calling enough. The simple facts which I have summarised at the beginning of this speech seem to have disappeared from view in the enthusiasm for a hostile judicial inquiry into the council’s administration. If s 39 continues to provoke investigations of this nature, much of the road safety budget will be consumed in the cost of litigation . . .
38 My Lords, I must make it clear that this appeal is concerned only with an attempt to impose upon a local authority a common law duty to act based
solely on the existence of a broad public law duty. We are not concerned with cases in which public authorities have actually done acts or entered into relationships or undertaken responsibilities which give rise to a common law duty of care. In such cases the fact that the public authority acted pursuant to a statutory power or public duty does not necessarily negative the existence of a duty. A hospital trust provides medical treatment pursuant to the public law duty in the National Health Service Act 1977, but the existence of its common law duty is based simply upon its acceptance of a professional relationship with the patient no different from that which would be accepted by a doctor in private practice. The duty rests upon a solid, orthodox common law foundation and the question is not whether it is created by the statute but whether the terms of the statute (for example, in requiring a particular thing to be done or conferring a discretion) are sufficient to exclude it. The law in this respect has been well established since Geddis v Proprietors of Bann Reservoir (1878) 3 App Cas 430 . . .
40 in Phelps v Hillingdon London BC [2000] 4 All ER 504, [2001] 2 AC 619 . . . the House held that the duty of care did not depend upon the statute. It arose because the psychologist had impliedly undertaken to exercise proper professional skill in diagnosis, in the same way as a doctor provided by the National Heath Service. The fact that the doctor-patient relationship was brought into being pursuant to public law duties was irrelevant except so far as the statute provided a defence. The House decided that no such defence had been established . . .
44 My Lords, in this case the council is not alleged to have done anything to give rise to a duty of care. The complaint is that it did nothing. Section 39 is the sole ground upon which it is alleged to have had a common law duty to act. In my opinion the statute could not have created such a duty. The action must therefore fail. For these reasons and those of my noble and learned friends Lord Scott of Foscote, Lord Rodger of Earlsferry and Lord Brown of Eaton-under-Heywood, I would dismiss the appeal.
LORD SCOTT OF FOSCOTE:
71 . . . In my opinion, if a statutory duty does not give rise to a private right to sue, the duty cannot create a duty of care that would not have been owed at common law if the statute were not there. If the policy of the statute is not consistent with the creation of a statutory liability to pay compensation for damage caused by a breach of the statutory duty, the same policy would, in
my opinion, exclude the use of the statutory duty in order to create a common law duty of care that would be broken by a failure to perform the statutory duty. I would respectfully accept Lord Browne-Wilkinson’s comment in X v Bedfordshire CC [1995] 3 All ER 353 at 371, [1995] 2 AC 633 at 739 that—
`the question whether there is such a common law duty and if so its ambit, must be profoundly influenced by the statutory framework within which the acts complained of were done.’
But that comment cannot be applied to a case where the defendant has done nothing at all to create the duty of care and all that is relied on to create it is the existence of the statutory duty. In short, I do not accept that a common law duty of care can grow parasitically out of a statutory duty not intended to be owed to individuals . . .
73 There are, of course, many situations in which a public authority with public duties has a relationship with a member of the public that justifies imposing on the public authority a private law duty of care towards that person. And the steps required to be taken to discharge that private law duty of care may be steps comprehended within the public duties. Barrett v Enfield LBC [1999] 3 All ER 193, [2001] 2 AC 550 and Phelps v Hillingdon London BC [2000] 4 All ER 504, [2001] 2 AC 619 are examples. But the council in the present case had no relationship with Mrs Gorringe that it did not have with every other motorist driving on the stretch of road in question . . .
Michael v Chief Constable of South Wales Police Supreme Court
[2015] UKSC 2, [2015] 2 All ER 635
Introduction
1 This appeal arises from the tragic murder of Joanna Michael by a former partner, which might have been prevented if the police had responded promptly to a 999 call made by Ms Michael. As I explain below, two police forces were involved, Gwent Police and South Wales Police, and there was a lack of effective liaison between them.
2 The claimants in the action are Ms Michael’s parents and her two young children. The defendants are the Chief Constables of Gwent Police and the South Wales Police. The claim is brought for damages for negligence at common law and under the provisions of the Fatal Accidents Act 1976 and Law Reform (Miscellaneous Provisions Act) 1934 (which I will refer to as the common law or negligence claim), and for damages under the Human Rights Act 1998 for breach of the defendants’ duties as public authorities to protect Ms Michael’s right to life under art 2 of the European Convention . . .
3 The police applied for the claims to be struck out or for summary judgment to be entered in their favour. At first instance Judge Jarman QC . . . in a carefully reasoned judgment . . . refused to strike out or give summary judgment on the negligence and art 2 claims. The Court of Appeal reversed Judge Jarman’s decision in part ([2012] EWCA Civ 981, [2012] All ER (D) 216 (Jul)). They held unanimously that there should be summary judgment in favour of the defendants on the negligence claim for reasons given by Longmore LJ, with which Richards and Davis LJJ agreed. The majority upheld Judge Jarman’s decision that the art 2 claim should proceed to trial . .
4 The claimants appeal against the decision of the Court of Appeal on the negligence claim. The police cross appeal against the decision of the majority of the Court of Appeal on the art 2 claim. Since the court is considering as a matter of law whether the claims have a real possibility of success, it must be assumed for present purposes that all factual allegations made by the claimants are capable of being established. In relation to the negligence claim, the sole question is whether the police owed any duty of care to Ms Michael on the facts as they are alleged. If so, questions about whether there was a breach of duty and its consequences would be matters for the trial.
5 Ms Michael lived in Cardiff with her two children who were aged seven years and ten months at the date of her death. On 5 August 2009 at 2.29 am Ms Michael dialled 999 from her mobile phone. She lived in the area of the South Wales Police, but the call was picked up by a telephone mast in Gwent and was routed to the Gwent Police call centre. It was received by a civilian call handler. The conversation was recorded and it has been transcribed. Ms Michael said that her ex-boyfriend was aggressive, had just turned up at her house in the middle of the night and had hit her. He had found her with another man. He had taken her car to drive the other man home and had said that when he came back he was going to hit her. She said that he was going to be back ‘any minute literally’.
6 She was asked by the call handler if she could lock the doors to keep him out. She replied that she could lock the doors, but she did not know what he would do. She did not know if he had a key or how he got into her house.
7 The next part of the transcript reads:
. . he come back and . . . he told the guy to get out of the room, and then he bit my ear really hard and it’s like all swollen and all bruised at the moment, and he just said “I’m going to drop him home and (inaudible) [fucking kill you]”.’
8 There is no explanation on the face of the transcript why the last three words are preceded by `(inaudible)’ and appear in square brackets; but according to the call handler, who later made a written statement after listening to the recording of the call, at several points there was interference and noise in the background. As to the words in question, she said:
`On listening to the recording I can hear the words “fucking kill you” being said by Joanna. My understanding is assisted by reading these words in the typed transcript. I had certainly heard and understood her previously when she had said he was going to return and “hit her”. For periods of time throughout the call I was very distracted. As I explained . . . all the details were going to have to be retaken by South Wales Police, the call graded and resources deployed from their end not ours . . . At the time I was distracted and under pressure to redirect the call and my memory is that I did not hear “kill you”. I don’t remember her saying this. I was more concerned at the time with the safety of the other man in the company of the assailant.’
9 The call ended with the call handler telling Ms Michael that her call had come through to Gwent Police and that she would pass the call on to the
police in Cardiff. She added ‘they will want to call you back so please keep your phone free’.
10 The call was graded by Gwent Police as a `G1′ call. This meant that it required an immediate response by police officers. Ms Michael’s home was no more than five or six minutes’ drive from the nearest police station.
11 The Gwent call handler immediately called South Wales Police and gave an abbreviated version of what Ms Michael had said. No mention was made of a threat to kill. South Wales Police graded the priority of the call as `G2′. This meant that officers assigned to the case should respond to the call within 60 minutes.
12 At 2.43 am Ms Michael again called 999. The call was again received by Gwent Police. Ms Michael was heard to scream and the line went dead.
13 South Wales Police were immediately informed. Police officers arrived at Ms Michael’s address at 2.51 am. They found that she had been brutally attacked. She had been stabbed many times and was dead. Her attacker was soon found and arrested. He subsequently pleaded guilty to murder and was sentenced to life imprisonment.
14 Data held by South Wales Police recorded a history of abuse or suspected domestic abuse towards Ms Michael by the same man. On four occasions between September 2007 and April 2009 incidents had been reported to the police and entries had been made on a public protection referral for domestic abuse form, but in two instances the risk indications section of the form was not completed.
15 The consequences are stark and tragic. Ms Michael has lost her life in the most violent fashion. Her children have lost their mother and breadwinner. Her parents have lost their daughter and have taken on the responsibility and work of bringing up their grandchildren.
16 An investigation by the Independent Police Complaints Commission led to a lengthy report. It contained serious criticisms of both police forces for individual and organisational failures.
Issues
. . . 18 The arguments raised the following issues:
(1) If the police are aware or ought reasonably to be aware of a threat to the life or physical safety of an identifiable person, or member of an identifiable small group, do the police owe to that person a duty under the law of negligence to take reasonable care for their safety?
I will refer to this as the interveners’ liability principle, because it was advanced by Ms Monaghan.
(2) Alternatively, if a member of the public (A) furnishes a police officer (B) with apparently credible evidence that a third party whose identity and whereabouts are known presents a specific and imminent threat to his life or physical safety, does B owe to A a duty to take reasonable steps to assess such threat and, if appropriate, take reasonable steps to prevent it being executed?
I will refer to this for convenience as Lord Bingham’s liability principle, because that is how Lord Bingham of Cornhill described it in his dissenting judgment in Smith v Chief Constable of Sussex Police, heard jointly with Van Colle v Chief Constable of Hertfordshire Police [2008] UKHL 50, [2008] 3 All ER 977, [2009] AC 225 (at [44]). Mr Bowen argued in support of this proposition as an alternative to his principal proposition.
(3) On the basis of what was said in the first 999 call, and the circumstances in which it was made, should the police be held to have assumed responsibility to take reasonable care for Ms Michael’s safety and therefore owed her a duty of care in negligence?
This was Mr Bowen’s main argument.
(4) On the material before the court, was there arguably a breach of art 2?
Domestic violence
19 In order to set their legal arguments in context, the interveners and the appellants referred to a substantial body of material about the deep-rooted problem of domestic violence in our society, its prevalence and weaknesses which have been identified in the police response to it.
35 . . . In recent years the courts have considered on a number of occasions whether, and in what circumstances, the police may owe a private law duty to a member of the public at risk of violent crime in addition to their public law duty.
36 In Hill v Chief Constable of West Yorkshire [1988] 2 All ER 238, [1989]
AC 53 the claimant was the mother of the last victim of a notorious murderer. Between 1975 and 1980 he murdered 13 young women in West Yorkshire. The statement of claim alleged that the police made a number of mistakes in their investigation which should not have been made by a competent police force exercising reasonable care and skill. For the purpose of deciding whether Mrs Hill had a valid claim against the police in negligence, the House of Lords assumed that the factual allegations were true, and that if the police had exercised reasonable care the murderer would have been arrested before he had an opportunity to murder her daughter. It was held that the police were under no liability in negligence.
37 The leading speech was given by Lord Keith of Kinkel. He recognised that the general law of tort applies as much to the police as to anyone else. Examples of police liability for negligence were Knightley v Johns [1982] 1 All ER 851, [1982] 1 WLR 349 (where a police officer who attended the scene of a road accident carelessly created an unnecessary danger to the claimant) and Rigby v Chief Constable of Northamptonshire [1985] 2 All ER 985, [1985] 1 WLR 1242 (where a police officer attending a break-in to a gunsmith’s shop carelessly caused severe damage to the premises by the firing of a canister into the building in the absence of fire-fighting equipment). But he held that the general duty of the police to enforce the law did not carry with it a private law duty towards individual members of the public.
43 . . . [Lord Keith as one ground for deciding that there was no duty of care — see p. 49, ante)] concluded that it would be contrary to the public interest to impose liability on the police for mistakes made in relation to their operations in the investigation and suppression of crime. He said that the manner and conduct of such an investigation must necessarily involve a variety of decisions to be made on matters of policy and discretion, such as which particular line of inquiry is most advantageously to be pursued and what is the most advantageous way to deploy available resources. Many such decisions would not be appropriate to be called in question, but elaborate investigation of the facts might be necessary to ascertain whether or not this was so. A great deal of police time and expense might have to be put into the preparation of a defence to the action. The result would be a significant diversion of police manpower and attention from their most important function. He also said that the imposition of liability might lead to the exercise of the investigative function being carried out in a defensive frame
of mind . ..
45 In Brooks v Metropolitan Police Comr [2005] UKHL 24, [2005] 2 All ER 489, [2005] 1 WLR 1495, the claimant and his friend Stephen Lawrence were set upon by a gang of white youths in a racist attack. Stephen Lawrence was murdered. The claimant was traumatised. He claimed that the police owed him a duty of care in negligence: (a) to take reasonable steps to assess whether he was a victim of crime and, if so, to accord him reasonably appropriate protection and support; (b) to take reasonable steps to afford him the protection, assistance and support commonly afforded to a key eye-witness to a serious crime of violence; and (c) to afford reasonable weight to the account given by him and to act on the account accordingly.
46 The House of Lords held that the police owed him no such legal duty of care. All the judges endorsed the correctness of the decision in Hill but they expressed reservations about the width of some of the observations in Hill (per Lord Bingham Lord Nicholls of Birkenhead (at [6]) and Lord Steyn (at [28])). It is clear that the part of Lord Keith’s speech to which they were referring was the final part in which he addressed the …
47 Lord Steyn (with whom Lord Rodger of Earlsferry and Lord Brown of Eaton-under-Heywood agreed) said (at [27]) that the principle in Hill should be reformulated in terms of the absence of a duty of care rather than a blanket immunity. He noted (at [29]) that it was conceded by the police that cases of assumption of responsibility under what he described as the extended Hedley Byrne doctrine (Hedley Byrne & Co Ltd v Heller & Partners Ltd [1963] 2 All ER 575, [1964] AC 465) fall outside the principle in Hill.
48 However, he said that the core principle of Hill had remained unchallenged in domestic jurisprudence and European jurisprudence for many years, and that if a case such as Hill were to arise for fresh decision it would undoubtedly be decided in the same way. He reiterated that the prime function of the police is the preservation of the Queen’s peace. The police must concentrate on preventing the commission of crime; protecting life and property; and apprehending criminals and preserving evidence. He said ([2005] 2 All ER 489, [2005] 1 WLR 1495 (at [30])) that a retreat from the principle in Hill would have detrimental effects for law enforcement:
`By placing general duties of care on the police to victims and witnesses
the police’s ability to perform their public functions in the interests of the community, fearlessly and with despatch, would be impeded.’
49 By endorsing the principle in Hill in the terms that he did, Lord Steyn confirmed that the functions of the police which he identified were public law duties and did not give rise to private law duties of care (whether to victims, witnesses or suspects), although this did not exclude liability under Hedley Byrne.
50 Lord Bingham and Lord Nicholls were also of the view that the public duties of the police would potentially be impeded by the imposition of the duties asserted by Mr Brooks . . .
52 In Van Colle v Chief Constable of Hertfordshire Police, Smith v Chief Constable of Sussex Police [2008] 3 All ER 977, [2009] AC 225 the House of Lords heard together two appeals involving in different ways the question formulated by Lord Bingham as follows: if the police are alerted to a threat that D may kill or inflict violence on V, and the police take no action to prevent that occurrence, and D does kill or inflict violence on V, may V or his relatives obtain civil redress against the police, and if so, how and in what circumstances?…
56 Smith [2008] 3 All ER 977, [2009] AC 225 reached the House of Lords on an application to strike out. The question was whether the police owed a duty of care to the claimant on the assumed facts. The claimant was a victim of violence by a former partner. He had suffered violence at the hands of the other man during their relationship. After it ended, he received a stream of violent, abusive and threatening messages, including death threats. He reported these matters to the police and told a police inspector that he thought that his life was in danger. A week later the man attacked the victim at his home address with a claw hammer, causing him fractures of the skull and brain damage. The assailant was subsequently convicted of making threats to kill and causing grievous bodily harm with intent. The House of Lords held by a majority that the police owed the victim no duty of care in negligence.
57 Lord Bingham, dissenting, formulated his liability principle which I have set out . . .
59 Lord Bingham did not consider that his liability principle conflicted with the ratio of either Hill or Brooks, or that it would distract the police from their
primary function of suppressing crime and apprehending criminals. He observed that statements in Glasbrook Bros Ltd v Glamorgan CC [1925] AC 270, [1924] All ER Rep 579 and Glamorganshire Coal Co Ltd v Glamorganshire Standing Joint Committee [1916] 2 KB 206, [1916-17] All ER Rep 46 (referring to protection of property) would support a broader liability principle, but he said that the law attached particular importance to the protection of life and physical safety, and he did not consider it necessary to analyse in detail the cases on property damage.
60 Lord Bingham did not consider that the policy reasons given by Lord Keith in Hill justified the width of what he said about police immunity.
61 Lord Hope of Craighead (with whom Lord Carswell and Lord Brown agreed) shared Lord Bingham’s view that the reasons given by Lord Keith in Hill for saying that an action for damages for negligence should not lie against the police on grounds of public policy did not all stand up to critical examination. He regarded Brooks as a more important authority. In disagreement with Lord Bingham, he considered that the risks identified in Brooks of imposing principles which would tend to inhibit a robust approach in addressing a person as a possible suspect or victim were relevant to cases of which Smith was an example.
62 Lord Hope recognised that Lord Bingham’s liability principle was confined to cases where a member of the public furnished apparently credible evidence to the police that a third party represented a specific and imminent threat to his life or physical safety, but he considered that this formulation would lead to uncertainty in its application and to the detrimental effects about which Lord Steyn had warned in Brooks.
63 Lord Phillips of Worth Matravers CJ identified the core principle in Hill as being that in the absence of special circumstances the police owe no common law duty of care to protect individuals against harm caused by criminals ([2008] 3 All ER 977, [2009] AC 225 (at [97])). The question was whether that core principle could stand with, or accommodate by way of exception, the liability principle formulated by Lord Bingham. As to that, he did not find it easy to identify the essential parameters of the principle. He asked rhetorically whether the principle would apply when the evidence emanates from a third person; or if the whereabouts but not the identity of the potential wrongdoer was known; or if the threat was specific, but not imminent; or if the threat was imminent but not specific. He also questioned why the principle should be restricted to a threat to life or physical safety, and
not apply to a threat to property. He concluded (at [100]) that the elements in Lord Bingham’s liability principle were facts which would make particularly egregious a breach of duty of care that could be more simply stated:
`where the police have reason to believe that an individual is threatened with criminal violence they owe a duty to that person to take such action as is in all circumstances reasonable to protect that person.’
But such a duty of care would be in direct conflict with Hill. He therefore found himself reluctantly unable to accept Lord Bingham’s liability principle. 64 Hill, Brooks and Van Colle and Smith are the most important decisions .
……………..
112 In some areas, such as health care and education, public authorities provide services which involve relationships with individual members of the public giving rise to a recognised duty of care no different from that which would be owed by any other entity providing the same service. A hospital and its medical staff owe the same duty to a patient whether they are operating within the National Health Service or the private sector (Roe v Ministry of Health, Woolley v Ministry of Health [1954] 2 All ER 131, [1954] 2 QB 66) . . . Educational psychology is a professional service linked to education. An organisation which provides an educational psychology service, and its educational staff, owe the same duty to a pupil whether they are operating in the public or the private sector (X (minors) v Bedfordshire CC, M (a minor) v Newham London BC, E (a minor) v Dorset CC [1995] 3 All ER 353, [1995] 2 AC 633).
113 Besides the provision of such services, which are not peculiarly governmental in their nature, it is a feature of our system of government that many areas of life are subject to forms of state controlled licensing, regulation, inspection, intervention and assistance aimed at protecting the general public from physical or economic harm caused by the activities of other members of society (or sometimes from natural disasters). Licensing of
firearms, regulation of financial services, inspections of restaurants, factories and children’s nurseries, and enforcement of building regulations are random examples. To compile a comprehensive list would be virtually impossible, because the systems designed to protect the public from harm of one kind or another are so extensive.
114 It does not follow from the setting up of a protective system from public resources that if it fails to achieve its purpose, through organisational defects or fault on the part of an individual, the public at large should bear the additional burden of compensating a victim for harm caused by the actions of a third party for whose behaviour the state is not responsible. To impose such a burden would be contrary to the ordinary principles of the common law.
115 The refusal of the courts to impose a private law duty on the police to exercise reasonable care to safeguard victims or potential victims of crime, except in cases where there has been a representation and reliance, does not involve giving special treatment to the police. It is consistent with the way in which the common law has been applied to other authorities vested with powers or duties as a matter of public law for the protection of the public . . .
116 The question is therefore not whether the police should have a special immunity, but whether an exception should be made to the ordinary application of common law principles which would cover the facts of the present case.
117 Ms Monaghan has advanced essentially two arguments in support of the interveners’ liability principle. The first is that the nature and scale of the problem of domestic violence is such that the courts ought to introduce such a principle to provide protection for victims and a spur to the police to respond to the problem more effectively. The second is that the common law should be extended in harmony with the obligations of the police under arts 2 [right to life] and 3 [right not to be subjected to inhuman or degrading treatment] of the Convention.
118 I recognise fully that the statistics about the incidence of domestic violence and the facts of individual cases such as the present are shocking. I recognise also that the court has been presented with fresh material on the subject. However, I am not persuaded that they should cause the court to create a new category of duty of care for several reasons.
119 If the foundation of a duty of care is the public law duty of the police for the preservation of the Queen’s peace], it is hard to see why the
duty should be confined to potential victims of a particular kind of breach of the peace. Would a duty of care be owed to a person who reported a credible threat to burn down his house? Would it be owed to a company which reported a credible threat by animal rights extremists to its premises? If not, why not?
120 It is also hard to see why it should be limited to particular potential victims. If the police fail through lack of care to catch a criminal before he shoots and injures his intended victim and also a bystander (or if he misses his intended target and hits someone else), is it right that one should be entitled to compensation but not the other, when the duty of the police is a general duty for the preservation of the Queen’s peace? Similarly if the intelligence service fails to respond appropriately to intelligence that a terrorist group is intending to bring down an airliner, is it right that the service should be liable to the dependants of the victims on the plane but not the victims on the ground? Such a distinction would be understandable if the duty is founded on a representation to, and reliance by, a particular individual but that is not the basis of the interveners’ liability principle. These questions underline the fact that the duty of the police for the preservation of the peace is owed to members of the public at large, and does not involve the kind of close or special relationship (`proximity’ or ‘neighbourhood’) necessary for the imposition of a private law duty of care.
121 As to the argument that imposition of the interveners’ liability principle should improve the performance of the police in dealing with cases of actual or threatened domestic violence, the court has no way of judging the likely operational consequences of changing the law of negligence in the way that is proposed. Mr Bowen and Ms Monaghan were critical of statements in Hill and other cases that the imposition of a duty of care would inevitably lead to an unduly defensive attitude by the police. Those criticisms have force. But the court would risk falling into equal error if it were to accept the proposition, on the basis of intuition, that a change in the civil law would lead to a reduction of domestic violence or an improvement in its investigation. Failures in the proper investigation of reports of violence or threatened violence can have disciplinary consequences (as there were in the present case), and it is speculative whether the addition of potential liability at common law would make a practical difference at an individual level to the conduct of police officers and support staff. At an institutional level, it is possible to imagine that it might lead to police forces changing their priorities
by applying more resources to reports of violence or threatened violence, but if so, it is hard to see that it would be in the public interest for the determination of police priorities to be affected by the risk of being sued.
122 The only consequence of which one can be sure is that the imposition of liability on the police to compensate victims of violence on the basis that the police should have prevented it would have potentially significant financial implications. The payment of compensation and the costs of dealing with claims, whether successful or unsuccessful, would have to come either from the police budget, with a corresponding reduction of spending on other services, or from an increased burden on the public or from a combination of the two.
123 In support of the argument that the court should develop the common law to encompass the duties of the police under the Convention, Mr Bowen and Ms Monaghan submitted that consistency between the common law and the Convention should be encouraged and relied in particular on observations of the Court of Appeal in D v East Berkshire Community Health NHS Trust, K v Dewsbury Healthcare NHS Trust, K v Oldham NHS Trust [2003] EWCA Civ 1151, [2003] 4 All ER 796, [2004] QB 558 (at [79]—[85]).
124 There are certainly areas where the Convention has had an influence on the common law. Possibly the most striking example is in the law of confidentiality, which the courts have developed to include a partial law of privacy in response to the requirements of art 8 (Campbell v MGN Ltd [2004] UKHL 22, [2004] 2 All ER 995, [2004] 2 AC 457). But two points should be noted about that. First, the common law had long been regarded as defective. It was heavily criticised by Bingham LJ in Kaye v Robertson [1991] FSR 62, but the Court of Appeal held with regret that only Parliament could cure it. The Human Rights Act 1998 provided the means for reform. In debates on the bill Lord Irvine of Lairg LC made it clear that in his view the Act would open the way to the courts developing rights of privacy through art 8, and so it did. Secondly, development of the law was necessary to comply with art 8 [right to private and family life], as interpreted by the Strasbourg court.
125 The circumstances of the present case are different. The suggested development of the law of negligence is not necessary to comply with arts 2 and 3. On orthodox common law principles I cannot see a legal basis for fashioning a duty of care limited in scope to that of arts 2 and 3, or for gold plating the claimant’s Convention rights by providing compensation on a different basis from the claim under the Human Rights Act 1998. Nor do I
see a principled legal basis for introducing a wider duty in negligence than would arise either under orthodox common law principles or under the Convention.
126 The same argument, that the common law should be developed in harmony with the obligations of public bodies including the police under the Human Rights Act 1998 and arts 2 and 3 of the Convention, was advanced in Smith as a ground for holding that the police owed a duty of care to the deceased after he reported receiving threats. Reliance was similarly placed on the approach of the Court of Appeal in D v East Berkshire NHS Trust [2003] 4 All ER 796, [2004] QB 558 (as noted by Lord Phillips MR, who had delivered the judgment of the Court of Appeal in that case). Counsel for Mr Smith relied particularly on the analysis of the effect of the Human Rights Act in D v East Berkshire NHS Trust (at [55]—[87]): see the reported argument—Van Colle v Chief Constable of Hertfordshire Police, Smith v Chief Constable of Sussex Police [2009] AC 225 at 240 (see also [2008] 3 All ER 977). The argument by analogy with that case which presently commends itself to Lady Hale is therefore not a new argument, but one which failed to persuade the majority in Smith.
127 The argument was rejected by the House of Lords for reasons given by Lord Hope ([2008] 3 All ER 977, [2009] AC 225 (at [81]—[82])), Lord Phillips (at [98]—[99]) and most fully by Lord Brown (at [136]—[139]). Lord Brown did not consider that the possibility of a Human Rights Act claim was a good reason for creating a parallel common law claim, still less for creating a wider duty of care. He observed that Convention claims had different objectives from civil actions, as Lord Bingham pointed out in R (on the application of Green field) v Secretary of State for the Home Dept [2005] UKHL 14, [2005] 2 All ER 240, [2005] 1 WLR 673. Whereas civil actions are designed essentially to compensate claimants for losses, Convention claims are intended to uphold minimum human rights standards and to vindicate those rights. The difference in purpose has led to different time limits and different approaches to damages and causation. Lord Brown recognised that the violation of a fundamental right is a very serious thing, but he saw no sound reason for matching the Convention claim with a common law claim. To do so would in his view neither add to the vindication of the right, nor be likely to deter the police from the action or inaction which risked violating it in the first place . . .
129 In support of the narrower liability principle proposed by Lord
Bingham in Smith, Mr Bowen submitted that limitation of a duty of care to A to cases where A has provided the police with apparently credible evidence that she or he is under a specific and imminent threat to their life or personal safety from a person whose identity and whereabouts are known would satisfy the requirement of closeness or ‘proximity’. But the majority in Smith rejected Lord Bingham’s formula for reasons which remain cogent. It would be unsatisfactory to draw dividing lines according to whether the threat is reported by A or by someone else (for example, in the present case by the man driven home by Ms Michael’s murderer before he returned and killed her); or whether the threat is credible and imminent or credible but not imminent; or whether the whereabouts of the person making the threat are known or unknown; or whether the threatened violence was to A’s person or property or both. As to the first of those distinctions (whether the threat was reported by A or someone else), Lord Bingham’s own position was ambiguous because his formula confined the duty to a case where the threat was reported by A, but he also disapproved the decision in OLL Ltd v Secretary of State for Transport [1997] 3 All ER 897, in which the concerns about the safety of the children and adults at sea were raised by other people.
130 More generally, I would reject the narrower liability principle advocated by the claimants for the same reasons as the broader liability principle advocated by the interveners. If it is thought that there should be public compensation for victims of certain types of crime, above that which is provided under the criminal injuries compensation scheme, in cases of pure omission by the police to perform their duty for the prevention of violence, it should be for Parliament to determine whether there should be such a scheme and, if so, what should be its scope as to the types of crime, types of loss and any financial limits. By introducing the Human Rights Act 1998 a cause of action has been created in the limited circumstances where the police have acted in breach of arts 2 and 3 (or art 8). There are good reasons why the positive obligations of the state under those arts are limited. The creation of such a statutory cause of action does not itself provide a sufficient reason for the common law to duplicate or extend it.
[LORD TOULSON then explained his reasons for rejecting what he termed the ‘alternative liability principle’ in Lord Kerr’s dissenting speech and continued:]
reasonable care for Ms Michael’s safety?
138 Mr Bowen submitted that what was said by the Gwent call handler who received Ms Michael’s 999 call was arguably sufficient to give rise to an assumption of responsibility on the Hedley Byrne principle as amplified in Spring v Guardian Assurance plc [1994] 3 All ER 129, [1995] 2 AC 296. I agree with the Court of Appeal that the argument is not tenable. The only assurance which the call handler gave to Ms Michael was that she would pass on the call to the South Wales Police. She gave no promise how quickly they would respond. She told Ms Michael that they would want to call her back and asked her to keep her phone free, but this did not amount to advising or instructing her to remain in her house, as was suggested. Ms Michael’s call was made on her mobile phone. Nor did the call handler’s inquiry whether Ms Michael could lock the house amount to advising or instructing her to remain there. The case is very different from Kent v Griffiths [2000] 2 All ER 474, [2001] QB 36 where the call handler gave misleading assurances that an ambulance would be arriving shortly.
[His Lordship then decided that the art 2 claim should be allowed to proceed to trial and concluded:]
140 I would dismiss the appeal and cross appeal.