The Gazette 1989

GAZETTE

MARCH 1989

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

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

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, 2 5 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 (Sup.Ct.).) 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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