The Gazette 1989

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GAZETTE MARCH 1989
ever, the damages recoverable
are limited to expenses
necessarily incurred in averting
that danger. The case cannot, in
my opinion, properly be adapted
to support the recovery of
damages for pure economic loss
going beyond that, and for the
reasons given by [Lord Bridge],
with whose analysis I respect-
fully agree, such loss is not in
principle recoverable in tort
unless the case can be brought
within the principle of reliance
established by the Hed/ey Byrne
case."
Lord Oliver's hesitancy as to
whether costs incurred in prevent-
ing threatened damage to other
property fall within the range of
recovery is worth noting.
Imp l i ca t i ons for I r e l and
It is difficult to assess the likely
attitude of the Irish courts to D. &
F. Estates. Certainly in recent years,
the Supreme Court has generally
been more willing than the House
of Lords to embrace the practical
implications of the "neighbour"
and "proximity" tasks espoused in
Donoghue -v- Stevenson and Anns.
In Ward -v- McMaster,18 McCarthy,
J.'s judgment in particular shows a
strong disposition to steer Irish law
away from the retrenched position
prevailing in England, where it has
been said that "the picture has, in
some respects, become more
blurred with each new pronounce-
ment" of the House of Lords or the
Privy Council: Markensinis, 104
L.Q. Rev., at 9 (1988). In Siney -v-
Dublin Corporation,19 Henchy, J.
referred with apparent approval to
Anns and Batty, though he did
acknowledge that the "precise
conditions or limitations" of the
liability established in these and
other decisions did not need to be
considered in Siney.
In Coigan -v- Connolly Con-
struction Company (Ireland) Ltd.,20
McMahon, J. had already invoked
Anns and Barry when endorsing
the principle of allowing
compensation in tort for expenses
in preventing threatened injury or
damage, now challenged in D. & F.
Estates. It is, however, worth noting
that McMahon, J. was not
disposed to extend compensation
to cover "defects in the quality of
the product itself", where there
was no question of injury or
damage to persons affected by the
product.21 To that very limited
extent, McMahon, J.'s judgment
found an echo in D. & F. Estates.
In Sunderland -v- McGreavy,22
Lardner, J., having discussed
Coigan, noted that the defects with
which he was concerned were
"likely to affect health and safety".
In view of the fact that the
plaintiffs' garden had already been
seriously flooded, resulting in the
escape of sewage from a septic
tank, the case can scarcely be
interpreted as raising the issue
confronting the House of Lords in
D. & F. Estates.
It is to be hoped that the Irish
courts resist the argument that
compensation should be denied for
expenses in preventing threatened
damage to the person or property.
Apart from the clear injustice and
arbitrariness of such a denial, it
scarcely makes good sense, as a
social policy, for the law in effect
to discourage people from
removing such dangers.
If our courts continue to
recognise the right of recovery for
these expenses, they will eventu-
ally have to confront subsidiary
issues, such as the circumstances,
if any, in which the prevention of
threatened damage to one's
product (where there is no danger
of damage to other property or of
personal injury) should give rise to
a claim. In answering this question,
the courts will be obliged to analyse
the notion of "danger" to a
product. This notion rests largely
on a metaphor, and it may be that
the courts will be disposed to treat
this type of "danger" differently
from cases where there is a real
danger of personal injury or of the
product causing damage to other
property. In this regard, the analysis
in D. & F. Estates regarding simple
and complex structures may prove
helpful.
As regards the Statute of
Limitations,23 the Irish courts will
be required to consider whether the
clock should not start until the
threat to health and safety is
"imminent", as Lord Wilberforce
proposed in Anns, and, if so,
whether it should be supplemented
by a further requirement that such
imminent threat be reasonably dis-
coverable by the plaintiff. High
Court decisions on the general
subject are difficult to harmonise:
cf. the Law Reform Commission's
Report on the Statute of Limit
ations: Claims in Respect of Latent
Personal Injuries, 2* and R. Byrne &
W. Binchy, Annual Review of Irish
Law 1987, 246-255 (1988). In
Hegarty -v- O'Loughran,25 although
Barron, J. noted that reference had
been made in the course of
argument before him to sub-
missions in other cases on the
constitutional issue (highlighted by
Carroll, J., in Morgan -v- Park
Developments Ltd.,26 the
constitutional issues had not in fact
been raised during argument.
Subsequent to Hegarty -v-
O'Loughran, Costello, J., in Brady -
v- Donegal County Council,21 held
that an automatic two-month
limitation period in relation to
challenging planning decisions
offended against the Constitution.
On 17 October 1988, the Supreme
Court remitted the entire action for
retrial by the High Court. It remains
to be seen how the general issue
will finally be determined at
Supreme Court level. The decision
of the Supreme Court in Toal -v-
Duignan,28 suggests that the Court
will not look with favour on an
unqualified discovery rule.*
* This article is written in a personal
capacity.
References
12. [1988] Camb. L.J., at 114.
13. Cf. Hampton, The Liability Crisis,
U.K.-Style, Financial Times, 12
October 1988, Civil Liability Act
1961, section 34(2)(d).
14. Cf. Deegan -v- Langan, [1966] I.R.
373 .).)
15. Cf. Conole -v- Redbank Oyster Co.,
[1976] I.R. 191 (Sup. Ct.), Crowley
-v-Allied Irish Banks, [1988] I.L.R.M.
225 (Sup. Ct.).
16. See Binchy, 80 Incorp. L. Society of
Ireland Gazette, at p. 38 (1986).
17. See further the Explanatory
Memorandum to the Draft
Directive, para. 20 (85/374/EEC,
published in the Official Journal of
the European Communities, No.
L210/29) Owles, Damage to
Property, 138 New L.J. 77 (1988).
18. 10 May 1988.
19. [1980] I.R. 400.
20. [1988] I.L.R.M. 33.
21. Cf. Kerr & Clark, 15 Ir. Jur. (n.s.), at
59 (1980).
22. [1987] I.R. 372, at 384.
23. as to which cf. Stapleton, 104
L.Q.Rev. 213, at 221ff (1988).
24. 2-6 (LRC 21 - 1987).
25. [1987] I.L.R.M. 604.
26. [1983] I.L.R.M. 156).
27. On 6 November 1987.
28. On 27 November 1987.
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