THE SUPREME COURT

HAMILTON CJ
LYNCH J
BARRON J

BETWEEN:
PATRICIA MCCABE
PLAINTIFF/APPELLANT
AND

IRELAND, THE ATTORNEY GENERAL, THE MINISTER FOR JUSTICE AND THE GOVERNOR OF MOUNTJOY PRISON
DEFENDANTS/RESPONDENTS

JUDGMENT DELIVERED THE 7TH DAY OF JULY 1999 BY LYNCH J [Nem. Diss.]

this is an appeal by the Plaintiff/Appellant against an order of the High Court (Kinlen J) made on the 18th of May 1998 whereby it was ordered:

“That without further pleadings a preliminary issue be tried before a judge sitting without a jury wherein the defendants shall be plaintffs and the plaintiff defendant the questions at the trial of such issue to be

(1) whether the defendants in the above entitled proceedings (or any of them) owed to the plaintiff a duty of care at common law in determining whether to cause or

permit a person to be released from prison on temporary release or in imposing conditions upon such temporary release.

(2) whether the defendants in the above proceedings (or any of them) owed to the plaintiff a duty of care at common law in the monitoring supervision or assessment of the behaviour of persons released from prison on temporary release

(3) whether the defendants in the above proceedings (or any of them) owed to the plaintiff any statutory duties in connection with the temporary release of prisoners.”

The foregoing orders had been sought by the Respondents by notice of motion dated the 4th of February 1998. In her statement of claim delivered the 15th August 1996 the Plaintiff pleads at paragraphs 2, 3 and 4 as follows:

“2 The defendants or one or more of them their respective servants or agents were at all material times hereto the operators and occupiers of and were responsible for the management of Mountjoy Prison North Circular Road Dublin 7. At all material times herein the defendants or one or more of them their respective servants and agents were responsible for the temporary release of prisoners from Mountjoy prison.

3 On or about the 31st day of January 1995 the plaintiff was lawfully walking along the public footpath at or in the vicinity of Norseman Place, Manor Street, in the City of Dublin when the plaintiff was attacked and assaulted by a person or persons

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on temporary release from Mountjoy prison in the course of a robbery or handbag snatching incident in consequence whereof the plaintiff was dragged along the ground and thereby sustained and suffered severe personal injuries loss and damage.

4 The said incident and the said personal injuries loss and damage occasioned to the plaintiff were caused by reason of the negligence breach of duty and breach of statutory duty and nuisance on the part of the defendants or one or more of them their respective servants and agents.”

The Plaintiff suffered a very serious head injury causing a right-sided extra dural haemorrhage as a result of which the Plaintiff was in danger of death for some time and was detained in hospital for two or three weeks.

The Respondents delivered their defence on the 17th September 1997 in which they fully traversed the various allegations of the Plaintiff and then at paragraph 23 they pleaded:

“Without prejudice to the foregoing, the defendants in releasing persons on temporary release, do not owe any duty of care to the plaintiff

In an affidavit sworn on the 3rd February 1998 by Mr Michael Buckley the Chief State Solicitor to ground the application for the trial of a preliminary issue the deponent says at paragraphs 5, 6, 7 and 8 as follows:

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“5 The defendants delivered a defence to these proceedings on the 17th September 1997 and notices for particulars were raised on the 26th February 1997 and replied to on the 20th July 1997. I beg to refer to same when produced.

6 In that defence it is specifically alleged that the defendants in releasing persons on temporary release do not owe any duty of care to the public at large or the plaintiff and it is denied that any breach of statutory duties occurred. Jam advised by counsel and believe that there are good grounds for believing that no such duties exist.

7 If the defendants are correct in this regard, this would determine the proceedings. I do not believe that there are facts in dispute between the parties such as would affect the determination of these matters as preliminary issues of law.

8 I say and believe that the determination of that issue in these proceedings would greatly reduce the expense, and inconvenience, associated with this action. In particular, no prejudice would be sustained by the plaintiff who would in any event have to establish the existence of these duties at the trial of the action.”

In a replying affidavit sworn on the 13th March 1998 by Ms Dorothy Ware, the Plaintiffs Solicitor, she says at paragraphs 3 and 4 as follows:

“3 I say that in order for this honourable court to try the preliminary issues sought by the defendants, the court would have to examine the circumstances which

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may bring the parties into relationship with each other and in which the risks of reasonably foreseeable harm can be identified and the extent to which each or either has control of the circumstances with a view to determining what duty of care, any, may exist and the nature and extent of that duty. I say that such examination would invariably, in dealing with such notions as the proximity of the parties and with the risk of foreseeable damage, have to examine closely such factual situations as the status of knowledge, notice, or awareness of the defendants servants or agents before, and at the time of and subsequent to the temporary release of the prisoner or prisoners who attacked and assaulted the plaintiff herein.

4 I say that the court can only decide any question of law arising between the parties as a result of a certain state of facts and not on the basis of any hypothetical or uncertain set of facts. I say that there is a lack of certainty in respect of the relevant facts in these proceedings at this stage and that further light may be thrown on any given fact or set of facts at the trial: further, discovery when obtained may throw up further facts or throw further light on facts already known.”

In a further affidavit sworn on the 26th of March 1998 by the Chief State Solicitor he says at paragraphs 5, 8, 9, and 10 as follows:

“5 The plaintiff can only succeed in these proceedings if the defendants owe to her either a duty of care, or statutory duty, in connection with the release of prisoners on temporary release. The defendants contend as a matter of law that no such duties exist. There are good reasons why this is so. The system for the temporary release of

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prisoners is operated pursuant to a statutory scheme which does not have as its object or effect the imposition of any duty upon the defendants to members of the public generally.

8 While I clearly accept that there may in exceptional circumstances be situations in which the State assumes in the incarceration, or ultimate release, of a particular prisoner a duty to a particular member of the public, it is up to the plaintiff to allege such circumstances, and she has not done so in these proceedings. As these proceedings stand the only issue is whether a duty of care, on the basis of the matters pleaded in the statement of claim herein, exists, and the plaintiff has proffered no reason on the basis of which one could conclude that what the defendants contend to be the general position, should not prevail.

9 It is for this reason that the plaintiff’s contention that the trial of a preliminary issue would result in a duplication of evidence is misplaced. I believe that in the instant case the Court could simply determine the issues in respect of which the defendants have requested a preliminary issue to be determined on the basis of the pleadings herein, and the affidavits grounding this application. I believe and am advised that this is the approach which has been adopted by this Court in the past in a very similar application.

10 For these purposes, the defendants will assume that the plaintiff would, at the trial of this action, prove the assault, that the person who perpetrated this was on temporary release and that the temporary release had been accorded by the defendants. In this way, considerable time and resources are likely to be spared.”

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It was accepted by Counsel for the Plaintiff at the hearing before this Court that no special relationship existed between the culprit and the Plaintiff and that the Plaintiff was attacked as an ordinary vulnerable member of the public by a person who was a complete stranger to her.

Counsel for the Plaintiff submitted:

1. One cannot try a preliminary issue of law in vacuo. One must first establish the facts to see what if any relationship of proximity existed between the plaintiff and the defendants.

2 In order to establish such facts, discovery of documents is necessary and the learned High Court Judge was wrong to postpone the question of discovery until the trial of the preliminary issue or thereafter.

3 If discovery at this stage is necessary then there will be no benefit in the way of a saving of costs by ordering a preliminary issue: in those circumstances the more practical approach is to let the case go on as a full trial.

Counsel for the Respondents submitted:

1. The Respondents stand or fall on Order 25 Rule 1 and do not rely on Order 34 Rule 2 which was also referred to in the Notice of Motion.

2 There are no facts in dispute to hinder the determination of the preliminary point of law which is raised by the defence.

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3 Many leading cases have been decided on preliminary issues of law such as: M’Allister (or Donaghue) v. Stevenson [1932] AC 562  aparo Industries Plc v. Dickman & Ors [1990] 1 All ER 568 Wv. Ireland (No 2) [1997] 2 IR 141

In his submissions, Counsel relied in particular on the last mentioned case.

4 It is appropriate to postpone any question of discovery until the preliminary issue of law has been determined and in this regard Order 31 Rule 19 supports the course taken by the learned High Court Judge.

Conclusions

Order 25 of the Rules of the Superior Courts reads as follows:

“1 Any party shall be entitled to raise by his pleading any point of law, and any point so raised shall be disposed of by the Judge who tries the cause at or after the trial, provided that by consent of the parties, or by Order of the Court on the application of either party, the same may be set down for hearing and disposed of at any time before the trial.

2 If in the opinion of the Court, the decision of such point of law substantially disposes of the whole action, or of any distinct cause of action, ground of defence, set off counterclaim, or reply therein, the Court may thereupon dismiss the action or

make such other order therein as may be just.”

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A  preliminary issue of law obviously cannot be tried in vacuo: it must be tried in the context of established or agreed facts. The facts relevant to the preliminary issue must not be in dispute, but they may be agreed for the purposes of the preliminary issue of law only without prejudice to the right to contest the facts if the actual determination of the preliminary issue should not dispose of the matter at issue. The facts must be agreed or the moving party must accept, for the purposes of the trial of the preliminary issue which he raises, the facts as alleged by the opposing party. In Kilty v. Hayden [1969] IR 261 at page 265 O’Dalaigh CJ said:

“When Order 25 is contrasted with Order 36 it becomes clear that Order 25 is not providing for the separate trial of issues which are partly of fact and partly of law, but for the separate trial of a net point of law dissociated from issues of fact, that is to say, the point of law must arise on the basis of the facts being as the opposing party in his pleadings alleges them to be.”

I would uphold the decision of the learned High Court Judge in directing the trial of preliminary issues of law as already quoted at the outset of this judgment. The preliminary issues will be tried on the basis that for the purposes thereof but no further the averments in the Plaintiffs statement of claim are true including the allegations of want of care on the part of the Respondents. I would also uphold the learned High Court Judge’s postponement of an order for discovery of documents to be dealt with by the High Court Judge trying the preliminary issues.

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