Duty of Care Tests in Irish Law: Caparo, Glencar, and the Modern Approach to Establishing a Duty of Care

Quick Definition: Duty of Care Tests at a Glance

Doctrine

Tests for the existence of a duty of care in the tort of negligence

Origin

Common law; the modern lineage runs Donoghue v Stevenson [1932] AC 562 → Anns v Merton LBC [1978] AC 728 → Caparo Industries plc v Dickman [1990] 2 AC 605 → Glencar Exploration plc v Mayo County Council (No. 2) [2002] 1 IR 84

Leading Irish authority

Glencar Exploration plc v Mayo County Council (No. 2) [2001] IESC 64; [2002] 1 IR 84 (Keane CJ; Denham, Murray, McGuinness and Fennelly JJ)

The Irish four-part test

(1) reasonable foreseeability of damage; (2) proximity of relationship; (3) absence of countervailing public policy considerations; (4) whether it is just and reasonable to impose the duty

The UK three-part test (Caparo)

(1) reasonable foreseeability; (2) proximity; (3) whether it is fair, just and reasonable to impose a duty

Most recent Irish refinement

Barlow v Minister for Communications [2025] IESC 14 — the Glencar limbs are "useful descriptions" of what must be present, not a rigid formula to be applied in every case

Typical application context

Personal injury, medical negligence, occupiers' liability, employer liability, novel duty situations, public-authority claims, pure economic loss

Primary source

Glencar judgment on BAILII

Contents

Duty of Care in the Negligence Framework

In Irish negligence law a plaintiff must establish four distinct elements to succeed: a duty of care owed by the defendant; a breach of that duty by reference to the standard of care; causation linking the breach to the harm; and damage of a recognised kind. The duty-of-care tests addressed on this page operate at the first stage only — they decide whether a legal duty exists between plaintiff and defendant. They do not decide whether the defendant fell below the required standard, whether any failure caused the loss, or what damages should follow.

Each element is independent and each must be proved. A plaintiff who clears the duty hurdle may still lose at breach (the defendant met the standard), at causation (the breach was not a cause of the harm) or at damage (the loss claimed is not recoverable in tort). Conversely, a clear breach of an apparent duty produces no liability if no duty existed in law. The duty inquiry is therefore the gateway to liability and, in the great majority of personal injury cases, the easiest element to establish.

Origin and Adoption in Irish Law

The duty of care tests applied in Irish negligence law have a common-law lineage that begins with Lord Atkin's "neighbour principle" in Donoghue v Stevenson [1932] AC 562 and culminates, for present purposes, in the four-part test articulated by Keane CJ in Glencar Exploration plc v Mayo County Council (No. 2) [2001] IESC 64; [2002] 1 IR 84. Each generation of the test reflects a judicial response to the tension between expanding negligence liability and containing indeterminate duties of care.

The Neighbour Principle (1932)

Lord Atkin's speech in Donoghue v Stevenson [1932] AC 562 established that a manufacturer owes a duty of care to the ultimate consumer of a product that cannot reasonably be examined before use. The wider proposition — that one must take reasonable care to avoid acts or omissions reasonably foreseeable as likely to injure one's "neighbour" — became the foundation of modern negligence law in both jurisdictions.

The Anns Two-Stage Test (1978)

In Anns v Merton London Borough Council [1978] AC 728, Lord Wilberforce distilled Donoghue into a two-stage test: (1) was there sufficient proximity such that carelessness could reasonably be contemplated as likely to cause damage; and (2) were there considerations that ought to negative or limit any prima facie duty. Irish courts adopted the Anns framework, most influentially in Ward v McMaster [1988] IR 337. The Supreme Court in Ward delivered two substantive judgments: Henchy J resolved the case on "well established principles" without reference to the Anns two-stage test, while McCarthy J (in a concurring judgment with which Walsh J agreed and which Finlay CJ also adopted) expressly endorsed the Anns approach and articulated the duty of care as arising from "the proximity of the parties, the foreseeability of the damage and the absence of any compelling reason based upon public policy". It is McCarthy J's formulation that came to be cited as the Irish embrace of Anns.

The UK Retreat: Caparo and the Three-Part Test (1990)

In Caparo Industries plc v Dickman [1990] 2 AC 605; [1990] UKHL 2, the House of Lords reformulated the duty inquiry. Lord Bridge identified three "ingredients" that must be present before a duty of care will be recognised: reasonable foreseeability of harm; a relationship of proximity or neighbourhood; and that it must be fair, just and reasonable to impose a duty. The same speech endorsed the incremental approach favoured by Brennan J in Sutherland Shire Council v Heyman (1985) 60 ALR 1, under which novel categories of negligence develop by analogy with established categories rather than by deduction from a general principle.

The Irish Reformulation: Glencar (2001/2002)

In Glencar Exploration plc v Mayo County Council (No. 2) [2001] IESC 64; [2002] 1 IR 84, the Irish Supreme Court resolved the relationship between the Anns and Caparo approaches as a matter of Irish law. Keane CJ, delivering the principal judgment for a five-judge bench, took the view that no injustice would be done if courts were required to take the further step of asking whether, in all the circumstances, it was just and reasonable to impose a duty of care of the scope contended for.

There is, in my view, no reason why courts determining whether a duty of care arises should consider themselves obliged to hold that it does in every case where injury or damage to property was reasonably foreseeable, and the notoriously difficult and elusive test of "proximity" or "neighbourhood" can be said to have been met, unless very powerful public policy considerations dictate otherwise.

per Keane CJ in Glencar Exploration plc v Mayo County Council (No. 2) [2002] 1 IR 84, 138–139

The result is a framework typically expressed as a four-part inquiry: reasonable foreseeability, proximity of relationship, the absence of countervailing public policy considerations, and whether it is just and reasonable to impose the duty. The orthodox reading is that Glencar added the just-and-reasonable limb to the Anns/Ward structure rather than replacing it. The leading case on this point is often misunderstood as a wholesale adoption of the UK Caparo formula; the actual ratio retains a distinct Irish architecture in which public policy operates as a discrete third filter.

UK Differentiation: Why the Tests Are Not Identical

In Ireland, the prevailing approach is the four-part Glencar test, which treats the absence of countervailing public policy as a discrete element separate from the just-and-reasonable inquiry. This differs from the position in England and Wales, where the Caparo three-part test traditionally subsumes public-policy considerations within the third "fair, just and reasonable" limb.

A second divergence has opened since 2018. In Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4, the UK Supreme Court (Lord Reed) held that Caparo had never been intended to lay down a single universal test; the proper approach is precedent-based and incremental, applying Caparo-style analysis only in genuinely novel cases. Ireland has moved in the same direction more cautiously: Cromane Seafoods Ltd v Minister for Agriculture, Fisheries and Food [2016] IESC 6; [2017] 1 IR 119, and most recently Barlow v Minister for Communications, Marine and Natural Resources [2025] IESC 14, clarified that the Glencar limbs are "useful descriptions of the features that must be present" rather than a rigid formula.

The practical implication for Irish personal injury practice is that when a duty of care is asserted in an established category — driver to road user, employer to employee, occupier to entrant, doctor to patient — the question is whether the case fits the recognised category. The four-part test is reserved for novel duties or for categories where the contours of the duty remain contested.

Formulation	Jurisdiction	Year	Structure	Status
Anns two-stage test	UK	1978	(1) Sufficient relationship of proximity such that carelessness would foreseeably cause damage; (2) any considerations to negative, reduce or limit the duty	Disapproved in Murphy v Brentwood DC [1991] 1 AC 398; never adopted as such in Ireland
Caparo three-part test	UK	1990	(1) Reasonable foreseeability; (2) proximity; (3) fair, just and reasonable to impose duty	Confined by Robinson [2018] UKSC 4 to genuinely novel cases; not the dominant test in Irish law
Glencar four-part test	Ireland	2001	(1) Reasonable foreseeability; (2) proximity; (3) absence of countervailing public policy; (4) just and reasonable to impose duty	Currently authoritative in Ireland; refined by Cromane (2016) and Barlow (2025) as descriptive features rather than rigid checklist
Incremental approach	UK	2018	Reasoning by analogy from established categories; Caparo applied only when no analogous authority exists	Now the dominant UK approach for established categories under Robinson
Assumption-of-responsibility framework	Ireland	2025	Hedley Byrne-style analysis: defendant assumed responsibility to a defined and limited class who relied on that assumption	Adopted in Barlow for State actors and pure economic loss; sits alongside, not in place of, Glencar

How the Duty of Care Tests Work in Practice

In Irish negligence proceedings, the duty-of-care inquiry under Glencar [2002] 1 IR 84 proceeds through four sequential filters that the plaintiff must clear to establish that the defendant owed them a relevant legal duty before breach, causation and damage are even reached. Each limb does distinct analytical work.

Limb 1 — Reasonable Foreseeability of Damage

The plaintiff must show that a person in the position of the defendant could reasonably foresee that conduct of the type complained of might cause damage of the type sustained. Foreseeability is an objective test assessed at the time of the alleged negligence. In Ireland this limb is rarely outcome-determinative on its own; physical-injury cases will almost always satisfy it. In Cromane Seafoods Ltd v Minister for Agriculture, Fisheries and Food [2017] 1 IR 119, foreseeability of economic loss to fishery operators was effectively conceded; the case turned on later limbs.

Limb 2 — Proximity of Relationship

Proximity is the degree of legal closeness between plaintiff and defendant beyond what bare foreseeability supplies. Irish courts have not produced a single definition; Glencar itself described proximity as "notoriously difficult and elusive". In practice, proximity is established by reference to category — employer/employee, occupier/visitor, road user/road user — or, in novel cases, by an assumption of responsibility analysis derived from Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465 and recently applied in Barlow [2025] IESC 14.

Limb 3 — Countervailing Public Policy

Even where foreseeability and proximity are present, a court may decline to impose a duty if a sufficiently weighty public policy consideration cuts the other way. Typical examples include the risk of indeterminate liability in pure economic loss cases, the chilling effect on legitimate decision-making by public authorities, and the existence of an alternative remedy such as judicial review. In Glencar itself, this limb was decisive: imposing a private duty of care on a planning authority for a policy decision made in good faith would have duplicated the protection already supplied by judicial review.

Limb 4 — Just and Reasonable to Impose the Duty

The fourth limb asks whether, taking all the preceding factors together, it is just and reasonable to impose a duty of the scope contended for. In Irish jurisprudence this is sometimes treated as overlapping substantially with the third limb; some judgments treat them as one composite filter. The clearest articulation is found in Murray J's analysis in Barlow [2025] IESC 14, where the just-and-reasonable inquiry was used to police the boundaries of an assumption-of-responsibility duty owed by State actors to a defined class of investors.

Leading Irish Cases Applying the Duty of Care Tests

Three Supreme Court decisions form the modern Irish authority on the existence of a duty of care: Glencar (2001), Cromane Seafoods (2016) and Barlow (2025). Together they trace the Irish move from a freshly minted four-part test, through judicial caution about treating it as a formula, to an explicit reframing of the limbs as descriptive features rather than gateway conditions.

Public Authority Duty of Care

Claims against public authorities are where the Glencar tests do most of their analytical work in modern Irish law. The three Supreme Court decisions that anchor the modern test — Glencar, Cromane and Barlow — were all claims against the State, ministers or local authorities. The duty inquiry in this context engages a recurring tension: the law is reluctant to convert every public-law obligation into a private cause of action, but equally reluctant to leave individuals without remedy where a public body has caused them quantifiable harm by careless conduct.

Two Categories of Public-Authority Claim

Irish case law distinguishes between two patterns. The first concerns the exercise of a discretionary or policy function — a planning decision, a regulatory choice, a refusal of consent. Here, the courts are reluctant to recognise a private duty of care that would shadow judicial review. Glencar [2002] 1 IR 84 held that no duty was owed by a planning authority to mining operators in respect of a development plan that was later quashed as ultra vires; the appropriate remedy was the public-law one. Cromane Seafoods [2017] 1 IR 119 reached a similar result for ministerial decisions on fishery management.

The second concerns operational decisions, regulatory dealings with a defined class, and active encouragement of private investment. Barlow [2025] IESC 14 marks a shift in this category. Murray J found that the Minister, having actively recruited and licensed mussel-seed fishery operators, may have assumed responsibility to that defined and limited class for the careful exercise of subsequent allocation discretion. The case was remitted to the High Court on issues of breach, causation and quantum, but the duty point was decisive of the Supreme Court appeal.

The Statutory Power / Statutory Duty Distinction

A public body that exercises a statutory power — a discretion to act if it chooses — is generally not liable for failing to exercise that power, even where damage is foreseeable. A body that owes a statutory duty may be liable where the breach is actionable per se or where the duty also gives rise to a parallel common-law duty of care. The classic illustration in Irish law is the provision in section 60 of the Civil Liability Act 1961 that a road authority should be liable for damage caused by failure to maintain a public road, which has never been commenced. Roads authorities therefore remain liable for misfeasance (negligent road repair) but not nonfeasance (failure to repair), because no general common-law duty fills the statutory vacuum.

Following Barlow, the analytical pivot in modern Irish public-authority claims is whether the defendant assumed responsibility to a defined plaintiff or class — by representations, regulatory dealings, encouragement of reliance, or active conduct beyond the merely passive exercise of statutory function. Where assumption of responsibility is established, the duty inquiry becomes more receptive; where it is absent, the Glencar policy and just-and-reasonable limbs continue to act as a strong filter.

When the Tests Are Not Applied: Established Categories

In the great majority of Irish personal injury proceedings, no court goes through the Glencar four-part inquiry, because the duty of care has long been recognised in the relevant category and is taken as a given. The tests function as a residual mechanism, deployed only when the asserted duty is novel or contested at the boundaries.

Categories where a duty of care is established in Irish law without need to revisit Glencar include: motorist to other road users; employer to employee (the non-delegable common law duty, supplemented by statute); occupier to entrant (regulated by the Occupiers' Liability Act 1995); medical practitioner to patient (the standard of care set by Dunne v National Maternity Hospital [1989] IR 91); manufacturer to ultimate consumer (descended directly from Donoghue); and school authority to pupil. In each of these, the existence of the duty is settled; the live questions are breach, causation and damage, not whether the duty exists at all.

This mirrors the position in Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4, where Lord Reed observed that in established categories the elements of proximity and fairness are already built into the recognised duty and need not be reconsidered case by case. In Ireland, the same principle was given express recognition in Barlow [2025] IESC 14, which described the Glencar limbs as "useful descriptions of the features that must be present" rather than a test that must be run in every claim.

The duty-of-care tests therefore retain their analytical bite in three principal contexts: novel duty situations (for example, novel intermediary or platform liability); claims against public authorities for the exercise of discretionary statutory functions; and pure economic loss claims, where the courts have historically maintained the most restrictive duty thresholds.

Vicarious Liability and Primary Duty: A Distinction

Two doctrines are commonly conflated in pleadings and worth distinguishing. Primary (or "personal") duty is a duty owed by the defendant directly to the plaintiff and breached by the defendant's own conduct or omission. The employer's common-law duty to provide a safe place of work, safe equipment, safe systems and competent fellow workers is a primary duty: it is owed by the employer in person, and it is non-delegable — the employer cannot escape it by entrusting performance to a third party. Vicarious liability, by contrast, is liability imposed on a defendant for the tort of another (typically an employee) committed in the course of employment, irrespective of any fault on the defendant's own part.

The leading recent Irish authority on vicarious liability is Hickey v McGowan [2017] IESC 6; [2017] 2 IR 196, in which the Supreme Court (O'Donnell J delivering the principal judgment) adopted the "close connection" test — vicarious liability arises where the wrongdoing has a sufficiently close connection to what the defendant authorised the perpetrator to do. The decision also extended vicarious liability to relationships "akin to employment", including members of an unincorporated religious order. The earlier authority O'Keeffe v Hickey [2009] 2 IR 32 had limited the State's vicarious responsibility for abuse by national-school teachers, on the basis that the State was not the relevant employer; Hickey v McGowan represents an expansion of vicarious liability beyond the strict employment relationship.

The practical pleading consequence is that an injured employee may have two distinct routes against the employer: a primary-duty claim (the employer failed personally to take reasonable care) and a vicarious-liability claim (a co-worker was negligent in the course of employment, and the employer is answerable). The two claims attract different defences and different evidential burdens. Well-drafted pleadings keep them separate.

Duty for Omissions and Positive Acts

Irish negligence law generally imposes liability for careless positive acts but not for mere omissions. A defendant who walks past a drowning person owes no duty in tort to attempt rescue, however easy the rescue might be. The starting position is that liability arises from doing something carelessly, not from failing to do something a reasonable person might have done. The rule is unattractive on a moral level, and Irish commentators have long noted the criticism, but it remains the common-law default.

Exceptions Where a Positive Duty Arises

The general rule is subject to a recognised set of exceptions in which the law imposes a positive duty to act. The principal categories in Irish law are:

• Special relationships of authority and dependence. Parent to child, employer to employee, school to pupil, custodian to inmate, hotelier to guest. In these relationships the defendant has a positive duty to take reasonable steps for the safety of the dependent person.
• Assumption of responsibility. A defendant who voluntarily undertakes a task — even one they were not obliged to perform — incurs a duty to perform it carefully. The principle traces to Hedley Byrne v Heller & Partners [1964] AC 465 and was placed at the centre of the modern Irish duty inquiry by Murray J in Barlow [2025] IESC 14.
• Creation of the danger. A defendant who creates a hazardous situation is under a positive duty to take reasonable steps to abate it or to warn those who may be exposed.
• Control of a dangerous person, animal or thing. An occupier in control of a property, an employer in control of plant, a custodian in control of a detainee — each has a positive duty to take reasonable care that the thing or person under their control does not cause harm to others.
• Statutory duty. Where statute imposes a positive obligation, breach may give rise to a civil action either as breach of statutory duty or as a parallel common-law duty.

The Good Samaritan Reform

One area where the Oireachtas has reformed the common-law omissions rule is the position of the volunteer rescuer. At common law, a person who voluntarily commenced a rescue assumed a duty of care in the conduct of that rescue. The risk of liability for botched but well-intentioned intervention was a recognised disincentive to assistance. Part 3 of the Civil Law (Miscellaneous Provisions) Act 2011 addresses this. A "good samaritan" — defined as a person who provides assistance, advice or care to another in an emergency without expectation of payment — is not liable for negligence in the provision of that assistance, save where the assistance is given in bad faith or with gross negligence. The protection extends to volunteers acting on behalf of charitable, sporting, religious or community organisations.

Liability for the Acts of Third Parties

A defendant is generally not liable for harm caused by the deliberate, criminal or tortious act of an independent third party. The principle is connected to the rule against liability for omissions: a defendant who fails to prevent a stranger's wrongdoing is normally being criticised for an omission rather than a positive act. Irish courts have applied the framework set out by the House of Lords in Smith v Littlewoods Organisation Ltd [1987] AC 241 — that liability for the act of a third party requires either a special relationship between defendant and victim, a special relationship between defendant and third party, the defendant having created or permitted a foreseeable source of danger, or the defendant having known or had means of knowing about the third party's specific danger and failed to take reasonable steps to abate it.

Within Irish negligence analysis, third-party-act cases are typically resolved at the proximity and just-and-reasonable limbs of Glencar. The questions are: did the defendant occupy a relationship to the victim or to the third party that imposes responsibility for control? Did the defendant's own conduct create the risk that the third party's act exploited? Did the defendant assume responsibility for protecting the victim against the kind of harm that occurred?

Recurring contexts in personal injury practice include: occupiers' responsibility for assaults on premises by other patrons; school authorities' responsibility for bullying or violence between pupils; security providers' responsibility for harm done by intruders; landlords' responsibility for harm done to tenants by other tenants; and employers' responsibility under the safe-system-of-work duty for harm done by co-workers or third parties on the worksite. In each context the central question is whether the defendant's relationship to the victim or to the wrongdoer was sufficiently proximate to convert what would otherwise be an omission into a duty to take positive preventive steps. Where a duty is established and breached, the defendant and the third-party wrongdoer are typically concurrent wrongdoers within the meaning of section 11 of the Civil Liability Act 1961.

Duty of Care in Personal Injury Litigation

In Irish personal injury litigation, the practical role of the duty of care tests is narrower than the case law suggests. The overwhelming majority of personal injury actions — road traffic, workplace, public liability, medical negligence — fall within established categories where the duty is taken as proven. The pleading of duty in such cases is formal: a single paragraph in the statement of claim asserting that the defendant owed the plaintiff a duty of care, by reference to the relevant relationship.

The duty-of-care tests come into focus in a smaller but recurring set of personal injury scenarios. Nervous shock claims by secondary victims engage the proximity limb, with the additional control mechanisms set out in Kelly v Hennessy [1995] 3 IR 253 (relational, spatial and temporal proximity). Public-authority liability — for example, claims against statutory bodies for failures to inspect, regulate or warn — engages all four limbs and frequently fails on policy grounds, as illustrated by the line of authority running from Glencar through Cromane to Barlow.

Two further contexts deserve mention. First, claims for psychiatric injury arising from clinical negligence brought by relatives of a primary victim — recently considered by the High Court in the duty-of-care context in 2024 — turn on whether the medical defendant assumed responsibility to the relative as well as the patient. The court there interpreted the fifth limb of Kelly v Hennessy in light of the Glencar just-and-reasonable test. Second, novel product or service liability claims — particularly involving algorithmic decision-making, data services, or platform intermediaries — are areas in which the duty inquiry is genuinely live and where the four-part framework continues to do real analytical work.

The Tests in Practice

In practice, duty-of-care arguments turn on whether the case fits an existing recognised category or sits at the periphery. Practitioners typically encounter the four Glencar limbs in three settings: pleadings against public authorities, pleadings for pure economic loss, and pleadings in nervous-shock cases by remote secondary victims. Outside these settings, time spent arguing the four-part test is usually time wasted; the duty is established and the real fight is over breach.

One detail the headnotes omit: the Glencar bench did not entirely repudiate the broad approach taken by McCarthy J in his concurring judgment in Ward v McMaster [1988] IR 337 — the judgment in Ward that endorsed Anns and to which Glencar was directly responding. Keane CJ reinterpreted McCarthy J's formulation as adding an additional just-and-reasonable filter to the existing Anns/proximity analysis, rather than abandoning it. The line between "added a filter" and "replaced the test" is fine, and academic commentary continues to dispute it; in Irish High Court practice, however, the four-part formulation is the working tool. The most heavily cited limb in modern judgments is the third — countervailing public policy — particularly in claims against the State or its agencies.

What changed in Barlow [2025] IESC 14: Murray J expressly placed the assumption-of-responsibility analysis from Hedley Byrne at the centre of the duty inquiry where the State has solicited or encouraged private investment. The four Glencar limbs, on this reading, function as features to be tested for rather than as a sequential checklist. For practitioners, the practical effect is that an assumption-of-responsibility argument now offers a more structured route to liability against public bodies than the unmediated four-part test alone.

It seems to me that no injustice will be done if [the courts] are required to take the further step of considering whether, in all the circumstances, it is just and reasonable that the law should impose a duty of a given scope on the defendant for the benefit of the plaintiff.

per Keane CJ in Glencar Exploration plc v Mayo County Council (No. 2) [2002] 1 IR 84, 139

A common misreading of Glencar, sometimes encountered in pleadings drafted from English textbooks, is that Ireland adopted the Caparo three-part test wholesale. The actual ratio retains a four-part structure in which "countervailing public policy" is a discrete limb separate from the just-and-reasonable inquiry. Treating Ireland as having a three-part Caparo-style test concedes analytical ground that experienced opposing counsel will exploit, particularly in cases involving statutory bodies where the policy limb is doing most of the analytical work.

Pleading Mechanics: How Duty of Care Appears in Irish Pleadings

In a Personal Injuries Summons issued under the framework of the Personal Injuries Assessment Board Act 2003 and the Civil Liability and Courts Act 2004, duty of care is typically pleaded in the briefest terms. A standard formulation states that the defendant owed the plaintiff a duty of care arising from the relevant relationship — driver to road user, employer to employee, occupier to entrant — and identifies the source of that relationship factually. Detailed legal argument on the existence of the duty is reserved for novel or contested cases.

Particulars of negligence and breach are pleaded separately and at greater length, listing the specific failures alleged. The Defence will commonly admit the existence of the duty of care while disputing its content (the standard) and whether it was breached. A bare denial of duty in routine personal injury pleadings is rare in modern practice and usually signals either a contested category or a misreading of the doctrine. Where duty is genuinely contested — pure economic loss, novel duty situation, public-authority defendant — the issue is typically isolated by way of preliminary issue or trial of issue, supported by full legal argument addressing the four Glencar limbs.

One practical pleading tip for claims against public authorities: plead duty of care in the alternative — primary duty arising from Glencar, assumption-of-responsibility duty arising from Hedley Byrne and Barlow, and any relevant statutory duty. This preserves all available avenues without committing the plaintiff to a single analytical frame at the outset and forces the defendant to engage with each route.

Frequently Asked Questions

What is the test for duty of care in Ireland?

The leading Irish test is the four-part formulation from Glencar Exploration plc v Mayo County Council (No. 2) [2002] 1 IR 84: reasonable foreseeability of damage, proximity of relationship, the absence of countervailing public policy considerations, and whether it is just and reasonable to impose the duty.

Keane CJ articulated the test for a five-judge Supreme Court bench in 2001. It was refined in Cromane Seafoods [2017] 1 IR 119 and Barlow [2025] IESC 14, both of which clarified that the limbs describe features that must be present rather than a rigid checklist for every case. In established categories — driver to road user, employer to employee, occupier to entrant, doctor to patient — the duty is recognised without reapplying the four-part test.

Practitioner note: The four limbs are sequential in expression but not always in analysis. In economic-loss cases, the third (policy) limb tends to do the analytical heavy lifting; in personal-injury cases against private defendants, all four limbs are typically a formality.

Read more: Read Glencar on BAILII.

Is the Caparo test the same as the Glencar test?

No. The UK Caparo test is a three-part test (foreseeability, proximity, fair-just-and-reasonable). The Irish Glencar test is a four-part test that adds countervailing public policy as a discrete limb separate from the just-and-reasonable inquiry.

The two formulations overlap substantially in practice. The principal divergence is that Glencar treats public policy as analytically distinct, while Caparo folds it into the third limb. A second divergence has emerged since Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4, which confirmed that Caparo is now applied only in genuinely novel cases in England and Wales. Ireland has moved similarly in Barlow [2025] IESC 14 but retains Glencar as the dominant framework.

Practitioner note: Pleadings drafted from English textbooks sometimes treat Ireland as having adopted Caparo. This is wrong. Use the four Glencar limbs and treat Caparo as comparative authority only.

Read more: See the UK Differentiation section above.

What is the leading Irish case on duty of care?

The leading Irish case is Glencar Exploration plc v Mayo County Council (No. 2) [2001] IESC 64; [2002] 1 IR 84, in which the Supreme Court (Keane CJ delivering the principal judgment) articulated the four-part test that continues to govern Irish negligence law.

The case concerned a claim by mining companies against a county council for economic loss caused by an unlawful mining ban inserted into a development plan. The Supreme Court accepted that the loss was foreseeable but held that proximity was absent and that strong public policy considerations counted against imposing a duty of care on a planning authority for ultra vires policy decisions. The judgment has been cited in hundreds of subsequent Irish decisions.

Practitioner note: Glencar is also significant for the legitimate expectation analysis offered by Fennelly J in his concurring judgment.

Read more: Read the full judgment on BAILII.

When does the duty of care test not apply?

In established categories of negligence, courts do not run through the Glencar four-part inquiry. Examples include motorist to road user, employer to employee, occupier to entrant, doctor to patient, manufacturer to consumer, and school authority to pupil. The duty is recognised; the live questions are breach, causation and damage.

This position was confirmed for Ireland in Barlow v Minister for Communications [2025] IESC 14, where Murray J described the Glencar limbs as "useful descriptions of the features that must be present" rather than a test to be applied to every claim. The same principle was adopted in the UK in Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4. The duty-of-care tests retain their force in three principal contexts: novel duty situations, claims against public authorities for discretionary functions, and pure economic loss claims.

Practitioner note: A lengthy duty-of-care argument in a routine road traffic or accident-at-work pleading is a flag that the drafter has misread the doctrine. The duty section should be a paragraph; the substance lies in breach.

Read more: See the Established Categories section above.

Does Glencar apply to medical negligence cases?

Not directly. The duty of care between doctor and patient is an established category, so Glencar's four-part test is not run case by case. The relevant question in Irish medical negligence is the standard of care, governed by the principles in Dunne v National Maternity Hospital [1989] IR 91.

Glencar does come into play in medical-negligence-adjacent claims. A relative of a patient suing for nervous shock following clinical negligence engages the proximity limb directly: the question is whether the defendant assumed responsibility to the relative as well as the patient. An Irish High Court decision in 2024 illustrated the point, declining to find a duty of care owed by a hospital to a relative of a deceased patient on the basis that proximity by assumption of responsibility was not established.

Practitioner note: Where a clinical negligence claim involves a relative seeking damages for psychiatric injury, both the Kelly v Hennessy control mechanisms and the Glencar just-and-reasonable filter are typically pleaded in the alternative.

Read more: Medical negligence claims overview.

What about pure economic loss?

Pure economic loss — financial loss unaccompanied by personal injury or property damage — has historically been treated cautiously by Irish courts. Glencar [2002] 1 IR 84 narrowed recovery, and Barlow [2025] IESC 14 reframed the question around assumption of responsibility.

The current Irish position, after Barlow, is that pure economic loss may be recoverable where: the defendant has assumed responsibility for the plaintiff's interests; the plaintiff is a member of a defined and limited class; the plaintiff has relied on the defendant; and it would be just and reasonable to impose the duty. This is more restrictive than the position for physical injury, and broader than the position immediately after Glencar.

Practitioner note: Pure economic loss claims continue to fail far more often than they succeed in Irish courts. Where they succeed, the assumption-of-responsibility analysis is typically the operative gateway, not the four Glencar limbs in the abstract.

Read more: Read Barlow [2025] IESC 14 on BAILII.

Is there a duty of care for an omission or failure to act?

Generally, no. Irish negligence law imposes liability for careless positive acts but not for mere omissions. There is, classically, no duty to rescue a stranger.

The rule is subject to recognised exceptions where the defendant has a special relationship of authority and dependence with the plaintiff (parent and child, employer and employee, school and pupil, custodian and detainee), has assumed responsibility, has created the danger, or has control of a dangerous person, animal or thing. Statute may also impose positive duties. Volunteers acting in genuine emergencies are protected by Part 3 of the Civil Law (Miscellaneous Provisions) Act 2011, save in cases of bad faith or gross negligence.

Practitioner note: When pleading a duty for omission, the most important step is to identify the basis on which the case escapes the general rule — special relationship, assumption of responsibility, control, or statute — and plead it explicitly.

Read more: See the Omissions and Positive Acts section above.

Can I sue someone for harm caused by a third party?

In some circumstances, yes. The general rule is that a defendant is not liable for the deliberate, criminal or tortious act of an independent third party. The exception arises where the defendant occupied a special relationship to the victim or to the wrongdoer, where the defendant created or permitted a foreseeable source of danger, or where the defendant assumed responsibility for protecting the victim against the harm that occurred.

Common Irish examples include: an occupier sued for an assault on the premises by another patron; a school sued for bullying between pupils; a landlord sued for harm caused by other tenants; and an employer sued under the safe-system-of-work duty for harm caused by co-workers. Each is analysed within the Glencar proximity and just-and-reasonable framework, often with reference to the principles in Smith v Littlewoods Organisation Ltd [1987] AC 241.

Practitioner note: A claim against a defendant for the act of a third party also engages section 11 of the Civil Liability Act 1961 on concurrent wrongdoers — the third party and the defendant are typically concurrent wrongdoers, with the defendant liable to the plaintiff for the full loss but with rights of contribution from the third party.

Read more: See the Acts of Third Parties section above.

References

1. Donoghue v Stevenson [1932] AC 562 — House of Lords (Lord Atkin, neighbour principle)
2. Anns v Merton London Borough Council [1978] AC 728 — House of Lords (Lord Wilberforce, two-stage test; later disapproved in Murphy v Brentwood DC [1991] 1 AC 398)
3. Caparo Industries plc v Dickman [1990] 2 AC 605; [1990] UKHL 2 — House of Lords (Lord Bridge, three-part test)
4. Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465 — House of Lords (assumption of responsibility)
5. Ward v McMaster [1988] IR 337; [1988] IESC 3 — Supreme Court of Ireland (Finlay CJ, Walsh J, Henchy J, Griffin J, McCarthy J; Henchy J delivered the leading judgment, with McCarthy J's concurring judgment endorsing the Anns approach being the formulation later considered in Glencar)
6. Glencar Exploration plc v Mayo County Council (No. 2) [2001] IESC 64; [2002] 1 IR 84 — Supreme Court of Ireland (Keane CJ; Denham, Murray, McGuinness and Fennelly JJ)
7. Cromane Seafoods Ltd v Minister for Agriculture, Fisheries and Food [2016] IESC 6; [2017] 1 IR 119 — Supreme Court of Ireland
8. Smith v Littlewoods Organisation Ltd [1987] AC 241 — House of Lords (third-party-act framework, applied in Irish proximity analysis)
9. O'Keeffe v Hickey [2009] 2 IR 32 — Supreme Court of Ireland (limits of State vicarious liability for school abuse)
10. Hickey v McGowan [2017] IESC 6; [2017] 2 IR 196 — Supreme Court of Ireland (O'Donnell J, "close connection" test for vicarious liability)
11. Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4 — UK Supreme Court (Lord Reed, retreat from Caparo as universal test)
12. Barlow & Ors v Minister for Communications, Marine and Natural Resources [2025] IESC 14 — Supreme Court of Ireland (Murray J, 11 April 2025)
13. Kelly v Hennessy [1995] 3 IR 253 — Supreme Court of Ireland (control mechanisms for nervous shock)
14. Dunne v National Maternity Hospital [1989] IR 91 — Supreme Court of Ireland (medical negligence standard of care)
15. Civil Liability Act 1961 — section 11 (concurrent wrongdoers); section 60 (road authority liability, never commenced)
16. Civil Law (Miscellaneous Provisions) Act 2011 — Part 3 (Good Samaritan and volunteer protection)
17. Bryan McMahon and William Binchy, The Law of Torts, 4th edn (Bloomsbury Professional, 2013)
18. Courts Service of Ireland — judgments search portal