Co-development and Adaptation of Common Law and Tort Law in Ireland

As an instrument, common law has been in use in England since the Norman conquest in 1066. The Irish legal system is based on the English common law tradition. Its dominance was consolidated after Oliver Cromwell’s military campaign in Ireland between 1649 and 1652. Society has changed immeasurably since 1066. It is also vastly different in 2019 to how it was in 1652. It is vital that the law adapts to reflect these changes. This is possible with a common law system, as amendments to legislation are not required in order for judges to react to societal changes. The area of tort law is one in particular which has seen huge changes. As per McMahon and Binchy, human beings, as social creatures, come into contact and conflict with other human beings. With changes to society, these conflicts have increased in both number and complexity. Lord Radcliffe stated “the common law is a body of law which develops in process of time in response to the development of the society in which it rules”. That is not to say that some of the developments are not controversial. Therefore, Lady Hale’s statement in the Woodland v Essex County Council regarding the dynamic nature of common law while warning of the dangers it can face is extremely important. This paper argues that it is societal changes that drive common law amendments as, due to its dynamic nature, it can react to social transformation before the legislature can. However, as some shifts in society are occurring so rapidly, there is the danger that new precedents are set as a reaction, without considering the underlying principles sufficiently. It appears that the Irish judiciary system is more cautious to societal change than the UK system and, in fact, often adopts their new precedents once they have been established for some time.

“The life of the law has not been logic, it has been experience”. While Oliver Wendell Holmes’s statement on common law is from 1881 it is still valid today. Common law depends on the experience of judges to ensure that it is interpreted correctly. It also depends on these judges to assess if the previous precedent is still applicable based on societal changes. Donoghue v Stevenson can be viewed as the seminal case that laid down the foundation for the modern tort of negligence in the UK, where it established the neighbor principle, thus extending the tort of negligence to proximity. Prior to this, tort cases were considered either trespass or trespass on the case, where the injury had to be direct and foreseeable. The House of Lords, in their judgement in Donoghue v Stevenson produced a duty of care to end-users or end customers in the eventuality of faulty goods. The precedent set in the Donoghue v Stevenson was adopted into Irish law in the judgement on Kirby v Burke Holloway & Co. While in 2019, it appears obvious that liability for defective products should extend to end-consumers regardless of who purchased the product, this was not the case in 1932. The lawyer acting on behalf of the plaintiff, Walter Leechman, had acted as the lawyer for the plaintiff in a similar case, Mullen v Barr, several weeks prior to the Donoghue case, and that judgement had found in favour of the defendant. The judgement in Donoghue is therefore ground-breaking but dissenting as two of the five judges found for the defendant. Lord Buckmaster cited Lord Anderson in Mullen v Barr, who said “it would seem little short of outrageous to make them responsible to members of the public for the condition of every bottle which issues from their works. It is obvious that if such responsibility attached to the Defenders, they might be called on to meet claims of damages which they could not possibly investigate or insure”. This paper argues that following on so quickly from the Mullen case, and without existing legal precedents to follow, the Donoghue judgement could be considered, at the time of issuance, as being inconsistent with underlying principles. However, Lord Atkin, accepting that society had changed to the extent that the end-user of products was not always the purchaser of the item, acknowledged that the neighbor principle was required. As evidence of the way common law adapts and grows within tort law, based on underlying principles, is examined below.

In Dorset Yacht Company Ltd v Home Office, Lord Reid stated in his judgement that the passage on 'who is my neighbour?” in Lord Atkin’s judgement should be considered a statement of principle which should apply in cases unless there is a valid reason for its exclusion. This judgement evidenced an incrementalist approach to the development of duty of care, consolidating a previous ground-breaking judgement into a principle. In Anns v Merton London Borough Council, Lord Wilberforce’s judgement, in the House of Lords, went a step further and established a two-step test in determining whether or not a duty of care is owed. Firstly, the court would need to ascertain if there was a sufficient relationship of proximity at which prima facia duty of care applies. If this can be answered in the affirmative, the second test is whether there are any considerations which limit or negate the duty of care. However, the Anns test faced criticism for being overly expansive, which is a danger of the common law system. Subsequent cases, aware of this danger and, perhaps wanting to return to a duty of care based on underlying principles coupled with cautiousness, overturned the decision in the Anns case. This paper contends that tort law must be developed cautiously, based on underlying principles, particularly as the courts are reluctant to open the floodgates to claims, which might happen if judges bring in overly expansive decisions. While a societal need might exist for the law to be expanded or revised, courts must be careful to ensure that the amended law is suitable for purpose and not merely reactionary. Reactionary precedents might do exactly what the courts strive to avoid: opening the floodgates to a myriad of claims.

Eoin Quill details the issue the neighbor principle has had with competing interests with negligence vis-à-vis public policy, . The definite ruling on negligence in Ireland, endorsed by the Supreme Court, is the Glencar Exploration p.l.c. v Mayo County Council. Unlike the Donoghue case, some cases have circumstances that have never been before the courts before, which thereby require careful consideration.

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According to Lord Denning, Chapman v Honig is one such case where, to his knowledge, the facts had not been presented before a court before. He believed a wrong had been done and, while circumstances of the case were unique to the UK judiciary, the court had to make a decision on whether or not they should redress the wrong the plaintiff suffered. Lord Denning agreed with the judgement of Judge Baxter in the lower level court while his fellow judges dissented, reversing the lower courts’ decision and finding for the defendant, with no leave to appeal. Both Pearson LJ and Davies LJ found that the eviction notice had been served vindictively but considered this to be an irrelevant fact. This judgement is still the current position in the UK on retaliatory evictions, irrespective of the reasons behind them. This paper argues that the restriction of disallowing appeal to the House of Lords, imposed by the judgement in this case, has inhibited the dynamic instrument of common law with the court acting overly cautiously, resulting in a decision that is heavily criticized and but with no appetite from the legislator to amend it.

In many cases, judgement made in the lower courts are overturned on appeal, or at Supreme Court level. Higher level courts are not bound by decisions from the lower courts. However, lower courts are bound by decisions from the higher courts. If, for example, the Supreme Court makes a binding decision, even if it is universally considered to be a wrong decision, the lower courts cannot overturn it. The danger in this instance is that an erroneous precedent will have been set. While the experience of judges that Holmes values is important, judges are human beings. The common law system relies on judges who are humans with all the biases and flaws associated with being human, which might influence their decisions. Many judgement are contentious. One such judgement was the McFarlane case, which Lord Steyn admitted was a very unpopular decision, savaged by some and heavily criticized by others. Many are overturned by higher courts. As Walsh J stated, “judge-made rules and, as such, can be changed and altered by judges”. The danger is that one person’s opinion and interpretation of both the law and society can extend the law beyond what is deemed acceptable. Some judgement in higher courts are dissenting, indicating that even the most experienced judges have conflicting opinions. judge-made rules and, as such, can be changed and altered by judges. This paper contends that judges need to ensure that all judgement are based on underlying principles, thereby avoiding either making judgement that result in unbridled growth or possible erroneous interpretations of law.

One criticism of the common law system is that it is dependent on unelected judges to formulate new laws through precedents. Some people might feel that the judges are part of the political system and are therefore biased by the Government of the day, which is not the case. All judges in Ireland are understood to be make decisions independent of political bias. This paper argues that this political impartiality, combined with the experience that Holmes states judges to have, means the common law system is a fair one, reflecting the society of the day. This is not the only criticism of the common law system in Ireland.

The Constitution is Ireland’s primary source of law. This has the disadvantage of limiting the common law process and inhibiting judges from making some judgement as a conflict might arise between both systems. According to Charleton J., this has resulted in a situation where judges can develop existing laws but are unable to make new laws. As legislation is not updated in line with societal changes, this paper argues that the restrictions on common law due to a conflict with the Constitution adversely impacts the judicial system in Ireland. It impedes the dynamic aspect of the common law system.

Ireland is as a small jurisdiction, thus Irish judges might find themselves reviewing cases from other common law jurisdictions for guidance. The UK is one such source and Irish court have adopted many of their decisions, as seen earlier in this paper. Irish courts also consider judgement in other common law jurisdictions which share the same heritage. While this is a solid approach, this paper argues that it is only in the past twenty years that Irish society has developed on a similar path to societies in countries that share similarities and history with Ireland, such as the UK and the US. Therefore, some of the precedents in these jurisdictions might not have been suitable to the Irish legal system. If Ireland continues adopting precedents from other countries, the judges need to pay careful consideration to ensure that the precedent honors the underlying principles of Irish law, irrespective of whether it does in the country it was established.