Supreme Court dismisses negligence claim against Rent Tribunal, ruling it is not fair and reasonable to impose liability.

THE SUPREME COURT

290/03

Denham J

Hardiman J

Geoghegan J

Fennelly J

McCracken J

Between:

Mark Beatty and Walter Beatty

Respondents/ Applicants

AND

The Rent Tribunal

Appellant/ Respondent

AND

Francis McNally

Notice Party

Judgment of Mr Justice McCracken delivered on the 21st day of October 2005.

1. I have had the benefit of reading in draft the judgment handed down by Fennelly J and it is unnecessary for me to deal further with

any of the factual elements of the case. I am in full agreement with his conclusion that there is sufficient proximity between the

Respondents and the Appellant, for the reasons he has set out, to satisfy the test of proximity necessary to constitute the tort of

negligence. I also agree that a further element of the tort of negligence is that it should be “fair and reasonable” that liability should

be imposed, and that in the present case that test is not satisfied.

2. I would, however, wish to comment on what is in my view the basis upon which it would not be fair and reasonable to impose

liability in the present case.

3. There has been some confusion in this case as to whether, quite apart from the question of it being fair and reasonable that

liability should be incurred, there may also be a separate basis upon which liability cannot arise, namely that of immunity based on

public policy. The Appellant is a creature of statute, and it was always open to the Oireachtas to provide specifically in the legislation

setting up the Appellant that the Appellant should be immune from liability in respect of its conduct of its hearings or in respect of its

decisions. The Oireachtas chose not to take that course.

4. Before considering the authorities on the question of immunity, I should express my strongly held view that the Appellant is not

merely a body which adjudicates on a dispute between the parties before it. The relationship of landlord and tenant in all its aspects

has been the subject of evolving legislation for over a century. Parallel to and complimenting such legislation has been the provision

made by the State for housing owned by public bodies such as local authorities. Legislation relating to the private sector has changed

over the years in accordance with the social needs of the time, but has always sought to balance the requirements of citizens to be

housed against the property rights of landlords. The Courts have also played a leading role in such balancing exercise as, for example,

in the decision in Blake & Ors v Attorney General [1982] IR 117. The setting up of the Rent Tribunal under the Housing (Private

Rented Dwellings)(Amendment) Act 1983 was part of the continuing process of regulating the relationship between landlord and

tenant. This relationship does not enure solely for the benefit of individual landlords and individual tenants, but rather in the public

interest that there should be proper control of housing in all its aspects.

5. In Pine Valley Developments Ltd v Minister for the Environment [1987] IR 23, Finlay CJ quoted with approval a passage from the

speech of Moulten LJ in Everett v Griffiths [1921] 1 AC 631 at page 695 as follows:-

“If a man is required in the discharge of a public duty to make a decision which affects by its legal consequences the liberty or

property of others, and he performs that duty and makes that decision honestly and in good faith, it is, in my opinion, a

fundamental principle of our law that he is protected. It is not consonant with the principles of our law to require a man to

make such a decision in the discharge of his duty to the public, and then to leave him in peril by reason of the consequence to

others of that decision, provided he has acted honestly in making that decision.”

6. Finlay CJ then added his own comment at page 38 of the Pine Valley decision as follows:-

“I am satisfied that it would be reasonable to regard as a requirement of the common good an immunity to persons in whom

are vested statutory powers of decision from claims for compensation where they act bona fide and without negligence. Such

an immunity would contribute to the efficient and decisive exercise of such statutory powers and would, it seems to me, tend

to avoid indecisiveness and delay, which might otherwise be involved.”

7. That passage might seem to suggest that any immunity on the basis of public policy would only arise in the absence of negligence,

and would seem to treat the question of immunity quite separately. This passage was quoted with approval by Keane CJ in Glencar

Explorations Plc & Anor v Mayo County Council (No 2) [2002] 1 IR 84, no comment was made on the words “without negligence”.

Instead, Keane CJ said at page 128:-

“I am satisfied that those considerations also apply to the present case. The remedy available to persons affected by the

commission of an ultra vires act by a public authority is an order of certiorari or equivalent relief setting aside the impugned

decision and not an action for damages, to allow which, in the case of public officials, would be contrary to public policy for

the reasons set out by Finlay CJ in the passage just cited.”

8. Notwithstanding this, it was held by this Court in the Glencar Exploration case that the decision by the defendants in that case

was in fact made negligently in the sense that the respondent did something which no reasonable authority would have done.

Effectively, Keane CJ found in that case that there had been negligence in the sense of lack of care, but that there was no duty of

care. I prefer the approach of Fennelly J who in the course of his judgment in the Glencar case, after quoting the findings of the

learned trial Judge in that case, said at page 154:-

“This approach, by making findings of negligence before determining whether a duty of care exists, risks reversing the correct

order of analysis. … The elements of the tort of negligence are the existence of a duty of care, lack of proper care in

performing that duty and consequential damage. The lack of care which we commonly call negligence consists in commission

or omission of acts. In order to be actionable, the acts or omissions must be such as will reasonably foreseeably cause

damage to any person to whom the duty is owed. Mere causation is not enough. As a matter of principle, it seems to me that

the failure to exercise due care can only be established by reference to a recognised duty.”

9. While it is often expressed that the question should be asked whether it is just and reasonable that there should be liability

imposed for certain actions, it seems to me that the more correct approach is to ask whether it is just and reasonable that there

should be a duty of care, which, as Fennelly J points out in the passage just quoted, is one of the basic elements of the tort of

negligence. What can be gleaned from the various decisions is that there are circumstances in which, for reasons of public policy, it

would not be just and reasonable to impose a duty of care. What is to be considered as just and reasonable is not merely what would

be just and reasonable as between the parties, but also what would be just and reasonable in the public interest. Where a public

body, such as the Appellant in the present case, performs a function which is in the public interest, then in many cases, and I believe

this to be one of them, that body ought not to owe a duty of care to the individuals with whom it is dealing. It is in the public

interest that it should perform its functions without the fear or threat of action by individuals. The fact that it is performing a function

which is in the public interest may outweigh any duty of care to private individuals. Whether it does or not, of course, is a matter for

decision based on consideration of the position of any particular public body.

10. Arguments were addressed to the Court based on the general principles relating to the duty of care as set out in Siney v Dublin

Corporation [1980] IR 400 and Ward v McMaster [1988] IR 337. Those cases dealt with the general liability of certain public bodies to

individuals with whom those bodies were dealing on a one to one basis. In my view they are of limited application in the present case,

save in relation to very general principles. The Appellant here was not just dealing with one individual or set of individuals, namely the

Respondents, but was determining the conditions of the relationship between the Respondents and the Notice Party.

11. It is instructive to note that under regulation 6(6) of the Housing (Rental Tribunal) Regulations 1983, which were made under the

1983 Act, it is provided that the Chairman of the Appellant when determining the membership of a division of the Appellant to hear

any particular case “shall, insofar as it is practicable, appoint as a member of the division a person who has knowledge of, or

experience in, the valuation of properties”. It is clear, therefore, that while it was considered desirable that there should be one

member of a particular division hearing any particular appeal who might be classed as an expert, there was no requirement that the

majority of the members in any particular case should be experts. The Appellants, in determining any case, are acting more in the

nature of arbitrators than of experts. While they are not judges, and therefore cannot be acting in a strictly judicial capacity,

nevertheless their function is adjudicative. Where a body set up by statute performs an adjudicative function between citizens, in any

particular case this is a factor which must strongly influence the determination of whether it is in the public interest that such a body

should owe a duty of care.

12. I do not think it is correct to say that it is public policy to grant immunity to all such bodies in the absence of immunity being

granted by statute. Nor do I think that such immunity is a matter of common law, save in so far as the tort of negligence is a matter

of common law. I do not believe that there can be a general common law principle of immunity for statutory bodies such as the

Appellant in all cases in the absence of mala fides or misfeasance in public office. Absolute immunity is a matter for the legislature

which created these public bodies. However, public policy or considerations of the common good are clearly very important factors in

determining whether it is just and reasonable that a duty of care should exist in any particular case, but they are not the only

factors. Other considerations would include the nature and functions of the particular body, the nature and expertise of its members

and the extent to which there is a public policy element to the nature of its decisions, to name just a few. In the present case I have

no doubt it would not be fair and reasonable to impose liability, taking these considerations into account.

13. Accordingly, I also would allow this appeal and dismiss the Respondent’s claim for damages.