Recent Developments in the Law of Torts in Northern Ireland Annual Conference of the Irish Association of Law Teachers

This paper reviews decisions from the Northern Ireland and England and Wales High Courts and Courts of Appeal as well as the UK Supreme Court relating to tort and principally to the tort of negligence in the past 12 months or so.

In structure, the paper will be presented in four parts. First, three preliminary points relating to contemporary features of the NI civil courts: personal litigants – Devine v McAteer [2012] NICA 30 (7 September 2012); pre-action protocols – Monaghan v Graham [2013] NIQB 53 (3 May 2013); and the rise of alternative dispute resolution. On the last named issue, the recent decision of PGF II SA v OMFS Company 1 Ltd [2013] EWCA Civ 1288 (23 October 2013) on unreasonable refusal to mediate, will be discussed.

Second, the paper moves to consider the law of negligence generally and case law from the NI High Court reiterating Lord Hoffmann’s view in Tomlinson v Congleton Borough Council [2004] 1 AC 46 that no duty of care arises from obvious risks of injury. In this, reference will be made to the application of the above “Hoffmann principle” in West Sussex County Council v Pierce [2013] EWCA Civ 1230 (16 October 2013), which concerned an accident sustained by a child at school. A similar set of facts was presented recently to the UK Supreme Court in Woodland v Essex County Council [2013] UKSC 66 (23 October 2013). The decision there, on non-delegable duties of care, will have a significant impact for schools in the provision of extracurricular activities.

Third, I will review a NI case of note on the duty of care of solicitors in the context of professional negligence in the context of conflicting advice by counsel.

Fourth, I will examine a series of cases on employer liability and including issues such as the duty of care towards the volunteer worker; tort and safety at work principles generally; and, more specifically, the duty of care of the employer towards an employee who suffers psychiatric illness as a result of stress and/or harassment at work. On the issue of workplace stress, the NI courts have made extensive reference to the Hale LJ principles found in the Court of Appeal decision of Hatton v Sutherland [2002] 1 All ER 1 and applied to those who have suffered trauma in reporting on or policing “the troubles” in Northern Ireland. On the issue of statutory harassment at work, the paper will also mention the UK Supreme Court’s decision in Hayes v Willoughby [2013] UKSC 17 (20 March 2013).

A Contextual Analysis of the Council of Europe's Convention on Preventing and Combating Violence against Women

This article examines the Council of Europe’s recent Convention on Preventing and Combating Violence against Women. The focus of this paper is on the specific issue of domestic violence. The article seeks to place the Convention in the context of other developments as regards the analysis of domestic violence as a human rights issue.

An international comparison of legal frameworks for supported and substitute decision-making in mental health services

There have been important recent developments in law, research, policy and practice relating to supporting people with decision-making impairments, in particular when a person’s wishes and preferences are unclear or inaccessible. A driver in this respect is the United Nations Convention on the Rights of Persons with Disabilities (CRPD); the implications of the CRPD for policy and professional practices are currently debated. This article reviews and compares four legal frameworks for supported and substitute decision-making for people whose decision-making ability is impaired. In particular, it explores how these frameworks may apply to people with mental health problems. The four jurisdictions are: Ontario, Canada; Victoria, Australia; England and Wales, United Kingdom (UK); and Northern Ireland, UK. Comparisons and contrasts are made in the key areas of: the legal framework for supported and substitute decision-making; the criteria for intervention; the assessment process; the safeguards; and issues in practice. Thus Ontario has developed a relatively comprehensive, progressive and influential legal framework over the past thirty years but there remain concerns about the standardisation of decision-making ability assessments and how the laws work together. In Australia, the Victorian Law Reform Commission (2012) has recommended that the six different types of substitute decision-making under the three laws in that jurisdiction, need to be simplified, and integrated into a spectrum that includes supported decision-making. In England and Wales the Mental Capacity Act 2005 has a complex interface with mental health law. In Northern Ireland it is proposed to introduce a new Mental Capacity (Health, Welfare and Finance) Bill that will provide a unified structure for all substitute decision-making. The discussion will consider the key strengths and limitations of the approaches in each jurisdiction and identify possible ways that further progress can be made in law, policy and practice.

The Illusions of Post-Feminism, Ghosts of Gender and the Discourses of Law

This article seeks to consider evidence of post-feminist and "post-equality" gender narratives contained in the discourses of law in the UK and European contexts. Analysis of perennial ghosts of gender in the areas of gender-neutrality in policy, legislative regulation of sexual crimes, and the adjudication of gendered issues by judges will be undertaken in order to renew and reinstate the focus of the legal feminist project and advocate for continued scrutiny in these three practical areas.

A Risky Business: An Examination of Irish Probation Officers Attitudes and Work Practices Regarding Risk Assessment

This article examines recent research on risk assessment and probation practice in Ireland and relates the findings to the ongoing debate regarding risk management practices in probation. The piece discusses current theoretical arguments on the influence of risk in criminal justice and outlines the impact of risk discourse on probation practice in Ireland and England and Wales. Using a mix of qualitative and quantitative methods, Irish probation officers’ attitudes are examined in order to highlight key issues facing probation officers when making risk decisions. These findings are compared and contrasted to other research results from England and Wales. All the conclusions identify both positive and negative consequences of adopting risk tools and point to the continued salience of clinical judgment over actuarial methods of risk assessment. It is argued that the research highlights the role of ‘resistance’ by criminal justice professionals in mediating the effects of the ‘new penology’ at the level of implementation. The idea of resistance holds particular relevance for probation practice in Ireland where professional discretion is maintained within the National Standards framework. Despite this, to date there has been an uncritical approach taken to risk assessment which may ignore the dangers of risk inflation/deflation and the need to take into account local factors in assessing risk of reoffending

Falls prevention and support:: translating research, integrating services and promoting the contribution of service users for quality and innovative programmes of care

Falls are a significant threat to the safety, health and independence of older citizens. Despite the substantial evidence that is available around effective falls prevention programmes and interventions, their translation into falls reduction programmes and policies has yet to be fully realised. While hip fracture rates are decreasing, the number and incidence of fall-related hospital admissions among older people continue to rise. Given the demographic trends that highlight increasing numbers of older people in the UK, which is broadly reflected internationally, there is a financial and social imperative to minimise the rate of falls and associated injuries. Falling is closely aligned to growing older (Slips, Trips and Falls Update: From Acute and Community Hospitals and Mental Health Units in England and Wales, Department of Health, HMSO, London, 2010). According to the World Health Organization, around 30% of older people aged over 65 and 50% of those over 80 will fall each year (Falls Fact Sheet Number 344, WHO, Geneva, 2010). Falls happen as a result of many reasons and can have harmful consequences, including loss of mobility and independence, confidence and in many cases even death (Cochrane Database Syst Rev 15, 2009, 146; Slips, Trips and Falls Update: From Acute and Community Hospitals and Mental Health Units in England and Wales, Department of Health, HMSO, London, 2010; Falling Standards, Broken Promises: Report of the National
Audit of Falls and Bone Health in Older People 2010, Health Care Quality
Improvement Partnership, London, 2011). What is neither fair nor correct is the
common belief by old and young alike that falls are just another inconvenience to put up with. The available evidence justifiably supports the view that well-organised services, based upon national standards and expert guidance, can prevent future falls among older people and reduce death and disability from fractures. This paper will draw from the UK, as an exemplar for policy and practice, to discuss the strategic direction of falls prevention programmes for older people and the partnerships that need to exist between researchers, service providers and users of services to translate evidence to the clinical setting. Second, it will propose some mechanisms for disseminating evidence to healthcare professionals and other stakeholders, to improve the quality and capacity of the clinical workforce.

The Determinants of Brownfields Redevelopment in England

This paper uses discrete choice models, supported by GIS data, to analyse the National Land Use Database, a register of more than 21,000 English brownfields - previously used sites with or without contamination that are currently unused or underused. Using spatial discrete choice models, including the first application of a spatial probit latent class model with class-specific neighbourhood effects, we find evidence of large local differences in the determinants of brownfields redevelopment in England and that the reuse decisions of adjacent sites affect the reuse of a site. We also find that sites with a history of industrial activities, large sites, and sites that are located in the poorest and bleakest areas of cities and regions of England are more difficult to redevelop. In particular, we find that the probability of reusing a brownfield increases by up to 8.5% for a site privately owned compared to a site publicly owned and between 15% - 30% if a site is located in London compared to the North West of England. We suggest that local tailored policies are more suitable than regional or national policies to boost the reuse of brownfield sites.