Stress Issues
Cases
Walker v Northumberland Council
[1994] EWHC QB 2
Mr Justice Caiman
“It is reasonably clear from the authorities that once a duty of care has been established the standard of care required for the performance of that duty must be measured against the yardstick of reasonable conduct on the part of a person in the position of that person who owes the duty. The law does not impose upon him the duty of an insurer against all injury or damage caused by him, however unlikely or unexpected and whatever the practical difficulties of guarding against it. It calls for no more than a reasonable response, what is reasonable being measured by the nature of the neighbourhood relationship, the magnitude of the risk of injury which was reasonably foreseeable, the seriousness of the consequence for the person to whom the duty is owed of the risk eventuating and the cost and practicability of preventing the risk. That these are the individual constituents of the yardstick of reasonable conduct is firmly supported by the observations of Lord Thankerton in Glasgow Corporation v Muir [1943] AC 448 at page 454:
“In my opinion, it has long been held in Scotland that all that a person can be bound to foresee are the reasonable and probable consequences of the failure to take care, judged by the standard of the ordinary reasonable man……. The court must be careful to place itself in the position of the person charged with the duty and to consider what he or she should have reasonably anticipated as a natural and probable consequence of neglect, and not to give undue weight to the fact that a distressing accident has happened…..”
To the same effect is the speech of Lord Porter in Bolton v Stone, supra, at page 858:
“It is not enough that the event should be such as can reasonably be foreseen. The further result that injury is likely to follow must also be such as a reasonable man would contemplate before he can be convicted of actionable negligence. Nor is the remote possibility of injury occurring enough. There must be sufficient probability to lead a reasonable man to anticipate it. The existence of some risk is an ordinary incident of life, even when all due care has been, as it must be, taken.”
And in Paris v Stepney Borough Council [1951] AC 367 at page 375 Lord Simonds expressly recognised the potential seriousness of injury as a relevant factor in assessing the standard of care to be expected of the reasonable employer. In Latimer v AEC Ltd [1952] 2 QB 701, Lord Denning observed:
“…in every case of foreseeable risk it is a matter of balancing the risk against the measures necessary to eliminate it.”
and in Overseas Tankship (UK) Ltd v The Miller Steamship Co Ltd [1967] AC 617 at page 542, Lord Reid said:
“It does not follow that, no matter what the circumstances may be, it is justifiable to neglect a risk of such a small magnitude. A reasonable man would only neglect such a risk if he had some valid reason for doing so, eg that it would involve considerable expense to eliminate the risk. He would weigh the risk against the difficulty of eliminating it.”
The practicability of remedial measures must clearly take into account the resources and facilities at the disposal of the person or body owing the duty of care: see Lord Reid in British Railways Board v Herrington [1972] AC 877 at page 899, and the purpose of the activity which has given rise to the risk of injury: the risk must be balanced “against the end to be achieved”: see Denning LJ in Watt v Hertfordshire CC [1954] 1 WLR 835 at page 838.
The approach to reasonable foreseeability of the risk of work-engendered psychiatric injury is helpfully illustrated by the judgment of Miles CJ in Gillespie v Commonwealth of Australia (1991) ACTR l. That case involved a claim by a former Australian diplomat against the Australian Foreign Affairs and Trade Department in respect of a mental breakdown which he suffered in consequence of stresses created by the living conditions in Caracas, Venezuela, to where he had been posted. The plaintiff contended that such stress and therefore his injury would have been avoided or reduced if the defendants had, before sending him to Caracas, prepared him by a course of training for the severely stressful conditions likely to be encountered. Miles CJ observed at page 15
“In the present case it is not necessary to consider foreseeability with respect to the existence of a duty of care, because the relationship of employer and employee itself gives rise to that duty of care. Foreseeability for present proposes is to be considered only in so far as the degree of remoteness of the harm sustained by the plaintiff set the parameters of the steps that a reasonable person in the position of the defendant would have taken to reduce the risk to the extent that any “unnecessary” risk was eliminated. In practical terms this means that the plaintiff must show that the defendant unreasonably failed to take such steps as would reduce the risk to what was a reasonable, that is a sociably acceptable, level. It may be that this takes the court into an area of value judgment for which the inscrutability of a jury verdict may provide a more appropriate means of expression.”
He held that the magnitude of the harm was considerable but that there was not a high degree of probability that harm of that kind would eventuate. At pages 17-18 of his judgment Miles CJ addresses himself first to the question whether the factors involved in moving to such an environment as Caracas would have involved a reasonably foreseeable risk of breakdown to any ordinary person and secondly to the question whether it was foreseeable that the plaintiff was more susceptible to psychological harm than an ordinary member of the diplomatic staff in Caracas. Having held that some risk of psychiatric harm was reasonably foreseeable, but that the plaintiff’s particular vulnerability was not foreseeable, he concluded that even if the defendant had taken steps to warn the plaintiff it was not established that he would not have gone to Caracas or, had he done so, avoided his mental breakdown. Consequently the plaintiff’s claim failed.
In Petch v Customs and Excise Commissioners [1993] ICR 789 the plaintiff claimed damages for negligence against the defendants for causing him to have a mental breakdown by the volume and stressful character of the work he was required to do. Dillon LJ approached the issue of breach of duty in these words
“. . .I take the view, in the light of the general circumstances of this case and the other findings of the judge which I have set out, that, unless senior management in the defendants’ department were aware or ought to have been aware that the plaintiff was showing signs of impending breakdown, or were aware or ought to have been aware that his workload carried a real risk that he would have a breakdown, then the defendants were not negligent in failing to avert the breakdown of October 1974.”
In the present case, the mental illness and the lasting impairment of his personality which Mr Walker sustained in consequence of the 1987 breakdown was so substantial and damaging that the magnitude of the risk to which he was exposed must be regarded as relatively large.
Moreover, there can, in my judgment, be no doubt on the evidence that by 1985 at the latest, it was reasonably foreseeable to Mr Davison, given the information which I have held that he then had, that by reason of stress of work there was in general some risk that Mr Walker might sustain a mental breakdown of some sort in consequence of his work. That said, how great was the reasonably-foreseeable risk? Was the risk of incidence of illness so slight as to be in all the circumstances negligible or was it a materially substantial risk? There is no evidence that the Council had hitherto encountered mental illness in any other of its area officers or that area officers with heavy work loads, or others in middle management in the Social Services, as distinct from field workers, were particularly vulnerable to stress-induced mental illness. Accordingly the question is whether it ought to have been foreseen that Mr Walker was exposed to a risk of mental illness materially higher than that which would ordinarily affect a social services middle manager in his position with a really heavy work load. For if the foreseeable risk were not materially greater than that, there would not, as a matter of reasonable conduct, be any basis upon which the Council’s duty to act arose.
It is therefore necessary to ask whether, prior to his first breakdown in 1986, there was anything in Mr Walker’s conduct or any information about his work which ought to have alerted the Council, and in particular Mr Davison, to the fact that Mr Walker was reaching breaking point or at least was subject to a materially greater than ordinary risk of mental breakdown.
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Having regard to the reasonably foreseeable size of the risk of repetition of Mr Walker’s illness if his duties were not alleviated by effective additional assistance and to the reasonably foreseeable gravity of the mental breakdown which might result if nothing were done, I have come to the conclusion that the standard of care to be expected of a reasonable local authority required that in March 1987 such additional assistance should be provided if not on a permanent basis, at least until restructuring of the Social Services had been effected and the workload on Mr Walker thereby permanently reduced. That measure of additional assistance ought to have been provided notwithstanding that it could be expected to have some disruptive effect on the Council’s provision of services to the public. When Mr Walker returned from his first illness the Council had to decide whether it was prepared to go on employing him in spite of the fact that he had made it sufficiently clear that he must have effective additional help if he was to continue at Blyth Valley. It chose to continue to employ him, but provided no effective help. In so doing it was, in my judgment, acting unreasonably and therefore in breach of its duty of care.
I understand it to be accepted that if there was breach of duty damage was caused by that breach. However, in view of the fact that I have decided this case on the second breakdown alone, it is right to add that I am satisfied on the evidence that had the further assistance been provided to Mr Walker, his second breakdown would probably not have occurred.
In the event, there will be judgment for the plaintiff on liability with damages yet to be assessed.!
Eastwood & Anor v. Magnox Electric Plc
[2004] UKHL 35
HOUSE OF LORDS LORD NICHOLLS OF BIRKENHEAD
“ In October 1905 Mr Addis was abruptly and ignominiously dismissed as manager of the business of Gramophone Co Ltd in Calcutta. He sued his employer for wrongful dismissal, in proceedings which have cast a long shadow over the common law. Mr Addis was entitled to six months’ notice. Your Lordships’ House held that his damages were confined to loss of salary and commission for six months. He was not entitled to recover damages in respect of the ‘manner of his dismissal’ in the phrase of Lord Loreburn LC. The way Mr Addis was sacked may have imported obloquy and permanent loss in the commercial community of Calcutta, but in respect of these matters he had no cause of action: Addis v Gramophone Co Ltd [1909] AC 488.
This was still settled law when the Royal Commission on Trade Unions and Employers’ Associations, under the chairmanship of Lord Donovan, reported in 1968. Protection at common law against ‘wrongful’ dismissal was strictly limited. The employer, as much as the employee, was entitled to end the contract of employment without cause. The employer could act unreasonably or capriciously. He was not bound to hear the employee before dismissing him: see the oft-quoted words of Lord Reid in Malloch v Aberdeen Corporation [1971] 1 WLR 1578, 1581. In its report (Cmnd 3623) the Donovan Commission recommended the law should be changed by ‘early legislation’. Statute should establish machinery to safeguard employees against unfair dismissal: paragraph 1057.
Parliament gave effect to this recommendation in the Industrial Relations Act 1971. The relevant provisions are now contained in Part X of the Employment Rights Act 1996. An employee has the right not to be unfairly dismissed by his employer: section 94. The remedies for unfair dismissal are set out in Chapter II of Part X. A complaint may be made to an employment tribunal. If the tribunal upholds the complaint the tribunal may make an order for reinstatement or re-engagement or an award of compensation for unfair dismissal calculated as provided in the Act.
The ‘trust and confidence’ implied term
These provisions in the Industrial Relations Act 1971 prompted a development in the common law. The statutory remedy of unfair dismissal was available only if an employee was dismissed. If an employer behaved in a way no employee could be expected to tolerate, and the employee then resigned in the face of such behaviour, the employee had no remedy. He had not actually been dismissed by his employer. In order to claim he had been constructively dismissed the employee had to be able to point to a breach of contract by his employer which he was entitled to treat as a repudiation of the contract of employment: Western Excavating (ECC) Ltd v Sharp [1978] ICR 221. Showing that the employer had behaved unreasonably was not sufficient.
The Employment Appeal Tribunal led the way in finding a means to bring such cases within the reach of the unfair dismissal legislation. It is a well established principle that a servant owes a duty of loyalty and faithfulness to his master. Thus, in a modern context an employee will be in breach of contract if he ‘works to rule’ in such a way as to frustrate the commercial objective of his contract of employment: Secretary of State for Employment v ASLEF (No 2) [1972] 2 QB 455. From here it was a short step to recognise that both parties to an employment contract owe a duty to conduct themselves in a way which will enable the contract to be performed. The developed formulation of this duty became, so far as the employer is concerned, that an employer will not, without reasonable and proper cause, conduct himself in a manner likely to destroy or seriously damage the relationship of confidence and trust between employer and employee. This formulation of a wide-ranging ‘trust and confidence’ implied term emerged in the late 1970s and the 1980s in cases such as Woods v W M Car Services (Peterborough) Ltd [1981] ICR 666, affirmed [1982] ICR 693.
This term, implied as a legal incident of employment contracts, provides the means by which an employee who resigns in response to outrageous conduct by an employer may obtain redress. Such conduct is a breach of a fundamental term of the contract of employment, and an employee who accepts this breach as a repudiation of the contract by the employer is ‘constructively’ dismissed by the employer. The employee can, accordingly, make a complaint of unfair dismissal to an employment tribunal.
Mahmud’s case
The principal application of this trust and confidence implied term in legal proceedings has been for this purpose, that is, as an adjunct in unfair dismissal cases. In Mahmud vBank of Credit and Commerce International SA [1998] AC 20 the House considered the application of this implied term in a different type of case. In Mahmud’s case breach of this term was not relied upon as a foundation for a claim for constructive dismissal. A former employee first learned of breach of this implied term after his employment had ended. He claimed damages at common law for breach of this term. The House held that this claim was well-founded as a matter of law. Damages for breach of the trust and confidence implied term should be assessed in accordance with ordinary contractual principles.
Johnson’s case
The ramifications of this decision came under scrutiny in Johnson v Unisys Ltd [2003] 1 AC 518. In Johnson’s case the plaintiff sought to extend the Mahmud principle further. He sought to rely on breach of the trust and confidence implied term, not as a foundation for a statutory claim for unfair dismissal or as a foundation for a claim for damages unrelated to dismissal, but as a foundation for a claim at common law for unfair dismissal.
Mr Johnson’s grievance concerned the way he had been summarily dismissed: the way the dismissal decision had been reached. He made a complaint of unfair dismissal to an industrial tribunal. The tribunal upheld his complaint. Unisys had not given Mr Johnson a fair opportunity to defend himself nor had it complied with its disciplinary procedures. The tribunal awarded him £11,000, the maximum amount it could award. Mr Johnson then brought proceedings in the County Court, claiming that the way he had been dismissed was in breach of the ‘trust and confidence’ term and other implied terms in his contract of employment. He also put forward a claim in negligence. Unisys knew or should have known he was ‘psychologically vulnerable’ and would suffer injury if treated as he was by Unisys. He claimed damages in excess of £400,000. His court proceedings were summarily struck out by the judge.
The judge’s decision was upheld by the Court of Appeal and by a majority decision of your Lordships’ House. Mr Johnson’s claim was founded on the fact that he had been dismissed, and the trust and confidence implied term cannot be applied to dismissal itself. Further, the grounds on which it would be wrong to impose an implied contractual duty regarding exercise of the power of dismissal make it equally wrong to achieve the same result by imposing a duty of care. All the matters of which Mr Johnson complained in his court proceedings were within the statutory jurisdiction of an employment tribunal.
Mr Johnson’s claim was not without attraction. The trust and confidence implied term means, in short, that an employer must treat his employees fairly. In his conduct of his business, and in his treatment of his employees, an employer must act responsibly and in good faith. In principle, this obligation should apply as much when an employer exercises his right to dismiss as it does to his exercise of other powers of his which affect a subsisting employment relationship. It makes little sense, for instance, that the implied obligation to act fairly should apply when an employer is considering whether to suspend an employee but not when the employer is proposing to take the more drastic step of dismissing him. Considerations of this nature suggest that the natural, continuing development of this aspect of the common law should be that the implied obligation to act fairly applies to dismissal decisions. This would mean that if an employee were treated today in the same shameful way as Mr Addis he would have a remedy at common law for breach of contract.
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The Eastwood case
…… Both men pursued claims for unfair dismissal. Mr Williams’ complaint resulted in a finding of unfair dismissal. Before a remedies hearing took place on Mr Williams’ claim, and before any hearing on Mr Eastwood’s claim, a compromise agreement was reached. Both men received financial payments. The agreement reserved the men’s right to pursue a claim at common law for any claims they might have in respect of personal injuries arising out of their employment.
Mr Eastwood and Mr Williams then commenced proceedings in the County Court in July 1999 for negligence and breach of contract. They alleged they suffered personal injuries in the form of psychiatric illnesses caused by a deliberate course of conduct by certain individuals using the machinery of the disciplinary process. Judge Elystan Morgan dismissed both claims on the basis that, as a matter of law, they had no reasonable prospect of success. Johnson’s case showed that the development of the common law implied terms, of trust and confidence and the like, cannot proceed further ‘in so far as they come up against the buffers, as it were, of the unfair dismissal legislation’. Those terms are excluded from the area within the purview of an employment tribunal, and that area includes acts done from the time the disciplinary machinery starts running.
The Court of Appeal, comprising Peter Gibson and Mantell LJJ and Sir Swinton Thomas, upheld the judge’s decision: [2002] IRLR 447. Peter Gibson LJ delivered the only reasoned judgment. Having referred to Johnson’s case, he said at paragraph 23:
‘The implied term of trust and confidence cannot be used in connection with the way the employer/employee relationship is terminated. There may be cases where the particular manner in which an employee is dismissed or the circumstances attending dismissal is or are confined to events occurring at the same time or immediately before the dismissal. In other cases that manner and those circumstances may include a pattern of events stretching back over a period. It is a question of fact for the trial judge to determine in each case.’
Peter Gibson LJ then concluded, in short, that the circumstances attending Mr Williams’ dismissal began in May 1996. All these circumstances were considered by the employment tribunal. The compensation recoverable in the employment tribunal covers the substance of what Mr Williams is claiming in his court proceedings. There can be no justification for allowing Mr Williams a second bite of the cherry. In Mr Eastwood’s case there has been no hearing in the employment tribunal. But on analysis his position is no different from that of Mr Williams.
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The boundary line
Identifying the boundary of the ‘Johnson exclusion area’, as it has been called, is comparatively straightforward. The statutory code provides remedies for infringement of the statutory right not to be dismissed unfairly. An employee’s remedy for unfair dismissal, whether actual or constructive, is the remedy provided by statute. If before his dismissal, whether actual or constructive, an employee has acquired a cause of action at law, for breach of contract or otherwise, that cause of action remains unimpaired by his subsequent unfair dismissal and the statutory rights flowing therefrom. By definition, in law such a cause of action exists independently of the dismissal.
In the ordinary course, suspension apart, an employer’s failure to act fairly in the steps leading to dismissal does not of itself cause the employee financial loss. The loss arises when the employee is dismissed and it arises by reason of his dismissal. Then the resultant claim for loss falls squarely within the Johnson exclusion area.
Exceptionally this is not so. Exceptionally, financial loss may flow directly from the employer’s failure to act fairly when taking steps leading to dismissal. Financial loss flowing from suspension is an instance. Another instance is cases such as those now before the House, when an employee suffers financial loss from psychiatric or other illness caused by his pre-dismissal unfair treatment. In such cases the employee has a common law cause of action which precedes, and is independent of, his subsequent dismissal. In respect of his subsequent dismissal he may of course present a claim to an employment tribunal. If he brings proceedings both in court and before a tribunal he cannot recover any overlapping heads of loss twice over.
If identifying the boundary between the common law rights and remedies and the statutory rights and remedies is comparatively straightforward, the same cannot be said of the practical consequences of this unusual boundary. Particularly in cases concerning financial loss flowing from psychiatric illnesses, some of the practical consequences are far from straightforward or desirable. The first and most obvious drawback is that in such cases the division of remedial jurisdiction between the court and an employment tribunal will lead to duplication of proceedings. In practice there will be cases where the employment tribunal and the court each traverse much of the same ground in deciding the factual issues before them, with attendant waste of resources and costs.
Second, the existence of this boundary line means that in some cases a continuing course of conduct, typically a disciplinary process followed by dismissal, may have to be chopped artificially into separate pieces. In cases of constructive dismissal a distinction will have to be drawn between loss flowing from antecedent breaches of the trust and confidence term and loss flowing from the employee’s acceptance of these breaches as a repudiation of the contract. The loss flowing from the impugned conduct taking place before actual or constructive dismissal lies outside the Johnson exclusion area, the loss flowing from the dismissal itself is within that area. In some cases this legalistic distinction may give rise to difficult questions of causation in cases such as those now before the House, where financial loss is claimed as the consequence of psychiatric illness said to have been brought on by the employer’s conduct before the employee was dismissed. Judges and tribunals, faced perhaps with conflicting medical evidence, may have to decide whether the fact of dismissal was really the last straw which proved too much for the employee, or whether the onset of the illness occurred even before he was dismissed.
The existence of this boundary line produces other strange results. An employer may be better off dismissing an employee than suspending him. A statutory claim for unfair dismissal would be subject to the statutory cap, a common law claim for unfair suspension would not. The decision of the Court of Appeal in Gogay v Hertfordshire County Council [2000] IRLR 703 is an example of the latter. Likewise, the decision in Johnson’s case means that an employee who is psychologically vulnerable is owed no duty of care in respect of his dismissal although, depending on the circumstances, he may be owed a duty of care in respect of his suspension.
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It follows from what is set out above that I would dismiss the appeal in Mr McCabe’s case and allow the appeals of Mr Eastwood and Mr Williams. In the case of all three men the assumed facts constitute causes of action which accrued before the dismissals. They disclose reasonable causes of action which should proceed to trial.”
Berber -v- Dunnes Stores Ltd
[2009] IESC 10
SC Finnegan J.
“The Law – Breach of Contract
There is implied in a contract of employment a mutual obligation that the employer and the employee will not without reasonable and proper cause conduct themselves in a manner likely to destroy or seriously damage the relationship of confidence and trust between them. The term is implied by law and is incident to all contracts of employment unless expressly excluded. The term imposes reciprocal duties on the employer and the employee. In assessing whether there has been a breach by the employer what is significant is the impact of the employer’s behaviour on the employee rather than what the employer intended. Having regard to the mutuality of the obligation the impact of an employee’s behaviour is also relevant. The test is an objective one: if conduct objectively considered is likely to cause serious damage to the relationship between employer and employee a breach of the implied obligation may arise. Malik v Bank of Credit and Commerce International S.A. [1996] I.C.R. 406.
In Lewis v Motorworld Garages Limited [1986] I.C.R. 157 Browne-Wilkinson J. summarised the law as follows:-
1. In order to prove that he has suffered constructive dismissal an employee who leaves his employment must prove that he did so as a result of a breach of contract by his
employer, which shows that the employer no longer intends to be bound by an essential term of the contract: see Western Excavating (E.C.C.) Limited v Sharp [1978]
I.C.R. 221.
2. However, there are normally implied in a contract of employment mutual rights and obligations of trust and confidence. A breach of this implied term may justify the
employee in leaving and claiming that he has been constructively dismissed: see Post Office v Roberts [1980] I.R.L.R. 347 and Woods v W.M. Car Services
(Peterborough) Limited [1981] I.C.R. 666, 670 per Browne-Wilkinson J.
3. The breach of this implied obligation of trust and confidence may consist of a series of actions on the part of the employer which cumulatively amount to a breach of the
term, though each individual incident may not do so. In particular in such a case the last action of the employer which leads to the employee leaving need not itself be a
breach of contract; the question is, does the cumulative series of acts taken together amount to a breach of the implied term. See Woods v W.M. Car Services
(Peterborough) Limited [1981] 1 C.R. 666. This is the ‘last straw’ situation.”
As to the “last straw” it was held in Omilaju v Waltham Forest London Borough Council [2005] 1 All ER 75 that the quality that a “last straw” had to possess was that it was an act in a series whose cumulative effect amounted to a breach of the implied term. The essential quality of that act was that, when taken in conjunction with the earlier acts on which an employee relied, it amounted to a breach of the implied term of trust and confidence.
As to whether conduct amounts to a repudiation of the contract the ordinary law of contract applies: the cumulative effect of the acts complained of must be such as to indicate that a party, in this case the employer, had repudiated its contract. Brown v Merchant Ferries Limited [1998] I.R.L.R. 682. It had earlier been held in Woods v W.M. Car Services (Peterborough) Limited [1981] I.R.L.R. 347 by Browne-Wilkinson J. following Courtaulds Northern Textiles Limited v Andrew [1979] I.R.L.R. 84 that any breach of the implied term that the employers will not, without reasonable and proper cause, conduct themselves in the manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee was a fundamental breach amounting to a repudiation since it necessarily went to the root of the contract. This broad statement was not accepted by the Court of Appeal in Bliss v South East Thames Regional Health Authority [1985] I.R.L.R. 308. Nor was it accepted by Douglas Brodie in an article in the Industrial Law Journal, Volume 25, No. 2 at p.121 which article was referred to with approval in both Malik v Bank of Credit and Commerce International and in Browne vMerchant Ferries Limited.
It must not be forgotten, however, that the implied term applies to both the employer and the employee. Thus in Woods v W.M. Car Services (Peterborough) Limited [1981] I.C.R. 666 Browne-Wilkinson J. said:-
“In our view it is clearly established that there is implied in a contract of employment a term that the employers will not, without reasonable and proper cause, conduct themselves in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between the employer and employee: Courtaulds Northern Textiles Limited v Andrew [1979] I.R.L.R. 84. To constitute a breach of this implied term it is not necessary to show that the employer intended any repudiation of the contract; the Tribunal’s function is to look at the employer’s conduct as a whole and determine whether it is such that its effect, judged reasonably and sensibly, is such that the employee cannot be expected to put up with it: see British Aircraft Corporation Limited v Austin [1978] I.R.L.R. 332 and Post Office v Roberts [1980] I.R.L.R. 347. The conduct of the parties has to be looked at as a whole and its cumulative impact assessed; Post Office v Roberts.”
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The law – personal injuries claim
As the learned trial judge found, this claim can be based in contract or in tort and it is not necessary to distinguish between the two causes of action. The respondent claims that as a result of the appellant’s breach of contract or breach of duty to him he incurred a recognised psychiatric illness and not mere hurt, upset and injury to his feelings and in addition physical injury being the exacerbation of his Crohn’s disease.
In Maher v Jabil Global Services Limited [2005] 16 E.L.R. 233 the plaintiff claimed that as a result of his treatment by his employer, the defendant, he suffered significant psychological harm. The plaintiff claimed that the amount of work which he was required to perform and the pressure under which he was placed by management to achieve targets which he claimed to be unrealistic gave rise to stress and that his employers knew or ought to have known that stress was a likely consequence of their conduct. As authority for the proposition that an employer may be liable for stress engendered injury to health of an employee as opposed to ordinary occupational stress the learned trial judge referred to McGrath v Trintech Technologies Limited [2005] E.L.R. 49, Quigley v Complex Tooling and Moulding, unreported, High Court, Lavan J. 9th March 2005 and Hatton v Sunderland [2002] 2 All ER 1.
The Court of Appeal in Hatton considered four cases in each of which as a result of stress the plaintiff suffered psychiatric illness. In examining the law the court went back to first principles – liability in negligence depends upon three inter-related requirements:
1. The existence of a duty to take care.
2. A failure to take the care which can reasonably be expected in the circumstances and
3. Damage suffered as a result of that failure.
The court held that special problems attend claims for psychiatric injury and that they require care in determination because they give rise to difficult issues of foreseeability and causation and in identifying a relevant breach of duty. As to foreseeability, the issue in most cases will be whether the employer should have taken positive steps to safeguard the employee from harm and the threshold to question is whether the kind of harm sustained to the particular employee was reasonably foreseeable. The test is not concerned with the person of ordinary fortitude. The answer may be found in asking the question whether the employer knew or ought to have known of a particular vulnerability. Stress is merely a mechanism whereby harm may be caused and it is necessary to distinguish between signs of stress and signs of impending harm to health. Frequent or prolonged absences from work which are uncharacteristic for the person concerned may make harm to health foreseeable: there must be good reason to think that the underlying cause is stress generated by the work situation rather than other factors. Where an employee is certified as fit for work by his medical adviser the employer will usually be entitled to take that at face value unless there is a good reason for him to think to the contrary. As to the duty of care the employer’s duty is to take reasonable care and if the risk of harm to health is foreseeable the employer must act reasonably. It is necessary in each case to consider what the employer could and should have done. Finally if a breach of duty is found it is still necessary to show that that particular breach of duty caused the harm complained of: where there are several factors contributing to stress related illness if the employer made a material contribution he will be liable for the whole subject to any rights he may have to seek contribution from others who have contributed to the injury.
Hale L.J. set out a number of propositions which she derived from the case law the following being relevant to this case:-
1. The ordinary principles of employer’s liability apply.
2. The threshold question is whether the kind of harm to the particular employee was reasonably foreseeable: this has two components (a) an injury to health (as distinct from
occupational stress) which (b) is attributable to stress at work (as distinct from other factors).
3. Foreseeability depends upon what the employer knows (or ought reasonably to know) about the individual employee. Because of the nature of mental disorder it is harder to foresee than physical injury, but may be easier to foresee in a known individual than in the population at large. An employer is usually entitled to assume that the employee can withstand the normal pressures of the job unless he knows of some particular problem or vulnerability.
4. The employer is generally entitled to take what he is told by his employee (including what he is told by the employee’s medical adviser) at face value unless there is good reason to think to the contrary.
5. The indications of impending harm to health arising from stress at work must be plain enough for any reasonable employer to realise that he should do something about it.
6. The employer is only in breach of duty if he has failed to take the steps which are reasonable in the circumstances, bearing in mind the magnitude of the risk of harm occurring, the gravity of the harm which may occur, the cost and practicability of preventing it, and the justifications for running the risk.
7. An employer can only reasonably be expected to take steps which are likely to do some good: the court is likely to need expert evidence on this.
8. If the only reasonable and effective steps would have been to dismiss or demote the employee the employer will not be in breach of duty in allowing a willing employee to continue in the job.
9. In all cases it is necessary to identify the steps which the employer both could and should have taken before finding him in breach of his duty of care.
10. The claimant must show that the breach of duty caused or materially contributed to the harm suffered. It is not enough to show that occupational stress has caused the harm.
The medical evidence in this case is as follows. On the 31st January 2001 Professor Colm Ó Moráin, Consultant Gastroenterologist, wrote to the respondent’s solicitor a short report as follows:
“This is to confirm that Adam is a patient of mine. He has Crohn’s disease for which he has had a previous resection done in the eighties but since then he has had recurrence. Over the last while he has had an exacerbation of symptoms and I have no doubt the recent wrangle has exacerbated his symptoms and has resulted in him having to increase his medication.”
In a further short report dated 25th April 2001 Professor Ó Moráin reported as follows:-
“Adam is having ongoing problems with his Crohn’s disease. He had a recent exacerbation and as a result of this he has a probable mass on the right side of his bowel which represents an inflamed portion of his bowl. I feel this is pressing on his bladder and as a result is causing recurrent urinary tract infections. He does need ongoing treatment and unfortunately the continuous stress at work is not helping his symptoms. We are closely monitoring his progress at the moment and he does require strict medical supervision at the moment but I am concerned that the level of stress at work may well be exacerbating his symptoms.
In a report of 31st May 2001 Professor Ó Moráin reported as follows:-
“In the last year, however, Adam has been having a flare-up of his Crohn’s disease and I do feel that the psychological stress he is undergoing has a major role to play in this exacerbation. The flare-up has been characterised by more frequent visits to me and increasing his doses of medication, more marked since February 2000. With his present exacerbation he will be closely monitored at weekly intervals for the next few weeks.
I am concerned about Adam’s deterioration of health and after a long discussion with him I do think that his work situation is certainly not helping health wise and I feel the best approach would be for him to get out of this environment. I feel this would be a positive contribution to his health.”
As to the respondent’s psychological condition there was a report from Dr. Paula McCoy, Consultant Psychiatrist. The following paragraphs of the report set out her opinion:-
“29. The background here appears to be that of a normal individual, with a stable, social and personal family background; and a record of high achievement at the work place, notwithstanding the fact that Mr Berber has suffered from a chronic inflammatory bowel disease since his teens with arduous treatment required at times.
30. The history and clinical findings as I have elicited them would accord with the development of a psychological adjustment disorder, with features of anxiety and possible features of depression, in Mr Berber occurring on a background of work place stress over many months, following the occurrence of the events under consideration. This disorder is likely to have been of moderate severity.
31. It is recognised that the occurrence of ongoing stress disorders may be associated with less favourable clinical outcomes in some chronic medical conditions, including Crohn’s disease and hypertension. In my view the occurrence of the psychological disorder noted at 31 above is likely to have contributed to symptom severity and possibly, to symptom duration in Mr Berber’s Crohn’s disease.
32. The psychological disorder noted at 31 above appears in Mr Berber’s case to have resolved over the months following resolution of the situational stresses with which it was associated (work place difficulties and ensuing period of unemployment). I expect that Mr Berber’s close family support, and his previously stable personality with the passage of time have been favourable factors in his recovery from this disorder.”
The Civil Liability Act 1961 in section 2 defines personal injury as including any disease and any impairment of a person’s physical or mental condition. The learned trial judge accepted Dr. McKay’s evidence and found, as she was entitled to do on the evidence, that the adjustment disorder from which the respondent suffered constituted an illness or injury and that it exacerbated the respondent’s Crohn’s disease and hampered treatment of that disease. She found that the adjustment disorder and the consequential impact was attributable to the manner in which the appellant dealt with the respondent after 23rd November 2000. She found that the injuries suffered by the respondent were reasonably foreseeable and that for the like reasons for which the appellant had been found in breach of contract it was in breach of duty. As I have found that the appellant was not in breach of contract it is necessary to look at those circumstances again and apply to them the appropriate test.
Causation is not an issue in that the personal injury arose out of the circumstances existing in the work place. The learned trial judge found that at the relevant times the appellant was subconsciously aware of the respondent’s vulnerability. This being so I am satisfied that a reasonable employer applying its mind to the situation would in fact be aware of that vulnerability. However that is not a vulnerability to mental injury but rather that the respondent felt vulnerable by reason of the changes in his occupation from buyer to a position in training for store management. If the respondent had applied its mind to the situation I am satisfied that it was also foreseeable having regard to his vulnerability that if it should fail to take reasonable care it would result in stress. From receipt of the respondent’s solicitor’s letter of the 7th December 2000 the appellant was actually aware that the respondent was suffering from stress and that the stress was affecting the respondent’s Crohn’s disease. Accordingly, at least from receipt of the letter of 7th December 2000 the respondent had a duty to take reasonable care not to cause harm.
The question for determination then is whether the appellant took reasonable care. What is reasonable depends upon the foreseeability of harm, the magnitude of the risk of that harm occurring, the gravity of the harm which may take place, the cost and practicality of preventing it, and the justifications for running the risk: Stokes v Guest Keen and Nettlefold (Bolts and Nuts) Limited [1968] 1 W.L.R. 1776. In Hatton v Suderland, Hale L.J. said:-
“It is essential therefore, once the risk of harm to health from stress in the work place is foreseeable, to consider whether and in what respect the employer has broken that duty. There may be a temptation, having concluded that some harm was foreseeable and that harm of that kind has taken place, to go on to conclude that the employer was in breach of his duty of care in failing to prevent that harm (and that the breach of duty caused the harm). But in every case it is necessary to consider what the employer not only could but should have done.”
I have already held had that the employer’s reaction to the events of the 27th, 28th and 29th March 2001 was reasonable. In the incident relating to the dress code there were exchanges but they were not heated and I am not satisfied that the appellant acted other than reasonably. The mis-description in the roster was a mistake and any harm resulting from the same in my view was unforeseeable. The error in relation to the hours upon which the respondent was rostered for duty was the respondent’s mistake. The wording of the circular correcting the error in substance was as agreed. Its circulation was less than that agreed but, insofar as that fell short of the circulation agreed, the shortfall looked at in terms of the circulation of the error was not such as to make injury foreseeable. The training programme as originally drafted the discussions concerning its contents and the seven days delay in producing the revised training plan taken together are not circumstances which make mental injury foreseeable. Insofar as the appellant was unwilling to discuss the contents of the plan while the respondent was absent from work due to stress and its effect on his Crohn’s disease it was perhaps more beneficial to the respondent that matters causing him stress should not be discussed until he was certified fit to return to work by his medical adviser. Had the appellant insisted on discussing the training plan at a time when the respondent was certified as unfit for work such conduct might well be regarded as oppressive conduct. Each of the incidents raised in the course of the hearing and which occurred after the 23rd November taken individually fails on the test of foreseeability. I am satisfied that cumulatively they also fail. The appellant responded reasonably to each incident as it arose and the alternative available to the appellant was to abdicate from all control of the manner in which the respondent would carry out the duties of his employment.
The injury sustained by the respondent being unforeseeable the respondent’s claim based on breach of duty must fail.”
McHugh v. Minister for Defence
[1999] IEHC 91; [2001] 1 IR 424
Budd J.
“POST TRAUMATIC STRESS DISORDER
9. Lieutenant Colonel Goggin is a veteran who has been in the army for forty four years. He has served abroad in the Congo and as a military policeman and was at one time Governor of the Curragh Prison. Since 1970 he has been the army psychologist. In the mid-1980s he was attending military conferences of psychologists and was familiar with the need to raise the awareness of the perils of stress and the need to recognise it. He has been in the forefront of developing a policy of raising awareness in the army of the peril of critical incidents and stress particularly with regard to troops going overseas. Before he produced two fine pamphlets on PAD and CISD circulated in 1993 (after the relevant time in this case), he had distributed his six pages of notes on stress from about 1990 or 1991. The seventh page of this booklet of notes was actually drafted by Doctor Finnuala O’Loughlin, at the time an army psychiatrist. Colonel Goggin briefed officers as to what to look out for in respect of stress. Such knowledge was available from the mid-1980s and his notes went to officers about 1990 and possibly also to senior NCOs as well. The notes went to other ranks about 1993. I append page seven as drafted by Captain O’Loughlin and circulated by Colonel Goggin to the officers going with the 72nd Infantry Battalion to the Lebanon. They also attended a lecture by Colonel Goggin on stress and what to look out for by way of symptoms. It is significant that Captain O’Loughlin writing about 1990 wrote: “THESE days we hear a lot of talk about post traumatic stress disorder. This is a disorder which sometimes affects people who have experienced situations which were extremely violent or upsetting. It involves re-experiencing the event persistently in their dreams or thoughts.
The experience may be as victim or survivor of a trauma or as a witness to the trauma, such as being present at a tragedy or atrocity or seeing or handling mutilated bodies”.
10. Recognition that combat could lead to emotional suffering, long after a war has ended, came about in the early twentieth century. Terms such as “shell shock”, “battle fatigue” and “post traumatic stress disorder (PTSD)” were applied. It became recognised that the effects were due to shocking emotional experiences and that war was not the only cause of PTSD as it could arise from other experiences outside the realms of normal experience. A life-threatening injury of a sudden and unexpected variety would appear to be a prevalent stressor. On occasions a garda who has been awarded a Scott medal for exceptional bravery in the past in taking on armed robbers has subsequently suffered PTSD after a relatively minor incident. The theme that appears to underpin such events is the threat, real or perceived, to life. In this context, the threat perceived by the Plaintiff to his life on 1st November, 1992 is significant. The latency period between the trauma occurring and the onset of symptoms is said to vary from a few hours to a few months. The clusters of symptoms which are likely to occur in the disorder are:- (I quote from “Psychiatry and the Law” at p 86)
“1. Recollection phenomena such as flashbacks, dreams;
2. Emotional changes including detachment, anxiety, depression, unresponsiveness to surroundings;
3. Avoidance of situations, events or memories associated with the trauma or likely to provoke recollections of it;
4. Numbing, leading to the inability to feel any emotion or to fully appreciate the significance of the event that has occurred;
5. Hyper-arousal, an enhanced startle reaction and insomnia;
6. Alcohol and other substance misuse may be a complication of the above symptoms”
11. Features often include a hostile attitude to the world, social withdrawal, feelings of emptiness or hopelessness, chronic anxiety and feelings of detachment and estrangement from the world.
12. The prognosis for these personality changes is poor. PTS can be reduced or relieved by psychological debriefing. It is clear that early remedial intervention by counselling, debriefing and relaxation techniques can reduce stress. Colonel Goggin is clearly a distinguished and fair army officer with much experience, including service as an officer overseas, and with, since 1970, psychological expertise. I accept his evidence without reservation in particular that if the Plaintiff was manifesting such symptoms as sleeplessness at night, sleeping at midday, obsessive talking about particular topics and talking with staring eyes, then these matters should have been reported to his commanding officer who should have referred him to the medical corps. He pointed out that stress is normal and is only abnormal above a certain level; it can be cumulative and leave a residue which makes one more vulnerable to trauma. It only becomes an illness if not treated and at a certain level. Treatment can include exercises in respect of breathing and relaxation of muscles and positive thinking. It was clear from the evidence of Doctor O’Loughlin and Doctor Paul McQuaid, Consultant Psychiatrist, that the earlier the remedial intervention the more likely is the prevention or relief of the disorder. As Doctor McQuaid put it:- “since the Second World War the research is quite clear that the earlier the mental health intervention the more rapid and satisfactory the recovery is likely to be”.
QUANTUM OF DAMAGE
73. I accept the evidence and prognosis of Doctor McQuaid and Doctor O’Loughlin. The Plaintiff had an excellent work record before his injury and he has great support from his wife and family, so that despite his irritability and his change from a previously extrovert and joyful personality, I believe that he will probably manage to rehabilitate himself in time and obtain experience which will enable him to get back into a good job. With his skills as a bricklayer and his honest hardworking character I am sure that he will eventually obtain gainful employment. In the light of the evidence of Paula Smith and the medical evidence, it will take him some period of time to gain work experience and train himself and to find a suitable job. With the example and advice of the army social worker, Mick Lacey, who has obviously taken a friendly interest in him, it may be that he will manage to acquire computer skills, despite Paula Smith’s reservations on his obtaining work in the computer line. He certainly has the training and physical capacity to work as a tradesman and if he can cope from a mental standpoint then he would be likely to earn higher wages than in the army.
GENERAL DAMAGES
PAIN AND SUFFERING TO DATE £65,000.00
74. This covers his change of personality and the effects on his working, social and domestic life and his reduced enjoyment of the amenities of life. In this sum I have taken into account that the Plaintiff was a good soldier who enjoyed his army career and who has had the anguish and disappointment of having to leave the army on doctor’s advice. I have included a sum of £5,000.00 in respect of this loss of vocational enjoyment and satisfaction and the stress of having to train for and find alternative employment.
SPECIAL DAMAGES TO DATE
75. Loss of past earnings £22,295.00
76. Loss of past duty money £1,470.00
77. The Plaintiff would in all probability have served three more years at least and so would have qualified for the pension after the minimum of twenty one years. His pension loss would be £50,224.00 as a capital sum on an actuarial basis as of before Christmas 1998 but from this should be deducted the £8,136.00 gratuity paid to him making a loss under this heading of £42,088.00.
78. He had paid medical fees to doctors/consultant at an agreed figure of £1,740.00
Total to date £132,593.00
PAIN AND SUFFERING IN THE FUTURE
79. According to Doctor O’Loughlin, whose prognosis I accept, the Plaintiff is still suffering from chronic and continuing PTSD. Even if he recovers somewhat he is vulnerable to relapse and the likelihood is a continuation of PTSD. The evidence of Doctor O’Loughlin and Paula Smith and other medical evidence makes me take the view that he will with difficulty manage to rehabilitate himself and gain work experience over a probable period of about three years from now. He has a serious loss of employability because of his psychiatric record and I think a sum of £10,000.00 should be allowed in respect of this. He also has chronic and continuing PTSD and is vulnerable to a recurrence of PTSD and to relapse even if he may seem to have recovered. I value this at £30,000.00 making a sum of £40,000.00 in respect of pain and suffering in the future.
SPECIAL DAMAGES IN FUTURE
80. Once the Plaintiff manages to gain work I believe that he will be earning as much as he earned in the army. Accordingly a sum should only be allowed to cover both his loss of earnings and his loss in respect of not having food and clothing perks for the next three years or so an appropriate sum for this is £20,000.00 which is much less than the amount suggested for future loss of earnings. The Plaintiff in future will have to pay on average £14.00 per week to his G.P./consultants. The multiplier for the rest of his life is 991.00 to be applied to this weekly expense to give the capital sum required now to compensate him for this future expense. This gives a figure of £13,874.00. Likewise with regard to the cost of medication he is likely to have to outlay £7.50 per week for the rest of his life with the similar multiplier of 991.00 giving a figure of £7,433.00.
81. He is aged thirty six at present and so would have had twenty four more years of service to the age of sixty in all probability, as he was a healthy man prior to the failure to remedy his post traumatic stress in 1993. He would probably have gone to the Lebanon at least once more and very possibly several times more as engineers tend to go half a dozen times. By not being able to go to the Lebanon he has been at a loss of the extra £5,000.00 earned on his previous tours which he had used each time before towards the improvement of his home. It is reasonable to allow the loss of one further trip at £5,000.00 “
Fletcher v. Commissioner of Public Works
[2003] IESC 13
Keane C.J.
“Introduction.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.
…….
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.
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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.
Geoghegan J.
“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.
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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”.
McLoughlin v Carr trading as Harloes Bar
[2005] IEHC 358
H.C. Peart J.
“By way of introduction, I should state that nobody could fail to be shocked by the appalling nature of the incident which is the subject of this case. That the plaintiff has suffered greatly in the aftermath of the attack upon him is beyond doubt, and he is deserving of great sympathy for what he has gone through. It has blighted an important period in his life, and has changed him from being what I will describe as being a normal, healthy, active and sociable person into a person prone still to the psychological effects of the incident such as depression, nervous tension, sleep disturbance, difficulties with inter-personal relationships, both in the workplace and elsewhere. It has thrown the plaintiff’s life off course, and it is to be hoped that the improvement which he has shown, albeit slowly and falteringly in the years since the incident, will continue so that soon he can return to a normal and contented life-path.
However, the appalling nature of this incident and its devastating effect on the plaintiff is not sufficient in itself to make the defendant liable to pay him compensation for what he has gone through. In order to make the defendant liable to compensate the plaintiff, it must be shown that the defendant was negligent, and/or that the defendant was in breach of a statutory duty such that the plaintiff can show (a) that the statute can be seen as intending that the plaintiff should have a right of action against the person who is in breach of the obligation imposed by the statute, and (b) whether there is a causal link shown to exist between the established breach or breaches of statutory duty and the injury sustained by the plaintiff. In Walsh v. Kilkenny County Council [1978] ILRM 1, Gannon J. stated in this regard:
“Not every failure to comply with a statutory duty from which damage ensues entitles a person damnified to recover compensation from the party in breach of the statute in a claim for damages founded on that ground alone. As stated by Maughan J. in Monk v. Warbey [1935] 1 KB 75 at page 85:
‘The court has to make up its mind whether the harm sought to be remedied by the statute is one of the kind the statute is intended to prevent; in other words it is not sufficient to say that harm has been caused to a person and to assert that the harm is due to a breach of the statute which has resulted in the injury.’
Furthermore the fact that the statute does not exact a penalty from the defaulting party is not the only factor which signifies that damages may be recovered in a civil action founded on the breach of the statutory duty. In Phillips v.Britannia Hygienic Laundry Company Limited [1923] 2 KB 832 at page 840, Atkin L.J. says:
‘When a statute imposes a duty of commission or omission upon an individual, the question whether a person aggrieved by a breach of the duty has a right of action depends on the intention of the statute. Was it intended that duty should be owed to the individual aggrieved as well as to the State, or is it a public duty only? That depends upon the construction of the statute as a whole, and the circumstances in which it was made, and to which it relates. One of the matters to be taken into consideration is this: does the statute on the face of it contain a reference to a remedy for the breach of it? If so, it would, prima facie, be the only remedy, but that is not conclusive. One must still look to the intention of the legislature to be derived from the words used, and one may come to the conclusion that, although the statute creates a duty and imposes a penalty for the breach of that duty, it may still intend that the duty should be owed to individuals.’
Romer L.J. in Solomons v. Gertzenstein Limited [1954] 2 QB 243 at 266 observed;
‘No universal rule can be formulated which will answer the question whether in any given case an individual can sue in respect of a breach of a statutory duty. “The only rule”, said Lord Simonds in Cutler’s case………”which in all circumstances is valid is that the answer must depend on a consideration of the whole Act, and the circumstances, including pre-existing law in which it was enacted.” ‘
Considering these matters, albeit in a necessarily brief way due to time constraints, I am of the view from the general scheme and context of the Safety, Health and Safety at Work Act, 1989 (“the Act”), that, in spite of the fact that certain offences and penalties are provided for in s. 48 of the Act in respect of breaches of duties imposed by certain sections thereof, it evinces an intention that the duties and obligations imposed upon employers therein are such that the employee is intended to benefit therefrom, and that an employee should therefore be entitled to sue in respect of a breach thereof, provided of course, and necessarily, that the employee can reasonably establish a causal link between the actual breach of statutory duty and the infliction of damage upon him/her.
This intention seems evident in, for example, Part II of the Act where s. 6(1) provides as follows:
“It shall be the duty of every employer to ensure, so far as is reasonably practicable, the safety, health and welfare at work of all his employees.”
Quite clearly this duty is being specified for the benefit and protection of employees in the workplace, and the remainder of s. 6 is very specific as to what is embraced by that duty. It can be seen in my view as giving statutory recognition to what hitherto was the common law duty of care which an employer owed to an employee. But even in the statutory provision, it is important to note the use of the words “so far as is reasonably practicable”, and that phrase is repeated throughout the other subsections of s. 6 where the precise matters to which the duty extends are set forth in detail.
The employer’s duty is balanced in s. 9 of the Act by the provision that it shall be the duty of every employee while at work to take reasonable care for his own safety, health and welfare, and the section goes into certain specifics in that regard also. A breach of that duty is also an offence carrying the same maximum penalty by way of fine as the offence in respect of a breach of the employer’s duty.
However, as I have already stated, I am of the view that the employee has rights to sue his employer for a breach of statutory duty created by s. 6 of the Act. But as I have also stated, the fact that the employer is in breach of a specific duty, such as in the present case the duty to carry out a risk assessment, or put up a safety notice, or the eliminate hazards in the workplace, or to provide training in matters related to security and so on, is not the end of the matter as far as a plaintiff is concerned. There must be shown to be a link between that breach and the injury suffered. To take a simple example, it will avail a plaintiff nothing in a road traffic accident case to establish that the defendant’s vehicle had a defective brake light in breach of statutory duty in that regard, if the absence of the brake light in no way caused or contributed to the accident in which the plaintiff suffered injury.
In the present case, the plaintiff will have to satisfy the Court that, on the basis of a probability, the fact that there was no risk assessment carried out, or the fact that there was no safety notice in place in the premises, or the fact that he was not given training in security matters such as the use of a panic button or how to deal with the identification of persons seeking to gain entry after hours, caused him to receive the psychological injuries for which he seeking to be compensated.
In my view he has failed to so establish matters sufficiently given the uniquely unusual method by which these raiders gained admittance to the premises, and in particular given the location of this public house. Looking at the matter from a perspective of reasonable reality – firstly, the absence of a safety notice on the wall of the premises, even if it had been evidence (which there was not) as to what such a notice would have or ought to have contained, same could not be expected to have stopped the plaintiff from letting these men dressed as Gardai, into the premises.
Secondly, I cannot see that even if the plaintiff had received some form of training or instruction in how to deal with persons who might call after hours, this training would reasonably be expected to anticipate persons masquerading as Gardai. The Act refers all the time to the phrase “so far as is reasonably practicable”. With the benefit of hindsight this event is now seen as one that is possible, and it is contended that it should have been foreseeable. I cannot agree given the evidence that such a method was never before used, and has not been known to have been used since. This point covers also the absence or failure to carry out a risk assessment. In my view no risk assessment at these premises would have thrown up as a possibility the fact that persons might phone up and alert the employees to the arrival of gardai and to the fact that persons dressed up as Gardai would in fact arrive and ask to be admitted. This had never been known to happen in the area and cannot be regarded as being something which would have been foreseen in such an assessment.
Thirdly, even if the plaintiff had been told more about the panic button, I doubt if it would have availed him at all. He has said that he knew that it was there in fact. It is not reasonable to conclude that he did not know how it could be activated. In addition, even if the a second person had been at the bar with a finger on the button waiting for the signal from the plaintiff to activate it, can it reasonably be stated that the plaintiff would have had any reason to direct its activation given the fact that as far as he was concerned these persons were Gardai and entitled to be admitted. I think not. The same can be said about training in the use of outside lights, since on this occasion the plaintiff was not handicapped as far as his sight of the persons was concerned. He could see that they were Gardai. It is pure speculation to now say that if the lights had been turned on, these men would have scarpered.
I am satisfied that the plaintiff cannot recover on the basis of breach of statutory duty.
Turning to the question of whether the defendant has been negligent as opposed to being in breach of statutory duty, much of what I have already stated is relevant to this question also.
To establish negligence, there must first of all be a duty of care owed by the defendant to the plaintiff, and a breach of that duty. It must also be shown that the plaintiff suffered damage as a result of that breach, and that the injury involved was reasonably foreseeable as a consequence of the breach of duty.
For a duty of care to exist, there must firstly be a relationship of proximity between the plaintiff and the defendant. That is not a difficulty in the present case for the very obvious reason that the plaintiff was the defendant’s employee.
An important consideration will then be the extent of that duty of care. In the context of the present case the defendant’s duty at common law was to use reasonable care to ensure the safety of the plaintiff during the course of his employment. That will involve an assessment of what risks were foreseeable, so that the defendant‘s conduct can be considered, in order to form a view as to whether there was something which reasonably ought to have been done and which was not done, and the absence of which resulted in the injury.
It is alleged in the present case that the defendant ought to have foreseen that an incident such as the present one might happen, and that if such an event had been anticipated, whether in the carrying out of a risk assessment or otherwise, then the defendant would have been obliged to take certain steps to avoid it or minimise it by the provision of appropriate training designed to enable the plaintiff to avoid injury in the manner which happened. In my view the answer to the question of foreseeability is that this event was unique in the sense that it had never before occurred in a licensed premises in the general area of the defendant’s premises. How then can it be said to be something foreseeable. It has only become a visible or foreseeable possibility with the benefit of hindsight.
Sometimes the question of whether any act by the defendant can be seen as having caused injury to the plaintiff is discussed in terms of the “but for” test. As McMahon and Binchy state in their work Law of Torts, 3rd ed. at page 61:
“…the rule they [the courts] most commonly favour in distinguishing the relevant causes from irrelevant causes is what has become known as the “but for” rule. An act is the cause of an event if the event would not have occurred without (“but for”) the act in question. If the event or effect would have occurred without the act in question then the act cannot be deemed to be a cause.”
The extent of the employer’s duty of care has been described by Henchy J. in the following terms in Bradley v. CIE [1976] IR 217 at 223:
“The law does not require an employer to ensure in all circumstances the safety of his workmen. He will have discharged his duty of care if he does what a reasonable employer would have done in the circumstances.”
In similar vein is the remark of Kingsmill Moore J. in Christie v. Odeon (Ireland) Limited [1957] 91 ILTR 25 at 29:
“It is of little avail to show, after an accident has happened, that such and such a precaution might in the circumstances have avoided a particular accident. The matter must be considered as it would have appeared to a reasonable and prudent man before the accident.”
In all the circumstances can it be argued successfully that this reasonable and prudent man would have anticipated what happened at these premises, and taken precaution against that thing occurring? I think not.
The employer’s duty is, inter alia, to provide a reasonably safe place of work for his employee. He cannot be reasonably be expected to provide a place of work, guaranteed to exclude any potential hazard no matter how remote a possibility, or unforeseeable it is. In my view the plaintiff has failed to establish that any act or omission on the part of the defendant was the cause of the undoubted injury which the plaintiff has suffered. Harsh as it will seem, the law has provided that certain things must be established by a plaintiff if he is to be successful in a claim of negligence against his employer, and unfortunately the plaintiff has fallen short of satisfying me of these matters in the present case.
I must with great regret dismiss the plaintiff’s claim.”
Donachie v Greater Manchester Police
[2004] EWCA Civ 405
CA Lord Justice Auld:
“Reasonable foreseeability of injury/proximity
Mr Mark Turner QC, on behalf of Mr Donachie, put at the forefront of the appeal that the Judge, on his own findings, overlooked the fact that there was a reasonably foreseeable risk of physical injury. He submitted that the Judge wrongly relied on the test of foreseeability set out by this Court in Sutherland v. Hatton [2002] PIQR P221, where the claim failed because, the Court held, there was no reasonably foreseeable risk of injury of any sort. Here, he maintained, the Judge, having accepted that Mr Donachie had suffered a clinical psychiatric condition leading to a physical injury in the form of a stroke as a result of the Chief Constable’s negligence, wrongly failed to consider whether he was a primary or secondary victim. He said that if he had done so, he would have been bound by authority, in particular Page v. Smith [1996] 1 AC 155, HL, to conclude that he was a primary victim, since the Chief Constable should reasonably have foreseen the possibility of some physical injury whatever the precise mechanics of its causation.
In order to follow, and before continuing with, Mr Turner’s submissions on the issue of reasonable foreseeability, I should set out, at least in summary form, the main principles established by the House of Lords in Page v. Smith, the nature of the factual issue in the case and also a much cited passage from the speech in it of Lord Lloyd of Berwick. The main principles are that:
i) A defendant owes a duty of care to a person where he can reasonably foresee that his conduct will expose that person to a risk of personal injury.
ii) For this purpose the test of reasonable foreseeability is the same whether the foreseeable injury is physical or psychiatric or both.
iii) However, its application to the facts differs according to whether the foreseeable injury is physical or psychiatric. In the latter case, if the claimant is not involved in some sort of “event” caused by the negligence, he is a “secondary” victim and liability is more difficult to establish (see the recent discussion by the House of Lords in Barber v. Somerset County Council [2004] UKHL 13);
iv) If the reasonably foreseeable injury is of a physical nature, but such injury in fact causes psychiatric injury, it is immaterial whether the psychiatric injury was itself reasonably foreseeable. Equally if, as in this case, the breach of duty causes psychiatric injury causing in turn physical injury, it is immaterial that neither the psychiatric injury nor the particular form of physical injury caused was reasonably foreseeable. Thus, in Page v. Smith, the claimant was involved in a road accident caused by the defendant’s negligence that caused him no physical injury, but aggravated a pre-accident condition of fatigue syndrome. The House of Lords upheld his entitlement, subject to establishing causation, to claim in damages for negligence. Lord Lloyd, applying the approach that I have just summarised from a passage from his speech at 190C-D, said at 190C-F:
. “… the test in every case ought to be whether the defendant can reasonably foresee that his conduct will expose the plaintiff to risk of personal injury. If so, then he comes under a duty of care to that plaintiff. If a working definition of ‘personal injury’ is needed, it can be found in section 38(1) of the Limitation Act 1980; “‘Personal injuries” includes any disease and any impairment of a person’s physical or mental condition …” …. In the case of a secondary victim, the question will usually turn on whether the foreseeable injury is psychiatric … In the case of a primary victim the question will almost always turn on whether the foreseeable injury is physical.. But it is the same test in both cases, with different applications. There is no justification for regarding physical and psychiatric injury as different ‘kinds’ of injury. Once it is established that the defendant is under a duty of care to avoid causing personal injury to the plaintiff, it matters not whether the injury in fact sustained is physical, psychiatric or both. The utility of a single test is most apparent in those cases … where the plaintiff is both primary and secondary victim of the same accident.
Applying that test in the present case, it was enough to ask whether the defendant should have reasonably foreseen that the plaintiff might suffer physical injury as a result of the defendant’s negligence, so as to bring him within the range of the defendant’s duty of care. It was unnecessary to ask, as a separate question, whether the defendant should reasonably have foreseen injury by shock; and it is irrelevant that the plaintiff did not, in fact, suffer any physical injury.”
On the associated issue of proximity, Mr Turner criticised the Judge’s reliance in rejecting Mr Donachie’s claims, on the notion that he had to prove, not only that he had been exposed to a risk of physical injury from being assaulted by the suspected criminals, but also that an “event”, say, in the form of such an assault had taken place. He suggested that such an approach was inconsistent with the principles laid down by the House of Lords in Page v. Smith and the Court of Appeal decisions following it of Young v. Charles Church (Southern) Ltd., 24th April 1997, QBENF 96/0920/C; and Schofield v. Chief Constable of the West Yorkshire Police [1999] ICR 193, CA.
……
61. I conclude therefore that the Defendant is right in saying that the particular injury is not reasonably foreseeable or that it is too remote. Putting it another way I do not consider this is a Page v. Smith case. The event in Page v. Smith was a road traffic accident. The equivalent event in this case would have been the arrival of the villains on the scene. It is with some diffidence and reluctance that I have come to the conclusion that damages for this particular injury are not recoverable in negligence.”
It is plain from Page v. Smith and the authorities following it that, in the case of claims for nervous shock or other form of psychiatric injury, the application of the test of reasonable foreseeability differs according to whether the claimant is a “primary” or a “secondary” victim. In the case of the latter the law accepts, but more reluctantly than in the case of the former, the possibility in certain cases of establishing reasonable foreseeability of injury. This reluctance, by the imposition of certain control mechanisms, has – as a response to the “floodgates” argument – its root in the policy of careful scrutiny of claims where the sole injury for which damages are claimed is psychiatric; see McLoughlin v. O’Brien [1983] 1 AC 410, HL, especially per Lord Scarman at 431 B-D.
However, where the court is satisfied that reasonable foreseeability has been established, whether for physical or psychiatric injury or both, it is immaterial whether the foreseeable injury caused, and in respect of which the claim is made, is caused directly or through another form of injury not reasonably foreseeable. Thus, as Lord Browne-Wilkinson indicated in Page v. Smith, at 181A-B, a negligent act may cause physical injury or illness either directly or through a psychiatric route, or it may cause psychiatric injury either directly and/or through direct physical injury or illness.
I agree with Mr Turner that the Judge, in the passages from his judgment that I have set out in paragraph 19 above, wrongly relied on Sutherland v. Hatton, a claim for occupational stress induced psychiatric injury that failed because there was no reasonably foreseeable risk of injury of any sort. This case was one in which, as I have said, there was a reasonable foreseeability that the Chief Constable’s breach of duty would cause physical injury to Mr Donachie, though not of the kind he actually suffered, and via the unforeseeable psychiatric injury actually caused by his negligence. He was thus a primary victim in respect of whom there was a reasonable foreseeability of physical injury and, in consequence, in respect of whom it was not necessary to prove involvement in an “event” in the form of an assault or otherwise. There can be no doubt that the Judge, on his findings of fact that we have set out in paragraph 18 above, was satisfied on the evidence before him that there was a reasonable foreseeability of physical injury.
I should add that, even if it had been necessary to look for an “event” in this case sufficient to enable Mr Donachie to rely as a primary victim on reasonable foreseeability of psychiatric, as distinct from physical injury, I would have had sympathy with Mr Turner’s submission that the circumstances in which he had been placed as a police officer, coupled with his fear engendered by those circumstances of physical injury, are indistinguishable in principle from occurrence of such injury. If A puts B in a position which A can reasonably foresee that B would fear physical injury, and B, as a result, suffers psychiatric injury and/or physical injury, B is, in my view, a primary victim. If it were necessary to characterise the onset of the fear causative of such injury as “an event”, I would do so. There is all the difference in the world between a person like Mr Donachie, put in such a position by the tortfeasor, and someone who happens to learn from afar and/or a significant time afterwards of an event in which he had no involvement, the discovery of which he claims to have caused him psychiatric injury.
Pre-existing vulnerability
This issue is part of the foresee ability issue, but as it was treated as a discrete area of argument by both Mr Turner and Edis, I shall give it the same focus as they did.
Mr Turner criticised the Judge’s reliance, in paragraphs 59 to 61 of his judgment (see paragraph 19 above), on Mr Donachie’s pre-existing hypertension as a symptom of his special vulnerability to stress and its mental or other consequences when considering the issue of reasonable foreseeability of injury. He noted too that there was no evidence that he was susceptible to psychiatric injury. He submitted that any such pre-existing vulnerability, whether to stress or psychiatric injury, was irrelevant to foreseeability, since the test is that a tortfeasor takes his victim as he finds him in cases of psychiatric injury as well as physical injury.
Mr Edis submitted that the pre-existing vulnerability of Mr Donachie is relevant to reasonable foreseeability because, unless the Chief Constable knew of it there was no reasonable risk of injury of any kind, and it is only where there is a foreseeable risk of physical injury that the tortfeasor must take his victim as he finds him. In developing that argument, he drew the following analogy from the facts in Page v. Smith. Driving a vehicle badly creates a foreseeable risk of injury if an accident occurs. All those involved in the “event”, that is, the accident may recover damages, whether for physical or mental injury, or both. But it does not follow from that reasoning that a person not the subject of such an “event”, who is, not involved in the accident, can recover damages for stress caused by their fear that there might be an accident.
If I am correct in my view that Mr Donachie is a primary victim because the Chief Constable’s breaches of duty gave rise to a reasonable foreseeability of physical injury, albeit of a different form from the one caused by those breaches, any pre-existing vulnerability of Mr Donachie to stress causative of psychiatric injury is irrelevant. The Chief Constable must take his victim as he finds him. Lord Lloyd, in Page v. Smith, said, at 197E-H:
“… 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. … 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”. … 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.”
Accordingly, the fact that the Chief Constable was not, and could not reasonably have been expected to be, aware of any particular vulnerability of Mr Donachie, by reason of hypertension possibly causative of psychiatric injury, is no impediment to Mr Donachie’s claim under the heading of reasonable foreseeability or in causation. It follows for this reason too, that the Judge erred in his reasoning in paragraphs 59-61 of his judgment (see paragraph 19 above) that, because the Chief Constable had not been put on notice about Mr Donachie’s hypertension, all that followed from his breaches of duty on 2nd November 1997 was not reasonably foreseeable. That reasoning flowed from his basic error in concluding, as he put it in paragraph 61, that this was not “a Page v. Smith case”.
However, if, for the reasons I have given in paragraph 24 above, it had been necessary to consider the validity of the Judge’s conclusion that there was no reasonable foreseeability of psychiatric injury on account of Mr Donachie’s pre-existing vulnerability, I could not have upheld his finding. There was no evidence that he was vulnerable to psychiatric illness, only that his pre-existing hypertension predisposed him to a stroke, not to psychiatric injury.
There is no need to deal separately with the issue of breach of statutory duty, since, as Mr Turner conceded, the issues as to foreseeability in negligence are essentially the same as those arising for consideration under the relevant statutory provisions.
Causation
The general rule in personal injury cases remains the “but for” test laid down by the House of Lords in Bonnington Castings Ltd. v. Wardlaw [1956] AC 613, as interpreted by the majority of the House in McGhee v. National Coal Board [1973] 1 WLR 1, a general rule that Lord Bingham reiterated in paragraph 8 of his speech in Fairchild v. Glenhaven Funeral Services Ltd. [2003] 1 AC 32:
“In a personal injury action based on negligence or breach of statutory duty the claimant seeks to establish a breach by the defendant of a duty owed to the claimant, which has caused him damage. For the purposes of analysis, and for the purpose of pleading, proving and resolving the claim, lawyers find it convenient to break the claim into its constituent elements: the duty, the breach, the damage and the causal connection between the breach and the damage. In the generality of personal injury actions, it is of course true that the claimant is required to discharge the burden of showing that the breach of which he complains caused the damage for which claims and to do so by showing that but for the breach he would not have suffered the damage.”
As Lord Bingham went on to emphasise in paragraph 9 of his speech, the issue in Fairchild did not concern the general validity and applicability of that requirement, but whether in special circumstances such as those in that case there should be any variation or relaxation of it. Those circumstances were that the claimant had contracted mesothelioma following successive employments with two employers, each of whom was in breach of duty in exposing him to excessive quantities of asbestos dust, the only possible cause of his condition. In the state of medical science he was unable to prove which or whether both of his employers, by reason of their breach of duty, had caused his condition. Their Lordships, faced with the injustice of depriving him of recovery of compensation in such circumstances, held essentially on policy grounds that he should be entitled to recover against both employers on the McGhee basis that his employer, in exposing him to a risk to which he should not have been exposed, materially contributed to the injury against which his employer had a duty to protect him. Lord Nicholls of Birkenhead observed at paragraph 36 of his speech in Fairchild that the real difficulty lies in elucidating in sufficiently specific terms the principle to be applied in reaching that conclusion. And he later observed, at paragraph 43, that considerable restraint is called for in relaxation of the threshold “but for” test of causal connection.
……
As to whether the Chief Constable was in breach of that duty – that is, “culpable” in exposing Mr Donachie to risk on the occasion in question, the Judge found, in paragraph 69 of his judgment, that he was not in respect of the first of the nine trips to the car, possibly not in respect of the second, to retrieve the device, or the third to attach it for a second time, still with the same battery – presumably because it had been working shortly before this operation began and would have passed any system of testing. However, he found that the remaining six trips were “culpable”.
The Judge held that causation was established. In paragraphs 62 to 71 of his judgment, he found that Mr Donachie had suffered extreme stress as a result of repeated trips to the car to attach the device, and that such stress caused or materially contributed to the later stroke. In paragraphs 70 and 71 he referred to medical evidence, which he accepted, that the greater the stress the greater the risk of Mr Donachie having a stroke, and that, but for the malfunction, there might have been a small risk but it was considerably greater if the stress was a lot greater. He continued:
“70. … I agree almost as a matter of common-sense that the greater the number of trips the greater the stress. It is therefore easy to conclude that the excess exposure to stress caused or made a material contribution to the subsequent cerebro-vascular accident. If that approach be wrong the Claimant contends that all he has to show is that the additional significant exposure to stress was caused by the culpability of the Defendant. If he does so then he relies upon McGhee v. The National Coal Board (1973) 1 WLR 1. That case was discussed and analysed in Fairchild v. Glenhaven Funeral Services Ltd. … by Lord Bingham at … paragraphs 17-21. See also Lord Hoffmann at … paragraph 64.
71. In short the “culpable” trips to the motorcar materially increased the risk of stroke occurring and therefore although the Claimant cannot show that but for the culpable trips he would not have suffered the stroke he nonetheless succeeds on establishing causation. That must be right. It follows that if my conclusions as to foreseeability of harm are wrong then causation is established.”
As I read those paragraphs, the Judge, contrary to the views of Lords Reid, Simon and Salmon in McGhee regarded the notion of “material contribution” and that of “material increase in risk” as different and alternative tests. In the light of the analyses of some of their Lordships in McGhee and Fairchild, I have some sympathy with his approach. But, in any event, despite the indicative, as distinct from conditional, manner in which he referred to the “but for” test in paragraph 71, it is plain that, for the purpose of considering the alternative of “material increase in risk”, he was there referring to his preferred conclusion in paragraph 70, namely the “but for” test. It should be noted that he began the second sentence of paragraph 70 with the finding “… but for the malfunction there might have been a small risk but it was undoubtedly considerably greater” (my emphasis), given, as he had found, that “the stress was a lot greater”. And, as can be seen, he went on in that paragraph to find that the excess exposure to stress “caused or made a material contribution” to the subsequent stroke, a finding clearly based on the conclusion on the evidence in paragraph 66 of his judgment:
“I conclude as a matter of fact having heard all the evidence that the stress suffered by the Claimant can be categorised as extreme or severe or even perhaps acute. As said the cardiologists’ view is that in those circumstances the stress of the occasion caused or materially contributed to the subsequent cerebro-vascular accident. I have no difficulty in accepting their opinion.” [my emphasis]
Thus, the Judge, who had clearly put his mind to the different tests of causation indicated in the authorities, dealt with it on the Bonnington basis. That is, he applied the “but for” test recently reaffirmed as the norm for claims for personal injury in negligence claims by the House of Lords in Fairchild. He only turned, in the latter part of paragraph 70 and in paragraph 71, to the material increase in risk test as an alternative. Whether or not, in the light of the equation of the majority of their Lordships in McGhee of the notions of “material contribution” and “material increase in risk”, he was wrong to treat them as different tests, his clear finding in paragraph 70 was that the excess exposure to stress “caused or made a material contribution to” the subsequent stroke.
It follows that the Judge applied the general “but for” rule, not some Fairchild relaxation of it, as suggested by Mr Edis. In my view, the Judge was correct in the circumstances to apply the general rule.
As to the facts, Mr Edis criticised the Judge’s findings that six of the nine trips to the car were “culpable”. He relied on the fact that, on the evidence accepted by the Judge, it was not until the fifth trip, that is, after the first battery had failed for the second time, that Mr Donachie tried another battery. So, he argued, the Chief Constable’s culpability did not begin until the sixth trip when Mr Donachie had to retrieve the device from the car for the third time. It followed, he said that about half the total stress to which Mr Donachie was exposed was not “culpable”, a consideration relevant to causation as well as foreseeability, since Mr Donachie had to prove that the extra stress was a material contribution to his subsequent stroke. To do that, Mr Edis submitted, he had to prove that he would not have suffered his injury but for those “culpable” trips to the car.
Mr Edis, in addition to what he maintained was “substantial non-culpable stress” on the day in question, pointed to earlier features of Mr Donachie’s mental state, including: evidence that the Judge accepted of his change of mood in the previous six weeks and Mr Donachie’s own attribution of his condition to a sudden recall from holiday, his normal workload and a meeting with an informer two days later. No culpability on the part of the Chief Constable had been established in respect of such matters, but, said Mr Edis, they were relevant to the issue of causation. He maintained that in a case such as this, a single wholly exceptional event and with such contributory factors, the “but for” test remains the general rule in tort, as acknowledged their Lordships in Fairchild.
Mr Turner accepted that Mr Donachie’s first trip to the car would have been necessary to attach the device even if it had been in proper working order. However, he maintained that all of the following eight trips were caused by the Chief Constable’s breach of duty, given the evidence, accepted by the Judge, that, despite the Force’s two years’ experience of a high failure rate of the batteries and the risk that such failure created for officers using them, it had done nothing about it, by investigation, instruction or warning or otherwise.
As to the correctness of the test of causation adopted by the Judge, Mr Turner relied on the fact that the Judge had found, on the evidence before him, not only that stress for which the Chief Constable was culpably responsible had increased the risk of Mr Donachie suffering from a clinical psychiatric condition and stroke, but that such stress had caused, in the sense of materially contributed to, both those conditions. Accordingly, he submitted, Mr Donachie succeeded before the Judge on that basic Bonnington test of “material contribution” to the injury without need for recourse to the “material increase in risk” alternative derived from McGhee and Fairchild.
The only question is whether the Judge, in his application of the McGhee test, could properly find on the evidence before him that the Chief Constable had caused or materially contributed to Mr Donachie’s injuries, given the various factors contributing or capable of contributing to his extreme stress at the material time and to the impossibility for him of proving their relative contributions.
I do not see on what basis the Court could properly interfere with the Judge’s finding in paragraph 70 that the excess culpable exposure by the Chief Constable of Mr Donachie to extreme stress in the circumstances that he found proved, “caused or made a material contribution” to his stroke. As Mr Edis acknowledged in argument, this is primarily a factual matter on which the Judge has made clear findings of primary fact.
Accordingly, I would allow Mr Donachie’s appeal on the issue of reasonable foreseeability and, to the extent if at all it is a separate consideration, the issue of pre-existing vulnerability, and dismiss the Chief Constable’s cross-appeal on the issue of causation.”
Kelly v Hennessy
[1996] 1 I.L.R.M. 321
S.C. DENHAM J:
“Nervous shock
‘Nervous shock’ is a legal term used to connote a mental as opposed to physical injury to a person. It has been accepted in Irish law that such an injury can be the subject of damages. The term was used over a hundred years ago and accepted: see Byrne v. Great Southern and Western Railway Company of Ireland , Irish Court of Appeal , February 1884 and Bell v. Great Northern Railway Company of Ireland (1890) 26 LR Ir 428 .
‘Nervous shock’ is a mental injury, being a recognisable and distinct psychiatric illness: Hinz v. Berry [1970] 2 QB 40 at p. 42. It is a term to be contrasted to mental distress, fear, grief or sadness.
In this case neither the law on mental illness nor the fact of the post-traumatic stress disorder are in issue. It was conceded by counsel for the appellant that the respondent did suffer post-traumatic stress disorder.
Victim
The respondent 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.
Foreseeability
There was no issue before the court in the appeal on foreseeability. The matters for decision rest elsewhere.
Proximity
This case turns on the issue of proximity. There are several aspects of proximity. These may include: (a) proximity of relationship between persons; (b) proximity in a spatial context; and (c) proximity in a temporal sense.
(a)
Proximity of relationships
The proximity of relationship between the primary victim and the secondary victim is a critical factor. In this case there is a close relationship between the persons injured in the accident and the appellant. This concept was not an issue before the court.
(b)
Spatial proximity
It is evident that the respondent was not at the scene of the accident. However, she was told of the event on the telephone shortly thereafter, and she went immediately to the hospital. She viewed her loved ones who were in a very serious condition. She perceived the aftermath of the road traffic accident in the hospital. These facts are not in contention.
(c)
Temporal proximity i.e., proximity in time
It is on the issue of proximity in time that this case turns. The appellant’s case is that the post-traumatic stress disorder arose later in time than the accident, that it arose as a result of the events in the weeks and months after the accident.
The learned trial judge stated (at p. 533):
I am, therefore, satisfied that the [respondent] suffered immediate nervous shock resulting in vomiting on receiving the telephone call concerning her family’s accident. This condition was, in my view, gravely aggravated by the scenes she immediately thereafter witnessed in Jervis Street hospital.
I am satisfied that the post-traumatic stress disorder which Dr Corry has given evidence of continued up to 1992, at the earliest.
… I …find that this [respondent] is entitled to recover as against the [appellant] for nervous shock.
It was conceded by counsel for the appellant that the respondent suffered from a post-traumatic stress disorder some time after the accident. It was appropriate for Mr Haugh to so concede, in view of the facts found by the learned trial judge on the evidence and the jurisprudence of this Court: see Hay v. O’Grady [1992] 1 IR 210 at p. 217; [1992] ILRM 689 at p. 694. This case falls to be determined on the very precise issue as to the temporal proximity of the post-traumatic stress disorder, i.e. when did the post-traumatic stress disorder occur: did it arise after the accident or some weeks or months later? This is a question of fact. Several matters are relevant to this issue.
First, to take the common sense approach. The illness in question arises as a result of a shock, of exposure to a trauma far outside the usual range of experience. There is no doubt that the accident exposed the respondent to such a trauma.
Secondly, the learned trial judge has found a continuum of nervous stress, post-traumatic stress disorder, and depression from the accident. That continuum is based on credible evidence before the court.
Thirdly, the finding of the learned trial judge is as to an immediate ‘nervous shock’ and then he refers to post-traumatic stress disorder. The shock is the trigger for the following events. There is evidence from Dr Corry that the psychiatric illness developed in the initial few days when the patients were in hospital. Dr Corry was asked:
Question: Can I just ask you to expand on that. When you talk about the traumatic stress issue and subsequent depression in the first place, to what do you relate these?
Answer: Very much to her exposure to the trauma that surrounded the accident, the sudden news being told in the hospital. I mean, it was an event way outside her normal range of experience and basically the fact that she was having intrusive thoughts relating to the incident. She could not get the incident out of her mind. She had nightmares about the hospital, nightmares of Shirley Anne being on the ventilator. I mean, all the criteria of what we would call a post-traumatic stress.
(See transcript, 25 February 1993 at question 148).
Also the respondent’s evidence, accepted by the learned trial judge, as to her sleep pattern in the immediate days after the accident:
I was not sleeping at all. Well, broken sleep for a few minutes, every time I would wake up. Even without waking up when I would be asleep I would hear those bleeps going all the time from the life support machine and also I was hearing the telephone ringing….
… I actually heard it [the telephone] ringing but when I got down it was not ringing. I actually rang the hospital and said ‘did you ring, I heard the phone’ and they said in intensive care no, nobody rang.
(See transcript, 25 February 1993, question 53 et seq. )
There was the above and other evidence upon which the High Court could (and did) conclude that the post-traumatic stress disorder occurred at a time proximate to the accident. These are facts found on credible evidence. It is clear from the text and context of the judgment that the learned trial judge used the term ‘immediate nervous shock’ to indicate the immediate reaction to the accident, the shock, which, together with the aftermath, triggered the onset of the post-traumatic stress disorder.
Law
The law on the issue is to be found in common law. It is useful to consider cases in other jurisdictions. In McLoughlin v. O’Brian [1983] 1 AC 410 , the plaintiff’s husband and three children were involved in a road accident. One of the plaintiff’s children was killed and her husband and other children seriously injured. When the accident occurred the plaintiff was two miles away, at home. She was told of the accident by a motorist who had seen it and brought to hospital where she saw her seriously injured husband and two children, and heard her daughter had been killed. As a result of seeing and hearing the results of the accident, the plaintiff suffered nervous shock: a psychiatric illness. The House of Lords allowed her appeal holding that the nervous shock had been the reasonably foreseeable result of the injuries to her family caused by the defendant’s negligence.
Lord Bridge of Harwich stated (at p. 433):
The question, then, for your Lordships’ decision is whether the law, as a matter of policy, draws a line which exempts from liability a defendant whose negligent act or omission was actually and foreseeably the cause of the plaintiff’s psychiatric illness and, if so, where that line is to be drawn. In thus formulating the question, I do not, of course, use the word ‘negligent’ as prejudging the question whether the defendant owes the plaintiff a duty, but I do use the word ‘foreseeably’ as connoting the normally accepted criterion of such a duty.
After analysing the authorities he stated (at p. 441):
In approaching the question whether the law should, as a matter of policy, define the criterion of liability in negligence for causing psychiatric illness by reference to some test other than that of reasonable foreseeability it is well to remember that we are concerned only with the question of liability of a defendant who is, ex hypothesi , guilty of fault in causing the death, injury or danger which has in turn triggered the psychiatric illness. A policy which is to be relied on to narrow the scope of the negligent tortfeasor’s duty must be justified by cogent and readily intelligible considerations, and must be capable of defining the appropriate limits of liability by reference to factors which are not purely arbitrary…. On the one hand, if the criterion of liability is to be reasonable foreseeability simpliciter , this must, precisely because questions of causation in psychiatric medicine give rise to difficulty and uncertainty, introduce an element of uncertainty into the law and open the way to a number of arguable claims which a more precisely fixed criterion of liability would exclude. I accept that the element of uncertainty is an important factor. I believe that the ‘floodgates’ argument, however, is, as it always has been, greatly exaggerated….
At p. 443:
My Lords, I have no doubt that this is an area of the law of negligence where we should resist the temptation to try yet once more to freeze the law in a rigid posture which would deny justice to some who, in the application of the classic principles of negligence derived from Donoghue v. Stevenson [1932] AC 562 , ought to succeed, in the interests of certainty, where the very subject matter is uncertain and continuously developing, or in the interests of saving defendants and their insurers from the burden of having sometimes to resist doubtful claims.
Lord Wilberforce took a more restricted view and held that the application of the reasonable foreseeability test for nervous shock cases should be limited in terms of proximity. The proximity has three elements: the proximity of the tie or relationship between the plaintiff and the injured person; the proximity of the plaintiff to the accident in time and space; and the proximity of the communication of the accident to the plaintiff, either through sight or hearing of the event or its immediate aftermath.
In Australia, in Jaensch v. Coffey (1984) 155 CLR 549 , a wife, who was not at the scene of the road traffic accident was brought to hospital where she saw her husband who was ‘pretty bad’ . Next morning he was in intensive care, she was told he had taken a change for the worse, and she was required to come to hospital as quickly as possible. Her husband survived but she suffered nervous shock as a result of what she had seen and been told. The driver of the car was held to owe a duty of care to her and it was found that he had been in breach of that duty. Gibbs CJ stated (at p. 555):
In the present case there was a very close relationship, both legal and actual, between the respondent and her husband. She was notified of the accident, and went to the hospital, as soon as practicable on the evening when it occurred. She personally perceived the aftermath of the accident, although not at the scene but at the hospital.
… She was, in my opinion, a ‘neighbour’ of the appellant within Lord Atkin’s principle; it was foreseeable that a person in her position would suffer nervous shock, and there is no reason of policy why her claim should not succeed.
A number of other members of the High Court of Australia held views similar to those of Lord Bridge in McLoughlin v. O’Brian .
In this jurisdiction in Mullally v. Bus Éireann [1992] ILRM 722 , it was found as a fact that the plaintiff, the wife and mother of primary victims, who was not at the scene of a serious bus accident but viewed its aftermath in hospitals, suffered the psychiatric illness of post-traumatic stress disorder which was triggered by the news of the accident and her experiences in its aftermath, the illness manifesting itself two days after the accident, was entitled to damages.
I have considered the above cases, and the ‘neighbour’ principle in Donoghue v. Stevenson [1932] AC 562 . It is not necessary in this case to choose between either the general or the more restricted approach in common law. I have used the cases to isolate factors which are relevant in law and applied these factors to the facts of this case.
The relationship of the respondent to the victims who were participants in the accident could not be closer, the victims were her daughter and husband who with her formed a close loving family. The respondent was drawn into the trauma by a telephone call. She went to the hospital as soon as practicable. She saw the seriously injured victims in the immediate aftermath of the accident when they were in so serious a state of injury as to be disturbing to the normal person. She was told of the serious nature of the injuries of her husband, but especially the serious injuries of her daughter Shirley Anne.
I am satisfied that a person with a close proximate relationship to an injured person, such as the respondent, who, while not a participant in an accident, hears of it very soon after and who visits the injured person as soon as practicable, and who is exposed to serious injuries of the primary victims in such a way as to cause a psychiatric illness, then she becomes a secondary victim to the accident. In reaching these determinations it is necessary to review the accident and immediate aftermath in an ex post facto way to test the situation.
In this case, the learned trial judge used the legal term ‘nervous shock’ which is recognised legal terminology for a medically recognised psychiatric illness resulting from shock. On the facts as found by the learned trial judge, on the evidence before the court, in view of the concession (quite rightly in my view) by counsel that the respondent did have post-traumatic stress disorder, in view of her proximity in relationship, space and time, and in view of the principles in Hay v. O’Grady , it is not open to this Court to interfere with the decision of the learned trial judge as to liability.
Mr Haugh also submitted that Dr Corry’s definition of psychiatric illness was inappropriate. I have considered his evidence carefully. Inter alia , he was asked:
Can I ask you this, is post-traumatic stress disorder a psychiatric condition in itself?
To which he answered:
Well, I suppose any condition that brings about symptomatology where somebody is anxious all the time, and depressed, having nightmares, intrusive thoughts relating to the incident, I think you call that a psychiatric condition, depression, anxiety, tension, irritability, difficulty sleeping. I mean, I do not know what else is psychiatric condition if that is not.
(See transcript, 25 February 1993, question 150)
Later he was examined by Mr Haugh SC who having set out the respondent’s happy family life prior to the accident asked:
Q: After the accident all that is changed. She now has responsibility she never had previously. She now has a routine that is not enjoyable, she has to mind her husband and daughters. She has no one to go out with in the evening and none of the concerts or theatre or cinema. She has to cook and care for and bath her husband. All of these things, I am suggesting these things would make anybody angry, would make anybody tense, would make anybody irritable. Would you accept that?
Dr Corry answered: ‘Yes, I would.’
Mr Haugh then stated:
And you can have all of these things, I suggest, in the proportion in which she has them without being psychiatrically ill?
To which Dr Corry responded:
Well, this is probably a very philosophical question, to what is mental illness. To my own sense of mental illness, mental illness is a manifestation of the kinds of experience people have in life. People do get sick when they lose their jobs, people do get depressed when somebody dies belonging to them, serious life events are to me the causation of what we call mental illness.
When the above is read in the context of the entire body of evidence of Dr Corry it is not such as to negate the medical evidence and it is clear that the learned trial judge had evidence upon which to hold that the respondent suffered from a psychiatric illness, namely, post-traumatic stress disorder. Indeed this illness is not in dispute. It is clear from the evidence that Dr Corry grounded the respondent’s illness in the events surrounding the accident. Thus, there was evidence upon which the learned trial judge could hold the post-traumatic stress disorder was caused by the events immediately surrounding the accident.
Depression
The same considerations apply to the evidence of Dr Corry as to the respondent’s psychiatric illness of depression. There was oral evidence which was credible upon which the learned trial judge could make his findings of fact.
Quantum
On the issue of quantum of damages there was no real contest as to the sum for the post-traumatic stress disorder, which is not excessive. The matters in contest are the damages for the depression from approximately 1992 and for the future.
The learned trial judge had credible evidence upon which to reach his conclusion that the respondent did not fail to mitigate her damages. Her actions were consistent with her illness.
The learned trial judge held, on credible evidence, that:
I accept that the plaintiff continues to suffer a serious depression. I doubt, having regard to all of the evidence, that I could be satisfied that she will ever fully recover from what I perceive to be a clear psychiatric illness.
The fact that the respondent may never fully recover implies that she may partially recover. A psychiatric illness from which there is partial recovery remains a serious problem, and this fact was clearly taken into consideration by the learned trial judge when he determined the quantum.
In these circumstances the sum is not excessive or so excessive as to warrant interference by this Court.
I would dismiss the appeal on all grounds.”
McGrath v. Trintech Technologies Ltd. & Anor
[2004] IEHC 342 (29 October 2004)
[2005] 4 IR 382, [2004] IEHC 342
Judgment of Miss Justice Laffoy delivered on 29th October, 2004.
Factual background to the proceedings in outline
These proceedings arise out of the employment by the plaintiff, who is approaching 38 years of age, with the first defendant, which, as I understand it, is a subsidiary of the second defendant. The second defendant was originally joined in these proceedings because it was apprehended that it purported to terminate the plaintiff’s employment with effect from September, 2003. The second defendant, with its subsidiaries and associated companies, is involved in information technology on a worldwide basis, in particular, the development of software for processing credit card transactions and other financial payment solutions. It is listed on the Nasdaq in New York and in the Neuermarkt in Frankfurt. Its main office is in Dublin but it also has offices in Dallas, in Potters Bar in the United Kingdom, in Frankfurt and in Montevideo. In reality, there is only one defendant in these proceedings: the company which employed the plaintiff.
During the period 1988 to 1998 the plaintiff lived in the United States of America and worked in the information technology sector, where he gained considerable experience. On his return to Ireland in 1998 he worked on a consultancy basis for various financial institutions and companies involved in information technology.
The plaintiff’s initial working relationship with the defendant was on contractual basis. In April, 2000 he was retained on contract as a project manager. That relationship changed in July, 2000, when he became an employee in the role of Senior Project Manager on the terms of a written contract of employment to which I will refer later. In December, 2001 the plaintiff was promoted to the position of Director of Professional Services. His immediate superior between July, 2000 and December, 2001 was Martin Downes, who was then the Director of Professional Services. Thereafter, he continued to report to Mr. Downes, who had been promoted to the position of Vice-President of Professional Services, until January, 2003.
While contracted as a project manager and employed as a senior project manager, the plaintiff worked on projects which took him on foreign assignments. During his first two and a half years with the defendant he suffered bouts of ill health of a physical nature, in particular, in the autumn of 2000, following an assignment in Korea, in April, 2001, while on assignment in South Africa, and in October and November, 2002.
While on sick leave in October/November, 2002, he was requested by the defendant to go on an assignment to Uruguay to work in a Uruguayan company, Sursoft SA, which had been acquired by the defendant in 1999. He acceded to the request and was working in Uruguay from mid-January, 2003 until the end of June, 2003, a period slightly in excess of five months. One aspect of the plaintiff’s claim is that he alleges that during this period he was subjected to grave work related stress and pressure which resulted in injury to his psychological health and well-being. Another is that the terms of his employment were varied when he took up the assignment to Uruguay.
Following his return from Uruguay in late June, 2003, the plaintiff did not return to work. He was absent on certified sick leave.
On 26th August, 2003, the plaintiff was informed by Mr. Downes and by Mr. Gerry Cleary, the Director of Human Resources, that he was being made redundant with effect from 26th September, 2003. He was one of twelve out of one hundred and thirty employees in the Dublin office whom the defendant decided to make redundant at that time with the objective, according to the defendant, of cost-cutting against the background of a sluggish global market for the defendant’s products and services. On the same day written details of the “redundancy package” were furnished to him. The package envisaged the plaintiff receiving a total payment of €27,536.52 to cover one month’s pay in lieu of notice, four weeks’ pay per year of service worked “including statutory redundancy” and holidays owing. The plaintiff would be required to sign a disclaimer acknowledging that the payment was in full and final settlement of all claims at common law or under statute arising from his employment and its termination.
The plaintiff did not accept that the defendant was entitled to make him redundant. His case was that when he took up the assignment to Uruguay he had been guaranteed that the company would retain him for a year in the post of Director of Professional Services following his return. He was also of the view that the method of his selection for redundancy was unfair and invalid.
These proceedings were instituted on 11th September, 2003. On 24th September, 2003, on an interlocutory application, the plaintiff obtained an order from this court (O’Donovan J.) restraining the defendant from dismissing or attempting to dismiss him on grounds of redundancy or for any other grounds pending the trial of the action. The effect of the order I s that the defendant has continued to pay the plaintiff’s basic salary.
The relief claimed in the proceedings
In these proceedings the plaintiff claims, inter alia, the following reliefs:
“1. A declaration that the purported removal of the plaintiff from his employment with the defendant employer on the ground of redundancy is wrongful and/or unfair.
2. A declaration that the selection of the plaintiff for dismissal on the grounds of purported redundancy in his employment with the defendant herein is unfair, unreasonable, discriminatory and not made in a bona fide manner.
3. A declaration that the removal and/or attempted removal and/or dismissal of the plaintiff on the grounds of purported redundancy is in breach of the express and/or implied contractual terms between the parties in the employment contract.
4. A declaration that the notice of redundancy served on the plaintiff claiming redundancy with effect from 26th September is null, void and of no effect.
5. Damages for breach of contract.
6. Damages for wrongful dismissal.
7. An order directing the re-engagement or reinstatement of the plaintiff with the defendant company if necessary.
8. Damages for personal injury and loss of good health, damage and expense.
9. Damages for breach of trust . . . ”
The bases on which the plaintiff claims to be entitled to the declaratory reliefs sought, as pleaded and as are to be deduced from the comprehensive written submissions put before the court by counsel for the plaintiff, may be summarised as follows:
(a) that it was expressly or impliedly provided in the plaintiff’s contract of employment that the defendant –
(i) would not dismiss or attempt to dismiss him without due cause and without reasonable notice or consultation,
(ii) would act fairly and reasonably towards him in any review and selection process in relation to consideration for dismissal or redundancy, and
(iii) would adopt fair procedures in any review or selection process for dismissal or redundancy;
(b) that there was an express or an implied contractual term that if the plaintiff was on certified sick leave, reliant on the prospect of permanent health insurance cover, the defendant would not dismiss him in those circumstances thereby depriving him of the benefit of the permanent health insurance benefit should the need arise; and
(c) that it was expressly agreed in January, 2003 that if the plaintiff accepted the assignment in Uruguay, he would be guaranteed twelve months’ security of tenure as Director of Professional Services on his return.
The defendant denies that any such terms were part of the contractual relationship between the plaintiff and the defendant. Aside from that, it is contended on behalf of the defendant that whether or not the plaintiff’s position was redundant on 26th August, 2003 is irrelevant to the right of the defendant to terminate the plaintiff’s contract of employment and that, as a matter of legal principle, the plaintiff is not entitled to the declaratory relief claimed in relation to redundancy.
Redundancy: the legal principles
It is the defendant’s case that the concept of “redundancy” is a creature of statute – the Redundancy Payments Act, 1967 and the Unfair Dismissals Act, 1977, as amended. The legislative scheme prescribes the circumstances in which a redundancy can be challenged and the remedies available. Courts only have jurisdiction in the circumstances prescribed by the legislation. The remedies provided under the legislation for unfair dismissal are not remedies available to a plaintiff in an action at common law for wrongful dismissal.
The defendant relies on a number of authorities in support of these propositions.
In Parsons v. Iarnród Éireann [1997] E.L.R. 203, the issue was whether the plaintiff was precluded, by virtue of the provisions of s. 15 of the Act of 1977, from bringing an action at common law in respect of a dismissal which had previously been the subject of a claim to a Rights Commissioner under the Act of 1977. Explaining the relationship of the statutory code to the common law jurisdiction, in delivering judgment in the Supreme Court, Barrington J. stated as follows (at p. 207):
“What the Unfair Dismissals Act, 1977 does is to give the worker who feels that he has been unfairly dismissed an additional remedy which may carry with it the very far-reaching relief of reinstatement in his previous employment. It does not limit the worker’s rights, it extends them. At the same time, s. 15 of the Unfair Dismissals Act provides that the worker must choose between suing for damages at common law and claiming relief under the new Act. Sub-section (2) accordingly provides that if he claims relief under the Act he is not entitled to recover damages at common law; while sub-section (3) provides that where proceedings for damages at common law for wrongful dismissal are initiated by or on behalf of an employee the employee shall not be entitled to redress under the Unfair Dismissals Act in respect of the same dismissal.
The traditional relief at common law for unfair dismissal was a claim for damages. The plaintiff may also have been entitled to declarations in certain circumstances such as, for instance, that there was an implied term in his contract entitling him to fair procedures before he was dismissed. But such declarations were in aid of the common law remedy and had no independent existence apart from it. If the plaintiff loses his right to sue for damages at common law the heart has gone out of his claim and there is no other free-standing relief which he can claim at law or in equity.”
In Sheehy v. Laurence Ryan and James Moriarty (an unreported judgment of this court (Carroll J.) in which judgment was delivered on 3rd February, 2004) the plaintiff sought, inter alia, a declaration that the purported termination of her tenure by the defendant was invalid and unlawful on the ground, inter alia, that it was without efficacy in that it had been embarked upon in breach of the tenets of natural and constitutional justice and was predicated on an invalid invocation of the provisions of the Redundancy Payments Act, 1967 (as amended). She also sought an injunction restraining the termination of her employment. In dismissing her action, Carroll J. stated as follows:
“The plaintiff has chosen to sue at common law. There were other possibilities open to her. She could have initiated proceedings under the Unfair Dismissals Act, 1977 claiming unfair dismissal or under the Redundancy Payments Act claiming that there was no valid redundancy or that she was unfairly chosen to be redundant. If successful she would have been awarded statutory compensation.
The position at common law is that an employer is entitled to dismiss an employee for any reason or no reason, on giving reasonable notice.”
In relation to the plaintiff’s claim that the principles of natural and constitutional justice applied to the decision to dismiss her, Carroll J. referred to the decision of Gannon J. (affirmed on appeal by the Supreme Court) in Hickey v. Eastern Health Board [1991] 1 I.R. 208 where it was held that the rules of natural justice regulating dismissal for misconduct had no application where the dismissal was for reasons other than misconduct.
Counsel for the defendant also referred to the decision of the House of Lords in Johnson v. Unisys Limited [2001] 2 All ER 801. In that case, the plaintiff, who had been the beneficiary of an award from a statutory industrial tribunal, which had upheld his complaint that he had been unfairly summarily dismissed, initiated a civil action against his employer for breach of contract and negligence alleging that the manner of his dismissal had caused him to suffer a nervous breakdown and had made it impossible to find work. He relied, inter alia, on the implied term of mutual trust and confidence between an employer and an employee, which was endorsed by the House of Lords in Malik v. BCCI [1997] 3 All ER 1, contending that the employer had breached that term by failing to give him a fair hearing and by breaching its disciplinary procedure. The employer applied to have the particulars of claim struck out on the ground that they disclosed no reasonable cause of action at common law. The House of Lords held that an employee had no right of action at common law to recover financial losses arising from the unfair manner of his dismissal. In a short speech, which was quoted in part with approval by Carroll J. in Orr v. Zomax Limited (unreported judgment delivered on 25th March, 2004), Lord Nicholls of Birkenhead stated:
“On this appeal the appellant seeks damages for loss he claims he suffered as a result of the manner in which he was dismissed. He uses as his legal foundation the decision of the House in Malik . . . , although this was not a manner of dismissal case. In principle the appellant’s argument has much to commend it. I said so in my obiter observations in Malik’s case . . . but there is an insuperable obstacle: the intervention of Parliament in the unfair dismissal legislation. Having heard full argument on the point, I am persuaded that a common law right embracing the manner in which an employee is dismissed cannot satisfactorily co-exist with the statutory right not to be unfairly dismissed. A newly-developed common law right of this nature, covering the same ground as the statutory right, would fly in the face of the limits Parliament has already prescribed on matters such as classes of employees who have the benefit of the statutory right, the amount of compensation payable and the short time limit for making claims. It would also defeat the intention of Parliament that claims of this nature should be decided by specialist tribunals, not the ordinary courts of law . . .”
On the basis of the foregoing authorities, it was submitted by counsel for the defendant that it is quite clear that in these proceedings the plaintiff has no right to claim any remedy other than damages at common law and, in particular, has no right to invoke statutory rights or claim declaratory relief in the form sought.
The first point to be made in relation to that submission is that the plaintiff has not invoked any statutory provision in support of his claim. Although decisions of the Employment Appeals Tribunal were cited, I did not understand the plaintiff to argue that the principles applicable under the statutory scheme should be imported into common law. On the authority of the judgment of Carroll J. in the Orr case, it would not have been open to them to do so. His claim is grounded entirely in the common law – in contract and tort. In particular his claims for declaratory relief are based on the express or implied terms which he contends for, not on any statutory protection. On the authority of the decision of the Supreme Court in the Parsons case, however, the plaintiff is not entitled to any declaration which extends beyond the ambit of the contractual rights which he establishes and the breach of those rights. On the same authority, the only other remedy to which he is entitled, if he establishes his claim in contract, is damages.
The Issues
Accordingly, in my view, in broad terms, the issues for determination on liability are as follows:
(1) Whether the plaintiff has established a claim in contract for wrongful dismissal and other breaches of the terms of his contract?
(2) Whether the plaintiff has established a claim in tort for personal injuries?
These are discrete issues which will be dealt with separately.
The contract of employment
The plaintiff’s contract of employment with the defendant was dated 6th July, 2000. It was in the form of a letter offering him the position of project manager and setting out the details of the remuneration package which consisted of a base salary, performance-related bonus, stock options and VHI cover. Attached to the letter was “a Statement of Terms and Conditions of Employment”. The plaintiff was also required to sign a Confidentiality Agreement, but nothing turned on that in these proceedings.
The provisions of the Statement of Terms and Conditions of Employment which are pertinent to the issues in these proceedings were as follows:
? The provision in relation to sick leave and pay, which provided that absence due to illness should be notified as early as possible, a medical certificate was required for an absence in excess of two consecutive days, and the management reserve the right to request a medical certificate for any absence irrespective of duration. Further details were to be found in the defendant’s staff handbook in the section on medical leave. The handbook was not put in evidence. However, the evidence of the prevailing policy in 2003 was that, subject to production of medical certificates as required, salary would be paid for twenty six weeks while on certified sick leave, whereupon the PHI benefit referred to later would become operative.
? Under the heading of transferability, it was provided that the company reserved the right to transfer staff between Head Office, branches and subsidiary companies.
? Under the heading of Termination of Employment, it was provided as follows
“One month’s notice will be required for the termination of employment. Employees are requested to confirm a resignation in writing, confirming the date when he/she shall cease.”
The terms and conditions of employment were augmented in January, 2001 when a scheme for long-term disability benefit was introduced. On 29th January, 2001 the plaintiff and all other employees were notified that the defendant was introducing Permanent Health Insurance (PHI) to its current list of benefits for all full-time, permanent employees of the defendant in Ireland. There was attached to the notification an Explanatory Booklet. The booklet disclosed that the defendant paid the full cost of the scheme. Subject to exclusions and limitations, where an employee was disabled for a period in excess of 26 weeks continuous absence, he or she would be entitled to be considered for a benefit under the scheme. Where eligible, the benefit was equivalent to 50% of salary less the annual rate of State disability pension payable to a single person. Disability benefit would increase during payment at the rate of 3% per annum compound, subject to a maximum of the increase in the Consumer Price Index over the same period. In relation to when the benefit would cease, the booklet provided as follows:
“The payment, once granted, will continue while disability lasts or until one of the following occurs:
(i) Attainment of age 65
(ii) Death
(iii) Recovery
(iv) Termination of Employment”
It was provided that the scheme could be amended or discontinued by the defendant at any time and that the defendant might, at its discretion, change the insurer and the policy terms through which the scheme was insured and by which it was governed. It was further stated that the insurer also reserved the right to amend or cancel the terms of the policy. When the scheme commenced on 1st February, 2001, the insurer was Eagle Star Assurance Company Limited. By September, 2003 the insurer had been changed to Friends First which, following Mr. Cleary’s intervention on behalf of the plaintiff, quoted a premium for continuation of the PHI cover, which the plaintiff did not pursue.
There is no other documentation evidencing the terms and conditions on which the plaintiff was employed by the defendant. However, it is necessary to consider whether, as pleaded by the plaintiff, his contract was subject to implied terms on the lines set out earlier. As the question whether the existence of the PHI cover gave rise to an implied term on the lines contended for necessitates consideration of authorities directly in point cited on behalf of the plaintiff, I will deal with that issue separately. It is also necessary to consider whether, on the evidence, the plaintiff has established that the additional terms he contends were agreed in January, 2003 prior to his departure for Uruguay were in fact expressly agreed.
Implied terms: dismissal/redundancy
In support of their submission that it is settled law that the employment relationship is governed by an implied term of mutual trust and confidence, counsel for the plaintiff referred to Redmond on Dismissal Law in Ireland (2nd Edition, 1998, Butterworth’s) at para. 2.11 where the evolution of the implied terms of mutual trust and confidence in a contract of employment is analysed. It is stated that the modern approach is prescriptive: the mutual duty of trust and confidence obliges the parties in the contract of employment to behave towards one another in a way which respects trust and confidence and enables it to flourish between them. On the employer’s side, it is suggested, his prescriptive duty not to do anything to destroy the relationship of confidence translates, inter alia, into a duty to provide fair procedures in disciplinary matters, a prescriptive duty already endorsed in this jurisdiction in the Constitution.
The question which arises here is whether that broad principle can accommodate the implication in the contractual relationship of the plaintiff and the defendant of terms that the plaintiff would not be dismissed without due cause or without reasonable notice or consultation and that the defendant would adopt fair procedures in any review or selection process for dismissal or redundancy, the breach of which would give rise to an action at common law. In contending that it cannot do so in such a manner as to give rise to an inconsistency or conflict with another contractual term governing the relationship of the parties, the defendant referred to the speech of Lord Hoffman in the Johnson case. In his speech (at p. 816), having acknowledged that the contribution of the common law to the employment revolution has been by the evolution of implied terms in the contract of employment, the most far-reaching being the implied term of trust and confidence, Lord Hoffman went on to say:
“The problem lies in extending or adapting any of these implied terms to dismissal. There are two reasons why dismissal presents special problems. The first is that any terms which the courts imply into a contract must be consistent with the express terms. Implied terms may supplement the express terms of the contract but cannot contradict them. Only Parliament may actually override what the parties have agreed . . .”
On the facts of the Johnson case, Lord Hoffman stated that, in the face of the express provision in Mr. Johnson’s contract that Unisys was entitled to terminate his employment at four weeks’ notice without any reason, it was very difficult to imply a term that Unisys should not do so except for some good cause and after giving reasonable opportunity to demonstrate that no such cause existed.
Lord Steyn, who dissented on the issue as to whether Mr. Johnson had a reasonable cause of action based on breach of the implied obligation of trust and confidence, took a different view. Commenting on the argument by counsel for Unisys that to apply the implied obligation of mutual trust and confidence in relation to a dismissal was to bring it into conflict with the express terms of the contract, he said:
“Orthodox contract law does not permit such a result. His argument approached the matter as if one was dealing with the question whether a term can be implied in fact in the light of the express terms of the contract. The submission loses sight of the particular nature of the implied obligation of mutual trust and confidence. It is not a term implied in fact. It is an over-arching obligation implied by law as an incident of the contract of employment. It can also be described as a legal duty imposed by law – Treitel The Law of Contract (10th Edn, 1999) at p.190. It requires at least express words or a necessary implication to displace it or to cut down its scope. Prima facie it must be read consistently with the express terms of the contract. . . . The interaction of the implied obligation of trust and confidence and express terms of the contract can be compared with the relationship between duties of good faith or fair dealing with the express terms of notice in a contract. They can live together.”
However, Lord Steyn went on to state that the notice provision in the contract was valid and effective, but the employer may become liable in damages if he acts in breach of the independent implied obligation by dismissing the employee in a harsh and humiliating manner. That would give rise to no conflict between the express and implied terms.
The essence of the plaintiff’s case, however, is that there should be implied into his contract with the defendant a term that mere compliance with the express notice provision in the contract would not validly and effectively terminate the contractual relationship at common law. There is no authority for this proposition. I am persuaded by the authorities cited by the defendant’s counsel that the proposition is not sound in principle. Accordingly, I have come to the conclusion that terms in relation to dismissal and redundancy on the lines pleaded by the plaintiff cannot be implied into the plaintiff’s contract of employment with the defendant so as to give rise to a cause of action at common law. Such protection and remedies as are afforded by statute law to the plaintiff in the circumstances which prevailed in August, 2003 cannot be pursued at first instance in a plenary action in the High Court.
Implied term: PHI
In support of the contention that it was an implied term of the plaintiff’s contract of employment that the defendant would not make the plaintiff redundant in circumstances that would deprive him of the benefit of the permanent health insurance, counsel for the plaintiff cited a number of authorities of courts in the United Kingdom, which it was submitted should persuade the court that it is appropriate to imply such a term. The authorities in question are:
• the decision of the High Court of England in Aspden v. Webbs Poultry and Meat Group (Holdings) Limited [1996] I.R.L.R. 521;
• the decision of the Outer House of the Court of Session in Scotland in Hill v. General Accident Fire & Life Assurance Corporation [1998] IRLR 641;
• the decision of the High Court of England in Villella v. MFI Furniture Centres Limited [1999] I.R.L.R. 468;
• the decision of the Court of Appeal in Briscoe v. Lubrizol Limited [2002] IRLR 607.
Counsel for the defendant referred the court to the decision of the English High Court in Jenvey v. Australian Broadcasting Corporation [2002] IRLR 520. That case is not directly in point, although it did contain a summary of the earlier decisions in the so called “long-term sickness cases”.
In essence, all of the cases were concerned with ascertaining what the agreement between the employer and the employee was. This gave rise to particular difficulties in the Aspden case, which is regarded as the source of the jurisprudence. As was pointed out by Sedley J. in his judgment, the written contract of employment presented two peculiarities. First it was entered into during the currency of an established employment relationship which it was not designed to alter and which, at least, de facto, included income replacement insurance for senior staff. Secondly, it had been based on a form of contract drawn for another senior member of staff in a situation which did not include income replacement insurance. In the circumstances Sedley J., considered that there was legitimacy in asking what the parties would have inserted if they had not simply overlooked, as they clearly did, the existence of the insurance scheme, since the contract was not drafted with the scheme in mind. He found that the justice of the case required that there be implied in the contract that, save for summary dismissal, the employer would not terminate the contract while the employee was incapacitated for work.
In the Hill case, Mr. Hill had commenced employment with General Accident in 1988. In March, 1994 he became ill and remained absent from work on medical grounds until his employment was terminated by the employer on grounds of redundancy in November, 1995. The employer’s contractual scheme, as set out in the staff manual (Section B8), provided that employees would receive full salary for the first 104 weeks of sickness absence, subject to proper notification, evidence and such like. After 104 weeks absence, employment would be terminated and, dependent upon eligibility, the employer would receive either an ill health retirement pension or sickness and accident benefit. While the staff manual contained provisions regulating procedural arrangements in respect of redeployment and redundancy, neither these provisions nor the provisions in relation to termination contained any express qualification in respect of employees in receipt of sick pay. When Mr. Hill was made redundant he was still in receipt of sickness pay and was some four months away from qualifying for long-term sickness provision. He contended that General Accident were in breach of contract in dismissing him, contending that it was an implied term of his contract of employment that General Accident would not use their contractual powers of dismissal where their use would frustrate an accruing or accrued entitlement under the sickness benefit or health retirement pension scheme. The Outer House of the Court of Session rejected that contention. Lord Hamilton, in his opinion, commented on the Aspden case as follows:
“Insofar as Sedley J.’s conclusion is to be understood as laying down a general proposition that gross misconduct is the only circumstance in which the employer could lawfully dismiss an employee in receipt of sick pay and with the prospect of permanent sickness provision, I must respectfully disagree. No question of a redundancy situation, however arose in that case . . . .”
On the facts before him, Lord Hamilton went on to find as follows:
“In my view, on a sound construction of the pursuer’s contract read as a whole, including the implied term of trust and confidence, the defenders were, notwithstanding that the pursuer was at 30 November, 1995 absent from work on grounds of sickness and properly in receipt of full salary under section B8, entitled to dismiss him by reason of redundancy. I reach this conclusion not by according ‘a higher priority’ to the employer’s right of dismissal than to the employee’s rights and prospective rights but by declining to afford to the employee’s rights under section B8 the absolute character urged by [the pursuer’s counsel]. I should add, however, that I do not accept [the defenders’ counsel] submission that there is a relevant distinction between the situation [as in Aspden . . . ] where the benefit of the scheme is covered by insurance and the situation [in the present case] where the employer carries out that burden directly.”
The judgment of the High Court in the Villella case also illustrates that the task of the court is to ascertain the terms of the employment contract. In that case, the employer’s memorandum of the terms of the permanent health insurance scheme was at variance with the insurance policy by which the scheme was underwritten, in that the latter prescribed that entitlement to benefit would cease on the employee leaving service, whereas in the former provision was made for cover under the scheme to terminate if an employee left service when not disabled. Judge Green QC held that the provision of the policy did not form part of the plaintiff’s contract as there was no evidence that he was shown or saw the policy or had it drawn to his attention that he could or should read it. On an alternative argument made on behalf of the plaintiff that it was an implied term that the plaintiff would not terminate his contract in the circumstances depriving him of long-term disability benefit in course of payment or due to him, it was held that such an implied limitation on the express power to dismiss was necessary to give business efficacy to the contract to provide disability benefit. On this point, the decision of Sedley J. in Aspden was followed. However, Judge Green QC added that, although it was of no direct relevance to the case before him, he agreed with the observations of Lord Hamilton in the Hill case. The matter was left so that the defendant had power to terminate for redundancy.
The Briscoe case was the first occasion on which the issue was pronounced on by the Court of Appeal, although, as was pointed out by Elias J. in the Jenvey case, in Brompton v. AOC International Limited and UNUM Limited [1997] I.R.L.R. 639, Staughton L.J. expressed the view, obiter, that there was a “good deal to be said” for the view that the employee could not be dismissed save for cause after becoming entitled to receive benefits under a long-term sick scheme. Briscoe was a case in which the issue was whether Mr. Briscoe was entitled to be dismissed for cause – whether he had been guilty of repudiatory conduct justifying his summary dismissal in failing, without explanation or excuse, to attend a meeting with his employers to discuss his position following the insurers’ refusal of his claim for benefit under a long-term disability scheme, and in thereafter failing to reply to the employers’ request to contact them. The Court of Appeal upheld the decision of the High Court judge that Mr. Briscoe had been guilty of repudiatory conduct and that he had been lawfully dismissed. Ward L.J. considered the scope of the implied term in the context that it was agreed on the pleadings that after Mr. Briscoe had become entitled to receive benefit under the terms of the relevant scheme, his employer, the defendant, would maintain his employment and membership, save that the defendant was contending that since the claimant was in repudiatory breach, he was not entitled to benefit under the scheme. As to the scope of the implied term, he stated as follows:
“It derives from Sedley J.’s judgment in Aspden. He found there was a mutual intention that the provisions for dismissal would not be operated ‘otherwise than by reason of the employee’s own fundamental breach’. In paragraph 21 he expressed the mutual intention in these terms:
‘The mutual intent did not impinge at all upon the ability of the company at any time to accept the employee’s repudiatory conduct – for example malingering – as putting an end to the contract and with it the entitlement to insurance benefit.’
However, I agree with Lord Hamilton in Hill . . . at paragraph 34 that:
‘Insofar as Sedley J.’s conclusion is to be understood as laying down a general proposition that gross misconduct is the only circumstance in which the employer could lawfully dismiss an employee in receipt of sick pay and with the prospect of permanent sickness provision, I must respectfully disagree.’
To limit dismissal to gross misconduct is to circumscribe the right to dismissal too narrowly. I do not believe Sedley J. had that in mind. I do not believe he would disagree with Lord Hamilton’s broader proposition in paragraph 20 of his judgment that
‘I accept that the defender’s power to dismiss is subject to limitation. Where provision is, as here, made in the contract for payment of salary or other benefit during sickness, the employer cannot, solely with a view to relieving himself of the obligation to make such payment, by dismissal bring the sick employee’s contract to an end. To do so would be, without reasonable and proper cause, to subvert the employee’s entitlement to pay while sick.’
In my judgment, the principle to emerge from those cases is that the employer ought not to terminate the employment as a means to remove the employee’s entitlement to benefit but the employer can dismiss for good cause whether that be on the ground of gross misconduct or, more generally, for some repudiatory breach by the employee.”
I am not persuaded by the authorities cited that there should be implied into the plaintiff’s contract of employment a term on the lines pleaded. What is suggested is that it was an implied term of the contractual relationship that the defendant would not terminate the plaintiff’s contract of employment by notice if two conditions existed: that he was on certified sick leave; and that he was reliant on the prospect of PHI cover. To imply such a term would be inconsistent with the express terms of the contract of employment, in that it was expressly provided that the plaintiff’s employment could be terminated on one month’s notice and that, even where payment had commenced under the PHI scheme, it would cease on the termination of the employment.
It is instructive to consider what would have been the position at 26th August, 2003 which, in my view, is the relevant date, if the plaintiff had the benefit of such an implied term. On that date the plaintiff had been absent from work on certified sick leave for approximately nine weeks. If he could establish that he was reliant on the prospect of permanent health insurance, his employment could not be terminated and he would require to be excluded from the pool of employees from whom persons might be selected for dismissal on the ground of redundancy. As stated by Lord Hamilton in the Hill case (at para. 22) that would be grossly disadvantageous to fellow employees who were well at the material time.
I appreciate that, unlike the Hill case, which proceeded on the assumption that Mr. Hill’s selection for redundancy was genuine, it was the plaintiff’s case that his redundancy was not genuine and that his selection was a device to rid the defendant of an employee who was likely to prove to be a liability in the future because of the likelihood of him being on sick leave. That leads back to the question whether the plaintiff can challenge the genuineness of the redundancy in these proceedings. It is clear on the authorities referred to earlier and, in particular, on the authority of the decision of the Supreme Court in Parsons v. Iarnród Éireann that he cannot. Any such challenge is a matter for another forum.
Additional terms agreed in January, 1993?
On his posting to Uruguay the plaintiff was effectively seconded to John Cahill, who, at the time, was the Executive Vice President of Operations in the Enterprise Division of the defendant. Mr. Cahill reported directly to the Chief Executive Officer, Mr. Cyril McGuire. For the duration of the posting, Mr. Downes ceased to be his line manager. It is common case that Mr. Downes told the plaintiff that he should deal directly with Mr. Cahill in relation to the terms of his posting and that the details should be discussed with Mr. Cahill. Mr. Cahill vacated his position with the defendant with effect from 31st March, 2003 and is now operating his own software company in the United States of America.
The plaintiff’s evidence was that at a meeting with Mr. Cahill on 15th January, 2003, the day before his departure for Uruguay, he raised with Mr. Cahill certain matters in relation to his personal position. This meeting took place against the background that a process of restructuring had been taking place in the defendant’s companies in the then recent past resulting in redundancies.
The plaintiff’s evidence was that he raised a number of points with Mr. Cahill among them the following:
(1) that his bonus, which was performance related, would be guaranteed for the ensuing quarters;
(2) that his posting would be for no longer than six months;
(3) that he would be given an assurance that he was guaranteed in the role of Director of Professional Services for one year from the end of his assignment to Uruguay, which was to run from the end of the four weeks’ leave referred to at (4), and
(4) that he would be given an additional two weeks (ten days) leave on top of his contractual annual leave at the end of the assignment and that he would be allowed to take four weeks’ leave together at that time, two of which would come from his original contractual quota.
The plaintiff’s evidence was that Mr. Cahill agreed to all of the foregoing matters.
Mr. Cahill’s evidence was that the only matter he agreed with the plaintiff was that he was to be ‘made good’ on his bonus and his evidence was that that matter was agreed prior to 15th January, 2003. My understanding of the evidence was that this was not disputed. As to the other matters, he did not recall any discussion about the plaintiff getting an extra ten days’ leave. His evidence was that the issue of four weeks’ vacation on the plaintiff’s return was not raised at all. On the question of security of tenure, Mr. Cahill’s evidence was that the plaintiff did ask for a guarantee of one year’s salary after coming back or a job guarantee of one year. Mr. Cahill’s evidence was imprecise as to what the plaintiff asked for – whether it was one year’s guaranteed employment or one year’s severance. At any rate he categorically testified that he told the plaintiff that he was not in a position to give him any such guarantee and that the plaintiff did not mention it again. He did not have authority to give such commitment without the imprimatur of the Chief Executive Officer, Mr. McGuire. Mr Cahill’s evidence was that he ‘actioned’ the plaintiff’s bonus by talking to Mr. Downes. There is documentary evidence that Mr. Downes made arrangements which ensured that the plaintiff would receive his quarterly bonus notwithstanding that he was involved in activities in Uruguay which were not directly revenue generating. It is not in dispute that the duration of the plaintiff’s posting was to be no longer than six months. Mr. Cahill’s evidence was that by 15th January, 2003 he considered that the plaintiff was going to Uruguay, that he did not expect that the plaintiff’s personal terms would be raised at the meeting on that day and that his expectation was that the meeting was to deal with operational matters.
As I have stated, the defendant denies that it was represented to the plaintiff that he would have twelve months job security. Further, it contends that, in any event, because of the transferability provision in the plaintiff’s contract, any such representation would not be supported by consideration and could not give rise to any action at law. In my view that argument is not sustainable. If there were representations which were intended to vary or add to the terms and conditions of the plaintiff’s employment, which were acted on by the plaintiff, they give rise to contractual liability.
The real difficulty in this case is the factual conflict which has arisen between the plaintiff and Mr. Cahill. Mr. Cleary testified that he was unaware of any representation or assurance having been given by Mr. Cahill. Any assurance as to tenure with the defendant required the authority of Mr. McGuire and required to be ‘signed off’ on by Mr. Cleary as Director of Human Resources. However, the employees had not been notified of these requirements. Mr. Downes testified that he did not recollect the plaintiff’s contention that he was given a job guarantee by Mr. Cahill coming up until after he was notified that he was to be made redundant. Further, he did not hear anything about the plaintiff’s contention that Mr. Cahill had guaranteed him two extra weeks leave, or that he was promised that he could take four weeks leave on his return from Uruguay, until he had a meeting with the plaintiff during that last week in June of 2003
Apart from the documentary evidence in relation to the payment of the performance bonus to the plaintiff, to which I have already alluded, there is no documentary evidence emanating from the defendant which corroborates the plaintiff’s evidence. There is one e-mail from the plaintiff to Mr. Downes dated 20th March, 2003, in which the plaintiff complained bitterly about having to postpone a trip home and in the course of which he stated that the only two conditions that he had asked for were a trip home once a month and a fixed term of six months. The plaintiff explained the reference to two conditions as meaning conditions relating to his actual stay in Uruguay.
The long hearing in this matter, which lasted twelve days, was frequently punctuated by complaints by each side in relation to compliance with the other of orders for discovery made in the matter. In relation to complaints made concerning compliance by the defendant, in closing the case counsel for the plaintiff properly recognised that these matters had not been the subject of motions for further and better discovery prior to the hearing. However, he urged that the manner in which the defendant dealt with the discovery went to the credibility of the defendant.
This submission has to be put in context. On 13th January, 2004 this court (O’Sullivan J.) made an order for discovery against the plaintiff. An unusual feature of the order was that the court acceded to an application by the defendant, on its undertaking to bear the costs of the expert, that the plaintiff deliver up to an independent expert nominated by the defendant, two lap-top personal computers, which were the property of the defendant but were in the possession of the plaintiff, for the purpose of reconstituting documents contained on the hard drives. This order was complied with. Subsequently, on 9th February, 2004, on an application by the plaintiff, I made an order for discovery against the defendants which related to, inter alia, all deleted documents relating to matters in issue in the proceedings on the defendant’s computers in the possession of Mr. Downes, Mr. Cleary, Mr. Cahill, Paul Byrne, the Finance Director of the defendant, John Doran, who took over as General Manager in Uruguay when the plaintiff’s posting was completed, and Mr. McGuire.
The manner in which that discovery order was complied with is of relevance. First, it was not until the eleventh day of the hearing that relevant data which had been archived on to the hard drive of Mr. McGuire’s computer was discovered. Secondly, Mr. Byrne in the course of his evidence testified that in the summer of 2003 the hard drive of his lap-top was damaged when it fell out of the baggage compartment in an aircraft, resulting in the loss of data. Mr. Byrne further testified that at the time the policy of the defendant in relation to “backing-up” data did not apply to lap-tops. That relevant data had been lost in this manner was not deposed to in the affidavit of discovery filed on behalf of the defend ant and it only became apparent in the course of the hearing. The defendant’s final position on this was that, despite the best efforts of the MIS department of the defendant to reconstitute the hard drive of Mr. Byrne’s lap-top, not all documents were restored. While these failures on the part of the defendant have been explained on the basis that they were due to inadvertence, that explanation has to be viewed against the background of the measures to which the defendant resorted to get discovery against the plaintiff. Further, in the context of the factual dispute between the plaintiff and Mr. Cahill, Mr. Cahill deposed to the fact that on leaving his employment with the defendant he wiped his lap-top computer of all files as a security measure. Finally, the discovery made by the defendant revealed an extraordinary paucity of electronic or documentary records in relation to the selection process for the redundancies which were effected in the summer of 2003.
The relevance of all of the foregoing factors, in my view, to the resolution of the factual conflict between the plaintiff and Mr. Cahill is that the absence of any electronic or documentary record corroborative of the plaintiff’s account cannot be a significant consideration.
In the final analysis, on the factual conflict, the question is whether the plaintiff’s account or Mr. Cahill’s account is to be accepted as representing what transpired between them. In general, I found the plaintiff to be a precise and consistent witness and unaffected by loss of memory as suggested by the defendant’s counsel. He was very open and frank in court. In making this finding I have borne in mind the complaints made on behalf of the defendant in relation to the manner in which the plaintiff discovered a report of, and communications with, the Amen Clinic to which I will refer later. The case was made on behalf of the defendant that Mr. Cahill, who returned from the USA to testify, was not an interested party in the sense that he swore that he had no ongoing commitment to the defendant. Be that as it may, there was considerable lack of candour on the part of Mr. Cahill and of the defendant’s witnesses who were aware of the situation, Mr. Byrne and Mr. Cleary, of the circumstances in which Mr. Cahill first went on holidays in the middle of a serious industrial relations crisis in Uruguay and then left the defendant’s employment at the end of March, 2003. The evidence as a whole does not indicate a strict protocol in the defendant companies in relation to the tenure of employees requiring the involvement of the Director of Human Resources and the Chief Executive Officer. The thrust of the evidence was that in the matter of terminating employment, which may involve not inconsiderable financial liability for statutory and extra-statutory redundancy payments, the relevant decisions are made by the Vice President of the relevant division, and while requiring the approval, apparently verbal, of the Director of Human Resources, are made without reference to the Chief Executive Officer.
Having considered the possibility that the plaintiff may have a mistaken perception of what transpired between himself and Mr. Cahill, I have come to the conclusion that the plaintiff was given the guarantee, which became a term of his contract, that his employment with the defendant in the role of Director of Professional Services would continue for one year after his return. The purported termination of his contract was in breach of that guarantee. I will deal with the quantum of damages to which the plaintiff is entitled later.
Claim for damages for personal injuries in outline
The plaintiff’s claim for damages for personal injuries is grounded on both an alleged breach of the defendant’s common law duty of care and an alleged breach of statutory duty on the part of the defendant. The personal injuries for which the plaintiff claims are psychological injuries. It is alleged that those injuries were caused by reason of work-related stress during the plaintiff’s secondment to Uruguay and were aggravated by the treatment meted to him by the defendant on his return in refusing to allow him to avail of four weeks’ leave, terminating his employment and the manner in which these proceedings were defended.
Liability at common law: the law
While the Supreme Court in recent years has considered claims for compensation for psychiatric or psychological damage alleged to have been negligently inflicted in various contexts, for example, in the so-called “nervous shock” context (Kelly v. Hennessy [1996] 1 ILRM 321) and in the so-called “fear of disease” context (Fletcher v. Commissioner for Public Works [2003] 1 IR 465), as yet it has not had to consider directly the circumstances in which occupational stress resulting in psychiatric injury will give rise to liability on the part of an employer. That issue has been considered recently by courts in the United Kingdom. In reviewing the authorities from the United Kingdom referred to by counsel in their submissions, it seems to me that the most useful starting point is the decision of the Court of Appeal in Hatton v. Sutherland [2002] 2 All ER 1.
The Hatton judgment related to four conjoined appeals in each of which the defendant employer appealed against a finding of liability for an employee’s psychiatric illness caused by stress at work. Two of the plaintiffs (Hatton and Barber) were teachers in public sector comprehensive schools. The third (Jones) was an administrative assistant at a local authority training centre and the fourth (Bishop) was a raw material operative in a factory. In all of the cases except that of Jones the decision at first instance was reversed by the Court of Appeal. The judgment of the Court was delivered by Hale L.J. Having analysed the law on liability in negligence under the headings of duty, foreseeability, breach of duty, causation and apportionment and quantification, the Court listed sixteen “practical propositions” in determining liability for stress induced psychiatric injury in an employment context. The propositions are as follows:
(1) There are no special control mechanisms applying to claims for psychiatric (or physical) illness or injury arising from the stress of doing the work the employee is required to do. What this means is that “policy” considerations of the type referred to by Geoghegan J. in his judgment in the Fletcher case (at p. 518) do not arise. Distinctions which are made in determining liability for psychiatric harm in other circumstances, for example, distinguishing between “primary” and “secondary” victims, have no application in the case of psychiatric injury arising from stress in the workplace.
(2) The threshold question is whether this kind of harm to this particular employee was reasonably foreseeable. This has two components: (a) an injury to health (as distinct from occupational stress), which (b) is attributable to stress at work (as distinct from other factors). In the earlier analysis of the issue of foreseeability, it was stated (at p. 13) that the question is not whether psychiatric injury is foreseeable in a person of “ordinary fortitude”. The employer’s duty is owed to each individual employee.
(3) Foreseeability depends upon what the employer knows, or ought reasonably to know, about the individual employee. Because of the nature of mental disorder, it is harder to foresee than physical injury, but it may be easier to foresee in a known individual than in the population at large. An employer is usually entitled to assume that the employee can withstand the normal pressures of the job unless he knows of some particular problem or vulnerability.
(4) The test is the same whatever the employment: there are no occupations which should be regarded as intrinsically dangerous to mental health.
(5) Factors likely to be relevant in answering the threshold question included the following:
(a) The nature and extent of the work done by the employee. Is the workload much more than is normal for the particular job? Is the work particularly intellectually or emotionally demanding for this employee? Are demands being made of this employee unreasonable when compared with the demands made of others in the same or comparable job? Or are there signs that others doing the job are suffering from harmful levels of stress? Is there an abnormal level of sickness or absenteeism in the same job or the same department?
(b) Signs from the employee of impending harm to health. Has he a particular problem or vulnerability? Has he already suffered from illness attributable to stress at work? Have there recently been frequent or prolonged absences which are uncharacteristic of him? Is there reason to think that these are attributable to stress at work, for example, because of complaints or warnings from him or others?
(6) The employer is generally entitled to take what he is told by his employee at face value, unless he has good reason to think to the contrary. He does not generally have to make searching enquiries of the employee or seek permission to make further enquiries of his medical advisers.
(7) To trigger a duty to take steps, the indications of impending harm to health arising from stress at work must be plain enough for any reasonable employer to realise that he should do something about it.
(8) The employer is only in breach of duty if he has failed to take the steps which are reasonable in the circumstances, bearing in mind the magnitude of the risk of harm occurring, the gravity of the harm which may occur, the costs and practicability of preventing it, and the justifications for running the risk.
(9) The size and scope of the employer’s operation, its resources and the demands it faces are relevant in deciding what is reasonable; these include the interests of other employees and the need to treat them fairly, for example, in any redistribution of duties.
(10) An employer can only reasonably be expected to take steps which are likely to do some good and the court is likely to need expert evidence on this.
(11) An employer who offers a confidential advice service, with referral to appropriate counselling or treatment services, is unlikely to be found in breach of duty.
(12) If the only reasonable and effective step would have been to dismiss or demote the employee, the employer will not be in breach of duty in allowing a willing employee to continue in the job.
(13) In all cases, therefore, it is necessary to identify the steps which the employer both should and could have taken before finding him in breach of his duty of care.
(14) The plaintiff must show that the breach of duty has caused or materially contributed to the harm suffered. It is not enough to show that occupational stress has caused the harm. Earlier, in its analysis of the issue of causation, the Court (at p. 16) illustrated the distinction inherent in this proposition. Where there are several different causes, as will often be the case with stress related illness of any kind, the plaintiff may have difficulty proving the employer’s fault was one of them. This will be a particular problem if the main cause was a vulnerable personality which the employer knew nothing about.
(15) Where the harm suffered has more than one cause, the employer should only pay for that proportion of the harm suffered which is attributable to his wrongdoing, unless the harm is truly indivisible. It is for the defendant to raise the question of apportionment.
(16) The assessment of damages will take account of any pre-existing disorder or vulnerability and of the chance that the claimant would have succumbed to a stress-related disorder in any event. Earlier, in dealing with the issue of quantification, the Court (at p. 18) stated that where the tortfeasor’s breach of duty has exacerbated a pre-existing disorder or accelerated the effect of pre-existing vulnerability, the award of general damages for pain, suffering and loss of amenity will reflect only the exacerbation or acceleration. Further, the quantification of damages for financial losses may take some account of contingency for example, the chance that the plaintiff would have succumbed to a stress-related disorder in any event and this may be reflected in the multiplier to be applied in quantifying future loss of earnings.
The Court of Appeal then went on to apply the foregoing principles to the facts of the four cases under appeal. In only one appeal, Jones, was the decision at first instance upheld. Mrs. Jones had been employed as an administrative assistant in a local authority training centre from August, 1992 until January, 1995 when she went off sick with anxiety and depression. She never returned and was made redundant when the centre closed at the end of 1996. While there was no specific medical event which might have alerted her employers to the risk of the breakdown which occurred in January, 1995, her employers did know that excessive demands were being placed upon her. They also knew that she was complaining of unreasonable behaviour by her immediate manager, in that she had been threatened with non-renewal of her temporary post if she persisted in her complaints of overwork. These factors were taken sufficiently seriously for extra help to be arranged, not once but twice, but it was not actually provided. She had made two written formal complaints, one in July and one in November, 1994, that problems at work were causing harm to her health. It was not disputed that they did in fact cause her breakdown in January, 1995. On the basis of the foregoing facts, the Court stated (at p. 24) that the question was not whether her employers had in fact caused harm to her health before January, 1995, but whether it was sufficiently foreseeable that they would do so for it to be a breach of duty for the employers to carry on placing unreasonable demands upon her and not to follow through their own decision that something should be done about it. The Court concluded, not without some hesitation, that the evidence at first instance was sufficient to entitle the judge to reach the conclusion that it was. It was pointed out that, unlike the other appeals before the Court, Jones was one where the employer knew that the employee was being badly treated by another employee and could have done something to prevent it.
One of the appellants before the Court of Appeal, Barber, appealed to the House of Lords against the decision of the Court of Appeal. The speeches of the Law Lords were delivered on 1st April, 2004 and are reported as Barber v. Somerset County Council [2004] 2 All ER 385. The decision of the Court of Appeal was reversed. However, there was broad acceptance of the propositions put forward by the Court of Appeal. In his speech, Lord Walker of Gestingthorpe described the exposition and commentary in, inter alia, the part of the judgment dealing with the law as a valuable contribution to the development of the law. He referred to the recognition by the Court of Appeal that the causes of mental illness will often be complex and depend upon the interaction between the patient’s personality and a number of factors in a patient’s life and that it is not easy to predict who will fall victim, how, why or when. He stated that this uncertainty has two important consequences. First, overworked people have different capacities for absorbing stress, and different breaking points. Secondly, senior employees – especially professionals – will usually have quite strong inhibitions against complaining about overwork and stress, even if it is becoming a threat to their health. Commenting on the portion of the judgment of the Court of Appeal (para. [29] at p. 15) from which the proposition set out at (6) above was abstracted, Lord Walker emphasised that the analysis was useful practical guidance and must be read as that and not as having anything like statutory force. He emphasised that every case will depend on its own facts and stated that the following statement of Swanwick J. in Stokes v. Guest, Kean and Nettlefold (Bolts & Nuts) Ltd. [1968] 1 W.L.R. 1776 at 1783 remains the best statement of general principle:
“. . . the overall test is still the conduct of the reasonable and prudent employer, taking positive thought for the safety of his workers in the light of what he knows or ought to know; where there is a recognised and general practice which has been followed for a substantial period in similar circumstances without mishap, he is entitled to follow it, unless in the light of common sense or newer knowledge it is clearly bad; but where there is developing knowledge, he must keep reasonably abreast of it and not be too slow to apply it; and where he has in fact greater than average knowledge of the risks, he may be thereby obliged to take some more than the average or standard precautions. He must weigh up the risk in terms of the likelihood of injury occurring and the potential consequence if it does; he must balance against this the probable effectiveness of the precautions that can be taken to meet it and the expense and inconvenience they involve. If he is found to have fallen below the standard to be properly expected of a reasonable and prudent employer in these respects, he is negligent.”
In dissenting from the majority view, Lord Scott of Foscote expressed a preference for the statement of the law contained in paragraph 29 of the judgment of the Court of Appeal over the statement of general principle quoted above, pointing out that Swanwick J. did not have in mind the problems of psychiatric illness caused by stress. He contrasted an appreciation of the existence of physical dangers of the sort which arose in the Stokes case (the risk of the plaintiff contracting cancer of the scrotum from exposure at work over a long period to mineral oils which, on a daily basis, had saturated his clothing and come in contact with his skin), which is dependent on scientific and medical knowledge, with psychiatric illness caused by stress as in the case of the Barber appeal, where the employers could only know what Mr. Barber told them.
The outcome of the appeal to the House of Lords in the Barber case turned on the application of the relevant principles of law to the facts of the case. The facts were that since 1984 Mr. Barber had been the head of the mathematics department at a second-level school. In 1995 that post was abolished in a restructuring of staffing because of falling numbers. He reapplied for a new post in his subject. In order to maintain his salary level he also applied to be the school’s project manager for public and media relations and was appointed. He worked long hours in discharging his new responsibilities and began to suffer from stress. In February, 1996 he spoke of “work overload” to one of the senior management team. He was away from work in May, 1996 for three weeks, returning with sick notes signed by his doctor, recording his condition as “overstress/depression”. He completed his employer’s form of sickness declaration stating his trouble as “overstressed/depression” and that form was countersigned by one of the deputy heads of the school. During June and July, Mr. Barber had meetings with the senior management team about his workload and his health but no steps were taken to investigate or remedy the situation. In November he suffered a mental breakdown at school and he took early retirement at the end of March, 1997, when he was 52 years old.
In applying the relevant principles of law to the facts, Lord Walker stated that the issue of the breach of the employer’s duty of care to Mr. Barber was close to borderline; it was not a case of a flagrant breach of duty any more than it was an obviously hopeless claim. In Lord Walker’s view, the employer’s duty to take some action arose in June and July, 1996 and continued so long as nothing was done to help Mr. Barber. He stated that what the Court of Appeal failed to give adequate weight to was the fact that Mr. Barber, an experienced and conscientious teacher, had been off work for three weeks with no physical ailment or injury, his absence being certified by his doctor as being due to stress and depression. The senior management team should have made enquiries about his problems and seen what they could do to ease them, in consultation with the officials at the council’s education department, instead of brushing him off unsympathetically or sympathising but simply telling him to prioritise his work. Lord Walker did not accept an argument that, given the problems the school was facing, there was nothing that the school could have done other than to advise Mr. Barber to resign or, in the last resort, to terminate his employment. He stated that at the very least the senior management team should have taken the initiative in making sympathetic enquiries about Mr. Barber when he returned to work, and making some reduction in his workload to ease his return.
After commenting that it is generally unprofitable to contrast the facts of one case with another, a view with which I respectfully agree, Lord Walker contrasted the facts before him with the facts in a Scottish case, which is relied on in the plaintiff’s submissions, Cross v. Highlands and Islands Enterprise [2001] IRLR 336. Lord Walker summarised the facts: a promising 39 year old executive, employed in a job in which (because of geographical factors) close day to day supervision of his work was impossible, became ill with depressive illness and killed himself. The employer was held not liable because no causative breach of duty was established. After the employee had been off work with depression, his line manager travelled to see him and spent almost the whole day discussing his work and his future with him. He reduced his responsibilities and continued to maintain contact with him by telephone. Unfortunately the depression continued. The employer was not liable for the tragedy which ensued because the evidence did not establish that objectively the job was the problem. For all the employer knew, it was dealing with an employee who, for reasons that were not clear, had become unable to cope with a job that he had previously managed successfully. By contrast, in Mr. Barber’s case, there was no doubt that the job was the problem.
Prior to the decision of the Court of Appeal in Hatton, the English High Court had applied the ordinary principles of employer’s liability to a claim for psychiatric illness arising from stress in employment in what was described by Hale L.J. as “the landmark case” of Walker v. Northumberland County Council [1995] 1 All ER 737. The plaintiff, Mr. Walker, had been employed by the defendant local authority as an area social services officer from 1970 until 1987. He was responsible for managing four teams of social services field workers in an area which had a high proportion of childcare problems, among which child abuse references were particularly prevalent. In 1986 he suffered a nervous breakdown because of the stress and pressures of work and was off work for three months. Before he returned to work he discussed his position with his superior who agreed that some assistance should be provided to lessen his work burden. In the event, when he returned to work only very limited assistance was provided and he found that he had to clear the backlog of paperwork that had built up during his absence while the pending childcare cases in his area were increasing at a considerable rate. Six months later he suffered a second mental breakdown and was forced to stop work permanently. In February, 1988 he was dismissed by the local authority on the grounds of permanent ill health. His action against the local authority claiming damages for breach of its duty of care, as his employer, to take reasonable steps to avoid exposing him to a health-endangering workload was successful. Having found that work-related stress and pressure were the only external circumstances which brought about Mr. Walker’s first breakdown, Colman J. considered whether that breakdown was caused by a breach of the defendant’s duty of care.
Colman J. was satisfied that by 1985 at the latest it was reasonably foreseeable to Mr. Walker’s line manager on the basis of the information he had that by reason of stress of work there was in general some risk that Mr. Walker might sustain a mental breakdown of some sort in consequence of his work. He then went on to assess how great the reasonably foreseeable risk was: was it so slight as to be negligible or was it a materially substantial risk? Having stated that there was no evidence that officers in the middle management cadre, as distinct from fieldworkers, were particularly vulnerable to stress-induced mental illness, Colman J. posited the test on foreseeability as follows:
“Accordingly, the question is whether it ought to have been foreseen that Mr. Walker was exposed to a risk of mental illness materially higher than that which would ordinarily affect a social services middle manager in his position with a really heavy workload. For if the foreseeable risk were not materially greater than that there would not, as a matter of reasonable conduct, be any basis upon which the council’s duty to act arose.”
The first sentence in that quotation was implicitly approved of by the Court of appeal in the Hatton case (at p. 14), Hale L.J. pointing out that it turned the focus to the individual.
On the evidence in the Walker case Colman J. was not persuaded that Mr. Walker’s line manager ought to have appreciated that Mr. Walker was at materially greater risk of stress-induced mental illness than an area manager with a busy area would normally be. He laid particular emphasis on evidence of a colleague of Mr. Walker, a very experienced team leader, who thought he would have been able to do Mr. Walker’s job of area manager, which would not suggest that the work appeared to him to be unmanageable or likely to endanger his health. On that basis, Colman J. held that it was not reasonably foreseeable to the council that, before his first breakdown, the workload to which Mr. Walker was exposed gave rise to a material risk of mental illness.
However, on the issue as to whether Mr. Walker’s second illness was caused by a breach of the council’s duty of care, Colman J. found that, having regard to the reasonably foreseeable size of the risk of repetition of Mr. Walker’s illness if his duties were not alleviated by effective additional assistance and to the reasonably foreseeable gravity of the mental breakdown which might result if nothing was done, the standard of care to be expected of a reasonable local authority required that in March, 1987 such additional assistance should be provided, if not on a permanent basis, at least until restructuring of the social services had been effected and the workload on Mr. Walker thereby permanently reduced. When Mr. Walker returned from his first illness the council had to decide whether it was prepared to go on employing him in spite of the fact that he had made it sufficiently clear that he must have effective additional help if he was to continue. It chose to continue to employ him, but provided no effective help. In doing so, Colman J. found that the council acted unreasonably and therefore in breach of its duty of care.
In his analysis of the law in England and, in particular, the test of reasonable foreseeability in the context of the risk of work-engendered psychiatric injury, Colman J. referred to an Australian case as a helpful illustration of the correct approach: the judgment of the Supreme Court of the Australian Capital Territory delivered by Miles C.J. in Gillespie v. Commonwealth of Australia [1991] 104 A.C.T.R. 1. That case involved a claim by a former Australian diplomat against the Australian Foreign Affairs and Trade Department in respect of a mental breakdown which he suffered in consequence of stress created by living conditions in Caracas, Venezuela, where he had been posted. The plaintiff contended that such stress, and therefore his injury, would have been avoided or reduced if the defendants had, before sending him to Caracas, prepared him by a course of training for the severely stressful conditions likely to be encountered. Colman J. quoted the following observations of Miles C.J. (at p. 15):
“In the present case it is not necessary to consider foreseeability with respect to the existence of a duty of care, because the relationship of employer and employee itself gives rise to that duty of care. Foreseeability for present purposes is to be considered only insofar as the degree of remoteness of the harm sustained by the plaintiff set the parameters of the steps that a reasonable person in the position of the defendant would have taken to reduce the risk to the extent that any ‘unnecessary’ risk was eliminated. In practical terms this means that the plaintiff must show that the defendant unreasonably failed to take such steps as would reduce the risk to what was a reasonable, that is a socially acceptable, level.”
Miles C.J. held that the magnitude of the harm was considerable but there was not a high degree of probability that harm of that kind would eventuate. He addressed himself first to the question whether the factors involved in moving to such an environment as Caracas would have involved a reasonably-foreseeable risk of breakdown to any ordinary person, and secondly to the question whether it was foreseeable that the plaintiff was more susceptible to psychological harm than an ordinary member of the diplomatic staff in Caracas. Having held that some risk of psychiatric harm was reasonably foreseeable, but that the plaintiff’s particular vulnerability was not foreseeable, he concluded that, even if the defendant had taken steps to warn the plaintiff, it was not established that he would not have gone to Caracas or, had he done so, avoided his mental breakdown. Consequently the plaintiff’s claim failed.
The plaintiff, Mr. Gillespie, appealed to the Federal Court of Australia (see McMahon & Binchy on Law of Torts, Third Edition, p.496, footnote 95). The appeal, which is reported in (1993) Aust. Tort Reports 81-217, was dismissed. The appeal was essentially decided on the facts.
I have considered the decision of Colman J. in the Walker case in some depth, because it has been the subject of judicial comment in this jurisdiction. In Fletcher v. Commissioners of Public Works, the Supreme Court held 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 was characterised by their medical advisers as remote. At the end of his judgment, Keane C.J. added two observations, the first of which was as follows:
“. . . 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. . .”
Four years earlier, in his comprehensive analysis of the “nervous shock” cases in Curran v. Cadbury (Ireland)Ltd. [2000] 2 I.L.R.M. 343, Judge McMahon observed, at p. 349:
“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 . . . 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 allow this line of authority if it came before the courts in this jurisdiction.”
The only decision of this court which has been cited by counsel in which damages have been awarded for a psychiatric disorder, independent of any physical injury, caused by stress in an employment context is the decision of Budd J. in McHugh v. The Minister for Defence [2001] 1 IR 424. The facts in that case are succinctly summarised in the head note. The plaintiff, a member of the Defence Forces, while on his third tour of duty in the Lebanon was exposed to a life-threatening incident, which sensitised him to further events. Subsequently, he was involved in further incidents which caused him to suffer acute distress. Thereafter he manifested symptoms of post-traumatic stress disorder, which were obvious and were the subject of comment among his fellow soldiers and NCOs and were brought to the attention of his Platoon Commander. There was an awareness in the Defence Forces of the problem of post-traumatic stress disorder and notes on post-traumatic stress disorder had been distributed to officers going to the Lebanon from about 1990. The plaintiff’s claim was that the defendants were negligent in not providing remedial treatment for him following his exposure to stressful incidents. In his judgment, Budd J. outlined the relevant legal principles applicable in determining whether the employer was liable in terms which are broadly in line with the authorities from the other jurisdictions to which I have referred, stating as follows (at p. 429):
“The defendants, as employer, are under a duty to take reasonable care for the safety of their employees and must keep abreast with contemporary knowledge in the field of reduction in the effects of potential afflictions to which soldiers are inevitably exposed in the course of duty. The perils of post-traumatic stress disorder in those subjected to stress have been well known to the defendants for many years prior to 1992. . . .
As is elementary, the plaintiff is not entitled to compensation because in his work in the Lebanon he had been exposed to stress or because he had contracted post-traumatic stress disorder. He must prove, on the balance of probabilities, that his injury was caused by the fault of his employer. . . . The plaintiff’s strange and out-of-character behaviour, while he was based at Tibnin, and his manifest symptoms should have been noted and his obviously stressed condition brought to the attention of the medical officers. The failure to recognise and treat his symptoms was due to culpable negligence on the part of his superiors and resulted in his contracting chronic post-traumatic stress disorder. On the evidence, I have concluded that the likelihood is that, if the plaintiff had received counselling and therapy when he showed the clear signs of stress and incipient post-traumatic stress disorder in early 1993, his condition would have been relieved and he would not have become subject to the long-running and persistent post-traumatic stress disorder which has so adversely affected his working, social and domestic life.”
The effect of the decisions of the Court of Appeal and the House of Lords in the Hatton/Barber case is to assimilate the principles governing an employer’s liability at common law for physical injury and for psychiatric injury where an employee claims that the psychiatric injury has resulted from the stress and pressures of his or her working conditions and workload. In my view, there is no reason in law or in principle why a similar approach should not be adopted in this jurisdiction. I consider that the practical propositions summarised in the judgment of the Court of Appeal in the Hatton case are helpful in the application of legal principle in an area which is characterised by difficulty and complexity, subject, however, to the caveat of Lord Walker in the Barber case – that one must be mindful that every case will depend on its own facts.
Claim for breach of statutory duty: the law
The general thrust of the plaintiff’s claim for damages for breach of statutory duty, as I understand it, is that the statutory provisions which he invokes to support his claim impose a more stringent duty of care on the defendant, as his employer, than is imposed at common law.
The statutory provisions which the plaintiff invokes are the provisions in relation to general duties set out in the Safety, Health and Welfare at Work Act, 1989 (the Act of 1989) and, in particular, the following provisions:
(1) Section 6, which provides that it shall be the duty of every employer to ensure, so far as is reasonably practicable, the safety, health and welfare at work of his employees. Of the requirements specified in sub-s. (2) of s. 6 the plaintiff invokes –
paragraph (d) (“the provision of systems of work that are planned, organised, performed and maintained so as to be, so far as is reasonably practicable, safe and without risk to health”);
paragraph (e) (“the provision of such information, instruction, training and supervision as is necessary to ensure, so far as is reasonably practicable, the safety and health at work of his employees”);
paragraph (i) (“the provision and the maintenance of facilities and arrangements for the welfare of his employees at work”); and
paragraph (j) (“the obtaining, where necessary, of the services of a competent person . . . for the purpose of ensuring, so far as is reasonably practicable, the safety and health at work of his employees”).
(2) Section 12, which mandates the preparation of a safety statement, which shall specify the manner in which the safety, health and welfare of persons employed by the employer shall be secured at work and shall be based on an identification of the hazards and an assessment of the risks to safety and health at the place of work.
The plaintiff also invokes the regulations contained in the Safety, Health and Welfare at Work (General Application) Regulations, 1993 (S.I. No. 44 of 1993) (the 1993 Regulations) and, in particular, Regulations 5, 8, 9, 10, 11 and 13 thereof.
It was submitted on behalf of the plaintiff that the 1993 Regulations impose virtually an absolute duty on employers in relation to the health and safety obligations imposed by the Act of 1989 and the 1993 Regulations and that, therefore, it is not necessary that the plaintiff should establish blameworthiness on the part of the defendant as his employer. As authority for this proposition, counsel for the plaintiff relied on the decision of this court (Kearns J.) in Everitt v. Thorsman Ireland Ltd. [2000] 1 IR 256. The plaintiff in that case was employed by the first defendant, a manufacturer of plastic fittings, as a general assistant. When, in the course of his employment, the plaintiff was endeavouring to open the lid of a bin with a lever provided for that purpose, the lever snapped and broke, causing the plaintiff to fall and sustain injury. The lever, which was found to have a latent defect, was supplied to the first defendant by the second defendant. The plaintiff claimed both for negligence and for breach of statutory duty. It was held by Kearns J. that the common law duty of an employer was to exercise all reasonable care in relation to his employees and that this duty was discharged when the employer bought from a reputable source a tool whose latent defects he had no means of discovering. However, on the question of breach of statutory duty, Kearns J. found that Regulation 19 of the 1993 Regulations, which provides that it shall be the duty of every employer to ensure that the necessary measures are taken so that work equipment is suitable for the work to be carried out or is properly adapted for that purpose as may be used by employees without risk to their safety and health, covered the situation. On the application of Regulation 19 to the circumstances Kearns J. stated as follows at p. 263:
“What does, however, seem to me to cover the situation is reg. 19 of [the 1993 Regulations] which imposes virtually an absolute duty on employers in respect of the safety of equipment provided for the use of their employees.
. . .
Accordingly, while there is no blameworthiness in any meaningful sense of the word on the part of the employer in this case, these Regulations do exist for sound policy reasons at least, namely, to ensure that an employee who suffers an injury at work through no fault of his own by using defective equipment should not be left without remedy. As O’Flaherty J. pointed out [in Connolly v. Dundalk Urban District Council, Unreported, Supreme Court, 18th November, 1992] an employer in such a situation may usually, though not always, be in a position to seek indemnity from the third party who supplied the work equipment.”
Kearns J. found for the plaintiff, holding that there had been a breach of statutory duty on the part of the first defendant. He also found that the second defendant was negligent as either producer or supplier of the faulty lever. He held that the first defendant, the employer, was entitled to a full indemnity from the second defendant.
In the Act of 1989 the expression “personal injury” is defined in similar terms to the definition contained in s. 2 of the Civil Liability Act, 1961, as including “any disease and any impairment of a person’s physical or mental condition”. It is undoubtedly the case that the general duties imposed by the Act of 1989 extend to the protection of the psychiatric health of employees and comprehend the obligation to provide systems and measures which safeguard the employee against psychiatric injury induced by the stress and pressures of the employee’s working conditions and workload. As is pointed out in McMahon and Binchy at p. 605 (footnote 93), almost without exception, the 1993 Regulations provide “for strict and even absolute duties”. However, in a civil action the plaintiff must establish that the injury was caused by the breach. The question which arises in this case is whether the plaintiff has established a breach of a statutory duty in consequence of which he has suffered the injury and loss of which he complains.
I have already quoted the first of the two additional observations made by Keane C.J. at the end of his judgment in Fletcher v. The Commissioners of Public Works. For completeness, as it is quoted in the defendant’s submission, I have considered the relevance of the second, which was to the following effect:
“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.”
That observation was made in the context that, while the defendant admitted that, as employer, it had failed to take proper precautions for the safety, health and welfare of the plaintiff as its employee, and conceded that as a result of that failure the plaintiff was exposed to significant quantities of asbestos dust in the course of his employment and, as a further consequence, was exposed to the risk of contracting mesothelioma in later life, the plaintiff did not manifest any physical symptoms of ill health resulting from his exposure to asbestos dust. The plaintiff’s case was that he was entitled to be compensated for psychiatric injury which he suffered consequent upon his being informed that he was exposed to the risk of contracting mesothelioma, although that risk, on the evidence, was very remote. As is clear from the first additional observation of Keane C.J., which I have quoted earlier, in essence, he distinguished circumstances such as arise in this case, where the claim relates to a psychiatric injury alleged to have been induced by the stress and pressures of the claimant’s workload, and the situation under consideration in the Fletcher case. Therefore, it is not clear to me that the second observation, which in any event was obiter, was directed to factual circumstances such as arise in this case.
Application of the law to the facts
As a first step in the process of applying the law to the facts of this case, I propose considering the expert and other evidence which is before the court in relation to the plaintiff’s medical and psychiatric condition before, during and after his sojourn in Uruguay. I will then summarise –
• the allegations of breach of duty against the factual backdrop of the plaintiff’s employment from early 2003 to the commencement of these proceedings, and
• the submissions on foreseeability.
I will then apply the Hatton propositions to the facts. Finally, I will set out my conclusions on the claim for breach of statutory duty.
The plaintiff’s medical and psychiatric history and current condition
The court heard the oral evidence of Dr. Hassan Al Bayyari, who has been the plaintiff’s general practitioner since October, 2000. The only other oral evidence in relation to the plaintiff’s medical and psychiatric condition which the court heard was from Norma Cairns, Counselling Psychologist, to whom the plaintiff was first referred by his solicitor for psychological assessment earlier this year and whose report dated 16th June, 2004 was admitted in evidence by agreement of the parties. The following further reports, which were obtained for the purposes of these proceedings, were also admitted in evidence by agreement:
(a) a report dated 26th March, 2004 of Dr. James Maguire, Consultant Psychiatrist, which was requested by the plaintiff’s solicitors; and
(b) a report dated 29th February, 2004 of Dr. Shane Farrelly, Occupational Health Physician, who examined the plaintiff on 6th January, 2004 at the request of the defendant.
Two further categories of reports have been admitted in evidence by agreement: reports from medical personnel who treated the plaintiff since the commencement of his employment with the defendant; and reports obtained by the defendant from the medical practice which advises the defendant in relation to its employees, which were obtained in relation to the employment of the plaintiff. Where relevant, I will refer to these reports in the following summary of the evidence.
There has also been put before the court by agreement a considerable volume of medical records, both hospital records, consultant’s records and general practitioner’s records, in relation to the plaintiff covering a period of just over five years. Only some of this documentation has been canvassed in oral evidence and much of it is not relevant to the issues which have to be determined in these proceedings.
No evidence has been adduced in relation to one issue on which the Court of Appeal in Hatton suggested expert evidence might be helpful. In its judgment (at para. 25, p. 14) the Court stated that expert evidence might be helpful on the foreseeability issue, although it could never be determinative of what a reasonable employer should have foreseen. Further, as has been alluded to earlier, the Court of Appeal stated, in relation to the tenth proposition, that expert evidence was likely to be needed on steps which would be likely to do some good. While Rowan Manahan of Fortify Services, who was engaged by the plaintiff in September, 2003 to provide career management, testified in general terms as to what constitutes best human resources management practice in relation to training, monitoring stress and addressing stress through the availability of an employee assistance programme, his evidence was not directed to the particular circumstances of the plaintiff’s employment by the defendant.
When the plaintiff was retained on a contract basis by the defendant in April, 2000 he was referred to the defendant’s medical adviser, Dr. John Hastings. Dr. Hastings furnished what is described as a “pre-employment medical report” to the defendant’s Human Resources Section. It was dated 21st April, 2000. Dr. Hastings reported that clinical examination revealed that the plaintiff enjoyed “excellent health” and was free “of any serious disease or illness”. In his evidence, the plaintiff acknowledged that he did not inform Dr. Hastings about the psychological issues which had arisen while he was living and working in the United States to which I will refer later. He had not been asked about his psychological history. The terms and conditions on which the plaintiff was subsequently employed by the defendant stipulated that his appointment was subject to receipt of a satisfactory medical report. No further report was obtained at that stage, presumably because Dr. Hastings’ report was of such recent vintage.
As has been outlined earlier, in the course of his work for the defendant throughout the year 2000 the plaintiff spent a lot of time on foreign assignments, including a number of assignments to Korea. Following a trip to Korea in the autumn of 2000, the plaintiff became unwell. He suffered from diarrhoea and fatigue and there was blood in his urine. He attended his general practitioner who prescribed antibiotics. When the problems persisted Mr. Downes suggested that he consult Dr. Graham Fry, Consultant in Tropical Medicine. On 5th January, 2001, the plaintiff attended Dr. Fry who carried out a number of tests. A stool sample revealed a moderate number of cryptosporidia which, in his report, Dr. Fry referred to as one of “the newer parasites we are finding in patients back from overseas”. Dr. Fry prescribed antibiotics. The plaintiff’s evidence was that he was advised that cryptosporidiosis could not be cured but that it could be managed. While cryptosporidiosis featured frequently in the evidence, in opening the case counsel for the plaintiff made it clear that the fact that it is alleged that he contracted cryptosporidiosis while on a work assignment abroad was not part of his claim against the defendant. However, the defendant’s awareness of the plaintiff’s condition was emphasised throughout the hearing as being of particular relevance.
The next significant event occurred in the late spring of 2001 while the plaintiff was on assignment in South Africa. He was hospitalised with a suspected appendicitis. It is clear from the evidence that on this occasion the plaintiff received considerable support from the defendant’s personnel on site in South Africa and from Mr. Downes in Dublin. Following his return from South Africa he consulted Dr. Fry again. On 2nd April, 2001 Dr. Fry reported that a stool sample showed very few cryptosporidia. Dr. Fry suggested that cryptosporidia might not be the underlying cause of the plaintiff’s then current symptoms and suggested that the wisest course of action would be “to go down the gastro-enterology route”. The plaintiff was on certified sick leave from 9th April, 2001 to 1st May, 2001.
The plaintiff’s evidence was that he was episodically unwell thereafter. He described his symptoms as explosive diarrhoea, without warning, fatigue and blood in his urine. Some times he had a bad outbreak and the episode lasted for weeks. On other occasions it lasted for days. The plaintiff testified that he has found that stress exacerbates his condition, although he has gone through stressful times when it has not recurred.
The plaintiff was absent from work for a considerable period on certified sick leave between October and December, 2002. He was referred by his general practitioner, Dr. Al Bayyari, to Dr. John Hollingsworth, Consultant Gastroenterologist. It is clear from the evidence that the plaintiff had been seen by Dr. Hollingsworth previously in relation to gastric problems. In his report of 23rd October, 2002, Dr. Hollingsworth recorded that the plaintiff had definitely had a severe reflux disease for which he prescribed Nexium and Zantac. In relation to the plaintiff’s bowel complaints, Dr. Hollingsworth recommended a high-fibre diet and suggested a consultation with a dietician. He also recorded that the plaintiff was having some problems with “probably a mild depression”. He prescribed an antidepressant and gave the plaintiff a letter of referral to a consultant psychiatrist. However, the plaintiff was unable to get an appointment with the consultant psychiatrist before he went to Uruguay in January, 2003. The plaintiff’s evidence was that he did not feel depressed at the time.
It is clear from the evidence that the plaintiff told Dr. Hollingsworth that he had been prone to episodes of depression. The plaintiff’s evidence was that in the early 1990s, while he was living and working in the United States, he was prescribed antidepressants. He does not remember what the diagnosis was at the time and he does not remember a reference specifically to depression. He said he was “down” at the time; it was like a case of the “blues”. After he returned to Ireland the plaintiff was attending his then general practitioner throughout 1999 in connection with throat problems. He had a tonsillectomy in September, 1999. Prior to that, his then general practitioner referred him to a psychologist for counselling. He was also referred to Dr. Catherine Crowe because of problems with sleep. In cross-examination it was put to the plaintiff that his medical records furnished by his then general practitioner disclosed that in the first half of 1999 the plaintiff was complaining of stress at work. The plaintiff acknowledged that he did have some difficulties in his then employment but emphasised that his throat problems were more significant.
While he was living and working in the United States the plaintiff was diagnosed as suffering from Attention Deficit Disorder (ADD). He was prescribed Ritalin. Around November, 2002, in association with his consultation with Dr. Hollingsworth, he consulted Professor Michael Fitzgerald. In a report of 11th November, 2002 Dr. Fitzgerald recorded that the plaintiff met the criteria for ADD and Obsessive Compulsive Personality Disorder. Professor Fitzgerald also recorded that the plaintiff was then on Ritalin, which was satisfactory.
It is clear from the evidence that the plaintiff was concerned about his ongoing health problems while he was on sick leave in October and November, 2002. His evidence was that he kept his line manager, Mr. Downes, informed of his problems. He testified that he told Mr. Downes that Dr. Hollingsworth thought that there might have been “something going on with my head” and that Mr. Downes’ response, which was given in a friendly way, was that he should “keep his mouth shut”. In his evidence, Mr. Downes said that he had some recollection of that event and he acknowledged that he may have told the plaintiff to keep his mouth shut. He had a concern that the plaintiff was free with the information he shared with other people in relation to his medical condition, visits to doctors and such like and he had heard comments suggesting that the plaintiff was a hypochondriac. He was concerned to ensure that people would not make disparaging remarks about the plaintiff. I accept Mr. Downes’ evidence as to his motivation in relation to this incident.
It was during his absence on sick leave between October to December, 2002 that the suggestion that the plaintiff should be seconded to Uruguay arose. Mr. Downes testified that he considered the plaintiff’s health in this context. He was aware of three major incidents in relation to the plaintiff’s health: the diagnosis of cryptosporidiosis; his hospitalisation in South Africa; and his problems at the end of 2002. His understanding was that all of the problems were gastric-related and he was not aware of any particular psychiatric problems. He advised the plaintiff to get medical clearance, because he wanted to be sure that there were no health issues hanging over the plaintiff. The plaintiff’s evidence was that it was at his own insistence that he was examined by the defendant’s medical adviser.
The plaintiff attended Dr. Hastings on 6th December, 2002. In a report dated 12th February, 2003, furnished to the Human Resources Section of the defendant, Dr. Hastings confirmed that he examined the plaintiff and that he also spoke with the plaintiff’s doctor by telephone. In the report Dr. Hastings, in recording the plaintiff’s past history, referred to the cryptosporidiosis diagnosis and the episode in South Africa. He also referred to the fact that in the past several months the plaintiff had suffered chronic recurrent diarrhoea with abdominal pain and recorded that it was felt following investigation that those symptoms were due to the cryptosporidiosis. He recorded that the plaintiff was on treatment for the condition. Dr. Hasting’s opinion was that the plaintiff was fit to travel. However, he stated that due to the chronic recurrent nature of his gastrointestinal condition he might suffer further flare-ups which would require treatment and possible hospitalisation resulting in absence from work. Dr. Hastings concluded that, given the rarity of the condition, it was not possible to give a more precise prognosis. It is clear from the evidence that the results of his examination were conveyed by Dr. Hastings, presumably by telephone, to personnel in the defendant’s Human Resources Section before the plaintiff’s departure to Uruguay and that the plaintiff was aware of them.
The plaintiff left Ireland for Uruguay on 16th January, 2003. Between that date and his return to Ireland on completion of his secondment around 21st June, 2003 he was living and working in Uruguay except for the following periods:
• from 13th February to 18/19th February
• from 28th/30th March to 13th April
• from 1st May to 15th May
During his period in Uruguay the plaintiff was on the following medication prescribed by Dr. Al Bayyari: Nexium and Zantac for his gastric problem; and Ritalin or Concerta for ADD. The prescriptions were repeated on his visits to Ireland by Dr. Al Bayyari, although Dr. Al Bayyari did not see him during this period.
The thrust of the plaintiff’s evidence was that throughout his period in Uruguay he was under stress. Following his return to Uruguay in mid-April he felt isolated, had no social life, experienced a constant uneasiness going into the office and found the situation extremely stressful. He felt sick. He had bad stomach problems. On two occasions he called out the doctor to his hotel. On another occasion he called an ambulance. He had headaches, on occasion could not speak and he felt numbness in his arm. The plaintiff was examined on 28th April at the British Hospital in Montevideo by Dr. Diana Yorio, a neurologist. A report dated 10th May, 2004 on the neurological consultation furnished by Dr. Yorio was admitted in evidence by agreement. On the basis of her examination, Dr. Yorio concluded that the distribution of sensory symptoms suggested a diagnosis of “C7-C8 cervical radiculopathy with no motor impairment”. She ordered a cervical spine MRI, and also a lumbar spine MRI, because the plaintiff also complained of lumbar pain. She prescribed vitamin B12. It is clear from the evidence that the plaintiff did not have an MRI scan.
Following the plaintiff’s return to Dublin he was seen by Dr. Al Bayyari on 23rd June, 2003. Dr. Al Bayyari’s evidence was that he had not seen the plaintiff as bad before. He was pale and distressed. He complained of abdominal pain, frequent bowel motions and tenderness in the right side of his abdomen. He also complained of insomnia, poor memory and lack of concentration and lack of motivation. Dr. Al Bayyari advised him to stay out of work and to rest. In addition to Nexium and Zantac, he prescribed Halcion to help with sleep and Deltacortril, a steroid, for bowel inflammation, which had first been prescribed for the plaintiff in February, 2002. The plaintiff followed Dr. Al Bayyari’s advice and stayed out of work. Prior to 26th August, 2003 two medical certificates furnished by Dr. Al Bayyari were submitted to the defendant. The first dated 23rd June, 2003 covered a period of one week and certified that the plaintiff was suffering from abdominal pain. The second was dated 30th June, 2003 and covered a period of one week. It certified that the plaintiff was suffering from abdominal pain and terminal ileitis. Dr. Al Bayari saw the plaintiff weekly thereafter and observed that the plaintiff was improving gradually.
It emerges clearly from the evidence that the plaintiff was very concerned about his health through June, July and August, 2003. On Dr. Al Bayari’s advice, he was seen again by Dr. Hollingsworth whose report to Dr. Al Bayyari of 5th August, 2003 has been admitted in evidence by agreement. Dr. Hollingsworth ordered tests and varied the plaintiff’s medication. He reported that he had explained to the plaintiff that nothing definite had shown up on the physical side and he might have underlying irritable bowel and stress might be a factor. Dr. Hollingsworth recorded that the plaintiff had told him that he was pursuing further investigations in the United States, including a SPECT scan. Dr. Hollingsworth also recommended that the issue of a laparoscopic repair of the plaintiff’s hiatus hernia, which Dr. Hollingsworth had previously raised, be put on hold.
The further investigations in the United States were carried out in the Amen Clinic in California. A revised version of an Adult Evaluation Report dated 20th August, 2003 of Lucretia A. Reed M.D., has been admitted in evidence by agreement. The report discloses the results of various questionnaires and checklists administered and also the methodology involved in, and the result of, a SPECT study, which is a tomographic brain study. Dr. Reed’s diagnoses and conclusions, which were based on, inter alia, the SPECT findings included ADD (referred to as Attention Deficit Hyperactivity Disorder) and mood disorder. Recommendations and a treatment plan were set out in the report.
Following the plaintiff’s return from the United States, Dr. Al Bayyari reviewed the plaintiff on 25th August, 2003. It is clear from the evidence that Dr. Al Bayyari was aware of the diagnoses made at the Amen Clinic. He prescribed Neurontin and Concerta, the psychostimulant which he had prescribed for the plaintiff instead of Ritalin in April, 2003. He also prescribed an antidepressant, Lexapro.
Dr. Al Bayyari saw the plaintiff again on 28th August, 2003 after he had been informed by the defendant that he was to be made redundant. At that stage he was upset and Dr. Al Bayyari said that there was some rebound in his symptoms. Thereafter, the plaintiff continued under the care of Dr. Al Bayyari, who has continued to prescribe medication. Dr. Al Bayyari also certified the plaintiff’s unfitness for work on a weekly basis until December, 2003 when he declared him fit to return to work. Dr. Al Bayyari testified that the plaintiff has continued to be under stress because of the pending litigation.
What seems to have provoked the defendant’s request that the plaintiff be examined by Dr. Farrelly at the beginning of January, 2004 was Dr. Al Bayyari’s declaration in the previous December that the plaintiff was fit to return to work. Apart from the two reports from Dr. Hastings, to which I have referred earlier, the only medical evidence in relation to the plaintiff’s condition which the defendant has put before the court is Dr. Farrelly’s report. Dr. Farrelly’s opinion was based on the history given to him by, and his examination of, the plaintiff and also a review of the reports from Dr. Fry, Dr. Hollingsworth and Dr. Al Bayyari. He noted the diagnosis of cryptosporidiosis. He attributed the plaintiff’s ongoing abdominal symptoms to irritable bowel disorder, a condition which tends to be aggravated or brought on by stressful situations. He also noted from the plaintiff’s past medical history that he had suffered from depression in the past and that he had been diagnosed as suffering from ADD. He was of opinion that the numbness, headaches and difficulties with speech which the plaintiff had experienced in Uruguay were symptoms of stress. In his view, the plaintiff was at the time of the examination, January, 2004, still suffering from stress symptoms and he was not then fit for work. Dr. Farrelly did not think that the plaintiff’s underlying cryptosporidiosis had been exacerbated by his stress symptoms, but he was of opinion that the stress symptoms would account for his abdominal symptoms which he considered were secondary to an irritable bowel. He recorded that he was informed by Mr. McGrath that he had a stressful time at work and stated:
“Indeed, if that was the case, this could certainly account for his symptoms, particularly with the background history of an underlying psychiatric condition, as this would make him more susceptible to any ‘stressful’ situation that might indeed not have the same effect in another individual who did [not?] complain of the same pre-morbid personality.”
On the basis of his examination and his assessment of the plaintiff’s psychological status, Dr. Farrelly stated that the plaintiff was not clinically depressed but he was suffering from ongoing stress symptoms. He expressed extreme surprise that he had not been referred to a cognitive psychotherapist. Such referral he considered to be crucial to the plaintiff’s complete recovery. He was of the view that the plaintiff’s psychological symptoms were fully treatable. He anticipated that the plaintiff required three to four months of aggressive treatment with a cognitive psychotherapist to resolve his psychological symptoms completely. He did not expect any long-term sequelae to occur.
It was submitted on behalf of the defendant that it was at a disadvantage in that Dr. Farrelly did not have sight of the Amen Clinic report when he examined and reported on the plaintiff’s condition because of the failure of the plaintiff to discover it in his affidavits of discovery. I do not accept that argument. The defendant could have sought, but did not seek, to remedy the situation by procuring a further report from Dr. Farrelly or by calling him as a witness.
Dr. Maguire, who assessed the plaintiff on 26th March, 2004, summarised his symptoms, from a psychological point of view, as being consistent with “a depressive/anxiety state, largely secondary to his dilemma, the change in his lifestyle, his uncertainty about his future etc.”. It was his opinion that the plaintiff was likely to experience an improvement in his mental status if the issues in these proceedings could be settled to his satisfaction and, particularly, if he manages to obtain employment commensurate with his working background and skills.
The plaintiff’s evidence was that it was Dr. Farrelly’s opinion that he required cognitive psychotherapy which prompted him to go to Ms. Cairns. While Ms. Cairns was asked to assess the plaintiff for the purpose of these proceedings, she has also been treating the plaintiff. Ms. Cairns, on the basis of three sessions with the plaintiff, concluded that he meets the diagnostic criteria as set out in DSM IV for chronic post-traumatic stress disorder (PTSD). On the basis of her consultations with the plaintiff and the results of the psychometric tests which she administered, her opinion was that the plaintiff was then currently in a state of severe psychological distress which was impacting on every area of his life. She ascribed the onset of his symptoms to his experiences in Uruguay and his subsequent experiences with the defendant. Her opinion was that the depressive symptoms which the plaintiff had manifested in the United States in the early 90s could not account for PTSD. However, depression could make a person more vulnerable to PTSD. She testified that it is not uncommon to have symptoms of depression and anxiety with PTSD and, in her opinion, the plaintiff had some symptoms of depression when she assessed him. She was not aware of Professor Fitzgerald’s diagnosis and was not struck by the possibility of obsessive compulsive personality disorder. Ms. Cairns’ prognosis is that it will take at least nine months in therapy on a regular basis (once weekly) before the plaintiff is in a position to apply for a job. A satisfactory outcome of these proceedings would aid his recovery in her opinion.
While, as the foregoing outline illustrates, the opinions and diagnoses of the experts lack consistency, for the purposes of this judgment I am satisfied that it has been established that the plaintiff has suffered from a recognisable psychiatric illness.
Allegations of breach of duty in factual context
It appears from the evidence that the attraction of Sursoft SA at the time of the defendant’s acquisition of that company in 1999 was that its founders had developed a software product called CMS, which I understand to be a software application for processing credit card transactions. By the autumn of 2002, the CMS product had been successfully marketed by the defendant on a global basis but senior management of the defendant was not satisfied, to put it in layman’s terms, about the manner in which the business was being run from Montevideo. Therefore, at the turn of the year the defendant embarked on a plan which had a number of aspects: that direct control of management in Uruguay would be exerted from Head Office in Dublin; that the “source code”, the knowledge of the product, in the Dublin Head Office would be expanded so that over a six month period all design and intellectual property control would be transferred to Dublin, this objective to be achieved by rotating key personnel between Dublin and Montevideo over that period; and renegotiating the terms which, following the acquisition, regulated the founders’ continued involvement in the Uruguay operation.
There was some controversy as to what the plaintiff’s role in Uruguay was. On the evidence I find that his role was as set out in the document entitled “CMS Task Force”, updated on 26th November, 2002. He was to take charge on site in Montevideo of general operations and professional services management. This involved the management of the implementation of the operational aspects of the plan in Uruguay and of servicing the CMS product customers, reporting to Mr. Cahill. He had no role in negotiating with the founders. That was Mr. Byrne’s responsibility. On the evidence, I am satisfied that, subject to a satisfactory outcome of the negotiations with the founders, the defendant intended to maintain an operation in Uruguay on the implementation of the plan, albeit a different operation from that which had previously existed.
The first crisis with which the plaintiff was faced in Uruguay was that at the end of January, 2003 personnel from the Uruguay office who were servicing a client bank in Kuwait unilaterally left Kuwait following announcements by the US State Department of the imminence of the Iraq war. On the evidence, I am satisfied that responsibility for the management and resolution of this particular crisis was ultimately assumed by Head Office in Dublin.
A more serious crisis was an all-out strike by the personnel in Montevideo, which started on 20th February, 2003 and was brought to a final conclusion by the execution of a settlement agreement on 24th March, 2003. On the evidence, I am satisfied that what provoked the strike was the breakdown of the negotiations between Mr. Byrne and one of the founders of Sursoft SA, which were taking place in Dallas immediately before the strike. One of the founders had in his possession a version of the CMS Task Force document dating from September, 2002 which envisaged the closure of the Uruguay operations following the relocation of the intellectual property in Dublin, the development work being outsourced to a team based in Bangalore in India. The evidence suggests that the earlier version, which I am satisfied was superseded by the version updated on 26th November, 2002, was inadvertently
e-mailed to one of the founders. When negotiations broke down he may have used it to garner the support of the workforce in Montevideo. Whether he did or did not, what is clear is that the breakdown of negotiations with the founders led to an immediate reassessment by senior management of the future of the operation in Montevideo. There is no doubt on the evidence that thereafter various strategies were under consideration by Mr. Byrne and the management of the defendant to deal with the failure of the negotiations with the founders and, subsequently, the resolution of the strike. Moreover, there is no doubt that various strategies were under consideration for providing emergency cover for customers during the currency of the strike and, where necessary, minimising liability to customers. In the course of the evidence there was a lot of focus on these matters, and, in particular, on the plaintiff’s perception of how strategies and decisions impacted on him. Save to say that I consider that it would be imprudent to do so given the narrow focus of the evidence when considered against the broader picture and the serious implications of the industrial action for the defendant and all of its stakeholders, including the generality of its employees, I express no view on any of these matters.
While the plaintiff was the only member of the defendant’s management team who was constantly in Montevideo for the course of the strike, the defendant’s counsel from the United States, Rich Gray, was in Montevideo from 23rd to 27th February and Mr. Cleary was there from 4th to 10th March. The crisis was being managed by senior management in Dublin, particularly Mr. Byrne. After Mr. Cahill’s departure, the plaintiff reported to Mr. Byrne. The defendant retained lawyers in Montevideo to represent its interest in negotiations.
The plaintiff’s evidence was that what transpired during the strike undermined the trust which the personnel in Uruguay had in him. It created a bad atmosphere and his relationship with them deteriorated. I have already outlined the plaintiff’s evidence of how this impacted on him. Eventually, a more senior member of the management team in the defendant, Mr. Doran, was appointed as general manager for Uruguay in May, 2003. He travelled to Uruguay twice before the plaintiff departed, on the second occasion for the “handover”.
After the strike and before he left Uruguay, the plaintiff had an ongoing work relationship with Mr. Downes. The plaintiff’s evidence was that their relationship, which previously had been good, had become “troubled”. It is clear on the evidence that there was tension and acrimony between the plaintiff and Mr. Downes in relation to operational issues and also in relation to issues personal to the plaintiff, for example, his home trips and expenses. I am satisfied on the evidence that Mr. Downes made it clear to the plaintiff that there was an issue of trust between them.
Although the plaintiff was on certified sick leave from the time he returned to Dublin, he did have meetings with Mr. Downes and Mr. Cleary in relation to his future role in the defendant. The question of the plaintiff becoming involved in project work again, which would involve travel, was canvassed by Mr. Downes with the plaintiff. The question whether, because of his ongoing medical problems, the plaintiff might be assigned “light duties” was raised by the plaintiff on the advice of Dr. Al Bayari. The issue of the four weeks’ leave which the plaintiff contends Mr. Cahill represented he could take on his return from Uruguay was raised, but Mr. Downes was not prepared to accede to that. The plaintiff was scheduled to cover for Mr. Downes while he was on leave in July, 2003 but, in the event, the plaintiff was on continuous sick leave up to the date on which he was notified that he was to be made redundant.
Against the background of the foregoing factual situation, the plaintiff alleges that the defendant was in breach of its duty to provide a safe place of work and a safe system of work. In particular, it is alleged that the defendant placed the plaintiff in a difficult and stressful environment without proper support or information. Moreover, he was placed in an unfamiliar culture, where he could not speak the language, without adequate briefing in relation to the task he was to perform. He was not fully informed, as he had requested, about the company’s plans and in particular, he was not informed that the closure of the Uruguay operation had been in contemplation. During the strike he was not kept properly apprised of the defendant’s policy. As to the nature of the work, it was extremely demanding. The plaintiff had to work long hours and was continuously on call dealing with issues across various time zones. He was getting different directions from management and advisors and policy was continuously changing. It was submitted that the level of stress and overwork to which he was subjected was in itself egregious.
In relation to lack of support, particular emphasis was laid on the plaintiff’s lack of training or experience in industrial relations matters and that he suggested that a colleague with such experience should be sent to Uruguay for the duration of the strike. It was not in dispute that the plaintiff asked Mr. Cleary to stay longer in Uruguay than he did.
The plaintiff also identified other stressors. The defendant, through Mr. Cahill, was responsible for increasing the strain he was under by warning him of the insecurity of his own position, in that Mr. Cahill told him at the beginning of March that he, Mr. Cahill, was being blamed for the strike and was going to be “fired” and that the plaintiff would be caught up in it. Mr. Cahill denied this. The departure of Mr. Cahill, who had given him the guarantee of one year’s employment on the completion of his posting, was also a source of anxiety.
The plaintiff also alleged that the defendant was vicariously liable for whoever was responsible for one of the founders getting the earlier version of CMS document, which it was suggested amounted to negligence. This argument does not stand up to scrutiny at any level. It has not been established how the founder got the document and, in any event, the allegation of negligence must certainly be ruled out on the grounds of remoteness.
The steps which the plaintiff contends the defendant did not take, but should have taken, may be summarised as follows:
(1) The safety statement under s. 12 of the Act of 1989 did not address the issue of stress in the workplace, as it should have.
(2) The defendant should have had a system in place for monitoring stress in the workplace, which it did not have.
(3) The defendant should have had measures in place whereby an employee could, if he or she thought it necessary, access counselling or therapy on a confidential basis. In particular an employee assistance programme should have been in place to which staff members experiencing stress could have had access. Mr. Cleary’s evidence was that while the defendant had such a programme in place in the United Kingdom, it does not have a similar programme in this jurisdiction on the ground of cost.
(4) The defendant did not give adequate support to the plaintiff in dealing with the workload and crises in Uruguay.
Foreseeability: the submissions
While not accepting that the court should apply the Hatton propositions, I did not understand it to be part of the defendant’s argument that the two components of the Hatton threshold question do not exist in this case. On the evidence such argument would be unsustainable. The medical evidence, including the report of Dr. Farrelly, establishes that the plaintiff has suffered an injury to his health, as distinct from occupational stress, and that, as a matter of probability, it is attributable, in part at least, to stress at work. However, the defendant denied that such injury was foreseeable in the light of what the defendant knew or ought to have known at the relevant time. Further it was submitted on behalf of the defendant that there was no breach of duty on its part and that in all respects it acted reasonably in the circumstances.
The plaintiff countered the denial of foreseeability of psychological injury to the plaintiff by pointing to the defendant’s knowledge of the plaintiff’s pre-existing physiological vulnerability; the plaintiff’s conversation with Mr. Downes in November, 2002; an incident in Uruguay in March, 2003 when it was obvious to Mr. Cleary that the plaintiff was upset by and concerned about a suggestion made by a work colleague that he was being blamed for the strike; the e-mail of 20th March, 2003 in which the plaintiff expressed extreme annoyance about having to postpone his trip home and complained of a lack of communication as to what was happening between the lawyers, his difficulties at the “coalface” and his fears; the plaintiff’s physical appearance on his return to Dublin in June, 2003; and the actual workload itself. It was submitted that the combination of the history of cryptosporidiosis, the stress under which the plaintiff was placed in Uruguay, and his inability to resume work when he returned to Dublin in June, 2003 should have put the defendant on inquiry. Further, it was submitted that what was characterised as a remarkable lack of curiosity on the part of the defendant in relation to the plaintiff’s medical condition when he returned suggests either that the defendant was well aware that the plaintiff was suffering from work-induced stress arising from his Uruguay assignment, or was utterly indifferent to his state of health. As to this last point, on the evidence, I find that the second certificate from Dr. Al Bayari dated 30th June, 2003 covered a period of one week only and not the period up to September, 2003 as was suggested in some of the evidence. This is clear from Dr. Al Bayari’s own evidence. Mr. Downes was on holiday in July 2003. On his return he received an e-mail of 20th July from the plaintiff informing him that the plaintiff had not been in the office in his absence but that he had kept Mr. Cleary abreast of his condition and that he would visit his doctor next on 5th August. Mr. Downes responded by an e-mail to the plaintiff on 6th August, 2003 indicating that the Human Resources Section was looking for certificates and requesting that they be sent as soon as possible. On the evidence I do not think it would be proper to draw either inference which the plaintiff has invited the court to draw.
Application of the Hatton propositions
My conclusions on the application of the Hatton propositions to the facts of this case are as follows:
(a) The defendant did not have any actual knowledge of the plaintiff’s vulnerability to psychological injury or harm.
(b) It clearly emerged from the evidence that the “corporate culture” in the defendant’s companies is competitive and demanding of their employees. Mr. Cleary described it as the American model where employees work hard and play hard against the background of “economic ups and downs”. It was not a place where one would admit weakness. The plaintiff came to the defendant with experience of working in the IT sector both in the United States and in Ireland. On the evidence I conclude that there was no reason why the defendant should not assume that the plaintiff could withstand the stresses and pressures of this type of work environment and of the workload which he was required to undertake. Prior to his posting to Uruguay he had worked for two and a half years for the defendant and had undertaken foreign assignments in locations as diverse as the United States, Mauritius, South Africa and Korea without any apparent stress-related or psychological problems or susceptibility to such problems.
(c) As to the actual nature and extent of the workload undertaken by the plaintiff in Uruguay, it was undoubtedly the case that it was, and it was clear from the CMS document that it was going to be, an inherently difficult task. However, the evidence indicates that senior management in the defendant considered that the plaintiff had the attributes to do the job and it is to be inferred that the plaintiff also believed that he had. No issue at all arose on the evidence as to the manner in which the plaintiff performed the task. In fact there was general consensus among the defendant’s witnesses as to his dedication and competence and that he had positively contributed to the resolution of the industrial relations difficulties in Uruguay. While the job proved to be more demanding than might have been anticipated, the crises which arose were unpredictable. The evidence of the defendant’s witnesses was that all of the personnel of the defendant involved in trying to manage the crises were under stress and pressure and they handled it. On an objective appraisal of the evidence, I am satisfied that the senior management in Dublin did not subject the plaintiff to any greater pressure than was assumed by any other member of the management team or to unreasonable demands.
(d) Insofar as there were signs of vulnerability on the part of the plaintiff and possible harm to his health, these were adequately addressed by the defendant. The defendant was aware of the plaintiff’s physical problems and procured medical advice from Dr. Hastings before the plaintiff took up the post. Dr. Hastings took the initiative of speaking to the plaintiff’s general practitioner with the plaintiff’s consent. The plaintiff did not inform the defendant of his medical problems while in Uruguay and he was not absent on sick leave.
(e) On the evidence, in my view, there was no sign or warning which the defendant’s personnel ought to have picked up that the plaintiff was prone to psychological injury attributable to work-related stress. Nothing emerged on the examination carried out by Dr. Hastings or his conversation with Dr. Al Bayari. The plaintiff had not apprised the defendant of his psychological history. He had made no complaints in relation to work-related stress before he went to Uruguay. He made no direct complaints while there or on his return. In my view, the conversation with Mr. Downes in November was a casual conversation, which did not put Mr. Downes on any further inquiry as to the plaintiff’s psychological condition. Insofar as the defendant was put on inquiry in relation to the plaintiff’s health problems, by procuring medical advice the defendant discharged its duty of care to the plaintiff. The circumstances during the posting which the plaintiff contends the defendant’s personnel should have taken as signs – the episode during Mr. Cleary’s visit to Montevideo in March and the subsequent e-mail of 20th March, 2003 to Mr. Downes – in the light of what the plaintiff had told the defendant and what the defendant had found out through having the plaintiff examined by Dr. Hastings, in my view, were not such as to put a reasonable and prudent employer on further inquiry.
(f) On the evidence, I am satisfied that there was no good reason why the defendant should not have taken the information it obtained from the plaintiff before and during his employment, either directly or through Dr. Hastings, at face value. In their submissions counsel for the plaintiff emphasised that he was not aware that he was suffering from a stress-related injury while in Uruguay. That inexorably leads to the question how could the defendant reasonably be expected to know of the plaintiff’s vulnerability or the fact that he had succumbed. In my view, it would be wholly unreasonable to impute to the defendant knowledge of a vulnerability or condition of which the plaintiff was unaware in circumstances in which the defendant had not been apprised of the plaintiff’s psychological history and the existence of the vulnerability and the likelihood of psychological harm was not ascertained through Dr. Hastings’ examination and inquiries.
(g) In my view, there were no indications of impending harm to the plaintiff’s physical or mental health before, during or after his posting to Uruguay which triggered a duty on the part of the defendant to take any step other than the step which the defendant had taken – obtaining the opinion of Dr. Hastings. That situation prevailed up to the notification to the plaintiff of the defendant’s intention to terminate his employment on 26th August, 2003. The law did not require either Mr. Downes or Mr. Cleary to question the certification of the plaintiff’s condition by his own general practitioner, which was silent on the existence of psychological injury.
My general conclusion is that the plaintiff has not crossed the foreseeability threshold. The risk of psychological harm to the plaintiff was not reasonably foreseeable. The fundamental test is whether the defendant fell below the standard to be properly expected of a reasonable and prudent employer. In my view it did not. Having done what was reasonable in the circumstances, the defendant did not breach its duty of care and has no liability to the plaintiff either in contract or in tort.
In relation to the failures which the plaintiff specifically ascribed to the defendant, I make the following findings.
I am satisfied on the evidence that the crisis management which the strike necessitated was conducted on a number of fronts. The plaintiff undoubtedly had a subjective perception that he was not being properly supported. However, viewed objectively in the light of what the defendant knew about the plaintiff, what his role was, and what was expected of him, the manner of deployment by the defendant of its personnel and outside advisers as it did in the resolution of the strike cannot be seen as giving rise to a breach of the defendant’s duty of care to the plaintiff. To put it another way, I do not think that it would have been clear to a reasonable employer that, if the plaintiff was not supported in his role by the constant physical presence in Montevideo of a member of the management team with human resources or industrial relations experience during the currency of the strike, he would be at risk of injury arising from stress. The plaintiff was in constant contact with management personnel in Dublin by telephone and email throughout the strike.
Further, even if the defendant’s safety statement had addressed the issue of stress, and structures were in place for monitoring stress in the workplace and, even if the defendant had an employee assistance programme in place in its Irish operations, it is difficult to see, given the factual circumstances, what difference these measures would have made to the outcome. In particular, notwithstanding the plaintiff’s testimony that he would have availed of an employee assistance programme had one been in place, having regard to the totality of the evidence, it seems improbable that he would have. To the extent that the plaintiff bases his case on the fallout from the strike and, in particular, the attitude of the personnel in Uruguay to him, the reality is that after the strike the plaintiff was only on site in Montevideo for a matter of weeks when Mr. Doran was appointed to replace him. He had access, if he wished, to his general practitioner while on trips home at the beginning of April and the beginning of May.
Liability for breach of statutory duty
In their written submission counsel for the plaintiff implicitly recognised that there is a difficulty in establishing a causative link between the alleged breaches of statutory obligations of the defendant upon which they rely and the injury of which the plaintiff complains. While acknowledging that the onus of proof is on the plaintiff, it was submitted that the plaintiff had made out a prima facie case and that the onus shifted to the defendant to advance an alternative cause for the plaintiff’s injuries. Alternatively, it was submitted that the fact that the defendant had failed to offer any tenable explanation as to how the plaintiff could have sustained the psychological injuries was a consideration which the court could have regard to in considering whether the plaintiff had discharged the onus which rests on him.
The issue is not whether the stress the plaintiff suffered was caused by work, but whether the stress-induced injury was a consequence of a breach by the defendant of its statutory duties. Where an employee is injured because of the malfunction of a faulty piece of equipment given to him by his employer, the causative link is obvious. The injury would not have been inflicted if the faulty piece of equipment had not been given to the employee. The question which arises here is whether it can be said, as a matter of probability, that if the defendant took all of the steps which the plaintiff contends it was statutorily obliged to take (dealing with workplace stress in the safety statement, having in place a system for monitoring stress and an employee assistance programme and providing further training for the plaintiff) the plaintiff would not have suffered psychological injury. In my view it cannot.
By way of general observation, if the submissions made on behalf of the plaintiff were correct, in my view, the law would impose a wholly unrealistic burden on employers.
Accordingly, the claim for breach of statutory duty fails.
Damages
The plaintiff is entitled to damages for the breach of his contract in failing to honour the guarantee of one year’s employment following his posting to Uruguay. In my view, the measure of the damages is limited to the year’s salary and other benefits which the plaintiff would have received but for the breach of contract. The plaintiff is not entitled to damages for loss of opportunity, as was contended on his behalf. Even if the defendant had honoured the guarantee, the defendant would have been entitled to terminate on notice at the end of the period of one year in accordance with the contract. While I am not satisfied on the evidence that the post of Director of Professional Services would have been less exposed to redundancy in July, 2004 than in July and August, 2003, in any event, as I have found, the legal position is that protection against redundancy is not justiciable at common law.
Accordingly the measure of damages is €69,026 representing the plaintiff’s salary for one year together with a bonus of 30%, which I consider it reasonable to assume he would have earned, nett of tax. That sum is exclusive of the plaintiff’s entitlement arising from the termination of his contract, which the defendant acknowledged, but which the plaintiff did not avail of because of the intervention of these proceedings. In the case of holidays owing, it is agreed by the defendant that the plaintiff has an entitlement to €9,662, representing 29.75 days. The plaintiff’s claim is for 35 days. I measure the sum due at €10,500. In addition to the items acknowledged, I consider that the plaintiff is entitled to be reimbursed expenses he incurred when he was delayed in Boston on his return to Uruguay in April, 2003 because of difficulties with the US immigration authorities, which I measure at €3,000.
I will hear submissions from counsel as to the form the order should take.
Shortt -v- Royal Liver Assurance Ltd
[2008] IEHC 332 (21 October 2008)
Judgment by: Laffoy J.
Judgment of Ms. Justice Laffoy delivered on the 21st day of October, 2008.
Background
When these proceedings were initiated by a plenary summons which issued on 23rd March, 1998, the plaintiff had been an employee of the defendant for over twenty years, since 1977. From April, 1991 onwards he had occupied the position of District Sales Manager, Dublin South West. The chain of events which led to the initiation of these proceedings commenced in July, 1997 and encompassed two pivotal events which are at the core of these proceedings. The first was the implementation and outcome of a disciplinary process under which the plaintiff was subjected to a sanction. The second was the decision of the defendant to transfer the plaintiff from the position of Sales Manager for the Dublin South West district to Sales Manager for the Dublin West district in the course of the restructuring of the defendant’s operations in Ireland.
The disciplinary process arose out of a complaint made by another employee of the defendant, who had acted as the plaintiff’s personal assistant for about six years (whom I will refer to as “the personal assistant”), against the plaintiff, which was transmitted to the defendant through the personal assistant’s trade union, SIPTU. The complaint related to the manner in which the plaintiff had treated the personal assistant on 10th July, 1997. The issue between them arose because, while the plaintiff was on sick leave on the previous day, the personal assistant had taken a day’s leave to look after her young son who was sick. On his return to the office, the plaintiff, having erroneously concluded that the personal assistant had taken a day’s leave in his absence without cause or notice, remonstrated with the personal assistant. A comparison of the almost contemporary statements made by the personal assistant and the plaintiff in relation to what transpired discloses a large element of consistency as to the substance of the interaction between them. Where the accounts differ is that the personal assistant complained that the plaintiff created a tense and hostile atmosphere by slamming the door, speaking to her in an abrupt manner and raising his voice and butting in in an enraged tone. In a subsequent statement the personal assistant complained that during the following week the plaintiff had continued his hostile attitude towards her and that she found the atmosphere in the office tense and the working conditions intolerable. She stated that she felt very intimidated by the plaintiff’s aggressive behaviour. The personal assistant’s account of the plaintiff’s demeanour towards her on 10th July, 1997 was corroborated in the statement of a female colleague who witnessed part of their interaction.
At that time the defendant had a disciplinary procedure in place in relation to Area/District Managers, which, in general, provided that at every stage of the procedure the employee would be informed in writing of the disciplinary charge being brought, would have an opportunity of stating his or her case in person before any penalty was imposed, would be given at least five days working notice in advance of a disciplinary interview, and would have the right to consult and be accompanied by a trade union representative throughout the process. The procedure involved an investigation of the facts by management, which involved taking statements from relevant witnesses. It also provided for suspension with pay pending the investigations. A progression of sanctions was envisaged: a formal verbal warning; a written warning; a final written warning; and dismissal. There was also provision for an internal appeal. The sanction of a final written warning could be applied in the case of a first offence which was considered to be serious but fell short of gross misconduct. A final written warning would be disregarded after twelve months satisfactory conduct.
The statements of the personal assistant in relation to her complaint against the plaintiff were sent by SIPTU to Mr. Derek Brennan, the Divisional Manager of the defendant in Ireland, on 1st August, 1997 on the basis that the content would form the basis of a formal written complaint and would be processed accordingly. Mr. Brennan was the plaintiff’s line manager. He set an investigation in train. The plaintiff was suspended with pay pending the investigation. As a result of his investigation Mr. Brennan decided to hold a disciplinary hearing on 3rd September, 1997, at which the plaintiff would be given the opportunity to respond to “the allegations of hostile, intimidatory and aggressive behaviour towards a subordinate” as contained in the personal assistant’s statements. The plaintiff was informed that he could be accompanied by a trade union representative or a colleague and that copies of all the complaints and statements had already been furnished to him, which was the case. The plaintiff had already involved his own trade union, then known as MSF. The letter advising him of the disciplinary hearing stated that the request of his trade union representative to have staff members available for questioning could not be agreed to due to the nature of the complaint. The request was not subsequently pursued by the plaintiff or his representative during the disciplinary process.
The disciplinary hearing took place on 3rd September, 1997. Mr. Brennan was the decision maker. The defendant’s personnel advisor for Ireland was also present. The plaintiff attended with his trade union representative, Brian Gallagher. At the outset, in response to Mr. Brennan’s query as to whether there were any procedural questions, Mr. Gallagher lodged a formal objection that disciplinary action was inappropriate as there had been no attempt to resolve the issue informally. Mr. Brennan then set out his interpretation of the background to the hearing. The plaintiff and Mr. Gallagher were given an opportunity to respond, during which Mr. Gallagher reiterated his complaint as to the lack of an attempt to resolve the matter informally. Mr. Brennan stated that he had spoken with the personal assistant and that she had requested that the matter be made formal and dealt with by her trade union, thus effectively rejecting the objection.
Having at the end of the hearing reserved his decision, Mr. Brennan conveyed it by letter dated 8th September, 1997. While he did not express this, it was implicit that he had made a finding of “hostile, aggressive” and “intimidatory behaviour” on the part of the plaintiff, because he stated that any repetition of such behaviour to employees at any level within the organisation would lead to the consideration of the next stage of the Disciplinary Procedure. He stated that he had decided to issue the plaintiff with a final written warning. The plaintiff could appeal that decision to the General Manager of Field Operations, Mr. Barry Caulfield. The plaintiff was informed that normally a final written warning would lapse after twelve month’s satisfactory conduct, that he would not be eligible to participate in the Staff Bonus Scheme while he was on the disciplinary procedure and that it was in order for him to resume his duties on 10th September, 1997.
The plaintiff did resume his duties on 10th September, 1997. He also availed of the internal appeal against Mr. Brennan’s decision.
Pending the investigation of her complaint and the disciplinary hearing, the personal assistant had been on special paid leave. After the decision of Mr. Brennan, in response to a letter of 12th September, 1997, informing her that her paid leave would end and she should report for work on 17th September, 1997, her solicitor, by letter dated 17th September, 1997, wrote to the defendant alleging that she had been subjected to a campaign of harassment and intimidation and seeking confirmation that she would be allowed to return to her normal duties free from an atmosphere of harassment and intimidation, failing which she would have no option but to institute appropriate legal proceedings against the defendant. As I understand the personal assistant’s position, it was that she wished to return to her position as a personal assistant in Dublin South West but not under the plaintiff.
The plaintiff’s appeal was heard by Mr. Caulfield in Liverpool on 30th October, 1997. The plaintiff was represented by Mr. Gallagher, who raised a number of grounds of appeal. He reiterated his complaint that there had been no attempt to resolve the issue informally and that the use of the disciplinary procedures was premature. He also objected to the manner in which Mr. Brennan had conducted the disciplinary hearing, in that, in setting out his interpretation of the case, Mr. Brennan had referred to two previous matters, one dating from 1996 in which there had been complaints against the plaintiff from agents working under him, and another dating from 1997 which Mr. Brennan had characterised as “unprofessional behaviour” in relation to a colleague of the plaintiff, which Mr. Gallagher suggested manifested an element of prejudgment on the part of Mr. Brennan.
Mr. Caulfield’s decision on the appeal was communicated in his letter of 17th November, 1997. He rejected the appeal and all of the grounds advanced. He confirmed Mr. Brennan’s decision. He then went on to address a matter which had not been raised at the appeal hearing, commenting on the manner in which the plaintiff had conducted himself at the appeal hearing and stating that there had been “quite considerable degradation in [his] attitude and demeanour”. He suggested that the plaintiff seek counselling. In fact, Mr. Brennan in his letter dated 8th September, 1997, had expressed the view that behavioural counselling would assist the plaintiff in his relations with people and stated that he anticipated that the defendant would fund counselling in full.
After the determination of the appeal hearing the plaintiff did not pursue any other industrial relations avenue, such as bringing the matter before a Rights Commissioner. The plaintiff’s trade union and Mr. Gallagher dropped out of the picture at that stage.
Although the plaintiff’s solicitor’s opening letter preliminary to these proceedings was not sent until 24th February, 1998, and was not received by the defendant until 27th February, 1998, I am satisfied on the evidence that it was the intention of the plaintiff at all times to seek to have the outcome of the disciplinary process reversed, through litigation if necessary.
It is not clear on the evidence when precisely the personal assistant returned to work but it was before mid-December, 1997. She was assigned to work as a personal assistant in the Administrations Centre. By the end of January, 1998, her solicitor was complaining, as no doubt he believed was the case, that no disciplinary action had been taken against the plaintiff, that it was his client, not the plaintiff, who had been transferred, which gave rise to the impression that it was she, not the plaintiff, who had been guilty of wrongdoing, and that her new duties and working conditions were substantially different to those she had previously enjoyed. The solicitor threatened that, if the matters could not be resolved amicably within a reasonable time, she would have no alternative but “to ventilate her grievance before the Courts”. As I understand it, that never happened. She left her employment with the defendant in June, 1998, having first made enquiries about voluntary redundancy early in February, 1998. She continued to work in the Administration Centre until she left.
The second pivotal event underlying these proceedings was the decision which the defendant made, in the implementation of the restructuring of its business in Ireland, to transfer the plaintiff from the position of District Sales Manager for the Dublin South West district to the position of District Sales Manager for the Dublin West district. The decision did not involve a change of work place or even office; it involved the assignment to the plaintiff of responsibility for a different area of operations with different agents and other personnel working to him. There is no issue but that a genuine restructuring was on the cards from 1996 onwards and that it was implemented in February, 1998. The issue raised by the plaintiff is that the decision to assign him to Dublin West, which was communicated to him by Mr. Brennan at a meeting on 20th February, 1998, was a direct consequence of the allegations made by the personal assistant and was an additional penalty imposed on him, in that Dublin West did not have the potential to yield as much sales commission, which was a component of his remuneration, as the district in which he had been operating, Dublin South West.
On the evidence, I have no doubt that in February, 1998, Mr. Brennan was apprehensive that the personal assistant would leave her employment with the defendant and launch an action for constructive dismissal if she was not reinstated in the position as personal assistant in the Dublin South West district working to somebody other than the plaintiff, as she was demanding. I have also no doubt that that apprehension was a factor in the decision to assign the plaintiff to the Dublin West area under the restructuring and I so find. However, I am satisfied that to the extent that it was a factor, the objective was not to impose an additional penalty on the plaintiff; the objective was to be in a position to address the personal assistant’s issue, lest she pursue the apprehended strategy. Other factors also informed the decision to assign the plaintiff to the Dublin West district in the very complex restructuring operation being implemented, which involved, inter alia, reducing the number of districts within the geographical area of Dublin City and County, County Kildare and County Wicklow from nine to six, reconfiguration of the districts and the allocation of five incumbent managers and almost two hundred agents to the new districts. One of the factors was the problem which had arisen in 1996 between the plaintiff and agents working under him. Another was his experience of working for the defendant in the area which was to constitute the new Dublin West district before taking up his assignment as District Sales Manager for Dublin South West in 1991, which was seen as an advantage in dealing with the challenges which were going to arise in the new district of Dublin West.
The plaintiff objected to the proposed transfer both personally and through his solicitors, who threatened injunctive proceedings if the defendant did not capitulate. The plaintiff had a meeting with Mr. Caulfield on the 16th March, 1998. As a result of that meeting Mr. Caulfield wrote to him on 18th March, 1998. Mr. Caulfield’s position was that the disciplinary process was completely separate from, and bore no relationship to, the restructuring plan. He set out the supports which the plaintiff would receive in Dublin West. He acknowledged that the move might have implications for the plaintiff’s earnings and indicated that a formula would be in place to ensure protection of the plaintiff’s earnings for a three year period. Mr. Caulfield concluded the letter with an assurance that it was not the intention of the management that the appointment to Dublin West would be a punitive measure but one seen as a progressive and beneficial move for both the defendant and the plaintiff.
Notwithstanding the supports and income protection offered to the plaintiff, he refused to take up the position in Dublin West and he was suspended on pay on 18th March, 1998. That action provoked these proceedings. Contemporaneously with the plenary summons, a notice of motion was issued on 23rd March, 1998 seeking, inter alia, an injunction restraining the defendant from transferring the plaintiff to Dublin West. The application for the interlocutory injunction came on for hearing on 27th and 28th May, 1998 before O’Sullivan J., who by order of 28th May, 1998, refused the application.
Immediately following the dismissal of the interlocutory application, the plaintiff returned to work. He worked as District Sales Manager for Dublin West until September, 2001, when he was appointed to the position of Sales Development Manager, as part of a further restructuring of the defendant’s business in Ireland. He continued in that position until he took voluntary redundancy in January, 2004. The guarantee of income protection given in Mr. Caulfield’s letter of 18th March, 1998, was continued for six years until the plaintiff left the defendant’s employment. The plaintiff took voluntary redundancy and the settlement which came with it on the basis that he was doing so without prejudice to his entitlement to pursue these proceedings.
There are a number of other factual matters which are relevant.
First, as the plaintiff had been advised in Mr. Brennan’s letter of 8th September, 1997 would happen, the final written warning lapsed after twelve months, whereupon the bonus which had been withheld was paid to him.
Secondly, the plaintiff claimed that the events of August and September, 1997, caused him stress, for which he had to receive medical attention. His general practitioner testified to having seen the plaintiff at the beginning of September, 1997, and on the 10th September, 1997. At the time the plaintiff’s symptoms seemed to be stress related. He had symptoms of anxiety, he was feeling tired and he had problems sleeping. His general practitioner prescribed sleeping tablets for him on the first occasion and gave him a medical certificate certifying him unfit for work due to stress. The general practitioner saw the plaintiff again on 2nd February, 1998, when he found that he had the same problems but probably worse. He referred the plaintiff to a Stress Clinic for professional help for his symptoms. On the evidence, I am satisfied that the plaintiff, who was suspended on pay from 5th August, 1997 to 10th September, 1997, did not at any time apprise the defendant that he was suffering from work place related stress. In particular, he did not submit the general practitioner’s certificate to the defendant. The first the defendant knew of his claim that he was suffering from work related stress was in a reply to notice of particulars in these proceedings delivered in September, 1998.
The claim
There are two distinct elements in the plaintiff’s claim and a third which relates to a consequence which is alleged to flow from the first and second elements.
The first element arises from the manner in which the disciplinary action against the plaintiff was conducted. The relief sought in relation to this element is a declaration that the disciplinary action as implemented by the defendant was both wrongful and unlawful and in breach of the plaintiff’s rights to natural and constitutional justice.
The second element arises out of the transfer of the plaintiff to Dublin West. The plaintiff contends that the position adopted by the personal assistant, as manifested by her continuing representations to the defendant, significantly influenced the defendant in deciding to transfer the plaintiff. Therefore, the decision to transfer was an additional sanction arising from the disciplinary process initiated by the personal assistant’s complaint, the imposition of which was unlawful as being in breach of the plaintiff’s rights. The remedy that the plaintiff seeks in relation to this element is damages for breach of contract, the claim being predicated on the proposition that the plaintiff’s earnings would have been greater had he remained in Dublin South West. As a consequence, it was contended, he suffered loss in the nature of special damage under three headings:-
(1) loss of earnings from 20th February, 1998 until he took voluntary redundancy on 9th January, 2004;
(2) diminution of the redundancy payment to which he would otherwise have been entitled; and
(3) loss of pension entitlement.
The third element is a claim for damages for personal injuries due to stress suffered by him as a result of the disciplinary process and his transfer.
I will consider each element in turn.
The disciplinary process
It was submitted on behalf of the defendant that there is an insuperable difficulty to the plaintiff pursuing a claim for a declaration in the terms sought in that, having regard to the effect of the passage of time, the plaintiff’s claim is not justiciable. The defendant pointed to the fact that the final written warning lapsed after a year and the plaintiff’s withheld bonus payment was restored. As a result, it was submitted, the plaintiff was not prejudiced in any way and no benefit would accrue from the granting of the declaration sought.
In support of that argument, the defendant relied on the decision of this Court (Blayney J.) in Ahern v. Minister for Industry and Commerce (No. 2) [1991] 1 I.R. 462. The plaintiff in that case, a public servant, was seeking to quash, by way of judicial review, the decision of his employer to have him placed on compulsory sick leave. Before the proceedings were initiated he had been instructed to return to work and he had done so. Issues arose as to the conduct of the applicant. Having stated that the factors in relation to the applicant’s conduct would incline him to exercise his discretion against granting the reliefs sought, Blayney J. stated that there was a third factor which was even more compelling and he continued (at p. 469):-
“In The State (Abenglen Properties Ltd.) v. Corporation of Dublin [1984] I.R. 381, Walsh J. said in his judgment at page 397:-
‘If I am correct in this, then an order for certiorari quashing the decision made by the respondents would be of no benefit to Abenglen. While the Court could make such an order in the present case, the Court in its discretion could refuse to do so where that would not confer any benefit upon Abenglen’.
I am satisfied that in the present case the order sought would not confer any benefit on the applicant. He claims that it would in that, if Mr. Bennett’s decision remains in his personal file, it will affect his career prospects. I am not at all convinced that this is so …. So the presence of this decision on his file will not prejudice him in any way and accordingly would not confer any benefit on him.
Also in [the Abenglen case], O’Higgins C.J. at p. 393 had this to say in his judgment in regard to applications for certiorari:-
‘In the vast majority of cases, however, a person whose legal rights have been infringed may be awarded certiorari ex debito justitiae if he can establish any of the recognised grounds for quashing; but the court retains a discretion to refuse his application if his conduct has been such to disentitle him to relief or, I may add, if the relief is not necessary for the protection of those rights. For the court to act otherwise, almost as of course, once an irregularity or defect is established in the impugned proceedings, would be to debase this great remedy’.
Even if the legal rights of the applicant were infringed in the present case, the order sought is not necessary for the protection of those rights. The applicant did not lose any salary, he continues in his position as a senior examiner in the Patents Office and his career prospects have not, in my opinion, been affected by the decision sought to be impugned. To grant an order of certiorari in the present case would to my mind, to borrow the words of O’Higgins C.J., debase this great remedy”.
The decision of Blayney J., in the light of those considerations, was to refuse the relief sought in the exercise of his discretion. A reporter’s note discloses that subsequently the applicant’s appeal was dismissed by the Supreme Court without reserving judgment.
Counsel for the defendant also relied on a decision of the former High Court in O’Doherty v. Attorney General & O’Donnell [1941] 569, in which Gavan Duffy J., as a matter of discretion, refused to make a declaration that notice sent by a statutory decision maker was inaccurate and contrary to law, because there was a more convenient, beneficial and effectual remedy available for misconstruction of the relevant statutory duty by the statutory decision maker, an order of mandamus. It was submitted that in this case the plaintiff could have sought redress through industrial relations channels by bringing the matter to a Rights Commissioner.
It was not contended on behalf of the defendant that it is not open to the Court to grant a declaration to an employee concerning breaches by his employer of its contractual obligations to him. Indeed, counsel for the defendant acknowledged that in an appropriate case such a declaration may be made, referring to the decision of this Court (Clarke J.) in Carroll v. Bus Atha Cliath [2005] 4 IR 184 and submitting that circumstances which arose in that case were a perfect example of the type of situation when it is appropriate to grant a declaration.
In this case, even if it were the case that the implementation of the disciplinary process against the plaintiff was irregular and contravened the plaintiff’s contractual or constitutional rights, I am of the view that, having regard to the circumstances which now prevail, the Court should refuse to grant the discretionary remedy sought by the plaintiff. When this matter came on for hearing, almost ten years had elapsed from the time the sanction, which had been imposed on the plaintiff in September, 1997, had ceased to exist, having lapsed. That sanction did not in any real sense militate against the plaintiff either financially or in career terms. Even though he harboured a grievance that he had been treated unfairly and that his reputation has been tarnished, the reality is that he continued in the employment of the defendant for over six years after the events complained of and ultimately availed of voluntary redundancy. Although the claim for a declaration in the terms which the plaintiff seeks, in my view, is justiciable, the remedy is a discretionary remedy. On the facts of this case, in my view, to borrow the words of O’Higgins C.J. and Blayney J., it would debase the remedy to grant it to the plaintiff even if he has established that the defendant acted unlawfully.
Apart from that, I am not satisfied that the plaintiff has established that the defendant acted unlawfully or in breach of his contractual or constitutional rights.
The principal plank in the plaintiff’s case that the defendant breached his right to fair procedures is that he was neither afforded the opportunity to cross-examine the personal assistant nor provided with some alternative means of testing her evidence. While it was conceded on behalf of the plaintiff that not every disciplinary process will give rise to a right to cross-examine the complainant, it was asserted that the graver the allegation the more important it is that the employee who is under investigation should have the right to test the evidence. In this case, it was submitted, the allegations of “hostile, intimidatory and aggressive behaviour towards a subordinate” were serious and ought to have been tested in a more robust fashion than occurred. It was submitted that there was a lack of even-handedness on the part of the defendant.
I am satisfied that the defendant conducted the disciplinary process in accordance with the Disciplinary Procedure. The complaint against the plaintiff was investigated promptly and as thoroughly as was warranted. The plaintiff was given an opportunity to respond to all of the evidence which was before Mr. Brennan. As is recognised in Industrial Relations Act 1990, Code of Practice on Disciplinary Procedures (Declaration) Order 1996 (S.I. No. 117/1996), the principles of natural justice “may require … that the employee concerned be allowed to confront or question witnesses.” (Article 11). That is in line with the authorities, which make it clear that, while an employee who is facing a disciplinary action is entitled to the benefit of fair procedures, what these will demand depends on the terms of the employee’s employment and the circumstances surrounding the disciplinary action (per Barrington J. in Mooney v. An Post [1998] 4 I.R. 288 at p. 298). The important point is that the decision-maker must not act in such a way as to imperil a fair hearing or a fair result (per Hamilton C.J. in Gallagher v. The Revenue Commissioners (No. 2) [1995] 1 I.R. 55, at p. 76).
As I have stated, in this case there was a large measure of consistency between the basic facts as asserted by the personal assistant and the plaintiff’s account of what happened on 10th July, 1997. There was a conflict as to the demeanour of the plaintiff towards the personal assistant. The essential question is whether, given the refusal of the personal assistant to submit to being questioned at a disciplinary hearing by or on behalf of the plaintiff, the plaintiff was likely to be exposed to the risk of an unfair hearing or an unfair result. Because of the nature of the conflict in their respective accounts of what transpired between them on 10th July, 1997, which related primarily to the delivery and tone of the exchanges rather than their content, I consider that Mr. Brennan was entitled to proceed on the basis that to do so was not likely to imperil a fair hearing or a fair result, particularly, when the point was not pursued by or on behalf of the plaintiff. Moreover, taking account of the nature of the complaint of the personal assistant and the respective positions of the personal assistant and the plaintiff within the defendant’s organisation, in my view, Mr. Brennan was entitled to consider the likelihood of a detrimental effect on her by being confronted by the plaintiff or by someone on his behalf. On the evidence I am satisfied that he was entitled to conclude that such an outcome was likely.
Despite the lapse of time, the Court had the benefit of hearing all of the parties involved in the disciplinary hearing: Mr. Brennan and Mr. Colin Watt, the defendant’s personnel advisor for Ireland, on the defendant’s side; and the plaintiff and Mr. Gallagher, on the plaintiff’s side. In addition, a considerable body of contemporaneous documentation generated by the defendant, which had been discovered, was canvassed in the cross-examination of the defendant’s witnesses. The plaintiff contended that the documentation revealed that Mr. Brennan had pre-judged the issue and had formed certain conclusions as to the plaintiff’s likely conduct on 10th July, 1997. It is true that Mr. Brennan came to the disciplinary hearing with the belief, based on the incidents dating from December, 1996, and February, 1997, that the plaintiff had the capacity to behave in an aggressive manner towards a co-employee. Indeed, Mr. Brennan laid that belief out clearly when he was setting out his understanding of the issues and the evidence at the commencement of the disciplinary hearing and the plaintiff and his representative had the opportunity of addressing the introduction of that material.
The type of disciplinary process which was being implemented by the defendant in relation to the complaint made by the personal assistant against the plaintiff, which involved the investigation of the complaint followed by the conduct of a disciplinary hearing by the plaintiff’s line manager with a view to establishing whether his conduct warranted the imposition of a disciplinary sanction and, if so, which sanction, does not lend itself to the application of the principles of natural justice in the manner in which they would be applied if the plaintiff had been entitled to a hearing by an impartial tribunal, which was not the case. As was pointed out at first instance in Mooney v. An Post [1994] E.L.R. 103 by Keane J., what he described (at p. 116) as the “two great central principles of natural justice” – audi alterem partem and nemo iudex in causa sua – cannot be applied in a uniform fashion to every set of facts. As Keane J. pointed out by way of example, the nemo iudex requirement cannot be literally applied in this type of situation because, if it were, an employer could never dismiss an employee, since he would always be an interested party in the decision. On the appeal in Mooney, Barrington J. pointed out (at p. 298) that, likewise, it is difficult to apply the principle of audi alterem partem to a contract of employment, because that principle implies the existence of an independent judge who listens first to one side and then to the other side.
On the specific arguments advanced by the plaintiff in this case, in my view, the plaintiff has not established that he was not afforded fair procedures by reason of the fact that there was no opportunity for him or his representative to question the personal assistant. The factual dispute which the investigation identified, in my view, did not indicate that it was necessary in the interest of fairness to afford such opportunity. It would undoubtedly have been preferable if Mr. Brennan had confined his assessment to the evidence which had been elicited in the investigation and, as regards the matters extraneous to the complaint at issue, as Mr. Gallagher put it, had “left them outside the door when conducting the hearing”. Having said that, as counsel for the defendant submitted, it could not be suggested that the extraneous matters were determinative. In any event, insofar as Mr. Brennan was influenced by them, he had fairly disclosed this in advance to the plaintiff and his representative.
Taking an overview of the matter, I do not think that the process involved in the Disciplinary Procedure was unfair, nor was it implemented in an unfair manner. It follows that the decision of Mr. Caulfield on the plaintiff’s appeal was not perverse or wrong.
In my view, it was not inappropriate for Mr. Brennan to suggest that counselling would assist the plaintiff in his relationships with people. Given that the plaintiff was continuing in the employment of the defendant in a management position, Mr. Brennan, as his manager, was entitled to make recommendations which he considered would improve the interaction between the plaintiff and his colleagues and subordinates. Furthermore, in my view, it was open to Mr. Caulfield to comment, as he did, on the plaintiff’s demeanour at the appeal hearing and, on the basis of what he observed, to suggest that the plaintiff would benefit from counselling.
Viewing the process as a whole, while not perfect, in my view it was not conducted in breach of the plaintiff’s rights.
The Transfer.
It was made clear on behalf of the plaintiff that he was not asserting that there exists a general right on the part of an employee to seek damages against his employer in circumstances where the employer transfers the employee within the organisation or business against the employee’s wishes. In other words, as I understand it, the plaintiff accepted that in the ordinary course of events the plaintiff would have had no cause of action if he was transferred from one district to another by the defendant in the course of the implementation of a restructuring of the defendant’s business. The plaintiff’s argument was that what happened in February, 1998, was out of the ordinary because, as he perceived it, it was linked to and was a consequence of the disciplinary process which followed the personal assistant’s complaint. His claim that there was a breach of his implied contractual rights was founded on that link and was posited on two propositions which are inextricably intertwined. The first proposition was that the transfer constituted an additional sanction or penalty arising from the disciplinary process. The basis on which it was contended that the transfer was tantamount to an additional sanction was that the plaintiff’s earnings potential was likely to be adversely affected by being transferred. The second proposition was that the sanction was imposed unlawfully and in breach of the plaintiff’s right to fair procedures, in that it was alleged that it was a penalty which had been imposed surreptitiously and without having been threatened and without the plaintiff having been given an opportunity to be heard in relation to it.
Dealing with the first proposition, I am of the view that it is impossible to conclude on the evidence that, by being assigned to the Dublin West district in implementation of the restructuring plan, the plaintiff was likely to be, or was in fact, penalised financially or in any manner. As his remuneration during the remainder of his employment with the defendant was maintained at the same level as had applied when he ceased to be District Sales Manager for Dublin South West, the plaintiff was constrained to argue that, had he remained as Manager of the Dublin South West district, he would have had the potentiality to earn and would, in fact, have earned more than he actually did after he was transferred. However, on the evidence I can find no basis for concluding that the plaintiff was likely to be, and was in fact, deprived of the opportunity to earn higher remuneration by not being allocated to the new Dublin South West district.
It is true that over the last two tax years during which he was in the position of District Sales Manager of Dublin South West, that is to say, from 6th April, 1996 to 5th April, 1998, the plaintiff’s gross income had increased considerably – by an average of twenty four per cent per annum. During that period the plaintiff was “caretaking” jointly with a colleague the management of the Dun Laoghaire district. The Court has been invited to conclude that the contribution of the Dun Laoghaire district was not significant, although there was no accountancy evidence to support such conclusion. More significantly, no evidence was led from which one could conclude what the potentiality of the new restructured Dublin South West district was to yield remuneration in the form of sales commission for its District Sales Manager, or what the remuneration of the District Sales Manager actually was, in the six years ensuing the restructuring.
While, as I have found, the demands of the personal assistant to be reinstated as personal assistant in the Dublin South West district and her threat of legal proceedings did influence the decision to assign the plaintiff to the Dublin West district, I am satisfied that it was only one of a number of factors, which I have already outlined, which had a bearing on the decision. It is difficult to assess the relative significance of the various factors. Even if the threat of litigation by the personal assistant was a significant factor, having regard to the evidence, that would not justify the conclusion that, as a matter of fact, the assignment of the plaintiff to the Dublin West district was a penalty or an additional sanction, as the plaintiff perceived it to be, because it is impossible to conclude that the decision was likely to, or did in fact, result in a financial detriment to the plaintiff.
Moreover, I am satisfied on the evidence that the decision to assign the plaintiff to the Dublin West district on the restructuring was not motivated by any desire or intention on the part of the defendant to penalise the plaintiff. The provision made to protect the plaintiff’s income and the other supports put in place, which were outlined in Mr. Caulfield’s letter of 18th March, 1998, support that conclusion.
Turning to the second proposition, the nub of the plaintiff’s submission, as I understand it, was that, as there was no threat to transfer the plaintiff out of the Dublin South West district in the course of the disciplinary process, which concluded in November 1997, and as the plaintiff had not been heard in relation to a proposed transfer, it was not open to the defendant thereafter to transfer the plaintiff. That submission, of course, assumes that the transfer was tantamount to an additional sanction or penalty, which I have held was not the case. Apart from that, when the decision to transfer the plaintiff was made subsequently to November 1997, his internal staff representative, Mr. Michael Murphy, made representation to Mr. Brennan on his behalf. Later, accompanied by Mr. Murphy, the plaintiff had the meeting with Mr. Caulfield on 16th March, 1998. That meeting was followed by Mr. Caulfield’s letter of 18th March, 1998, in which all of the issues were comprehensively dealt with and in which the plaintiff was guaranteed income protection and other supports.
It is difficult to see what more the defendant could have done in the complex evolving situation to which the implementation of the restructuring gave rise. Having regard to all of the circumstances, I am not satisfied that the plaintiff has established that the transfer was in breach of his implied contractual right to fair procedures.
Apart from that, there is no evidential basis on which the loss and damage which the plaintiff alleges flowed from the transfer are quantifiable. Joseph Byrne, actuary, testified as to the “potential” loss of gross earnings over the following six years during which the plaintiff remained in the employment of the defendant after his transfer to the Dublin West district on the assumption that, had he not been transferred, his gross income would have increased by twenty four per cent per annum. He also gave computations on the purely hypothetical basis that the increase would have been in the range of fifteen per cent per annum, ten per cent per annum or five per cent per annum. As I have already indicated, there is no evidential basis to support any increase in the plaintiff’s remuneration had he been allocated to the new Dublin South West district; that was left entirely in the realms of speculation. It follows that there is no evidence to support a claim based on a diminished redundancy package or loss of pension rights.
Personal Injuries Claim
The circumstances in which an employer will be liable for the adverse consequences of work related stress suffered by an employee have been succinctly summarised by Clarke J. in Maher v. Jabil Global Services Limited [2005] 16 E.L.R. 233 (at p. 246), in which he identified the starting point for any consideration of liability in such a case as the following questions, all of which must be answered in the affirmative to give rise to liability:-
“(a) has the plaintiff suffered an injury to his or her health as opposed to what might be described as ordinary occupational stress;
(b) if so is that injury attributable to the workplace; and
(c) if so was the harm suffered to the particular employee concerned reasonably foreseeable in all the circumstances.”
In this case, even if I was satisfied that the evidence establishes that the plaintiff suffered an injury to his health which was caused by his treatment by the defendant in the workplace so that the first two questions should be answered in the affirmative, and I am not, the third question must undoubtedly be answered in the negative. The harm which the plaintiff alleges he suffered, even if it constituted an injury in the sense of a recognised psychological injury, was not reasonably foreseeable. While it is reasonable to assume that being subjected to a disciplinary process in the workplace and being transferred to a different position in the workplace against one’s will are events which are accompanied by a certain degree of stress, they are events which are encountered in the normal course of the management of a business or organisation. In the absence of any reason for a contrary conclusion, an employer is entitled to assume that an employee is able to withstand such stress. On the basis of the evidence in this case, the management of the defendant did not know, and there was no reason why the management personnel ought to have known, that the plaintiff was vulnerable or likely to succumb to psychiatric or psychological injury because of the implementation of the disciplinary process in 1997 or his transfer in 1998. Indeed, the plaintiff deliberately, if understandably, concealed from the defendant that he was suffering from, and being treated for, stress.
Accordingly, the plaintiff’s claim for damages for personal injuries must fail.
Order
There will be an order dismissing the plaintiff’s claim.
Sweeney -v- Ballinteer Community School
[2011] IEHC 131 (24 March 2011)
JUDGMENT of Mr. Justice Herbert delivered the 24th day of March 2011
1. Between September 2005 and September 2006, a series of decisions affecting the plaintiff, approximately six in number were taken by Dr. C. as principal teacher of a large community college (hereinafter referred to as B.C.C.), in which the plaintiff was a senior member of the teaching staff. It is not for this Court in these proceedings to decide whether these decisions were correct or incorrect, justified or unjustified. A report of an Investigating Officer appointed pursuant to the provisions of the Code of Practice of March 2003, for “dealing with complaints of bullying and harassment of staff in community and comprehensive schools”, subscribed to and relied upon the plaintiff as a member of the Teachers Union of Ireland and, by the Board of Management of B.C.C. found that the plaintiff had not established that these decisions amounted to bullying or harassment of her by Dr. C.. This finding was sustained by an Appeal Board duly constituted under and in accordance with the terms of the Code of Procedure, on foot of the plaintiff’s appeal dated the 9th March, 2010, from the decision of the Investigating Officer. I have already ruled during the course of this action that to the extent that these decisions of Dr. C. were the subject of inquiry by the Investigating Officer and subsequently by the Appeal Board, this Court would not permit the plaintiff to challenge these findings in the instant case and, would accept the finding that these decisions taken by Dr. C. did not amount to bullying or harassment of the plaintiff.
2. However, these decisions and the facts surrounding them have a residual importance to the present case. The plaintiff did not accept these decisions of Dr. C. and, in each case, to re-echo her own words under cross examination, “went beyond and outside him”. In so doing she knew that she was taking, what she herself described, as a “drastic step”. She accepted in evidence that on the 2nd September, 2005, she told Dr. C. that unless she received what she believed was promised funding from B.C.C. for the second year of her four year degree course in counselling and psychotherapy, “she would do something drastic”. In cross examination the plaintiff denied that she had threatened to take sick leave for a year and insisted that by saying that she “would do something drastic” she meant that she would, “go beyond and outside him”.
3. It is not for this Court to decide in the present case whether or not the plaintiff was entitled to “go beyond and outside” Dr. C. in relation to these decisions or, even if such recourse existed whether she employed correct procedures in availing of it.
4. However, what is important in my judgment to the proper understanding and determination of this action is that these decisions of Dr. C. and the plaintiff’s reaction to them resulted, I find, in escalating mutual distrust between them as disagreement followed disagreement. Eventually, I find that the plaintiff came to believe that every action or omission on the part of Dr. C. whether actually or, as she perceived it, affecting her, was part of a conscious and deliberate campaign by him to bully and harass her.
5. These most regrettable circumstances caused her on the 4th October, 2006, to make a formal complaint of bullying and harassment through a firm of solicitors to the Rev. Chairman of the Board of Management of B.C.C.. I accept the evidence of the Rev. Chairman that this was the first he had heard of the allegation. He was very shocked and he took legal advice before acknowledging this letter by a letter dated the 16th October, 2006. He accepted that he had been aware since October 2005 that the plaintiff and Dr. C. had not been speaking to each other but he told the court that this was not at all unusual amongst teachers. I find that prior to this, in May and June 2006, three teachers on the staff of B.C.C. who were the then serving committee of the Teachers Union of Ireland in B.C.C. had attended a number of meetings with Dr. C. in which they had put to him the plaintiff’s concerns about his behaviour towards her. I am satisfied that at least one of these meetings Dr. C. behaved very aggressively towards a female teacher almost resulting in physical intervention by the two male teachers present. It is not necessary for the purpose of deciding the present action to determine whether Dr. C. is correct in his recollection that no express allegation of bullying or harassment by him of the plaintiff was raised at any of these meetings and accordingly that the contents of the letter of the 4th October, 2006, came as a very great surprise to him. By a letter dated the 7th November, 2006, Dr. C. denied these accusations and furnished particulars to the Board of Management of B.C.C. of what he alleged was bullying of him by the plaintiff.
6. Following a considerable exchange of views in correspondence, which on occasion became unnecessarily acrimonious, on the 13th November, 2006, a practising junior counsel with extensive experience and with an area of specialisation in the Law relating to Education in Ireland was appointed under the Code of Practice as “Investigating Officer” to inquire into these very serious complaints by the plaintiff of bullying and harassment on the part of the Dr. C.. In furnishing very belated details of her claim to the Investigating Officer and to Dr. C. in April 2007, the plaintiff claimed that she had been bullied and harassed by Dr. C. since 1992. However, at the hearing of the instant case, she accepted that this alleged behaviour on the part of Dr. C. only commenced in October 2005, following her appeal against the filling of four “A” posts of responsibility in B.C.C.. The Investigating Officer furnished her report on the 26th October, 2007 and a copy was furnished to the plaintiff.
7. At this point a few biographical details of the plaintiff and of her career are in order. The plaintiff was born on the 8th July, 1954. She separated from her spouse after, what I was informed, was for her a very traumatic marriage followed by a very difficult court separation. She has two children who are now young adults. She qualified as a teacher in 1975. After qualifying she taught in Dublin until 1979 and in Lisbon from 1979 to 1980. In 1980 she became a permanent member of the staff of B.C.C.. In 1993, Dr. C. was appointed principal of B.C.C.. In 1999 the plaintiff became Home-School Liaison Coordinator at B.C.C.. In the circumstances of this case I find it to be of considerable significance that the duties of the holder of this important and responsible post were spelled out in the “job description” as being, inter alia, “to consult, liaise and collaborate with the Principal” of B.C.C.. It is further of significance that the plaintiff told the court that she regarded these as merely guidelines and not necessarily as binding on her. In May 2002, the plaintiff was elected to and served a three year term as a member of the Board of Management of B.C.C., as one of two teacher representatives on that Board. In October 2004, she commenced a four year degree course in counselling and psychotherapy. This involved some limited absences from work. Over the years from 1980 onwards the plaintiff had, through evening courses, obtained diplomas in work related skills such as drugs awareness and personal development counselling. In September 2005, she was appointed learning support teacher at B.C.C.. I find that the evidence clearly establishes that up to this point the plaintiff was regarded by her colleagues at B.C.C. including Dr. C. as a most dedicated and progressive teacher who had done enormous work in extending the educational services provided by B.C.C. to deprived families and especially to children at risk.
8. Unfortunately, all of this came to an end in October 2005, when the plaintiff was unsuccessful in her application for one of four category “A” posts of responsibility within B.C.C.. I find that the plaintiff consider it most unjust that she should have been passed over for these posts having regard to her qualifications, her seniority and her record of exemplary and innovative service as Home-School Liaison Coordinator. She attributed her lack of success to the malign influence of Dr. C.. I accept the evidence that Dr. C. took no part whatever in the actual decision making and, had no vote in the selection of the successful candidates. I accept that he was present at the meetings of the Appointments Committee as secretary and to keep the record. However, there was compelling evidence before the court which I accept that even if Dr. C. took no part in the selection process he totally approved of the result, which he did not wish to see changed. He then made what can only be described as a series of calamitous blunders which would cause a reasonable observer, reasonably to conclude that he was determined that the plaintiff would not under any circumstances be awarded one of these category “A” posts of responsibility in B.C.C.:-
He advised the plaintiff incorrectly, though I am quite satisfied not maliciously, that she could not appeal this decision.
On the 9th November, 2005, a letter under his signature was sent congratulating the successful applicants when, I am satisfied he knew of the plaintiff’s appeal against the decision. I find his explanation for this action unconvincing. In a letter of equal date he apologised to the plaintiff, but then cast doubt on the sincerity of this apology by notifying these teachers of meetings involving “A” post issues on the 16th November, 2005, and the 23rd November, 2005.
He prevailed on a member of the teaching staff of B.C.C. who had been a friend of the plaintiff for more than twenty years to endeavour to persuade her to withdraw her appeal and to apply for a “B” category post which he indicated she could be assured of getting. This offer was very properly declined by the plaintiff. This other teacher, very moved, told the court that she realised in hindsight that she should not have done this as it would probably result, as it did in the loss of the plaintiff’s friendship.
9. I find on the evidence that the plaintiff, who with very good reason, regarded herself as a very senior and experienced teacher who had contributed greatly to the work of B.C.C. felt deeply hurt, disappointed, humiliated and betrayed by these actions of Dr. C.. I find that the plaintiff reacted by deciding to have as little personal contact with Dr. C. as possible. On the 30th October, 2005, the plaintiff appealed successfully against the procedure adopted in filling these “A” posts. The plaintiff was not successful in obtaining one of these posts in the subsequent re-selection process. For his part, I am satisfied, that Dr. C. perceived the plaintiff’s appeal against the “A” post appointments, which I am satisfied on the evidence was entirely unprecedented, as a further going “beyond and outside him” by the plaintiff and, as a challenge to his authority as Principal of B.C.C.. I find that his reaction was to behave thereafter towards the plaintiff in a hostile and dismissive manner and to disparage and marginalise her in the eyes of other teachers and members of the non teaching staff at B.C.C.. Unfortunately also, those colleagues whose promotions to “A” posts of responsibility was jeopardised by the plaintiff’s appeal and their friends on the teaching staff also ostracised the plaintiff.
10. Specific events of which the plaintiff complains and which occurred between October 2005 and September 2006, – the music examination incident; being urgently summoned to Dr. C.’s office during an inspection by an Inspector of the Department of Education; unwarranted requests to attend at the college office and, especially the forcing open of the door of her office and the removal to a different room of her effects including very confidential files in July 2006, during the summer vacation, – an action which elicited a letter of complaint from the college committee of the Teachers Union of Ireland dated the 11th December, 2006, – all served to worsen this totally undesirable state of affairs.
11. I do not accept the bona fides of the explanation offered for the admitted entry by one of the college caretakers, acting on the instructions of Dr. C., into the plaintiff’s office in B.C.C. by slipping the lock with a knife and, the moving of the contents of that office to the Home-School Liaison room. Absent any emergency, ie. fire or flood or, faced with an inability after reasonable and proper attempts to contact the plaintiff and a pressing need in the interests of the college to have the rooms interchanged, what was done on this occasion on the instructions of Dr. C. was high handed and inexcusable. The fact, which I accept, that the college caretaker moved everything very carefully and put everything in exactly the same position in the other room and did not open anything does not mitigate the enormity of this conduct in the least. Neither does the fact that the other teacher made no complaint or that the plaintiff was in any event returning to the Home-School Liaison room at the start of the new term.
12. In addition, the plaintiff in retrospect, now regarded the September 2005, problem in securing what she regarded as promised funding by B.C.C. for the academic costs of the second year of her degree course in counselling and psychotherapy, as yet a further example of harassment and bullying of her by Dr. C.. The Investigating Officer and the Appeal Board appointed and constituted in accordance with the terms of the Code of Procedure held that these events were not shown to have involved bullying and harassment as defined in the Code. It is there defined as a, “destructive and malicious attempt to target a particular individual”. I have already ruled that so far as these events are concerned the plaintiff is bound by these findings of the Investigating Officer and the Appeal Board which, if the issue had fallen to be determined by it, are in accordance with the evidence led before this Court.
13. As almost invariably occurs in such divisive situations some teaching staff members of B.C.C., some members of the Board of Management of B.C.C. and, even some persons from outside B.C.C. who in the course of their official duties became involved in these events, came to take a partisan stance in favour of the plaintiff or of Dr. C.. I found the evidence of a number of witnesses in this case to be unreliable and therefore unhelpful for this reason.
14. Between the 31st August, 2006 and the 27th March, 2007, the plaintiff was absent from work and furnished each week a medical certificate from her General Medical Practitioner, Dr. Philip McMahon, that she was suffering from work related stress. The quite extraordinary manner in which these certificates were furnished, – they were found by the clerical officers each Monday morning pushed under the door of the general office and not given or sent to the Deputy-Principal the person entitled to require and to receive them, – demonstrates in my judgment the continuing concern on the part of the plaintiff to avoid any risk of having to communicate personally with Dr. C., even to the extent of refusing to furnish these very important documents from her own perspective directly to management. The clerical officers further informed the court that each Monday morning a man or a woman would telephone the general office and state that the plaintiff would be absent from work that week. These callers never identified themselves to the clerical officers.
15. I find utterly indefensible, the manner in which the plaintiff chose to return to work at B.C.C. on the 28th March, 2007. She must have realised that this was bound to be seen by Dr. C. with every justification as a calculated and wholly deliberate insult to him as Principal of the college. I accept the evidence of the Rev. Chairman of the Board of Management of B.C.C. at the time, and, the evidence of the present Chairperson of the Board who between them have each 30 years experience in community/comprehensive schools and large private schools that the manner of the plaintiff‘s return to B.C.C. after an absence of 209 certified days was “unbelievable and totally unacceptable”. On the 27th March, 2007, the plaintiff’s present Solicitors acting, one must infer on her instructions or with her consent, sent by Email a letter to the Rev. Chairman of the Board of Management of B.C.C. at his private address notifying him of her intention to return to work on the following day. I accept the evidence of the addressee that he did not receive this communication until after the plaintiff had in fact returned to work. By a letter dated the 12th April, 2007, he wrote to the plaintiff’s Solicitors notifying them of this and asking why no notice of her intended return to the college had been given to Dr. C..
16. I find on the evidence of Dr. C., the former and the present chairpersons of the Board of Management of B.C.C. and the Deputy-Principal of B.C.C. that Dr. C. was entitled to receive at least some days advance notice that the plaintiff intended to return to work on the 28th March, 2007. I find that he was in fact entirely unaware that she had done so until they met accidentally in a corridor some 30 minutes, on her own evidence, after she had entered the college. On the balance of probabilities I am prepared to find that this extraordinary behaviour on the part of the plaintiff was not, as Dr. C. perceived it, a conscious and deliberate attempt on her part to insult him and to undermine his authority as Principal of the College but was a further indication of her anxiety about communicating with him. In my judgment her failure to notify D. C. in advance of her intention to return to work is not explained or excused by her having proffered a medical certificate of fitness to return to work and a further certificate from Dr. McMahon covering her absence from work in the previous week, to the Deputy-Principal in the staff room earlier that morning and, being told by him to give them in at the office later in the day. I am satisfied on the evidence that apart from her failure to give proper notice to Dr. C. the plaintiff’s return to work did not in fact give rise to any staffing or rescheduling difficulties in the college on that day.
17. I accept the plaintiff’s evidence that Dr. C. said to her, “What’s this, what are you doing here, who knows you are back, did you inform the Board of Management”. There can be no doubt but that Dr. C. was entitled to put these questions to the plaintiff and even though the manner in which they were put may have been lacking in diplomacy and somewhat brusque, nonetheless I do not consider that in the extraordinary circumstances it amounted to bullying or harassment of the plaintiff. I am prepared to accept the plaintiff’s evidence that Dr. C. spoke loudly on the occasion and even turned red in the face, even though I have had an opportunity of closely observing him in various circumstances throughout the trial of this action and I never noticed him becoming red in the face. However, there was evidence which I accept, from a number of teachers who as members of the Teachers Union of Ireland had occasion to become involved in these differences between Dr. C. and the plaintiff, that on a number of occasions in meetings with Dr. C. he behaved with considerable and in their opinion unwarranted aggression towards them. However, unlike the case of the plaintiff, these exchanges all appear to have ended amicably and with handshakes all around. Given the sudden unexpectedness of his encounter with the plaintiff, his immediate assumption that she was back at work and, his almost certain anger and resentment at not having been notified in advance by the plaintiff that she was coming back to work, I think it not all unlikely that Dr. C. spoke loudly and aggressively as the plaintiff alleges. I do not however, accept that he became physically aggressive and, “came right up against her” as she claimed in her evidence. I find this to be improbable. In describing the difficulties which arose in September 2005, in relation to the provisions of funding for the second year of her degree course, the plaintiff claimed that during a meeting with Dr. C. in his office, he had become aggressive, had flung down his keys, had jumped up from the table, red faced and with eyes blazing and had invaded her body space. However, she made no complaint about this alleged behaviour at the time. In fact she agreed that things were good with Dr. C. at that time. On the 28th March, 2007, the confrontation with Dr. C. had occurred in an open corridor in what appears to have been the most public part of the College, where everything occurring was capable of being observed by other teachers, non teaching staff, pupils or even parents of pupils. Regardless of how he may have felt on the occasion, I do not regard it as credible that Dr. C. if he had any thought at all for his position as Principal of B.C.C. would have behaved in such a place in the manner suggested by the plaintiff.
18. The plaintiff gave evidence that her answer to these questions by Dr. C. was to say “I am not talking to you unless someone else is present”. She explained this answer by telling the court that she needed another person to be present so that person could be a witness to what Dr. C. was saying and doing as he would later deny both. The plaintiff denied that this was a pre-meditated response on her part. I am unable to accept this. The evidence adduced in relation to other incidents after the 28th March, 2007, together with this incident satisfied me that the plaintiff returned to B.C.C. with a plan to avoid contact with Dr. C. wherever possible and where not possible to stand up to him and insist that any communication between them take place in the presence of some third party acceptable to her. I find it also of significance that this incident was immediately followed by a letter from the plaintiff’s solicitors to the Board of Management of B.C.C. dated the 30th March, 2007.
19. After this exchange the plaintiff told the court that she noticed that the door of the business studies room, about ten feet away, was open. She entered this room where a male colleague, (and one of the Teachers Union of Ireland College Committee), was teaching a class. She told the court that her purpose was to ask this teacher to watch while she went down the corridor as she felt stressed and afraid. I am unable to accept that this as the reason why the plaintiff went into her colleague’s room. I am satisfied that she went there, not as Dr. C. perceived it to convey negative information about him in front of a class, but pursuant to her plan to involve a third party immediately in all confrontations which she might have with Dr. C.. I am satisfied on the evidence that this colleague was discomfited by the plaintiff’s sudden intrusion into his class and was most anxious that she should not linger in the room. I accept this teacher’s evidence that the plaintiff was quivering and appeared to be fighting back tears and had said to him, “He is at me again, its happening again”. I also accept this teacher’s evidence that as they were speaking a knock came to the door and Dr. C. put his head into the room, beckoned this teacher over to the door and said to him “You cannot have people invading your room, you’d want to look after yourself”.
20. I am satisfied that this teacher, who had been a member of the Teachers Union of Ireland Committee that had spoken to Dr. C. in 2006, on behalf of the plaintiff, reasonably and rationally interpreted this statement by Dr. C. as a threat, that he would suffer some detriment for speaking to the plaintiff and not insisting that she leave his room immediately. I find that Dr. C. had full authority to circulate a notice to all the teachers that they should not enter a colleague’s classroom while a class was in progress. I am satisfied that on this occasion Dr. C. was referring solely to the plaintiff whom he disparagingly described as having “invaded” this other teacher’s classroom. I find that this intervention at this time and in these terms by Dr. C. was a destructive and malicious targeting of the plaintiff and amounted to bullying of the plaintiff within the definition of the March 2003 Code of Practice to which both Dr. C. and the plaintiff had subscribed and had invoked. But apart altogether from that definition in my judgment these words were hostile, offensive, unnecessary and disparaging to the plaintiff who was a very senior teacher in the college and would amount to “bullying” within the meaning of the 2002 (now 2007) Code of Practice for Employers and Employees on the Prevention and Resolution of Bullying At Work, or even within the ordinary dictionary definition of that word. In my judgment a particularly vicious form of bullying involves isolating the victim in the work place by influencing others by actual or suggested threats to their own interests and by undermining the victim’s standing in the organisation and amongst colleagues by disparaging references. In my judgment this was the first indication of a firm determination on the part of Dr. C. to brook no positive interference, as he saw it, by the plaintiff in his management of the college.
21. The plaintiff told the court and, this teacher accepts, that the plaintiff left his classroom and ran down the corridor and into the ladies restroom which was about twenty feet away. He said that Dr. C. was not in the corridor at this time. I accept the evidence of Dr. C. that he had gone back to his office and had telephoned the Deputy-Principal and the Rev. Chairman of the Board of Management to advise them of what had occurred. I accept his evidence that he did not know when the plaintiff had left the classroom or where she had gone. The plaintiff gave evidence that when she emerged from the ladies restroom Dr. C. was waiting outside the door. She said that she walked down the corridor and he followed. She then ran into the home-School Liaison room and into her office adjoining that room and locked the door. Using her mobile telephone she immediately contacted two female colleagues, who were the then teachers’ representatives on the Board of Management of B.C.C. When they arrived she unlocked the door and told them what had occurred.
22. I reject as utterly improbable this evidence of the plaintiff that Dr. C. had waited outside the ladies rest room for ten minutes until the plaintiff re-emerged. Dr. C. told the court that the first time this suggestion had been made was during the hearing of the action. I doubt very much if even the most crass and insensitive pupil would do such a thing. While in that room the plaintiff could not have known where Dr. C. was. I believe that it was entirely coincidental that Dr. C. was walking down the corridor when she re-emerged from the ladies restroom. Dr. C. is a married man. He is, as the Rev. former Chairman of the Board of Management very aptly described him, “the Managing Director” of a considerable enterprise. The door to the ladies restroom is on a corridor of the college along which all manner of persons pass and re-pass. It is in my view therefore, an indication of what Dr. Mohan described as “disturbed perceptions” that the plaintiff should make such an allegation against Dr. C..
23. Unfortunately, the matter did not end here. The plaintiff and one of the other teachers whom she had summoned gave evidence that after the plaintiff had unlocked the Home-School Liaison room door, they saw Dr. C. looking in the window of the room from the yard outside the window. I am satisfied that the evidence establishes that this window is approximately eight feet in length and eighteen inches in height. It is made of Perspex, approximately one third of an inch thick which over the ten years of its existence had become discoloured, yellowed and clouded. In addition this window is covered throughout its length by very old and dusty thick net curtains hung in place in the 1970s. Further, the window is generally very dusty on the outside. I am satisfied on the evidence that during daylight hours a person inside this room looking out could only see the shadow of someone outside the window looking in with not even sufficient outline definition to determine whether that person was male or female. If the plaintiff and this other teacher saw someone outside the window on this occasion, I am satisfied that because of the previous events they surmised that it was Dr. C.. I accept his evidence that he did not go out into this yard and look in the window of the Home-School Liaison room.
24. I am satisfied that the events of the 24th October, 2007, when the plaintiff was recorded in the college attendance book as having been absent from work when she was in fact attending an authorised “In-school training course” and ought to have been marked “In service” was a simple mistake. I am also satisfied on the evidence that this mistake was rapidly corrected and that the plaintiff suffered no financial loss as a result of the error. I do not accept that this incident was deliberately contrived by Dr. C. to bully or to harass the plaintiff.
25. On the 20th November, 2007, a further confrontation occurred between the plaintiff and Dr. C.. The parent of a pupil in the school was loudly abusing another teacher for disciplining her son, (he had told that teacher to “shut up”). I find on the evidence, particularly by reference to a contemporaneous note made by the teacher in question and to a letter written by her to the Board of Management and dated the 13th December, 2007, that Dr. C., who just happened to be in the vicinity, heard the noise and came into the classroom and tried to mediate between this teacher and the parent. I accept the evidence of the teacher that she then noticed the plaintiff, with whom she was not on speaking terms, standing in the doorway of the classroom. Dr. C. gave evidence, which I accept, that the plaintiff ought not to have been there at all. I accept the evidence of this teacher and of Dr. C. that he was insisting that the parent go with him to his office to discuss the matter. Instead this parent ran over to the plaintiff who asked her if she was all-right to which the plaintiff replied, “Do you see what’s happening here”. The plaintiff told the court that as Home-School Liaison Coordinator she considered that she had a duty to represent all disadvantaged parents. I accept the evidence of Dr. C. that the plaintiff then advised the parent not to go with Dr. C. to his office unless someone else also went and that she should write to the Board of Management of B.C.C. about the matter. I am satisfied on the evidence that the parent then said that she would not go with Dr. C. to his office unless the plaintiff accompanied her. This was not acceptable to Dr. C.. I find on the evidence that he went over to the plaintiff in the doorway and said to her, “I am giving you an order, I am directing you to return to your room”. The plaintiff returned to her room and the parent went with Dr. C. to his office. Later the teacher was sent for and the parent apologised to her and they shook hands. I find that the plaintiff had no reason to come to or to remain in the door of this teacher’s classroom and, had no right or duty to interfere as she did. Her advice to the parent in the circumstances was grossly irregular, offensive to Dr. C. and, a challenge to his authority as Principal of the College. I find that Dr. C. on this occasion acted properly and proportionally and entirely within the scope of his authority as Principal of B.C.C. I find that on this occasion he neither bullied nor harassed the plaintiff.
26. I find that the quite extraordinary events which occurred at B.C.C. on the 26th November, 2007, came about because the plaintiff was by this time in effect working entirely independently of Dr. C. and the Deputy-Principal of the College. An aspect of this unsatisfactory state of affairs was that the plaintiff was seeking to adhere to a time-table which she had operated prior to September 2005, or, to a new time-table prepared for her by another teacher, but which had not been approved by the Deputy-Principal or even seen by him. I find that the Deputy-Principal, whose sole prerogative it was to approve the daily time-table for the entire College was now also being avoided by the plaintiff who had come to regard him as a supporter of Dr. C.. I find that the Leaving Certificate class which was scheduled, by reference to the college time-table, prepared by the Deputy-Principal, to use the computer room in the College at the time was unable to enter this room because the door was locked and the room was occupied by the plaintiff who was teaching computer skills to three parents of pupils at the college as part of the Home-School Liaison programme. I do not consider it necessary to determine how to by whom the door came to be locked. One of the school caretakers gave evidence that and had unlocked the door to this room. He saw the plaintiff entering the room and he had informed her that by reference to the daily time-table which he had been given that morning by the Deputy-Principal that another class was due to use the room. This class of about fifteen pupils had then arrived. The caretaker said that he went and told the Deputy-Principal that there seemed to be a double booking and that this class was unable to access the computer room and was standing about in the corridor. Significantly, the Deputy-Principal told the court that he had said to Dr. C. that he would deal with the matter as it was his problem and, accompanied by the caretaker immediately went to the area. For some unstated or unexplained reason, Dr. C. had followed. There can be no doubt on the evidence that the door of the computer room was now locked and that the Deputy-Principal knocked loudly on the door which was not opened. As neither the Deputy-Principal nor Dr. C. had keys with them, the caretaker who had a key then unlocked the door to this classroom. I am satisfied that the Deputy-Principal entered the room first followed by Dr. C. I am satisfied on the evidence that they did not “bang” into the room shouting and waving their hands about as alleged by the plaintiff.
27. I find on the evidence, with particular reference to a contemporaneous note made by Dr. C. on the 26th November, 2007, that as soon as he and the Deputy-Principal entered the room, the plaintiff, who had been standing beside a parent at a computer console, turned towards them saying loudly, “Here’s the Principal and the Deputy-Principal coming to bully me”. I am satisfied that the Deputy-Principal then told the parents that there had been a misunderstanding over booking and asked them to turn off the computers and to leave the room as another class was waiting. The parents hesitated, – a wholly natural reaction in the circumstances, – and I accept that Dr. C. and the Deputy-Principal then moved around the room saying “Come on, come on, out you go, out you go”. The plaintiff then protested that they were properly in the room as she had booked it and she pointed to a time-table fixed to the back of the door. The Deputy-Principal told the court that he had examined this A-4 size document and that he had never seen or approved of it. The plaintiff then told the parents not to leave the room and to continue with their work. Dr. C. pointed out that he was the Principal of the College and insisted that they leave. One of the parents told the plaintiff to telephone the Department of Education and the plaintiff had replied that she did not know the number. The evidence clearly establishes that Dr. C. then said to this particular parent, “Turn off that computer or I will call the gardaí”. To this the parent responded, “Well get them then”. The plaintiff then used her mobile telephone to summon the two teachers who were then serving as Teachers Representatives on the Board of Management of B.C.C.. Dr. C. said to the plaintiff “Don’t get another teacher out of her class”. One of these ladies then arrived followed very shortly by the other. One of them suggested to Dr. C. that perhaps both groups could use the computer room simultaneously. Dr. C. would not agree to this proposal and I am satisfied that his reasons for not agreeing were rational and reasonable. The parents then left the computer room and went with the plaintiff to the Home-School Liaison room. One at least of the parents wrote to the Board of Management of B.C.C. about this incident.
28. In my judgment, the behaviour of Dr. C. towards the plaintiff on this occasion was oppressive and bullying. However extremely provocative the plaintiff’s own behaviour may have been and however much her actions may have been interfering with the smooth running of the college on the 26th November, 2007, she should not have been publicly disparaged and humiliated by Dr. C. in front of the parents present. Her countermanding his direction to the parents to leave the computer room may properly be regarded as a amounting to scandalous insubordination. However, in my view it did not cause the bullying but was a consequence of it. I find that there was no necessity at all for Dr. C. to have been in the room on this occasion. The Deputy-Principal could have dealt with the matter as a simple double booking of the computer room, something which the evidence showed had happened in the past. But having chosen to enter, Dr. C. should have disregarded, for the moment at least, the locked door and the plaintiff’s first remarks, explained the position to her with regard to the other class and asked her to inform the parents present of the difficulty and invite their cooperation in the matter. In the event, he treated her and the parents as trespassers and trouble makers. It is significant that Dr. C. told the court that he had felt slandered and undermined and that the plaintiff was embarking on a course of confrontation with the management. Dr. C. later telephoned the Rev. Chairman of the Board of Management who promised to raise the matter at the meeting of the Board scheduled to take place on the 12th December, 2007. If it was raised no action was taken. By letters dated the 28th November, 2007, and the 14th December, 2007, Dr. C. invited the plaintiff to meet him and the Deputy-Principal to discuss the incidents of the 20th November, 2007 and the 26th November, 2007. However, the plaintiff was unable to see her way to attending such a meeting insisting that the matter was something which required to be dealt at Board of Management level and involving her solicitors.
29. The evidence in this case establishes, in my judgment, that the plaintiff considered that she was entitled to very considerable autonomy in the running the Home-School Liaison Programme at B.C.C.. It was never suggested by anyone during the course of the hearing that the plaintiff was anything other than a skilled, experienced and dedicated teacher. However, she no longer communicated with Dr. C. the Principal of the College or with the Deputy-Principal of the College. Having retaken her place on the C.A.R.E. Team on the 17th April, 2007, on resuming her position as Home-School Liaison Coordinator, the plaintiff, following a number of disagreements with other members of the Team who had complained that she was dominating the proceedings at meetings and, because she said that the “body language” employed by other Team members was discouraging her at these meeting, ceased to attend the meetings or to report to the CARE Team after the 13th October, 2007. The effect of this was that from the 13th October, 2007, onwards nobody in authority in B.C.C. really knew where the plaintiff was or what she was doing during her working day. I am however satisfied that she was carrying out her duties as Home-School Liaison Co-Coordinator with the same dedication as she had always devoted to her work.
30. Dr. C. for good and sufficient reasons in my judgment, in September, 2007, had declined to permit the plaintiff to function in the college in the specific role of a Counsellor/Psychotherapist. He advised her that it was ultimately a matter to be decided by the Board of Management of B.C.C., but that he would feel obliged to argue against such an appointment. I do not accept the plaintiff’s contention that by permitting her to do the degree course, Dr. C. had thereby agreed that she would become a Counsellor in the College. Unfortunately, the plaintiff saw this as yet another form of bullying of her by Dr. C. I am quite satisfied that it was not. His decision was taken within the scope of his authority and, as I have already found for reasons which were both rational and reasonable.
31. I find that since her return to B.C.C. on the 28th March, 2007, the plaintiff had been continuously treated by Dr. C. in a bullying and aggressive manner. She had been marginalised and treated by him with unrelenting hostility and contempt. This “freezing out” as she aptly described it caused the plaintiff anxiety and stress. She found particularly hurtful and damaging the fact that when addressing others in her company Dr. C. totally ignored her as if she was not there at all. For anybody, but especially a woman and a senior teacher in the college, this was a particularly savage form of bullying, targeting her and clearly designed to break her will to disagree with any future decisions of his. In all his dealings with the plaintiff after the 28th March, 2007, I find that Dr. C. behaved like an offended tyrant and not as a fellow teacher and long time colleague of the plaintiff who had been appointed to the senior management position in the college. It is certainly not an excuse for this conduct on his part that the plaintiff’s own behaviour in this period, in general and towards him in particular, was inappropriate and, should not have been tolerated by the Board of Management of B.C.C..
32. I find, that at the end of November 2007, Dr. C. had started to become anxious and concerned because of his almost total lack of information as to where the plaintiff was or what she was doing during college hours in her capacity as Home-School Liaison Coordinator. I accept his evidence that he had come to be concerned that the college and its Board of Management might become involved in legal or other problems arising out of the plaintiffs’ unreported and unsanctioned activities as Home-School Liaison coordinator. I accept his evidence that he was particularly anxious because were such to occur he considered that he would be criticised or held responsible because as Principal of the college he had an obligation to the Board of Management of B.C.C. and to the Department of Education to ensure that all teachers were fully and properly discharging their duties. In these litigious and confrontational times I am satisfied that this was a genuine and reasonable concern on the part of Dr. C..
33. Considerable controversy arose during the hearing of this action as to whether a letter dated the 15th December, 2007, from Dr. C. to the Rev. Chairman of the Board of Management of B.C.C. setting out in detail the problems he was experiencing with the plaintiff in the day to day management of the college, was in fact written on that date or whether it was written later and backdated in order to justify his employment of a private investigator to carry our surveillance on the plaintiff. I am satisfied on the evidence, particularly by reference to the contemporaneous diary entry by the Rev, Chairman of the Board of Management that this letter was handed to him by Dr. C. in the college on Wednesday, 19th December, 2007. I am also satisfied that the Rev. Chairman adverted to this letter at the meeting of the Board of Management held on the 10th January, 2008, and, that incomplete transcripts of this letter on yellow paper were on the Board table at this meeting but were not actually distributed to the individual Board members. I am satisfied that there was a brief discussion about this letter at the meeting and that the Board decided to invite Dr. C. and the plaintiff to attend a meeting of the Board on the 17th January, 2008 and explain their respective difficulties. I am satisfied on the evidence that Dr. C. was willing to adopt this course. However, by a letter from her solicitors, the plaintiff indicated that she was not prepared to attend at such a meeting without her solicitor being present as she had concerns about the impartiality of the Board. This was unacceptable to the Board and the meeting did not take place and no further action was taken by the Board of Management.
34. The letter dated the 15th December, 2007, again came before the Board of Management of B.C.C. when a further letter of complaint dated the 2nd April 2008 from Dr. C., and which referred to his earlier letter of the 15th December, 2007, was placed before the Board of Management by its solicitors. However, by this time the matter had passed into the field of litigation and the Board of Management did not consider it further until the 1st October, 2008. On that date the Board of Management under its present Chairperson, having taken advice from the National Coordinator of Home-School Liaison Schemes wrote to the plaintiff seeking details of plans, records, identity of families visited and other matters. After further written requests the matter concluded with a letter from the solicitors for the plaintiff to the Board of Management stating that, “As soon as she is medically fit we will hold a consultation to deal with your queries”. This quite extraordinary situation was resolved by the plaintiff requesting and being granted permission by the Department of Education to take early retirement.
35. This problem as to the authenticity of the letter dated the 15th December, 2007, of the letter dated the 2nd April, 2008, and of the minutes of the meeting of the Board of Management on the 5th December, 2006, all arose because several different texts of these letters and of these minutes were disclosed and put in evidence before the court during the course of evidence. While I consider that the trenchant criticism and close scrutiny by Senior Counsel for the plaintiff of what appears to have been a quite extraordinary practice on the part of Dr. C. of adding to these documents after they had been sent or circulated was entirely justified, I am not satisfied that this was done with a deliberate intent to mislead, though in fact that could well have been the result. I accept that the partial transcription of the letter of the 15th December, 2007, on yellow paper was simply that and nothing more and that it is quite unnecessary to endeavour to discover why or by whom this was done. I am satisfied that this letter of the 15th December, 20007, was a wholly genuine attempt on the part of Dr. C. to persuade the Board of Management of B.C.C. to take action in the matter. I am equally satisfied that what they did, though well intentioned, was altogether too little and too late.
36. It is unnecessary for me to consider what other course Dr. C. might have adopted in these circumstances. I am satisfied that he had endeavoured but with no success to persuade the Inspectorate of the Department of Education to become involved. Suffice it to say that I find that the course which he did in fact choose to pursue was wholly inappropriate. I find that the decision of Dr. C. on the 10th January, 2008, to engage the services of a private investigator for four days in early February 2008, to carry out a covert surveillance on the plaintiff during college hours amounted to a most serious harassment of the plaintiff by him. The activities of this private investigator were brought to an end by the intervention of An Garda Síochána and by an Order of this Court (Laffoy J.) made at the suit of the plaintiff on the 10th April, 2008. I find that the plaintiff has not established on the balance of probabilities that on the 15th September, 2008, and the 16th September, 2008, Dr. C. in breach of the Order of this Court made on the 10th April, 2008, again himself followed the plaintiff.
37. I accept the evidence of the plaintiff that on a number of occasions in December 2007, in the course of her work as Home-School Liaison Coordinator at B.C.C. she found it necessary to drive to the two Resource Centres associated with the college. She claims that on a number of these occasions she was followed by Dr. C. in his motor car. I am satisfied that she reported her concerns to the two teacher representatives on the Board of Management of the B.C.C. and to the three college committee members of the Teachers Union of Ireland. They do not appear to have taken any action in the matter. One must acknowledge the right of Dr. C. as Principal of B.C.C. to visit these Resource Centres whenever he saw fit or the occasion required. Dr. C. denied that he followed the plaintiff on any occasion. There seems little doubt that on one occasion when the plaintiff claims Dr. C. had followed her to one such Resource Centre that he was in fact there to meet members of An Garda Síochána in relation to a break-in and serious vandalism at the centre. I am not satisfied that the plaintiff has discharged the onus on her of establishing on the balance of probabilities that she had been bullied by Dr. C. by being monitored and stalked by him in this fashion.
38. I am satisfied from the evidence and, from my observations of the plaintiff in giving evidence, that she is a lady well capable of asserting and defending what she considers to be her rights. Nonetheless she is still a woman and for a woman on her own to have two men following her about in a car during her working day must be been a truly terrifying experience for her. I unhesitatingly accept her evidence with respect to these events. It is necessary to give a brief summary of what I accept occurred on the 7th February, 2008, and some other days.
39. When the plaintiff drove away from her home on the 7th February, 2008, at 09.15 hours she felt that she was being followed by another motor car with two occupants. She took various evasive measures but this care remained following hers. She made a mobile telephone call to her daughter who appears to have taken the not unreasonable view that her mother was suffering from over vigilance due to work related stress and sought to reassure her. The plaintiff was not reassured and made a mobile telephone call to her brother and explained her fears to him. He advised her to keep a close watch on this car and to keep in contact with him. When the plaintiff parked her motor car at B.C.C. she observed this other car being parked nearby.
40. On entering the college the plaintiff told one of the teachers representatives on the Board of Management whom she felt she could trust, what was occurring. She then informed one of the clerical staff in the college office that she was going to one of the Resource Centres. On arrival at this Resource Centre the plaintiff noted the same motor car parked nearby. On concluding her business at the Resource Centre the plaintiff carried out about seven home visits as part of her duties as Home-School Liaison coordinator. This car continued to follow her even when the house being visited by the plaintiff was situated in a cul-de-sac.
41. The plaintiff noted that one of the men in this car was wearing a yellow coloured helmet of a type worn by builders. I accept the plaintiff’s evidence that she felt hunted, threatened and terrified. She made another mobile telephone call to her brother. Acting on his instructions she noted the registration number of the car that was following her and telephoned the emergency number and explained the situation to An Garda Síochána. Subsequent Garda intervention ascertained that the plaintiff was being followed a private investigator personally employed by Dr. C. without the knowledge or approval of the Rev. Chairman or of the Board of Management of B.C.C..
42. Despite being fully aware of the plaintiff’s long and totally uncharacteristic absences from work, in 2005, 2006 and 2007, medically certified on each occasion as being due to work related stress, which he knew, or would have known had he chosen to consider the matter, rendered the plaintiff very vulnerable to some form of mental illness such as nervous breakdown, Dr. C. arranged for this single lady to be stalked by a private investigator. I find that it was reasonably foreseeable by him, that if the plaintiff for whatever reason, accident, her own hyper vigilance or the ineptitude of the investigator, became aware of being pursued by an unknown male the effect upon her was likely to be so traumatic as to precipitate her, vulnerable as she was, into mental illness. It was not necessary that he should have been able to foresee the actual injury ultimately suffered by the plaintiff. For Dr. C. to have so acted, whether deliberately or with reckless indifference even though he was or ought to have been aware that mental harm to the plaintiff might result from his actions, amounted in my judgment to malicious targeting and harassment of the plaintiff. I find it significant that Dr. C. did not seek prior sanction from the Board of Management of B.C. C. for this extraordinary course of action. Even if he believed that members of the Board whom he considered to be well disposed towards the plaintiff might warn her of his intentions, he did not consult the Rev. Chairman of the Board as he had in the case of other difficulties with the plaintiff since the 28th March, 2007.
43. It is well established in this jurisdiction, both at common law and now by s. 15 of the Employment Equality Act 1998, that even if the Board of Management of B.C.C. did not know or could not reasonably have known (which was not the situation in the present case), that the plaintiff was being bullied and harassed by Dr. C. in the course of her work, it is still vicariously liable for the wrongful acts of Dr. C. once those acts were committed by him within the scope of his employment. If find that the Board of Management of B.C.C. did not authorise any of the acts of Dr. C. which I have held amounted to bullying or harassment of the plaintiff. The Board of Management of B.C.C. was not aware that Dr. C. had engaged the services of a private investigator to carry out covert surveillance of the plaintiff during the course of her work which I have found amounted to harassment of the plaintiff. However, all these acts took place during the official school day and, in my judgment were related to his work and were a wrongful way of performing the task which Dr. C. as principal of B.C.C. was authorised to perform, that is, to manage the business of the college. This involved ensuring that teachers were present and were carrying out their duties properly and responsibly. The Board of Management of B.C.C. decided at its meeting on the 6th March, 2008, having queried Dr. C. at length about the matter, that he had acted within the scope of his employment in engaging the services of the private investigator and in paying for those services out of a college fund administered by Dr. C. Therefore, the vicarious liability of the Board of Management of B.C.C. for the acts of Dr. C. is not an issue in this case. What are involved are issues of foreseeability, causation and damage.
44. On the 22nd December, 2006, Dr. McMahon who had been the plaintiff’s General Medical Practitioner since 1980 concluded that the plaintiff was then suffering from anxiety disorder: prior to this his diagnosis had always been one of stress due to being bullied at work. On the 1st September, 2006, he had advised the plaintiff to take time off from work to recover from this stress which he attributed to being bullied and harassed at work by Dr. C.. On the 27th March, 2007, Dr. McMahon was satisfied that the plaintiff was sufficiently recovered to return to work and he noted that she was very keen to do so. The plaintiff did return to work on the 28th March, 2007, and, despite the events described previously in this judgment, it was not until the 1st April, 2008, that she again felt a need to consult Dr. McMahon.
45. On this occasion the plaintiff complained of being very anxious, unable to sleep, distressed and worried. Her complaint was that she had been followed on her house visits as Home-School Liaison Coordinator by a private investigator engaged by Dr. C.. She felt very despondent that the Board of Management of B.C.C. would do nothing. On this occasion, Dr. McMahon formed the opinion that the plaintiff was bordering on depression. However, he did not prescribe anti-depressants or anti-anxiety medication. He told the court that this was his normal practice as he considered that drug therapy should always be the option of last resort because of the danger of a patient becoming drug dependent.
46. The plaintiff presented again on the 28th August, 2008, following the death of her father, to whom she was very close. On that occasion she told Dr. McMahon that she was, “still fighting for her work conditions and trying to reinstate her service to pupils and parents”. On the 2nd October, 2008, the plaintiff next visited Dr. McMahon. He found her depressed. She asked to be referred to Dr. Abbie Lane, a consultant psychiatrist. Dr. McMahon agreed. He told the court that since she had first become his patient in 1980 and despite a difficult marriage and a very traumatic separation, the plaintiff had never previously needed such a referral. Department of Education sick leave records show that Dr. McMahon issued medical certificates to the plaintiff on the following dates: 9th September, 2008, 10th September, 2008, 2nd October, 2008, 20th October, 2008, 27th October, 2008, 17th November, 2008, 24th November, 2008, 10th December, 2008, 22nd December, 2008, 9th January 2009, 19th January, 2009, 26th January, 2009, and finally on the 9th February, 2009.
47. In cross examination Dr. McMahon accepted that he had never diagnosed the plaintiff as suffering from clinical depression or from any form of psychological or psychiatric illness. He considered that the plaintiff was suffering from severe stress and anxiety which he considered to be a psychological crisis but not an illness. He considered that the plaintiff should see a consultant psychologist, but she asked to be referred to Dr. Lane. She was seen by Dr. Lane on the 10th November, 2008. Dr. McMahon told the court that he had last seen the plaintiff on the 4th December, 2008. On that occasion she had told him that she had decided that resuming work was out of the question. He said that he was not at all in favour of this. He hoped that the plaintiff would resume her work as a teacher which she obviously enjoyed and he tried to persuade her to this effect. He considered that it was too early for her to retire and that it was not in the best interests of her own psychological welfare to retire. He felt that on this occasion she could overcome her problems just as she had done in relation to the very traumatic separation in 1999/2000.
48. Dr. Lane, a consultant psychiatrist, told the court that she saw the plaintiff for the first time on the 10th November, 2008, on referral from Dr. McMahon. On presentation, the plaintiff appeared stressed and pale and wept frequently during the consultation. The plaintiff complained of down mood present all day every day for more than two weeks, lack of interest in or enjoyment of everyday things, disturbed sleep, loss of appetite, constant fatigue, lack of motivation and, poor concentration. Dr. Lane concluded that the plaintiff was suffering from severe clinical depression with an overlay to post traumatic stress disorder. Because of the plaintiff’s description of feeling hopeless and worthless, Dr. Lane considered that there was a possible risk of self-harm and endeavoured, unsuccessfully, to persuade the plaintiff to undergo a period of in-patient treatment. She therefore prescribed anti-depressant and anti-anxiety medication, – Lustral, – at the maximum permitted dosage.
49. Dr. Lane reviewed the patient at two monthly intervals thereafter. By March 2009, she noted that the plaintiff’s mood had improved somewhat, but that she was still anxious, depressed and tearful. Dr. Lane considered that the plaintiff was just about able to cope with the normal chores of day to day living and was not fit to return to work. Throughout 2009, Dr. Lane provided the plaintiff with cognitive behaviour therapy. By June 2010, Dr. Lane was satisfied that the plaintiff was considerably recovered: her mood was up, she had recovered motivation and interest in things, her enjoyment of life had returned and she felt more hopeful. However, she remained anxious at times and was subject to occasional flashbacks and nightmares of persons following her. Dr. Lane concluded that the plaintiff was no longer depressed and was able to go out on her own without being overanxious or over vigilant. At this time Dr. Lane considered that the plaintiff was physically and mentally able to return to work at B.C.C. but she remained, very concerned that the plaintiff might become re-traumatised by a classroom incident, a difficulty with a parent or, continuing friction with the college administration or with colleagues on the teaching staff.
50. Dr. Lane produced in evidence the referral letter dated the 3rd October, 2008, sent to her by Dr. McMahon. This letter referred to bullying and harassment at work and to the fact that the plaintiff’s father had died recently. Dr. McMahon also referred to the fact that on the previous day he had detected what he considered to be signs of a depressive illness. It was Dr. Lane’s expert opinion, which I accept, that given the plaintiff’s history, the death of her father was not the cause her symptoms, though it probably added to her low mood. The fact that these symptoms had continued even though the plaintiff was away from the work environment since the 1st October, 2008, was an indication to Dr. Lane of the severity of the plaintiff’s depressive illness. I am satisfied that Dr. Lane was not shaken in her opinion that there was no other reasonable or rational explanation for the plaintiff’s illness in her history, other than the alleged bullying and harassment. Dr. Lane told the court that the plaintiff had informed her that on the 20th October, 2007, the Investigating Officer under the Code of Procedure had found that she had not been harassed or bullied at work in relation to the matters then at issue. The plaintiff told Dr. Lane that she did not accept this conclusion and that the bullying and harassment by Dr. C. had continued despite the investigation. Dr. Lane conceded that the investigation and its outcome would have had a traumatic effect on the plaintiff. However, she stated that she was quite satisfied by reference to the entire history that this was not what had caused the plaintiff’s illness: in her opinion that was the workplace situation. Dr. Lane accepted that prior to 1st April, 2008, there had been no diagnosis of depression in the plaintiff’s case. She told the court that constant stress and anxiety can lead to depression and that when she saw the plaintiff for the first time on the 10th November, 2008, she had no doubt whatever but that the plaintiff was then suffering from a psychiatric illness, – serious depression.
51. Dr. Lane told the court that in order to form a diagnosis that the plaintiff was suffering from severe depressive illness on the 10th November, 2008, she had to be satisfied that her symptoms had commenced no later than two weeks prior to the date of the consultation. However, given the severity of the plaintiff’s illness on that date she was satisfied that the plaintiff must have been suffering from depression for a very considerable time before that, probably for as long as two years. I find it very significant that on the 1st April, 2008, – almost five moths before her father died on the 25th August, 2008, – the plaintiff was diagnosed by Dr. McMahon as “bordering on depression this time”. Dr. Lane stated that she was aware that the plaintiff had applied to the Department of Education in 2009, for leave to retire on the basis of, “permanent ill health”. Dr. Lane stated that she was not aware that Dr. McMahon had strongly urged the plaintiff not to retire. Dr. Lane told the court that she did not have any role whatever in the plaintiff’s decision to retire.
52. Dr. Lane told the court that she was satisfied that the plaintiff was also suffering from post traumatic stress disorder. She said that the causative trauma was the threat to the plaintiff’s career and therefore her security, the feeling of helplessness in the face of the continuous bullying and harassment and, the profound threat to her core values. Dr. Lane considered that the accumulation of these matters would be sufficiently traumatic to induce post traumatic stress disorder in the plaintiff. In the plaintiff’s case she felt that all the classic symptoms of post traumatic stress disorder had become evident within the expected period: the plaintiff had intrusive memories of the events, nightmares and flashbacks, she was hyper aroused and tense which manifested itself especially in the form of hyper vigilance and hyper alertness, she avoided returning to the College, going out on her own, or anything which reminded her of the trigger events. However, Dr. Lane did not give evidence that the plaintiff had suffered a psychiatric injury because of an immediate fear for her own safety consequent on being followed by the two men. Dr. Lane admitted that she did not seek copies of Dr. McMahon’s’ clinical notes. I accept her explanation that she would not do so unless the plaintiff had a history of mental problems in the past. Dr. McMahon told the court without any reservation or equivocation that the plaintiff, in his medical opinion had not suffered from any psychiatric injury while she was under his care. No medical data studies or literature was advanced in support of the contention that a feeling of helplessness in the face of a perceived threat, not to one’s personal safety but to one’s career and not from a single traumatic event but from an accumulation of events over a period of nineteen months would be a sufficient trauma to give rise to post traumatic stress disorder.
53. It is significant that in the work, “Understanding Mental Health (Blackhall Publishing: 2006), which she produced in evidence by her, Dr. Lane at chap. 2, p. 27 states in respect of “post traumatic stress”, that:-
“This is a common condition which occurs some weeks after a person has been involved in or has witnessed a traumatic event. Examples include being involved in a road traffic accident, being held at gunpoint, being involved in a fire or an explosion. Symptoms come on between two and six weeks following the trauma . . . (etc.).”
54. In the circumstances and having regard to the decision this Court in Mullally v. Bus Éireann [1992] I.L.R.M. 722 and of the Supreme Court in Kelly v. Hennessy [1996] 1 I.L.R.M. 312 I find that the plaintiff has not established, – the onus of proof being on her, – on the balance of probabilities, that she suffered post traumatic stress disorder as a consequence of bullying or harassment by Dr. C..
55. Dr. Mohan a consultant forensic psychiatrist, who gave evidence in the case for the defendant, told the court that he had a consultation with the plaintiff on the 2nd December, 2008, and that he had also considered the following documents: the Report of the Investigating Officer dated the 26th October, 2007, the Pleadings in the instant case, the Clinical Records of Dr. McMahon, Dr. Lane’s Report, the Department of Education Attendance records relating to the plaintiff and, the views of Dr. C. and of his Solicitors. He accepted that the plaintiff did not have a personality disorder. However, he considered that she demonstrated an impaired judgment and a distorted interpretation of work place events, coupled with a tenacious sense of personal rights out of keeping with reality and, an excessive regard for her contribution to B.C.C.. Dr. Mohan agreed that he had come to this opinion principally from his analysis of the report by the Investigating Officer.
56. Dr. Mohan accepted that stress and anxiety, such as that reported by Dr. McMahon in his clinical notes relating to the plaintiff could be a significant causative factor in the onset of depression. However, he felt that the fact that the plaintiff had continued to work after the incident involving the private investigator in early February 2008, until the 1st October, 2008, with only very few days absent was, more consistent with stress than with clinical depression. Dr. Mohan told the court that if the plaintiff was in fact suffering from severe depressive illness on the 10th November, 20008, as was the opinion of Dr. Lane, he considered that evidence of the onset of that illness would have to be sought at least six months prior to that date, but not as far back as two years. He noted that the plaintiff had received no medical treatment for depression prior to the 10th November, 2008. Dr. Mohan considered that the very considerable emotional stress and feeling of victimisation reflected in Dr. McMahon’s clinical records, compounded by feelings of disappointment and anger on the 26th October, 2007, following receipt of the Investigating Officer’s report, followed by the death of her father, to whom she was very close, on the 25th August, 2008, could be capable of causing the plaintiff to become depressed. However, he considered that there was no evidence on the medical record of severe and persistent symptoms, at any rate prior to the 1st April, 2008. It was his opinion that the plaintiff was suffering from anxiety and stress as a normal response to the pressures and problems in the work place.
57. I find on the balance of probabilities that the plaintiff has discharged the onus on her of establishing that she did suffer a psychiatric illness, in the form of clinical depression and, that a direct causative connection existed between that injury and the continuous bullying and harassment of her by Dr. C. from the 28th March, 2007, onwards. The evidence established that Dr. McMahon considered that the plaintiff was fit to return to work on the 28th March 2007, and he furnished a medical certificate to that effect. I accept his evidence that the plaintiff was herself most anxious to return to work at that time. On the 1st April, 2008, Dr. McMahon found the plaintiff to be, “bordering on depression”. This was almost five months before her father died. Undoubtedly she continued to work, but it is not at all unusual for persons suffering from depression to continue to work and from what I observed of this plaintiff, I am satisfied that this would be entirely in keeping with her character. I am prepared to infer that the distress which the plaintiff experienced following the death of her father as noted by Dr. McMahon in his clinical notes for the 25th August, 2008, may have temporarily lowered her mood further, if it was already low. However, I am satisfied from her personal and medical history and from the evidence of Dr. McMahon based upon his unique insight into her character and psyche, as her general medical practitioner for over 30 years, that this bereavement did not cause or materially contribute to the onset of her depression which was noted for the first time by Dr. McMahon a few weeks later on the 2nd October, 2008.
58. Dr. Lane treated the plaintiff for depressive illness from the 10th November, 2008, to June 2010, by which time she considered the plaintiff was fit to return to work. Dr. McMahon agreed and Dr. Mohan accepted that the onset of depressive illness would be consistent with the sort of work place problems which the plaintiff claimed she was experiencing at the hands of Dr. C.. There was no evidence at all to suggest that the plaintiff had a pre disposition to depression even if an older sibling suffered from that illness. The evidence of Dr. McMahon, in my judgment, entirely disposes of that suggestion. I find that Dr. Lane is correct in her conclusion that apart from the constant stress and anxiety suffered by the plaintiff between the 28th March, 2007 and the 7th February, 2008, culminating in the traumatic events of the 7th February, 2008, there is nothing in the plaintiff’s life to otherwise account for the clinical depression suffered her. It was not suggested during the course of the action that the plaintiff was feigning illness or exaggerating her symptoms.
59. Whatever would have been the position in 2005 or 2006, I am satisfied, and I so find, that on the 28th March, 2007, Dr. C. knew or ought reasonably to have foreseen that any bullying or harassment of the plaintiff carried a “materially substantial risk” of the plaintiff suffering a mental injury as a result and could by the exercise by the reasonable care have avoided that result. Dr. C. and the Board of Management of B.C.C. knew that the plaintiff had been absent from work for a number of weeks in November and December 2005, certified by Dr. McMahon as suffering from work related stress. They knew that between the 31st August, 2006 and the 27th March, 2007, the plaintiff had been certified by Dr. McMahon as unfit for work due to work related stress. In my judgment this history of occupational stress put Dr. C. on notice that the plaintiff was vulnerable to some form of mental injury if she was subjected to further stress arising from such as would inevitably follow from bullying or harassment at work. Dr. C., despite the poor start on the 28th March, 2007, could have apologised to the plaintiff for his outburst, welcomed her back and sought to effect a reconciliation between them or if that was not possible, to at least try to work out a modus viviendi with her. If it proved impossible to re-establish even a professional working relationship with the plaintiff, then Dr. C. should have immediately called on the Board of Management of B.C.C. to intervene and to insist that the plaintiff cooperated fully with him in carrying out her duties as Home-School Liaison Coordinator. This is something which a reasonable and prudent manager would have done in the circumstances. Dr. C. ought reasonably to have known in commissioning the surveillance, that if the plaintiff became aware that she was being followed about in public by two unknown men and became frightened as a result, there was a clear and substantial risk that she would suffer a nervous breakdown, post traumatic stress disorder, depression, illusional disorder or some other form of mental illness.
60. Apart from being vicariously liable for the actions of Dr. C. the Board of Management of B.C.C. owed the plaintiff a direct duty of care, as her employer, both at common law band by virtue of the provisions of the Safety Health and Welfare at Work Act 2005, to take reasonable care to prevent her suffering mental injury in the workplace as a result of being harassed or bullied by other employees if they knew or ought to have known that such was occurring. (Quigley v. Complex Tooling and Moulding Limited [2009] I.R. 349). I am satisfied that in the post 28th March, 2007, period the Board of Management of B.C.C. ought to have known, from correspondence from the plaintiff’s solicitors, correspondence from the parents of pupils in the college and, from the personal knowledge of several members of the Board involved in the day to day business of the college that the plaintiff was continuing to claim that she was being victimised, bullied and harassed by Dr. C.. For the same reasons to which I have adverted in the case of Dr. C., the Board of Management ought reasonably to have foreseen that there was a materially serious risk that the plaintiff would suffer some form of mental illness if the situation between her and Dr. C. was permitted to continue.
61. Despite this, the Board of Management of B.C.C. took no reasonable or proper steps as the plaintiff’s employer to address the situation. Following receipt of the letter dated the 15th December, 2007, from Dr. C. the Board of Management following its meeting on the 10th January, 2008, did invite Dr. C. and the plaintiff to meet the Board on the 17th January, 2008, and set out their respective grievances. I am prepared to accept the evidence of the Rev. former Chairman and of the current Chairperson of the Board of Management that the Board was not aware of the full extent of the problems existing and that neither the teacher’s representatives nor the Union representatives on the Board had formally raised the matter before the Board. Nonetheless, between April 2007 and the 10th October, 2008, the Board was aware that the plaintiff and Dr. C. were not communicating with each other, that confrontations were taking place between them and that this was essentially the same sort of situation which had formed the basis for the plaintiff’s complaint of bullying and harassment by Dr. C. on the 4th October, 2006. However, was apart from the single offer to meet the parties on the 17th January, 2008, the Board of Management took no positive action whatsoever to deal with the situation which the Deputy Principal in evidence described as “catastrophic, totally strange, unusual and unreal”. I find that this failure of the Board of Management to act as a reasonably careful and prudent employer would have acted permitted the continuous bullying and harassment of the plaintiff by Dr. C. to continue to the point where the plaintiff began to suffer clinical depression. Dr. C. told the court that he was driven by desperation to engage the services of the private investigator because of the failure to the Board of Management and the Department of Education to take any action in the matter. The evidence of the Rev. former Chairman of the Board of Management and the evidence of the current Chairperson of the Board suggests that the reason why the Board did not act prior to the 10th October, 2008, was that the procedures under the Code of Procedure were slow and complex and, “the lawyers had turned the whole affair into a procedural wrangle and a legal morass”. Certainly the correspondence admitted or proved in evidence in the course of the trial might afford a reasonable basis for that belief. However, this does not provide a reasonable or proper ground for taking no action at all for ten months. In my judgment the Board of Management of B.C.C. was in breach also of the direct duty of care, which, as her employer, it owed the plaintiff.
62. In my judgment the evidence establishes that the plaintiff was subjected to deliberate and continuous bullying and harassment by Dr. C. as a direct consequence of which she suffered mental injury in the form of clinical depression, a result which was reasonably foreseeable. I am satisfied that from some short time after the 7th February, 2008, until June 2010, the plaintiff suffered a serious depressive illness. She has now recovered from this, but I accept Dr. Lane’s evidence that she remains at present anxious at times, is subject to occasional flashbacks and nightmares of persons following her and is vulnerable to becoming re-traumatised by any form of significant confrontation. However, neither Dr. Lane nor Dr. McMahon advised the plaintiff not to return to work or to take early retirement from teaching. On the contrary, Dr. McMahon strongly advised her against such a course. There was no evidence which would lead me to conclude that it would be irrational and unreasonable to expect the plaintiff to continue to serve as Home-School Liaison Coordinator or in some other teaching capacity in B.C.C.. She did so between the 7th February, 2008 and the 1st October, 2008 and with very few days absent from work. There is nothing I can see on the facts in this case which would in any way inhibit a simple and just resolution of the difficulties which have arisen between Dr. C. and the plaintiff which would enable them to continue to work efficiently together as professional colleagues, even if not as friends. The evidence in this case clearly established that it is quite usual for some teachers in large schools and colleges not to be on speaking terms with other teachers in the same school or college.
63. The court has already held that the defendants were negligent in causing or permitting the plaintiff to be harried, watched and beset in the course of her employment with the Board of Management of B.C.C.. I find that the same acts or omissions may form a basis for an action for breach of an implied term of contract. In Matthews v. Kuwait Bechtel Corporation [1959] 2 Q.B. 57, Sellers L.J. delivering the judgment of the Court of Appeal held at p. 66 as follows:-
“It is perhaps sufficient if I say that, in my view, this question is a somewhat artificial one. The existence of the duty arising out of the relationship between employer and employed was recognised by the law without the institution of an analytical inquiry whether the duty was in essence contractual or tortious. What mattered was that the duty was there. A duty may exist by contract, express or implied. Since, in any event, the duty in question is one which exists by imputation or implication of law and not by virtue of any express negotiation between the parties, I should be inclined to say that there is no real distinction between the two possible sources of obligation. But it is certainly, I think, as much contractual as tortious. Since in modern times the relationship between master and servant, between employer and employed, is inherently one of contract, it seems to me entirely correct to attribute the duties which arise from that relationship to implied contract. It is a familiar position in our law that the same wrongful act may be made the subject of an action either in contract or in tort at the election of the claimant, and, although the course chosen may produce certain incidental consequences which would not have followed had the other course been adopted, it is a mistake to regard the two kinds of liability as themselves necessarily exclusive of each other.”
64. In the instant case I think it will be found that the plaintiff elected to present her case in tort. In these circumstances I feel that it can only lead to confusion to deal further with implied contractual terms and remedies for breach of contract.
65. In my opinion the actions of Dr. C. in this case do not amount to what Griffin J. described in Conway v. I.N.T.O. [1991] 2 I.R. 305 at 323 as, “wilful and conscious wrongdoing in contumelious disregard of another’s rights”. In such circumstances the court is not disposed to awarding exemplary, otherwise punitive damages to the plaintiff. In the same case Finlay C.J. defined “aggravated damages” as compensatory damages increased by reason of:-
“(a) The manner in which the wrong was committed involving such elements as oppressiveness, arrogance or outrage or,
(b) Conduct of the wrongdoer after the commission of the wrong: refusal to apologise or ameliorate the harm done, or threatening to repeat the wrong, or
(c) The conduct of the wrongdoer or his representatives in defending the claim up to and including the trial of the action.”
66. In my judgment the behaviour of Dr. C., towards the plaintiff in the present case was oppressive and arrogant and, I find caused her additional hurt and insult. I therefore consider that this is an appropriate for the court to mark its abhorrence of such conduct by awarding aggravated damages to the plaintiff. The court will therefore award damages to the plaintiff for the personal injuries which she has suffered to the date of this judgment in the sum of €60,000 of which the sum of €5,000 represents the increased amount of the compensatory damages. The court will award the plaintiff additional damages in the sum of €15,000 in respect of personal injuries which she may suffer in the future. €13,625 agreed specials.
Other Cases Referred to in Arguments
Educational Company of Ireland Ltd & Anor. v. Fitzpatrick & Others [1961] I.R. 345.
Kennedy & Others v. Ireland and the Attorney General [1987] I.R. 587.
Allen (Claimant) v. Dunnes Stores Ltd. (Jan. 1995) [1996] Employment Law Reports 203.
The Health Board v. B.C. & The labour Court (Jan. 1994) Employment Law Reports.
Maher v. Jabil Global Services Ltd. [2005] I.E.H.C. 1310.
McGrath v. Trintech Technologies Ltd. [2005] 4 IR 382.