Supreme Court dismisses claim for psychiatric damages from remote asbestos exposure risk without present disease.

THE SUPREME COURT

Keane C.J.

Denham J.

Murray J.

Hardiman J.

Geoghegan J.

80/02

BETWEEN

STEPHEN FLETCHER

PLAINTIFF/RESPONDENT

AND

THE COMMISSIONERS OF PUBLIC WORKS IN IRELAND

DEFENDANTS/RESPONDENTS

JUDGMENT delivered the 21st day of February, 2003, by Keane C.J.

Introduction.

This is an appeal by the defendants from a judgment and order of the High Court (O’Neill J) of the 15th June 2001, awarding the

plaintiff, who was at all material times an employee of the defendants, damages in the sum of £48,000 for the negligence and breach

of duty (including breach of statutory duty) of the defendants.

The appeal was heard at the same time as four other appeals, in which the plaintiffs were Raymond Brophy, Dermot Swaine, Patrick

Sammon and David Shorthall and the present defendants were also the defendants. The plaintiffs in those cases had also been at all

material times in the employment of the defendants.

All five cases arose out of what was admitted to be the failure of the defendants as employers to take proper precautions for the

safety, health and welfare of the plaintiffs as their employees. As a result of that failure, as is also conceded on behalf of the

defendants, the plaintiffs were exposed to significant quantities of asbestos dust in the course of their employment and, as a further

consequence, were exposed to the risk of contracting in later life a disease called mesothelioma which, when contracted, is

significantly painful and potentially lethal. There was evidence in each case from psychiatrists that the plaintiffs, as a result of their

having been informed of that risk, suffered from a recognisable psychiatric disorder. In each case, the learned trial judge, (Johnson J

in the cases of Brophy, Sammon and Shorthall and O’Neill J in the remaining cases) found that the defendants were liable to pay

damages in respect of the psychiatric injury in question and the issue as to whether they were so liable was the subject of extensive

written and oral submissions in this court. Since, however, the course which the proceedings took in each case in the High Court was

not identical, so far as the admissions made on behalf of the defendants and the issues which fell to be determined were concerned,

it seems more convenient that the court should give judgment on the issues which were the subject of argument in this court in the

present case only, leaving for further consideration the effect of its judgment on the remaining four appeals.

The plaintiff in this case, Stephen Fletcher, was born on the 28thDecember 1947 and was first employed by the defendants in 1977.

He is married with one child. From 1985 onwards, he was engaged in Leinster House as a general operative, helping plumbers,

electricians, and fitters in the maintenance of what was described by the trial judge as an “enormous and labyrinthine central heating

system.” The trial judge found that the piping in that system was covered with a lagging containing asbestos of various types and

that much of it was in an extremely poor condition, i.e., it was friable, dusty and falling off in many places. As part of his work, the

plaintiff was regularly obliged to hack off the lagging in order to enable the tradesmen he was assisting get access to the pipe work.

The work had to be done in difficult conditions in very confined areas.

The trial judge further found as a fact, again not contested, that as a result significant quantities of asbestos polluted the air which

the plaintiff breathed and that of necessity he inhaled very large quantities of asbestos dust over a number of years. That situation

lasted until at least 1989.

It appears that in July 1984, an inspection was carried out of the working conditions on behalf of the Minister for Labour. The

inspector concluded that the asbestos lagging had deteriorated to such an extent that it should be removed section by section until

complete removal had been achieved. In a letter dated 3rd July 1984 from the Department of Labour to the defendants, it was

pointed out that the inspector strongly recommended that immediate steps should be taken to have all the asbestos removed under

the conditions which would be required under the relevant statutes, as if the building were a factory for the purposes of those

statutes.

There was also evidence, not disputed on behalf of the defendants, that in February 1985, an engineer acting on behalf of the

defendants had written to submit a tender for the work involved in removing insulation from a certain area. That letter stated:

“Workers must be supplied with appropriate protective clothing and protective masks. All removal of contaminated clothes and

washing facilities must be within the confined area. Workers, when washed, should then move directly to their clean change

area.”

Not surprisingly, the trial judge reached the following conclusion based on that evidence:

“It is absolutely clear to me that a dangerous situation pertained [and] that the state of the lagging in the basement area and

other pipe work was in a dreadful condition and was a danger to anyone who was obliged to work with it as the plaintiff was. It

is equally clear that the defendants knew all of this and knew it from, at the very latest, mid 1984. It is also quite clear from

their correspondence that they were well aware of the dangers of asbestos because in their tender document which I have

just quoted from, they make the most stringent requirement of a contractor coming in, in relation to their work. Nevertheless

at the very same time, they obliged the plaintiff as part of his contract of employment to carry out work in this area without

informing him at all of the existence of asbestos or of the risks attached to asbestos dust or without providing him with

protective clothing or without taking any steps whatsoever to protect him from the effects of asbestos dust”.

The trial judge went on to find that from 1985 until probably well into 1989 the plaintiff was regularly exposed in the course of his

employment to asbestos dust and, during that time, inhaled very significant quantities of the dust. The trial judge said that, in those

circumstances, he was satisfied that the defendants were guilty of “gross negligence” and that no question of contributory

negligence arose. Again, there has been no appeal from that finding.

Having noted that the plaintiff finished his tour of duty in Leinster house in 1991 and that thereafter his exposure to asbestos dust

ceased, the trial judge went on to consider the evidence in the case of Professor Luke Clancy, a consultant respiratory physician at

St. James’s Hospital, Dublin, who is an acknowledged authority on respiratory diseases generally and diseases resulting from exposure

to asbestos in particular. He referred to Professor Clancy’s evidence that the plaintiff had been exposed to the risk of developing

asbestosis and that he was also at an increased risk of lung cancer; but that the plaintiff had not contracted either disease and that

it was very unlikely that he ever would.

Professor Clancy’s evidence was, however, also to the effect that, as a result of his exposure to asbestos the plaintiff was at risk of

contracting in later life the disease called mesothelioma. This would not happen until at least 20 years after the first exposure to

asbestos and might not occur until 40 years thereafter. If it occurred, the prognosis would be very poor, since the disease would be

painful and likely to prove terminal within two or three years of its having developed. Professor Clancy emphasised, however, that the

risk of contracting the disease was “very remote”. He pointed out that, although exposure to asbestos is widespread throughout the

whole community, he saw no more on average than three or four cases of mesothelioma a year in the course of his practice, while he

might see as many as four hundred cases of lung cancer in the same period.

Professor Clancy also said that while the likelihood was that the plaintiff had inhaled asbestos fibres, and that some of them would

have remained in his body and caused microscopic scarring, there were in fact no physical manifestations of the scarring visible on x-

ray. On examination his heart sounds were normal, his blood pressure was normal and he had full pulmonary function. While the lining

in the lung was a bit thicker than another person’s might be, Professor Clancy did not attach any significance to this. There were no

signs of what were called “pleural plaques”, which, if present, would have been significant.

The trial judge found that the plaintiff had been angered and shocked, and understandably so, on being informed that he had been

unnecessarily and without his knowledge exposed to these risks. Initially, he consulted a solicitor who in turn referred him to Professor

Clancy. He was not, however, reassured by what he was told and continued to worry about the possible danger to his health and also

the effect all of this might have on his wife’s health, she already having suffered an illness, although the plaintiff was assured that

this had no relationship whatever to his exposure to asbestos dust. Ultimately, he went to a consultant psychiatrist, Dr. John Griffin,

who concluded that he was suffering from a “reactive anxiety neurosis”, which, as the trial judge found, could not be assuaged by

counselling or the best advice which was available.

The trial judge summed up his conclusions on this aspect of the case as follows:

“Dr. Griffin, whose evidence I accept, described [him] as having a bug in his brain. It just will not go away. It seems to me to

be a very apt way to describe it, and it seems to me that what has happened to the plaintiff is that he has this thing in his

head. Everybody can tell him that there is no reasonable basis for it. There is a rational basis for it. [sic] There may not be a

reasonable basis for it, but it just will not go away. That is not to say that the plaintiff is to be in some way criticised for that

or that this is being said as some form of contrivance on his part. I am absolutely satisfied it is not. His fear, his anxiety is a

genuine one.”

The defendants submitted that the plaintiff’s anxiety reaction was not caused by the exposure to the asbestos dust itself but by his

having become aware of the risk arising from such exposure. They accordingly submitted that, in accordance with the decision of this

court in Kelly –v- Hennessy (1995) 2 IR 253 , the plaintiff could only recover for such psychiatric illness, unaccompanied by physical

injury, if he had suffered a nervous shock and as a result thereof, had suffered a recognisable psychiatric illness. The trial judge said,

however, that he was satisfied that the plaintiff’s psychiatric illness was the result of his exposure to the asbestos dust and not his

exposure to the knowledge of it. He was also satisfied that it was reasonably foreseeable that such a psychiatric illness would be the

result where a person of normal fortitude became aware that he had been exposed to the risk. In those circumstances, he was

satisfied that the plaintiff was entitled to recover damage for the psychiatric illness which he had suffered as a result of the

defendants’ negligence and, as already noted, he went on to assess the damages in the sum of £48,000.

From that judgment and order, the defendants have now appealed to this court. They do not dispute any of the findings of the trial

judge as to their failure to take proper precautions for the health and safety of the plaintiff, or his finding that, as a result, the

plaintiff was unnecessarily and without his knowledge exposed to significant quantities of asbestos dust or his finding that, in the

result, he was subject to a risk, albeit a very remote one, of contracting mesothelioma. Nor have they sought to set aside the trial

judge’s finding that, subsequent to his having been informed of that state of affairs, the plaintiff as a result suffered a psychiatric

illness. They submit, however, that the trial judge’s determination that the plaintiff was entitled to recover damages in respect of that

psychiatric illness, when unaccompanied by any physical injury, was wrong in law.

The nature of the “personal injury” suffered by the plaintiff.

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.

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.”

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.

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.

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.

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.

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.

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.

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.

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”.

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”.

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.)

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 310and 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.

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.

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.

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.”

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.

In arriving at that conclusion the majority emphasised that the plaintiff was properly regarded as a “primary victim” of the defendants’

negligence, adopting the classification first adopted by Lord Oliver in his speech in Alcock. The plaintiff in Page –v- Smith, having been

directly involved in the accident, was a “primary victim”, in contrast to the relatives of those injured or killed as a result of the

defendants’ negligence in McLoughlin –v O’Brian, Kelly –v- Hennessy and Alcock, who were categorised as “secondary victims”. In his

speech in Page –v- Smith, Lord Lloyd said:

“Foreseeability of psychiatric injury remains a crucial ingredient when the plaintiff is the secondary victim, for the very reason

that the secondary victim is almost always outside the area of physical impact, and therefore outside the range of

foreseeable physical injury. But where the plaintiff is the primary victim of the defendant’s negligence, the nervous shock

cases, by which I mean the cases following on from Bourhill –v- Young, are not in point. Since the defendant was admittedly

under a duty of care not to cause the plaintiff foreseeable physical injury, it was unnecessary to ask whether he was under a

separate duty of care not to cause foreseeable psychiatric injury.”

That approach was severely criticised by Lord Goff of Chieveley in his dissenting opinion in White. That case, which like Alcock, arose

out of the Hillsborough Football Stadium disaster, was also largely concerned, like Alcock, with “secondary victims”, although since

they were police officers, their claims were also advanced on the basis that they were owed a duty as employees and that, to the

extent that they were involved in rescuing the primary victims of the disaster, they were also not in the same category as

conventional “secondary victims”.

Lord Goff’s initial criticism of Page –v- White was that it was inconsistent with the earlier authorities culminating in the Wagon Mound

in England and with a number of Australian decisions. He was also critical of the view of Lord Lloyd that hindsight was not a relevant

factor where the plaintiff was a primary victim. Lord Lloyd, while accepting that in the case of a secondary victim it was necessary to

look at the circumstances as they actually occurred and consider whether the hypothetical reasonable man would have foreseen that

the plaintiff might have suffered an identifiable psychiatric illness, was of the view that this did not apply in the ordinary running down

case, where it was sufficient that the defendant ought reasonably to have foreseen that an impact would result in some form of

personal injury, even if in the event no direct physical injury was sustained. Finally, Lord Goff questioned whether Lord Lloyd was

justified in omitting from the test in the case of a primary victim what might be described as the “reasonable fortitude” factor, i.e.,

whether the defendant, in a case such as Page –v- Smith, ought reasonably to have foreseen that the plaintiff would have suffered a

particular psychiatric reaction which would not have followed in the case of a person endowed with “normal fortitude” or “ordinary

phlegm”. In the case of a primary victim, Lord Lloyd thought, the defendant must take the victim as he finds him. In this context, Lord

Lloyd cited with approval the dictum of Geoffrey Lane J, as he then was, in Malcolm –v- Broadhurst (1970) 2 All ER 508 that there

was no distinction between an “eggshell” skull and an “eggshell” personality. Lord Goff, however, considered that, in so concluding,

Lord Lloyd had erroneously taken an exceptional rule – the eggshell principle – relating to compensation, and treated it as being of

general application, thereby, as he put it, “creating a wider principle of liability”.

However, Lord Goff’s concerns as to the innovative features of Page –v- Smith were not shared to any notable degree by the other

law lords in White. It is relevant to note that Lord Goff expressed particular disquiet at an inference which the defendants had sought

to draw from Lord Lloyd’s speech i.e., that in the case of both primary and secondary victims the defendant would be liable only

where the victim who suffered psychiatric injury was within the range of foreseeable injury, a test that was met, of course, in Page –

v- Smith, but not by the plaintiffs in White.

It is also true that the majority decision in Page –v- Smyth has been severely criticised by academic commentators as being in

conflict with a significant body of existing case law in the United Kingdom and Australia and as also drawing distinctions between

primary and secondary victims, in terms of the foreseeability of psychiatric damage, the implications of which for a wide range of

cases had not been sufficiently considered. Mullany, ,’Psychiatric damage in the House of Lords – Fourth time unlucky – Page v Smith

‘, 3 Journal of Law and Medicine (Aus) 112; Handford, ‘ A new chapter in the foresight saga : psychiatric damage in the House of

Lords’ , 1964 Tort Law Review (Aus ) 6 ; Trinidade’ Nervous shock and negligent conduct ‘, 112 LQR, 22.

No doubt it can be said that there was no reason in principle why a driver who ought to have foreseen that his negligent driving would

cause the plaintiff to sustain personal injury should be relieved from liability simply because, in what was obviously an unusual case,

the victim suffered psychiatric consequences, unaccompanied by any physical trauma. But it seems to me that, in the present case,

it is unnecessary to consider the wider implications of the majority decision in Page –v- Smyth, because we are here solely concerned

with the foreseeability of psychiatric injury flowing from the negligence of a defendant in a specific context, i.e., the failure of an

employer to take reasonable precautions for the health and safety of his employees.

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.

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.

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?

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.

“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.

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.

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”

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.

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.

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.

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.

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.

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.

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.

However, the policy arguments in the present case against a finding of liability for psychiatric injury are not confined to those factors

or the so called “floodgates” factors, i.e., the possibility of the courts being swamped with trivial and unmeritorious claims, imposing

particular strains on the legal system and making severe demands on judges who have to segregate serious claims from the trivial or

even fraudulent. That is not to say that such considerations may not be important, but, in my view, there are specific policy

considerations which, in the case of what can be conveniently catagorised as “fear of disease” cases, such as the present, argue

even more powerfully against the imposition of liability.

There is first the undesirability of awarding damages to plaintiffs who have suffered no physical injury and whose psychiatric condition

is solely due to an unfounded fear of contracting a particular disease. A person who prefers to rely on the ill informed comments of

friends or acquaintances or inaccurate and sensational media reports rather than the considered view of an experienced physician

should not be awarded damages by the law of tort. As McNulty J put it, delivering the judgment of the Appellate Court of Illinois in

Majca –v- Beekil 682 NE 2D 253:

“Where hysterical fear of disease is sufficiently widespread, and popular knowledge concerning its etiology is limited, a plaintiff

may foreseeably experience severe emotional distress without medically verifiable evidence of a substantially increased risk of

contracting the disease. Most courts have held that recovery for fear of disease should not extend to such foreseeable fears,

because, as commentators have noted, such broad recovery rewards ignorance about the disease and its causes.”

The second policy argument is closely related to that first consideration. It relates to the implications for the health care field of a

more relaxed rule as to recovery for psychiatric illness which were summarised as follows by Baxter J giving the opinion of the majority

of the Californian Supreme Court in Potter and Others –v- Firestone Tyre and Rubber Company: 25 Cal Rptr 2d 550

“Access to prescription drugs is likely to be impeded by allowing recovery of ‘fear of cancer’ damages in negligence cases

without the imposition of a heightened threshold. To wit, thousands of drugs having no known harmful effects are currently

being prescribed and utilised. New data about potentially harmful effects may not develop for years. If and when negative

data are discovered and made public, however, one can expect numerous law suits to be filed by patients who currently have

no physical injury or illness but who nonetheless fear the risk of adverse effects from the drugs they used. Unless meaningful

restrictions are placed on this potential plaintiff class, the threat of numerous large, adverse monetary awards, coupled with

the added cost of insuring against such liability (assuming insurance would be available) could diminish the availability of new,

beneficial drugs or increase their price beyond the reach of those who need them most.”

It was also pointed out that there would also be serious implications for medical negligence cases grounded on the fear of the

plaintiffs having contracted a disease as the result of having been prescribed a particular drug.

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.

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.”

A similar approach was adopted by the Supreme Court of Texas in Temple – Inland Forest Products Corporation –v- Carter and

Another 993 SWR 2D88. 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.

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.

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.

I would allow the appeal and substitute for the order of the High Court an order dismissing the plaintiff’s claim.