Psychological Injuries II
Cases
O’Connor and Tormey v Lenihan
, unreported, High Court, June 9 2005, Peart J. Judgment of Mr Justice Michael Peart delivered on the 9th day of June 2005:
On occasions the Court is required to determine issues arising from unspeakable tragedy, the impact of which can be fully understood and appreciated only by those whose misfortune it has been to go through it.
This is such a case, for these plaintiffs are the mother and father respectively, of firstly, of a baby boy, Thomas, who was born at 25 weeks gestation on the 25th February 1996, but who died some fourteen hours post-delivery, and secondly, of a baby girl, Angelica, who was delivered stillborn, again at 25 weeks, on 20th August 1998. Between these occasions of great sadness, a daughter, Nicole, was born in 1997, who although weighing only 3lbs at birth, and once again born at 25 weeks, survived and is now seven years old. She suffers from mild cerebral palsy, but is otherwise a healthy girl, and no doubt has brought great joy into her parents’ lives.
At the time of the birth of their first baby, Thomas, the first named plaintiff (“Angela”) was 18 years of age, and the second named plaintiff (“Jason”) was aged 20.
Their claims arise from the fact that in the spring of the year 2000 they learned for the first time that some of the organs retrieved from their deceased children during post mortem examinations at the National Maternity Hospital, Holles Street, Dublin, had been retained following those examinations. This information has distressed them greatly, and they now seek damages under a number of headings for, according to the Statement of Claim “personal injuries, anxiety, distress and annoyance, loss and damage……… for misrepresentation, breach of contract, negligence, breach of duty, breach of bailment, conversion, detinue and trespass to the person.”
The defendant denies that there has been any wrongdoing on the part of the servants and agents of the hospital, as pleaded by the plaintiffs, and further denies that the plaintiffs have been caused by them to suffer in the manner alleged in the Statement of Claim. It is also submitted by the defendant that even if the plaintiffs suffered anything coming within the legal concept of injury, that injury is not a recognised psychiatric ailment, and therefore cannot sound in damages.
It would be easy for the plaintiffs to consider that the Defence pleading in these proceedings is a heartless and unsympathetic document, leading only to exacerbation of the distress which they have experienced over the years since they discovered that the some organs of their deceased children had been retained. They cannot be expected to appreciate the purely legal nature of a pleading document in which issue is formally joined with the pleas set forth in the plaintiffs’ Statement of Claim.
The Court, however, wants to acknowledge the sympathetic, humane and, at the same time, professional manner in which the defendant’s case was handled by their Counsel, Jack Fitzgerald SC, particularly during the inescapable, necessary but difficult task of conducting a cross-examination of both of the plaintiffs while they were giving their evidence.
He also explained to the plaintiffs that the defence of their claims by his clients did not mean that they did not sympathise with, and fully understand and appreciate the plaintiffs’ feelings.
No greater effort, in my view, could have been made by Mr Fitzgerald, and there is no doubt in my mind that his careful handling of this difficult matter ensured, in so far as it is possible at all, that the plaintiffs’ experience of being in Court for their case did not add unnecessarily to the distress which they have already endured both from the deaths of their children, and the matters arising subsequently. Indeed, the plaintiffs’ own Counsel, Joseph Revington SC acknowledged as much on their behalf during the proceedings.
I hope that the plaintiffs also understand that nothing I say in my judgment, or perhaps the rather legalistic way in which the issues need to be examined and determined by the Court, should result in them considering that the Court has anything but the very greatest sympathy for the great sadness and distress which they have experienced, and no doubt still experience. It is often said that judges live in ivory towers away from the everyday experiences of the lives of ordinary people. That is in my view a cliché too easily spoken, and which underestimates, indeed denies, the capacity of a judge to be often moved greatly by the courage of many litigants. But it is part of the judicial function and duty, to remain detached from the emotion of the case so that the legal and factual issues can be analysed dispassionately, unaffected by sympathy felt for any party, so that justice may be administered fairly to all parties to the suit. I hope that Angela and Jason will understand this in the present case.
At the conclusion of the evidence adduced by the plaintiffs in support of their claims for damages, Mr Fitzgerald moved an application to have the plaintiffs’ claims dismissed on the basis that no cause of action was disclosed, and that, in any event, no compensatable injury had been suffered by either of the plaintiffs, and that the defendant therefore had no case to answer.
I will deal with these submissions in due course. Before I do so I want to outline the relevant evidence given by and on behalf of the plaintiffs.
Factual Background:
The evidence of the first named plaintiff:
Re: Baby Thomas
The plaintiffs appear to have commenced their relationship around June 1994. Angela became pregnant sometime during second half of 1995. During her pregnancy she received regular medical attention, but on the 25th February 1996 she went into early labour and was taken by ambulance immediately into Holles Street Hospital. Jason was with her while she was there. She stated that she was five to six months pregnant at the time. Her evidence is that she was brought immediately upon arrival into the labour ward whereupon she was given an injection which she stated was to assist baby Thomas with his breathing. Her doctor had advised this course of action. She cannot remember the names of any of the doctors who assisted her at this time.
Her baby was born and was immediately transferred to a Special Unit referred to as Unit 8. Baby Thomas weighed about 2lbs at birth. She recalls being brought back to a room, and that Jason was also in Unit 8 for a time, before he and his family returned home. She remained on her own, but later that night she went to Unit 8 on her own, where she found a number of nurses attending to baby Thomas who was not doing well. She contacted Jason whereupon he and his family returned to the hospital at about 1am. It appears that after he returned, he went to Unit 8 and came back down to Angela and told her that the medical staff wanted permission to turn off the machine to which baby Thomas was connected to assist his survival. She was told that this was because her baby had what she described as “no fight in him”. She stated that the machines were turned off, and that baby Thomas passed away some time later, and while they were both present.
Some time after that they were asked whether a post mortem could be carried out in order to find out what had happened. She believes that it was a doctor rather than a nurse who asked them about the post mortem, and that there were some nurses present at the same time. This conversation took place just after baby Thomas had died, and lasted a few minutes, after which she went back downstairs to her room. When she was cross-examined by Mr Fitzgerald she was referred to the fact that in the Statement of Claim delivered in this case, it is pleaded at paragraph 5 thereof that they gave their consent not only to this post mortem being carried out, but also to any “other special medical examination by way of analysis, tests or otherwise of particular parts or contents of the body of their said son”.
In reply, she replied:
“I agreed to the post mortem, but it wasn’t explained that they were going to take organs out of the body and retain them.”
I will return to this cross-examination in due course when dealing more generally with the evidence surrounding the consent to post mortem examination.
At any rate, on the morning following baby Thomas’s death, she went home to organise his funeral, which was planned to take place a few days later.
She described the day of the funeral. She said that they went down to a small mortuary at the hospital where a priest said some prayers. She stated that she had given the nurses some clothes to be put on Thomas for his burial, and that he was placed in a small coffin. They then made their way with some of their family to Deansgrange Cemetery for the burial.
Baby Angelica:
While she was pregnant with Angelica, Angela was under the care of her General Practitioner. Again at about 25 weeks she went into premature labour and was brought urgently to Holles Street Hospital. Her sister and Jason accompanied her and on admission she was brought straight to a labour ward. After a number of hours she was told that there was no heartbeat and that her baby would be stillborn. Following delivery she was able to hold her baby for a while, following which she was removed, and returned later to remain near Angela in an adjoining room. On the following day, she recalls only that she spoke to a priest and then went home. They returned the next day with some clothes and to make arrangements for burial in Glasnevin Cemetery.
When cross-examined by Mr Fitzgerald in relation to whether she had given consent to a post-mortem for baby Angelica, she was referred to the fact that in the Statement of Claim it is pleaded that she and Jason gave their consent to a post-mortem examination and any other special examination by way of analysis, tests or otherwise of particular parts of the contents of the body. She replied just that she did not recall that at this point in time, and that she was in a state of shock on the day of the stillbirth. She was then referred to the fact that at some point she must have gone to her solicitor and given instructions that she had consented since that is pleaded in the Statement of Claim prepared. She stated that she simply could not recall signing any consent in respect of the post mortem for Angelica. When questioned further, and again I repeat, in a very sympathetic and careful way by Mr Fitzgerald, she finally stated: “I could have consented, to me I just can’t remember”.
I will deal in due course with the evidence which each of the plaintiffs gave in respect of what they understood was involved in a post mortem examination.
Evidence of the second named plaintiff:
Re: Baby Thomas:
I will not set out all he said because much of it repeats in a factual way what was said by the first named plaintiff. But when asked what happened when Angela was brought to Holles Street for the birth of Thomas, he stated that when Thomas was delivered they knew that he was premature, but they were both allowed to see him for a brief moment before he was taken upstairs to Unit 8. Having gone home he received a call later that evening from a nurse in Holles Street to return because there were difficulties with Thomas. When he arrived back at the hospital, the nurses explained that Thomas was not strong enough and that his lungs were not fully developed, and that he would in all probability not survive. After a few hours, the doctor informed them that Thomas’s condition was deteriorating and that it would be best if the machine was switched off. Jason stated in evidence that he told the doctor that he could not agree to that, and that Angela would have to make that decision since it was she who had carried Thomas. It appears that the two of them had a discussion about it and the decision to turn off the machine was made. They were holding Thomas when he passed away. Other members of the families were also present.
He has given evidence also that after Thomas died, there were two doctors present and that there was a conversation about whether they would agree to having a post mortem examination carried out. He says that they were told that such an examination would be good for them since it could give them information about why Thomas had not developed properly. He thinks that conversation lasted “five or ten minutes”, and that they were each very upset at the time. When he was cross-examined by Mr Fitzgerald he accepted that consent had been given by both of them to a post mortem examination being carried out on baby Thomas.
Baby Angelica:
He gave evidence that on this occasion when Angela went into premature labour with Angelica, he had gone to Holles Street Hospital with her, as did one of her sisters. He felt there was going to be difficulty because she was very early. He asked Angela’s sister to go into the labour ward with her because he himself was not feeling too well. Her sister came back out to him in due course and told him that it would be a stillbirth. He says that he went outside to get some fresh air, and that her sister went back in to comfort Angela. By the time he returned inside the hospital, Angelica had been delivered, and after a short while was taken away. He stated that he had not had any discussion about a post mortem on this occasion. When he was cross-examined he accepted that he did not know whether or not a consent may have been given by Angela and her sister in his absence, but that he certainly had not given a consent.
The plaintiffs’ understanding of a post mortem:
First named plaintiff:
In her direct evidence Angela stated that they were both just asked by the doctor whether a post mortem examination could be done in order to find out what had happened, and she could recall nothing further about the conversation. She thought that the conversation lasted a few minutes.
She was cross-examined carefully by Mr Fitzgerald about what her understanding of a post mortem was in 1996 after Thomas was born. She replied:
“To me I just understood that they were just going to check out Thomas, just going to check out how he died and different things like that. But I didn’t think they took organs out. I thought they just looked into the body.”
She agreed, when it was suggested to her, that its purpose would be to try and find out why Thomas had died, and also to help her with any future pregnancies or difficulties. She accepted also, when it was put to her, that part of what she understood would happen was that the doctor would have to open up Thomas in order to carry out the examination. She agreed also that she had not asked any detailed questions about what would be involved in the examination, but she added: “…because I thought they would explain every single detail to us. They wanted to do a post mortem on the child. They should have explained properly.”
She agreed that since that time she has found out more about what a post mortem entails. Mr Fitzgerald suggested to her that if she knew back in 1996 what she now knew, those details if they had been spelt out to her when she was so upset after the death of Thomas would have made her even sadder and more upset, and would have been hard to cope with. She agreed. She also agreed that it was a good idea to try and find out, and that one would like to know, what caused her two babies to die, and also for any plans she might have for the future. But she stated again that she did not know at the time that parts of her baby would be removed or retained by the hospital.
The second named plaintiff:
Jason was asked by Mr Fitzgerald whether in 1996, when he gave a consent to a post mortem examination on Thomas, he understood what a post mortem was. Jason responded that he thought he did, but that he had been wrong, and that he still does not really know what a full autopsy involves. He was then asked what was his understanding of a post mortem at that time in 1996. Jason stated:
“………they told me that they would open up the chest and have a look in at Thomas’s lungs to see how much they had developed. I thought they would have done blood samples, a couple of scans, something like that. I didn’t think they were going to actually take parts of him out and leave them out. If I had of I would have never agreed to it being done.”
He was asked whether his understanding included the possibility that something might be removed and put back, to which he replied: “I thought maybe something like that, yeah.” He went on:
“I didn’t think anything would be taken out and left out and giving us a shell of a body to bury. Because at the end of the day that’s what they gave us, a shell. They had all his organs in the hospital………at that time I was burying my son, the whole lot of my son.”
He later stated his view that the hospital had no right to keep the organs of his two children.
Mr Fitzgerald then asked him to agree that if the full details of what might be involved in a post mortem examination were told to him and Angela at the time, it would have been much worse and most upsetting for them at that moment, even if the idea of having such an examination done was a good one. Jason agreed, but at the same time stated:
“Well, if they told me what he was going to do and remove stuff, I wouldn’t have let him do it.”
But he agreed that neither he nor Angela had actually asked any detailed questions about what might be involved.
Hearing about the retention of organs:
Angela:
Angela stated that Jason had heard on the radio news that some babies’ organs had been retained by hospitals, and there was a number to ring if anyone wanted to get any information about their own babies’ organs. She said that Jason rang the hospital.
In due course they received a letter dated 25th April 2000 from the Master of the National Maternity Hospital stating there were organs retained from their babies. There was regret expressed for any distress caused by the information, and an assurance given that until they notified the hospital as to their wishes in respect of the organs, they would be retained at the hospital. A form was enclosed which outlined a number of choices.
A further letter dated 25th May 2000 was received informing Angela and Jason that an appointment had now been arranged for them to see a Dr Murphy, Consultant Paediatrician, on the 6th June 2000.
She stated that they met with Dr Murphy, and that there was also a social worker present. She says that she and Jason just asked why the organs had been taken out, and she said that they could not explain this to them properly. It appears also from her evidence that Jason kept asking for an explanation about this and that eventually the doctor just walked out after the meeting had lasted ten or fifteen minutes. She said that they had been given no explanation which satisfied them, and that Jason was very annoyed at the meeting and that he just wanted answers.
When she was cross-examined she stated that at the end of the meeting she was not happy because no answers had been given to them. She said that the doctor could not answer the question as to why the organs had been removed. She was asked whether at that meeting she had been given any details of how a post mortem was carried out, but she said they were not. But she was pressed further on this question as to whether at that meeting they had been given some details about the post mortem which had been done. She replied that they had been told about the post mortem and why one was done, but when she was asked whether she had found it helpful to be given information and the report of the post mortem, she replied that they were not happy with it at all, and that they just left. It was later clarified by a question to her from me that in fact it was the doctor who left the room first, leaving them just with the social worker.
Jason:
He has stated that after they left the hospital after the birth of each child, he never had any communication from the hospital before hearing on the radio about the retention of organs of babies. When he heard about it first, he rang Angela and said to her that he was going to ring the help-line number which had been given out. He did that and was told that no information could be given out over the telephone but that they would get back to him. He then referred to the letters received from the hospital, and gave evidence about what happened at the meeting with Dr Murphy on the 6th June 2000 to which I have already referred.
He said that he and Angela had first met the social worker in a room and had been given a cup of tea. They had a brief conversation before Dr Murphy had come in. Jason went on to describe how it was explained to them what organs were removed, and that he had asked the doctor why they would take the organs, and that the answer given was simply that this is what is done. Jason stated that he had gone on to express the view that the hospital should not do such a thing “behind parents’ backs” and that if it was something that they did, they should have said it to the parents. He agrees that he got very agitated at the meeting and that he told the doctor that he was not happy about the situation, and that the doctor had got up and left the meeting. He said that they heard nothing further from the hospital after that meeting, but that the social worker had made arrangements a couple of days later for the return of the organs to them for burial.
Mr Fitzgerald cross-examined Jason about events following the radio programme he had heard. Jason stated that when he had heard the programme first he had not really thought that his own babies’ organs would have been involved because he thought they would have been too small to have been of use to other children as a transplant. He agreed that at that time part of his concern was that his babies’ organs might have been used as a transplant, but that in fact he had been wrong about that. He stated in that regard: “I was wrong. They just took the babies’ parts for no reason at all and just kept them in the hospital.” He agreed, however, that this was not correct, and that he was aware of the reason, namely to try and find out why a baby had died and to help mother with any future pregnancy. His complaint was that they should have carried out the examination and then replaced into the body what had been removed. He stated to Mr Fitzgerald that the information given to him by the hospital following the radio programme had upset him.
The alleged personal injuries:
Angela:
Angela stated in her evidence that after the stillbirth of Angelica she was very distressed and upset, but that she kept it all to herself. She described herself as being “very cranky”.
She said that when she was on her own she thought about it all the time, or when she was going asleep. She described how she was at the present time as “still upset”, and she went on to state that it torments her, makes her angry and she just does not understand why what was done was done. She stated that she would be angry “every few days” and that she is just never happy. She stated: “I just don’t smile”. She became quite upset at this point in her evidence. Following a break, she stated that it is always on her mind and that she has good days and bad days. Poignantly, she added: “I just think about my two children, just see them laying in their coffins. It hurts.”
Angela was questioned also by Mr Fitzgerald about this part of her evidence. She agreed with him that what she was saying was that what had happened “upset” her. She added that she had been just getting over the deaths of her children when the news about the organ retention reached her, and then, as she stated, “you have to do it all over again”. She was asked by Mr Fitzgerald whether it was just an opening up again of the sadness which she had felt at the time she had lost her two children. She replied: “It just brought everything back again. Having to go over it again, it just hurt. It really did hurt.” She agreed however that it was the same kind of sadness and hurt which she had felt at the time she had lost her babies.
She was asked also whether she had felt the need to get some medical attention for how she was feeling, but she stated that she did not, and that she had just put up with it and carried on as best she could. She stated that it was her solicitor who had arranged for her to see a psychiatrist, Dr Helen Cummiskey. I will deal with the evidence of Dr Cummiskey in due course.
She agreed that waiting for this case to be heard was distressing for her and that she will be glad when it is all over.
Jason:
Jason stated that he found it all very painful when he heard about the retention of the organs. He stated:
“… It was very painful for me at the time when I was burying my first child, Thomas, and then when I come back a couple of years later they tell me that I didn’t bury my son at all, that all his organs that were inside him were still in the hospital.”
He was asked how he felt about the time they buried the organs a couple of days after the meeting on the 6th June 2000. He stated that he still felt sad about it and that he would just like to put the whole thing behind him and forget it so that he and Angela and their other daughter, Nicole could just get on with their lives. He said that he had thought that they had buried their children after they had died but that he had had to bury them a second time, and now they were in court talking about it again. As to how it affected him he stated that he gets depressed about it and just blocks it all in and doesn’t talk to people about it. He bottles it up most of the time to himself.
Mr Fitzgerald suggested to Jason that he had felt the need to go and see a psychiatrist about what had happened. To this suggestion, Jason replied: “I didn’t feel I had to go. My solicitor wanted me to go to see a psychiatrist.”
Medical Evidence:
Dr Duggan, General Practitioner:
Dr Duggan is a GP and has practised as such for thirty years. Angela has been a patient of his for many years. He described her as being an infrequent attender, and that he had probably seen her 20 or 30 times over the past ten years or so.
In relation to matters relevant to this case, Dr Duggan stated that he had seen her in August 2000 which was a couple of months after the meeting at Holles Street Hospital in June 2000 to which I have referred. She attended him on the 31st August 2000 and was “extremely upset, depressed and tearful” over hearing about the organ retention, and he stated also that she “had great difficulty with coping with the whole idea of the situation of her baby’s organs being retained in the hospital for several years and felt that she could not continue to work at the time, she had sleep disturbance and was extremely upset by it.”
He stated also that she had not been to see him in the aftermath of the death of Thomas or the stillbirth of Angelica, except that on 31st December 1998 she had seen him with a respiratory tract infection. It was only in August 2000 that she attended him in relation to coping difficulties. He described his opinion of her at that time in the following way:
“I knew her to be a girl that coped very well because she had had difficult circumstances with another child who has problems – coped very well. I felt that the less disturbance caused emotionally as possible and for me to start delving into her emotional problems too deeply at that stage might, while on theoretical grounds might have great long-term benefit, could also cause great upset. Our system may not be in a position to cope with it, so once she was able to cope reasonably well – I hoped that she would, and if not she could come back to me and then we could explore it in a deeper way.”
When he was cross-examined by Mr Fitzgerald, Dr Duggan stated that he believed that Angela came to see him in August 200 because she was upset, and that he had no record of anything else. He felt also that she may have come to see him so that he might explain things to her, because she had found the meeting at Holles Street to be “rather unsatisfactory”. He also stated that he interpreted her situation as being of a reactivation of the feelings she had had at the time of the deaths of her babies. He preferred not to put any label as such on what she was going through, since he was a General Practitioner and not a psychiatrist, but he went on to say that “if pushed” he would say that she was suffering from “a reactive depression to the situation about being advised about the organs again”. But no treatment was offered or recommended, and nor was she to return to him for review.
Mr Fitzgerald referred Dr Duggan to a passage from the report of Dr Helen Cummiskey and to the fact that she did not appear to go as far as he was going by describing it as a recognised psychiatric illness. He responded that “she was the one that has the expert interpretation – we would use some terms more loosely, I think.”
Dr Duggan had not had occasion to treat Jason at all. He was not a patient of his.
Dr Helen Cummiskey, Consultant Psychiatrist:
Re: Angela:
She confirmed that Angela had been referred to her by her solicitor. Dr Cummiskey outlined the history of the events leading to her consultation with Angela, and there is no need for me to detail all that again as there is nothing new in anything contained in that history. But Dr Cummiskey went on to deal with what she discovered at the consultation about Angela’s understanding of what was involved in post mortem examinations. She stated that in Angela’s mind a post mortem did not involve removal of anything. She also described how Angela expressed her feelings about what had occurred, and that Angela described feeling hurt and angry about the removal of organs and violation of her child, and that she had “become totally preoccupied with thoughts about her children in a manner which was not controllable. In other words she could not get it out of her head” and that it had become magnified in her head. She also stated that the burial of the organs appeared to have brought her some relief but she remained angry and hurt by what had happened. Angela had no history of any psychiatric illness and that there was no family history of such either. During her evidence, Dr Cummiskey referred to the fact that the arrival of the news that organs had been retained by the hospital had reactivated thoughts about the loss of her two children, and that it was upsetting. Dr Cummiskey also referred to the fact that at the time she saw Angela, she was also upset about the death of her father in 2003. She was very close to her father and Dr Cummiskey stated that Angela continues to think of her late father and that “the memory of him had become fused with the images of her childrens’ coffins, they had become fused, the loss and grief became fused.”
Dr Cummiskey went on:
“On mental status examination her mood was level at examination. Despite being upset there was no persistent depressed – depression of her mood. She did describe feeling cranky as a result of the upsetting thoughts and feelings. She also described feeling tired. She had some difficulty initiating and maintaining sleep since the death of her father and she was able to pinpoint that. The disturbance in her sleep was related at time of onset due to the death of her father. Her appetite was stable. There was no psychotic features. There was no disturbance of her perception or cognitive capacities.”
Dr Cummiskey was asked to express her clinical opinion and she did so in the following way:
“My clinical opinion was that she was upset and traumatised by the knowledge of the retention of the organs of her deceased children. In other words she was — when I say traumatised, I mean that when you hear something very upsetting, for example, those people my age would look upon the death of President Kennedy when you heard about that as being a flashbulb type of trauma. It was not a pleasant feeling, it was a shock, it was a trauma. That’s called a flashbulb effect. That she had that on her – she had multiple episodes, she was having multi episodes of that type of reactivation of her feelings.”
She added again that her grief following the deaths of her children had been reactivated by the knowledge gained about the retention of her childrens’ organs, and that this grief had been compounded now by a sense of hurt and outrage, superimposed also with the grief also for her late father’s more recent death.
Mr Fitzgerald in his cross-examination asked her to confirm that it was her opinion that Angela was “upset and traumatised and it was compounded by a sense of outrage and hurt.” Dr Cummiskey stated that was correct, but that it was not simply the knowledge that organs had been taken which had caused these feelings, but the whole process including the retrieval of the organs and their burial.
Re Jason:
She gave evidence of what Jason had told her at the consultation. It is very much in line with his own evidence which I have already outlined. She went on to say that he told her that he had tried to put everything out of his mind but that he is constantly reminded of it through the media and contact with his solicitors.
Jason had told Dr Cummiskey, amongst other things, that he had become upset and depressed following the decision to turn off the life support machine at the hospital when Thomas was born in 1996. He had turned to substance abuse after 1996 but had given that up when Angela was pregnant with Nicole. He had also got into trouble with the Gardai in relation to driving whilst drunk. He has since moderated his drinking habits apparently. She said he had no history of psychiatric illness.
She described his mood at consultation as level with no evidence of anxiety, although he described himself as a bit tense at home on account of the living arrangements and that he liked to withdraw sometimes and go for a walk on his own or play some golf. He also described waking at night sometimes in a frightened state but could not recall specific nightmares or bad dreams.
In relation to organ retention, Jason stated to her that the subject upsets him, that
he thinks about it a lot, and that it makes him sad and angry. She describes him as being non-psychotic and not having any cognitive deficits. She was asked to express her opinion on Jason and she did so as follows:
“………He became depressed following the death of his first child and drank to excess for a time and also abused illicit drugs. He has spent time in prison approximately 2000 and 2002 for a traffic offence and for assault. I felt that the death of his son had led to a period of depression complicated by alcohol and drug abuse………The retention of the childrens’ organs has resulted in feelings of anger and at times sadness and a sense of violation.”
The defendant’s application that the plaintiffs’ action be dismissed:
As I have already stated, at the conclusion of the case for the plaintiffs as set forth above, Mr Fitzgerald moved an application that the case against his client be dismissed without the necessity for answer by way of defence, on the basis, first of all, that no case had been made out in negligence, breach of contract, breach of duty, misrepresentation or under any of the other heads of claim, and that even if he was wrong about that, it had not been established even on a prima facie basis that either of the plaintiffs had suffered any injury which was at law compensatable, not being a recognised psychiatric injury.
In the event of failing to succeed in his application, Mr Fitzgerald wished to reserve his entitlement to call evidence on behalf of the defendant.
Submissions:
Mr Fitzgerald accepts, as he must, that in approaching this application at this stage of the proceedings, the Court must consider the plaintiffs’ case at its highest.
With regard to the allegation of negligence, Mr Fitzgerald submits that this action in effect is a medical negligence action against a hospital, and that as such the principles of Dunne v. National Maternity Hospital [1989] IR. 91 must apply, and therefore since the plaintiffs have adduced no expert evidence of any kind as to what constitutes recognised practice with regard to the provision of information as to what is involved in a post mortem examination at the time of obtaining the consent of the plaintiffs, and in particular regarding the fact that organs might be retained, inter alia, for further examination, they have not, even taking their case at its highest, established any basis for a finding of negligence, and that the action in negligence must therefore fail. He submits that without any such expert evidence, this Court cannot find that there has been any breach of a duty of care, even assuming that there was such a duty in the present case in relation to the manner in which the consents to post mortem examination were obtained. In this regard, Mr Fitzgerald has referred again to the Statement of Claim wherein, inter alia, it is pleaded that:
“the plaintiffs and each of them gave their consent to the servants or agents of the said hospital to carry out forthwith a post-mortem examination on their said son or other special medical examination by way of analysis, tests or otherwise, of particular parts or contents of the body of their son”.
Particulars of the negligence alleged were provided by the plaintiffs in their Replies to Particulars in the following way:
“The defendant hospital failed to explain to the plaintiffs that substantial amounts of tissue, including entire organs, would be removed from the bodies of their infants at the post-mortem examination, and
They failed to return the said tissue and organs and any or all of same to the bodies of the infants at the end of the post-mortem examinations and/or before or during the preparation of the bodies of the infants for burial;
They failed to inform the plaintiffs that the said substantial amounts of tissue and/or organs would be retained indefinitely by the hospital;
They failed to give any reason for such indefinite retention of tissue and organs;
They failed to inform the plaintiffs of the retention of the tissue and organs as aforesaid until asked;
They removed and retained the said tissues and organs without the consent to same;
They failed to appreciate that the plaintiffs, in burying the bodies of their infants would think and did think and were entitled to think that they were burying the entire bodies of the infants in such a final and irrevocable way as would allow them to grieve normally;
They failed to comprehend the hurt and distress, which would be caused and was caused to the plaintiffs on their being informed of the retention of the substantial amounts of tissue and organ and by the burial of same.”
A similar pleading is made in respect of the post-mortem following the stillbirth of the plaintiffs’ daughter, Angelica. It is submitted by Mr Fitzgerald that the onus is on the plaintiffs to satisfy the Court, at this stage only to a prima facie level, that there was a duty on the hospital to avoid doing these things alleged to constitute negligence, and that there has been no evidence adduced from which the Court could conclude that there was.
In relation to the point made by the defendant that there is no expert evidence on which this Court can find that there was a particular duty of care and a breach of that duty, Mr Revington, in his response, submitted that, even if this case was to be classified as one involving medical negligence, and he did not concede that it was to be so narrowly considered, this Court could be in a position to conclude without any expert evidence that the manner in which the consent to post-mortem examination was obtained (i.e. without the giving of comprehensive detail as to what was involved regarding possible organ retention) was so inherently defective as to constitute negligence. He submitted in effect that the Court did not require any medical expert evidence in order to reach such a conclusion.
Mr Fitzgerald referred to a judgment of O’Donovan J. in Devlin v. The National Maternity Hospital, High Court unreported, 1st July 2004, where the learned judge had to consider a similar application for non- suit made at the conclusion of the plaintiffs’ case.
In that case, however, unlike the present case, the plaintiffs’ case, taken at its highest, indicated that the plaintiffs had given no consent to any post-mortem examination being undertaken. He therefore decided that he could not dismiss the plaintiff’s claim at that point of their case, on the basis that there was no breach of a duty of care made out taking the plaintiffs’ case at its highest, and he also considered that in the absence of any consent, that it was foreseeable that injury could be suffered by the plaintiffs. However, the case was dismissed on the basis that the plaintiffs’ case, at its highest even, had failed to establish by evidence in respect of the husband that he had suffered an injury, even though he had been distressed. In respect of the wife, O’Donovan J. was satisfied from the evidence that she had suffered “post traumatic stress which is the equivalent of nervous shock”. The learned judge went on to consider whether in that case the wife had succeeded in satisfying the various requirements laid down by Hamilton CJ in Kelly v. Hennessy [1996] ILRM 321 if there was to be recovery of damages for nervous shock – principles approved of by the Supreme Court in Fletcher v. Commissioners of Public Works [2003] 1 465. He found that while four of the five conditions were satisfied, she had failed to satisfy the fourth condition, namely “that the nervous shock sustained was by reason of actual or apprehended physical injury to the plaintiff or a person other than the plaintiff”. In my view the same must be so also on the facts of the present case.
But Mr Fitzgerald refers to the Devlin case, also for the purpose of drawing attention to the fact that in that case there was evidence adduced by the plaintiffs from medical experts as to what the practice was in the 1980s as to the obtaining of consent to post-mortem examinations, and he refers again to the fact that there is no such expert evidence in the present case.
Mr Revington, on behalf of the plaintiffs has laid considerable emphasis in this case on the submission that even though the plaintiffs have pleaded that they consented to the post-mortem examinations being carried out, nevertheless that consent cannot be a valid consent if the person consenting is not appraised or does not know exactly what they are consenting to, namely that the organs or tissue might be retained and not returned to the parents with the body for burial after the examination has taken place. In the circumstances he says that accordingly there is no real or actual consent in this case.
With regard to the claim based on misrepresentation, Mr Fitzgerald submits that since there has been no evidence adduced as any express terms set forth at the time consent was sought and given, it must be presumed that any terms referred to in the pleading are terms which must be implied. Indeed, the replies to particulars confirm that they are implied terms. Mr Fitzgerald submits that there has been no evidence from anybody as to what terms are to be properly implied in the relationship between the plaintiffs and the hospital, and that this failure undermines completely the plaintiffs’ case on misrepresentation. Mr Fitzgerald has submitted that these terms are not such as to be implied by law, and therefore some evidence is required before the Court can find that they were implied terms. On the other hand, Mr Revington has submitted that the court has all the evidence it needs to deal with the question as to whether the terms pleaded to be implied terms are such.
The following are the terms described in the Statement of Claim as being express or implied in connection with the consent given in relation to the post-mortem on Thomas. The same are pleaded in relation to the post-mortem examination of Angelica:
“6 (a) that the said examination would be carried out in accordance with strict medical practice and guidelines;
(b) that only so much of the tissue or organs of their son as were necessary to establish the cause of his death and/or would help the first named plaintiff with future pregnancies would be examined or interfered with;
(c) that once the examination had taken place that so much of the organs or tissues as had been removed for the purpose of the examination would be immediately disposed of in a dignified and clean manner or returned forthwith to the plaintiffs a parents and next of kin or either of them for immediate burial.”
These are the implied representations which the plaintiffs say they relied upon when they gave their consent. But there is nothing from which this Court can conclude that it is reasonable to imply these representations at all.
Mr Fitzgerald has also submitted that as the law relating to negligent misrepresentation has evolved, it seems to be confined to cases in which it is shown that some economic loss has resulted, and he has referred to the judgment in Hedley Byrne & Co Ltd v. Heller & Partners Ltd [1964] AC 465, and to the learned and established textbook by McMahon and Binchy on the Law of Torts, Chapter 10 thereof. He has pointed out that in the present case, the damages claimed are confined to alleged personal injuries, and not to economic loss.
With regard to breach of contract, Mr Fitzgerald submits that on the evidence adduced by the plaintiffs there has been nothing in the nature of any breach of contract established in relation to the post-mortem examinations. Mr Fitzgerald did accept that at the time Angela was admitted to the hospital on each occasion there would have been a contractual relationship between her and the hospital, but certainly not as regards Jason. He further submits in relation to any contract with Angela, that it would have related to her care and maintenance at the hospital, and the care also of the babies born, but would not extend to matters pertinent to any post-mortem examination.
I do not propose to set out any detail the brief submissions made by Mr Fitzgerald in relation to the plaintiffs’ claims relating to Bailment, Conversion, Detinue and Trespass. In effect, Mr Revington rightly conceded that the plaintiffs’ claims did not come under these headings, and he certainly has not relied upon them to any relevant extent.
Fitzgerald submitted that following the evidence given by and on behalf of the plaintiffs, there were nineteen facts which he felt were the established relevant facts in the case, and he listed them as follows:
1. In 1996 – baby Thomas died after 14 hours of life.
2. Plaintiffs both consented to a post mortem
3. No discussions took place as to details of what a post mortem entailed.
4. Both plaintiffs knew that baby Thomas’s body would be opened
5. Baby Thomas was buried
At the post-mortem organs were removed, some restored and some retained by the hospital
7. 1998 – baby Angelica was stillborn
8. It is pleaded that consent to post-mortem was given by both plaintiffs, although the evidence has been that Angela does not remember and Jason said he did not consent – Dr Cummiskey was also told that they had consented to post-mortem
9. No discussion about details of the post-mortem to be performed on Angelica
10. Plaintiffs knew that Angelica’s body would be opened for the post-mortem.
11. Angelica was buried
12. At post-mortem organs were removed, some were restored and some retained by the hospital
13. Plaintiffs did not know that organs or tissue had been retained. Mr Fitzgerald agreed with me when I suggested that this fact should be reframed to read “the plaintiffs did not know that organs or tissue either would be or had been retained.
14. In 200 the plaintiffs were informed of the true position
15. The hospital offered to return the organs and they were returned and buried, and some tissue in slides was retained.
16. The plaintiffs have suffered no recognisable psychiatric illness
17. The meeting on the 6th June 2000 was unsatisfactory from the plaintiffs’ viewpoint
18. There has been no demand and refusal of the organs and tissues to the plaintiffs
19. Angela would have found it hard to cope with more details of what a post-mortem entailed on the days when she gave consent.
Mr Fitzgerald then outlined what evidence, in his submission, had not been given, and which was necessary for the plaintiffs to give if they are to succeed:
1. No evidence of any recognised psychiatric illness;
2. No evidence from any expert, except on the question of damages;
3. No evidence of any financial loss – a relevant factor in relation to some of the torts alleged;
4. No evidence on the question of foreseeability of the plaintiffs suffering an illness when they discovered the organs had been retained;
5. No evidence of any implied term in relation to the consents given.
Submissions in relation to the alleged personal injuries:
I have already set out the plaintiffs’ evidence and the evidence of Dr Duggan, who is Angela’s General Practitioner, and also of Dr Helen Cummiskey, Consultant Psychiatrist, to whom both plaintiffs were referred by their solicitor for this case.
Mr Fitzgerald submits that there is no evidence that the plaintiffs or either of them suffered anything in the nature of a recognised psychiatric illness. He accepts of course, and was at pains to so point out, that each of the plaintiffs gave evidence of having been upset by the discovery that organs and tissue belonging to their deceased children had been retained by the hospital after the post-mortem examinations had been completed, but that as such, it was not something which was capable of sounding in damages against the defendant.
Mr Fitzgerald suggests that the evidence of Dr Cummiskey amounts to saying that Angela suffered upset, outrage and anger and was traumatised. If this upset was anything, he submits, it was in the nature of nervous shock, and while not conceding that this was so, Mr Fitzgerald submitted that in any event it did not come within the conditions necessary for the recovery of damages as stated in Kelly v. Hennessy [1995] 3 IR 253. As a fallback position, Mr Fitzgerald has submitted that even if he is incorrect in stating that there is no compensatable injury suffered by the plaintiffs, then any such injury which they may be found to have suffered is so remote as to be unforeseeable, and that therefore one of the grounds for awarding damages for negligence is absent – namely foreseeability of injury, and also that there has been no expert evidence regarding this question of foreseeability of damage.
In the case of Jason, Dr Cummiskey gave it as her opinion that the discovery about organ retention had caused him “anger and at times sadness and a sense of violation.”
Mr Fitzgerald has pointed to the fact that distress is not something which is capable of compensation beyond the confines of mental distress in the context of a fatal accident under the Civil Liability Act, 1961.
He has also referred to the fact that neither plaintiff underwent or was prescribed any treatment for any illness they alleged. In fact apart from Angela going to her GP, both plaintiffs consulted Dr Cummiskey on the advice of their solicitor for this case.
When Mr Revington dealt in his submissions with the vital question of whether what the plaintiffs or either of them suffered amounted to a recognised psychiatric injury, he accepted that Dr Cummiskey had not gone as far as stating that either had suffered a recognised illness or disorder. But he sought to draw some assistance from the fact that in various reported cases a number of different words appear to be used interchangeably, such as “recognised illness”, “recognisable illness”, illness “attributable” or “attributed” to shock and so on. He felt that even if the plaintiffs’ illness came towards the bottom of the scale, it nevertheless was of such a character to be capable of compensation, even if no medical label as such could be attached to it. He referred to the fact that a symptom of post traumatic stress disorder is an inability to sleep properly at night, and that in the present case, Angela had suffered from that problem. The same in his view could be said regarding the flashbacks to which she referred in evidence. He also referred to the fact that Dr Cummiskey had specifically used the word “trauma” in relation to what Angela suffered. It will be recalled that in her report, Dr Cummiskey has stated that Angela was “upset and traumatised” by the discovery that organs had been retained.
First of all I am satisfied that the very understandable upset and anger experienced by Jason on hearing that organs and tissue belonging to his children had been retained without his knowledge never caused him to suffer any recognised psychiatric illness. His evidence has been very honestly and candidly given. He neither felt the need to seek medical advice or treatment, and nor has he been offered or received any such treatment. I can well understand that the degree and extent of his anger and distress, and it was evident even to this day from the manner, albeit dignified and restrained, in which he expressed himself in the witness box. It is completely understandable. That said, however, it is necessary in order to recover compensation, that what was experienced in this regard by Jason be within the categories of illness recognised by law as attracting damages. Dr Cummiskey, as I have stated, has said in her report that Jason became depressed following the death of Thomas, but that cannot be linked to the discovery of the fact that some organs and tissue were retained by the hospital. Her findings in relation to what he suffered in relation to the latter is confined to “feelings of anger and at times sadness and a sense of violation”. These are not matters which can sound in damages. In so far as Mr Revington sought to draw support from my judgment in Philp v. Ryan, unreported, High Court, 1st July 2004, I would not be prepared to consider that decision as extending to the present case, and in any event it is noticeable that in the judgment of Fennelly J. in the Supreme Court the basis of the award of damages was adjusted somewhat, and I cannot feel that this case would come within its ambit.
As far as Angela is concerned, she undoubtedly suffered great upset at hearing of the retention of organs and Dr Cummiskey acknowledges that. I have set out her findings in relation to Angela. But while Dr Cummiskey describes in some detail the way in which the discovery upset Angela and made her angry, and uses the word “traumatised” in relation thereto, she never at any stage uses the term “post traumatic stress syndrome”. She even went as far in her evidence, which I have set out, as explaining exactly what she meant by the word “traumatised”. It will be recalled that she stated as follows in that regard:
” when I say traumatised, I mean that when you hear something very upsetting, for example, those people my age would look upon the death of President Kennedy when you heard about that as being a flashbulb type of trauma. It was not a pleasant feeling, it was a shock, it was a trauma. That’s called a flashbulb effect.”
This seems removed from what one normally understands by post traumatic stress syndrome/nervous shock. I cannot help feeling that if she had considered that the case fell into that category she would have said so, either in her evidence or in her report. Neither was she asked nor was it even put to her that it fell into that category. The difficulty experienced in Angela’s sleep pattern has been associated by Dr Cummiskey with the death of Angela’s father, rather than the organ retention discovery. Dr Cummiskey has described this discovery as having reactivated her grief at the loss of her children, “compounded by a sense of outrage and hurt”.
While Angela appears to have attended her G.P. in August 2000 there is nothing in Dr Duggan’s evidence to suggest any recognised psychiatric illness, except his reference to a reactive depression- a term which he accepted might be a rather loos use of words, and he agreed that he would defer to Dr Cummiskey’s expert opinion in such matters.
Dr Cummiskey has stopped short of describing any recognised psychiatric illness in Angela. In fact she states that she is functioning well, and that there are no psychotic features, and no disturbance of her perception or cognitive capacities. She has also stated in her report that Angela’s mood was level at examination, and that she had no history of depression.
For the reasons which I hope are clearly set out in this judgment, the Court unable to discover from any evidence any recognised psychiatric illness having been suffered by Angela, even though her anger and upset and grief is still palpable, and I fully understand that.. But the Court is not able to award any damages to either plaintiff for these matters. I would perhaps also say that having observed both Angela and Jason in the witness box when they gave their evidence, I feel that from their point of view this case has not in fact been about the recovery of damages. I have little doubt that no award of damages would be even half as useful in easing their feelings of anger and distress as a forthright and sincere and appropriately tendered apology for the anger, hurt and distress caused, however unintentionally at the time, by the retention of their babies’ organs, and perhaps an acknowledgement to the plaintiffs that the failure to explain that organs and tissue might be retained was not these days an acceptable way of dealing with such a situation. But the problem is that our legal system is not conducive to such steps being taken by defendants exposed to a claim for damages once fault might be seen to be acknowledged by such an apology, and are inhibited from taking a step which perhaps in other circumstances they would wish to take in order to assist those who have suffered distress and hurt. Perhaps the meeting of the 6th June 2000 in this case was an effort being made in this respect, but if the plaintiffs’ evidence is true, and I am conscious of the fact that the defendants have not been called upon to give their evidence at this point in the proceedings, it singularly failed for whatever reason to achieve its worthy objective. That is a pity.
For this reason alone, the application made by Mr Fitzgerald must be acceded to, and the Court must dismiss the claims brought by the plaintiffs against the defendant.
In relation to the other question as to whether, regardless of the nature of any injury claimed to have been suffered, these plaintiffs have established any legal basis for succeeding against the defendant, I am of the view that in this particular case, the necessary evidence has not been adduced in order to establish negligence. For negligence to be found, there must first of all be a duty of care owing to the plaintiffs by the defendant. Thereafter the plaintiffs must establish a breach of that duty. Questions of proximity and foreseeability also arise, as do the other conditions stated by Keane CJ. in Glencar Exploration Plc. v. Mayo County Council [2002] 1 ILRM 481.
There must be some evidence given in order to reach these conclusions, and in a case such as this, such evidence would need to be given by experts. None has been adduced. In the absence of such evidence, this Court would have had no basis for making a finding of negligence against the hospital or its staff.
Similar considerations arise in relation to the claim of misrepresentation. The Court has no evidence on which to reach any conclusion on misrepresentation, and also in relation to breach of contract. Those claims hinge on the alleged implied terms surrounding the obtaining of the plaintiffs’ consents to post-mortem examination, and again, expert evidence would be needed to establish necessary matters. The remaining claims are not being pursued by the plaintiffs and there is no need to address them in this judgment.
I have taken the view that given the nature of the basis on which I have dismissed these claims, I ought not to set out any consideration of the cases to which the Court has been referred, and in particular the case of AB v. Leeds Teaching Hospital NHS Trust [2004] EWHC 644 (QB) – a judgment dealing with four separate claims by four different plaintiffs arising out of the organ retention controversy. It is an important case for any Court dealing with a claim such as the present plaintiffs’ claims, to consider. A striking feature of those cases in AB is that there was expert evidence adduced of the kind which I have found to be lacking in the present case. However, any detailed consideration of that case should, I feel, await another occasion when perhaps a case will come before the Court with the necessary evidence called, including evidence of compensatable injury, so that the issues are properly brought into play, and the Court is required to make a decision, in the light of evidence adduced, on the manner in which consent was obtained, and the adequacy information given prior to consent being given.
I commenced this judgment by recognising as fully as I can the immense distress which the plaintiffs have endured following the news of organ retention. In those circumstances, the Court has looked most anxiously at the application made by the defendant to dismiss these claims, lest by any chance such an order might be made too easily in a case such as this, especially when such cases have not come before the Court, other than perhaps on one occasion to which the Court has been referred (the Devlin case), a case which was dismissed.
I am satisfied, however, that these claims must be dismissed at this stage of the hearing for the reasons which I have set forth as fully as I can. I therefore order accordingly.
Sheehan v Bus Eireann/Irish Bus & Anor
(Approved) [2020] IEHC 160 (03 April 2020)
Page 1 ⇓THE HIGH COURT[2020] IEHC 1602018 No. 652PBETWEENLISA SHEEHANANDBUS ÉIREANN/IRISH BUSANDVINCENT DOWERJUDGMENT of Mr Justice David Keane delivered on the 3rd April 2020PLAINTIFFDEFENDANTSIntroduction1. In this personal injuries action, the plaintiff Lisa Sheehan seeks damages for thepsychiatric injury that resulted from her presence at the scene of a road traffic accident.The defendants are the persons responsible for each of the two vehicles directly involvedin that collision.2. The case raises two fundamental issues on the law governing liability for negligentlyinflicted psychiatric damage. First, what is the nature and scope of the duty of care not tocause a reasonably foreseeable psychiatric injury to a person who is not directly involvedin the accident caused by that breach of duty? Second, does the law recognise a right ofrecovery for the psychiatric consequences of witnessing an accident, if the primary victimis the tortfeasor rather than a blameless third party?Background3. The accident occurred after dark on the winter evening of 28 January 2017, at a point onthe N72 national secondary road in the townland of Gearanaskagh, a short distance westof Mallow, County Cork. A passenger bus travelling east was struck head on by a singleoccupant motor car travelling west. The bus was owned and operated by the firstdefendant Bus Éireann. The driver of the car was killed in the crash and the seconddefendant Vincent Dower is the nominated representative of that vehicle’s insurer, FBDInsurance (‘FBD’).4. When the accident happened, Ms Sheehan was driving alone on the westboundcarriageway of the N72, commuting from her job as a hairdresser in Cork city to herhome in the village of Banteer in North Cork. Although Ms Sheehan did not see thecollision take place ahead of her on the dark roadway, some debris from it struck her car,prompting her to brake to a halt. On getting out of her car to investigate, she saw thedamaged bus, stationary on the eastbound carriageway to her right. Then she saw thecar, motionless and severely damaged, a short distance in front of her on the westboundcarriageway. There was diesel oil and, perhaps, blood on the roadway. She ran to the carand, on peering into the back, glimpsed the badly disfigured and partly decapitated bodyof what looked like a child, which gave her a tremendous fright. Although in shock, MsSheehan called the emergency services on her mobile phone to report the accident andsummon help. Before help arrived, she searched the surrounding area for other victimswho might have been thrown from the car. Providentially, there were none. ThePage 2 ⇓mutilated body in the back was that of the adult driver; it had been propelled there by thetremendous forces involved in the impact between the two vehicles. Ms Sheehan laterencountered the driver of the bus, whose face was covered in blood. After the emergencyservices arrived, a guard who was concerned about her mental state advised Ms Sheehanto have someone come to collect her and to immediately consult her general practitionerbut, in hindsight perhaps rashly, Ms Sheehan decided to drive home as she did not wantto alarm her husband.5. The deceased driver of the car and the driver and occupants of the bus were strangers toMs Sheehan.6. Nonetheless, because of what she witnessed at the scene of the accident, Ms Sheehanexperienced a depressive adjustment reaction and developed a moderately severe post-traumatic stress disorder for which the prognosis remains guarded. Those are the injuriesfor which she claims damages.7. Ms Sheehan pleads that those injuries have resulted from the negligent operation orcontrol of one, or both, of the vehicles involved in the crash, making one, or both, of thedefendants liable to her in damages.8. Bus Éireann denies negligence. FBD admits that the accident was caused by thenegligence of the driver of the car. Its solicitors have now taken over the defence of theaction on behalf of both defendants.9. Both sides acknowledge that the resolution of the case turns on the plea advanced by FBDthat, on the facts presented, Ms Sheehan’s psychiatric injuries do not give rise to anycause of action recognised by the law, in that the defendants did not owe her any duty ofcare for two reasons; first, because Ms Sheehan was merely a ‘secondary victim’ of theaccident and cannot meet the additional requirements that, as a matter of policy, the lawimposes on persons in that category, to establish the existence of such a duty; andsecond, because the driver of the car was a ‘primary victim’ of self-inflicted injuries and,as such, owed no duty to a secondary victim, such as Ms Sheehan, who sufferedpsychiatric injury as a result. In support of the first proposition, the defendants rely onthe principles developed in a trilogy of House of Lords decisions commencing with Alcockv Chief Constable of South Yorkshire Police [1992] 1 AC 310, continuing with Page vSmith [1996] AC 155, and culminating in White v Chief Constable of South YorkshirePolice [1999] 2 AC 455 (on appeal from Frost v Chief Constable of South Yorkshire Police[1998] QB 254 (CA)). In support of the second, they rely on the judgment of Cazalet J inthe High Court of England and Wales in Greatorex v Greatorex [2000] 1 WLR 1970.The proceedings10. A personal injuries summons issued on behalf of Ms Sheehan on 25 January 2018. Eachof the defendants entered an appearance on 6 March 2018. The defence of FBD wasdelivered on 15 May 2018 and that of Bus Éireann on 4 July 2018. Ms Sheehan issued anotice of trial on 25 July 2018.Page 3 ⇓11. The trial of the action took place in Cork on 21 and 22 January 2020. Ms Sheehan wasrepresented by Eoin Clifford SC and John Lucey SC with Colmán Ó Donnchadha BL,instructed by Martin A. Harvey, Solicitors. The defendants were represented by JohnLynch SC with Donal T. McCarthy BL, instructed by O’Riada, Solicitors. I am grateful tocounsel for their deft submissions.The Evidence12. There is only very limited conflict between the parties on the material facts.13. Just two witnesses gave evidence at trial. They were Ms Sheehan, the plaintiff, and JohnG. Sullivan, an independent expert engineer and assessor retained on her behalf. Thedefendants did not call any witnesses.14. By agreement between the parties, various medical reports were admitted into evidencewithout formal proof. It is to the contents of those reports and to Ms Sheehan’stestimony on the injuries she sustained that I now turn.Ms Sheehan’s psychiatric injury15. Ms Sheehan is a married woman with two young children. At the time of accident, shewas 34 years old, and working as a hairdresser.16. On Tuesday, the 31 January 2017, three days after the accident, she went to her generalpractitioner, Dr Jacinta Barry, having suffered a panic attack at work. She was tearfuland agitated and reported that she could not get the images of the accident out of hermind. Dr Barry prescribed anxiolytic (anxiety inhibiting) and anti-depressant medication,referred Ms Sheehan for counselling, and certified her as unfit for work over the next fiveweeks. Due to subsequent recurrences of acute anxiety, Ms Sheehan had to take furthershort periods off work intermittently after that.17. Ms Sheehan’s symptoms did not resolve, and in May 2017 Dr Barry referred her forevaluation to Dr Mairead O’Leary, consultant psychiatrist. Dr O’Leary saw Ms Sheehan on2 October 2017.18. Ms Sheehan described her condition to Dr O’Leary in the following way. She used to beoutgoing but was now completely different. She slept badly and frequently woke up withnightmares. She felt distant from everyone, even her husband and children, whichdistressed her. She had outbursts of anger, which made her feel guilty. She wascontinuously irritable and on edge. She thought constantly about the victim of theaccident and could not stop ruminating about what she had seen. She tried to avoidpassing the scene of the accident, as doing so caused her to have very intense andunpleasant flashbacks. Her condition since the accident had put a great strain on herfamily relationships. Normal intimacy with her husband had ceased. Although her familyhad been very happy in their rural home prior to the accident, Ms Sheehan had developedgreat anxiety about the associated level of family car travel and wanted to move to anurban area where it would be less, although her husband did not. This had become afurther source of strain and friction within the family.Page 4 ⇓19. Dr O’Leary observed that Ms Sheehan described, and was in, a state of autonomichyperarousal and hypervigilance (which I understand to mean one of persistent,involuntary anxiety and alertness).20. Dr O’Leary diagnosed classic post-traumatic stress disorder (‘PTSD’), consequent upon MsSheehan’s acute stress reaction to what she experienced at the scene of the accident. DrO’Leary recommended psychotherapy and referred Ms Sheehan to a clinical psychologistfor eye movement desensitisation and reprocessing (‘EMDR’) therapy and counselling. Inoffering a prognosis, Dr O’Leary noted that fifty percent of those who experience PTSDrecover within twelve months before concluding that, in view of Ms Sheehan’s conditionwhen assessed almost ten months after the accident, she was unlikely to be in thatcohort. However, Dr O’Leary was hopeful that, in time, Ms Sheehan would make a fullrecovery, subject to a twenty-five percent chance of further anxiety, depression or stress-related conditions in the future.21. Dr R.M. Kennefick, a general practitioner, examined Ms Sheehan on 5 June 2018 as anindependent medical expert on behalf of the defendants. In his report, he acknowledgedthat her condition satisfies the requirements for a diagnosis of PTSD, although he felt thatshe had made good progress in the time since her accident; that her residual symptomswere not of a significant nature; and that she should make a satisfactory recovery withintwo years of the date of the accident.22. Dr O’Leary met with Ms Sheehan for a further review on 8 May 2019. Ms Sheehanreported that her condition had not improved. Her family relationships were still strained.She still wanted to move to an urban area to minimise her family’s car travel. She hadceased her work as a hairdresser in February 2019, as she had been unable toconcentrate. She remained hyper-aroused and hypervigilant. She continued to ruminateon the accident she had witnessed, and to have flashbacks and nightmares about it.23. Dr O’Leary recorded that, during that assessment, Ms Sheehan became tearful and sad,and was visibly anxious and agitated, expressing apprehension and pessimism about thefuture. Dr O’Leary concluded that Ms Sheehan had still not then recovered from her PTSD,despite the medication she was on (including the occasional use of sedatives, as well astranquilisers), and the counselling and therapy she was undergoing.24. Dr John Dennehy, consultant psychiatrist, assessed Ms Sheehan as an independentmedical expert on behalf of the defendants on 10 September 2019. He too expressed theopinion that Ms Sheehan had experienced a moderately severe post-traumatic stressdisorder after an initial stress reaction at the scene of the accident, together with adepressive adjustment reaction, which had improved but which had a persistentpsychosocial impact, especially on her family relationships.25. Dr Dennehy noted that Ms Sheehan was to continue with therapy and medication.Nonetheless, he expressed the view that the prognosis for her recovery remained guardedand that it would certainly take some further time.Page 5 ⇓26. Thus, I conclude – and the defendants do not dispute for the purpose of theseproceedings – that Ms Sheehan has sustained a significant psychiatric injury.Liability for negligently inflicted psychiatric injury27. As the authors of McMahon and Binchy, The Law of Torts (4th ed., 2013) explain (at para.17.10), whereas most common law jurisdictions were initially hostile to the assertion of aduty to avoid causing ‘nervous shock’ (as the law then described psychiatric injury),Ireland was not.28. In Bell v Great Northern Railway Company of Ireland (1890) 26 LR (Ir) 428 (Ex Div), acase that arose from the terrible 1889 Armagh rail disaster, Chief Baron Palles, who hasbeen described as the embodiment of the common law in Ireland in the nineteenthcentury (V.T.H. Delany, Christopher Palles: His Life and Times (Dublin, 1960) (at p. 3)),expressed the now orthodox view that if negligence causes fright, which, in turn, causespsychiatric injury, then liability may follow even if that injury occurs or develops overtime, rather than instantaneously (at 442).29. In reaching that conclusion, the Chief Baron expressly refused to follow the judgmentdelivered two years earlier by Sir Richard Couch for the Judicial Committee of the PrivyCouncil in Victorian Railway Commissioners v. Coultas (1888) 13 App. Cas. 222,confirming the view then prevalent that damages arising from a mere sudden terror,unaccompanied by any physical injury, but occasioning psychiatric injury, could not beconsidered a consequence which, in the ordinary course, would flow from the negligentconduct that caused that fright. The plaintiff in that case had suffered severe shock (andsubsequently, as Palles CB noted, a miscarriage) when a train narrowly missed the horse-drawn buggy in which she was travelling, due to the negligence of the gate-keeper at alevel crossing. The Chief Baron criticised the assumption made by the Privy Council inthat case that, as a matter of law, nervous shock was something that affected the mentalfunctions but was not itself a peculiar physical state of the body (i.e. not really aseparately cognisable ‘injury’), before concluding that ‘[t]his error pervades the entirejudgment’ (at 441).30. The Chief Baron went on to explain that he did not have to follow that authority becausehe was bound instead by the earlier decision of the Court of Appeal in Ireland in Byrne vGreat Southern and Western Railway Company (Unreported, February 1884), upholding averdict for a plaintiff, the superintendent of the telegraph office at Limerick Junctionrailway station, who, although physically unharmed, had suffered psychiatric injury fromthe shock he received when a train crashed through a buffer and then the wall of thatoffice after railway points were negligently left open.31. Just over a century later, in Mullaly v Bus Éireann [1992] ILRM 722 (HC), Denham J reliedstrongly on the decision in Bell in support of her conclusion that the post-traumatic stressdisorder that the plaintiff developed after seeing her husband and three of her sons inhospital, badly injured in the immediate aftermath of a serious road traffic accident,amounted to a psychiatric illness that was a readily foreseeable consequence of thedefendant’s negligence in causing the accident.Page 6 ⇓32. The leading modern authority on negligently inflicted psychiatric injury is the decision ofthe Supreme Court in Kelly v Hennessy [1995] 3 IR 253. In that case, the plaintiff wasinformed by telephone that her husband and two daughters had just been seriouslyinjured in a car crash and immediately afterwards saw each of them in an appallingcondition in hospital. As a result, she developed post-traumatic stress disorder.Hamilton CJ summarised the five things that a plaintiff must establish to succeed in anaction for damages for negligently inflicted psychiatric injury (at 258-260). Shortlystated, they are:(i) that the plaintiff suffered a recognisable psychiatric illness;(ii) that the psychiatric illness was shock induced;(iii) that the shock (and, hence, the consequent psychiatric illness) were caused by thenegligence of the defendant;(iv) that the shock was sustained by reason of actual or apprehended physical injury tothe plaintiff or another person; and(v) that the defendant owed the plaintiff a duty of care not to cause the plaintiff areasonably foreseeable injury in the form of psychiatric illness.33. The resolution of the present case turns on the application of the fifth limb of the test justdescribed. Did the defendants owe Ms Sheehan a duty of care?34. The most recent authoritative statement of the test for the existence of a duty of care isthat of Keane CJ in Glencar Exploration plc v Mayo County Council (No. 2) [2002] 1 IR 84(at 139):‘There is, in my view, no reason why courts determining whether a duty of carearises should consider themselves obliged to hold that it does in every case whereinjury or damage to property was reasonably foreseeable and the notoriouslydifficult and elusive test of “proximity” or “neighbourhood” can be said to have beenmet, unless very powerful public policy considerations dictate otherwise. It seemsto me that no injustice will be done if they are required to take the further step ofconsidering whether, in all the circumstances, it is just and reasonable that the lawshould impose a duty of a given scope on the defendant for the benefit of theplaintiff, as held by Costello J. at first instance in Ward v. McMaster [1985] IR. 29,by Brennan J. in Sutherland Shire Council v. Heyman (1985) 157 CLR 424 and bythe House of Lords in Caparo Industries plc. v. Dickman [1990] 2 AC 605. AsBrennan J. pointed out, there is a significant risk that any other approach will resultin what he called a “massive extension of a prima facie duty of care restrained onlyby undefinable considerations …”The first argument35. The defendant’s first argument is that Ms Sheehan was merely a secondary victim of theroad traffic accident in this case and that, as such, even if she can establish that herPage 7 ⇓psychiatric illness was a reasonably foreseeable consequence of the defendants’negligence, she cannot bring herself within the restricted category of such victims whoseclaims can succeed under the rigid test developed by the UK House of Lords in the casesof Alcock, Page and White, already cited.36. In Alcock (at 409), Lord Oliver divided psychiatric injury cases into two categories, ‘thosecases in which the injured plaintiff was involved, either mediately or immediately, as aparticipant and those in which the plaintiff was no more than a passive and unwillingwitness of injury caused to others’, before adopting the term ‘primary victim’ to refer to aperson in the first category (at 406). In Page (at 184), Lord Lloyd appeared to narrowthe concept of primary victim to a person ‘directly involved in the accident’ and ‘within therange of foreseeable physical injury’.37. As summarised by Lord Steyn in White (at 496), to succeed in a claim for damages forpsychiatric injury as a secondary victim, it is necessary to establish: (i) that the plaintiffhad a close tie of love and affection with the person killed, injured or imperilled; (ii) thatthe plaintiff was close to the incident in time and space; (iii) that the plaintiff directlyperceived the incident rather than, for example, hearing about it from a third person.Having been first enunciated by Lord Ackner in Alcock (at 402), those requirements arefrequently referred to as the Alcock control mechanisms (see, for example, the judgmentof Lord Hoffman in White (at 509)).38. The defendants point out that Ms Sheehan had no ties with the driver who died in theaccident in this case. They also argue – relying heavily on Ms Sheehan’s description inboth her pleadings and her evidence of ‘coming upon’ the scene of the accident – that shewas not particularly close to the incident in time and space at the moment when itoccurred. Finally, because Ms Sheehan acknowledges that she did not see the collisionbetween the two vehicles on the dark road, they submit, in effect, that she did notdirectly perceive the incident.i. the primary/secondary victim distinction39. On this question, I consider Curran v Cadbury (Ireland) Ltd [2000] 2 ILRM 343, a decisionof Judge McMahon in the Circuit Court, a most persuasive authority, due both to theclarity and thoroughness of its analysis and to the venerable position that Judge McMahon(later Mr Justice McMahon) holds as co-author of McMahon and Binchy, The Law of Torts(4th ed, 2013), the leading practitioner’s work.40. In that case, Judge McMahon observed (at 347):‘There has been a tendency in recent years, especially in English cases, to dividevictims in these type of cases into two categories: primary victims and secondaryvictims (See Lord Oliver in Alcock v. Chief Constable of South Yorkshire Police[1992] 1 AC 310 and Lord Lloyd in Page v. Smith [1996] 1 AC 155). Suchcategorisation is not without difficulties and has been criticised (See LawCommission Report (England), Liability for Psychiatric Illness (1998) Law Com. No249, at para. 5.50, which followed the Law Commission’s Consultation Paper No.Page 8 ⇓137 (1995), where the suggestion is that the distinction should be abandoned as itis unhelpful). For my own part, I am not convinced that the separation of victimsinto these two categories does anything to assist the development of legalprinciples that should guide the courts in this complex area of the law. Hamilton CJ(with whom Egan J agreed) did not refer to the distinction in Kelly v. Hennessy[1995] 3 IR 253; [1996] 1 ILRM 321 the leading Irish case on the matter, andwhile Denham J, in the same case, used the term ‘secondary victims’ to describethe aftermath relatives who were plaintiffs in that case, her primary focus wasnaturally on the plaintiff before her rather than on persons who were more directlyinvolved in the accident. She did, however, give a clear definition as to what shemeant by the terms when she said of the victim before her (at p.269):“The plaintiff was not a primary victim; that is to say she was not aparticipant in the accident. Her case is that she is a secondary victim; that isto say one who did not participate in the accident, but was injured as aconsequence of the event.”’41. And later (at 359-360):‘After White the English position is as follows: persons who suffer negligentlyinflicted psychiatric illness are divided into two groups: primary victims andsecondary victims. Primary victims are variously defined as those who were alsoexposed to physical injury or who were in the area of risk of physical injury or whowere participants or directly involved in the accident. Secondary victims includemere bystanders or spectators. There appear to be no other categories, so that allclaimants are either primary or secondary victims. The law views secondary victimsas being less deserving and consequently, it demands that those victims must, forpolicy reasons, satisfy the courts in addition to the ordinary negligencerequirements, that there was a ‘close’ relationship between the claimant and thevictim, that they were spatially and temporally near the accident and that theyperceived the events through their own senses. White, in effect, held that rescuersand employee claimants who up to then had been considered to be entitled torecover without having to concern themselves with ‘the control mechanisms’, arenow treated as secondary victims also. To succeed, therefore, a rescuer must nowshow that he has a ‘close’ relationship with the injured person(s) and that hecomplies also with the other policy requirements. White also decided that there isno general duty of care owed by the employer to his employees in respect ofpsychiatric illness, and employees, like other secondary victims, must now alsosurmount the policy control mechanisms if they wish to recover. Finally, the Englishcourts have held in Page v. Smith, supra, that if the defendant could foreseepersonal injury (i.e. physical or psychiatric illness) he will be liable if the claimantonly suffers psychiatric illness.In contrast, to recover for this type of injury in the Irish courts, the claimant mustcomply with the five conditions laid down by Hamilton CJ (with whom Egan Jagreed) in Kelly v. Hennessy. Nowhere in the Chief Justice’s judgment is there anyPage 9 ⇓reference to primary or secondary categories. Denham J in the same case seemedto accept the distinction, and indicated that to be a primary victim one had to be a‘participant’ in the events. As opposed to the English position, Hamilton CJ also heldthat to recover in Ireland for nervous shock, the defendant had to foresee nervousshock and not merely personal injury in general. When addressing these issues inKelly, the Irish courts relied heavily on the Australian approach as expressed inJaensch v. Coffey [(1984) 155 CLR 549 (HCA)], an approach which has beenrejected by the English Courts.’Two things become clear from this: first, the law on this topic is far from settled ineither jurisdiction; second, a divergence of approach between the two jurisdictionsis becoming increasingly obvious and perhaps inevitable. Several questions haveyet to be confronted by the Irish courts: should the law in this jurisdiction acceptthe primary/secondary classification?; are there to be other classes — tertiaryvictims for example?; if not, are there to be exceptions to the primary/secondarycategories — e.g. rescuers and/or employees?; is ‘participation’ to be the criterionin determining primary victims?; is it necessary for a defendant to foresee nervousshock or is it sufficient if he foresees ‘personal injury’ of some kind?; are theoccupational stress cases like Walker v. Northumberland County Council [1995] 1All ER 737 where the plaintiff is clearly a primary victim, but where the injury is notshock induced, affected by these developments?; and perhaps, most fundamentalof all: is the distinction between physical and psychiatric injury medically or legallydefensible nowadays? (See Lord Lloyd of Berwick in Page v. Smith [1996] 1 AC155, at p. 188.)The House of Lords’ decision in White is somewhat reminiscent of its earlier decisionin Murphy v. Brentwood District Council [1991] 1 AC 398 where it resiled from itsearlier approach in Anns v. Merton London Borough Council [1978] AC 728 on thegeneral duty of care issue. This withdrawal was never followed by the Irish courts,who in Ward v. McMaster, supra, and a succession of cases thereafter, kept faithwith the Anns approach. From the Supreme Court’s reliance on the Australianauthorities in Kelly, it would seem that the Irish courts will not be overawed byWhite and may well choose, as it did in Ward v. McMaster, to go its own road,especially since White has its critics (see supra).’42. Fletcher v Commissioners or Public Works [2003] 1 IR 465 was a case of acknowledgedpsychiatric injury – in the form of an anxiety disorder linked to the risk of contractingmesothelioma – caused by the plaintiff’s exposure to asbestos dust through the admittednegligence of the defendants as his employers. The requirement to establish that thepsychiatric injury was shock induced, under the second limb of the test in Kelly, was anobvious obstacle to the success of any such claim, which suggests that an extension ofthe law on policy grounds would have been necessary to enable it to succeed.43. Keane CJ noted (at 475) that the Supreme Court was not concerned in that appeal withany distinction between ‘primary victims’ and ‘secondary victims’, before pointing outPage 10 ⇓that, while the plaintiff in Kelly undoubtedly belonged to what the English cases describeas the category of ‘secondary victims’, the decision that she was entitled to recoverdamages had been upheld by the Supreme Court on the basis that her claim met the fivegenerally applicable conditions identified by Hamilton CJ in that case.44. In his judgment in Fletcher, Geoghegan J was careful to say, in referring to Alcock, thathe did so to elicit general principles governing claims for psychiatric injury, and not toapprove or disapprove it in light of the great problems with it identified in subsequentcases (at 503), before later observing that Lord Oliver’s distinction between primary andsecondary victims was of little importance for the case at bar (at 505), and ultimatelyconcluding that it was unnecessary to express any final opinion on the matter ‘not leastbecause the primary/secondary distinction has been criticised (see for instance thejudgment of His Honour Judge McMahon in Curran [already cited] (at 519).’45. In Cuddy v Mays [2003] IEHC 103, (Unreported, High Court, 28 November 2003), a casebrought by a hospital porter who suffered psychiatric injury when a number of his closerelatives and friends who had been killed or injured in a road traffic accident were broughtto the hospital where he was on duty, Kearns J refused an invitation to further clarify theapplication in Ireland of the legal principles identified in Alcock, Page and White, on thebasis that. to resolve the matter, it was simply necessary to rely on the authority of theSupreme Court decision in Kelly.46. In the course of argument, I was referred to the decision of the Supreme Court in Devlinv National Maternity Hospital [2008] 2 IR 222, upholding the decision of the High Court([2004] IEHC 437, (Unreported, O’Donovan J, 1 July 2004)) to grant a non-suit. Theplaintiffs in the case were the parents of a stillborn infant, upon whom the defendanthospital had performed a post-mortem without the parents’ consent, removing andretaining some of the infant’s organs. The infant’s mother had developed PTSD afterlearning of those events. At trial and on appeal, the case was decided on the basis thatthe plaintiffs could not meet the fourth requirement to establish liability under the test inKelly because there was no evidence that the mother’s shock was sustained by reason ofactual or apprehended physical injury to her or to another person. The plaintiffs askedthe Supreme Court to extend the law by disapplying that limb of the test. The SupremeCourt (per Denham J at 239-240) declined to do so on policy grounds. The situation inthis case is entirely different.47. It only remains to note, as summarised by the authors of Charlesworth & Percy onNegligence (13th ed, 2014) (fn. 381, para. 2-137):‘The primary/secondary distinction has failed to take root in Australia (Tame vNSW: Annets v Australian Stations Pty Ltd (2003) 211 CLR 317, HCA) and NewZealand (van Soest v Residual Health Management Unit [2000] 1 NZLR 179,NZCA), and has been rejected in Canada (Mustapha v Culligan of Canada Ltd(2007) 275 DLR 473, Ont CA) (appeal dismissed [2008] 2 SCR 114, SCC, withoutdiscussion of the point). Some members of the House of Lords have questionedwhether the distinction ought to be retained: see Rothwell v Chemical Insulating CoPage 11 ⇓[2008] 1 AC 381, at [52] per Lord Hope, [104] per Lord Mance; Corr v IBC VehiclesLtd [2008] 2 WLR 499, at [54] per Lord Neuberger.’48. Having considered these authorities, I conclude as follows. First, the test for liability fornegligently inflicted psychiatric injury is that set out by Hamilton CJ in Kelly. The test forthe existence of a duty of care, the fifth requirement of the test in Kelly, is thatarticulated by Keane CJ in Glencar Exploration plc. A rigid primary/secondary victimdistinction, entailing an inflexible adherence to the Alcock control mechanisms, has norole to play in the application of either. To paraphrase the words of McCarthy J in IrishShell Ltd v Elm Motors Ltd [1984] IR 200 (at 227), whilst the judgments in cases decidedin the English Courts at all levels will, on a great many occasions, provide convenient and,indeed, convincing statements of principle and attractive arguments in favour of suchprinciples, they do no more than that.ii. is Ms Sheehan a primary or secondary victim of the accident in this case?49. It is convenient at this point to consider in a little more detail the evidence on the natureand extent of Ms Sheehan’s involvement in the accident. To recap briefly, although MsSheehan did not see the accident happen ahead of her on the dark roadway, some debrisstruck her car, prompting her to brake to a halt, after which she got out to investigate.50. In evidence at trial, Ms Sheehan stated that when the debris struck her car, she alsoheard a loud bang, although she acknowledged that she had made no mention of that inthe statement that she gave to the guards on 6 February 2017. Ms Sheehan acceptedthat, in describing the incident to her general practitioner and, indeed, in both herpleadings and her evidence to the court, she had described ‘coming upon’ the scene ofthe accident.51. In his evidence to the court, John G. Sullivan, the independent expert engineer andassessor retained on Ms Sheehan’s behalf, stated that he had inspected Ms Sheehan’svehicle on 3 February 2019. While that was some considerable time after the accident,the vehicle had not been repaired. He observed that a small hole had been punched inthe nearside front bumper; a headlamp washer cover was missing from it; and a separateslight scratch was evident close to the wheel arch.52. Mr Sullivan had been furnished with a copy of the sketch of the accident scene from thegarda abstract report. Considering the measurements recorded on that sketch inconjunction with Ms Sheehan’s testimony, and assuming that Ms Sheehan’s vehicle hadbeen travelling at a speed of 80km/h and had begun to brake when struck by the debrisbefore coming to a halt beside the resting position of the damaged bus, then, by MrSullivan’s estimate, Ms Sheehan’s vehicle was approximately 100 metres from the pointof impact when the collision between the car and the bus occurred ahead of her. MrSullivan drew additional support for that conclusion from his opinion that, given thephysical forces involved in the crash and his experience of similar collisions, he would notexpect debris to have travelled much more than 100 metres from the point of impact.Page 12 ⇓53. Because Ms Sheehan did not actually see the car collide with the bus in the dark andbecause, in that context, Ms Sheehan herself described ‘coming upon’ the scene of thecollision when she got out of her own car, the defendants urge me to conclude that shewas not a ‘primary victim’ of the accident. For the reasons I have already given, I do notthink that anything turns on the point. But lest I am mistaken in that regard, I proposeto address it. Ms Sheehan’s car was directly struck by debris from the collision and shebrought her vehicle to a stop on a dark country road for no other reason than that sheperceived something disturbing or alarming had occurred in the immediate vicinity. As amotorist within the radius of flying debris from the collision, I am satisfied that she was inthe area of risk of foreseeable physical injury and, as a motorist whose vehicle was struckby flying debris, I am satisfied that she was a participant in the accident, albeit one onthe periphery of it. Applying the definition of ‘primary victim’ so construed, I wouldconclude that Ms Sheehan was a primary, rather than secondary, victim of the accident,were it necessary to consider and apply that distinction for the purpose of the law onliability for negligently inflicted psychiatric injury – although I do not accept that it is.iii. the position of Ms Sheehan as a rescuer54. Although the defendants have contested Ms Sheehan’s status as a participant in theaccident, they do accept that she was a rescuer. Ms Sheehan approached the crashed carto offer help. On seeing the body of its occupant, she telephoned the emergency servicesfor assistance. While waiting for those services to arrive, she searched the surroundingarea in case there were other occupants who had been thrown from the vehicle. She didthose things in darkness in the immediate aftermath of a serious accident on a nationalsecondary route, before any steps could be taken to properly alert other motorists to thathazard. Thus, it would be difficult to conclude that Ms Sheehan was not exposed todanger through her selfless and civic-spirited actions.55. In considering the modern law on the entitlement of rescuers to recover damages fornegligently inflicted injury, the starting point remains the celebrated dictum of Cardozo Jfor the Court of Appeals in New York in Wagner v International Railway Co 133 NE 437,232 NY 176 (at 180):‘Danger invites rescue. The cry of distress is the summons to relief. The law doesnot ignore these reactions of the mind in tracing conduct to its consequences. Itrecognises them as normal. It places their efforts within the range of the naturaland probable. The wrong that imperils life is a wrong to the imperilled victim; it isa wrong also to his rescuer.’56. Though not disapproving of it, Lord Hoffman in White described this as ‘a florid passage’that had led some commentators to conclude, wrongly, that rescuers form a special class,whose members are entitled to recover outside ordinary negligence principles, whereas itplainly does no more than confirm their entitlement to successfully rely on thoseprinciples in appropriate cases (at 508). While, as Posner has pointed out, Cardozo’saphoristic style has its detractors, (Posner, Cardozo – A Study in Reputation (1990,Chicago) (at pp. 10-12)), I think it is fair to say that they have always been outnumberedby its admirers (see, for example, O’Dell, Danger Invites Rescue – The Tort of NegligencePage 13 ⇓and the Rescue Principle, (1992) 14 DULJ 65). But more importantly, for presentpurposes at least, the principle Cardozo J identified, in whatever language it is couched,has never since been seriously doubted in this jurisdiction. So, for example, in theSupreme Court in Philips v Durgan [1991] 1 IR 89 (at 96), Griffin J cited with approvalthe following passage from the judgment of Lord Denning MR in Videan v BritishTransport Commission [1963] 2 QB 650 (at 669):‘… if a person by his fault creates a situation of peril, he must answer for it to anyperson who attempts to rescue the person who is in danger. He owes a duty tosuch a person above all others. The rescuer may act instinctively out of humanityor deliberately out of courage. But whichever it is, so long as it is not wantoninterference, if the rescuer is killed or injured in the attempt, he can recoverdamages from the one whose fault has been the cause of it.’57. In Alcock (at 402), Lord Oliver expressed the view that those who suffer psychiatric injuryin rescue cases fall into the primary victim category, as he defined it there. However, inWhite (at 499), Lord Steyn stated that ‘in order to contain the concept of rescuer inreasonable bounds for the purposes of the recovery of compensation for pure psychiatricharm the plaintiff must at least satisfy the threshold requirement that he objectivelyexposed himself to danger or reasonably believed that he was doing so.’ Lord Hoffmanexpressed the view (at 509-510) that a rescuer can only recover for psychiatric injury ifthat person comes within the range of foreseeable physical injury in giving assistance ator after an accident or disaster. Hence, I understand that the defendants rely on theseauthorities to argue that Ms Sheehan cannot satisfy the threshold requirement to succeedin her claim as a rescuer.58. The unsuccessful plaintiffs in Alcock were related to, or in a relationship with, variousdeceased victims of the 1989 Hillsborough football stadium disaster and had eitherwitnessed the dreadful events from elsewhere in the stadium or followed the reports ofthose events on radio or television. Their psychiatric injury claims failed on the basis thatthey could not bring themselves within Lord Ackner’s three qualifying criteria forsecondary victims (the Alcock controlling mechanisms). The plaintiffs in White werepolice officers who had been involved in the rescue effort in the immediate aftermath ofthat disaster, although none of those officers had been, or had thought that he was, inpersonal danger.59. In assaying a test for liability for psychiatric injury to a rescuer, both Lord Steyn and LordHoffman acknowledged the authority of the decision in Chadwick v British Railways Board[1967] 1 WLR 912. Mr Chadwick lived close to the scene on the 1957 Lewisham raildisaster in London and, immediately upon hearing of it, went directly there, where heacted as a rescuer, bringing aid and comfort for many hours to persons trapped amongthe wrecked train carriages. In an action brought after his death, Waller J found that hisestate was entitled to recover for the psychoneurosis he developed as a result of thetraumatic scenes he witnessed. Although the judgment of Waller J laid no emphasis onthe point, Lord Steyn was careful to note the reference in it to the clear element ofPage 14 ⇓personal danger in what Mr Chadwick was doing (at 499). Lord Hoffman observed thatLord Griffiths, who had been counsel for Mr Chadwick’s estate, had stated in the Court ofAppeal in McLoughlin v O’Brian [1981] 1 QB 599 (at 622) that Mr Chadwick might havebeen injured by a wrecked carriage collapsing on him as he worked among the injuredand that a duty of care was owed to him as a rescuer in those circumstances (at 509).60. Lord Steyn reasoned that, without the limitation that he had identified, ‘one would havethe unedifying spectacle that, while bereaved relatives are not allowed to recover as inthe Alcock case, ghoulishly curious spectators, who assisted in some peripheral way in theaftermath of a disaster might recover’. I am not persuaded by that argument for tworeasons. First, I do not see how a ghoulishly curious spectator, who assisted only in someperipheral way with a rescue, might properly be characterised as a rescuer, rather than asa spectator or bystander. Second, I do apprehend an obvious injustice if that limitation isapplied to a rescuer who provides significant, perhaps vital, assistance to a disaster oraccident victim without being, or reasonably believing himself or herself to be, inimmediate physical danger, but who nonetheless suffers psychiatric injury, such as PTSD,as a result of that experience.61. In Curran, already cited, Judge McMahon had this to say about the arguments advancedby Lord Hoffman in support of the principle that that exposure to physical danger or therescuer’s reasonable belief of such exposure should be a condition precedent to therecovery by that rescuer of damages for negligently inflicted psychiatric injury (at 360-1):‘Lord Hoffman in White (with whom Lord Steyn agreed) in refusing to compensatethe policemen who sued their employers in that case gave two reasons for hisrefusal. First, he said there would be a definitional problem if one was to recognisethem as rescuers: who else would fit into the definition of rescuer? This is hardly acompelling reason for refusing recovery, and Lord Hoffman himself acknowledgedthis as a ‘less important reason’ [at 510]. The law is continuously concerned withdefinitional problems and it can hardly be advanced as a reason for not doingjustice. The second and more compelling reason he advanced for not treatingpolicemen as rescuers and allowing them to recover, was that to do so would beunfair and would offend against the ‘notions of distributive justice’. ‘[The ordinaryperson] would think it wrong that policemen, even as part of a general class ofpersons who rendered assistance, should have the right to compensation’ forpsychiatric injury out of public funds while the bereaved relatives are sent awaywith nothing’ [at 510]. This of course raised fundamental questions as to thepurpose of the tort system in general, but in the present context it should be notedthat such a distinction is not deemed offensive or objectionable per se, in ourjurisdiction, where the Garda Compensation Scheme accepts that gardaí injured inthe course of duty will get full compensation, whereas the ordinary citizen gets nogeneral damages for pain and suffering for criminally inflicted injuries. Perhaps theIrish courts would see nothing wrong with allowing such policemen as wereinvolved in White recovery either as employees or rescuers and the policy reasonPage 15 ⇓given by Lord Hoffman for refusing compensation would not appear to have thesame force in Ireland in any event.’62. I share Judge McMahon’s misgivings about the validity of Lord Hoffman’s reasoning, bothin general and more specifically in an Irish context. I am not persuaded by LordHoffman’s invocation of Aristotle’s Nichomachean Ethics as justification for the resultarrived at in White. As explained in Freeman, Lloyd’s Introduction to Jurisprudence (9thed, 2014) (at para. 6-008):‘It is in discussions about the rationale of tort law that we see corrective justicemost clearly. Theories of distributive justice do not address the goals of tort lawadequately. Courts do not use the law of tort to correct distributive imbalances,though they may sometimes appeal to considerations of distributive justice tofortify conclusions reached by other routes. Even if they wanted to do so, theywould find distributive considerations inappropriate where the interests protectedwere persons’ lives or bodies.’63. If tort law were intended as an instrument of distributive justice, however imperfect, itwould not permit the existence of a control device such as the duty of care. Moreover, itsapplication as an instrument to that end would more obviously require the modification orabolition of the Alcock control mechanisms than the adoption in White of a furtherseparate control mechanism in cases of psychiatric injury caused to rescuers. It may bethat Judge McMahon had considerations of this sort in mind in observing that LordHoffman’s analysis raises fundamental questions about the purpose of the tort system ingeneral.64. Once again, I leave the last word on this point to the authors of Charlesworth & Percy onNegligence, already cited (at para. 2-165):‘A “danger” requirement seems appropriate if a rescuer is seeking to recover forpsychiatric injury suffered as a result of fear for his or her own safety. But if theinjury is caused by fear for and perception of physical suffering by others it doesindeed seem arbitrary, its sole purpose being to limit the ambit of liability. Apreferable approach might have been to move away from a rigid need to classify allclaimants as “primary” or “secondary”, but to identify deserving categories forrecovery independently of that division. Claims by rescuers, as one such category,could be considered on their particular merits. This would be consistent with thekind of approach favoured by the Law Commission [Liability for Psychiatric Illness,Report No. 249, 1998].’65. Thus, were it necessary to do so, I would reject the argument that, for Ms Sheehan tosucceed in her claim as a rescuer, there is a threshold requirement that she objectivelyexposed herself to danger or reasonably believed that she was doing so, or – differentlyput – that it is necessary for her to establish that she came within the range offoreseeable physical injury in giving assistance at the scene of the accident. But it is notnecessary for me to decide the point in the circumstances of the present case because, asPage 16 ⇓I have already indicated, I am satisfied that Ms Sheehan did expose herself to danger inproviding assistance at the scene of the crash on the dark roadway and that she camewithin the range of foreseeable physical injury in doing so. As Douglas Brown J acceptedin Cullin v London Fire & Civil Defence Authority (1999) PIQR 314, in most instances thedanger to a rescuer will not be the same as the one that caused the accident or disasterthat precipitated the rescue.The second argument66. The defendants’ second argument is that Ms Sheehan’s claim must fail because, as amatter of policy, there is no liability in negligence where the primary victim was thenegligent defendant and the shock to the plaintiff arose from witnessing the defendant’sself-inflicted injury.67. That was the conclusion reached by Cazalet J in the High Court of England and Wales inGreatorex v Greatorex [2000] 1 WLR 1970. The facts of that case were as follows. Afteran evening spent drinking, the defendant and a friend set off in the friend’s car with thedefendant driving. While overtaking on a blind bend, the defendant crossed on to thewrong side of the road and the car collided with an oncoming vehicle. The defendant wasbadly injured and trapped in the car. The plaintiff, who was the defendant’s father, wascalled to the scene as a fire officer, where he attended to his son. He later developedlong-term, severe PTSD as a result of those events. The defendant, his son, wassubsequently convicted of various road traffic offences, including driving without due careand attention, and failing to provide a specimen.68. Cazalet J accepted the argument that, not to exclude liability for psychiatric injury causedto a plaintiff who witnesses a defendant’s self-inflicted physical injury, is to impose, ineffect, a duty upon individuals to look after themselves, thereby placing an undesirablyrestrictive burden on the right to self-determination.69. I have come to the conclusion that the decision in Greatorex, however persuasive it maybe in its own terms, is of no assistance in this case for four reasons: first, because it isbased on principles that our law does not recognise; second, because, it relies insignificant part on authority that – to put it no further – has since been doubted; third,because it relies on a policy consideration that cannot apply on the facts of this case; andfourth, because – if accepted – the principle it represents would be capable of workingunfairness and injustice incompatible with the fundamental norms of our legal system.70. In the first part of his judgment in Greatorex, Cazalet J summarised the principles onliability for psychiatric injury to rescuers that were developed by the House of Lords inAlcock, Page and Frost/White, before concluding that, since there was no danger to theplaintiff in attending at the scene, his claim based on his position as a rescuer must fail.As I have already explained, I do not accept that, as a matter of law, those principlesapply in Ireland. Even if they did, the position in this case would be different because MsSheehan did expose herself to danger in assisting at the scene of the crash or, differentlyput, did come within the range of foreseeable physical injury in doing so.Page 17 ⇓71. In addressing the issue of the extent of the duty owed to others by the victim of a self-inflicted injury, Cazalet J placed significant reliance on an obiter dictum of Deane J in theHigh Court of Australia in Jaensch v Coffey (1984) 155 CLR 549 (at 609), to whichapproving reference had been made by both Lord Ackner and Lord Oliver in Alcock, andwhich appeared to be based, in turn, on an old dictum of Lord Robertson in the Scottishcase of Bourhill v Young’s Executor 1941 S.C. 395 (at 399). Cazalet J also noted that therelevant statement had been followed by Vasta J in Queensland and Zeeman J inTasmania, in Harrison v State Government Insurance Office (1985) Aust. Torts Reports80-723 and Klug v Motor Accident Insurance Board (1991) Aust. Torts Reports 81-134,respectively.72. However, there is a compelling argument that Lord Robertson’s dictum was taken out ofcontext; see Butler, ‘Psychiatric Injury Resulting from a Tortfeasor’s Death, Injury orPeril: Debunking an Unfortunate Dictum’ (1996) 26 Queensland Law Society Journal 557.Moreover, in FAI General Insurance Co. Ltd v Lucre [2000] NSCWA 346 (November 29,2000), the New South Wales Court of Appeal refused to accept that the common law wasas Deane J had suggested, relying on the decision of the South Australian Full Court inShipard v Motor Accidents Commission (1997) 70 S.A.S.R. 240, certain reservationsexpressed by Zeeman J in Klug, and the further doubts of Green CJ in Churchill v MotorAccidents Insurance Board (unrep., Supreme Court of Tasmania, December 2, 1993),before rejecting the argument that the duty of care is negated simply because theprimary victim is the defendant or a deceased person being represented by thedefendant.73. These developments can be found summarised in Handford, ‘Psychiatric damage wherethe defendant is the immediate victim’ (2001) 117 LQR 397. Although it is unnecessarythat I should express any concluded view on the question for the purpose of the presentjudgment, it seems fair to say that there is, at the very least, significant doubt about theextent to which the decision in Greatorex is solidly grounded in the common law.74. In the absence of binding authority on the duty of care owed to others by a victim of self-inflicted injury, Cazalet J turned to policy considerations (at 1983). Given that theplaintiff and defendant in Greatorex were father and son and that, under the Alcockcontrol mechanisms applicable to secondary victims generally, it was necessary for allsuch plaintiffs to establish, amongst other things, a close tie of love and affection with theperson injured, Cazalet J concluded that ‘[t]o allow a cause of action in this type ofsituation is to open up the possibility of a particularly undesirable type of litigation withinthe family, involving questions of relevant fault between its members’ (at 1985). I havealready concluded that the primary/secondary victim distinction and the Alcock controlmechanisms have no role to play in the application of the relevant tests under Kelly andGlencar. Thus, the relevant policy consideration does not arise here as a matter of law.Nor does it arise here as a matter of fact, since Ms Sheehan and the deceased driver werestrangers. And even if it did arise, litigation within the family is not uncommon, muchless considered contrary to public policy, in this jurisdiction where a plaintiff has sufferedPage 18 ⇓physical injury in consequence of the negligence of another family member who isinsured.75. In its report on Liability for Psychiatric Illness (Law Com. No. 249 (1998)), the LawCommission for England and Wales considered the issue of recovery where the defendantis the immediate victim, noting the self-determination argument later accepted by CazaletJ, but balancing it with the conflicting view that persons who deliberately or negligentlyplace themselves in danger should foresee the possibility of the consequences of theiractions for others and take responsibility for them, which is the position where a personnegligently or deliberately injures or endangers himself, causing reasonably foreseeablephysical injury to another (at para. 5.35).76. The England and Wales Law Commission recommended that, to the extent that the dictaof Deane J in Jaensch and of Lord Robertson in Bourhill represented good law in Englandand Wales, as Lord Oliver in Alcock suggested they did, then any such bar to recovery bya plaintiff should be statutorily removed, subject to a discretion vested in the courts notto impose a duty of care if satisfied (most obviously in cases of injury or death caused byvoluntary participation in dangerous sports or the deliberate infliction of self-harm) that itwould not be just or reasonable to do so because the defendant had chosen to cause hisown death, injury or imperilment. This was seen to represent the appropriate balancebetween the right to recover damages where there has been a breach of the duty of careand the individual’s right to self-determination. It seems to me that, even if it wereotherwise appropriate to apply an exclusion of liability of the type identified in Greatorex(and I have already concluded that it is not), then the constitutional strictures underwhich our courts necessarily and properly operate would only permit that to occur as theresult of the relevant rights-balancing exercise, rather than as the result of the applicationof an inflexible, one-sided rule.77. Thus, I reject the argument that the duty of care to Ms Sheehan in this case is negatedsimply because the primary victim, whose self-inflected injuries caused the shock that ledto Ms Sheehan’s psychiatric injury, is a deceased person represented by one of thedefendants.Conclusion78. I find that the deceased driver in this case, represented by FBD, did owe Ms Sheehan aduty of care not to cause her a reasonably foreseeable injury in the form of psychiatricillness. I can identify no consideration of public policy that dictates otherwise. Further, Iconclude that it is just and reasonable that the law should impose that duty on FBD forthe benefit of Ms Sheehan. There is no dispute that Ms Sheehan’s satisfies each of theother elements of the test to establish the defendants’ liability to her in negligence. Thus,it follows that Ms Sheehan is entitled to recover damages from FBD to compensate her forthe psychiatric injury she has sustained79. I must assess general damages in an amount that provides reasonable compensation forthe pain and suffering that Ms Sheehan has endured and will likely endure in the future;Page 19 ⇓Nolan v Wirenski [2016] 1 I.R. 461 (at 470). Further, as Irvine J explained in that case(at 471):‘Principle and authority require that awards of damages should be (i) fair to theplaintiff and the defendant; (ii) objectively reasonable in light of the common goodand social conditions in the State; and (iii) proportionate within the scheme ofawards for personal injuries generally. This usually means locating the seriousnessof the case at an appropriate point somewhere on a scale which includes everythingfrom the most minor to the most serious injuries.’80. Because of her experience on 28 January 2017, Ms Sheehan developed a moderatelysevere post-traumatic stress disorder (‘PTSD’), consequent upon an acute stress reaction.She was out of work for an initial period of five weeks and, intermittently, for shortperiods thereafter, before leaving her job as a hairdresser in February 2019 on the basisthat she felt unable to continue. Her condition has placed great strain on her familyrelationships, including her intimate relationship with her husband. She continues toundergo therapy and counselling, and to take a range of medications. When assessed inSeptember 2019, she had still not yet recovered and the prognosis remained guarded.Her own consultant psychiatrist is hopeful that, in time, she will make a full recovery,subject to a twenty-five percent chance of further anxiety, depression or stress-relatedconditions in the future.81. I assess Ms Sheehan’s general damages in the sum of €65,000 to date and €20,000 intothe future, making a total of €85,000. Special damages are agreed in the sum of €2,238.The total award is, therefore, €87,238.
Result: Judgment for the plaintiff in the sum of €87,238.
D.M. v The Minister for Health and Children
[2018] IEHC 578
JUDGMENT of Mr. Justice Bernard J. Barton delivered on the 9th day of August, 2018.
1. This case comes before the Court by way of an appeal from a decision of the Tribunal made the 4th February, 2015, whereby the Appellant’s application for compensation brought pursuant to s. 4(1) (e) and s. 5 (3), (3A) (a) and (b) of the Hepatitis C Compensation Tribunal Acts, 1997-2006, (the Acts) was dismissed.
Background
2. The Appellant was born on 25th October, 1973. Her parents were married in 1968. She was the second of their four children. Her father was born on 30th April, 1948, and suffered from a severe form of Haemophilia A. He died on the 19th November, 1989, from the complications of HIV infection contracted from blood products administered within the State. As a consequence of his death the Appellant’s mother made the following applications for compensation to the Tribunal:
(i) A Fatal Injuries claim on her own behalf and on behalf of the other statutory dependants of the Deceased;
(ii) A claim for Loss of Consortium;
(iii) A claim for Loss of Society; and,
(iv) A claim for Post-Traumatic Stress Disorder.
The Tribunal made awards in respect of these claims on the 23rd of November, 2009.
3. With regard to the claim in respect of Post-Traumatic Stress Disorder, (PTSD) it is not without some significance to the issue which arises on this appeal that the deceased’s death and the circumstances attendant upon it were found by the Tribunal to have resulted in shock and that this was the cause of her illness. In making the award the Tribunal noted that after he became ill, particularly during the last year of his life, the deceased suffered from a constellation of serious and nasty illnesses the symptoms of which were distressing not only for him but also for his wife and family. A transcript of the proceedings and the awards made in respect of these applications has been considered by the Court. The following extract from the transcript of the award in respect of the claim for Post-Traumatic Stress Disorder is germane to this appeal. Having described the deceased’s occupation, in which he was highly skilled, the Tribunal went on to deal with the effects which the infection had on every aspect of his life, vocationally, “… he had to give up work all together due to his ill health in early 1986. He had a gradual further deterioration during all of this and he was nursed with almost incredible devotion and love by his wife. He was hospitalised about three weeks before he died (in November 1989). At that time there was little appreciation by medical practitioners or in hospitals as to how to deal with such patients or how to deal with their families .
The result was that neither the Deceased nor the applicant or her family received any help, counselling or explanations. The manner in which the Deceased’s corpse was dealt with has left the Applicant with lasting shock and the entire has contributed to her Post-Traumatic Stress Disorder in no small way . [emphasis added]
The Deceased died at 40. His life expectancy then was about 38 years. He had a very great number of serious, often very painful illnesses and a very hard death. He was completely shattered, obviously, by the knowledge that he had HIV .
He and the Applicant went to considerable lengths to keep his condition secret. This is one of the worse cases which we have dealt with. It is possible, if not probable, that the extremes to which they went and the stress to which the applicant was subjected to accordingly, both mentally and physically, in tending her husband was contributed to by deserve (sic) or secrecy .” The last phrase is clerically incorrect and it seems to me most likely should have read ‘by the desire for secrecy’. [emphasis added].
4. The Deceased and his family lived in a small house. Privacy was difficult to achieve. Conversations and noises made elsewhere in the home were easily overheard. The description by the Appellant’s mother to the Tribunal of what it was like to live with and care for the Deceased, particularly in the last eighteen months of his life, can best be described as harrowing. The progressive inability to maintain balance, the development of a propensity to fall, the excessive sweating, the incontinence, the coughing and the vomiting which attended his approaching death must have caused the deceased and his family great anguish and distress. Despite his best efforts to face the end with fortitude, inner most emotions erupted in uncontrolled bouts of desperate crying. Although his wife tried to maintain a veneer of normality and reassure her children that their father would recover, the confined circumstances in which the family lived made it almost impossible to hide from the children the seriousness of their father’s illness: their senses of sight and sound saw to that.
5. The evidence before the Tribunal was that at the time of his death the Deceased was only the seventh known sufferer of AIDS to die in Ireland and was the first to die of that illness in Cork. The Deceased was not laid out. His wife and family did not see him again. He was zipped into a body bag and put into a sealed coffin. Those circumstances and his death at such a young age led to questioning comment in the parlour by mourners before the funeral which were overheard by the Applicant. Her parents were unaware that she knew the truth about her father’s illness and the likely consequences of that event for all concerned.
6. The stigma which attached at the time to death in such circumstances was not just social, it was also medical. The policy of patient isolation, the face masks, the hand washing and the way in which the corpse was dealt with exampled that. The Appellant’s mother was determined to make sure the truth of what caused her husband’s death would, so far as humanly possible, remain hidden from her children, wider family, friends and neighbours. She created an elaborate fiction which involved telling everyone, including her children, that the cause of death was cancer.
7. Despite her knowledge of the truth, which she hid from her mother, the Appellant went along with what was perceived to be a socially acceptable explanation for her father’s untimely death. In my view it is also of some significance to the issue under consideration that she continued to maintain what she knew to be a fiction at a time many years later when she was being treated for depression while a hospital inpatient.
8. The Appellant’s mother either did not realise that her daughter knew the truth about her father’s illness or, if she did, chose to believe otherwise. The reality was altogether different. The Appellant had not only overheard conversations from which she had ascertained the seriousness of her father’s illness but was also independently aware that as a result he was likely to face an early death. She knew the explanations given by her mother for her father’s constant coughing and the vomiting which developed and worsened as his life ebbed away was an attempt to shield her from the truth. Sadly, as it transpired, what mother and daughter each knew to be true they kept from each other.
9. Despite being only in her early to mid-teens, the Appellant started to smoke and to drink alcohol to help her cope with a progressively deteriorating situation. After her father’s death, she would go on to develop a seriously abusive relationship with alcohol, in particular Vodka. Not only had she to deal with the truth about her father’s death, she also had to deal with the collapse in the health of her mother. Her apparent capacity to partially take on the role of parent by looking after her younger brothers, the ability to complete her education to a reasonable standard, her employment with a well known international corporation in a role she enjoyed and the absence of any contemporaneous medical record of symptomatic psychological complaints over a decade during which she attended her GP on approximately 50 occasions were prominent features in the controversy between the physicians on the issue which falls for determination.
10. The Appellant developed a relationship with the father of her child which ended up in a hopelessly unsuitable marriage. Her husband became commercially involved with well-known and dangerous criminals, an association which ultimately resulted in the family home being raided and searched by officers from the Criminal Assets Bureau (CAB) who questioned the Appellant in the process. She subsequently received threats to her safety and the safety of her child. Her health deteriorated and she became seriously depressed, an illness for which she was admitted to hospital in 2006 and from which she continues to suffer notwithstanding the medical treatment afforded.
The Issue
11. Section 5(3A) (a) provides: –
“(3A)(a) Where a dependant referred to in paragraph (e) or (j) of section 4(1) is the child, spouse, father or mother of the person who died (‘the deceased’) as a result of having contracted HIV or Hepatitis C, or where HIV or Hepatitis C was a significant contributory factor to the cause of death, the Tribunal may make an award to that dependant in respect of post-traumatic stress disorder or nervous shock if he or she satisfies the Tribunal that he or she has suffered or is suffering from that condition as a result of the death.[emphasis added]
(b) In determining whether to make an award under this subsection, the Tribunal shall have regard to any decisions of the High Court or the Supreme Court enunciating principles of law relating to the award of damages for post-traumatic stress disorder or nervous shock, as the case may be.”
Findings of the Tribunal
12. On much the same medical evidence which was lead on the appeal, the Tribunal found that as a result of her father’s death the Appellant suffers from a depressive disorder with a co-morbid diagnosis of adjustment disorder and that “… the factors surrounding his illness and death are the most significant factors in causing this depression. We also believe that the effects of her very unhappy and unfortunate marriage have contributed to exacerbating this illness “, a significant finding in terms of causation. However, the Tribunal was not satisfied that the Appellant had met the requirement to establish on the balance of probabilities that her illness was shock induced; accordingly, the claim was dismissed.
13. It was agreed that the controversy could be netted down to the following question: was the Appellant’s psychiatric illness shock induced by the circumstances of her father’s death. In passing I should say that the Tribunal made awards to the Appellant in respect of her Loss of Society and Loss of Opportunity claims. In formulating its decision to dismiss her claim for PTSD, the Tribunal had particular regard to a number of case authorities. See S.C. v. The Minister for Health and Children and the Hepatitis C and HIV Compensation Tribunal [2012] IEHC 49; Alcock-v-Chief Constable of S. Yorkshire [1992] 1 AC 301 and Delvin v. The National Maternity Hospital [2008] 2 IR 222.
14. The rationale for the decision of the Tribunal appears in the following extract from the transcript: –
“In this case it is undoubted that the Applicant’s experience of [her father’s] illness and death was distressing and traumatic but there does not appear to be one particularly horrifying or traumatic event or series of events which she witnessed and experienced herself which caused her illness.
To adopt the phraseology used in the Alcock case, quoted above we do not believe that the evidence establishes that the Applicant’s illness was caused by the sudden-appreciation by sight or sound of a horrific event which violently agitated her mind.”
15. Within three weeks of their decision the Tribunal also dismissed the application for compensation of another teenager in respect of PTSD arising from the death of his mother in not dissimilar circumstances. His appeal against that decision was allowed. See D.J. v. Minister for Health [2017] IEHC 114. Having regard to the provisions of s. 5 (3), (3A) (a) and (b) in that case the Court had to consider the meaning of “nervous shock”. I see no reason to depart from the judgement delivered where the law on the meaning of “nervous shock” is expounded and where the issue arising was essentially the same.
The Statutory Scheme
16. With particular regard to the nature of the claim being advanced in this case, it is abundantly clear that when the Tribunal, and on appeal the Court, makes a determination on an application for compensation it does so within the statutory framework established by the Acts, the object of which is to provide a scheme whereby compensation maybe sought and awarded to the victims of Hepatitis C and HIV infection subject to the satisfaction of certain criteria. Infection must have occurred as a matter of probability through the administration of blood or blood products within the State; apart from those so infected compensation maybe awarded to a limited class of claimants indirectly affected, such as the immediate family and statutory dependants of the primary victim.
17. The following extract from the decision of the tribunal in D.J. v. Minister for Health , exemplifies the distressing circumstances which all too often attended those facing death as a consequence of having contracted Hepatitis C or HIV and witnessed by close family, which were well documented and known to the Oireachtas at the time when the provisions of s. 5 (3A) (a), were being enacted,
“…victims were suffering horrific deaths where there were incidents of spontaneous and uncontrolled bleeding being witnessed by dependents. Relatives were witnessing body bags, masked and protected medical attendants in their homes and in hospital and many other examples of profoundly alarming and deeply shocking circumstances in the final moments of the loved one’s life which were outside what could be described as shock in the normal experience of death which is universal.”
And so it was in the case of the Applicant’s father.
18. It follows that the decisions of the Superior Courts enunciating principles of law in relation to the award of damages for PTSD or Nervous Shock to which regard must be had by the tribunal and, on appeal, by the Court, cannot be divorced or considered in isolation from the object for which the statutory framework was established. The context and circumstances in which claims for PTSD or Nervous Shock arise as a result of the death of a victim of Hepatitis C or HIV are altogether different from the circumstances which in general have pertained to the kind of events on foot of which the common law has evolved, most commonly the sudden and unexpected collapse of a building or other structure and serious road, rail and aviation accidents.
The meaning of ‘Nervous Shock’
19. “Nervous shock” is an archaic legal term which, as Denham J., observed in Devlin, has been used by lawyers and judges alike to connote a mental rather than physical injury. It comprises any medically recognised psychiatric illness which is shock induced; PTSD is but one example. The survival of such terminology at law long after it was abandoned in medical science most likely explains how it has found its way onto the statute book in the provisions of s. 5 of the Hepatitis C Compensation Tribunal (Amendment) Act 2002.
20. The importance of having due regard to the terms of the statutory scheme and the purpose or object for which it was established when the principals of law enunciated by the Superior Courts are being applied to an application such as the present is underscored in the observations made by Denham J. in Devlin when commenting on the evolution of the common law concerning the occurrence of specific events such as railway or car accidents which gave rise to the so called ‘aftermath cases’. Thus, in Alcock v. Chief Constable , Lord Ackner said at p. 41: –
“Shock, in the context of this cause of action, involves a sudden appreciation by sight or sound of a horrifying event, which violently agitates the mind. It has yet to include psychiatric illness caused by the accumulation over a period of time or gradual assaults on the nervous system.”
Referring to this statement in Devlin , Denham J. observed at p. 239:-
“This statement reflects the common law in Ireland where the ‘aftermath cases’ either relate to the event, or the situation in its immediate aftermath.” [emphasis added]
21. The horrific circumstances so often associated with the impending death as well as at and in its immediate aftermath from the complications of Hepatitis C or HIV infection do not easily equate with the so called ‘aftermath cases’ involving as they do the sudden apprehension by sight or sound of a horrifying and unexpected event or its immediate aftermath such by way of example as occurs with a plane, car or rail crash or the collapse of a building or other structure.
22. The qualifying event for recovery under s. 5 (3A) (a), is limited to the occurrence of death by virtue of having contracted Hepatitis C or HIV or where either or both of those infections were a significant contributory factor in the cause of the death. It is the cause and surrounding circumstances as well as the event of death itself which takes its occurrence into a realm which is out of the ordinary of experience of the end of life.
23. In just the same way as the circumstances of an unexpected accident are relevant at common law to causation and diagnosis of a recognised psychiatric illness so too are the circumstances attendant on a death from Hepatitis C or HIV if there is to be recovery under the provisions of s. 5 (3A) (a). Given the state of knowledge at the time when the provision was enacted, which is a matter of public record, and having due regard to the object for which the statutory scheme was established, had been the intention of the Oireachtas to limit or confine recovery of compensation for PTSD or Nervous Shock to the circumstances which pertain to the “aftermath cases”, it would have been necessary to expressly so provide. If the provision is to be so construed then absent a sudden and unexpected event such as an unexpected catastrophe or serious accident, in my judgement the provision would be rendered almost nugatory thus defeating the very purpose for which the provision was expressly enacted.
24. As we have seen the circumstances of the deaths which had been suffered and were likely to be suffered by the victims of Hepatitis C and HIV at the time when s. 5 (3A) (a) was enacted were far removed from those usually encountered in a death which occurs naturally at the end of life. In providing a right to recover compensation for Nervous Shock or PTSD arising from the circumstances surrounding and the occurrence of death as a consequence of Hepatitis C or HIV, the Oireachtas recognised that psychiatric illness could be caused to the spouse, child or parents of the deceased.
25. In passing I pause to observe that the policy considerations and division of potential claimants into primary and secondary victims exemplified by Lord Wilberforce in McLoughlin v O’Brien [1983] 1 AC 410 and adopted in Alcock do not necessarily reflect the law in this jurisdiction. See Curran v. Cadbury (Ireland) Ltd [2000] 2 ILRM 343 and McMahon and Binchy 4th Ed. at 17.72 et seq.
26. In the event such considerations do not concern the Court on this appeal; the Oireachtas has confined the class of claimants who may recover for PTSD or Nervous Shock to the spouse, child and parents of the deceased rather than to the dependants within the meaning of s. 47(1) of the Civil Liability Act 1961, as inserted by s. 1 of the Civil Liability (Amendment) Act 1996.
Conclusion
27. For these reasons the adoption and application by the Tribunal of Lord Ackner’s statement of the law in Alcock , made as it was in the context of the “aftermath cases”, to found the basis for refusing the Appellant’s application was misplaced and inappropriate to an application for compensation in respect of PTSD or Nervous Shock under the statutory scheme. The death of a person from the complications of Hepatitis C or HIV is invariably not the result of a sudden and unexpected event such as a rail, plane or car crash or building collapse, quite the contrary, such deaths are all too often the end result of a long illness caused by the infection, deaths which are preceded and accompanied by immense suffering on the part of the victim which those closest, the spouse, children and parents are invariably required to witness directly or indirectly through the human senses.
Circumstances Surrounding the Death of the Applicant’s Father
28. Given the centrality of the event to the Appellant’s claim it is considered necessary to summarise the circumstances and her knowledge of them which attended her father’s death. The Appellant was twelve or thirteen perhaps at most when she first became aware he was seriously ill. She described a close family relationship and a very happy childhood. She was particularly attached to her father of whom she spoke lovingly and with great affection. They developed a close bond. She became aware of the seriousness of the illness as a result of overhearing her mother speaking with a doctor. In the course of the conversation she heard mention of AIDS. She knew that was bad news.
29. A follower of the rock band ‘Queen’, she aware that Freddy Mercury had ‘come out’ to say he was dying of aids and was also aware that the actor Rock Hudson had already died from the same illness. As stated earlier, she never informed her mother that she had overheard the conversation nor did she ever discuss with her the nature of his illness. Her father had to give up work and ultimately became so invalided that he spent most of his day upstairs in his bedroom. The Appellant literally watched him waste away. Short visits into his bedroom were allowed. At night time she could hear him crying on occasion. The crying upset her a lot but so did other symptoms which she observed. He developed a cough which became worse towards the end accompanied by episodes of vomiting after eating. Her mother was constantly up and down to the bedroom. She kept reassuring her children that their father would get well, that he just had a bad chest infection but that he would get over it.
30. The Appellant’s father went into hospital on a number of occasions with pneumonia, a condition which became particularly acute in the last weeks of life and was consistent with the collapse of the immune system from the ravages of the virus. The Appellant used to visit hospital on a Wednesday and at weekends. She was also allowed to bring her two younger brothers with her on a Saturday or Sunday. She was worried about the length of what turned out to be her father’s last hospitalisation. Her mother kept giving her assurances that her father would recover and would be home soon. She wanted to believe what she was being told but feared the worst. The day before her father died she received a call from her mother to bring the two younger brothers up to the hospital on the bus. She was then just a teenager.
31. She remembered seeing her father in hospital looking very frail and yellow. He had a mask on his face and could not really talk. Neither she nor the younger children were allowed to spend very much time with him. She recalled her mother telling her that she should say goodbye to her father and take the boys home because he was really tired. It was not unusual for the children to spend very little time visiting their father in hospital and then to be told to say goodbye. The Appellant knew he would die some day from his illness but certainly didn’t expect it to be that evening.
32. She went over to her father gave him a kiss and told him that she would see him the following day. She took the boys home on the bus. It was a Saturday. She expected to return the next day with her younger brothers. For some time prior to his death the Appellant had found it difficult to get to sleep at night. She was worrying about her father and what would happen to her and to the family. To help her cope she had started to drink alcohol and smoke cigarettes. She also prayed a lot that the worst would not happen.
33. She recounted how she learnt of her father’s death. At about three in the morning she remembered hearing footsteps downstairs. Her mother used to wear high heel shoes which made a noise on the floor when she walked. She generally spent the night in hospital so she thought it unusual to hear the noise made by her shoes on the floor downstairs at that hour. Her grandmother had opened front the door; she could hear crying. She feared the worst and started praying furiously, asking God not to let her father die.
34. She had prayed like that previously but this time her grandmother came into her bedroom and told her that father was dead. She was devastated. Following the funeral her mother’s initial response was to adopt an external veneer which could best be described as ‘a rally around’ approach to everything. The children were told their father had died of cancer; hard and sad though it was the message was clear, these things happen, keep the sunny side out, pick yourself up, be brave and get on with your life, advice her mother could not implement. She imploded physically and psychologically
35. The Appellant described how she never saw her father laid out. No one was allowed to see him. He was put in a bag ‘just like he was rubbish’. She overheard that his corpse had been dealt with this way from a conversation she had overheard between her mother and her grandmother. She also learned that the coffin had to be sealed because of her father’s illness. She described how strange it felt that he had quite literally disappeared. She also remembered mourners calling to pay their respects before the funeral and asking questions about the reason for death and why the coffin had been closed.
Consequences of the Death on the Appellant
36. Apart from feelings of devastation and loss which followed her father’s death, the Appellant’s started to experience nightmares, one of which was recurrent. In it she was down at the bottom of the steps of the Cathedral on her own. The passing mourners were laughing at her saying that she did not even know that her father’s funeral was on. She used to wake regularly from this nightmare crying and in a sweat; it’s a nightmare which has never left her.
37. The Appellant’s mother was determined to ensure that the truth about her husband’s illness would remain a closely guarded secret. The Appellant knew that her mother was lying to her when she said he had died of cancer but there was never any question of telling her mother that she knew the truth. The necessity to keep the truth a secret invaded every aspect of their lives. When her mother’s health collapsed the Appellant found herself in the role of performing the duties of a carer for her brothers. In order to deal with the emotional pain and psychological turmoil which she experienced following her father’s death she internalised and anaesthetised her feelings by drinking naggings of Vodka. Notwithstanding, her extraordinary resilience was such that she was able to portray the persona of a young woman who was coping with her loss.
38. If evidence was required to illustrate the grip which the psychological consequences of her father’s death had had on her it was the Appellant’s adherence to what she knew to be a fiction created by her mother about her father’s illness and reason for his death, a fiction in which she participated and with which she persisted even after her admission and treatment in hospital for depression in 2006. It was not until 2009, at the prompting of her solicitor, that she finally told the truth to her clinical psychologist, Joe Campion. As mentioned earlier, the Appellant continues to suffer the consequences of her psychiatric illness for which she requires ongoing treatment, indeed, at the hearing her treating psychiatrist, Dr. O’Ceallaigh considered that she would benefit from a further admission to hospital.
39. The Court is also cognisant of the extensive evidence concerning the Appellant’s relationship with the man who would subsequently become her husband, his business dealings with individuals who were involved in serious criminal activity, the raid on the family home by officers from CAB and the treats made to the safety of herself and her child by these criminals as consequence of which a serious depression developed ultimately manifesting itself in depression which required hospital treatment.
40. I had the opportunity to observe the Appellant’s demeanour as she gave her evidence. She answered questions in a forthright manner and I am quite satisfied that she was a truthful and reliable witness upon whom the Court may rely. I accept her evidence about the impact which her father’s death had on her psychologically, in particular her evidence as to the circumstances leading up to, at and immediately after his death, the way in which his corpse was dealt with, the inability to speak about the truth, the necessity to maintain a fiction, the loneliness and the devastating emptiness which followed.
41. I was also impressed by the frankness with which the Appellant answered the questions put to her on what I may say was a very skilful cross-examination by Senior Counsel for the Respondent, Ms Egan, concerning her disastrous relationship with the father of her child, an altogether unsuitable marriage, her pregnancy and the pressure she was put under to have an abortion as well as the effect which her husband’s relationships with serious criminals had had on her. At the end of it all she described the psychological effect of her father’s death as ‘a bomb going off’; it was as if her world had fallen apart but there was no one she could turn to for help, not even her mother.
42. Dr. Cryan, Consultant Psychiatrist, was at pains to emphasise that the Court had to see what had happened in a particular context, namely the social as well as the medical knowledge at the time concerning AIDS and the consequences of that illness, the knowledge which had been acquired by the Appellant, but about which she dared not speak, the circumstances leading up to and immediately after her father’s death which she witnessed or about which she became aware and most particularly of all, the fact that she was only a teenager at the time. These were all relevant factors which combined to sensitise her and create a sense of heightened vulnerability. In her opinion, these factors had an immense impact on the Appellant’s ability to deal with what for her was a cataclysmic event. While she knew her father was ill and that someday death would ensue as a consequence she prayed desperately that would not happen; when it did she developed an adjustment disorder.
43. Dr. O’Ceallaigh, expressed the opinion that as a result of her father’s death the Appellant developed a depressive disorder which had features common to an adjustment disorder. In this regard he emphasised that there was no significant disagreement between himself and Dr. Cryan. When he ultimately became aware of the truth concerning the death of the Appellant’s father and how this event had affected her he had had to revaluate his entire opinion as to the cause of her depression which he had initially attributed to the events and circumstances that had proximally preceded her admission to hospital in 2006.
44. Once he became aware of the truth of the circumstances surrounding her father’s death, the effect that had had on her and the way in which she had dealt with the issues that had been thrown up as a result, he had revaluated his entire diagnosis as to the cause of her illness. In his opinion the depressive disorder developed as a result of the death and had never fully resolved. It bubbled along under the surface until the events of 2005 and 2006, which led to her hospital admission. It must be said that Dr. O’Ceallaigh fairly accepted under cross-examination that these events were very relevant to the emergence of the depression at that time, events which he described as having ‘pushed her over the line’. This evidence was accepted by the Tribunal.
45. In resolving the issue with which the Court is concerned, it is particularly significant on my view of the evidence that before she became aware of her father’s illness the Appellant dealt appropriately with the death of her grandfather. The Tribunal observed in its decision the devastation which would be caused to a child by the loss of a parent at a young age and similarly noted the intense emotions, including feelings of what may fairly be described as shock and/or anger which would invariably be experienced by close family members where a young person dies. No doubt the Appellant also experienced a range of emotions including shock, upset, sadness and grief on the death of her grandfather, an event which might be described for present purposes as a death which invariably occurs at the end of a long life and thus within the range of normal human experiences.
46. The Tribunal concluded that the Appellant found the death of her father to be a traumatic and distressing experience and that this was a significant factor in the cause of her psychiatric illness but dismissed the claim on the grounds that the event or series of events which she had experienced in association with the death were not particularly horrifying or traumatic. That conclusion is difficult to reconcile with the Tribunal’s findings and conclusion on the application by her mother for compensation in respect of PTSD under the same provision and on foot of which she was made an award in the same circumstances, circumstances which were found to be anything but normal; they were horrific.
47. With regard to the absence in the medical notes of her doctor of any complaints evidencing psychological sequelae following the death of her father I pause to observe that neither Dr. O’Ceallaigh nor Dr. Cryan thought that omission unusual. Between 1999 and her admission to hospital in 2006 the Appellant had made over 50 visits to her GP.. I accept the explanations offered by these witnesses and note that even with the treatment she received after admission in 2006, the appellant continued to hide the truth and to maintain the fiction that her father had died of cancer, a suppressive behaviour adopted from the outset and consistent with the absence of any recorded psychological complaint in the GP’s notes.
48. I accept the evidence of Dr. O’Ceallaigh, Dr. Cryan and Ms. Jo Campion and find that the death of the Appellant’s father and the circumstances leading up to, at and after that event caused her to suffer a recognised psychiatric illnesses in the form of depressive and adjustment disorders for which she is entitled to be compensated and that these illnesses did not fully resolve but emerged symptomatically as a result of the additional stressors arising from the events which resulted in her admission to hospital in 2006.
Ruling
49. It follows from the findings made, the conclusions reached and the reasons given that the Appellant suffered ‘Nervous Shock’ within the meaning of s.5 (3A) (a) of the Acts consequent upon her father’s untimely death from the complications of HIV infection contracted from the administration of contaminated blood products within the State.
50. Accordingly, the Court will allow the appeal and remit the matter back to the Tribunal for assessment and award.
Eithne Curran v Cadbury (Ireland) Ltd
Circuit Court
17 December 1999
[2000] 2 I.L.R.M. 343
(Judge McMahon)
Facts
The facts
The plaintiff, a married woman with three adult children, was employed by the defendant at their factory in Coolock, Co. Dublin. On 16 March 1996, when the incident the subject matter of these proceedings occurred, the plaintiff had been employed by the defendant for about 17 years. The plaintiff with one other operator worked near a moving belt which carried bars of chocolate to the plaintiff’s work station where they were packed by the plaintiff and her work mate. Apparently, the packaging process in which the plaintiff was engaged involved her working with one other person and on the day in question she was the more senior of the two.
The plaintiff in her indorsement of claim alleged that, on the day in question, the machine feeding out the bars of chocolate was stopped without notification to the plaintiff, as should have been done, and, when the plaintiff turned on the machine, she immediately became aware that there was a fitter inside the machine, repairing it, out of her sight. She alleges she got a great fright and thought she had killed or done serious injury to a fellow employee. As a result she claims that she has suffered a serious psychiatric illness due to the negligence, breach of duty and breach of statutory duty of the defendant.
A full defence was entered by the defendant. The principal witness for the defence, Mr Breen, gave the following version of events. He said that he and *346 another member of the management, Mr Carolan, on doing their rounds on the day in question, noticed that there was something wrong with the machine and they called the fitter to assess the problem. The housing around the machine was removed and a loose screw was identified. It was a minor problem which could be repaired in a couple of minutes. The machine was closed down and the fitter went to work on the repairs. All of this was out of sight of the plaintiff. Mr Breen said he warned the plaintiff’s work mate as to what was going on. The plaintiff alleged that she was not informed that the fitter was in the machine and when the machine stopped she went to the control panel and pressed the start button as was her normal practice. It was then, as the plaintiff put it vividly, that ‘all hell broke loose’.
From the facts of the case it is clear that the plaintiff in this case, unlike other nervous shock cases which have come before the Irish courts in recent years, was a participant in, and not a mere observer of the accident. She started the machine. She pressed the button. She heard the commotion and the screams since the fitter, although out of sight, was quite close to her. She unwittingly caused the injuries to the fitter. Thinking she had killed or seriously injured her fellow employee she quickly turned off the power and then ran some 45 yards around the machinery to see the result of her work. As she ran she was filled with apprehension and, probably, irrational guilt. Her evidence was that when she arrived at the scene where the fitter was she was blinded with panic. She could not see the fitter’s face. All she saw was a blur where his face was and she became aware of a person frantically trying to get out of his overalls: she had cause to fear the worst.
There is little doubt that the plaintiff got a great fright and shock and that this resulted in the psychiatric condition attested to by the medical experts at the trial. Dr Kenneth Sinanan, consultant psychiatrist, who first reported on the plaintiff on 17 June 1996, stated that Mrs Curran ‘suffered from a mild post traumatic stress disorder which is still ongoing’. Dr James Corbett, to whom the plaintiff had been referred by her GP, and who had seen her on sixteen occasions between the date of the accident and 2 June 1999 concluded on that date as follows: ‘I am of the opinion that this lady experienced a post traumatic stress disorder of moderate intensity as a result of the above accident’. Post traumatic stress disorder is a recognised psychiatric illness (see Mullally v. Bus Éireann [1992] ILRM 722).
These facts clearly show that the plaintiff was at the very centre of this frightening episode. She was in the eye of the storm. In the terminology that is gaining currency in other jurisdictions, she was ‘a primary victim’. She was not ‘a secondary victim’, that is a person who was not involved in the accident itself, but was removed from the direct action or came on the immediate aftermath of the accident. The plaintiff had a central role in this frightening drama.
*347
Primary and secondary victims
It is appropriate at this juncture to say a word about this terminology since some of the problems that beset this area are language based, as the continued use of the term ‘nervous shock’ itself clearly shows.
There has been a tendency in recent years, especially in English cases, to divide victims in these type of cases into two categories: primary victims and secondary victims (See Lord Oliver in Alcock v. Chief Constable of South Yorkshire Police [1992] 1 AC 310 and Lord Lloyd in Page v. Smith [1996] 1 AC 155). Such categorisation is not without difficulties and has been criticised (See Law Commission Report (England), Liability for Psychiatric Illness (1998) Law Com. No 249, at para. 5.50, which followed the Law Commission’s Consultation Paper No. 137 (1995), where the suggestion is that the distinction should be abandoned as it is unhelpful). For my own part, I am not convinced that the separation of victims into these two categories does anything to assist the development of legal principles that should guide the courts in this complex area of the law. Hamilton CJ (with whom Egan J agreed) did not refer to the distinction in Kelly v. Hennessy [1995] 3 IR 253; [1996] 1 ILRM 321 the leading Irish case on the matter, and while Denham J, in the same case, used the term ‘secondary victims’ to describe the aftermath relatives who were plaintiffs in that case, her primary focus was naturally on the plaintiff before her rather than on persons who were more directly involved in the accident. She did, however, give a clear definition as to what she meant by the terms when she said of the victim before her (at p.269):
The plaintiff was not a primary victim; that is to say she was not a participant in the accident. Her case is that she is a secondary victim; that is to say one who did not participate in the accident, but was injured as a consequence of the event.
It is clear from this that Mrs Curran, in the present case, was a ‘primary victim’ in Denham J’s definition. For those who favour this categorisation, the advantage of being classified as a ‘primary victim’ is that the policy restrictions that might be justified limiting the persons to whom a duty of care is owed, would apply only to ‘secondary victims’, as there are few ‘flood-gate fears’ in relation to primary victims. Naturally, once the distinction was made, plaintiff lawyers tried to ensure that their clients were classified as primary victims in order to get into a policy-free zone, whereas recently courts that wished to restrict recovery assigned victims, such as rescuers and employers, into the second division where policy limitations could exclude recovery. The debate, on this matter, has, in the main, only taken place in the literature and case law that has arisen since Kelly was decided in 1995, and accordingly, Irish courts have not had an opportunity to consider the matter in depth. (See Law Commission Re *348 port (England), No. 249, op. cit.; Handford, Psychiatric Injury in the Workplace [1999] Tort Law Review 126 and the extensive general literature cited therein).
It is important to bear this in mind in analysing and considering the legal principles that apply to the present case. Here, the problem of duty of care and reasonable foreseeability are more straightforward than in the case of secondary victims. It is perhaps not surprising that in the latter case, the courts in other jurisdictions, aware of the possibility of extending liability too far, should concern themselves with the concepts of proximity and closeness in considering the initial duty of care concept. Flood-gate fears, fears of fraud and evidentiary questions cause concern in these situations. In a case like the present, however, these concerns scarcely arise.
1. The basic principles
The Supreme Court, in Kelly v. Hennessy, supra , in addressing the problem of compensating aftermath victims for negligently inflicted ‘nervous shock’, approached the problem from basic principles. Hamilton CJ, with whom Egan J agreed, was happy to start his analysis with the neighbour concept in Donoghue v. Stevenson [1932] AC 562. He then listed five conditions which had to be complied with before recovery would be allowed. Denham J, likewise, started from the basic concepts of neighbourhood and proximity, and she considered the question whether liability should be determined on reasonable foreseeablity simpliciter (as suggested by Lord Bridge of Harwich in the English case of McLoughlin v. O’Brian [1983] 1 AC 410, an approach which she favoured in the earlier High Court decision of Mullally v. Bus Éireann [1992] ILRM 722) or whether the reasonable foreseeability test for nervous shock cases should be restricted by proximity factors i.e. on policy grounds (as suggested by Lord Wilberforce in McLoughlin v. O’Brian, supra ). In the end she concluded (at p. 274):
It is not necessary in this case to choose between either the general or more restricted approach in common law. I have used the cases to isolate factors which are relevant in law and applied these factors in the facts of this case.
Bearing the Supreme Court’s approach in mind, as indeed I must, it is appropriate therefore that I too should approach the present case from basic common law principles. Controversy and uncertainty still envelops this branch of law in England, and the most recent House of Lords pronouncements in White v. Chief Constable of South Yorkshire Police [1998] 3 WLR 1509, being the appeal from Frost v. Chief Constable of South Yorkshire Police [1997] 1 All ER 540, merely adds fuel to the debate. Nothing is settled as yet. Indeed, because the law in this area ‘is still evolving and has obviously not reached maturity’ (Tan Keng Feng, Liability for Psychiatric Illness. The English Law Commission *349 [1999] Torts Law Review 165 at p. 177) the English Law Commission, after extensive study and consultation, declined to recommend comprehensive legislative reform, as such reform would freeze ‘the law at a time before it is ready’ (The Law Commission, Liability for Psychiatric Illness, (1998) Law Com. No. 249. at para. 4.1). In these circumstances, it is prudent to be guided by the basic principles and to observe good navigational advice: small boats should sail close to the shore, especially when the sea is cross and uncertain.
The plaintiff was the defendant’s employee; she was at the scene and she unwittingly caused the crisis. In the words of Denham J in Mullally she was a participant in the accident.
Whether one applies the proximity test (of Wilberforce J in Anns v. Merton London Borough Council [1978] AC 728 and adopted in this country in Ward v. McMaster [1988] IR 337 and many cases since (see for recent example H.M.W. (nee F.) v. Ireland High Court (Costello J), 11 April 1997), or the close and direct criterion (of Lord Atkin in Donoghue v. Stevenson, supra ) the plaintiff clearly qualifies as being within the range of persons to whom a duty of care is owed. The questions that rightly exercise the courts in Mullally v. Bus Éireann, supra , and Kelly v. Hennessy, supra , need not concern us in the present set of circumstances. The control mechanisms which courts feel necessary to introduce in the case of by-standers and aftermath victims are not required here. Moreover, the plaintiff in addition to being a neighbour in the Atkinian sense, was also the defendant’s employee in this case, and this legal relationship also imposes some obligations (tortious and contractual) on the defendant as employer. The duty of the employer towards his employee is not confined to protecting the employee from physical injury only; it also extends to protecting the employee from non-physical injury such as psychiatric illness or the mental illness that might result from negligence or from harassment or bullying in the workplace. In Walker v. Northumberland County Council [1995] 1 All ER 737 the English courts imposed liability where the plaintiff foreseeably suffered a nervous breakdown because of unreasonably stressful working conditions imposed on him by his employer. There is no reason to suspect that our courts would not follow this line of authority if it came before the courts in this jurisdiction.
The question that concerns us here, therefore, relates not so much to the duty aspect of the problem, but more to the nature of the harm which the plaintiff suffered and whether this kind of harm, psychiatric illness, could be reasonably foreseen as a consequence that would follow from the defendant’s lack of care in the circumstances.
Before addressing these issues, however, an examination of the conduct of the defendant and its servants and agents is necessary.
When management, in the persons of Mr Breen and Mr Carolan, discovered the problem in the distribution line, Mr Breen called for the fitter. When *350 the fitter arrived he removed a side panel from the machine’s housing. When the mechanisms were covered in, the machine presented as a long counter of metal easing which was approximately four feet off the ground. On top of this was a see-through perspex window which was capable of being opened on a hinge. Mr Breen and the fitter were on one side of the counter and on the other side was the control panel which was accessible to, and near the work station of, the plaintiff and her fellow worker. When the line carrying the chocolate was working, the chocolate bars were fed out onto a line that emerged at a right angle from the counter, past the control panel, and made other right angles as it zig-zagged on its way past the plaintiff and her fellow-employee. It was clear to Mr Breen, that it would be very dangerous if the machine was started up again while the fitter was working on it. It was also clear to Mr Breen that all persons likely to approach the control panel in these circumstances should be warned of the fitter’s presence in the machine while he was carrying out the repairs. Mr Breen in evidence said he signalled through the perspex glass to the plaintiff’s workmate, that the machine would be shut down while the fitter was working on it on the blind side from the plaintiff. He also said that he communicated that the repairs would take approximately three minutes and that the machine should not be restarted while work was in progress. This message was, according to Mr Breen, communicated by a series of hand signals from behind the perspex panel, in a noisy environment and then only, according to Mr Breen, to the plaintiff’s fellow-employee. (This version was not confirmed or contradicted by any other witness as the fellow employee who was alleged to have received this message did not give evidence at the trial). The plaintiff, Mrs Curran, however, gave firm evidence that whatever might have passed between Mr Breen of management, and her team operative, the message was never passed on to her by anyone, and I believed the plaintiff in this matter. If the warning had been passed on to the plaintiff why would she then have activated the machine if she knew the fitter was still inside the counter? One other point should be mentioned at this juncture: Mr Breen was the only person who could see both the fitter and the control panel at the same time while the repairs operation was in progress, and while Mr Breen was on guard, he received a call on his phone bleeper. To take the call, Mr Breen left his post of vigilance and it was in his absence that the plaintiff started up the machine.
From this brief outline of the facts it is clear that the defendant failed to take reasonable care in the circumstances for the safety of its employees. In particular, when management appreciated the risk involved, Mr Breen fell short of what the reasonable employer would do. First, he failed to communicate the danger of restarting the machine in a clear unambiguous way to all persons in the vicinity who were likely to restart the machine. The tick-tack sign language used in the noisy atmosphere and through the perspex glass was more appropriate to the coded language required in the bookmakers’ ring, where secrecy *351 is at a premium, than what was required in ensuring clear communications in a situation where death and serious personal injury were present. Secondly, he left his post of vigilance to take a phone call; there was no evidence that the call was so urgent that it should take over the task in hand which Mr Breen testified would only take three minutes in any event. Thirdly, he failed (and management generally failed), (a) to devise a more adequate warning system: a simple warning notice on the control panel while repairs were in progress would have prevented an unsuspecting operative from re-starting the machine; (b) to devise a system which would ensure that the machine would be knocked off while it was being repaired. After the accident a lock button was placed on the panel, but I would hesitate in concluding with the benefit of hindsight that failure to do this before the accident amounted to negligence. Finally, Mr Breen failed to open the perspex panel, through which he was looking, and which would have had the effect of automatically knocking off the machine while the panel remained open.
Furthermore, even if Mr Breen did get a coherent warning to the plaintiff’s fellow employee, (which I do not believe he did) and even if the significance of the message was fully appreciated by this employee, the message was not passed on to the plaintiff, whose evidence on this I accept. In failing to pass on the message to the plaintiff in such circumstances, the work mate would make the defendant vicariously liable for his omission in this regard.
From these facts therefore, which are supported by the evidence, I have little difficulty in concluding that the defendant was clearly in breach of its obligation to take reasonable care for the plaintiff in these circumstances.
Kind of harm: psychiatric illness
The remaining issue is whether the courts are willing to compensate the plaintiff for the kind of harm she suffered which was not physical injury as traditionally defined, but psychiatric injury previously described by lawyers as ‘nervous shock’. A couple of preliminary points can be made.
First, Irish authorities clearly establish that the duty to compensate for nervous shock in negligence cases extends only to recognised psychiatric illnesses. In the present case, the medical evidence of both doctors was that the plaintiff suffered from a mild to moderate post traumatic stress disorder and this has been accepted in this jurisdiction as a recognisable psychiatric illness (see Mullally v. Bus Éireann, supra ). This diagnosis was not challenged by the defendant. Neither was the conclusion of Dr James Corbett, that the illness was caused by the accident, and by the shock which the plaintiff suffered, seriously contested.
Second, such harm is recognised as compensable in negligence only if it is brought about by a shock or sudden event. Compensation in this jurisdiction is not available for general grief or sorrow (Hosford v. John Murphy and Sons *352 Ltd [1988] ILRM 300) or for a condition which is brought about over a period of time, for example, the wear and tear which caring parents might suffer if they have to look after a son or daughter severely injured in an accident (Kelly v. Hennessy, supra ). Again, there was agreement in this case that the plaintiff’s condition was brought about by the crisis which followed when she switched on the machine. (It is probably fair to say that the court had not the stress at work situations in mind when laying down this condition. See Walker v. Northumberland Co. Council where the plaintiff employee recovered for a nervous breakdown (the second) caused by stress at work.)
That much is clear.
Reasonably foreseeable psychiatric illness
Although the courts have long since indicated their willingness to recognise nervous shock or psychiatric illness as harm which is compensateable in our jurisdiction (see Bell v. Great Northern Railway Company of Ireland (1890) 26 LR (Ir) 428; Byrne v. Great Southern and Western Railway Company of Ireland Irish Court of Appeal, February 1884, cited in Bell; Mullally v. Bus Éireann, supra ; Kelly v. Hennessy, supra ), it must of course be harm which is reasonably foreseeable by the defendant. If the plaintiff is within the range of persons who is likely to be affected by the defendant’s actions or omissions, and to whom a duty is owed, and it is reasonably foreseeable that failure to take care on the part of the defendant will result in psychiatric illness, then the defendant will be liable for such psychiatric illness if it is negligently inflicted. Moreover, liability will be imposed in such circumstances even if no physical injury results from the lack of care. (See Bell, supra ; Byrne, supra ; and Kelly v. Hennessy, supra ). In determining whether such psychiatric illness is reasonably foreseeable or not it will be relevant to take into account, inter alia, that there was fear for one’s own physical safety (Bell, supra ; Byrne, supra ), the safety of one’s family (Hambrook v. Stokes Bros [1925] 1 KB 141), or the safety of one’s fellow employees (Dooley v. Cammell Laird & Co. Ltd [1951] 1 Lloyd’s Rep 271), or even fear for the safety of ones home (Attia v. British Gas plc [1988] QB 304).
In the present case it is clear from the evidence and from the facts already outlined, that it was reasonably foreseeable, if the plaintiff switched on the machine while the fitter was inside the housing, that the fitter would in all probability be physically injured and that the plaintiff would get a great fright which could easily result in a serious assault on her nervous system and result in psychiatric illness. It must surely be conceded that when the machine was switched on with the fitter inside ‘all hell would break loose’, to use the plaintiff’s own phrase in evidence. The noise, the screams, the malfunctioning of the machine, the shout of alarm from others, all assaulting the plaintiff through her own senses, would frighten the most courageous. Add to this the guilt *353 factor, irrationally assumed by the plaintiff as a result of her causative role, and one has a combination that would frighten the bravest soul. The psychiatric illness (PTSD) that these events triggered was acknowledged by the doctors who gave evidence.
It is clear, therefore, that the defendant owed the plaintiff a duty of care in the circumstances; that there was a breach of its common law duty to take care; that the defendant attracted liability vicariously through the negligence of its employees; and, finally, that the plaintiff suffered a compensatable injury which was reasonably foreseeable in the circumstances.
Policy
Liability must follow unless there are policy reasons which would operate against the plaintiff (Ward v. McMaster, supra ).Hamilton CJ in Kelly v. Hennessy, supra , said, in allowing an aftermath claim that: ‘[t]here is no public policy that the plaintiff’s claim, if substantiated should be excluded’ (p.262) echoing Gibbs CJ in Jaensch v. Coffey (1984) 155 CLR 549 at p.556. He quoted Lord Russell of Killowen in McLoughlin v. O’Brian, supra , who rejected the floodgates argument in that case. In Mullally, Denham J also took the view that there was no public policy which prevented the plaintiff from recovering, in a similar case, nor was there any legal or constitutional ban to such recovery. If there is no policy argument against recovery in those cases, it would seem that, a fortiori, there should be none in the present case where the plaintiff was a participant in the accident.
The main policy reasons put forward for denying recovery in these type of situations are: (i) ‘Floodgate’ fears (ii) the difficulty of proving that the injury exists and (iii) the possibility of fraud. There is little possibility, where the plaintiff was an employee and was present and was a ‘main player’, of releasing a flood of claims if the plaintiff is awarded damages in this case. The evidentiary problems of proving the psychiatric illness are to my mind exaggerated. They are no more difficult than the proof required in some types of back injuries which are not detectable by x-ray or scanning process. Further, the courts have no hesitation in compensating psychiatric illness when it accompanies physical injury, where the proof requirements for the psychiatric element are equally problematical. If the proof problem does not deter the courts in the latter type of case, why should the policy objection prevail where the only injury is psychiatric illness? Finally, the possibility of fraud is ever present in all tort claims. The possibility can be exaggerated, however, and the possibility of fraud is not confined to cases of psychiatric illness. The rules of evidence, the burden of proof and the trial process generally, are designed to minimise this risk, and by and large succeed. It is my view, therefore, that there are no policy reasons why the plaintiff in the present case should be denied recovery for her injuries. On the contrary, it would be unjust to do so.
*354
2. Irish authorities and the conditions laid down in Kelly v. Hennessy
Counsel for the parties in this case relied in argument on the Irish cases of Mullally v. Bus Éireann, supra , and Kelly v. Hennessy, supra . These were two cases where persons who were not directly involved in the accident claimed damages for psychiatric illness they suffered from witnessing horrific scenes in the aftermath of the accident. In so far as these cases did not concern victims who were participants in the accident they are, of course, distinguishable from the present case. But, in so far as they contain general principles of law which are relevant to our enquiry I am of course bound by them, and, in this regard, I must have particular regard to the general conditions necessary for recovery in nervous shock cases as set out by Hamilton CJ in Kelly. These are as follows (at pp. 258–9/325–6):
1. The plaintiff must establish that he or she actually suffered ‘nervous shock’. This term has been used to describe ‘any recognisable psychiatric illness’ and a plaintiff must prove that he or she suffered a recognisable psychiatric illness if he or she is to recover damages for ‘nervous shock’ …
2. The plaintiff must establish that his or her recognisable psychiatric illness was ‘shock induced’….
3. A plaintiff must prove that the nervous shock was caused by a defendant’s act or omission….
4. The nervous shock sustained by a plaintiff must be by reason of actual or apprehended physical injury to the plaintiff or a person other than the plaintiff….
5. If a plaintiff wishes to recover damages for negligently inflicted nervous shock he must show that the defendant owed him or her a duty of care not to cause him a reasonably foreseeable injury in the form of nervous shock. It is not enough to show that there was a reasonably foreseeable risk of personal injury generally.
[There are omissions from this quote.]
A quick check against these requirements shows that the plaintiff in the instant case could meet all these requirements and so there is nothing in Kelly v. Hennessy which would prevent the plaintiff from recovering here.
Mullally and Kelly (and indeed most of the recent cases in England such as McLoughlin v. O’Brian, supra ; Alcock, supra ; Page v. Smith, supra ; White, supra ) are concerned with psychiatric illness suffered by persons who were not participants in the accident but who suffered injury in the aftermath, as bystanders or as rescuers. They were what has become known now in England as ‘secondary victims’. In these cases the courts’ principal concern has been with imposing limits on the class of people who can recover and they have focused in doing so on the duty question and the policy reasons why limitations — relational, spatial, temporal and perceptional — should be imposed (wittily described *355 by Mullany and Handford, Tort Liability for Psychiatric Damage (The Law Book Co. Ltd., Sydney 1993), as ‘nearness, hearness and dearness’ factors, at p. 12).
In the present case, however, we are not concerned with secondary victims. Here Mrs Curran is a participant in the accident as well as an employee and the duty question is scarcely arguable. Moreover, the plaintiff is an essential causative factor, in the factual sense. Kelly and Mulllally are therefore distinguishable, although there is no doubt that Hamilton CJ’s dicta are relevant to our deliberations in so far as they are of general application to nervous shock cases and are not confined to ‘aftermath victims’. More relevant, perhaps, to our case are the cases of Bell v. Great Northern Railway Company of Ireland, supra , and Byrne v. Great Southern & Western Company of Ireland, supra . In Byrne the plaintiff was put in fear for his safety when a train out of control came towards the signal box where he was stationed. Although he suffered no physical injury he recovered for nervous shock. He was clearly a participant in so far as he was involved in the accident and he feared greatly for his own physical safety. Bell had similar facts. In the present case, Mrs Curran had no fear of physical injury to herself. Her concern was that she caused serious injury or death to her work mate as an unwitting participant. The real question in our case can be posed in the following way:
Whether an involuntary or, more correctly, an unwitting participant in an accident who suffers psychiatric illness, can successfully sue a defendant who through his negligence puts the plaintiff in a position that he or she thinks that he or she has killed or caused serious bodily injury to a fellow employee?
I have no doubt on principle and under the general requirements, set down by Hamilton CJ in Kelly, that the plaintiff can recover in such circumstances.
3. Involuntary participants
I am confirmed in this by the English case law on this matter which although not cited to me in these proceedings is in my view very relevant to the issues in hand.
In Dooley v. Cammell Laird & Co. Ltd [1951] 1 Lloyd’s Rep 271 the plaintiff suffered nervous shock when the load he was lifting as a crane driver dropped into a ship’s hold where the driver’s workmate was working. The sling around the load was defective and after it broke the plaintiff remained in the driving cab of the crane for some time to see if he could render assistance from the cab. The plaintiff was employed by the first named defendant, who lent him, with the crane, to the second named defendant. It was the foreman of the second defendant who attached the load to the crane before the hoist began. The plaintiff alleged breach of statutory duty against his employer and breach of common law duty of care against the second named defendant. He was successful against both. The matter was treated as being one of foreseeability of damage: *356 ‘[f]urthermore, if the driver of the crane concerned fears that the load may have fallen upon some of his fellow workmen, and that fear is not baseless or extravagant, then it is, I think, a consequence reasonably to have been foreseen that he may well himself suffer a nervous shock’ (at p.277).
Two other cases illustrate the same principle: Galt v. British Railway Board (1983) 133 NLJ 870 and Wigg v. British Railway Board The Times, 4 February 1986. In the former a train driver came round a bend and found two railway workers on the track due to the negligence of the defendant, his employer. The plaintiff suffered a heart attack. It is stated in the headnote that ‘the defendants owed him a duty to take reasonable care not to expose him to injury from nervous shock’. In Wigg the guard in the train was negligent in failing to ensure that the train doors were shut, and as a result a passenger was killed when he fell from the train. The plaintiff, a train driver, descended from his cab and found the victim and suffered nervous shock as a consequence. He too was successful in his action against his employers.
This line of authority received further support from the Court of Appeal in Frost v. Chief Constable of South Yorkshire Police [1997] 1 All ER 540. This was another action arising out of the disaster at the Hillsborough Football Stadium. Here a number of police officers sued their employer, their Chief Constable, for damages and negligence for post traumatic stress disorder suffered as a result of being on duty on the day, when 96 spectators died and 730 were injured. After reviewing the case law extensively Rose LJ, delivering the court’s judgment, stated at p.551:
(xii) In none of the cases before the House of Lords since Ogwo v. Taylor was the plaintiff either a servant of the defendant or a rescuer…. This is a crucial matter which explains why some of the present plaintiffs may succeed, whereas the plaintiffs in Alcock’s case failed. The distinction is not due to any preference being given by the courts to policemen over laymen. It exists because the court has long recognised the duty of care to guard employees and rescuers against all kinds of injury, whereas, in deciding whether any duty of care exists towards plaintiffs who are not employees, rescuers, or primary victims, the courts have, in recent years, imposed specific criteria in relation to claims for psychiatric injury.
The court accordingly, awarded damages to those police officers who were on duty at the stadium on the day in question (‘but not to those who were on duty nearby and who were not in the aftermath or rescuers’) as they were ‘at the ground in the course of duty, within the area of risk of physical or psychiatric injury and were thus exposed, by the first defendant’s negligence, to excessively horrific events such as were likely to cause psychiatric illness even to a police officer. There was therefore a breach of duty to such persons’.
It is clear from this line of authority therefore that the plaintiff in our case *357 can recover, since the employer owed her a duty of care not to expose her to reasonably foreseeable psychiatric illness caused by their negligence and which caused the plaintiff to think she had seriously injured her fellow-employee. (It should be noted that the rule in Dooley v. Cammell Laird Co. Ltd has been supported by Lord Oliver in Alcock, supra , and by the Law Commission in England: see the Law Commission Consultation Paper No. 137, Liability for Psychiatric Illness, 1995. Indeed the Law Commission supports recovery even in cases where the shock was not experienced through the plaintiff’s unaided senses and even though he or she was not close to the accident in time and space.)
It seems to me that the critical element in these cases is that the defendant’s negligence brought the plaintiff into the accident as an active participant. The plaintiff unwittingly became an essential link in the causative chain which resulted in injury to a fellow-employee. It is clearly foreseeable in those circumstances that the plaintiff might develop a guilt complex which, with the other factors accompanying the accident, and directly perceived by the plaintiff herself, could result in a psychiatric illness.
Liability as ‘an involuntary participant’, is not based on the employer / employee relationship (although it most frequently occurs in that context), but rather on the more general duty not to put someone in a position where they reasonably think they have killed or seriously injured someone else. It is independent of the employment relationship. (Handford P., Psychiatric Injury in the Workplace [1999] Tort Law Review 126, at p.131). This does not appear to have been questioned in England until Page v. Smith, supra , in 1996 and more recently in 1999 by the House of Lords, which in White v. Chief Constable of South Yorkshire Police overruled the Court of Appeal (supra) which heard the case under the name of another plaintiff in the case: Frost v. Chief Constable of South Yorkshire Police. White was another case where a policeman on duty on the day of the Hillsborough football disaster sued as an employee claiming damages for nervous shock caused by his employer’s negligence. The House of Lords dismissed the plaintiff’s action, emphasising the need for such plaintiffs to be within the area of physical risk, and rejecting the notion that the employer owed any general duty not to cause an employee psychiatric harm.
Page and White have not been considered by the higher courts in this jurisdiction. The decision has been seriously criticised (See Handford, op. cit.; Tan Keng Feng, op. cit. at p. 164 ‘The House of Lords’ decision in White … places severe and unjustified limitations on the rights of workers…’), is not in accordance with the Australian approach and does not appear to be an approach favoured by the Law Commission (England) in its reports. (The report predated the House of Lords decision, but took account of the Court of Appeal’s view). Moreover, White was not directly concerned with the category of persons who participated in the accident and can on this basis be distinguished *358 from the case in hand. On this view, White does not undermine the Dooley line of authority.
Handford’s assessment of the Dooley line of cases is preferable when he says: ‘… the true explanation of the Dooley line of cases is that the defendant’s negligence placed the plaintiff in the position of being (or thinking he was) the involuntary cause of another death or injury’. (Handford, op. cit., at p. 134. To the three cases cited as the Dooley line, Handford adds two more: Carlin v. Helical Bar Ltd (1970) 9 KIL 154, and Meek v. British Railways Board QBD, 15 December 1983; Handford, op. cit., at p. 133).
On the basis of the Dooley line of authority I would allow the plaintiff in this case to recover also.
4. Breach of statutory duty
In addition to the defendant’s breach of its common law duty of care, the defendant is also in breach of its statutory duties in this matter. In this regard the plaintiff’s counsel referred in particular to the Safety, Health and Welfare at Work (General Application Regulations 1993 (S.I. No. 44 of 1993) and especially to s. 13 of the 5th schedule thereof which reads as follows:
13
(a) Where possible maintenance operations shall be carried out when equipment is shut down.
(b) Where this is not possible, it shall be necessary to take appropriate protection measures for the carrying out of such operations or for such operations to be carried out outside the area of danger.
The plaintiff alleged, inter alia, a breach of this section and the defendant’s counsel scarcely contested the point. I find that the defendant is also in breach of this regulation, and since the defendant should have foreseen that the plaintiff might have suffered psychiatric illness for its failure in this regard the plaintiff is also entitled to recover on this ground. It should be noted that in defining ‘personal injury’s. 2 of the Safety, Health and Welfare at Work Act 1989 includes ‘any disease and any impairment of a person’s physical or mental condition’ (emphasis added).
This definition raises an interesting question, which although it does not arise in this case, could certainly arise in future. From the definition of ‘personal injury’ just given, it is clear that the statutory duty in the present case obliges the defendant to avoid both physical and mental injury and if the defendant foresees some personal injury (e.g. physical injury) it could be argued that he will nevertheless be liable for any personal injury that follows, even if this is mental impairment only. The plaintiff here does not have to rely on this interpretation, since I have found as a fact that the defendant in the present case could foresee psychiatric illness and that is what the plaintiff suffered.
*359
5. Duty as employer
In view of my findings for the plaintiff under the above headings I do not propose to address the question of whether there is a general duty on an employer to take reasonable care to prevent the employee suffering psychiatric illness because of the conditions of employment. As already mentioned, the House of Lords has considered the matter recently in the White case, where it held that there was no such general duty on the employer. The judgment is controversial and I would content myself with the remark that there must be a duty in this respect in some circumstances at least , even if a blanket duty in all circumstances is rejected. Were I pushed to make a decision, I would be inclined to the view that the plaintiff in the present case, and in the factual situation we are considering, was owed such a duty by her employer. White’s case can be distinguished in so far as the policemen there were not participants or directly involved in the incident, and arguably were comparable to by-standers and spectators. In no way, however, could Mrs Curran in the present case be so described. Even if there is no general duty of care to avoid negligently inflicted psychiatric illness between employer and employee, as asserted by White, it is nevertheless clear that such a relationship cannot disqualify or disadvantage a claimant who is entitled to recover under other headings.
Summary of English and Irish law now
After White the English position is as follows: persons who suffer negligently inflicted psychiatric illness are divided into two groups: primary victims and secondary victims. Primary victims are variously defined as those who were also exposed to physical injury or who were in the area of risk of physical injury or who were participants or directly involved in the accident. Secondary victims include mere bystanders or spectators. There appear to be no other categories, so that all claimants are either primary or secondary victims. The law views secondary victims as being less deserving and consequently, it demands that those victims must, for policy reasons, satisfy the courts in addition to the ordinary negligence requirements, that there was a ‘close’ relationship between the claimant and the victim, that they were spatially and temporally near the accident and that they perceived the events through their own senses. White, in effect, held that rescuers and employee claimants who up to then had been considered to be entitled to recover without having to concern themselves with ‘the control mechanisms’, are now treated as secondary victims also. To succeed, therefore, a rescuer must now show that he has a ‘close’ relationship with the injured person(s) and that he complies also with the other policy requirements. White also decided that there is no general duty of care owed by the employer to his employees in respect of psychiatric illness, and employees, like other secondary victims, must now also surmount the policy control mechanisms if they wish to recover. Finally, the English courts have held in Page v. *360 Smith, supra , that if the defendant could foresee personal injury (i.e. physical or psychiatric illness) he will be liable if the claimant only suffers psychiatric illness.
In contrast, to recover for this type of injury in the Irish courts, the claimant must comply with the five conditions laid down by Hamilton CJ (with whom Egan J agreed) in Kelly v. Hennessy. Nowhere in the Chief Justice’s judgment is there any reference to primary or secondary categories. Denham J in the same case seemed to accept the distinction, and indicated that to be a primary victim one had to be a ‘participant’ in the events. As opposed to the English position, Hamilton CJ also held that to recover in Ireland for nervous shock, the defendant had to foresee nervous shock and not merely personal injury in general. When addressing these issues in Kelly, the Irish courts relied heavily on the Australian approach as expressed in Jaensch v. Coffey, supra , an approach which has been rejected by the English Courts.
Two things become clear from this: first, the law on this topic is far from settled in either jurisdiction; second, a divergence of approach between the two jurisdictions is becoming increasingly obvious and perhaps inevitable. Several questions have yet to be confronted by the Irish courts: should the law in this jurisdiction accept the primary/secondary classification?; are there to be other classes — tertiary victims for example?; if not, are there to be exceptions to the primary/secondary categories — e.g. rescuers and/or employees?; is ‘participation’ to be the criterion in determining primary victims?; is it necessary for a defendant to foresee nervous shock or is it sufficient if he foresees ‘personal injury’ of some kind?; are the occupational stress cases like Walker v. Northumberland County Council [1995] 1 All ER 737 where the plaintiff is clearly a primary victim, but where the injury is not shock induced, affected by these developments?; and perhaps, most fundamental of all: is the distinction between physical and psychiatric injury medically or legally defensible nowadays? (See Lord Lloyd of Berwick in Page v. Smith [1996] 1 AC 155, at p. 188.)
The House of Lords’ decision in White is somewhat reminiscent of its earlier decision in Murphy v. Brentwood District Council [1991] 1 AC 398 where it resiled from its earlier approach in Anns v. Merton London Borough Council [1978] AC 728 on the general duty of care issue. This withdrawal was never followed by the Irish courts, who in Ward v. McMaster, supra , and a succession of cases thereafter, kept faith with the Anns’ approach. From the Supreme Court’s reliance on the Australian authorities in Kelly, it would seem that the Irish courts will not be overawed by White and may well choose, as it did in Ward v. McMaster, to go its own road, especially since White has its critics (see supra).
Lord Hoffman in White (with whom Lord Stein agreed) in refusing to compensate the policemen who sued their employers in that case gave two reasons for his refusal. First, he said there would be a definitional problem if one was *361 to recognise them as rescuers: who else would fit into the definition of rescuer? This is hardly a compelling reason for refusing recovery, and Lord Hoffman himself acknowledged this as a ‘less important reason’ (ibid. at p. 1556). The law is continuously concerned with definitional problems and it can hardly be advanced as a reason for not doing justice. The second and more compelling reason he advanced for not treating policemen as rescuers and allowing them to recover, was that to do so would be unfair and would offend against the ‘notions of distributive justice’. ‘[The ordinary person] would think it wrong that policemen, even as part of a general class of persons who rendered assistance, should have the right to compensation’ for psychiatric injury out of public funds while the bereaved relatives are sent away with nothing’ (ibid., at pp. 1556–7). This of course raised fundamental questions as to the purpose of the tort system in general, but in the present context it should be noted that such a distinction is not deemed offensive or objectionable per se, in our jurisdiction, where the Garda Compensation Scheme accepts that gardaí injured in the course of duty will get full compensation, whereas the ordinary citizen gets no general damages for pain and suffering for criminally inflicted injuries. Perhaps the Irish courts would see nothing wrong with allowing such policemen as were involved in White recovery either as employees or rescuers and the policy reason given by Lord Hoffman for refusing compensation would not appear to have the same force in Ireland in any event.
Conclusion
For the reasons outlined above I would allow the plaintiff to recover in the case because:
1. She is owed a general duty of care on proximity and neighbourhood principles, and there has been a breach of that duty which caused the plaintiff reasonably foreseeable psychiatric harm; further there are no good policy reasons in her case which should deny the duty of care.
2. She complies with the five conditions laid down by Hamilton CJ in Kelly v. Hennessy, supra .
3. She was an ‘involuntary participant’ due to the defendant’s negligence;
4. The defendant was in breach of a statutory duty which resulted in ‘an impairment of [the plaintiff’s] physical or mental condition’.
Having found for the plaintiff I now address her injuries and the measure of damages.
The injuries
Having found for the plaintiff, I now turn to consider her injuries in more detail. The evidence before the court in this regard, given by Dr K. Sinanan, consultant psychiatrist and by Dr James Corbett, was in its essentials not seriously contested. Both doctors gave evidence that the plaintiff suffered post *362 traumatic stress disorder as a result of the accident, which according to Dr Corbett was ‘of moderate intensity’ and according to Dr Sinanan was of a ‘mild form’. Further, according to Dr Corbett when the fitter emerged from the machine the plaintiff was in ‘a state of extreme shock’. Following the accident the plaintiff becane very anxious and complained of bouts of diarrhoea and tightness in her chest. She had nightmares and her self-esteem was diminished. She was much less outgoing, and developed a phobia regarding the site of the accident and was agitated and tearful when describing the incident. She was out of work for several weeks. In giving her evidence at the trial, it was clear too that the plaintiff was still very upset when recounting the incident.
Between the date of the accident and the trial the plaintiff was ‘up and down’: she benefited somewhat from a course of psychotherapy, but also became depressed and had to have medication from time to time. The sixteen session course of psychotherapy addressed problems with her self-esteem and her confidence. She became more dependent on support from her family. At the time of the trial more than three and a half years after the accident she was still on anti-depressants, but according to Dr Corbett a favourable prognosis was anticipated and he expected that the plaintiff’s residual problems would resolve within a further twelve months.
Dr Sinanan’s reports (2) confirmed Dr Corbett’s diagnosis. In particular, he confirmed that the plaintiff was anxious, tense, red in the face, distressed and tearful when talking about the experience. Initially, he recommended medication to inhibit panic, and/or therapy. When Dr Sinanan reported in February 1999, the plaintiff was somewhat improved, but was still taking anti-depressant tablets and anti-anxiety medicine. She was still experiencing occasional flashbacks but had begun to emerge from an emotional shell she had constructed around herself. He predicted that she would continue to improve and she would be back to normal after another six to nine months of medication.
All in all, therefore, the plaintiff suffered a very unpleasant experience which had a serious effect on her emotional life for more than three and a half years. Her family life and her social contacts were fractured. Thankfully, she is now on the mend, but there is some way to go yet before she is back to her old self.
In the circumstances, I will award the plaintiff £12,000 for pain and suffering to date and £5,000 for future pain and suffering. To this I would add £1,700 for agreed special damages making a total of £18,700.
I award costs to the plaintiff.
Fletcher v. Commissioner of Public Works
[2003] IESC 13 (
JUDGMENT delivered the 21st day of February, 2003, by Keane C.J.
Introduction.
1. This is an appeal by the defendants from a judgment and order of the High Court (O’Neill J) of the 15th June 2001, awarding the plaintiff, who was at all material times an employee of the defendants, damages in the sum of £48,000 for the negligence and breach of duty (including breach of statutory duty) of the defendants.
2. The appeal was heard at the same time as four other appeals, in which the plaintiffs were Raymond Brophy, Dermot Swaine, Patrick Sammon and David Shorthall and the present defendants were also the defendants. The plaintiffs in those cases had also been at all material times in the employment of the defendants.
3. All five cases arose out of what was admitted to be the failure of the defendants as employers to take proper precautions for the safety, health and welfare of the plaintiffs as their employees. As a result of that failure, as is also conceded on behalf of the defendants, the plaintiffs were exposed to significant quantities of asbestos dust in the course of their employment and, as a further consequence, were exposed to the risk of contracting in later life a disease called mesothelioma which, when contracted, is significantly painful and potentially lethal. There was evidence in each case from psychiatrists that the plaintiffs, as a result of their having been informed of that risk, suffered from a recognisable psychiatric disorder. In each case, the learned trial judge, (Johnson J in the cases of Brophy, Sammon and Shorthall and O’Neill J in the remaining cases) found that the defendants were liable to pay damages in respect of the psychiatric injury in question and the issue as to whether they were so liable was the subject of extensive written and oral submissions in this court. Since, however, the course which the proceedings took in each case in the High Court was not identical, so far as the admissions made on behalf of the defendants and the issues which fell to be determined were concerned, it seems more convenient that the court should give judgment on the issues which were the subject of argument in this court in the present case only, leaving for further consideration the effect of its judgment on the remaining four appeals.
4. The plaintiff in this case, Stephen Fletcher, was born on the 28thDecember 1947 and was first employed by the defendants in 1977. He is married with one child. From 1985 onwards, he was engaged in Leinster House as a general operative, helping plumbers, electricians, and fitters in the maintenance of what was described by the trial judge as an “enormous and labyrinthine central heating system.” The trial judge found that the piping in that system was covered with a lagging containing asbestos of various types and that much of it was in an extremely poor condition, i.e., it was friable, dusty and falling off in many places. As part of his work, the plaintiff was regularly obliged to hack off the lagging in order to enable the tradesmen he was assisting get access to the pipe work. The work had to be done in difficult conditions in very confined areas.
5. The trial judge further found as a fact, again not contested, that as a result significant quantities of asbestos polluted the air which the plaintiff breathed and that of necessity he inhaled very large quantities of asbestos dust over a number of years. That situation lasted until at least 1989.
6. It appears that in July 1984, an inspection was carried out of the working conditions on behalf of the Minister for Labour. The inspector concluded that the asbestos lagging had deteriorated to such an extent that it should be removed section by section until complete removal had been achieved. In a letter dated 3rd July 1984 from the Department of Labour to the defendants, it was pointed out that the inspector strongly recommended that immediate steps should be taken to have all the asbestos removed under the conditions which would be required under the relevant statutes, as if the building were a factory for the purposes of those statutes.
7. There was also evidence, not disputed on behalf of the defendants, that in February 1985, an engineer acting on behalf of the defendants had written to submit a tender for the work involved in removing insulation from a certain area. That letter stated:
“Workers must be supplied with appropriate protective clothing and protective masks. All removal of contaminated clothes and washing facilities must be within the confined area. Workers, when washed, should then move directly to their clean change area.”
8. Not surprisingly, the trial judge reached the following conclusion based on that evidence:
“It is absolutely clear to me that a dangerous situation pertained [and] that the state of the lagging in the basement area and other pipe work was in a dreadful condition and was a danger to anyone who was obliged to work with it as the plaintiff was. It is equally clear that the defendants knew all of this and knew it from, at the very latest, mid 1984. It is also quite clear from their correspondence that they were well aware of the dangers of asbestos because in their tender document which I have just quoted from, they make the most stringent requirement of a contractor coming in, in relation to their work. Nevertheless at the very same time, they obliged the plaintiff as part of his contract of employment to carry out work in this area without informing him at all of the existence of asbestos or of the risks attached to asbestos dust or without providing him with protective clothing or without taking any steps whatsoever to protect him from the effects of asbestos dust”.
9. The trial judge went on to find that from 1985 until probably well into 1989 the plaintiff was regularly exposed in the course of his employment to asbestos dust and, during that time, inhaled very significant quantities of the dust. The trial judge said that, in those circumstances, he was satisfied that the defendants were guilty of “gross negligence” and that no question of contributory negligence arose. Again, there has been no appeal from that finding.
10. Having noted that the plaintiff finished his tour of duty in Leinster house in 1991 and that thereafter his exposure to asbestos dust ceased, the trial judge went on to consider the evidence in the case of Professor Luke Clancy, a consultant respiratory physician at St. James’s Hospital, Dublin, who is an acknowledged authority on respiratory diseases generally and diseases resulting from exposure to asbestos in particular. He referred to Professor Clancy’s evidence that the plaintiff had been exposed to the risk of developing asbestosis and that he was also at an increased risk of lung cancer; but that the plaintiff had not contracted either disease and that it was very unlikely that he ever would.
11. Professor Clancy’s evidence was, however, also to the effect that, as a result of his exposure to asbestos the plaintiff was at risk of contracting in later life the disease called mesothelioma. This would not happen until at least 20 years after the first exposure to asbestos and might not occur until 40 years thereafter. If it occurred, the prognosis would be very poor, since the disease would be painful and likely to prove terminal within two or three years of its having developed. Professor Clancy emphasised, however, that the risk of contracting the disease was “very remote”. He pointed out that, although exposure to asbestos is widespread throughout the whole community, he saw no more on average than three or four cases of mesothelioma a year in the course of his practice, while he might see as many as four hundred cases of lung cancer in the same period.
12. Professor Clancy also said that while the likelihood was that the plaintiff had inhaled asbestos fibres, and that some of them would have remained in his body and caused microscopic scarring, there were in fact no physical manifestations of the scarring visible on x-ray. On examination his heart sounds were normal, his blood pressure was normal and he had full pulmonary function. While the lining in the lung was a bit thicker than another person’s might be, Professor Clancy did not attach any significance to this. There were no signs of what were called “pleural plaques”, which, if present, would have been significant.
13. The trial judge found that the plaintiff had been angered and shocked, and understandably so, on being informed that he had been unnecessarily and without his knowledge exposed to these risks. Initially, he consulted a solicitor who in turn referred him to Professor Clancy. He was not, however, reassured by what he was told and continued to worry about the possible danger to his health and also the effect all of this might have on his wife’s health, she already having suffered an illness, although the plaintiff was assured that this had no relationship whatever to his exposure to asbestos dust. Ultimately, he went to a consultant psychiatrist, Dr. John Griffin, who concluded that he was suffering from a “reactive anxiety neurosis”, which, as the trial judge found, could not be assuaged by counselling or the best advice which was available.
14. The trial judge summed up his conclusions on this aspect of the case as follows:
“Dr. Griffin, whose evidence I accept, described [him] as having a bug in his brain. It just will not go away. It seems to me to be a very apt way to describe it, and it seems to me that what has happened to the plaintiff is that he has this thing in his head. Everybody can tell him that there is no reasonable basis for it. There is a rational basis for it. [sic] There may not be a reasonable basis for it, but it just will not go away. That is not to say that the plaintiff is to be in some way criticised for that or that this is being said as some form of contrivance on his part. I am absolutely satisfied it is not. His fear, his anxiety is a genuine one.”
15. The defendants submitted that the plaintiff’s anxiety reaction was not caused by the exposure to the asbestos dust itself but by his having become aware of the risk arising from such exposure. They accordingly submitted that, in accordance with the decision of this court in Kelly –v- Hennessy(1995) 2 IR 253, the plaintiff could only recover for such psychiatric illness, unaccompanied by physical injury, if he had suffered a nervous shock and as a result thereof, had suffered a recognisable psychiatric illness. The trial judge said, however, that he was satisfied that the plaintiff’s psychiatric illness was the result of his exposure to the asbestos dust and not his exposure to the knowledge of it. He was also satisfied that it was reasonably foreseeable that such a psychiatric illness would be the result where a person of normal fortitude became aware that he had been exposed to the risk. In those circumstances, he was satisfied that the plaintiff was entitled to recover damage for the psychiatric illness which he had suffered as a result of the defendants’ negligence and, as already noted, he went on to assess the damages in the sum of £48,000.
16. From that judgment and order, the defendants have now appealed to this court. They do not dispute any of the findings of the trial judge as to their failure to take proper precautions for the health and safety of the plaintiff, or his finding that, as a result, the plaintiff was unnecessarily and without his knowledge exposed to significant quantities of asbestos dust or his finding that, in the result, he was subject to a risk, albeit a very remote one, of contracting mesothelioma. Nor have they sought to set aside the trial judge’s finding that, subsequent to his having been informed of that state of affairs, the plaintiff as a result suffered a psychiatric illness. They submit, however, that the trial judge’s determination that the plaintiff was entitled to recover damages in respect of that psychiatric illness, when unaccompanied by any physical injury, was wrong in law.
The nature of the “personal injury” suffered by the plaintiff.
17. It is clear that, if the risk of contracting mesothelioma to which the plaintiff was subjected was associated with some existing physical injury which the plaintiff had suffered as a result of the defendant’s negligence, he would be entitled to damages in respect of that risk, just as a plaintiff who suffers a fracture of a limb giving rise to the risk of arthritis in the future is entitled to be compensated for that risk.
18. Section 2 of the Civil Liability Act 1961 provides that
” ‘Personal Injury’ includes any disease and any impairment of a person’s physical or mental condition and ‘injured’ shall be construed accordingly.”
19. In this case, as Professor Clancy’s evidence made clear, the plaintiff’s physical condition was not impaired by his exposure to the asbestos dust. It is true that, having regard to the use of the word “includes”, the statutory definition may not have been intended to be exhaustive and that, at common law, the plaintiff might have been regarded as having suffered a “personal injury”, in the sense that, as a result of his employer’s acts and omissions, he had inhaled asbestos fibres, some of which at least had probably remained within his system.
20. It is, however, the fact that not only did Professor Clancy say that the plaintiff was not manifesting any physical symptoms of ill health resulting from his exposure to the asbestos dust: he considered the risk of his contracting mesothelioma as “very remote”. He was not invited to quantify the extent of the risk in any way and it is difficult to see how, in those circumstances, the trial judge could have embarked on an assessment of damages in respect of that risk. It is, of course, quite common in personal injuries cases where, for example, a claim is made that the plaintiff has been exposed to a risk of suffering epilepsy in later life as a result of his physical injuries for evidence to be led as to the quantification of the risk, i.e., 5%, 10% or as the case may be.
21. In the present case, there was no such evidence and the trial judge confined his assessment of damages to those which, in his view, sufficiently compensated the plaintiff for the psychiatric injury from which he suffered, consequent upon his being informed that he was exposed to the risk of contracting mesothelioma. I am, accordingly, satisfied that the case should also be approached on that basis in this court.
22. The issue, accordingly, which this court has to resolve is whether the plaintiff was entitled to recover damages for the impairment of his “mental condition” which, according to the evidence of the psychiatrist, has resulted from his exposure to the risk of contracting mesothelioma, a risk which, it is beyond argument, was created by the failure of the defendants to take the precautions which a reasonable employer would have taken to ensure that he was not exposed to any such risk.
23. That in turn depends, initially at least, on whether the consequences which have ensued for the plaintiff ought reasonably to have been foreseen by the defendants. (It is unnecessary , in my view, to arrive at any conclusion as to whether this is so because, if the personal injury was not foreseeable, liability in negligence cannot arise or because, if it was not foreseeable, the damage was too remote. In either case, reasonable foreseeability is a precondition to liability. )The question as to whether those consequences were reasonably foreseeable cannot, of course, be answered by assessing the state of knowledge of the defendants at the material time. The test is an objective one, i.e., as to whether a reasonable person would have foreseen that the consequences suffered by the plaintiff might be the result of the defendant’s want of care. Moreover, as Lord Bridge of Harwich pointed out in McLoughlin –v- O’Brian (1983) AC 410 at p433, the court must assume in applying this test that the hypothetical reasonable person would be properly informed as to the real, painful and disabling nature of psychiatric illness and would not dismiss the possibility of the plaintiff becoming subject to a similar illness simply because it is less susceptible to precise medical diagnosis and treatment than at least some purely physical disorders.
Recovery of damages for psychiatric illness.
24. However, the fact that it is reasonably foreseeable that particular acts or omissions will cause loss or injury to another person does not, of itself, give rise to liability in negligence. There must also be what judges have called, as the law has evolved, a relationship of “proximity” between the plaintiff and the defendant which gave rise to the legal duty to take care that the foreseeable consequence was avoided. That, of itself, does not present any difficulty for the plaintiff: if this were a case in which the injuries sustained by him were purely physical, then, given that they were the foreseeable consequence of the actions or omissions of the defendants as his employer there would, of course, be not the slightest difficulty in concluding that the latter were liable in negligence.
25. Nor is the fact that the injury of which the plaintiff complains, is purely psychiatric sufficient of itself to relieve the defendants from the consequences of their actions and omissions in the present case: since Bell & Another –v- The Great Northern Railway Company of Ireland(1890) 26 LR (Ir) 428 (following the earlier unreported decision of Byrne –v- Great Southern and Western Railway Company), it has been the law in Ireland that a plaintiff who sustains what has usually been described as “nervous shock”, even where unaccompanied by physical injury can recover damages, where the other ingredients of negligence are established. It was undoubtedly the law that damages were not recoverable for grief or sorrow alone: no degree of mental anguish arising from the wrongful acts or omissions of another was compensatable at common law. But nervous shock, even where there was no physical injury or even fear of such injury, was compensatable when caused by the negligence of the defendant.
26. The circumstances in which damages for nervous shock are recoverable were set out as follows by Hamilton CJ in Kelly –v- Hennessy:
“1.The plaintiff must establish that he/she actually suffered ‘nervous shock’. This term has been used to describe ‘any recognisable psychiatric illness’ and a plaintiff must prove that he/she suffered a recognisable psychiatric illness if he/she is to recover damages for ‘nervous shock’.
2. A plaintiff must establish that his/her reasonable psychiatric illness was ‘shock induced’…
3. A plaintiff must prove that the nervous shock was caused by a defendant’s act or omission…
4. The nervous shock sustained by a plaintiff must be by reason of actual or apprehended physical injury to the plaintiff or a person other than the plaintiff…
5. If a plaintiff wishes to recover damages for negligently inflicted nervous shock he must show that the defendant owed him/her a duty of care not to cause him a reasonably foreseeable injury in the form of nervous shock”.
27. In the present case we are not concerned with the difficulties that have arisen in the United Kingdom in determining, subsequent to the decision of the House of Lords in McLoughlin –v- O’Brian, the boundary, if any, that should be drawn in allowing plaintiffs to recover damages for nervous shock where the plaintiff himself is not affected by such nervous shock because of his direct involvement in the accident or event brought about by the defendant’s negligence, as was the case in Byrne –v Great Southern and Western Railway Company of Ireland and Bell & Another –v- The Great Northern Railway Company of Ireland. In particular, we are not, in my view, concerned with the distinction drawn in such cases between what have been described as “primary victims” and “secondary victims”.
28. The plaintiff in Kelly –v- Hennessy had not been present at the car accident which gave rise to the proceedings and which had been caused by the negligence of the defendant. Her husband and two daughters were, however, victims of the accident and the plaintiff, having been informed of this by telephone, went to the hospital and saw them suffering from grievous injuries which had resulted in each case in permanent brain damage. As a result of that experience, she suffered from a recognizable psychiatric disorder. The plaintiff thus belonged to what in the subsequent English decisions was described as a category of “secondary victims” and this court, unanimously upholding the decision of the High Court, concluded that the fact that she was not a “primary victim” as were the members of her family, did not preclude her from recovering damages, provided the conditions which I have cited from the judgment of Hamilton CJ were met. (The distinction indeed is not referred to in the judgment of the learned Chief Justice, although it is mentioned in the judgment of Denham J.)
29. It had been made clear by Lord Wilberforce in his speech in McLoughlin -v- O’Brian that, in such cases, the law would have to place some limitations on the extent of admissible claims and the subsequent decisions of the same tribunal in Alcock & Others -v- Chief Constable of South Yorkshire Police (1992) I AC 310 and White -v- Chief Constable of South Yorkshire Police (1999) 2 AC 455 reflect a cautious and pragmatic approach in the case of such so called “secondary victims”, whose relationship to the primary victims might, on one view, be regarded as not so close or intimate as to justify compensation or whose “nervous shock” was not the result of a sufficiently direct or immediate perception of the events in question, as where they were seen on television in the case of a football stadium disaster.
30. In the present case, the plaintiff was not in any sense a “secondary victim” in my view: the psychiatric condition was the consequence of his exposure to the risk of mesothelioma and he was thus the only victim of the defendants’ want of care. Accordingly, while there are observations in some of the speeches in Alcock and White which are of assistance in this case, the general issue as to where, if at all, the boundary is to be drawn in affording compensation to “secondary victims” suffering from nervous shock does not, in my view, arise for consideration in the present case. That “nervous shock” suffered by an employee who does not have to be characterised as a “primary” or “secondary” victim of negligence in the workplace is properly compensatable where it is the result of such negligence is admirably demonstrated by the Circuit Court decision of Judge Bryan McMahon in Curran -v- Cadbury (Ireland) Limited [2000] 2 ILRM 343, where the legal issues are analyzed with his customary erudition.
Forseeability of psychiatric injury.
31. That it was reasonably foreseeable that the plaintiff would be exposed to the risk of contracting mesothelioma as a result of the defendant’s negligence is not in dispute. But it does not necessarily follow that it was reasonably foreseeable that the plaintiff would suffer a recognisable psychiatric disorder, on being informed that there was a risk, albeit a very remote one, that he would contract the disease.
32. It appears to have been generally accepted at one time by the English courts that for liability for psychiatric illness to arise, it must have been reasonably foreseeable. Foreseeability of physical injury was not enough. But that has no longer been the law in that jurisdiction since the decision of the House of Lords in Page –v- Smith 1996 AC 155. The law prior to that case was stated as follows by Viscount Simonds when giving the advice of the privy council in Overseas Tankship (UK) Limited –v- Morts Dock and Engineering Company Limited (The Wagon Mound (1) (1961) AC 388, 426.
“We have come back to the plain common sense stated by Lord Russell of Killowen in Bourhill –v- Young (1942) AC 92, 101. As Denning LJ in King –v- Phillips (1953) 1 QB 429, 441 said:
“There can be no doubt… that the test of liability for shock is foreseeablity of injury by shock.”
33. However, in Page –v- Smith, a majority of the law lords took a different view. That case arose out of a collision between the plaintiff’s and the defendant’s cars. The plaintiff suffered no physical injury, but three hours after the accident he felt exhausted and the exhaustion had continued. For twenty years prior to the accident, he had suffered from a condition, one description of which was “chronic fatigue syndrome”. He instituted proceedings claiming that this condition had now become chronic and permanent and was the result of the defendant’s negligence. He succeeded at first instance, but the Court of Appeal allowed an appeal on the ground that the plaintiff’s injury was not reasonably foreseeable. In the House of Lords, the majority (Lord Ackner, Lord Browne-Wilkinson, and Lord Lloyd of Berwick) allowed the plaintiff’s appeal, Lord Keith of Kinkel and Lord Jauncey of Tullichettle dissenting. The impact in that case was described by the trial judge as one of “moderate severity”, but no one involved sustained any bodily injuries. The majority were of the view, however, that once it was reasonably foreseeable that personal injury would occur as a result of the defendant’s negligence, it was immaterial whether the injury actually sustained was psychiatric as distinct from physical.
34. In arriving at that conclusion the majority emphasised that the plaintiff was properly regarded as a “primary victim” of the defendants’ negligence, adopting the classification first adopted by Lord Oliver in his speech in Alcock. The plaintiff in Page –v- Smith, having been directly involved in the accident, was a “primary victim”, in contrast to the relatives of those injured or killed as a result of the defendants’ negligence in McLoughlin –v O’Brian, Kelly –v- Hennessy and Alcock, who were categorised as “secondary victims”. In his speech in Page –v- Smith, Lord Lloyd said:
“Foreseeability of psychiatric injury remains a crucial ingredient when the plaintiff is the secondary victim, for the very reason that the secondary victim is almost always outside the area of physical impact, and therefore outside the range of foreseeable physical injury. But where the plaintiff is the primary victim of the defendant’s negligence, the nervous shock cases, by which I mean the cases following on from Bourhill –v- Young, are not in point. Since the defendant was admittedly under a duty of care not to cause the plaintiff foreseeable physical injury, it was unnecessary to ask whether he was under a separate duty of care not to cause foreseeable psychiatric injury.”
35. That approach was severely criticised by Lord Goff of Chieveley in his dissenting opinion in White. That case, which like Alcock, arose out of the Hillsborough Football Stadium disaster, was also largely concerned, like Alcock, with “secondary victims”, although since they were police officers, their claims were also advanced on the basis that they were owed a duty as employees and that, to the extent that they were involved in rescuing the primary victims of the disaster, they were also not in the same category as conventional “secondary victims”.
36. Lord Goff’s initial criticism of Page –v- White was that it was inconsistent with the earlier authorities culminating in the Wagon Mound in England and with a number of Australian decisions. He was also critical of the view of Lord Lloyd that hindsight was not a relevant factor where the plaintiff was a primary victim. Lord Lloyd, while accepting that in the case of a secondary victim it was necessary to look at the circumstances as they actually occurred and consider whether the hypothetical reasonable man would have foreseen that the plaintiff might have suffered an identifiable psychiatric illness, was of the view that this did not apply in the ordinary running down case, where it was sufficient that the defendant ought reasonably to have foreseen that an impact would result in some form of personal injury, even if in the event no direct physical injury was sustained. Finally, Lord Goff questioned whether Lord Lloyd was justified in omitting from the test in the case of a primary victim what might be described as the “reasonable fortitude” factor, i.e., whether the defendant, in a case such as Page –v- Smith, ought reasonably to have foreseen that the plaintiff would have suffered a particular psychiatric reaction which would not have followed in the case of a person endowed with “normal fortitude” or “ordinary phlegm”. In the case of a primary victim, Lord Lloyd thought, the defendant must take the victim as he finds him. In this context, Lord Lloyd cited with approval the dictum of Geoffrey Lane J, as he then was, in Malcolm –v- Broadhurst (1970) 2 All ER 508 that there was no distinction between an “eggshell” skull and an “eggshell” personality. Lord Goff, however, considered that, in so concluding, Lord Lloyd had erroneously taken an exceptional rule – the eggshell principle – relating to compensation, and treated it as being of general application, thereby, as he put it, “creating a wider principle of liability”.
37. However, Lord Goff’s concerns as to the innovative features of Page –v- Smith were not shared to any notable degree by the other law lords in White. It is relevant to note that Lord Goff expressed particular disquiet at an inference which the defendants had sought to draw from Lord Lloyd’s speech i.e., that in the case of both primary and secondary victims the defendant would be liable only where the victim who suffered psychiatric injury was within the range of foreseeable injury, a test that was met, of course, in Page –v- Smith, but not by the plaintiffs in White.
38. It is also true that the majority decision in Page –v- Smyth has been severely criticised by academic commentators as being in conflict with a significant body of existing case law in the United Kingdom and Australia and as also drawing distinctions between primary and secondary victims, in terms of the foreseeability of psychiatric damage, the implications of which for a wide range of cases had not been sufficiently considered.( Mullany, ,’Psychiatric damage in the House of Lords – Fourth time unlucky – Page v Smith ‘, 3 Journal of Law and Medicine (Aus) 112; Handford, ‘ A new chapter in the foresight saga : psychiatric damage in the House of Lords’ , 1964 Tort Law Review (Aus ) 6 ; Trinidade’ Nervous shock and negligent conduct ‘, 112 LQR, 22. )
39. No doubt it can be said that there was no reason in principle why a driver who ought to have foreseen that his negligent driving would cause the plaintiff to sustain personal injury should be relieved from liability simply because, in what was obviously an unusual case, the victim suffered psychiatric consequences, unaccompanied by any physical trauma. But it seems to me that, in the present case, it is unnecessary to consider the wider implications of the majority decision in Page –v- Smyth, because we are here solely concerned with the foreseeability of psychiatric injury flowing from the negligence of a defendant in a specific context, i.e., the failure of an employer to take reasonable precautions for the health and safety of his employees.
40. I see little difficulty in arriving at a conclusion that, in a case such as the present, it was reasonably foreseeable that the plaintiff would suffer a recognisable psychiatric disorder as a result of his taking medical advice and being informed that he was at risk of contracting the disease of mesothelioma, even though at the time of the proceedings he had not actually contracted that disease. Moreover, that result should also follow, irrespective of the extent of the risk. If, for example, the advice of Professor Clancy had been that as a matter of probability he would contract the disease and the plaintiff had, in the result, suffered the psychiatric disorder of which he now complains, it would seem to me unjust and anomalous that the defendants should escape liability. The fact that the advice he received was that he was at no more than a very remote risk of contracting the disease would not be a reason, in principle, for relieving the defendants of liability in limine. If they ought to have foreseen that the plaintiff would be at risk of contracting mesothelioma and, as a result, might also suffer psychiatric injury, the fact that the psychiatric injury would not have been suffered by a person of ‘ordinary fortitude’ is not material: the general principle that the wrongdoer must take his victim as he finds him should, in the absence of other considerations, apply.
41. I do not agree in this context with the view of the learned trial judge that the plaintiff’s reaction should be regarded as that of a person of ordinary fortitude. I think that such a person, on being informed that there was no more than a minimal risk of his contracting the disease, would not have permitted so remote a contingency to disrupt his family, working and social life, any more than he would have allowed all the risks to which we are subject at every turn of our lives, including the tobacco smoke pollution in much of our environment, have a similar effect. Such a person is not properly described, in my view, as a person of abnormal fortitude.
42. I recognise that it may be, on one view, questionable whether the law should apply the ‘eggshell skull ‘test in cases of psychiatric illness. Lord Goff may be right in saying that, in cases where there is no physical injury, this is to translate a rule relating to compensation into a general principle of liability. The fact remains that the test is applied routinely in personal injury cases in our courts: one is well familiar with minor soft tissue injuries which have, according to medical evidence, caused the plaintiff acute psychiatric injury which, one is assured, is of real significance to the plaintiff, however surprising his or her reaction is to the objective finder of fact. It seems to me that logically the same considerations should apply where there is no physical injury. In a case such as the present the question of liability must be resolved, not by the exclusion of the eggshell skull principle, but by determining whether the absence of physical injury is fatal to the plaintiff’s claim. That in turn depends on whether it falls within the category of ‘ nervous shock ‘ cases and, if not, whether liability can still arise in what may be generically called ‘ fear of disease ‘ cases.
Is this a “nervous shock” case?
43. The central issue in this case, accordingly, is not whether the defendants ought to have foreseen that the plaintiff would suffer psychiatric injury. It is whether the claim by the plaintiff comes within the category of “nervous shock” cases in which the courts have awarded damages for such psychiatric injury, even in the absence of any physical injury, and, if not, whether the plaintiff was nonetheless entitled to recover damages in respect of the reasonably foreseeable psychiatric illness which was the consequence of his having been negligently exposed to the risk of contracting mesothelioma. That further inquiry is necessary because of the care with which the courts have approached claims for psychiatric illness, unaccompanied by physical injury, arising out of alleged negligence: the reasons for that cautious approach are considered at a later point in this judgment.
44. “Nervous shock” would probably be regarded by medical experts today as an inexact expression, to put it no more strongly. The authorities, however, use it to define a set of circumstances which, when they give rise to a specific psychiatric disorder unaccompanied by physical injury that was the reasonably foreseeable consequence of a breach of duty on the part of the defendant, may lead to a finding of liability, provided the conditions laid down by Hamilton CJ in Kelly –v- Hennessy are met.
45. In considering what circumstances will amount to nervous shock in that context, one can begin by recalling that Brennan J, as he then was, in Jaensch –v- Coffey 155 CLR 549 said that psychiatric illness which was not induced by shock but by the experience of having to cope with bereavement did not entitle the injured person to damages. He gave the examples of the spouse worn down by caring for an injured wife or husband or the parent rendered distraught by the wayward conduct of a brain damaged child and who suffered psychiatric illness as a result. Even though the injury to spouse or child may have been the result of a tort, the affected spouse or parent will have no action in damages against the wrongdoer.
46. In Alcock, Lord Ackner said:
“Even though the risk of psychiatric illness is reasonably foreseeable, the law gives no damages if the psychiatric injury was not induced by shock. Psychiatric illnesses caused in other ways such as the experience of having to cope with the deprivation consequent upon the death of a loved one attracts no damages…
“Shock, in the context of this cause of action, involves the sudden appreciation by sight or sound of a horrifying event, which violently agitates the mind. It has yet to include psychiatric illness caused by the accumulation over a period of time of more gradual assaults on the nervous system”
47. The plaintiffs in Kelly –v- Hennessy, and McLoughlin –v- O’Brian each sustained “nervous shock” in the sense indicated by Lord Ackner and were held entitled to recover because the resultant psychiatric illness was the foreseeable consequence of the wrongdoing which brought about the shock. In the present case, there was no shock of that nature: no sudden perception of a frightening event or its immediate aftermath, disturbing the mind of the witness to such an extent that a recognisable psychiatric illness supervened. If the plaintiff is entitled to recover damages, it must be because such damages can be recovered in respect of a psychiatric disorder brought about otherwise than by “nervous shock”: in this case, by a combination of anger and anxiety which was the result of the plaintiff having been informed of his exposure to the risk of contracting mesothelioma because of his employers’ negligence.
48. This, as Geoghegan J points out, is uncharted territory for our courts. It has been argued in this case that there is no reason in principle why the law should differentiate between a psychiatric illness which is induced by nervous shock and one such as the plaintiff in the present case has suffered, where both are the foreseeable result of the wrongdoing of the defendants. That issue must be resolved by determining whether or not the extension of the law to permit the recovery of damages in cases such as the present should be excluded on policy grounds.
49. I would have no hesitation in rejecting the proposition that, in considering whether particular categories of negligence which have not hitherto been recognised by judicial decision should be so recognised, policy decisions should play no part. That doctrine, in its most extreme form, is to be found in the speech of Lord Scarman in McLoughlin –v- O’Brian. However, as the speech of Lord Edmund-Davies in the same case demonstrated, judges have for long invoked policy considerations in determining where the boundaries of legal liability for negligence should be fixed. Thus, in principle it would have been possible to extend liability for negligence far beyond the traditional ambit of wrongs causing personal injuries or physical damage to property: the ground for not extending liability to all forms of economic loss (save where caused by negligent misstatement) is the undesirability of courts extending the range of possible liability in so uncontrolled and indeterminate a manner without any legislative intervention. Thus, if Irish courts were to adopt the same approach to the law of tort in cases of economic loss as the English courts have more recently adopted, it would be because of policy considerations which outweigh what otherwise be seen as a principled development of the existing law. (As the decision of this court in Glencar Exploration Plc –v- Mayo County Council (2002) 1 ILRM 481 made clear, the question as to whether economic loss is recoverable in cases other than those of negligent misstatement and within the categories laid down in Siney –v- Dublin Corporation (1980) IR 400 and Ward –v- McMaster (1988) IR 337 still awaits authoritative resolution.)
The policy issues.
50. Before considering the policy arguments that arise in the present case, it is right to say that although, as I have already pointed out, the courts have for long approached cases of psychiatric disorder on the basis that illness of that nature can be as real, painful and disabling as physical injuries, that is not to say that there are not special considerations applicable to such cases which must be borne in mind when the broader policy arguments are being considered.
51. Thus, as I have already noted, the law, while recognising that damage in the form of a recognisable psychiatric disorder is compensatable, does not permit the recovery of damages for mental anguish or grief which results from a bereavement or injury to a member of one’s family caused by another’s wrong. It is clear, however, that grief or mental anguish of that nature can result in recognisable psychiatric illnesses such as a reactive depression, and, in the light of developments in psychiatric medicine in recent decades, it must surely be questionable whether the inflexible boundary drawn by the law between recognisable psychiatric conditions which are compensatable and grief or mental anguish, which is not, is entirely logical. The fact that the latter category is not compensatable is because the courts have adopted a pragmatic approach and have left it to the legislature to determine when, and to what extent, such undoubted suffering should be the subject of an award of damages.( As under s49 of the Civil Liability Act, 1961)
52. Secondly, it is an inescapable fact that, because psychiatric illness is frequently less susceptible to precise diagnosis, the courts may have to adopt a more circumspect approach to such cases. Thirdly, the phenomenon, familiar to all judges and practitioners who have been concerned in personal injury cases, that the prospect of compensation at a subtle and subconscious level does nothing to assist a plaintiff’s recovery from physical injury and may positively impede it, can arise even more acutely in cases of alleged psychiatric illness.
53. Again, as pointed out by Lord Steyn in his instructive discussion of the problem in White, the abolition or relaxation of the special rules governing the recovery of damages for psychiatric harm would greatly increase the class of person who can recover damages in tort and may result in a burden of liability on defendants disproportionate to the wrongful conduct involved. He cites the example of motorcar accidents with may involve a momentary lapse of concentration.
54. However, the policy arguments in the present case against a finding of liability for psychiatric injury are not confined to those factors or the so called “floodgates” factors, i.e., the possibility of the courts being swamped with trivial and unmeritorious claims, imposing particular strains on the legal system and making severe demands on judges who have to segregate serious claims from the trivial or even fraudulent. That is not to say that such considerations may not be important, but, in my view, there are specific policy considerations which, in the case of what can be conveniently catagorised as “fear of disease” cases, such as the present, argue even more powerfully against the imposition of liability.
55. There is first the undesirability of awarding damages to plaintiffs who have suffered no physical injury and whose psychiatric condition is solely due to an unfounded fear of contracting a particular disease. A person who prefers to rely on the ill informed comments of friends or acquaintances or inaccurate and sensational media reports rather than the considered view of an experienced physician should not be awarded damages by the law of tort. As McNulty J put it, delivering the judgment of the Appellate Court of Illinois in Majca –v- Beekil 682 NE 2D 253:
“Where hysterical fear of disease is sufficiently widespread, and popular knowledge concerning its etiology is limited, a plaintiff may foreseeably experience severe emotional distress without medically verifiable evidence of a substantially increased risk of contracting the disease. Most courts have held that recovery for fear of disease should not extend to such foreseeable fears, because, as commentators have noted, such broad recovery rewards ignorance about the disease and its causes.”
56. The second policy argument is closely related to that first consideration. It relates to the implications for the health care field of a more relaxed rule as to recovery for psychiatric illness which were summarised as follows by Baxter J giving the opinion of the majority of the Californian Supreme Court in Potter and Others –v- Firestone Tyre and Rubber Company 25 Cal Rptr 2d 550:
“Access to prescription drugs is likely to be impeded by allowing recovery of ‘fear of cancer’ damages in negligence cases without the imposition of a heightened threshold. To wit, thousands of drugs having no known harmful effects are currently being prescribed and utilised. New data about potentially harmful effects may not develop for years. If and when negative data are discovered and made public, however, one can expect numerous law suits to be filed by patients who currently have no physical injury or illness but who nonetheless fear the risk of adverse effects from the drugs they used. Unless meaningful restrictions are placed on this potential plaintiff class, the threat of numerous large, adverse monetary awards, coupled with the added cost of insuring against such liability (assuming insurance would be available) could diminish the availability of new, beneficial drugs or increase their price beyond the reach of those who need them most.”
57. It was also pointed out that there would also be serious implications for medical negligence cases grounded on the fear of the plaintiffs having contracted a disease as the result of having been prescribed a particular drug.
58. At an earlier point in this judgment, I expressed the view that the law would be in an unjust and anomalous state if a plaintiff who was medically advised that he would probably suffer from mesothelioma as a result of his negligent exposure to asbestos could not recover damages for a recognisable psychiatric illness which was the result of his being so informed. I am also satisfied, however, that in cases where there is no more than a very remote risk that he will contract the disease, recovery should not be allowed for such a psychiatric illness. That is because the policy considerations which I have summarised point clearly to the necessity for imposing some limitation on the number of potential claims which might otherwise come into being.
59. Claims for emotional distress arising out of exposure to asbestos came before the United States Supreme Court in Consolidated Rail Corporation –v- Gottshall 512 US 532, and Metro North Commuter Railroad Company –v- Michael Buckley 117 SCT 2113. In both cases, a majority of the court concluded that it was an essential precondition to the recovery of damages for emotional distress under the Federal Employers Liability Act that the plaintiff should have sustained a “physical impact” and that the plaintiff’s contact in each case with asbestos laden insulation dust did not constitute such a “physical impact”. Again, the majority of the court rested their conclusions on policy considerations, Breyer J observing in the latter case that:
“…the common law in this area does not examine the genuineness of emotional harm case by case. Rather, it has developed recovery permitting categories the contours of which more distantly reflect this, and other, abstract general policy concerns. The point of such categorisation is to deny courts the authority to undertake a case by case examination.”
60. A similar approach was adopted by the Supreme Court of Texas in Temple – Inland Forest Products Corporation –v- Carter and Another 993 SWR 2D. Delivering the unanimous judgment of the Court, Hecht J, having referred to Buckley, went on to say
“A person exposed to asbestos can certainly develop serious health problems, but he or she also may not. The difficulty in predicting whether exposure will cause any disease and if so, what disease and the long latency period characteristic of asbestos related diseases, make it very difficult for judges and juries to evaluate which exposure claims are serious and which are not. This difficulty in turn makes liability unpredictable, with some claims resulting in significant recovery while virtually indistinguishable claims are denied altogether. Some claimants would inevitably be over- compensated, when, in the course of time, it happens that they never develop the disease they feared, and others would be under compensated when it turns out that they developed a disease more serious even than they feared. Also, claims for exposure could proliferate because in our society, as the Supreme Court observed, ‘contacts, even extensive contacts, with serious carcinogens are common.’ Indeed, most Americans are daily subjected to toxic substances in the air they breathe and the food they eat. Suits for mental anguish damages caused by exposure that has not resulted in disease would compete with suits for manifest diseases for the legal system’s limited resources. If recovery were allowed in the absence of present disease, individuals might feel obliged to bring suit for such recovery prophylactically, against the possibility of future consequences from what is now an inchoate risk. This would exacerbate not only the multiplicity of suits but the unpredictability of results”.
Conclusions.
61. I am, accordingly, satisfied that the law in this jurisdiction should not be extended by the courts so as to allow the recovery by plaintiffs of damages for psychiatric injury resulting from an irrational fear of contracting a disease because of their negligent exposure to health risks by their employers, where the risk is characterised by their medical advisors as very remote.
62. I would add two final observations. First, we are not in this case concerned with the question as to whether an employer should be held liable where it is reasonably foreseeable that an employee might suffer a nervous breakdown because of the stress and pressures of his workload, an issue resolved in favour of the plaintiff by the English High Court in Walker –v- Northumberland County Council (1995) 1 All ER 737. Secondly, the claim of the plaintiff in the present case was grounded on breach of statutory duty in addition to common law negligence. It is clear, that in the absence of any specific statutory provision entitling the plaintiff to recover damages for psychiatric injury, the same principles as to liability must apply.
63. I would allow the appeal and substitute for the order of the High Court an order dismissing the plaintiff’s claim.
THE SUPREME COURT
No. 80/2002
Keane C.J.
Denham J.
Murray J.
Hardiman J.
Geoghegan J.
BETWEEN/
STEPHEN FLETCHER
Plaintiff/Respondent
and
THE COMMISSIONERS OF PUBLIC
WORKS IN IRELAND
Defendants/Appellants
JUDGMENT of Mr. Justice Geoghegan delivered the 21st day of February 2003.
Introduction
64. This appeal raises an important question which has not been considered by this court before, namely, whether and if so to what extent and subject to what limitations an action may lie in negligence where the sole injury for which damages are sought to be recovered is a psychiatric condition resulting from fear of contracting an illness (in this case asbestos related diseases) in the future as a consequence of the alleged negligent acts and omissions. It is conceded by the defendants/appellants that the plaintiff/respondent was negligently exposed to asbestos dust but the medical evidence was to the effect that the risk of contracting any serious or fatal disease as a consequence thereof is remote. Nevertheless it has been found as a fact by the trial judge that the plaintiff suffered from severe worry and anger which resulted in a psychiatric condition and the plaintiff has been awarded substantial damages.
65. I will return to it later in the judgment, but I should mention in passing at this stage that the plaintiff alleged that he had heard of a workmate, a Mr. O’Connor, contracting an asbestos related disease and, indeed, subsequently dying. It was never established in evidence what the illness of Mr. O’Connor was or the cause of his death. The medical advice which the plaintiff received was that the danger of contracting any disease as a consequence of this asbestos exposure was minimal and, therefore, objectively, at least, the extreme worry leading to psychiatric illness was irrational.
66. Questions of law obviously arise as to what in these circumstances was the duty of care, as to what relevant injury might be regarded as having been reasonably foreseeable and as to whether for public policy or other reasons the courts should regard the damage claimed in this case to be irrecoverable. The question of “control mechanisms” as they are often described in the case law arises not only in relation to the last question but also in relation to the duty of care and the question of foreseeability. That is a brief sketch of the legal issues involved. Obviously, I will return to them in due course but it is essential to treat first of the evidence which was before the High Court and the terms of the judgment of the trial judge.
The evidence and the judgment
67. In evidence the plaintiff described similar feelings of anxiety and annoyance as a consequence of his learning of his exposure to asbestos. When it began to dawn on him that he was working with asbestos he took legal advice because he had read articles about it. He also went to his GP, Dr. Coodavia. The doctor gave him tablets for anxiety. He later attended the psychiatrist, Dr. Griffin, and the respiratory surgeon, Professor Clancy. In answer to the question as to whether they had been able to give him any help he replied as follows:-
“They tell me not to be worried and all that, but then people – I know they are professional people, but when I go out the door, I am back to square one, so it doesn’t matter what they tell me. I was being exposed to asbestos in 85/86 and that’s in me mind.”
He was then asked what was his principal fear and he said “death”. He indicated that he tried to forget about his anxiety when he went to work and that at times his sleep was affected. His wife was not well and had to have a mastectomy and to some extent he blamed himself about this. He underwent a pulmonary function test and also psychiatric counselling. He accepted that Professor Clancy’s advice to him was that there was merely “a minimal risk of something”. He admitted he had no current disease. At p. 38 of the transcript of the first day O’Neill J., the trial judge, summed up the position in a question to Mr. Fletcher which I quote:-
“Q. Mr. Justice O’Neill: There is nothing wrong with you at the moment Mr. Fletcher, but you fear that there may be a risk that something may go wrong?
A. Yes, that is right.”
68. Mr. Fletcher admitted that he went to a solicitor first because after looking at television programmes about asbestos he thought he should get legal advice. Mr. Fletcher was cross-examined by Mr. McCullough on the basis that he appeared to have gone to Dr. Clancy before he went to his GP, Dr. Coodavia. Mr. Fletcher did not accept this. He thought that he might have heard in talk that Dr. Clancy was the expert. He admitted that Dr. Clancy had told him the risk was minimal. Dr. Clancy had told him that even though he was a non-smoker, passive smoking was more of a risk to him than the exposure to asbestos. Mr. Fletcher admitted that he might have first suggested that he needed psychiatric treatment. He also admitted to Mr. McCullough that Dr. Griffin, the psychiatrist, had also tried to explain to him that he should not really be worrying himself.
69. In evidence Professor Clancy said that there was virtually no risk in this case of asbestosis but there was the usual minimal risk of mesothelioma. Dr. Clancy accepted that as a matter of probability the fibres would have been inhaled. He said however that asbestosis depended on a fairly high exposure over a long time whereas mesothelioma was quite different. Even cursory exposure increases the risk so that it is not dose dependent. Dr. Clancy did not accept that all persons who are exposed to asbestos remained in similar anxiety. Some were heartened by optimistic advice given and others remained in a state of anxiety.
70. Dr. Griffin gave evidence that he thought that the plaintiff had been traumatised by the knowledge that he had worked in an undetected situation with asbestos and it was very difficult to reassure him about his future. He was asked in terms of psychiatric illness where he would put the plaintiff. His answer was that on both occasions on which he saw him he thought he was severely anxious and had suffered from anxiety neurosis or more correctly reactive anxiety neurosis. He said that that was a psychiatric illness. Dr. Griffin elaborated on that and said it would come within the international classification of psychiatric diseases. The plaintiff’s condition was moderate to severe. He had the usual feelings of anger and anxiety. Dr. Griffin said medication would be helpful in the form of an anti anxiety agent like “Lexotan”. In cross-examination it was put to Dr. Griffin that no amount of medical advice can displace the irrational anxiety it would seem. Dr. Griffin answered that he was not sure the anxiety was all that irrational. In other words, the plaintiff believed he had been exposed to asbestos and that in time he might develop asbestos related diseases or he might not and he carried that worry with him. Dr. Griffin told the learned trial judge that he thought the plaintiff was suffering constantly to some degree perhaps to a small degree and every now and then episodically he became acutely anxious and stressed. Dr. Griffin thought that this would be ongoing. The plaintiff could not be reassured on foot of the slight chance of disease. He still carried that worry and it was likely to remain in his mind indefinitely.
71. The judgment delivered by O’Neill J. on the 15th of June, 2001 reflected the detailed legal submissions which had been made to him by counsel on behalf of the appellants. The learned trial judge summed up the defendants’ case as argued as follows:-
“The defendants called no evidence and they made submissions on the following basis. Firstly, that the plaintiff’s anger and anxiety reaction, or that complex, was not caused by the exposure to asbestos dust itself but was, so to speak, caused by his exposure to the knowledge of it which he gained through the media in late 1996. They then, the defendants, rely upon the authority of the case of the CJD Litigation Group B v. The Medical Research Council 2000 Lloyds Reports, Medical Reports 161 to say the following:-
‘That the plaintiff is to be treated as a secondary victim in so far as this claim is concerned, and that he must, therefore, prove that he has been suffering from a recognised psychiatric illness that was foreseeable to the defendants at the time of the alleged wrong.
Secondly, that in a person of normal fortitude that the plaintiff’s bad reaction, that is to say his bad anxiety reaction, was not something that would have been foreseeable to the defendants at the relevant time’.”
72. The learned trial judge observed that that raised an issue of law which he found it unnecessary to resolve because, as he pointed out, essentially what counsel for the appellants was arguing was that the plaintiff should be regarded as being in the category of persons who would have to meet the tests laid down in Kelly v. Hennessy [1995] 3 IR 253. But the learned judge went on to express the view that it did not matter whether he was “a primary victim” or a “secondary victim” because in either case the relevant tests would have been satisfied. He said that the plaintiff had been suffering from a recognisable psychiatric illness and that that was brought about by the shock and upset that the plaintiff suffered as a result of his learning through the media “in the sensationalist way that that would have occurred” of the existence of his problem. O’Neill J. was satisfied that the actual problem itself was caused by the appellants’ “original omission”. The judge went on to say that any other view was unreal, that the essential ingredient in the development of the plaintiff’s illness i.e., his psychiatric illness was the exposure to the asbestos dust and not the exposure to the knowledge of it. The judge accepted that the plaintiff’s exposure to the knowledge of it was the trigger factor which started the complaint but that did not mean that the psychiatric illness did not arise from the exposure to the asbestos dust. The learned trial judge indicated that he was happy to assume that the plaintiff was in an analogous position to the plaintiff in Kelly v. Hennessy. In other words psychiatric illness was foreseeable and that that being so, the appellants owed the plaintiff a duty of care not to cause him a reasonably foreseeable injury. The judge laid emphasis on the fact that the appellants were the plaintiff’s employer.
73. O’Neill J. then went on to deal with the argument that in relation to foreseeability it is necessary to consider the position of a person of “normal fortitude”. The learned trial judge, however, took the view that it was reasonably foreseeable that a person of “normal fortitude” would suffer from the kind of anxiety described in the evidence and would develop the psychiatric condition proved. In this connection he seemed particularly to rely on the CJD case. The learned judge then said the following:-
“It was entirely foreseeable in my view that the plaintiff would learn of this condition at some stage from the media or some other source, probably in circumstances which would sensationalise the problem and cause him the kind of reaction which he unfortunately had suffered. I think that was foreseeable. I think it was also foreseeable that in somebody of ordinary fortitude, a normal person, in other words, which the plaintiff was, prior to these events, this would produce an anxiety reaction and that is precisely what happened.”
74. The plaintiff, in the view of the judge, had satisfied all the relevant tests whether he was to be treated as a primary victim or a secondary victim. O’Neill J. assessed general damages at IR£45,000 and added a further sum of special damages of £3,760.
The Law
75. The learned trial judge decided this case in favour of the plaintiff/respondent on the basis that the plaintiff in relation to his psychiatric injury had passed the test of “reasonable foreseeability”. There is no doubt that the passing of such a test was an essential requirement. But as is clear from all the leading cases in common law jurisdictions, “reasonable foreseeability” is not the only determining factor. Elements such as proximity (a concept given wide meaning in the case law), reasonableness in the imposition of a duty of care and public policy may all play a role. Furthermore, in the law of tort there is a double aspect to “reasonable foreseeability”. Foreseeability is relevant in considering whether there is a duty of care in the first instance and it again becomes relevant in considering, whether, assuming there was such a duty of care and a breach thereof, a particular item of damage alleged to have resulted is recoverable. Indeed, it would seem from the authorities that the test for each type of foreseeability is different. As was accepted by the learned trial judge, the test of foreseeability for the purposes of liability to a non-primary victim at least for psychiatric injury is based on a person of “normal fortitude”. However, when it would come to assessing damages and the application of reasonable foreseeability to items of damage, the “thin skull” principle would come into play.
76. In an ordinary motor accident or factories injury case or even indeed a medical negligence action the trial judge does not normally have to consider aspects of the tort of negligence other than reasonable foreseeability. The “neighbour” of a motorist for the purposes of negligence liability is the person whom it can be reasonably foreseen he may injure through the negligent use of a motor vehicle. It has always been considered reasonable that liability should arise in such circumstances and reasonable foreseeability and proximity become effectively merged. In the vast majority of negligence actions, therefore, a close analysis of the different constituents of the tort i.e. the duty of care, the breach of that duty and the damage which results is not necessary.
77. I now turn to consider the arguments made by Mr. Dermot Gleeson, S.C., counsel for the appellants at this appeal or more precisely to consider the question as to whether an award of damages ought to have been made at all if the trial judge had addressed his mind to the correct questions.
78. Mr. Gleeson’s primary submission was that these cases were governed by the decision in Kelly v. Hennessy cited above. In that case the plaintiff’s family had been involved in a serious car crash caused by the negligence of the defendant. The plaintiff’s husband and one of her daughters suffered permanent brain damage. The plaintiff had not been present at the accident but had learned of it by a telephone call. It was accepted that the plaintiff suffered as a consequence from post-traumatic distress disorder. It was held by this court that where a plaintiff came on the immediate aftermath of an accident either at the scene or in hospital involving a person with whom the plaintiff had a close relationship, a duty of care arose. But it had been argued before the court on behalf of the defendant that psychiatric illness was in a different category from physical injury and that damages could only be recovered for it in very limited circumstances. All three judges of the court were in agreement that damages were recoverable but the principal judgment was that of Hamilton C.J. with whom Egan J. agreed, Denham J. writing a separate judgment. In the judgment of Hamilton C.J. it was held that in order to recover damages for nervous shock a plaintiff must establish
(a) that he or she actually suffered a recognisable psychiatric illness;
(b) that such illness was shock induced;
(c) that the nervous shock was caused by the defendant’s act or omission;
(d) that the nervous shock sustained was by reason of actual or apprehended physical injury to the plaintiff or a person other than the plaintiff;
(e) that the defendant owed him or her a duty of care not to cause him or her a reasonably foreseeable injury in the form of nervous shock as opposed to personal injury in general.
79. Without necessarily endorsing the terminology “primary victim” and “secondary victim” which has received judicial and academic criticism, it is not entirely clear whether the judgment of Hamilton C.J. applies only to a so-called secondary victim or whether it applies to a claim for damages for psychiatric injury only brought by any victim whether primary or secondary. It must be remembered that the plaintiff in that case was a so called secondary victim and, indeed, that terminology is used in the judgment of Denham J. Furthermore, Hamilton C.J. when laying down the principle that a plaintiff must establish that his or her recognisable psychiatric illness was “shock-induced” relied for support on passages contained in a judgment of Brennan J. (as he then was) in the Australian High Court case of Jaensh v. Coffey (1984) 155 C.L.R. 549 in which that learned judge said as follows:-
“A plaintiff may recover only if the psychiatric illness is the result of physical injury inflicted on him by the defendant or if it is induced by shock. Psychiatric illness caused in other ways attracts no damages, though it is reasonably foreseeable that psychiatric illness might be a consequence of the defendant’s carelessness.”
80. The former Chief Justice, however, then goes on to cite two examples which Brennan J. gave in support of that proposition, the relevant passages reading as follows:-
“The spouse who is being worn down by caring for a tortiously injured husband or wife and who suffers psychiatric illness as a result goes without compensation: a parent made distraught by the wayward conduct of a brain damaged child and who suffers psychiatric illness as a result has no claim against the tortfeasor liable to the child.”
81. The two examples given clearly relate to so called secondary victims. But whereas Mr. Gleeson’s main argument is that Kelly v. Hennessy governs all claims for psychiatric damage he makes the fallback argument that even if he were wrong about that, all five respondents on this appeal were “secondary victims” in the sense that their psychiatric conditions arose from anxieties which in turn were sparked off not, as he would argue, from the exposure to asbestos but from learning of the exposure to asbestos and the possible dangers therefrom. With reference to Kelly v. Hennessy also, Mr. Gleeson says that the psychiatric condition in these cases was not “nervous shock” within the meaning of Kelly v. Hennessy in that it did not arise out of some trauma and secondly, that even if such psychiatric condition could ever be characterised as “nervous shock” within the meaning of the case law it was not reasonably foreseeable as being wholly irrational. His argument on irrationality has a second leg to it also. Quite apart from arguing that having regard to the medical advice as to a minimal risk, the irrational worry leading to a psychiatric injury could not have been reasonably foreseen, he says that even if it could have been reasonably foreseen, as a matter of policy, the court should not award damages for irrationality, or alternatively the courts should hold that to permit the recovery of such damages would be unreasonable.
82. I take the view that Kelly v. Hennessy does not govern these appeals. Whether one adopts the wider or narrower interpretation of Kelly v. Hennessy to which I have already referred, the decision should only be taken to relate to accident damage. Given that the courts in all common law jurisdictions have always shown caution in relation to the circumstances in which damages for psychiatric injury can be recovered it is important to consider each kind of liability situation separately. Cases of a mother suffering from great shock on learning that her child has been killed in an accident have almost no factual connection with cases involving fear of disease not actually contracted arising from negligent exposure to such disease. Unless one puts all psychiatric injury on an exact par with all physical injury it makes little or no sense to regard these two examples as being analogous to one another in any relevant way.
83. That being my view, I consider that this court is into virgin territory and that it must consider unguided by any Irish precedent whether damages were properly recoverable in this case. For this purpose I think it helpful to review a number of authorities cited in the appeals, not necessarily on the basis that they give direct guidance in these cases as many of them are more like Kelly v. Hennessy but rather because of the recognition shown by judges in those cases of the necessity for control mechanisms in relation to the recovery of damages for psychiatric disease. I will also be referring to a small number of cases involving fear of illness and, therefore, directly in point, but it is fair to say that they are of limited assistance only.
84. The Irish courts historically took a progressive attitude to psychiatric illness and did so at a time when it would have been treated in many quarters with some scepticism. In Bell v. the Great Northern Railway Company of Ireland (1890) 26 LR Ir 428 the plaintiff had been a passenger in an excursion train when the train proved to be too heavy to be carried by the engine up an incline and was divided by the railway company’s staff, the carriage occupied by the plaintiff remaining attached to the engine. The dislodged part of the train descended the incline with great speed and then the engine was reversed with the remaining carriages in which the plaintiff was seated attached but it also went down at a higher speed and stopped with a violent jerk. The plaintiff suffered great fright and nervous shock as a consequence. The case had been heard by a judge and jury and the judge had charged the jury that if great fright was in their opinion a reasonable and natural consequence of the circumstances in which defendants had placed the plaintiff and she was actually put in fright by these circumstances and if injury to her health was, in their opinion, a reasonable and natural consequence of such fright and was actually occasioned thereby, damages for such injury would not be too remote and might be given for them. A court of three judges in the Exchequer Division presided over by Palles C.B. held that the trial judge had correctly instructed the jury on the liability of the defendants. In so holding, the court followed an earlier decision in 1884 of the Irish Court of Appeal (unreported) in the case of Byrne v. Great Southern and Western Railway Co. of Ireland and refused to follow a Privy Council decision to the opposite effect in the Victorian Railway Commissioners v. Coultas 13 App Cas 222. The Bell case has been regarded as seminal and has been cited in subsequent Irish, English and Australian courts. It should be noted in passing, however, that it is a clear case of nervous shock directly arising from a particular incident involving trauma.
85. The next Irish case of any real significance in relation to damages for psychiatric injury was Mullally v. Bus Éireann [1992] ILRM 722. In that case Denham J. followed Bell v. The Great Northern Railway Company of Ireland and held in what was clearly a so called “secondary victim” case, that the shock arose from aftermath news of injury involving the plaintiff’s family, that the bus company’s duty of care extended to injuries which were reasonably foreseeable and that this psychiatric illness caused by nervous shock was itself reasonably foreseeable and damages for it could be recoverable. That again is an accident case analogous to Kelly v. Hennessy. The decision of Denham J. corresponds with the recognised line of authorities in other common law jurisdictions treating of nervous shock. Denham J. did not go into the more general question of whether and in what circumstances there were limits on the recovery of damages for psychiatric injuries. She did, however, refer to McLoughlin v. O’Brian [1982] 2 All ER 298 and in particular to the speech of Lord Bridge of Harwich in that case. I will be returning to it in due course.
86. What does emerge from the English and Australian authorities and, indeed, U.S.A. cases is that there are control mechanisms which the courts apply to actions for damages for psychiatric conditions and for that reason, I intend to consider five cited English and Australian cases in chronological order for their relevance on the general principles to be applied even though they are not “fear of disease” cases.
87. The first of these is McLoughlin v. O’Brian already referred to. That was a case where the House of Lords reversed the English Court of Appeal and allowed the plaintiff to recover damages in the following circumstances. The plaintiff’s husband and three children had been involved in a motor accident when their car was in collision with a lorry driven by one defendant and owned by the other. The plaintiff, who was at home at the time two miles away was told of the accident two hours after it happened by a neighbour who took her to hospital to see her family. When she arrived she learned that her youngest daughter had been killed and saw her husband and the other children and the severe injuries caused. She claimed that the impact of what she heard and saw caused her severe shock resulting in psychiatric illness. It is clear that in that case there was evidence that the plaintiff was suffering from depression and change of personality affecting her abilities as a wife and mother. The trial judge dismissed the action on the grounds that the defendants owed no duty of care to the plaintiff because the possibility of her suffering injury by nervous shock in the circumstances had not been reasonably foreseeable. The Court of Appeal affirmed that decision but on a quite different basis. The appellate court held that although it was reasonably foreseeable that injury by shock would be caused to a wife and mother in the position of the plaintiff, it was settled law that the duty of care that was owed by the driver of a vehicle was limited to persons or owners of property at or near the scene of an accident and directly affected by his negligence, that considerations of public policy limited the duty of care in that way and did not require it to be extended and that accordingly, since the plaintiff had been two miles from the accident and had not learned of it or seen its consequences until two hours later, she was not entitled to recover damages for nervous shock. That basis of the Court of Appeal’s decision is important for the purposes of understanding the ultimate decision by the House of Lords. The House of Lords allowed the appeal agreeing with the Court of Appeal that the nervous shock would have been reasonably foreseeable but disagreeing that policy considerations should be applied so as to deny a duty of care and that, accordingly, the plaintiff was entitled to recover. It is important and relevant however to consider the principles which their Lordships recognised as existing in arriving at their decision. Lord Wilberforce came to the conclusion on the facts of that case that the plaintiff fell within the boundaries of the law so drawn and that she was entitled to succeed. But what is important, for the purposes of these appeals is that he made it quite clear that in psychiatric claims control mechanisms were necessary in determining the limits of a duty of care and the limits of the types of damage recoverable. He said this at the bottom of p. 421:
“But, these discounts accepted, there remains, in my opinion, just because ‘shock’ in its nature is capable of affecting so wide a range of people a real need for the law to place some limitation upon the extent of admissible claims. It is necessary to consider three elements inherent in any claim: the class of persons whose claims should be recognised; the proximity of such persons to the accident; and the means by which the shock is caused. As regards the class of persons, the possible range is between the closest of family ties – of parent and child, or husband and wife – and the ordinary bystander. Existing law recognises the claims of the first: it denies that of the second, either on the basis that such persons must be assumed to be possessed of fortitude sufficient to enable them to endure the calamities of modern life, or that defendants cannot be expected to compensate the world at large. In my opinion, these positions are justifiable, and since the present case falls within the first class, it is strictly unnecessary to say more. I think, however, that it should follow that other cases involving less close relationships must be very carefully scrutinised, I cannot say that they should never be admitted. The closer the tie (not merely in relationship, but in care) the greater the claim for consideration. The claim, in any case, has to be judged in the light of the other factors, such as proximity to the scene in time and place, and the nature of the accident.”
88. While obviously some of that passage is directly relevant to the facts of that case involving psychiatric injury arising out of an accident to somebody who was not at the scene of the accident, its relevance to this appeal is the acknowledgment by Lord Wilberforce that control mechanisms (an expression not used by him but used in other cases) are necessary in this area. In an earlier part of his speech at p. 420 he referred to the two judgments delivered in the Court of Appeal. He pointed out that Stephenson LJ had considered that the defendants owed a duty of care to the plaintiff, but that for reasons of policy the law should stop short of giving her damages: it should limit relief to those on or near the highway, at or near the time of the accident caused by the defendant’s negligence. Griffiths LJ on the other hand had taken the view that although the injury to the plaintiff was foreseeable there was no duty of care. In his view the duty of care of drivers of motor vehicles was, according to decided cases, limited to persons and owners of property on the road or near to it who might be directly affected and the line should be drawn at this point. It is quite clear from Lord Wilberforce’s next remarks that he was not querying either the view of Stepehenson LJ that in some cases reasons of policy may deny a plaintiff a remedy nor the view of Griffiths LJ that in some cases notwithstanding foreseeability there may be no duty of care. Indeed, he expressly said that he was impressed by both of those arguments but he then went on to make a pertinent observation.
“Though differing in expression, in the end, in my opinion, the two presentations rest upon a common principle, namely that, at the margin, the boundaries of a man’s responsibility for acts of negligence have to be fixed as a matter of policy. Whatever is the correct jurisprudential analysis, it does not make any essential difference whether one says, with Stephenson LJ, that there is a duty but, as a matter of policy, the consequences of breach of it ought to be limited at a certain point, or whether, with Griffiths LJ, one says that the fact that consequences may be foreseeable does not automatically impose a duty of care, does not do so in fact where policy indicates the contrary. This is an approach which one can see very clearly from the way in which Lord Atkin stated the neighbour principle in Donoghue v. Stevenson [1932] AC 562, 580:
‘Persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected …’
This is saying that foreseeability must be accompanied and limited by the law’s judgment as to persons who ought, according to its standards of value or justice, to have been in contemplation. Foreseeability, which involves a hypothetical person, looking with hindsight at an event which has occurred, is a formula adopted by English law, not merely for defining, but also for limiting, the persons to whom the duty may be owed and the consequences for which an actor may be held responsible. It is not merely an issue of fact to be left to be found as such. When it is said to result in a duty of care being owed to a person or class the statement that there is a duty of care denotes a conclusion into the forming of which considerations of policy have entered. That foreseeability does not of itself, and automatically, lead to a duty of care is I think, clear”.
89. Lord Wilberforce then cites some cases in which that principle is made clear and he refers in particular to a dictum of Lord Reid in McKew v. Holland and Hannen & Cubitts (Scotland) Limited [1969] 3 All ER 1621, 1623:
“A defender is not liable for the consequence of a kind which is not foreseeable. But it does not follow that he is liable for every consequence which a reasonable man could foresee.”
90. Lord Edmund-Davies while likewise rejecting the view of the Court of Appeal that policy considerations should deny recovery by the plaintiff nevertheless went on in strident terms to disagree with the opinion of Lord Bridge of Harwich in the same case where the latter doubted that any regard should have been had to policy considerations by the Court of Appeal. Lord Edmund-Davies was firmly of the view that reasonable foreseeability was not the only test of the validity of a claim brought in negligence. The question of the existence of a duty of care could involve policy questions also. While agreeing that any invocation of public policy calls for the closest scrutiny that does not mean that it should not be invoked to deny a duty of care or a heading of damage in particular cases. He cited with approval the words of MacDonald J. in Nova Mink Limited v. Trans Canada Airlines [1951] 2 D.L.R. 241-256:
“There is always a large element of judicial policy and social expediency involved in the determination of the duty-problem however it may be obscured by the use of tradition or formulae.”
Lord Edmund-Davies went on to say the following:
‘I accordingly hold, as Griffiths LJ. … did, that ‘the test of foreseeability is not a universal touchstone to determine the extent of liability for the consequences of wrongdoing’.
Authority for that proposition is both ample in quantity and exalted in status.”
91. Lord Russell of Killowen in a short speech made it clear that he “would not shrink from regarding in an appropriate case policy as something which may feature in a judicial decision”, but he did not think the policy considerations should prevent the plaintiff succeeding in that case.
92. I do not find it necessary to review the opinions of Lord Scarman and Lord Bridge, both of whom in their own different ways were more sceptical as to the legitimacy of introducing policy considerations at all, but it must be remembered that even in their case these views were being expressed in the context of a nervous shock case where a plaintiff was not at the scene of an accident. They were not making observations that could be remotely relevant to a “fear of disease” case.
93. The next case in sequence is Jaensch v. Coffey already cited. This was an Australian case heavily relied on by Hamilton C.J. in his judgment in Kelly v. Hennessy cited above. In the Jaensch case a motor cyclist had suffered serious injury in a collision with a vehicle which was being driven negligently. His wife was not at the scene of the accident but saw him in hospital where the staff told her he was “pretty bad”. The following day she was told that he was in intensive care and shortly thereafter that he had had a change for the worse. She was asked to come to the hospital as quickly as possible. In the event the husband survived but the wife brought an action for nervous shock. The High Court of Australia held on the facts that there was a duty of care and that the plaintiff was entitled to succeed. As in the McLoughlin case however, although in no sense is this case closely analogous to a “fear of disease” case, there are general principles of tort law stated in the judgments which are relevant. Gibbs CJ in his judgment pointed out that foreseeability is relevant to three different questions that may arise in an action for negligence – “whether there was a duty of care; if so, whether the defendant was negligent; and whether the defendant was liable for the kind of damage that resulted from the negligence” and he pointed out that this sometimes leads to confusion. The learned Chief Justice expressly agreed with the views of Lord Wilberforce in the McLoughlin case that foreseeability cannot be the sole criterion for the existence of a duty of care. There may also be considerations which ought to negative or reduce or limit the scope of the duty or the class of person to whom it is owed or the damages to which a breach of it may give rise. Gibbs C.J. said that this was clearly in line with Australian law and he referred to a judgment of Mason J. in Wyong Shire Council v. Shirt (1980) 146 C.L.R. 40 at p. 44. In adverting to the fact that there was a difference of opinion between the Law Lords in McLoughlin v. O’Brian as to the part played by policy in the formulation of the rule governing the recovery of damages for nervous shock Gibbs CJ made it clear that in his opinion, the view of Lord Wilberforce was “realistic and correct”. He referred to the passage where Lord Wilberforce said that “foreseeability must be accompanied and limited by the law’s judgment as to persons who ought, according to its standards or value or justice, to have been in contemplation.”
94. I would express the view in passing at this stage, though I will obviously be returning to it, that if policy considerations are relevant in considering the extent of a duty of care in “nervous shock” cases arising out of accidents or traumas, such considerations would seem to be all the more necessary in the much vaguer cases where a condition considered psychiatric by the medical profession has arisen merely from worry that a disease might be contracted.
95. In considering the principle that reasonable foreseeability is separate from or at the very least only one element in the question of the existence of a duty of care, I have found particularly helpful the analysis by Deane J. in his judgment in the Jaensch case. In rather colourful language he pointed out that the common law duty to a “neighbour” had “scant in common with its new testament equivalent; both priest and Levite ensured performance of any common law duty of care to the stricken traveller when, by crossing to the other side of the road, they avoided any risk of throwing up dust in his wound” … in Donoghue v. Stevenson, the common law duty of care was defined, for the purposes of the law of negligence, as the duty to take reasonable care when it can be reasonably foreseen that one’s ‘acts or omissions’ are likely to injure one’s ‘neighbour’. A ‘neighbour’ was identified as being in the view of the common law, a person who is ‘so closely and directly affected by my act that I ought reasonably to have him in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question”. The learned judge goes on to point out that under Lord Atkins’ test there was an important proximity requirement “that constituted an overriding control of the test of reasonable foreseeability in the law of negligence” and that it was clear that the notion of proximity was not confined to mere physical proximity. Later on in his judgment Deane J. points out that the fact that as a practical matter any separate requirement of proximity i.e., separate from reasonable foreseeability is commonly disregarded does not mean that it does not exist as a matter of principle. The ordinary negligence cases which are heard day in, day out do not involve any analysis by the trial judge of the distinction between proximity and reasonable foreseeability. A passage at the top of p. 583 of the judgment of Deane J. is, I think, relevant to these appeals.
“It is not and never has been the common law that the reasonable foreseeability of risk of injury to another automatically means that there is a duty to take reasonable care with regard to that risk of injury … Reasonable foreseeability on its own indicates no more than that such a duty of care will exist if, and to the extent that, it is not precluded or modified by some applicable overriding requirement or limitation. It is to do little more than to state a truism to say that the essential function of such requirements or limitations is to confine the existence of a duty to take reasonable care to avoid reasonably foreseeable injury to the circumstances or classes of case in which it is the policy of the law to admit it.”
96. A number of cases are cited in support of these propositions including well known cases such as Rondel v. Worsley [1969] 1 AC 191 and Hedley Byrne and Co. Limited v. Heller and Partners Limited [1964] AC 465.”
97. Towards the bottom of p. 592 of the judgment Deane J. makes this pertinent observation:
“Unless one is to mutilate reasonable foreseeability to accord with operative but concealed considerations of policy, it must be acknowledged that the decided cases strongly support the view that the requirement of a relationship of proximity operates to impose particular criteria which must be satisfied by a plaintiff before a duty of care in respect of a reasonably foreseeable injury in the form of nervous shock will be held to have arisen in her or his favour.”
98. That passage is relevant to these appeals because in my view, it was perfectly open to each of the trial judges to have found as they did, that the anxiety condition labelled by the medical profession as “psychiatric” arising from the worry of contracting asbestos disease was reasonably foreseeable notwithstanding medical advice to the effect that the risk of contracting such disease was minimal. To that extent, I would reject the arguments put forward by counsel for the appellants that in any sense the injuries in these cases must necessarily have been regarded as unforeseeable. But as Deane J. and other judges have pointed out this does not necessarily mean that there was a duty of care. At p. 604 of the judgment Deane J. observes as follows:
“Once mere psychiatric injury is accepted as sounding in damages for the purposes of the law of negligence and as being, in an appropriate case, reasonably foreseeable in the relevant sense, the duty of care in respect of a foreseeable risk of mere psychiatric injury is an independent and primary duty owed to the person at risk of such injury.”
99. In his judgment in the same case Brennan J. at p. 564 sets out what he sees are the limits to actions for the recovery of damages for psychiatric illness. He said the following:
“A broadening of the test of foreseeability and a readier judicial acceptance of the foreseeability of shock induced psychiatric illness had combined to expand the scope of a defendant’s liability beyond what it was thought to be half a century ago. Liability for negligence occasioning nervous shock has not been readily accepted, perhaps because the courts found evidence of psychiatric illness and of its aetiology to be too vague to warrant a finding of a causal relationship between psychiatric illness and careless conduct. Curial wariness of vague notions is as Sir Owen Dickson said, perhaps the ‘reason that scorn of the law is more widespread among psychiatrists than anatomists’: Jesting Pilate (1965), p. 18. The courts have insisted on proof of a demonstrable and readily appreciable cause of psychiatric illness – the cause itself being a result of the defendant’s careless conduct – before damages for negligence occasioning psychiatric illness are awarded. A plaintiff may recover only if the psychiatric illness is the result of physical injury negligently inflicted on him by the defendant or if it is induced by ‘shock’. Psychiatric illness caused in other ways attracts no damages, though it is reasonably foreseeable that psychiatric illness might be a consequence of the defendant’s carelessness. The spouse who has been worn down by caring for a tortiously injured husband or wife and who suffers psychiatric illness as a result goes without compensation; a parent made distraught by the wayward conduct of a brain damaged child and who suffers psychiatric illness as a result has no claim against the tortfeasor liable to the child.”
Later on in the judgment Brennan J. points out that a psychiatric illness induced by mere knowledge of a distressing fact is not compensatable.
100. What clearly emerges from the judgments in that case is that the control mechanism applied in the case of actions for pure psychiatric damage is that that particular kind of damage must have been reasonably foreseen. This is in line with the judgment of this court in Kelly v. Hennessy.
101. The next case in sequence is Alcock v. Chief Constable of South Yorkshire Police [1992] 1 AC 310. In that case the defendant was responsible for the policing of a football match at which because of overcrowding ninety-five people died and many others sustained crushing injuries. Live pictures of the disaster could be seen on television. The plaintiffs were all related to or friends of spectators. Some witnessed the events from other parts of the stadium, one saw them on television and went to search for his missing son and others were at home watching the events or heard of them from friends or through radio reports but only later saw recorded pictures. All of these plaintiffs claimed damages for nervous shock. They all claimed that they had sustained psychiatric illness as a consequence of the shock. At the trial nine of the plaintiffs who were either parents, spouses or siblings of the victims and who were eye witnesses of the disaster or who saw it live on television were held to be entitled to damages. The remaining six were excluded. The Court of Appeal held that none of the plaintiffs were entitled to succeed. There was then a further appeal to the House of Lords which was dismissed. It was held by the House of Lords that in order to establish a claim in respect of psychiatric illness “resulting from shock” it was necessary to show that the relationship between the plaintiff and the defendant was sufficiently proximate; that the class of persons to whom a duty of care was owed as being sufficiently proximate was not limited by reference to particular relationships such as husband and wife or parent and child but was based on ties of love and affection, the closeness of which would need to be proved in each case; and that a plaintiff also had to show propinquity in time and space to the accident or its immediate aftermath, and that in the cases of the plaintiffs who had been present at the match the mere fact that the relationship was shown was insufficient to give rise to a duty of care that the viewing of the disaster on television could not be said to be equivalent to being within sight and hearing of the event or its immediate aftermath and that, accordingly, the plaintiffs’ claims failed.
102. I am referring to this case only for the purposes of again eliciting some general principles that might be applicable to other cases in which claims are made for psychiatric damage. As has been pointed out in later cases there are great problems arising out of the actual decision and I am not in any way intending either to approve or disapprove of it. The idea that as between siblings the plaintiff would have to prove special love and affection for the brother or sister in question with that perhaps being hotly opposed in cross-examination is certainly not a desirable vista, if it could be avoided in other ways. There are, however, relevant general principles referred to in the speeches of the law lords. Lord Ackner, for instance, clearly accepts the general principle “the application simpliciter of the reasonable foreseeability test is, today, far from being operative”. He goes on at p. 400 to set out principles which may not be entirely consistent with the later House of Lords decision in Page v. Smith [1996] 1 AC 155 which itself has been criticised and to which I will refer. But whether one accepts them in full or not I think it helpful to set them out as stated by Lord Ackner because they highlight factors which this court might have to consider in determining whether there was a duty of care in the quite different circumstances of these appeals. The five principles as set out are as follows:
“(1) Even though the risk of psychiatric illness is reasonably foreseeable, the law gives no damages if the psychiatric injury was not induced by shock. Psychiatric illness caused in other ways, such as by the experience of having to cope with the deprivation consequent upon the death of a loved one, attracts no damages. Brennan J. in Jaensch v. Coffey 155 C.L.R. 549, 569 gave as examples, the spouse who has been worn down for caring for a tortuously injured husband or wife and who suffer psychiatric illness as a result, but who, nevertheless, goes without compensation; a parent made distraught by the wayward conduct of a brain damaged child and who suffers psychiatric illness as a result also has no claim against the tortfeasor liable to the child.
(2) Even where the nervous shock and the subsequent psychiatric illness caused by it could both have been reasonably foreseen, it has been generally accepted that damages for merely being informed of, or reading, or hearing about the accident are not recoverable. In Bourhill v. Young [1943] AC 92, 103 Lord MacMillan only recognised the action as lying where the injury by shock was sustained ‘through the medium of the eye or the ear without direct contact’. Certainly, Brennan J. in his judgment in Jaensch v. Coffey recognised:
‘A psychiatric illness induced by mere knowledge of a distressing fact is not compensatable; perception by the plaintiff of the distressing phenomenon is essential’…
(3) Mere mental suffering, although reasonably foreseeable, if unaccompanied by physical injury, is not a basis for a claim for damages……
(4) As yet there is no authority establishing that there is liability on the part of the injured person, his or her estate, for mere psychiatric injury which was sustained by another by reason of shock, as a result of a self-inflicted death, injury or peril of the negligent person, in circumstances where the risk of such psychiatric injury was reasonably foreseeable. On the basis that there must be a limit at some reasonable point to the extent of the duty of care owed to third parties which rests upon everyone in all his actions, Lord Robinson, the Lord Ordinary, in his judgment in the Bourhill case … did not view with favour the suggestion that a negligent window cleaner who loses his grip and falls from a height impaling himself on spike railings would be liable for the shock induced psychiatric illness occasioned to a pregnant woman looking out of the window of a house situated on the opposite side of the street.
(5) ‘Shock’, in the context of this cause of action involves the sudden appreciation by sight or sound of a horrifying event, which violently agitates the mind. It has yet to include psychiatric illness caused by the accumulation over a period of time of more gradual assaults on the nervous system.”
103. I find the last of those principles particularly instructive. There is no doubt that in a “fear of disease” case particularly when the disease is most unlikely to occur, psychiatric illness caused in such circumstances cannot be said to have arisen suddenly.
104. The speech of Lord Oliver of Aylmerton is mainly of importance in the developing law in this area because of his introduction of the distinction between primary and secondary victims. For the purposes of these appeals that distinction is of little importance, but a passage from Lord Oliver’s speech at the bottom of p. 409 of the report has some relevance and is worth quoting. It reads as follows:
“Beyond this, however, the law in general provides no remedy, however severe the consequences of the distress or grief may be to the health or wellbeing of the third party and however close his relationship to the victim. I doubt whether the reason for this can be found by an appeal to logic, for there is, on the face of it, no readily discernible logical reason why he who carelessly inflicts an injury upon another should not be held responsible for its inevitable consequences, not only to him who may conveniently be termed ‘the primary victim’ but to others who suffer as a result. It cannot, I think, be accounted for by saying that such consequences cannot reasonably be foreseen. It is readily foreseeable that very real and easily ascertainable injury is likely to result to those dependent upon the primary victim or those upon whom as a result of negligently inflicted injury the primary victim himself becomes dependent.”
105. While that passage was intended to refer to the compensation which might be recoverable by a so called “secondary victim”, a similar pragmatism may in other circumstances also render unavailable a remedy to recover damages for ill-effects of negligent conduct. For instance, there is no action for distress, worry or anxiety as such. There must at the very least be a recognised psychiatric condition. For reasons which I will elaborate on, I do not accept that in all circumstances, feelings which result in psychiatric disease necessarily by that reason alone give rise to an actionable claim for damages. The judgment of Lord Oliver highlights the usual problem already referred to by Lord Wilberforce in the McLoughlin case that what I might describe as a hidden agenda of “policy” can be buried in concepts of proximity or foreseeability or indeed be not buried at all but appear free standing. In setting the bounds for the so-called “secondary victim” cases Lord Oliver, although choosing the “proximity” route is forced to admit at the middle of p. 411 that the concept of proximity is “an artificial one which depends more on the court’s perception of what is the reasonable area for the imposition of liability than upon any logical process of analogical deduction.”
106. At p. 418 of the speech Lord Oliver comes down firmly in favour of policy in each individual case determining whether a duty of care arose or not in a secondary victim case. He, again, pointed out that logic cannot determine it because there is no logic in the lines which the courts have drawn. Once again, therefore, the importance of pragmatism and policy raises its head in the law of tort.
107. There is nothing in the other speeches which requires comment and I move now to the fourth of the five cases which I am reviewing. This is a case heavily relied on by counsel for the respondents, Mr. Sweetman. It is Page v. Smith [1996] 1 AC 155. The case involved a so-called “primary victim”. It was an ordinary running down action, but the plaintiff suffered no physical injury. Three hours after the accident, however, the plaintiff felt exhausted and that exhaustion continued. Prior to the accident the plaintiff had been suffering from a chronic fatigue syndrome and he claimed that as a result of the accident that condition had become chronic and permanent when it had been spasmodic. The plaintiff recovered damages in the High Court but this judgment was set aside by the Court of Appeal on the grounds that the injury was not reasonably foreseeable. There was then a further appeal to the House of Lords and it was held (Lord Keith of Kinkel and Lord Jauncey of Tullichettle dissenting) that once it was established that the defendant was under a duty of care to avoid causing personal injury to the plaintiff, it did not matter whether the injury in fact sustained was physical, psychiatric or both. Applying that test it was sufficient to ask whether the defendants should have reasonably foreseen that the plaintiff might suffer personal injury so as to bring him within the ambit of the duty of care. It was unnecessary to consider whether the defendant should reasonably have foreseen injury by shock.
108. This statement of law (if correct) could be helpful to the respondents only if they first establish a duty of care. Even if I came to the conclusion that the relevant question in this case was not was there a duty of care to prevent the kind of damage claimed but rather was damage of that kind recoverable for breach of such a duty of care, I would still be of opinion that the respondents in this case would not be able to rely to any great extent on Page v. Smith. There is a world of a difference between direct injury resulting from a motor accident in which the plaintiff was involved on the one hand and a condition of anxiety emerging from information being gained as to the possible effects of negligent exposure over a long period of time to asbestos or the other. The views of the majority of the Law Lords and particularly of Lord Lloyd of Berwick in Page v. Smith are highly controversial and have been sharply criticised by Lord Goff of Chievley in the fifth case to which I will be referring. But even if the majority decision in Page v. Smith is in line with the law in this jurisdiction, I do not think that it is relevant to the wholly different set of circumstances in which these appellants were involved. It is quite clear at any rate that the only substantial issue in Page v. Smith and the issue on which there was disagreement between the Law Lords was whether in the case of a primary victim claiming for psychiatric injury it was necessary to prove that such psychiatric injury was foreseeable or whether it was merely necessary to prove that some injuries were foreseeable. I have already expressed the view that I can find no fault in the findings of the respective trial judges to the effect that psychiatric disease in these cases was reasonable foreseeable. Therefore, nothing turns in these appeals on the issues in dispute in Page v. Smith. There is one passage in the speech of Lord Lloyd however which is worth quoting. It is at p. 189 of the report and reads as follows:-
“Are there any disadvantages in taking the simple approach adopted by Otton J.? It may be said that it would open the door too wide, and encourage bogus claims. As for opening the door, this is a very important consideration in claims by secondary victims. It is for this reason that the courts have as a matter of policy rightly insisted on a number of control mechanisms. Otherwise, a negligent defendant might find himself being made liable to all the world. Thus in the case of secondary victims foreseeability of injury by shock is not enough.”
109. Mr. Gleeson has argued that the respondents in these cases are secondary victims, and that is why I cite that passage. Towards the end of his judgment at p. 197 Lord Lloyd says the following:
“In conclusion, the following propositions can be supported.
1. In cases involving nervous shock, it is essential to distinguish between the primary victim and secondary victims.
2. In claims by secondary victims the law insists on certain control mechanisms, in order as a matter of policy to limit the number of potential claimants. Thus the defendant will not be liable unless psychiatric injury is foreseeable in a person of normal fortitude. These control mechanisms have no place where the plaintiff is the primary victim.
3. In claims by secondary victims, it may be legitimate to use hindsight in order to be able to apply the test of reasonable foreseeability at all. Hindsight however has no part to play where the plaintiff is the primary victim.
4. Subject to the above qualifications, the approach in all cases should be the same, namely, whether the defendant can reasonably foresee that his conduct will expose the plaintiff to the risk of personal injury whether physical or psychiatric. If the answer is yes then the duty of care is established, even though physical injury does not in fact occur. There is no justification for regarding physical and psychiatric injury as different ‘kinds of damage’.
5. A defendant who is under a duty of care to the plaintiff whether as primary or secondary victim is not liable for damages for nervous shock unless the shock results in some recognised psychiatric illness. It is no answer that the plaintiff was predisposed to psychiatric illness nor is it relevant that the illness takes a rare form or is of unusual severity. The defendant must take his victim as he finds him.”
110. It is understandable that Mr. John Sweetman, S.C. counsel for the plaintiff/respondent should seek to find comfort in these statements of principle. But in my view they have little relevance to the issues involved in these appeals. First of all these actions are not claims for damages for “nervous shock” as that expression has been understood in the English case law as directly flowing from an accident or trauma. The second of those principles acknowledges that in the case of certain types of victims, control mechanisms are necessary so as to limit the number of potential claimants. The House of Lords therefore, has rather arbitrarily held that in the case of secondary victims but not in the case of primary victims the defendant will not be liable unless psychiatric injury is foreseeable in a person of normal fortitude. That is also the law here in relation to secondary victims and it may well be the law in relation to primary victims having regard to the decision of this court in Kelly v. Hennessy.
111. Under the fifth principle the shock must result in some recognised psychiatric illness but the severity or unusualness of the psychiatric illness is irrelevant. That would also be the case here if there was a duty of care and there was foreseeability of psychiatric injury. It is the principle relating to damages usually known as “the thin skull” principle.
112. But there is no logical reason, why, assuming that control mechanisms are necessary there should be any similarity between the control mechanisms operative in the case of “aftermath” or “rescuer” cases on the one hand and “fear of disease” cases on the other. In the absence of firm precedent this court must consider whether control mechanisms are necessary in “fear of disease” cases and if so what those mechanisms should be.
113. The fifth of the “nervous shock” cases to which I intend to refer is White v. Chief Constable of South Yorkshire Police [1999] 2 AC 455 but otherwise known as Frost v. Chief Constable of South Yorkshire Police and hereinafter referred to as “the Frost case”. The case is partly remarkable for a strident attack in a dissenting opinion by Lord Goff of Chieveley on the speech of Lord Lloyd of Berwick in Page v. Smith. But that relates to an issue which does not really arise in these appeals namely, whether foreseeability of psychiatric injury is always necessary if damages are to be recovered for it irrespective of whether the victim is primary or secondary or whether, as Lord Lloyd considered, such a rule only applies to secondary victims. As I have already indicated there is some ambiguity in this jurisdiction on this point as it is not entirely clear from the judgment of Hamilton CJ in Kelly v. Hennessy which of those two approaches he was taking. But the Frost case is of some relevance, nevertheless, particularly having regard to the principles of policy considerations set out in the speech of Lord Steyn. He points out at p. 492 of the report that “the contours of tort law are profoundly affected by distinctions between different kinds of damage or harm.” He speaks of the analogy of the relatively liberal approach to recovery of compensation for physical damage and the more restrictive approach to the recovery for economic loss.” Policy considerations come into play and in the view of Lord Steyn they have always come into play in relation to distinctions between physical injury and psychiatric harm. There has always been the frightening spectre of an unlimited number of claimants. Lord Steyn goes on to point out that “in cases of pure psychiatric harm there is potentially a wide class of plaintiffs involved”.
114. I think it useful next to refer to a passage in the speech of Lord Hoffmann at p. 501. It reads as follows:
“For a long time during this century it remained unclear whether the basis of liability for causing a recognised psychiatric illness was simply a question of foreseeability of that type of injury in the same way as in the case of physical injury. The decision of the House of Lords in Bourhill v. Young [1943] AC 92, appeared to many to combine what was in theory a simple foreseeability test with a robust wartime view of the ability of the ordinary person to suffer horror and bereavement without ill effect. Cases soon afterwards, like King v. Phillips [1953] 1 Q.B. 429, followed this approach, treating foreseeability as a question of fact but keeping potential liability within narrow bounds by taking a highly restrictive view of the circumstances in which it was foreseeable that psychiatric injury might be caused. But such decisions were criticised as out of touch with reality. Everyone knew that some people did suffer psychiatric illness as a result of witnessing distressing accidents in which other people particularly close relatives were involved. Some judges, sympathetic to the plaintiff in the particular case, took the opportunity to find as a fact that psychiatric injury had indeed been foreseeable. This made it difficult to explain why plaintiffs in other cases had failed. It seemed that if the foreseeability test was to be taken literally and applied in the same way as the test for liability for physical injury, it would be hard to know where the limits of liability could be drawn. In all but exceptional cases, the only question would be whether on the medical evidence, the psychiatric condition had been caused by the defendant’s negligent conduct.
There was a time when it seemed that English law might arrive at this position. It came within a hair’s breadth of doing so in McLoughlin v. O’Brian …, one of those cases in which one feels that a slight change in the composition of the appellate committee would have set the law on a different course. But the moment passed and when the question next came before Your Lordships House in Alcock v. Chief Constable of South Yorkshire Police …, judicial attitudes had changed. The view which had for some time been in the ascendancy, that the law of torts should, in principle aspire to provide a comprehensive system of corrective justice, giving legal sanction to a moral obligation on the part of anyone who has caused injury to another without justification to offer restitution or compensation, had been abandoned in favour of a cautious pragmatism. The House decided that liability for psychiatric injury should be restricted by what Lord Lloyd of Berwick in Page v. Smith afterwards called ‘control mechanisms’ that is to say more or less arbitrary conditions which a plaintiff had to satisfy and which were intended to keep liability within what was regarded as acceptable bounds.”
115. I shall signpost here the view expressed by me later on in this judgment that mechanisms are necessary to control the potential number of claims that may be made arising out of negligent exposure to asbestos. I have already indicated that as to the kind of control which should be applied, these five “nervous shock” cases arising out of “once off” accidents do not afford much assistance.
116. The question of controls is difficult and a reading of the Frost case makes it clear that there is considerable academic criticism of the relevant House of Lords decisions with opinions coming from both extremes, that is to say, the view that psychiatric injury should be treated no differently in any case than physical injury on the one hand and the view that damages should never be recoverable for psychiatric injury on the other. In relation to these opposing proposals Lord Hoffman had this to say at the bottom of p. 503:
“The appeal of these two opposing proposals rather depends upon where one starts from. If one starts from the proposition that in principle the law of torts is there to give legal force to an Aristotelian system of corrective justice, then there is obviously no valid distinction to be drawn between physical and psychiatric injury. On this view, the control mechanisms merely reflect a vulgar scepticism about the reality of psychiatric injury or a belief that it is less worthy of compensation than physical injury: therein the patient must minister to himself. On the other hand, if one starts from the imperfect reality of the way the law of torts actually works, in which the vast majority of cases of injury and disability, both physical and psychiatric, go uncompensated because the persons (if any) who cause the damage were not negligent (a question which often involves very fine distinctions) or because the plaintiff lacks the evidence or the resources to prove to a court that they were negligent, or because the potential defendants happen to have no money, then, questions of distributive justice tend to intrude themselves. Why should X receive generous compensation for his injury when Y receives nothing? Is the administration of so arbitrary and imperfect a system of compensation worth the very considerable cost? On this view, a uniform refusal to provide compensation for psychiatric injury adds little to the existing stock of anomaly in the law of torts and at least provides a rule which is easy to understand and cheap to administer.”
117. Like the English courts, I would not favour either of these extreme solutions but I would agree that pragmatic control mechanisms must be applied in actions for pure psychiatric damage and in many instances even in the interests of distributive justice.
118. Lord Hoffman at the end of p. 509 considers the suggestion of taking the incremental step of extending liability for psychiatric injury “to rescuers”. He points out that this would mean that the category of secondary victims would be confined to “spectators and bystanders” who take no part in dealing with the incident or its aftermath. He is against taking this step for two reasons. The first reason relates to difficulties of definition and is not really relevant to these appeals but the second reason is of some relevance as will be apparent when I come to giving my final conclusions. It is contained in the following passage:
“But the more important reason for not extending the law is that in my opinion the result will be quite unacceptable. I have used this word on a number of occasions and the time has come to explain what I mean. I do not mean that the burden of claims would be too great for the insurance market or the public funds, the two main sources for the payment of damages in tort. The Law Commission may have had this in mind when they said that removal of all the control mechanisms would lead to an ‘ unacceptable’ increase in claims, since they described it as a ‘floodgates’ argument. These are questions in which it is difficult to offer any concrete evidence and I am simply not in the position to form a view one way or the other. I am therefore willing to accept that, viewed against the total sums paid as damages for personal injury, the increase resulting from an extension of liability to helpers would be modest. But I think that such an extension would be unacceptable to the ordinary person because (though he might not put it this way) it would offend against his notions of distributive justice. He would think it unfair between one class of claimants and another, at best not treating like cases alike and, at worst, favouring the lest deserving against the more deserving. He would think it wrong that policemen, even as part of a general class of persons who rendered assistance, should have the right to compensation for psychiatric injury out of public funds while the bereaved relatives are sent away with nothing.”
119. I think that there are issues of distributive justice involved here in considering whether this court ought to allow these claims or not and I will return to this question in due course.
120. I turn now to the few “fear of disease” cases to which the court has been referred. These have included some American cases and in particular the case of Majca v. Beekil 682 ME 2d 253 Ill App 1 Dist (1997) (Illinois Appellate Court) which I have found helpful in clarifying my mind. In that case a woman who worked in a medical office and who had been crushed by a scalpel which had been placed in garbage by physicians brought an action for damages for her fear that she had contracted HIV. She and her husband were suing the physician in charge of the office who had since died of AIDS though that information only reached the plaintiffs after the woman’s cut. By that time she had undergone two tests which showed her to be HIV negative. The Court of first instance gave summary judgment in favour of the defendants and the plaintiffs appealed. The appellate court held that any reasonable fear by the woman and her husband that they had acquired HIV was not compensatable as they did not learn that the physician had AIDS until eight months after the woman’s cut, at which time she had undergone two tests which showed her to be HIV negative. In the judgment of the appellate court it was stated that Illinois courts permit a plaintiff who had suffered a physical impact and injury due to a defendant’s negligence to recover for the mental suffering that the injury directly causes, but, to use the English terminology, it would seem clear from the judgment of this court that the Illinois courts apply “control mechanisms”. Not only do they require “medically verifiable manifestations of severe emotional distress” but the foreseeable fear and distress must reach a degree of severity that justifies tort compensation. To quote the judgment “Thus, not all negligently caused fears are compensable”. Where there is a fear of future illness the court took the view that recovery of compensation should be restricted to severe emotional distress arising from serious fear occasioned by a substantial medical verifiable possibility of contracting the disease. A foreseeable fear of deadly disease may not be compensatable if the feared contingency is too unlikely. There is then an interesting passage of some relevance to these appeals.
“Where hysterical fear of a disease is sufficiently widespread, and popular knowledge concerning its aetiology is limited, a plaintiff may foreseeably experience severe emotional distress without medically verifiable evidence of a substantially increased risk of contracting the disease. Most courts have held that recovery for fear of disease should not extend to such foreseeable fears, because as commentators have noted, such broad recovery rewards ignorance about the disease and its causes.”
121. In Potter v. Firestone Tire and Rubber Company the Supreme Court of California in a judgment of Baxter J. held that:
“In the absence of present physical injury or illness recovery of damages for fear of cancer in a negligence action should be allowed only if the plaintiff pleads and proves that the fear stems from a knowledge which is corroborated by reasonable medical and scientific opinion that it is more likely than not that cancer will develop in the future due to toxic exposure.”
In a later part of the judgment under the heading “Damages” it is stated as follows:-
“Toxic exposure plaintiff is required to establish reasonableness of his or her fear of cancer in order to recover for damages for that fear, and reasonableness is not established by mere fact of exposure or significant increase in risk of cancer; carcinogenic or other toxic ingestion or exposure, without more, does not provide basis for fearing future physical injury or illness which law is prepared to recognise as reasonable, and the fact that one is aware that he or she has ingested or otherwise been exposed to carcinogen or other toxin without any regard to the nature, magnitude and proportion of the exposure or its likely consequences, provides no meaningful basis upon which to value the reasonableness of one’s fear.”
Again, at p. 800 of the report the following passage appears in the judgment:
“Our analysis of existing case law and policy consideration relevant to the availability of damages for emotional distress leaves us to conclude that, generally, in the absence of a present physical injury or illness, recovery of damages for fear of cancer in a negligence action should be allowed only if the plaintiff pleads and proves that the fear stems from a knowledge, corroborated by reliable, medical and scientific opinion, that it is more likely than not that the feared cancer will develop in the future due to the toxic exposure.”
122. The judgment sets out a number of public policy reasons for denying redress in such cases. Some of these are more relevant than others to the Irish situation. But I would summarise them as follows:
“1. Likely scarcity and high expense of insurance liability.
2. Undue conservatism in the testing of new drugs which may be of great benefit to the public.
3. Allowing recovery to all victims who have a fear of cancer may work to the detriment of those who sustain actual physical injury and those who ultimately develop cancer as a result of toxic exposure. Defendants and insurers may be unable to insure adequate compensation for the victims who actually develop cancer having regard to the heavy liability to those who merely fear it.
4. The difficulty of definition of a predictable threshold for recovery.
5. The necessity to limit the number of potential plaintiffs if emotional injury absent physical harm is to continue to be a recoverable item of damages in a negligence action. Having regard to the intangible nature of the loss the inadequacy of monetary damages to make whole the loss, the difficulty of measuring the damage and the societal cost of attempting to compensate the plaintiff.”
123. Other public policy considerations which have been put forward in other cases and, indeed, were put forward by Mr. Gleeson in this case are the dangers of fraudulent claims and problems of proof.
124. The next case is a fear of asbestos disease case. It is Temple-Inland Forest Products Corporation v. Reeves Carter [1993] S.W. 2nd 88 (Supreme Court of Texas) (1999). In that case electrical workers exposed to asbestos in business premises sued the business for negligence. They were not seeking damages for having contracted any disease arising from asbestos exposure but rather for “mental anguish damages for their fear of possibility of developing asbestos-related disease in future”. The court of first instance had dismissed the action. That decision had been affirmed in part and reversed in part by a regional Court of Appeal in Texas and it then ultimately came before the Supreme Court of Texas by way of writ of error. The unanimous opinion of the latter court was delivered by Justice Hecht and I will quote the following passage in his judgment:
“For the same reasons, like the Supreme Court and courts in most other jurisdictions, we cannot permit recovery of mental anguish damages in cases like this one. In almost all instances involving personal injury, the law allows for the recovery of accompanying mental anguish damages, even if the mental anguish is not itself physically manifested. But if bodily injury is at most latent and any eventual consequences uncertain as when a person’s exposure to asbestos has not produced disease then the case for recovery of mental anguish damages is much weaker. A person exposed to asbestos can certainly develop serious health problems, but he or she also may not. The difficulty in predicting whether exposure will cause any disease and if so, what disease, and the long latency period characteristic of asbestos-related diseases, make it very difficult for judges and juries to evaluate which exposure claims are serious and which are not. This difficulty in turn makes liability unpredictable, with some claims resulting in significant recovery while virtually indistinguishable claims are denied altogether. Some claimants would inevitably be overcompensated when, in the course of time, it happens that they never develop the disease they feared and others would be under compensated when it turns out that they developed a disease more serious even than they feared. Also claims for exposure could proliferate because in our society, as the Supreme Court observed ‘contacts, even extensive contacts with serious carcinogens are common’. Indeed most Americans are daily subjected to toxic substances in the air they breathe and the food they eat. Suits for mental anguish damages caused by exposure but which had not resulted in disease could compete with suits for manifest diseases for the legal system’s limited resources. If recovery were allowed in the absence of present disease, individuals might feel obliged to bring suit for such recovery prophylactically, against the possibility of future consequences from what is now an inchoate risk. This would exacerbate not only the multiplicity of suits but the unpredictability of results.”
125. We have been referred to three other fear of disease cases. The first is CJD Group B v. MRC [2000] Lloyds Rep Med 161. In that case the claimants were members of a group who as children suffered from dwarfism. They took part in clinical trials run by the defendants to improve their prospects of adulthood. Those trials included injection of Hartree HGH. At a later stage the defendants became aware of the risk that the HGH injection might carry a potentially lethal dose of the CJD agent. Nevertheless, they continued the trials. The claimants all discovered the dangers subsequently though clinicians, councillors or the media and it was assumed then for the purposes of a trial of a preliminary issue that all the claimants had a psychiatric injury derived from the awareness that they might develop CJD. In the course of his judgment, the trial judge Morland J. at p. 165 said the following:
“I am persuaded that the Group B plaintiffs should not be treated as primary victims. I accept the submissions of Mr. Fenwick that if they were, the ramifications would be incalculable. If they were primary victims so would be those exposed to asbestos or radiation, for primary liability may depend not upon common law negligence but on statutory duty or even strict liability even if they became aware of the risk of physical injury years later and consequently developed psychiatric injury. The potentiality of a huge number of claims in similar situations would arise making insurance difficult or impossible. It could involve all manner of products and a huge range of potential tortfeasors. It could inhibit the producers, prescribers and suppliers of a product from warning the public of the danger of a product. For example, a potentially lethal substance has been negligently introduced into a production batch of canned fruit. It would be disastrous if a supplier or producer were inhibited from warning the public of danger for fear that some of those who had already eaten the canned food might bring a claim as a primary victim for psychiatric injury triggered by the warning. Against such a claim the producer could not raise defences either that the psychiatric injury was unforeseeable to a person of normal fortitude or that the law insists upon certain control mechanisms to limit the number of potential claimants.”
Again, later on in the same page the learned judge makes the comment:
“Unlike some of the examples given by Mr. Fenwick in his ‘floodgates’ argument such as exposure to asbestos, radiation and contaminated blood transfusions the cohort of potential victims of psychiatric injury is small.”
126. I agree with the view expressed in the written submissions lodged in this appeal on behalf of the appellants that for very understandable reasons the judge was clearly highly sympathetic to the claimants in that case. The general tenor of the judgment would seem to indicate that he was treating them as a special case. Furthermore, he sought to rely on the speech of Lord Scarman in the McLoughlin case who expressed the view that if a psychiatric injury was reasonably foreseeable it should be untrammelled by spatial, physical or temporal limits. As counsel for the appellants point out in the written submissions, that view is not in accordance with established English law and clearly conflicts also with Kelly v. Hennessy at least in relation to non-primary victims. It is perfectly clear from his judgment, that Morland J. did not think that his decision could have any relevance to a fear of asbestos case.
127. The next such case is Bryan v. Phillilps New Zealand Limited ]1995] 1NZLR 633. This was a case where a New Zealand High Court judge refused to strike out an amended statement of claim in a fear of asbestos related disease case where the amended statement of claim included a claim for damages for “cancerphobia”. The judge pointed out that it was “a developing field of law” and that although there were American cases which made it clear that fear of cancer had to be reasonable and causally related to a defendant’s negligence the correct legal parameters had not been fully established and that it would be a matter for the trial judge. The case was not unstateable so that it could be struck out. That is all I need say about that case. It is perfectly clear that it is of no assistance. Indeed, no matter what the outcome of this appeal is, if a motion had been brought to strike out these actions in the High Court it would have had to be refused.
128. Finally, I would refer to an unreported judgment of Girvan J. delivered the 24th of May, 2000 in the High Court of Northern Ireland in a case called Bittles v. Harland and Wolffe Plc [2000] NIJB 209. In that case a plaintiff brought an action claiming damages for personal injuries sustained as a result of being exposed to asbestos dust during an earlier working life with the defendants. His case was that as a result of his exposure to asbestos in those years he had subsequently developed asymptomatic pleural plaques and that he had also suffered severe clinical depression as a result of the discovery that he had an asbestos related condition. The learned trial judge found as a fact that the plaintiff did suffer a depressive condition “which was significantly aggravated by the diagnosis of an asbestos related illness”. The relevant international cases do not seem to have been cited in court and the judge’s decision largely turned on the view he took that the pleural plaques constituted a physical injury (a view which would be controversial at least in this jurisdiction especially having regard to the definition of injury in the Civil Liability Act, 1961), Girvan J. effectively was treating the psychiatric injury as parasitic to the physical injury. At any rate, the plaintiff in this appeal had no pleural plaques. For these reasons the Bittles case would seem to be of no assistance to the respondent in this appeal.
129. It is against that background of the case law which I have reviewed that this court must decide as a matter of policy and of reasonableness whether claims for damages for psychiatric injury only and resulting from fear of asbestos related diseases of a degree which is objectively irrational are recoverable. Traditionally, courts do not always use the actual word “policy”. They may attempt to draw artificial limits to what can be regarded as being reasonably foreseeable or they may in considering proximity or other questions in relation to the existence of a duty of care invoke the concept of reasonableness so that a duty of care will not in fact be imposed if the court considers it unreasonable to do so. The third control mechanism which the court may impose is in relation to particular heads of damage or finally, they may expressly deny a claim on grounds of public policy.
130. I am quite satisfied that for the kind of reasons adumbrated in the American cases and also by reason of the objective irrationality of the fears of these respondents that they will contract asbestos related diseases, the appeal should be allowed. As I have already pointed out, the learned trial judge in this case considered that the psychiatric condition was reasonably foreseeable even when applying the “person of reasonable fortitude” standard. In relation to the issue of reasonable foreseeability I would not attach significance to the irrationality aspect. There has been such alarming treatment by the media about asbestos that it would be reasonably foreseeable that a person of normal fortitude might seriously suffer from irrational fears of contracting the diseases. But that is quite different from saying that the irrationality is irrelevant to the questions at issue on this appeal. In my view it would be unreasonable to impose a duty of care on employers whether they be State or non-State (there being no known justification for making any distinction) insured or uninsured to take precautions not merely that their employees will not contract disease but that they will not contract so serious a fear of contracting a disease however irrational that they develop a psychiatric overlay. The court should not permit compensation for irrationality in that way. It is quite different from the case of a plaintiff who suffers from traumatic neurasthenia linked with physical illness directly resulting from an accident. Furthermore, there would be an element of unfairness of the kind adverted to by Lord Hoffman as between employees exposed to such asbestos who may in fact suffer from great anxiety for the remainder of their lives but not such as could be characterised as psychiatric injury on the one hand and those who suffer from such anxiety which can be characterised as psychiatric injury on the other. Is it just that a worrier who has to take medication for his worry receives sums in the order of €50,000 or more whereas worriers who do not have to take such medication get nothing? I think not.
131. As I have reviewed the case law at some length with the result that my own views on the legal principles involved which I have expressed as they arose at different points in the judgment are in danger of becoming somewhat buried, I think it useful to gather together the more important principles which I perceive as applying. They are as follows:
1. Reasonable foreseeability is not the only determining factor in establishing a duty of care. “Proximity” which is given an elastic definition in the decided cases, the reasonableness of the imposition of a duty of care and questions of public policy can be additional determining factors.
2. The learned High Court judge after hearing submissions on the English case law in relation to secondary victims and bearing in mind the submission by counsel for the defendant that this was a claim by a “secondary victim” held that if he was bound to apply the standard of “a person of normal fortitude”, he considered it was reasonably foreseeable that such a person might develop an irrational worry that he would contract such disease notwithstanding the advice of his doctors and the consequent psychiatric condition. I am of opinion that it was open to the trial judge to take that view.
3. Mr. Gleeson argued on the appeal before this court that the respondent was a “secondary victim” in that, the respondent did not develop the worry and consequent psychiatric illness directly from the exposure to asbestos but rather from subsequent media information etc. There was some limited judicial support in the English case law for that extended meaning of “secondary victim”. Having regard to the view I have taken as to O’Neill J’s finding I do not find it necessary to express any final opinion on this matter not least because the primary/secondary distinction has been criticised (see for instance the judgment of Judge McMahon in Curran v. Cadbury (Ireland) Ltd. [2000] 1ILRM 343).
4. Having regard to factors to which I have referred in this judgment and indeed the factors also referred to in the judgment of the Chief Justice I take the view that it would be unreasonable to impose a duty of care on employers to guard against mere fear of a disease even if such fear might lead to a psychiatric condition.
5. I have deliberately refrained from expressing any view as to whether the implantation of fibres into the lung (which did occur in this case) or the development of pleural plaques (which did not occur) and in neither case involving any immediate symptoms could be described as a physical injury especially having regard to the definition of injury in the Civil Liability Acts. At the hearing of this appeal it was accepted that the damages were awarded for psychiatric injury only and I am approaching the case on that basis.
132. I would allow the appeal and set aside the judgment obtained in the High Court.
W. Plaintiff v. Ireland
[1997] 2 IR 141
Costello P.
11th April 1997
Facts
(1) On the 23rd April, 1993, nine warrants for the arrest of one Father John Gerard “Brendan” Smyth (the accused) were issued in Northern Ireland. They related to sexual offences alleged to have been committed by the accused in Northern Ireland between the years 1982 and 1987. The warrants were forwarded to the Commissioner of An Garda Siochana for execution by him pursuant to the provisions of the Extradition Act, 1965, (as amended), the accused at that time being resident in the State. He, in turn, forwarded them to the office of the Attorney General (as he was required to do under the Act) where they were received on the 30th April, 1993. Under the provisions of the Act, as amended (provisions which will be considered in greater detail later), the Attorney General is required to give a direction that the Commissioner should not endorse the warrants for execution unless the Attorney General, having considered such information as he considers appropriate, is of the opinion that (a) there is a clear intention to prosecute or to continue the prosecution of the person whose extradition is requested and (b) such intention is founded upon the existence of sufficient evidence.
(2) The plaintiff in these proceedings and other members of her immediate family and relatives had been victims of the accused’s sexual crimes to which the warrants related.
(3) Before the Attorney General had given any direction to the Commissioner relating to the endorsement of the warrants the office of the Attorney General was informed on the 6th December, 1993, that the accused intended to return to Northern Ireland to stand trial in respect of the charges referred to in the warrants. He did so on the 21st January, 1994, on which day he appeared at Belfast Magistrates Court. On the 28th June, 1994, he was convicted at Belfast Crown Court of 17 charges of sexual abuse (in respect of some of which the plaintiff had been a victim) and was sentenced to 4 years imprisonment.
(4) By summons dated the 1st June, 1995, the plaintiff instituted these proceedings in which she joined Ireland, the Attorney General, and the Government of Ireland as defendants. In her statement of claim she pleaded that the Attorney General owed her a duty of care and/or “a constitutional obligation to consider the extradition requests and speedily to process same, in order to ensure that the accused was quickly brought to justice”. It was claimed that in breach of the said duty of care and in breach of the said constitutional obligation the Attorney General”wrongfully and without lawful excuse failed, neglected and refused to endorse the said warrants for execution within the State” (paragraph 10). It was further pleaded that a similar statutory duty was imposed on the Attorney General by the provisions of the Extradition Acts, 1965 and 1987 (paragraph 11). She claims that as a result of the breaches of duty, breaches of constitutional obligation and duty and breach of statutory duty she suffered loss and damage and that the loss and damage was a foreseeable consequence of the wrongful acts and omissions of the Attorney General (paragraph 12). She says that the failure to endorse the warrants for execution and the delays in bringing the accused to trial caused her enormous shock and distress, that the continuing emotional upset and stress and consequential psychiatric problems caused by the sexual abuse were greatly aggravated by the failure of the Attorney General to take adequate steps to endorse the warrants for execution and bring the perpetrator of the offences to justice. She claims damages for the personal injuries she suffered.
(5) A defence denying liability was filed on behalf of the defendants on the 10th July, 1995.
Preliminary issue
On the 11th November, 1996, it was ordered that without further pleadings the following preliminary issues should be tried:
(a) Whether the second defendant (the Attorney General) owed to the plaintiff a duty of care at common law to consider the said request as is alleged by the plaintiff at para. 10 of the statement of claim.
(b) Whether the defendants or any of them owed to the plaintiff a constitutional duty or obligation under Article 40, s. 3 and/or Article 41 of the Constitution of Ireland or otherwise to consider the extradition request the subject of these proceedings and to process speedily the said request as is alleged by the plaintiff at paras. 10 and 13(A) of the statement of claim herein.
(c) Whether the second defendant owed to the plaintiff a duty by reason of the provisions of the Extradition Acts, 1965-1987 (and in particular by reason of s. 2 of the Extradition (Amendment) Act, 1987) to consider the extradition request the subject of these proceedings and to process speedily the said request as is alleged by the plaintiff at para. 11 of the statement of claim herein.
Extradition Acts
To adjudicate on these issues I must firstly refer to the relevant statutory provisions.
The Extradition Act, 1965
Special arrangements are made in Part III of the Act of 1965 relating to the extradition of accused persons pursuant to requests from, inter alia,Northern Ireland. Where a warrant has been issued by judicial authority in Northern Ireland for the arrest of a person accused in Northern Ireland of an offence as specified in the section and if on production of the warrant to the Commissioner of the Garda Siochana it appears to the Commissioner that the person named in the warrant may be found in this Stat then the Commissioner is required, subject, to the provisions of Part III of the Act of 1965 to “endorse the warrant for execution” (section 43).
The Act of 1965, contained restrictions on endorsement in s. 44 which are not relevant for the purposes of this case. But a further restriction was enacted by s. 2 of the Extradition (Amendment) Act, 1987, which amended Part III of the Act of 1965 by inserting new sections as follows.
Section 44A:
This provides that a warrant for the arrest of a person accused of an offence in Northern Ireland “shall not be endorsed for execution under this Part if the Attorney General so directs”.
Section 44B:
This provides that a direction of the Attorney General under s. 44A not to endorse the warrant:
“shall be given unless the Attorney General, having considered such information as he deems appropriate, is of the opinion that
(a) there is a clear intention to prosecute or, as the case may be, to continue the prosecution of, the person named or described in the warrant concerned for the offence specified therein in a place in relation to which this Part applies, and
(b) such intention is founded on the existence of sufficient evidence.”
I have the following observations to make on these provisions.
The plaintiff has pleaded that the Attorney General was under a duty”to endorse for execution within the State all extradition warrants emanating from within the United Kingdom” and it was further pleaded that he failed to endorse the warrants referred to in the pleadings. This is not an accurate description of the Attorney General’s functions. The endorsement of the warrant is made by the Commissioner (s. 43) but he may not make the endorsement unless the Attorney General directs him to do so. The Attorney General’s function under s. 44B is to reach the opinion referred to in that section and under s. 44A to give or not to give the direction, as the case may be. I shall examine this section in greater detail later in this judgment.
The first issue
(a) A duty of care at common law.
The first issue is whether in the exercise of his statutory function the Attorney General owed a duty of care at common law to the plaintiff. It has been agreed by the parties that I should determine this issue in accordance with the principles established in Ward v. McMaster [1988] I.R. 337.
This was a case in which it was alleged that a housing authority owed a common law duty of care to the plaintiff in the exercise of its powers under the Housing Act, 1966. Briefly, what had happened was this. The plaintiff had purchased a bungalow from the first defendant, who had built it. The plaintiff did not have it professionally surveyed but had applied to the defendant housing authority for a loan under the Act of 1966. This had been granted and secured by way of mortgage. The housing authority retained a valuer to value the premises but he had no qualifications in building construction and he found no defects in them, reporting that they were in good repair and worth £25,000. This was wholly erroneous. After the plaintiff went into occupation the bungalow was found to be seriously defective, a qualified engineer concluding that it was structurally unsound, a source of danger and a risk to health. He advised the plaintiff and his wife to abandon it and they did so. The plaintiff sued the builder/vendor, the Council and the valuer. He succeeded against the builder/vendor and the Council but not against the valuer. The Council’s appeal to the Supreme Court was dismissed.
As will appear later, the court’s conclusions were based on the provisions of the Housing Act, 1966 and the regulations made thereunder and I should briefly refer to them. The Act of 1966 empowered a housing authority to lend money for the purpose of acquiring or constructing a house. Regulation 12 of the regulations adopted in 1972 required that a housing authority, before making a loan, should be satisfied that the value of the house was sufficient to provide adequate security for the loan, “the value of the house” for the purpose of the regulation being the amount which, in the opinion of the housing authority, the house if sold on the open market might reasonably be expected to realise. The scheme adopted by the defendant housing authority to implement its statutory powers provided that no advance would be made by the Council until it was satisfied as a result of the report of the Council’s valuer as to the actual value of an existing house. The scheme also made clear that applications for loans under the Act of 1966 would only be considered by persons who were unable to obtain loans from commercial agencies and whose circumstances would otherwise necessitate their being re-housed by the Council.
In his judgment (with which the Chief Justice and Griffin J. agreed) Henchy J. pointed out that it was necessary for the plaintiff to show that the relationship between him and the Council at p. 342:
“was one of proximity or neighbourhood which cast a duty on the Council to ensure that, regardless of anything left undone by the plaintiff, he would not end up as the mortgagor of a house which was not a good security for the amount of the loan”.
He pointed out that the Council should have realised that it would be in breach of their statutory functions if they granted a loan for the purchase of a house which turned out to be uninhabitable, that the consequences to the plaintiff of a failure on their part to value the house properly should have been anticipated by the Council, that a borrower like the plaintiff could not have reasonably been expected to incur the expense of a structural survey of the house, that the Council should have foreseen that the plaintiff’s attitude would be that the Council would have the house approved by a surveyor, and he concluded (at p. 342) that:
“In the light of the special relations between the plaintiff and the Council I consider that, apart from their public duty in the matter, the Council owed a duty to the plaintiff to ensure by a proper valuation that the house would be a good security for the loan.”
In his judgment (with which the Chief Justice, Walsh J., and Griffin J. agreed) McCarthy J. referred in detail to the loan scheme and then reviewed the authorities in Northern Ireland and in England and Australia to which he had been referred. In particular he referred to Anns v. Merton London Borough [1978] A.C. 728 and to a well-known passage in the judgment of Wilberforce L.J. (at pp. 751 and 752) (which he stated he did not “seek to dilute”) as follows (at p. 347):
“the position has now been reached that in order to establish that a duty of care arises in a particular situation, it is not necessary to bring the facts of that situation within those of previous situations where a duty of care has been held to exist. Rather the question has to be approached in two stages. First one has to ask whether, as between the alleged wrongdoer and the person who has suffered damage there is a sufficient relationship of proximity or neighbourhood such that, in the reasonable contemplation of the former, carelessness on his part may be likely to cause damage to the latterin which case a prima facie duty of care arises. Secondly, if the first question is answered affirmatively, it is necessary to consider whether there are any considerations which ought to negative, or to reduce or limit the scope of the duty or the class of persons to whom it is owed or the damage to which a breach of it may give rise.”
The judgment of McCarthy J. then went on to review the views expressed in later cases in England which analysed the test propounded by Wilberforce L.J. and heavily qualified it as well as the court’s decision in the case. He rejected these criticisms and went on (at p. 349):
“Whilst Costello J. essentially rested his conclusion on the “fair and reasonable” test, I prefer to express the duty as arising from the proximity of the parties, the foreseeability of the damage, and the absence of any compelling exemption based upon public policy.”
Turning to the issue as to whether or not the housing authority owed a duty of care to the plaintiff, he pointed out that the proximity of the parties was clear, that they were intended mortgagors and mortgagees, that the proximity had its origin in the Housing Act, 1966, and consequent loan scheme, that the Act imposed a statutory duty on the Council and it was in the carrying out of that statutory duty that the alleged negligence took place. He went on (at p. 351):
“It is a simple application of the principle in Donoghue v. Stevenson [1932] A.C. 562 confirmed in Anns v. Merton London Borough [1978] A.C. 728 and implicit in Siney v. Corporation of Dublin [1980] I.R. 400 that the relationship between the first plaintiff and the County Council created a duty to take reasonable care arising from the public duty of the County Council under the statute. The statute did not create a private duty but such arose from the relationship between the parties.”
Turning then to the issue of “reasonable foreseeability”, he concluded that the officers of the Housing Authority ought to have contemplated that the breach of duty of care would cause the plaintiff injury and that as there were no considerations to negative or limit the scope of the duty the plaintiff was entitled to damages for its breach.
The parties in the present case have, as I have said, agreed that I should approach this case by applying the test approved by McCarthy J., and consider whether (a) there was a relationship of proximity between the Attorney General and the plaintiff, (b) if so, whether the relationship was such that, in the reasonable contemplation of the Attorney General, carelessness on his part would be likely to cause damage to the plaintiff and (c), if these questions are answered affirmatively, are there any considerations which ought to negative, reduce or limit the scope of the common law duty of the Attorney General.
Before doing so there are two observations I should make about Ward v. McMaster [1988] I.R. 337.
(1) I am, of course, aware that subsequent to the decision in Ward v. McMaster , criticisms were made of it and of the test suggested by Wilberforce L.J. in the English courts, to which reference was made in the judgment of McCarthy J. These were carried a step further by the House of Lords in Murphy v. Brentwood [1991] A.C. 398 in which the Anns v. Merton London Borough [1978] A.C. 728 decision was overruled and it was decided (at p. 457) that the House of Lords should depart from Anns v. Merton London Borough :
“insofar as it affirmed a private law duty of care to avoid damage to property which causes present or imminent danger to the health and safety of owners, or occupiers, resting upon local authorities in relation to their function of supervising compliance with building bye-laws or regulations . . .”
Irish law has therefore parted company with English law but I am by no means certain that the departure is a major one. The view of the Irish courts has been that Anns was a “confirmation” of the long established principles of the law of tort contained in Donoghue v. Stevenson [1932] A.C. 562 and was not (as some commentators in England seem to consider) a major innovation in the law of tort.
(2) Secondly, as Ward v. McMaster makes clear, when the court is required to consider whether a duty of care at common law arises in the exercise of statutory duties, powers, or functions, the issue is largely determined by the scope and nature of the relevant statutory provisions. This is underlined in two decisions in which the principles established in Ward v. McMaster were considered in the Supreme Court.
In Sunderland v. McGreavey [1990] I.L.R.M. 658, the Supreme Court again had to consider whether a common law duty of care was imposed on a local authoritythis time in its capacity as a planning authority. Louth County Council had granted permission for the erection of a dwelling house to a person who had no building experience. When the house was built he decided to sell it. It was then discovered that the planning permission did not apply to the site on which the house had been built, and he applied for and obtained permission for retention of the house. The plaintiff purchased the house from the builder, but, because of the unsuitability of the site on which it was built and the manner in which the septic tank had been constructed, the house and garden were liable to flooding and the house proved uninhabitable. The plaintiff sued the architect (who had reported on the condition of the house) and the Council. The claims against both defendants were dismissed and the plaintiff appealed to the Supreme Court against the decision to dismiss the claim against the Council. The appeal failed. The unanimous decision of the court was delivered in a judgment by McCarthy J. The court held that a planning authority, in the exercise of its powers under the Local Government (Planning and Development) Act, 1963, owed no duty of care at common law towards the occupiers of buildings erected in its functional area to avoid damage due to defective siting and construction. In arriving at this conclusion, McCarthy J. pointed out (at p. 662) that the Council’s liability to the plaintiff depended on the relationship that existed between the plaintiffs and the Council, namely:
“was it such as to establish a duty of care in favour of the plaintiffs as occupiers over and above such duty as rested upon the council in respect of the public as a whole, pursuant to the statutory obligations imposed on the council by the Planning Act.”
He pointed out that in Siney v. Dublin Corporation [1980] I.R. 400, a legal relationship of landlord and tenant existed between the parties and in Ward v. McMaster [1988] I.R. 337, a relationship of mortgagor and mortgagee existed, that in both these cases the statutory duty of the local authority arose under the Housing Act, 1966, which, he said, (at p. 662) was an Act which “is demonstrable and unequivocally designed towards the protection and improvement of the housing conditions of persons who are not able by their own resources to provide it for themselves”. He pointed to the fundamental difference between planning legislation and housing legislation and said that the first is “regulatory or licensing according to the requirements of the proper planning and development of the area” but the second is a provision “in a social context for those who are unable to provide for themselves”. He observed that the “watchdog role” created under the Planning Act is for the benefit of the public at large and that the Planning Act was “enacted to make provision in the interest of the common good for the proper planning and development of cities, towns and other areas”. He concluded (at p. 663):
“The Act in conferring statutory powers on planning authorities imposed on them a duty towards the public at large. In my view, in conferring those powers, the Oireachtas did not include a purpose of protecting persons who occupy buildings erected in the functional area of planning authorities from the sort of damage which the plaintiffs have suffered. This being so, the council, in the exercise of those powers, owed no duty of care at common law towards the plaintiffs.”
The same legal issue arose in Convery v. Dublin County Council [1996] 3 I.R. 153. In that case the plaintiff’s claim against the County Council arose from a serious traffic problem in the housing estate in which she lived. She claimed that the very large volume of traffic amounted to a nuisance, and she claimed an order directing the Council to abate the nuisance. She also claimed that the volume of traffic resulted from a breach of duty of care which the Council owed to her at common law. She succeeded in the High Court but lost in the Supreme Court. In the judgment of the court (delivered by Keane J.), it was pointed out that the plaintiff could only succeed if she established that the Council had been guilty of an actionable tort and the court held that the Council could not be liable for a public nuisance as the traffic did not originate in any premises owned or occupied by the County Council and was not generated as a result of any activities carried on by them on land in the area at p. 174.
“To treat the County Council, in these circumstances as being the legal author of a public nuisance would be entirely contrary to principle and wholly unsupported by authority.”
As to the claim founded on negligence, it was pointed out that the plaintiff had to establish that a duty of care towards her existed. In deciding whether or not such a duty existed the court referred to the decision in the High Court and the judgment of McCarthy J. in the Supreme Court in Ward v. McMaster [1988] I.R. 337. Commenting on the judgment of the Supreme Court it was pointed out that:
“. . . the fact that the plaintiff belonged to a particular category of persons for whose benefit the powers and duties of the housing authority under the Act were to be exercisedi.e. applicants for loans who could not obtain such assistance from commercial institutions was of critical importance in determining whether they owed him a duty of care in the exercise of those powers and duties.”
The judgment noted the sharp contrast in that case to the decision in Sunderland v. McGreavy [1987] I.R. 372 (H.C.); [1990] I.L.R.M. 658 (S.C.) where the court concluded that the statutory powers created under the Planning Acts did not confer any duty of care at common law towards the plaintiffs. Applying the principle adopted in Ward v. McMaster the court concluded that:
“. . . the plaintiff has failed to establish that there was a relationship between her and the County Council which created a duty to take reasonable care arising from their public duty under any statute. The powers and duties of the County Council as planning authority and roads authority are vested in it in order to ensure the proper planning and development of their area and the provision and maintenance of an appropriate road network in that area. While its exercise of those powers and duties can be regulated by the High Court by means of the judicial review process so as to ensure that they are exercised only in accordance with law, the plaintiff does not belong to any category of persons to whom the Council, in the exercise of those powers owed a duty of care at common law.”
A brief reference should also be made to Madden v. The Irish Turf Club [1997] 2 I.R. 184. This was a case in which the plaintiff, unsuccessfully, claimed that the Irish Turf Club and the Irish National Hunt Steeplechase Committee owed him a duty of care arising from a “jackpot bet” he had placed on the tote at a race meeting on the 12th January, 1989. The alleged duty did not arise from the operation of a statute and the relevance of the case for present purposes is that in arriving at its conclusion the Supreme Court, once again, applied the decision in Ward v. McMaster [1988] I.R. 337.
Finally, on this aspect of the case, I should note two further decisions of the High Court in which, once again, a plaintiff failed to establish a common law duty of care arising from the exercise of statutory powers.
In McMahon v. Ireland [1988] I.L.R.M. 610, the plaintiff had lodged money in a friendly society which went into liquidation. A claim for damages for negligence was brought against, inter alia, the Registrar of Friendly Societies. Blayney J. (at p. 613) pointed out that the first issue to be considered was whether the Registrar owed a duty of care to the plaintiff and that this issue involved him:
“. . . considering whether there was a sufficient relationship of proximity or neighbourhood between the Registrar and prospective depositors as to place the Registrar under a duty of care towards persons who came within that class, as did the plaintiff.”
The court held that no such duty existed and the claim against him was dismissed.
In John C. Doherty Timber Ltd. v. Drogheda Harbour Commissioners [1993] 1 I.R. 315, the plaintiff claimed that the Drogheda Harbour Commissioners owed it a duty of care in the exercise of their statutory duties as Harbour Commissioners under the Harbour Act, 1946. Under that Act they were obliged to take all proper measures for the management, control and operation of their harbour and all proper measures for the maintenance and operation of all works, structures, bridges, equipment and facilities under their control (section 47). The plaintiffs, who were timber merchants, had for many years received consignments of shipments of timber at the port. Along with others they were permitted to unload the timber and leave it on the quayside at the harbour. The area was unenclosed and the public had access to it. A consignment of timber had been left by the plaintiff on the quayside for several days after it had been unloaded, when it was deliberately set on fire by children. The plaintiff’s claim that the Harbour Commissioners owed it a duty at common law failed. In the course of his judgment Flood J. referred to the judgment of Wilberforce L.J. in Anns v. Merton London Borough [1978] A.C. 728 and to the decision of McCarthy J. in Ward v. McMaster [1988] I.R. 337 and concluded that as the reality of the relationship between the Harbour Commissioners and the plaintiff was a bare permission which carried no further obligation of care on the part of the defendant, there was no common law duty of care imposed on the Harbour Commissioners.
Conclusion
My conclusions on the issue as to whether or not the Extradition Acts, 1965 to 1987, have imposed on the Attorney General a common law duty to the plaintiff to consider the extradition request and process it speedily, for breach of which the plaintiff is entitled to damages for any injury she thereby suffered, are as follows:
(a) The Extradition Act, 1965 (as amended), imposed no statutory duty on the Attorney General in relation to victims of the crimes referred to in the warrant which he was required to consider. The statute imposed a function on him (not a duty or a power). His statutory function is (a) to consider whether or not there is a clear intention on the part of the authorities in Northern Ireland to prosecute the person named in the warrant for the offences with which he is charged and (b) to consider whether such an intention (if it exists) is founded on sufficient evidence (section 44B). Having satisfied himself on these points, he is then required to decide whether to give a direction to the Commissioner under section 44A. His function is a professional one, which the Oireachtas requires him to perform as part of the extradition process in relation to persons accused of crimes committed in Northern Ireland. In considering whether or not there is a clear intention to prosecute the person named in the warrant, the circumstances of the victim of the crime are in no way relevant. Likewise in considering whether or not the intention to prosecute is founded on the existence of sufficient evidence, the circumstances of the victim are in no way relevant. The statute conferred a public professional function on the Attorney General, which created no relationship of any sort between him and the victims of the crimes referred to in the warrants he was considering. This is in striking contrast to the statutory provisions of the Housing Act, 1966, which were designed to assist a class of persons and which the Supreme Court held in Ward v. McMaster [1988] I.R. 337, conferred a special relationship between them and the housing authority which resulted in the imposition of a common law duty of care.
In the absence of any relationship between the plaintiff and the Attorney General, I must hold that the Extradition Acts imposed no common law duty of care on the Attorney General in relation to the plaintiff.
(b) Public policy and a common law duty of care.
There is a further and compelling reason why the court should decide that no common law duty of care existed in this case. Even if there had been a sufficient relationship of proximity between the Attorney General and the plaintiff, and even if the kind of injury of which the plaintiff complains was reasonably foreseeable, in my opinion it would be contrary to public policy to impose a duty of care on the Attorney General.
The principles in Ward v. McMaster (and indeed in the pre-Ward law of torts) recognise that, on grounds of public policy, the law may not recognise the existence of a duty of care. Of course, only in exceptional cases will the court deny a right of action to a person who has suffered loss on the ground that it would not be in the public interest to allow it. In considering whether the Attorney General should be protected from actions for negligence, the court is balancing the hardship to individuals which such a rule would produce, against the disadvantage to the public interest if no such rule existed. How the court carries out this balancing exercise is illustrated in the House of Lords decision in Rondel v. Worsley [1969] 1 A.C. 191, in which the long established immunity from actions for negligence which barristers enjoyed was re-considered and justified on the grounds of public policy. In the course of his judgment (at pp. 227, 228) Reid L.J. pointed out that every counsel has a duty to his client to act fearlessly in his interests, but that, as an officer of the court concerned in the administration of justice he has an overriding duty to that court to the standards of his profession and to the public. A barrister must not mislead the court, nor cast aspersions on the other party, for which there was no basis in the information in his possession, must not withhold authorities or documents which may tell against his client, but which the law or the standards of his profession require him to produce. Because the barrister
is required to put his public duty before the apparent interest of his client, the public interest requires that on the grounds of public policy, the barrister’s immunity from suit be maintained (see pages 227, 228).
For similar reasons judges are immune from actions for negligence.
“This freedom from action and question at the suit of an individual is given by the law to the Judges, not so much for their own sake as for the sake of the public, and for the advancement of justice, that being free from actions, they may be free in thought and independent in judgment, as all who are to administer justice ought to be”.( Garnett v. Ferrant (1827) 6 B. and C. 611 (at pp. 625, 626)).
This case was quoted with approval and applied recently in this country in Deighan v. Ireland [1995] 2 I.R. 56. The principle was again applied in England, where it was held that on the grounds of public policy a duty of care ought not to be imposed on police investigating a crime ( Hill v. Chief Constable of West Yorkshire [1989] A.C. 53). And, of particular relevance to the issues in this case, it has been held in England that, on grounds of public policy, the Crown Prosecuting Service cannot be sued in negligence (see Elguzuoli-Daf v. Commissioner of Police of the Metropolis [1995] 1 Q.B. 335. The reasons why this immunity should be granted were explained as follows (at p. 349):
“That brings me to the policy factors which in my view argue against the recognition of a duty of care owed by the CPS to those it prosecutes. While it is always tempting to yield to an argument based on the protection of civil liberties, I have come to the conclusion that the interests of the whole community are better served by not imposing a duty of care on the CPS. In my view, such a duty of care would tend to have an inhibiting effect on the discharge by the CPS of its central function of prosecuting crime. It would in some cases lead to a defensive approach by prosecutors to their multifarious duties. It would introduce a risk that prosecutors would act so as to protect themselves from claims of negligence.”
In Canada, the question of prosecutorial immunity from suit in an action for malicious prosecution was considered by the Supreme Court in Nelles v. Ontario 60 D.L.R. (Fourth) 609. While referring to the authorities in Canada and in the United States in which immunity from actions of negligence was conferred by the courts on prosecutorial authorities the court held that immunity from an action for malicious prosecution should not be granted. The case, however, did not decide that such an immunity would not exist into actions for negligence.
Turning, then, to the facts of this case it seems to me that the denial of a right of claim for damages for negligence on the grounds of public policy arises from the functions which the Attorney General is called upon to perform in the public interest and the consequences for his ability properly to perform them, should the alleged duty exist. By conferring an important role on him in the extradition process, the Oireachtas has involved him in a significant way in ensuring that proper compliance with the State’s international obligations in the field of extradition is achieved. The Act requires him to weigh the information made available to him relating both to the intention to prosecute the person named in the warrant, and also the evidence on which the intention to prosecute is based, and should the information he obtains not be sufficient, he is required to request further information. If in carrying out this function, he is also under a duty of care to the victim of the crime referred to in the warrant not to delay, there is a risk, which I do not think it is in the public interest he should be asked to run, that a conflict may arise between the proper exercise of his public function and the common law duty of care to the victim which might result in an improper exercise of his statutory functions.
There are further compelling reasons why, in the public interest, the duty claimed by the plaintiff in this action should not be allowed. If a duty under the Act of 1965 exists it must logically follow (a) that the Attorney General would be under a similar duty in respect of any prosecutorial functions conferred on him by s. 5 of the Prosecution of Offences Act, 1974 and (b) that in exercising his prosecutorial functions under that Act, the Director of Public Prosecutions would owe a like duty to all victims of crimes in the cases in which he is considering the institution of prosecution. Because of the inhibiting effect on the proper exercise by the Attorney General and the Director of Public Prosecutions of their prosecutorial functions, it would be contrary to the public interest that a duty of care at common law be imposed on them. So to conclude is not to submit to a “flood gates” argument of doubtful validity, it is to accept the logical consequences, should the duty of care at common law be imposed in the execution by the Attorney General of his functions under the Act of 1965.
In reaching these conclusions, I have not ignored the arguments advanced on the plaintiff’s behalf. It was urged that to impose an immunity on the Attorney General against claims for damages for negligence would be contrary to the State’s constitutional obligations as established by the Supreme Court in Ryan v. Ireland [1989] I.R. 177. This, however, was not a case in which issues relating to immunity from suit on public policy grounds arose. The plaintiff, a soldier injured in the Lebanon whilst serving in the United Nations force, sued Ireland and the Minister for Defence for damages for negligence. The issue was whether, under Irish common law, an immunity from suit by a serving soldier in respect of operations consisting of armed conflict existed. The court held that no such immunity existed, but that if it did it would be inconsistent with the State’s guarantee to respect and vindicate the personal rights of the citizen, under Article 40 of the Constitution. The Supreme Court did not decide that in no case could the law confer immunity from suit on a constitutional officer and, as already pointed out, the Irish courts have recognised the validity of such a rule in relation to judges carrying out their judicial functions. Laws may limit the exercise of protected rights, and, in each case when the claim is raised, it is a question for the court to decide where, in the interests of the common good, the balance should lie.
It was further argued that even if the Attorney General was immune from suit on the grounds of public policy, this did not necessarily deprive the plaintiff of a claim for damages against the State arising from the negligent act of the Attorney General. Reference was made to the case of Walsh v. Ireland (Unreported, Supreme Court, 30th November, 1994), in which the plaintiff successfully sued Ireland for damages, as being vicariously liable for the negligent act of members of the Garda Siochana, in arresting the plaintiff on foot of a warrant issued by someone bearing the same name as the plaintiff. It was argued that a victim like the plaintiff in the present case who suffered injury due to the negligent act of the Attorney General should be at liberty to sue the State, even though an action against him personally was not maintainable. This would clearly be a novel form of immunity. It would mean that the wrongdoer (in this case the Attorney General) would be immune, but the State (assuming the State’s liability to be vicarious, or direct if the wrongdoer was an organ of the State) would not be immune. But it is an argument which does not answer the basic reason why immunity in the present case should be granted. It is not correct to assume (as this argument does) that if the Attorney General were relieved of personal liability to compensate a victim to whom he owed a duty of care, then the prejudicial effect of the existence of such a duty would disappear. The Attorney General would still be conscious that he owed a duty of care to the victim, that the State could be sued if he breached it and I think this knowledge would have the same disabling effect as a law which conferred personal liability on him for damages.
Finally, it was urged that the court should not follow the English decisions to which I have referred because they were decided after the House of Lords overruled Anns v. Merton London Borough [1978] A.C. 728, in Murphy v. Brentwood [1991] A.C. 398. But the reversal of Anns v. Merton London Borough had no effect on the principles to be applied when the court considers a claim for immunity from suit. They were applied by the courts in England in the cases to which I have referred without any reference to Anns v. Merton London Borough and whilst, of course, they are not binding on this court they serve usefully to illustrate one of the principles which Ward v. McMaster [1988] I.R. 337, concluded should be applied in this country, when considering whether or not it would be proper for the court to impose a private duty of care on the exercise of a public function.
The second issue
The second issue is this:
“Whether the defendants owed the plaintiff a constitutional duty or obligation under Article 40, s. 3 and/or Article 41 of the Constitution or otherwise to consider the extradition request the subject of these proceedings and to process speedily the said request as is alleged by the plaintiff in paras 10 and 13 (A) of the statement of claim.”
Paragraph 10 of the statement of claim claimed that the Attorney General owed a “constitutional obligation to the plaintiff to consider the extradition request and speedily to process it to ensure that the accused was quickly brought to justice”, and it was claimed that there was a breach of this constitutional obligation and duty in that the Attorney General “wrongly and without lawful excuse failed, neglected and refused to endorse the said warrants for execution within the State”. Paragraph 13 (A) claimed that the acts and omissions of the Attorney General “have infringed the constitutional rights of the plaintiff and caused her damage”.Sub-paragraph (A) gave particulars as follows:
“The defendants herein owed the plaintiff a constitutional duty by reason of Article 40, s. 3 and Article 41 of the Constitution of Ireland to defend and vindicate her bodily integrity and to protect the plaintiff’s family in its constitution and authority. In the context of the present case the said constitutional requirements obligated the
defendants, their servants and agents to process the said extradition warrants with all due speed and dispatch to ensure that the person who had violated the bodily integrity of the plaintiff and who had infringed the family rights of the plaintiff are swiftly brought to justice.”
The issue fixed by the court refers both to Article 40, s. 3 and Article 41. Article 41 deals with the Family but the plaintiff’s counsel has expressly stated that the plaintiff is no longer maintaining a claim for damages by reason of the breach of this Article. Her claim is limited to a breach of Article 40, s. 3 which provides as follows:
“1 The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.
2 The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen.”
It is well established that the right to bodily integrity is one of the personal rights which, although not specifically mentioned in this Article, are nonetheless protected by Article 40, section 3. The plaintiff’s case is that there existed a duty imposed on the defendants not to infringe her right to bodily integrity and that this involved an obligation to deal with the extradition warrants speedily, an obligation which the delays of the Attorney General breached, for which damages are recoverable.
(a) The existence of the asserted constitutional duty.
The duty which it is alleged the “defendants” (that is, Ireland the Attorney General and the Government of Ireland) owed to the plaintiff was to process the extradition requests speedily. While there is, of course, a general duty on the State (imposed by the Constitution) to defend and vindicate by its laws the citizen’s constitutional rights, what is alleged in this case is a specific constitutional duty arising under the provisions of the Extradition Act, 1965 (as amended). For reasons already explained, the Act of 1965 did not impose a duty of care on the Attorney General towards the plaintiff, and for similar reasons I do not think that it imposed a duty on him (or on any of the other defendants) not to infringe the plaintiff’s right to bodily integrity. The Act created no relationship of any sort between any of the defendants and the plaintiff and no circumstances of any sort existed by which a duty to take into consideration the plaintiffs bodily integrity (and so speedily consider the extradition warrants) existed.
There is, as I pointed out, a second reason why the Attorney General owed no duty of care at common law to the plaintiff, arising from considerations of public policy. The same reasons apply when considering the claim based on the Constitution. The rights guaranteed under the Constitution are not absolute rights (with the exception of an implied right not to be tortured, which must be regarded as an absolute right which can never be abridged) and their exercise and enjoyment may be, and frequently are, limited by reason of the exigencies of the common good. I concluded, applying well established principles of the law of tort, that it would be contrary to public policy to impose on the Attorney General a duty of care towards the plaintiff. The reasons why no common law duty existed also meant that no constitutional duty existed, because the exigencies of the common good (that is, in this case, the need to allow the Attorney General carry out his important public functions, without the threat of an action for damages for negligence at the suit of a private individual) justifies the court in depriving the plaintiff of a claim for damages for breach of duty not to infringe her right to bodily integrity. This means that none of the defendants owed under the Constitution the right asserted on the plaintiff’s behalf.
(b) The existence of a discrete action for damages for breach of a constitutionally protected right.
Although the views I have just expressed dispose of the plaintiff’s claim that she is entitled to damages for breach of a constitutionally protected right, I think it is proper that I should express my views on the issue which was extensively debated on this part of the case, namely whether, had a constitutional duty existed, an action for damages for its breach existed. In approaching this issue (essentially one of constitutional construction), constitutionally guaranteed rights may, as the court’s decisions show, be divided into two distinct classes (a) those which, independent of the Constitution, are regulated and protected by law (common law and/or statutory law) and (b) those which are not so regulated and protected. In the first class are all those fundamental rights which the Constitution recognises that man has by virtue of his rational being antecedent to positive law and are rights which are regulated and protected by law in every State which values human rights. In this country, there exists a large and complex body of laws which regulate the exercise and enjoyment of these basic rights, protect them against attack and provides compensation for their wrongful infringement. A few examples will suffice to demonstrate the point. The right to private property is protected by laws against trespass; its enjoyment is regulated by laws against the creation of nuisance; remedies for breach of the right to private property (by way of injunctive relief and actions for damages) are available, limitation on its exercise is provided for by law, allow for its compulsory acquisition and limit the power to dispose of it by will. The right to liberty is protected by habeas corpus Acts and laws against wrongful imprisonment, while the exercise of the right is limited by provisions of the criminal code and legal powers of arrest and imprisonment. The right of freedom of expression is regulated by defamation laws and laws to protect public morality. And the right which is in issue in this case, the right to bodily integrity, is protected by extensive provisions in the law of tort.
The courts have, however, pointed out that the Constitution guarantees the exercise and enjoyment of other rights which are not regulated by law and for which no legal provision exists either to prohibit an anticipated infringement or to compensate for a past one. It is now established that for this class of rights the Constitution is to be construed as providing a separate cause of action for damages for breach of a constitutional right. In Meskell v. C.I.E. [1973] I.R. 121, the Supreme Court held (at pp. 132-133):
“that a right guaranteed by the Constitution or granted by the Constitution can be protected by action or enforced by action even though such action may not fit into any of the ordinary forms of action in either common law or equity and that a constitutional right carries within it its own right to a remedy or for the enforcement of it.”
In Meskell v. C.I.E. the court held that the right of citizens to form associations and unions, guaranteed by Article 40, s. 6, sub-s. 1 necessarily recognised a correlative right not to join a union, that the defendant had wrongfully attempted to force the plaintiff to abandon his right to disassociation, and that the plaintiff was entitled to damages because of the violation of the right guaranteed to him by the Constitution (at p. 135), even though a claim for damages for infringement of this right was not available under existing law.
Subsequent to Meskell v. C.I.E. further cases have arisen in which the courts have awarded damages for breach of a guaranteed constitutional right where no remedy for damages existed by common law or by statute. In Kearney v. The Minister for Justice [1986] I.R. 116, the court held (at p. 122) that the unauthorised actions of prison officers in failing to deliver to the plaintiff (who was then in custody in prison) letters addressed to him, amounted to an infringement of his constitutional right to communication, the court holding that the wrong which had been committed was an unjustified infringement of a constitutional right, not a tort, entitling him to damages. In McHugh v. Commissioner of An Garda Siochana [1986] I.R. 228, the Supreme Court awarded the plaintiff costs and expenses incurred in proceedings against the State, in which the State had subsequently accepted liability, treating the claim as one of those referred to in Byrne v. Ireland [1972] I.R. 241, arising from a breach for which no damages were recoverable within a recognised field of wrongs in the law of torts, but for which the Constitution conferred a right to damages. In Kennedy v. Ireland [1987] I.R. 587, the constitutional right to privacy was infringed and the court, applying the principle in Meskell v. C.I.E. [1973] I.R. 121, held that the plaintiff was entitled to damages for breach of a constitutionally protected right, and not for breach of any wrong recognised by common law or statute.
The courts will not only award damages where a constitutional right, which is unprotected by law has been infringed, but will also grant an injunction to prohibit the infringement of such a right. In Lovett v. Gogan [1995] 3 I.R. 132, the Supreme Court held that the defendants’ activities constituted an actual or threatened interference with the plaintiff’s constitutional right to earn a living by lawful means, and it granted an injunction to protect him from the threatened invasion of those rights.
What falls for consideration in this case is not a guaranteed right of this second class, but a right (i.e. the right to bodily integrity) in respect of which there is a large body of law (both common law and statutory), which regulates its exercise, protects it against infringement and compensates its holder should the right be breached. The question, therefore, is whether, in this case, the Constitution is to be construed as conferring a discrete cause of action for damages for breach of the plaintiff’s right to bodily integrity, notwithstanding the existence of the law of tort and statutory provisions which confer a right of action for damages for personal injuries sustained by the negligent act or omission of another. The question can be posed this way:should the Constitution be construed so as to confer on a pedestrian, injured by an army lorry, a right to claim damages against the State for infringement of the right to bodily integrity in addition to, or as an alternate to, an action for damages for negligence?
I am satisfied that it should not be so construed.
The State has a duty by its laws to respect, and as far as practicable, by its laws to defend and vindicate the personal rights of the citizens (Article 40, s. 3, sub-s. 1). This constitutional provision does not require the Oireachtas to enact specific laws protecting constitutionally protected rights, and the State’s duty under this Article is implemented by the existence of laws (common law and statutory) which confer a right of action for damages (or a power to grant injunctive relief) in relation to acts or omissions which may constitute an infringement of guaranteed rights (see Hanrahan v. Merck Sharp & Dohme (Ireland) Ltd. [1988] I.L.R.M. 629, at pp. 635-636). Thus, if the law of torts makes provision for an action for damages for bodily injury caused by negligence and if the law also adequately protects the injured pedestrian’s guaranteed right to bodily integrity, then the State’s Article 40 duties have been fulfilled. The courts are required by the Constitution to apply the law and the causes of actions it confers and when these adequately protect guaranteed rights they are not called upon, in order to discharge their constitutional duties, to establish a new cause of actionindeed it would be contrary to their constitutional function to do so. Furthermore, to do so would be otiose. If a cause of action for damages for infringement of the constitutional right of bodily integrity were granted to the injured plaintiff in the example I have given, the court would have to consider whether there was any breach of the duty which the driver of the army lorry owed to the pedestrian (for the right is not an absolute one) and, in considering the nature and scope of the duty, would decide whether the lorry driver had failed to take proper care for the plaintiff’s safety, whether the pedestrian failed to take care for his own safety, apportion liability as required by the Civil Liability Act, 1961, assess damages in accordance with established principles, and in certain circumstances consider whether the claim was statute barredin other words apply the law of tort to the new cause of action. There is therefore no need to construe the Constitution as conferring a new and discrete cause of action for damages in those cases in which the acts or omissions which constitute the alleged infringement also constitute an actionable wrong at law for which damages are recoverable. Of course, a provision of the law to be applied might not, in a given case, adequately protect the guaranteed right (for example the law might contain a limitation period which in the particular circumstance trenched unfairly on a guaranteed right and thus deprive the plaintiff of a right to compensation, as in O’Brien v. Keogh [1972] I.R. 144, then the law would be applied without the provision, which would be rendered invalid by the Constitution).
The conclusions which I have just announced are consistent with and follow from the views of the Supreme Court in Hanrahan v. Merck Sharpe & Dohme (Ireland) Ltd. [1988] I.L.R.M. 629. The plaintiff in that case had claimed damages for a nuisance and submitted that the onus of proof in relation to his claim shifted to the defendants by reason of the provisions of Article 40, s. 3 of the Constitution. His case was that the vindication of his constitutionally protected rights was not properly effected by leaving him to his rights as plaintiff in an action for nuisance, and that the vindication which the guarantee contained in the Constitution required was that the defendants should show that the emissions from their factory (which was the cause of the alleged nuisance) was not the cause of the nuisance. The Supreme Court rejected this submission and pointed out (at p. 636):
“A person may of course in the absence of a common law or statutory cause of action, sue directly for breach of a constitutional right (see Meskell v. C.I.E. [1973] I.R. 121; but when he founds his action on an existing tort he is normally confined to the limitations of that tort. It might be different if it could be shown that the tort in question is basically ineffective to protect his constitutional right.”
These conclusions are also consistent with the views expressed in Meskell v. C.I.E. which, by holding that a new and distinct cause of action for damages for breach of a constitutional right was created when the existing law failed to confer any right to damages, implied that when it did so confer no new cause of action should be created. They are also consistent with those of Barron J. in Sweeney v. Duggan [1991] 2 I.R. 274, at p. 285.
I should briefly explain why I have not been able to agree to the submissions advanced on the part of the plaintiff. It is accepted that the decision in Hanrahan v. Merck Sharpe & Dohme [1988] I.L.R.M. 629 does not support the plaintiff’s case, but it is argued that the portion of the judgment which I have just quoted is obiter and that the number of authorities supporting the plaintiff’s contentions are more numerous and that Hanrahan is inconsistent with the decision of the Supreme Court in Lovett v. Gogan [1995] 3 I.R. 132.
However the authorities to which I was referred do not, in my view, establish either that the principle of construction which I have advanced is wrong, or that the decision in Hanrahan is in any way inconsistent with other decisions. Byrne v. Ireland [1972] I.R. 241 established that the State is not immune from suit whilst Ryan v. Ireland [1989] I.R. 177 established that the State could be sued in tort. But the issue now under consideration is whether a separate action lies for damages for breach of a constitutionally protected right, and the fact that the State may be sued for the tort of negligence has no bearing on that issue. It has been perfectly clear since Meskell v. C.I.E. [1973] I.R. 121, that the courts will award damages and grant injunctions for breach of constitutionally protected rights, but in each of the cases where that occurred Meskell v. C.I.E. was either explicitly or implicitly applied and damages were awarded (and in the case of Lovett v. Gogan [1995] 3 I.R. 132 an injunction was granted) where no remedy at law existed. None of those cases decided that an action for damages for breach of a guaranteed right would lie in cases where the existing law protected the right.
I am satisfied that the law of torts which is applicable in this case was not ineffective to protect the plaintiff’s constitutionally guaranteed rights. It does not follow that because a plaintiff does not recover damages under the applicable law (in this case, the law of torts) it must be ineffective in protecting guaranteed rights. It is necessary to consider why the plaintiff’s claim has failed. As already explained, the applicable principles of the law of torts established that there was neither a duty owed to the plaintiff by the defendants under the law of torts, nor the Constitution, to process the extradition warrants speedily, and so by applying the principles of the law of torts the plaintiff was not deprived of a remedy to which she was entitled under the Constitution.
The second issue must therefore be answered in the negative.
The third issue
The order of the 11th November, 1996, was as follows:
“Whether the second defendant owed to the plaintiff a duty by reason of the provisions of the Extradition Acts, 19651987 (and in particular, by reason of s. 2 of the Extradition (Amendment) Act, 1987), to consider the extradition request the subject of these proceedings and to process speedily the said request as is alleged by the plaintiff at para. 11 of the statement of claim herein.”
This issue arose from the plaintiff’s claim that apart from a duty owed by the Attorney General to the plaintiff by virtue of the common law and/or the Constitution, he also owed a statutory duty of care to the plaintiff which was breached. Counsel on behalf of the plaintiff informed me that it was not intended to maintain this claim and accordingly I will answer the issue, “no”.
In the result, therefore, I must hold that the Attorney General owed no duty of care to the plaintiff on any of the grounds advanced on the plaintiff’s behalf, and answer the three issues in the negative.
Farrell v Deansbridge Couriers Ltd
[2019] IEHC 916 (20 December 2019)
JUDGMENT of Ms. Justice O’Hanlon delivered on the 20th day of December, 2019Introduction1. The proceedings herein issued on 13th day of October, 2014 under record no. 2014/8671P.2. By way of certificate bearing authorisation no. PL0409201446843 dated 11th April, 2014and certificate bearing authorisation no. EL0409201446850 dated 16th April, 2014 thePersonal Injuries Assessment Board authorised the plaintiff to bring proceedings inrespect of the above entitled claims pursuant to s. 17 of the Personal Injuries AssessmentBoard Act, 2003 and 2007.The plaintiff’s evidence3. The plaintiff was at the time of the institution of the proceedings a courier residing at 52The Beeches Callystown, Clogherhead in the County of Louth. As of the date of theinstitution of the within proceedings the defendant was a limited liability companyregistered in this jurisdiction with registered offices at JF Industrial Estate RathmullenRoad, Drogheda, in the County of Louth. The plaintiff brings these proceedings claimingthat at all material times he was a visitor as defined by the Occupiers Liability Act, 1995at the said premises. He further claims that the said premises was a place of work withinthe meaning of the Safety Health and Welfare at Work Act, 2005 and the Safety Healthand Welfare at Work (general applications) Regulations, 2007.4. The plaintiff gave evidence that he began his working life by collecting glasses in a publichouse between the ages of 12 and 16 years. Thereafter he worked in nightclubs while hestudied to do his leaving certificate examination which he passed. He then worked inSpain for five years in the bar trade there.5. On his return to Ireland he had part-time security work in Our Lady of Lourdes Hospital,Drogheda, Co. Louth. The plaintiff explained that he always worked very hard andenjoyed driving and was pretty good at it. He then went to work for the defendantcourier company and all went well for the first two years, but he says that all of a suddenMr. Black, who is the manager in the business, became very aggressive towards him. Onone occasion he began throwing parcels in the direction of the plaintiff who was trying tosort out parcels in the middle of the depot and spoke to the plaintiff in abusive termssaying that he would direct him to do as he was told and used coarse language. Theplaintiff’s evidence was that the harder he worked the worse the treatment of himbecame. On another occasion the plaintiff was directed to go to Ashbourne incircumstances where he advised that if he were to attend at Ashbourne he would not bePage 2 ⇓able to finish his deliveries for that day but then he continued to follow the instruction hewas given. The following morning, he was chastised for acting on the instruction given todrive to Ashbourne. He described going to Ashbourne on the instruction of his boss tocollect two pallets. The following morning Mr. Black was very aggressive because theplaintiff hadn’t been able to actually deliver them. He described how he and his wife hadsaved €25,000 over two years in order to buy a house at that stage and he said thatbecause of the persistent abuse by Mr. Black towards him other drivers stopped talkingto the plaintiff Mr. Black was not around. On another occasion when he pointed out thatthe van he was given to drive was not road worthy Mr. Black said to him that if it brokedown he wanted that to happen in the town of Drogheda. If another worker had aproblem with a van the plaintiff was required to swap vehicles with that person, with theplaintiff then having to use the less roadworthy vehicle.6. The plaintiff described on one occasion being abused by Mr. Black because the sparewheel didn’t appear to be in the van and the plaintiff had no knowledge of itswhereabouts. Another worker pointed out that Mr. Black had taken it out of that particularvan a few days before and had hidden it behind the bin. This was the van which theplaintiff had been directed to drive.7. On one occasion on a Thursday he had unloaded his van and was ready for work the nextday and he was waiting to be paid. He describes being paid in a manner which left himfeeling very humiliated and degraded when the pay cheque was thrown by the Director,Mr. Black at his feet and he had to go down on bended knee to pick it up. He felt thatthis was very unfair treatment in circumstances where he had worked very very hard.8. On another occasion when he, his wife and child were all unwell he was obliged to take asick day off work and he left the van back to the depot. He states that Mr. Black followedhim, his wife and child to the Tesco store. He found this very very intimidating and feltthat he was being threatened and that his wife and son were also being threatened bybeing followed by Mr. Black.9. Thereafter the plaintiff managed to seek better employment with Supermacs Drogheda asa manager for two-year period and now works as a warehouse manager with Ecopipe inNorth Dublin where he began that employment two months ago. The plaintiff claims tohave suffered a loss of earnings of €5,243.04. He suffered from a complete lack ofresponse from the defendants from 2014 on and felt that there was stonewalling. He hadworked for the defendant for an eight-year period and despite them being notified andserved with the proceedings with ample proof of service they have refused to meet theclaim. The plaintiff’s counsel submitted that outlay from the solicitor’s point of view hasbeen hugely significant and contended that the defendants have behaved in a mannerhugely disrespectful to the court. The plaintiff sought aggravated damages for bullyingand harassment. Seven years after his ankle injury he is deemed to have an inversioninjury to his ankle and to have complex pain syndrome. The plaintiff describes standardprocedure in the depot where pallets were delivered to the middle of the depot for sortingand the procedure is that each driver would sort out their own parcels in the order inPage 3 ⇓which they would be delivered. On one occasion the plaintiff was directed to wait until allthe other parcels were sorted out before he could begin to sort his parcels for delivery.When the plaintiff attempted to put parcels into his running order the plaintiff wasshouted at by Mr. Black.10. “What the …. did I tell you?” and when the plaintiff pointed out that other drivers werepermitted to sort their parcels and he was not, the defendant’s replied “you do as you are… told”. The plaintiff felt that on return to the depot Mr. Black would single him out eventhough he might have delivered more parcels than other workers and he felt he was beingtreated differently.11. The court deemed service good in circumstances where a number of motions had to issuebefore judgment in default of appearance was granted by order, dated 19th January,2015, with an order that the matter be set down for hearing for assessment of damagesand granting the costs of the suit after the adjudication of costs to include the costs of themotion and such assessment to take place before a judge sitting alone.12. He describes events on another occasion in 2013 in the depot. It was a Tuesday morningand the plaintiff was to deliver material to Hickeys Pharmacy. Mr. Black’s office wasbehind him and as the plaintiff moved the parcels from one side to the other he noted inthe van mirror that Mr. Black had a rifle. He states that Mr. Black had pointed the sight ofthe rifle at the back of the plaintiff’s head as he moved and that he was facing away fromMr. Black at the time. The plaintiff himself was FCA trained and he could thereforerecognise that the weapon could have gone off at any time. He was aware that one oughtnot point a weapon, such as the rifle in the hand of Mr. Black, unless one intended toshoot. The plaintiff noticed a small red light over his head on the inside of the van whenhe was unloading it which appeared to be on the inside of the van and seemed to becoming from behind him. When he turned around Mr. Black was present with a rifle whichhad a laser site on it and which Mr. Black was pointing at the back of the plaintiff’s head.13. The plaintiff felt that even though he worked excessive long hours and had high levels ofproductivity Mr. Black consistently expressed dissatisfaction and felt that his best was notgood enough. The experience with the rifle had a very detrimental effect on the plaintiffwho was afraid to go to work, couldn’t sleep and felt very down on the following Sunday.He believes that the defendant showed a grudge against him for no particular reasonwhatsoever and was very afraid that the next time the trigger could easily be pulled.Because of the economic downturn at that stage, he was obliged to remain in thatemployment for two more years and Mr. Black continued to be very aggressive towardshim. The plaintiff was worked excessively hard, beginning at 7am and taking no breaksbecause he wouldn’t have been able to get the work done otherwise such was thepressure placed on him by Mr. Black, the company manager.14. The plaintiff further contends that the defendant turned off lights in the depot on occasionwhich meant that it was quite dangerous there as the depot itself had grey concrete floorsbut that there were potholes outside. Where the vans came and went he said there wasno kind of identification marking the step from inside to outside and that with the poorPage 4 ⇓lighting a person walking out could be forgiven for believing they were still on a flatsurface. On the 17th April, 2012 the plaintiff was caused to fall in such circumstancesand suffered an injury to his ankle resulting in what he described as an indescribable painwhere he couldn’t move. He states that Mr. Black smiled at this and kept on working andthe plaintiff was left there in pain for fifteen minutes. The plaintiff further gave evidencethat Mr. Black continued picking up parcels at that stage and began throwing them athim. He took Nurofen and he was afraid of the defendant but did not want to lose his job.He tried to continue working but after a couple of days he had to cease because of thepain in the ankle. He attended his doctor and was very down. He tried to hide his moodas best he could but was given antidepressants. He was very depressed about the factthat he couldn’t carry his son on his shoulders as he was afraid that the ankle would giveway and he says that although he had two sessions of physiotherapy at the time hecouldn’t afford more. Ten days after this accident he signed off on sick leave and he wasoff for three months with depression. He asked his employer for help with his medical billand got none. He was obliged to take taxis at a cost of €40 to €50. He says that after hereturned to work his fellow workers were afraid to speak to him in case the difficultieswould come back on them from their employer.15. On or about the 21st November, 2016 an order directing service by leaving a copy of theorder granting judgment in default by ordinary pre-paid post on the defendant at theaddress where it was known the defendant was carrying on business and that suchservice be deemed to be good and sufficient service of the order and of any futuredocuments requiring personal services upon the said defendant at Ballymakenny RoadDrogheda, Co. Louth. Liberty was also given to serve the order of 19th January, 2015and of the order of 21st November, 2016 by registered post on the Registrar ofCompanies Parnell House, Parnell Square, Dublin 1. By further order of 2nd February,2018 liberty was given to serve proceedings on Mr. James Black and Ms. Mary BradyDirectors of the defendant company with very specific directions including service on thecompany’s registration office and the defendant’s accountant, his current trading office,eighteen affidavits of service have been filed in this case.The Medical evidence16. The plaintiff’s general practitioner Mr. John Mulroy prepared three reports for court andgave evidence as follows. He indicated that in 2007 the plaintiff started attending him asgeneral practitioner initial stress symptoms appeared in 2009 when the plaintiff showeddefinite psychological stresses with chest pain and breathlessness which the doctor hadinvestigated and which he attributed wholly to stress rather than physical injuries. Thiswas when the plaintiff showed signs of anterior chest tightness associated with spinalvertebral dysfunction in May, 2009. The result of the appropriate investigations weresuggestive of psychological rather than physical cause.17. This witness gave evidence of the aftermath of the plaintiff’s accident concerning his ankleon the 17th April, 2012 when his right ankle was found not to be capable of bearingweight and his injury was consistent with the ligaments on the inside of the foot beingPage 5 ⇓damaged. There was no fracture but the plaintiff was in severe pain and that wasdescribed by his general practitioner as not being unusual.18. The plaintiff was found by his general practitioner to have swelling and tenderness on theday of this injury the right lateral malleolus and restricted range of right anklemovements with what he called a severe inversion injury. The plaintiff had been given acertificate to remain off work for one week and an early return to work on 27th April,2012 gave rise to the difficulties with his back. Regarding his back he suffered veryrestricted range of movement of the lumbosacral low back with lumbosacral musclespasms bilaterally but more obvious on the right side and he was off work and certifiedincapable of working for a further two weeks. He went back to work before the twoweeks was up and told his doctor that six weeks passed before he could walk withoutexperiencing severe pain.19. His general practitioner described his patient’s history as the victim of a consistentpattern of workplace bullying where he believed that objectively and subjectively that hewas treated differently and unfairly at the hands of one individual in authority and wastargeted on one occasion with a rifle which had a severe negative impact on him and hisfamily. At that stage he was beginning to manifest signs of depression, depressed mood,feelings of hopelessness and sleep disturbance. On examination he was found to havemild darting pain with activity in the right anterolateral ankle joint with talofibularligament to the head of the fifth metatarsal mid-lateral foot. His ankle felt unstable andhe was in constant fear of it giving away.20. At that stage he was found to have constant pain and moderate to severe low backstiffness on average three to four days out of seven precipitated by everyday activities.Sleep disturbed by pain in the back induced by twisting or turning over in bed as well aslow back stiffness after rising which could last for a number of hours. His pain wasobvious to him most days and there was a limitation of activities at least for half the daysof the week on average.21. The plaintiff at that stage was complaining of low mood, increased irritability andaggression and difficulties coping with everyday stresses, increased anxiety, lack ofinterest or pleasure in former interest and hobbies, sleep disturbance, a strainedrelationship with his wife and withdrawal from social activities. At that stage theprognosis was guarded and physiotherapy was advised. Oral and topical non-steroidalanti-inflammatory medications were used as well as codeine based analgesics in order totreat his physical difficulties. A second report of 29th June, 2016 confirmed ongoingdiscomfort in the right ankle when weather is cold, while driving, with prolonged standingand after walking one to two miles. This right ankle instability causes difficultiesnegotiating uneven or sloped surfaces with reduced balance and coordination. Low levelback pain is a feature after prolonged standing as is also the case where the plaintiff isunable to reach his arms over his head when his back is uncomfortable and when bendingis also restricted, squatting is restricted, thighs are not reaching parallel with the groundbecause of discomfort in the right Achilles tendon. The view of the plaintiff’s doctor wasPage 6 ⇓that since the plaintiff was no longer exposed to the alleged workplace bullyingpsychological symptoms have resolved since the 5th May, 2015. The plaintiff was foundto have mildly restricted right ankle dorsiflexion which physiotherapy should help. Lowback discomfort should respond to mobilisation treatment delivered by a physiotherapist.22. Ten days later he attended his doctor with an injury to the lower back. The diagnosis wasthat he had to be careful as to how he used his right foot at that time and he altered howhe lifted heavy loads and how he stepped up into the van and this meant that in adjustinghis back to protect his ankle he suffered an injury to the lower back. This generalpractitioner was of the opinion that ankle injuries although this injury was classified asminor it took longer to heal in that the plaintiff’s nerve muscle control mechanism hadbeen thrown out of kilter and the plaintiff had to relearn how to use his ankle. He wasfearful that the plaintiff was going to suffer continued loss of power in the ankle and feltthat the plaintiff did not have as much physiotherapy as he the doctor would have wished.He found that the plaintiff’s ankle was incompletely recovered structurally and that therewas damage to the soft tissue in and around the joint. He said that the brain wasinvolved in relation to the ankle injury and described the plaintiff as having complexregional pain requiring extensive rehabilitation and physiotherapy and that he hadsuffered persistent functional disturbance. The plaintiff is still not restored to the formeruse of his ankle in terms of his functional control and the structure has suffered atrophyand a perceptual and functional disorder. The doctor stressed the effect of the eventwhere a loaded rifle was put to the plaintiff’s head by the plaintiff’s employer thedefendant and the fear that that engendered in the plaintiff who felt he could have beenshot. The doctor felt that there was a pattern of behaviour which caused the plaintiff tobe irritable, angry, to have low mood and to be aggressive to his wife. He did not feelthat these injuries were in the area of post-traumatic stress disorder in terms of hisdiagnosis but rather that the events exacerbated a pre-existing anxiety. These difficultiespersisted until the 26th June, 2016 when the plaintiff was in new employment and hefound that by May, 2015 the psychological difficulties were beginning to resolve. His thirdreport in 2018 referred to coldness in the ankle and the plaintiff’s efforts to keep it warmby wearing a second pair of socks for example. He was driving long distances on unevenground and he couldn’t certain activities with his child he couldn’t carry his child on hisshoulder because of the weakness in his ankle and he suffered sleep disruption at thattime. The doctor’s first report was dated the 2nd April, 2014. In this first report thedoctor outlined how fifteen years prior to this time the plaintiff had been treated with lowback and posterior thigh pain which resolved spontaneously over a three-day period andalso told his doctor that he had been involved in a road traffic accident years prior to thatwhen he had neck stiffness for several weeks in respect of which he did not seek medicalattention and were symptoms resolved spontaneously. He also had a prior injury to theleft knee at work in 2008 but that resolved in one day.23. Dr. Mulroy general practitioner, gave evidence to this Court and his first report is dated2nd April, 2014. He described the date of the accident as 17th April, 2012 when theplaintiff suffered a right ankle injury and whereby on the 28th April, 2012 he suffered lowback pain which the doctor attributed to the ankle injury resulting from posture problemsPage 7 ⇓arising out of this injury. This witness described how he examined the plaintiff on the 5thMarch, 2014 and he found him to be complaining of psychological distress caused byworkplace bullying, right ankle pain, right low back pain and restriction in the activities ofdaily living. Fifteen years’ prior to this time the plaintiff had been treated with low backand posterior thigh pain which resolved spontaneously over a three-day period. He hadalso gave a history to the GP of being involved in a road traffic accident years ago whichresulted in mild neck stiffness for several weeks and in respect of which he did not seekmedical attention and where symptoms resolved spontaneously. He had also hurt his leftknee at work in 2008 but that resolved in one day although it was painful enough todisturb his sleep.24. The plaintiff suffered anterior chest tightness associated with spinous vertebraldysfunction in May, 2009 which was associated with stress at work and again in Februaryand September, 2010 and which was not associated with exertions and he was referred tothe Accident and Emergency Department of Our Lady of Lourdes Hospital, Drogheda, Co.Louth where he underwent an exercise stress test which was negative, in September,2010.25. The plaintiff describes stepping out of his van on 17th April, 2012 onto an uneven surfacesustaining an inversion injury to the right ankle with immediate severe pain causing himto scream when he fell to the ground. The plaintiff was found to have swelling andtenderness the same day when examined by the GP around the right lateral malleolus andrestricted range of right ankle movements consistent with severe inversion injury. An x-ray was carried out but no fracture was detected. He was given a certificate to remain offwork but after one week he attempted to return to work but developed a right sided lowback pain around April 27th 2012 while lifting delivery loads and guarding his right ankle.The plaintiff attended the Magdalene Medical Clinic on April 30th and May 8th 2012. Hehad a very restricted range of movement of the lumbosacral low back with lumbosacralmuscle spasm bilaterally more but obvious on the right side. He was certified asincapable of working for a further two weeks. Although he was not fit for work hereturned without making a full recovery and he told his doctor that six weeks passedbefore he could walk without experiencing severe pain. He sustained an inversion injuryto the right ankle and continues to have right ankle discomfort.The lawLegal submissions on behalf of the plaintiff26. An order was granted by Justice Iseult O’Malley on 19th January, 2015 for judgment indefault of appearance in respect of this matter which became before this court on 22ndNovember, 2019. The plaintiff brought these proceedings in respect of his claim arisingout of a severe inverted injury to his right ankle. The plaintiff suffered an injury whichcontinues to give him difficulty and is symptomatic. His general practitioner is of the viewthat he may continue to suffer from chronic pain syndrome caused by his accident. Theplaintiff’s claim is also for bullying and harassment in work resulting in psychologicalinjuries as well as for his ankle injury.Page 8 ⇓27. Reference is made to breach of duty of care owed by the employer to an employeeMcMahon and Binchy Law of Torts 4th Ed. para. [18.80] which states:“There is no distinctive tort of bullying or harassment. The question is to beresolved in a context of the employer’s liability, by asking whether the employerstook reasonable care not to expose the plaintiff to the risk of injury from suchconduct.”28. The legal definition of workplace bullying is defined in para. 5 of the Schedule to theIndustrial Relations Act, 1990 (Code of Practice Detailing Procedures for AddressingBullying in The Workplace) (Declaration) Order, 2002 (S.I. No. 17/2002). That orderdeclares that the code of practice set out in the schedule shall be a code of practice forthe purposes of the Industrial Relations Act, 1990. Paragraph 5 of the taskforce on theprevention of workplace bullying published in March, 2001 defines workplace bullying forthe purposes of the code of practice as follows:“Workplace Bullying is repeated inappropriate behaviour, direct or indirect, whetherverbal, physical or otherwise, conducted by one or more persons against another orothers, at the place of work and/or in the course of employment, which couldreasonably be regarded as undermining the individual’s right to dignity at work. Anisolated incident of the behaviour described in this definition may be an affront todignity at work but, as a once off incident, is not considered to be bullying.”29. The Court of Appeal in Ruffley v. Board of Management of St. Anne’s School [2005] IECA 287heard an appeal against a decision of Mr. Justice O’Neill (then in High Court) given on9th May, 2014 whereby the High Court awarded the plaintiff €255,276.00 and costs onfoot of her claim for bullying and harassment in the course of her employment as aspecial needs assistant in the defendant’s national school. The then President of the HighCourt and Ms. Justice Irvine allowed the appeal on the basis that inter alia there wasinsufficient evidence in the case to demonstrate workplace bullying and at p. 22 of thejudgment Ryan P. (then President of the Court of Appeal) states that for workplacebullying there needed to be inappropriate behaviour which was repeated directly orindirectly at the plaintiff and that this could reasonably be regarded as undermining theplaintiff’s right to dignity at work. At p. 8 of the judgment of Finlay Geoghegan J. in thesame case stated: -“Accordingly I have concluded that a court must first assess whether the conduct orbehaviour alleged is objectively to be considered as repeated inappropriatebehaviour. If so it must then determine objectively whether it is reasonably to beregarded as undermining the individual’s right to dignity at work.”30. It is submitted that in the instant case there were numerous examples, given in theevidence and pleadings, of the plaintiff describing incidents stripping him of his right todignity at work and putting him in fear of his own life and at the time he believed thedefendant might shoot him dead.Page 9 ⇓31. Reference is made to Maher v. Jabil Global Services Limited [2005] IEHC 130 when ClarkeJ. considered the duty of care an employer had in relation to an employee who allegesthat he suffered physical and mental health during the course of his employment andthree questions were identified by that judge which have to be addressed as follows:“has the employee suffered an injury to his or her health as opposed to what maybe described as ordinary occupational stress; if so, is that injury attributable to theworkplace and if so, was the harm suffered by the particular employee concernedreasonably foreseeable in all the circumstances”.32. It is submitted that from the evidence of the plaintiff not only was the injury sufferedreasonably foreseeable but it seems to have been the desired effect of the defendant’srepeated behaviour towards the plaintiff. In other words, the test on intention issatisfied.33. Mr. Justice Fennelly in Quigley v. Complex Tooling and Moulding Limited [2009] 1 I.R. atp. 349 states:“The plaintiff cannot succeed in his claim unless he also proves that he suffereddamage amounting to personal injury as a result of his employer’s breach of duty.Where the personal injury is not of a direct physical kind, it must amount to anidentifiable psychiatric injury.”34. Doctor Mulroy GP gave extensive evidence showing that the plaintiff’s anxiety hadrequired ECG testing and that ultimately his depressive order was caused by the bullyingand harassment he was subjected to by the defendant, which required being prescribedanti-depressants for an extended period of time and also required him to take anextended period of time off work.35. The plaintiff’s submissions draw comparisons in terms of quantum between the instantcase and the Ruffley case. In the present case the plaintiff suffered depression, anxiety,feelings of hopelessness, sleep disturbance, increased irritability and aggression, difficultycoping with everyday stresses, lack of interest or pleasure in former interests and hobbiesand a strained relationship with his wife as well as withdrawal from social activities.Counsel has drawn attention to the fact that the circumstances in the Ruffley case arequite different on the facts to this case and in that case the Court of Appeal found it notto be a bullying and harassment case but they did unanimously uphold Mr. JusticeO’Neill’s award for general damages.36. Liability for workplace bullying therefore comprises four essential proofs, all met in thiscase(a) that the plaintiff has suffered a recognisable psychiatric injury,(b) that the injury was caused by the plaintiff’s treatment at work,(c) that the plaintiff’s treatment at work satisfies the definition of workplace bullying.Page 10 ⇓(d) that the plaintiff’s injuries were reasonably foreseeable.Findings of fact37. Viewed objectively, there is no doubt in the mind of this Court but that the plaintiff hassuffered in relation to the defendant’s breaches in tort, contract and pursuant to statuteand in particular the plaintiff has a duty not to permit bullying to take place in theworkplace and also has a duty not to cause the plaintiff psychiatric/psychological damageor any emotional or mental distress by reason of a hostile and bullying environment inwhich the plaintiff was required to work.38. The defendant further has a duty not to undermine the plaintiff in the workplace and aduty to heed and investigate the plaintiff’s complaints in relation to his treatment in theworkplace including his complaints of being bullied, harassed, overworked and/orsubjected to unfair treatment or disciplinary sanction.39. It is quite clear from the evidence of the plaintiff that there was an uneven surface and itwas not marked as defining it as between the indoor and outdoor surfaces on thepremises and this caused the difficulty for the plaintiff leading to a severe ankle injury.Ample evidence was given to the court outlining nine instances in all of repeated andcontinuous bullying even to the point where the plaintiff believed that he could have beenshot and was in fear for his life and for the well-being of his family.40. The defendant’s treatment was unfair towards the plaintiff in unfairly subjecting him todisciplinary sanction and in fact showed a bullying attitude by his abusive behaviour inessentially trying to wrong-foot the plaintiff on a number of occasions giving him a chorethen countermanding the order and then chastising him for not carrying out the firstinstruction while failing among other things to provide him with the proper rain gear tocarry out the tasks. The defendant’s manager, being the plaintiff’s superior, on theevidence of the plaintiff to this Court, was downright abusive towards him continuously,persistently and he was threatening to him. The worst incident of this was, when in hisvan, the plaintiff could see in the mirror a red light and could see that there was guntrained on the back of his head and with his FCA training he was well aware of thedangers and thought he was going to be killed. This gun was in the hands of theplaintiff’s superior.41. An example of bullying included his being singled out as to the manner in which he was tocarry out the work and being treated negatively and offensively in front of other staffmembers when the defendant shouted at him across the depot using foul languageabusively towards him. Viewed objectively, this was a pattern of behaviour. He wassingled out on one particular occasion concerning returned parcels and late deliverieswhen he, the plaintiff, had helped others unload their vans and they were all ready to gohome but still he hadn’t been given his paycheque. When he asked for same thedefendant threw the cheque on the ground at the plaintiff’s feet in the front of staffmembers. The plaintiff suffered continuously for a five-year period, from this pattern ofbullying behaviour.Page 11 ⇓42. The plaintiff’s ankle condition was treated by his doctor. It was an inverted injuryalthough there was no fracture. What is difficult about this injury in terms of quantum isthe fact that he still has symptoms arising from same and that his doctor gave evidenceas to his belief that he may have acquired a chronic pain syndrome as a result. Despiteintensive treatment he still has this problem. He has been referred for further paintreatment.43. In addition, it is his doctor’s belief that the injury to the ankle caused acerbated chronicright sided low back pain which still affects him when lifting heavy loads and the doctorexplained this as the plaintiff’s attempt to protect his right ankle which lead to this furtherdifficulty. His doctor found him to have mild right lateral neck discomfort and milddiscomfort in his posterior upper left arm. He has severe problems still reaching andbending. The plaintiff was not able to bear weight or to walk without severe pain for a sixweek period arising out of the inversion injury to the ankle. His doctor detaileddorsiflexion of the right ankle as minus 90 degrees with reduced inversion and eversionand a tender right talofibular ligament and calcaneocuboid joint difficulties. The plaintiffwas treated for the psychological problems associated with bullying arising out of theseincidents by his general practitioner who found that his difficulties did not reach the levelof post-traumatic stress disorder but did require treatment over an extensive number ofyears and that he did suffer a significant loss of the amenities of life as a result havingdifficulties in his relationship with his wife, being more irritable and certainly havingdepression and anxiety.44. This Court finds that these sequelae in terms of the psychological injury, arising out of thebullying and harassment at work of the plaintiff were reasonably foreseeable and yet,despite that, the defendant company and its management, even though the defendantand the plaintiff’s particular manager knew well the effect that this was having on thisgentleman as his employee, continued treating him in a manner which is not legallypermissible. On the balance of probabilities, the plaintiff’s physical injuries as outlined byhis general practitioner were attributable not only to an accident at work where the areawas not properly delineated as having a different level between the inside and the outsideof the building which was negligent on the part of the defendant in failing to ensure a safeplace of work and the accident was reasonably foreseeable and the psychological injuriesare attributable on the balance of probabilities to the bullying pattern of behaviour of thedefendant employer over a considerable period of years, by any objective standard.45. It is interesting to note that this employee left the employment to take up a managementrole with Supermacs in Drogheda for a two-year period and now is in a furthermanagement role as a warehouse manager.46. It is quite clear from the evidence of the plaintiff’s doctor that the plaintiff has suffered arecognisable psychiatric injury. He has been treated for same and has been obliged totake time off work as a result of same. His medical practitioner has no difficultyobjectively attributing this illness to bullying of the plaintiff at work.Page 12 ⇓47. The plaintiff’s own evidence gives viewed objectively a picture of repeated inappropriatebehaviour directly inflicted upon him both verbally by one person at the place of work andon any view objectively this could be reasonably regarded as undermining the individual’sright to dignity at work. It is not a question in this case of an isolated incident of thebehaviour described in the definition as being an affront perhaps to dignity at work orsimply as a once off incident which would not be considered to bullying.48. It is quite clear from the evidence of the plaintiff that the injuries he receivedpsychologically were reasonably foreseeable. He was candid in giving evidence to thecourt of any previous difficulties he had had as a result of previous injuries/accidents andthis Court formed the view that what he described was certainly much more than ordinaryoccupational stress attributable to the situation in which he found himself in theworkplace. This Court has no difficulty finding that the harm suffered to the particularemployee concerned was reasonably foreseeable in all the circumstances.49. As against this this Court has had to deal with the fact the plaintiff while he through hissolicitors took every step to ensure proper service on the defendants which was extensivein all its efforts and was court directed and mandated and that seventeen affidavits ofservice in all had to be filed, such was the difficulty in trying to have the defendant meetthe matter properly. In the final analysis there was no meeting of the matter by thedefendant employer. That causes an extra difficulty for this Court in trying to fully assessthe evidence given.50. The plaintiff was in this regard an impressive witness anxious to work with a good patternof work all of his life from a very young age and subsequent to his leaving the saidemployment has had two management positions with two well-known companies. He didnot exaggerate the situation but it is clear that the continuous pattern of behaviour by hisemployer towards him did cause him grave difficulties from a psychological point of view.51. In all the circumstances this Court deems it appropriate taking into account his physicalinjury which was an inverted ankle injury in respect of which he still continues to havepain and suffering, his low back pain which resulted from the way in which he had to holdhimself to protect and prevent pain or minimise pain in his ankle in the sum of €55,000 inrespect of his physical injuries pain and suffering to date with a deduction from that sumof €5,000 because of the plaintiff’s failure to attend sufficiently for physiotherapy asrecommended by his medical practitioner. This Court awards the sum of €30,000 inrespect of pain and suffering into the future in the ankle because he still has anincompletely recovered structure and the difficulty for rehabilitation in this case accordingto the medical evidence was that the brain was involved that it is a complex regional painand that this plaintiff requires extensive physiotherapy and rehabilitation and that he haspersistent functional disturbance and that the use of his ankle is not restored to its formerstatus in terms of functional control. The finding of his GP was that the ankle structuresuffered from atrophy and that it was and is perceptually and functionally disordered.52. In respect of his psychological difficulties it is quite clear from the medical evidence giventhat his difficulties pertain to the working environment in terms of psychological difficultyPage 13 ⇓and in particular reference was made by his medical practitioner in his evidence to thefact that a loaded rifle was put to the plaintiff’s head by his boss and that there was apattern of behaviour which caused the plaintiff to suffer irritability, anger, low moodaggression towards his wife but he said that it did fall short a PTSD diagnosis and thatsince the 5th May, 2015 the plaintiff’s psychological difficulties had resolved. This medicalwitness was strongly of the view that the treatment by the defendant of the plaintiffexacerbated a pre-existing anxiety and he was treated with anti-depressants and hadsymptoms of depression.53. This Court awards to this most credible witness the sum of €55,000 in respect of thepsychological difficulties suffered by the plaintiff noting that these difficulties were verysignificant for a three-year period and ended when the plaintiff changed his place ofemployment and by the 5th May, 2015 his psychological systems resolved. This Courtfurther awards the plaintiff €5,000 by way of loss of earnings.
Result: Judgment is in favour of the plaintiff
Dicker -v- The Square Management Ltd & anor
[2016] IEHC 570 (07 October 2016)
JUDGMENT of Mr. Justice Barr delivered on the 7th day of October, 2016
Introduction
1. This action arises out of an accident which occurred on 31st August, 2012, at a shopping centre known as The Square Town Centre in Tallaght. The plaintiff had entered a lift at the premises in the company of her young son. The doors malfunctioned on the lift causing the plaintiff to be trapped in the lift for a short period of time. The plaintiff alleges that as a result of this accident, she was caused to suffer psychiatric injury in the form of an adjustment disorder, with some depressive symptoms and some symptoms of Post Traumatic Stress Disorder. She has been receiving counselling on a monthly basis since 2014. It is estimated that the plaintiff will require a further 18 months in therapy to reach a full recovery.
2. Liability for the accident is not in issue in these proceedings. There is no claim of contributory negligence made against the plaintiff.
The evidence at trial
3. The plaintiff is 54 of age. She is a married lady and has 3 children. On 31st August, 2012, she attended at the Square Town Centre, Tallaght, Dublin 24 to do some shopping with her young son. In the course of doing her shopping, the plaintiff and her young son entered a lift on the third floor and were intending to travel down to the ground floor. The plaintiff stated that the doors on the lift closed behind her and that the lift moved down some distance. However, it then came to a halt and when the plaintiff pushed the button to open the doors, they would not open. The plaintiff stated that with time she became more concerned for the safety of herself and her son. She stated that she pressed the alarm bell on the control panel, but nobody came to her assistance over the intercom. She then banged on the door of the lift and shouted out, but no-one appeared to hear her. The plaintiff stated that she then became quite concerned for her safety and telephoned her husband. He suggested that she should ring the emergency services by placing a 999 call.
4. The plaintiff was also anxious due to the fact that her mobile phone was operating on low battery and she had very little credit left on it. However, she was able to get through to the emergency services, but was not able to identify the precise lift in which she was, due to the fact that there was no identification mark concerning the lift on the inside of it. While placing the call, a member of the security staff at the premises managed to open the doors a little bit and then by wedging his foot in between the doors and by pushing hard, he was able to open them fully, so as to enable the plaintiff and her son to get out of the lift.
5. The plaintiff stated in evidence that her ordeal was quite prolonged and it felt to her as if she had been trapped in the lift for approximately 20 minutes. However, in the course of the defendants’ evidence, a copy of an internal CCTV recording inside the lift, showed that she had in fact only been in the lift for 4 minutes and 35 seconds.
6. Having been released from the lift, the plaintiff stated that she was upset and felt weak. She was brought to the Customer Service desk by the member of security staff. There she was attended to initially by a lady called Marie. The plaintiff stated that she was not treated very well at the Customer Service desk. She was not offered a chair and they did not seem to take her complaint all that seriously. However, after some time, another security man arrived and he was more sympathetic. She had to wait until a more senior security man, called Pat, arrived. He took details of the incident. He said that the head of security, a Mr. Pat Edgeworth, would be in contact with her during the week. The plaintiff and her son were given lunch vouchers to use in the shopping centre.
7. The plaintiff stated that when she went home, she told her husband what had happened. She stated that at this time, she was very upset and distressed by the experience. This was partly due to the fact that as a child, she had suffered from claustrophobia. In addition, there had been an incident in her childhood, when she was being taught to swim, when she was physically thrown into the water by an instructor and, as a result, she had a fear of putting her head under water. She also did not like pulling clothes on over her head.
8. The plaintiff visited her GP, Dr. Lindsay, at Walkinstown Medical Centre that evening. In his medical report he stated that when he saw the plaintiff, she was still distressed and felt anxious and restless. He had a long chat with the plaintiff and discussed her distress and her obvious fear of being trapped. He prescribed Stilnoct 10mg to help her to sleep for approximately one week.
9. There was some controversy as to whether the plaintiff was seen by her GP on a second occasion. The plaintiff stated that in the weeks following her first visit to the doctor, she continued to feel very anxious and distressed. She was not able to go into rooms without leaving the door open. She could not go into the fitting rooms in shops, as she could not bear to have the fitting room door closed. When she went to use the toilet in public toilets, she was afraid to lock the door for fear that it would not open again. She has to prop her handbag against the door to keep it closed. The plaintiff stated that when these symptoms did not settle, she returned to her GP, who prescribed some antidepressant medication called Lexapro, which she took for approximately one week. The defendants pointed out that in the only medical report furnished by Dr. Lindsay dated 24th September, 2012, there was no mention of the plaintiff returning to see him. Furthermore, Dr. John O’Connor, the consultant psychiatrist retained on behalf of the defendant, stated that it was highly unlikely that the GP would prescribe Lexapro for only one week, as it would not be effective when taken for such a short period of time.
10. The plaintiff stated that at the second consultation, Dr. Lyndsay suggested that she might benefit from some counselling. However, he did not arrange any counselling, but left it to the plaintiff to do so. The plaintiff stated that she did a search on the internet and came across a lady who was going to set up as a counsellor in the Rathmines area. She made contact with the lady who agreed to take her on. However, some short time later, the lady phoned her back and stated that she had altered her plans and she was not going to set up in private practice after all.
11. The plaintiff then obtained the name of another therapist, whom she saw on a number of occasions. However, she did not remain with this lady, as she did not feel that she had enough experience to deal with her problems.
12. The plaintiff stated that at this time, she was unable to travel in lifts at all, when entering a room she would always have to have an exit open near her, she was unable to go into the stock room at her place of business without keeping the door open with boxes, she could not lock the toilet door, she could not wear tight fitting clothing and had to buy clothes that were one or two sizes too big for her and she was not able to pull garments over her head.
13. The plaintiff stated that she was quite distressed by her ongoing symptoms. However, she had been able to manage with the demands of her work as a supervisor in a department store in Dublin. She stated that there would be approximately 10 people working under her. She did not miss any time from work as a result of the accident.
14. In August, 2014, the plaintiff came under the care of Dr. Caroline Goldsmith, Clinical Psychologist. Dr. Goldsmith had done her undergraduate degree through the Open University. She had then done a Masters in Positive Psychology in the University of London. She had done her doctoral degree in Clinical Psychology in the University of Sheffield. When she first saw the plaintiff she came to the conclusion that the plaintiff was suffering from an adjustment disorder, with mixed anxiety and depressed mood symptoms. She stated that at that time she was of the opinion that the plaintiff needed immediate and ongoing psychotherapy. To this end, the plaintiff has been receiving counselling from Dr. Goldsmith on a monthly basis down to the present time.
15. When reviewed approximately one year later in September, 2015 Dr. Goldsmith noted that at that examination, the plaintiff talked about how therapy had improved her general outlook and had helped her to cope with the stress of her trauma. However the plaintiff still suffered from a phobia of lifts, a fear of having anything put over her head (such as tight clothes) and claustrophobia. However the plaintiff stated that her fears were becoming more manageable and she could see a day in the future, where she would no longer be completely ruled by her phobias. This contrasted with the position which had existed a year previously, when the plaintiff expressed the view that she could never imagine that she would one day get past her difficulties.
16. Dr. Goldsmith noted that the plaintiff was still somewhat stressed and continued to have phobic reactions in her everyday life. She had some increased capacity to participate in enjoyment of life with her work and family, but was still not functioning as she would ideally like to be. There continued to be somewhat of a preoccupation with making sure that she was in, and going to, a safe place with no danger of being confined in any way. She still suffered from anxiety, claustrophobia and panic attacks related to the incident when she was trapped in the elevator. Although the panic attacks had become less frequent, this had affected her relationship with her husband and family, as she could not go out and enjoy life with them due to her preoccupation with making sure that she had an exit from any place that she may find herself in. She noted that the plaintiff was hopeful about the future and expressed the view that she could one day see herself being free from phobias and trauma. Dr. Goldsmith remained of the view that she suffered from an adjustment disorder, with mixed anxiety and depressed mood. She stated that it was usual in these situations for people to require counselling for a total period of approximately 12 – 36 months.
17. Dr. Goldsmith issued a third report from an assessment carried out on 14th July, 2016. She found that the plaintiff was more cheerful. The plaintiff felt that she had made significant improvement, particularly in relation to her confidence and functioning. She had forward-looking goals in her plans for the future regarding work and family life. She stated that she saw much improvement from the previous year. She stated that she was now enjoying life much more. She continued to suffer from anxiety around lifts, but she had been able to get into a lift on two occasions in the company of members of her family. This was a significant improvement. However, she continued to have difficulty with anything put over her head (such as tight clothes) and claustrophobia. She said that these fears were becoming more manageable and she was able to see a day in the future where she would no longer be completely ruled by her phobias and fears. She was able to go into the stock room at work without any appreciable difficulty. She was able to lock some doors when using a public toilet, if she was sure that the locking mechanism was easy to open. She continued to buy clothes that were a few sizes bigger, so that she would not feel confined in them.
18. However Dr. Goldsmith stated that it was noteworthy that the plaintiff stated that in times of panic (which were becoming less), when a perceived threat encompassed her mind, she sometimes lost the ability to rationalise, she felt out of control and unable to get her mind back on track. The description given by the plaintiff signified traits of PTSD, although she did not meet the criteria for a full clinical diagnosis of that disorder. Dr. Goldsmith noted that she appeared to be a lady who was still somewhat stressed, with some phobic-type reactions to her present situation. She had some increased capacity to participate in enjoyment of life with her work and family; however she was still not functioning as she would ideally like to be either socially or emotionally. There was still somewhat of a preoccupation with making sure that she was in, and going to, a safe place, with no danger of being confined in any way. The doctor was of opinion that the plaintiff continued to suffer from anxiety, claustrophobia and panic attacks, although these were becoming much less and were further apart, related to the incident of being stuck in the elevator.
19. Dr. Goldsmith noted that subsequent to the incident the plaintiff had been diagnosed with an adjustment disorder, with mixed anxiety and depressed mood. Her current presentation of symptoms was best described as traits of PTSD related to memory impairment, hypervigilance and overreacting to trauma-related stimuli. The plaintiff had participated in ongoing intervention in the form of Cognitive Behavioural Therapy to treat her heightened state of anxiety, stress and phobia. She continued to respond well to her treatment regime. Typically treatment could take 12 – 36 months from the date of commencement of treatment. The plaintiff was then 20 months into her treatment programme and she had shown a good response due to dedicated attendance and participation in sessions, off-site exercises and practice which it was expected would continue for a further 12 – 18 months. Dr. Goldsmith noted that she continued to see the plaintiff on a monthly basis. She was hopeful for a good outcome to the plaintiff’s treatment.
20. Evidence was given on behalf of the defendant, by Dr. John O’Connor, Consultant Psychiatrist. He saw the plaintiff on one occasion on 5th July, 2016. As already noted, he doubted that the plaintiff had been prescribed Lexapro for a period of one week, as the antidepressant drug would not be effective if taken for such a short period.
21. He stated that he did not find any symptoms of an anxiety disorder when he saw the plaintiff. He stated that if she had such a disorder, the plaintiff would have a fast heartbeat, quickened breathing and would have nausea and vomiting and could also have numbness in her legs and headaches. None of these symptoms had been found in the plaintiff’s case. He stated that on examination, she had no signs of suffering from anxiety or agitation. He felt that her mood was euthymic at the time of his consultation with her. He stated that he had been led to believe that the incident in the lift had lasted for some 20 minutes. If it only lasted for 4 minutes and 35 seconds, this was a much shorter period. He accepted that it would not be unusual to have some anxiety after such an incident. However, he would have expected the anxiety to last for only a number of hours and perhaps, at a maximum, a day or two. He also noted that the plaintiff had not missed any time from her work as a supervisor in a department store, which was a demanding job, as she had 10 people working under her.
22. Dr. O’Connor stated that he did not find any signs of a psychological disorder. Nor did he find any evidence of a psychiatric illness. He stated that if the plaintiff had suffered an adjustment disorder, she would have had emotional symptoms with marked distress in excess of what would be normally expected, together with marked impairment of social and work functioning. He stated that this was not present in the plaintiff’s case.
23. In cross examination, Dr. O’Connor stated that if a person was suffering from an adjustment disorder, the stress experienced must be of sufficient intensity. He stated that all people suffer from anxiety from time to time. That was natural. It was put to him that before the accident the plaintiff had worked well without suffering undue anxiety; he accepted that that appeared to be the case. It was put to him that the accident had had a marked effect on the plaintiff’s life. Dr. O’Connor stated that he had not seen the plaintiff previously. He noted that she had been attending Dr. Goldsmith for two years. She had responded well to counselling. He stated that counselling and CBT would be the treatment of choice. Usually CBT would be given over 6 – 10 sessions. He accepted that the counselling appeared to be working in this case.
24. In re-examination, Dr. O’Connor stated that the Mental State Examination results as recorded by Dr. Goldsmith in her first report, did not fit the description of someone who was unduly anxious. There was nothing particularly unusual there, and there was no sign of anxiety features.
25. He stated that the plaintiff’s habit of looking for exits when she entered a crowded room, was not uncommon. He stated that he would do the same when he goes to the theatre. He did not think that all of the plaintiff’s symptoms were caused by being trapped in the lift for a little over 4 minutes. He stated that many people have issues in their lives. The plaintiff suffered from claustrophobia when she was a child. The plaintiff was dealing with this condition through counselling.
26. Finally, evidence was given on behalf of the defendant by Mr. Pat Edgeworth, the operations manager at the Square Town Centre in Tallaght. He stated that he investigated the incident after it had been reported to him. While he had no recollection of actually meeting the plaintiff herself, he stated that he must have authorised the giving of luncheon vouchers to her, as only he was authorised to direct the issuing of such vouchers. He stated that when the incident was reported to him, there was no report of any injury having been suffered by the plaintiff or her son.
27. He produced the CCTV footage which had been taken from inside the lift. It showed that the plaintiff had been trapped within the lift for 4 minutes and 35 seconds.
28. The court viewed the CCTV footage. It showed the plaintiff and her son entering the lift. Her son seemed to be in reasonably good form and was moving around the lift. However, after a short time, it became clear that the plaintiff could not exit from the lift. She was shown pressing the buttons on the control panel a number of times. Her son stopped moving about and appeared to become quiet. The court was satisfied that this was indicative of the fact that his mother was suffering some distress at the time. The CCTV footage showed her making a number of calls on her mobile phone. It also showed her banging on the lift door.
29. Mr. Edgeworth stated that when an incident is reported to him, he would decide whether it was necessary to take the matter further with the customer. He had no recollection of calling the plaintiff. The plaintiff, in her evidence, had stated that no-one from the shopping centre had contacted her after the incident.
30. In relation to the plaintiff’s allegation that the alarm button did not operate, he stated that it was necessary to press the bell continuously for 3 seconds in order for the call to be routed through to the lift monitoring centre. He stated that it would be unusual for the security man to force the doors open, without being called. However, he accepted the plaintiff’s evidence that the security man had to open the doors and that he used his hands to do so.
Submissions
31. Counsel for the defendant submitted that this case was similar to the facts which arose in Fletcher v. Commissioners of Public Works [2003] 1 IR 465 where the Supreme Court ruled that an irrational fear that one would suffer an injury at some future date, which gave rise to psychiatric symptoms was not compensatable in damages. It was submitted that in this case, the plaintiff had had an irrational reaction to being trapped in the lift and that therefore she should not be compensated in damages.
32. In response, counsel for the plaintiff submitted that in this case, one was not dealing with a situation where a person had a fear of suffering a physical injury at some date in the future, but rather the plaintiff had in fact suffered a psychiatric injury as a result of being trapped in the lift. That this plaintiff had a reaction to the incident which was perhaps out of line with the norm, due to the fact that she had suffered from claustrophobia as a child, put her in the position of a person with an “eggshell skull” and the defendant had to take the victim as he found her. Therefore, it was submitted that the plaintiff was in fact entitled to be compensated for the psychiatric injury which she suffered as a direct consequence of being trapped in the lift.
Conclusions
33. On 31st August, 2012, the plaintiff was trapped in a lift at the defendant’s premises for 4 minutes and 35 seconds. In normal circumstances, this would not be seen as being a particularly serious incident, giving rise to any serious physical or psychiatric injury. However, in this case, the plaintiff had suffered from claustrophobia when she was a child. As a result, this accident caused her to suffer psychiatric symptoms that may be regarded as being somewhat outside of the norm.
34. It appears that the plaintiff suffered from the anxiety symptoms which have been set out in extenso above. Some two years after the accident, she came under the care of Dr. Caroline Goldsmith, Clinical Psychologist. She diagnosed the plaintiff as having suffered an adjustment disorder, with some depressive symptoms and latterly some symptoms suggestive of PTSD.
35. The plaintiff has received counselling from Dr. Goldsmith on a monthly basis since August, 2014. Since that time, she has made considerable improvement in relation to her symptoms. In particular, she has been able to use a lift on two occasions, without suffering any adverse sequelae. Dr. Goldsmith is of the opinion that the plaintiff will probably make a full recovery, but will require counselling for a further 18 months.
36. It is noteworthy that the plaintiff only saw her GP on two occasions in 2012. She has not required any medical, as distinct from psychological, intervention since that time.
37. The plaintiff has a responsible job as a supervisor in a large department store in Dublin. She did not miss any time from work as a result of the accident.
38. There is a difference of opinion between Dr. Goldsmith and Dr. O’Connor as to whether the plaintiff has suffered the symptoms and psychiatric sequelae as referred to by Dr. Goldsmith. Dr. Goldsmith struck me as a diligent practitioner, who has taken considerable care to diagnose the plaintiff’s psychiatric sequelae. She has seen the plaintiff on a monthly basis since August, 2014. Over the years, she has built up a close relationship with her patient. This has given her a deep insight into the plaintiff’s psychiatric difficulties. On the other hand, Dr. O’Connor only saw the plaintiff on one occasion in July 2016, almost four years post-accident. Insofar as there is a conflict between Dr. Goldsmith and Dr. O’Connor, I prefer the evidence of Dr. Goldsmith in that regard. Nevertheless, I do have regard to the fact, already mentioned, that the plaintiff did not think it necessary to return to her GP after the two occasions in 2012 already referred to.
39. I note that the plaintiff has made considerable improvement in the last two years. It is likely that she will achieve a resolution of her symptoms within a further 18 months. The fact that it will take this long was caused by the fact that the plaintiff only came under the care of Dr. Goldsmith in 2014. The accident caused an exacerbation or resurfacing of the claustrophobia, which the plaintiff had suffered as a child. It must be recognised that some proportion of the treatment which the plaintiff has been receiving from Dr. Goldsmith, is directed not to the effects of the accident, when she was trapped in a lift in August, 2012, but deal with the underlying conditions of claustrophobia and anxiety, which had existed beneath the surface since she was a child. Thus, a significant proportion of the treatment which the plaintiff has received to-date and will receive into the future, is dealing with that underlying condition, which was not caused by any wrongful act on the part of the defendants.
40. I do not accept the defendant’s submission that this case is governed by the decision in Fletcher v. Commissioners of Public Works [2003] 1 IR 465. I am satisfied that in this case the plaintiff has suffered a psychiatric injury as a direct result of being trapped in the lift. The extent of this injury was somewhat out of the norm, due to the fact that the plaintiff had suffered from claustrophobia as a child. Her present treatment is treating not only the direct sequelae of bring trapped in the lift, but also the pre-existing problem of childhood claustrophobia, which resurfaced as a result of the accident.
41. In reaching a decision on the quantum of general damages in this case, I have had regard to the judgments of the Court of Appeal in Payne v. Nugent [2015] IECA 268, Nolan v. Wirenski [2016] IECA 56 and Shannon v. O’Sullivan [2016] IECA 93. In the circumstances, in an attempt to be fair to both parties, I award the plaintiff general damages of €20,000.00. To this must be added the sum of €5,060.00 as special damages. This latter sum was in respect of counselling and travel expenses, both to-date and into the future. This gives an overall award of €25,060.00.