120 / 342
GAZETTE
APRIL 1987
O. 11, r.1 (f) — a new approach
None of these five tests was
adopted by Walsh J. He said:
" . . . if it appears that any
significant element in the com-
mission of the tort occurs within
this jurisdiction then the plaintiff
will have at least fulfilled the
threshold requirements set out
in 0 . 11, r. 1 (f). But that is not
sufficient to raise a presumption
or an inference that the court
should exercise discretion in
favour of making an order for
service out of the jurisdiction.
Any approach which insists on
any one constituent element of
the commission of the tort oc-
curring within the jurisdiction
can only give rise to difficulties.
(In) (a)ny case before the court
which clearly calls for the hear-
ing of the proceedings in Ireland
and for the application of Irish
law to the case an order for ser-
vice outside the jurisdiction
should not be denied merely
because of the fact that some
significant element or elements
in its commission occurred
outside the jurisdiction. For
example, in many cases it would
be quite inappropriate that the
invocation either of " t he place
of injury" or " t he last event
rule" should deny to a plaintiff
the right of service out of the
jurisdiction. It seems to me suf-
ficient if any significant element
has occurred within the juris-
diction. To require that the ele-
ment should be
the
most
significant one could render a
plaintiff's task more uncertain
and the outcome more ar-
bitrary."
16
In Walsh J.'s view there were
elements which occurred in Ireland
which were sufficiently significant
to warrant the order made by the
High Court; these elements were,
(i) the fitting of the allegedly
defective appliance, and
(ii) the injury.
It is not clear what the position
would have been had only one of
these elements occurred in Ireland.
For example, the appliance might
have been fitted in some third
country or the intended plaintiff
might have suffered cardiac failure
whilst holidaying in some third
country. Some assistance with
this problem is to be found in
an earlier passage of the judg-
ment:
" I t is clear that the issue
(whether or not a tort is
committed within the jurisdiction
within the meaning of 0. 11, r. 1
(f)) is not merely a mechan-
ical one because that would
inevitably lead to arbitrary
results. The Court must have
regard to the implications for the
plaintiff or the defendant if the
trial is to take place within the
State. The task of the Court is
to interpret and to apply the rule
in a way designed to ensure
that justice and practical com-
mon sense prevail.
The Court
therefore should interpret the
rule in the light of a broad policy
and in the light of its choice of
law implications.
If more than
one possible interpretation of
the rule is available the one
which serves to encourage the
operation of sensible choice of
law rules should be followed
rather than one which would
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