Duty of Care in Discretion

The Supreme Court has issued a judgment which explores various issues of interest to public bodies. Our Public, Regulatory & Investigations team examines how the judgment makes clear that a duty of care may still be imposed on a public body even when it is properly exercising a statutory power. They also review how the case confirms that having the option of judicial review does not prevent someone from bringing a negligence claim against a public body.

What you need to know

• The Supreme Court decided on the issue of whether the defendants, all public bodies, could be held liable in negligence for mismanaging the State’s mussel seed stock in the course of exercising a discretionary power.
• The availability of judicial review as an alternative remedy will not necessarily prevent a claim in negligence.
• The fact that a statutory power was exercised properly by a public body will not necessarily prevent a court from imposing a duty of care on that body and finding that duty has been breached.

A public authority exercising a statutory discretion can owe a duty of care. In Barlow & Ors v Minister for Communications, Marine & Natural Resources & Ors[1], the Supreme Court considered the circumstances when such a duty might arise.

Background

The defendants were public authorities which controlled access to the mussel seed stock in Ireland’s waters. Their core activities and aims were to promote Ireland’s mussel fishing sector and encourage the entities in the industry, including the plaintiffs, which purchased mussel dredging vessels.

By the time the plaintiffs’ vessels were ready, the yield from Ireland’s mussel seed fishery had collapsed. This was, in part, because the defendants had allowed Northern Irish fishing vessels to collect mussel seed in Ireland’s waters.

The plaintiffs claimed damages against the defendants for, amongst other things, breach of a statutory duty. The plaintiffs’ claims were initially dismissed by both the High Court and the Court of Appeal.

Relevant principles

Duty of Care (general)

On the general application of the duty of care, the Court helpfully summarised the principles derived from the authorities:

1. The three limbs identified in Glencar Exploration Ltd v Mayo County Council[2]: “foreseeability of loss”, “proximity” and whether it is “just and reasonable to impose a duty of care” are “useful descriptions of the features that must be present before such a duty will be found”. However, the Court clarified in Barlow that these should not be seen as the “test” for a duty of care.
2. The first “reference point” is whether there is binding precedent that has determined that such a relationship between the parties creates a duty of care.
3. If there is no binding precedent, the next step is to assess whether “such a duty of care should be imposed by reference to the essential characteristics of the case”. Foreseeability of loss and proximity are central features of this analysis.
4. If the case is similar to one where a duty of care had been imposed, it will usually be because there is a sufficient relationship of proximity, and the loss was sufficiently foreseeable.
5. Where the court relies on a duty of care by analogy, it will be appropriate for it to also “consider the broader policy implications for such an extension of liability”.

Duty of Care (statutory power)

Where the negligence relates to a statutory exercise of powers of a public authority, the Court summarised the principles below:

1. If there is a “clear, simple and direct analogy to be drawn between the activities of private actors and of public authorities, the public authority is liable in negligence for those activities in the same way as the private actors”. The Court caveated that the public authority, unlike the private actor, can be afforded statutory immunity from such a claim.
2. The mere fact that an exercise of a public body’s statutory power may lead to a benefit being availed of or, indeed, prevent a harm from occurring does not give rise to a duty of care in common law.
3. Private law principles can impose private law duties on public authorities to confer a benefit or prevent a harm. This might happen, for example, where a public authority assumes a responsibility to do so and such a responsibility is not consistent with the statute.
4. A public authority’s assumption of responsibility can be impliedly assumed and can be deduced from the public authority’s behaviour towards the plaintiff.
5. The fact that a public authority’s decision is also amenable to judicial review does not preclude the public authority from owing a duty of care in negligence.
6. There is no blanket immunity for public authorities when exercising discretionary statutory powers.
7. Whether a discretionary statutory power has fallen below the standard of care will depend on whether “the action was outside the range of choices that a reasonable body charged with the activity concerned could have made”. The Court noted that this is akin to the unreasonableness standard developed in administrative law.

Application

The particular relationship between the plaintiffs and defendants was “very particular and unusual”. The defendants were involved in an activity that was outside of their core function, went beyond their regulatory functions and “actively encouraged private individuals to enter the market, to invest in it, and to provide grant aid”. While the Court was not critical of the public authorities partaking in these activities, it resulted in the “possibility of mutual responsibility that will not usually arise when the State engaged in other types of governmental activities”.

The Court continued by looking at the “combination” of the following to conclude that a duty of care existed in this case:

1. The defendants actively solicited investment, which caused the plaintiffs to embark on their investments into the mussel fishing sector.
2. The plaintiffs’ involvement in the sector was necessary to achieve the defendants’ objectives.
3. The defendants knew that the plaintiffs were investing significantly, and that the plaintiffs’ recoupment was dependent on the availability of specified allocation of mussel seeds.
4. It was open for the defendants to disclaim any obligations to the plaintiffs to manage the resources in a particular way.
5. The essential contents of the duty of care correspond with the statutory obligation that has been imposed on the defendants.
6. Economic losses only arose from the investment of the plaintiffs and not from the loss of any profits.

Ultimately, the case was sent back to the High Court to resolve several outstanding issues, including whether the public authorities had provided an effective disclaimer or whether the defendants' decision fell below the applicable standard of care.

Comment

This case highlights two key points for public bodies to note:

• First, a negligence claim may still arise even if a statutory power was exercised properly. The Court will consider factors such as the extent of public policy involved and whether recognising a duty of care would conflict with the body's statutory functions.
• Second, a public body cannot rely on the plaintiff’s failure to seek judicial review as a defence to a negligence claim concerning the use—or non-use—of a statutory power.

For more information and expert advice on the correct and lawful discharge of your organisation’s duties, contact a member of our Public, Regulatory & Investigations team.

People also ask

[1] [2025] IESC 14

[2] [2002] 1 IR 84