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.”