Supreme Court allows appeal dismissing negligence claim for psychiatric injury from fear of future asbestos disease.

THE SUPREME COURT

No. 80/2002

Keane C.J.

Denham J.

Murray J.

Hardiman J.

Geoghegan J.

BETWEEN/

STEPHEN FLETCHER

Plaintiff/Respondent

and

THE COMMISSIONERS OF PUBLIC WORKS IN IRELAND

Defendants/Appellants

JUDGMENT of Mr. Justice Geoghegan delivered the 21st day of February 2003

Introduction

This appeal raises an important question which has not been considered by this court before, namely, whether and if so to what

extent and subject to what limitations an action may lie in negligence where the sole injury for which damages are sought to be

recovered is a psychiatric condition resulting from fear of contracting an illness (in this case asbestos related diseases) in the future

as a consequence of the alleged negligent acts and omissions. It is conceded by the defendants/appellants that the

plaintiff/respondent was negligently exposed to asbestos dust but the medical evidence was to the effect that the risk of contracting

any serious or fatal disease as a consequence thereof is remote. Nevertheless it has been found as a fact by the trial judge that the

plaintiff suffered from severe worry and anger which resulted in a psychiatric condition and the plaintiff has been awarded substantial

damages.

I will return to it later in the judgment, but I should mention in passing at this stage that the plaintiff alleged that he had heard of a

workmate, a Mr. O’Connor, contracting an asbestos related disease and, indeed, subsequently dying. It was never established in

evidence what the illness of Mr. O’Connor was or the cause of his death. The medical advice which the plaintiff received was that the

danger of contracting any disease as a consequence of this asbestos exposure was minimal and, therefore, objectively, at least, the

extreme worry leading to psychiatric illness was irrational.

Questions of law obviously arise as to what in these circumstances was the duty of care, as to what relevant injury might be

regarded as having been reasonably foreseeable and as to whether for public policy or other reasons the courts should regard the

damage claimed in this case to be irrecoverable. The question of “control mechanisms” as they are often described in the case law

arises not only in relation to the last question but also in relation to the duty of care and the question of foreseeability. That is a brief

sketch of the legal issues involved. Obviously, I will return to them in due course but it is essential to treat first of the evidence which

was before the High Court and the terms of the judgment of the trial judge.

The evidence and the judgment

In evidence the plaintiff described similar feelings of anxiety and annoyance as a consequence of his learning of his exposure to

asbestos. When it began to dawn on him that he was working with asbestos he took legal advice because he had read articles about

it. He also went to his GP, Dr. Coodavia. The doctor gave him tablets for anxiety. He later attended the psychiatrist, Dr. Griffin, and

the respiratory surgeon, Professor Clancy. In answer to the question as to whether they had been able to give him any help he replied

as follows:-

“They tell me not to be worried and all that, but then people – I know they are professional people, but when I go out the

door, I am back to square one, so it doesn’t matter what they tell me. I was being exposed to asbestos in 85/86 and that’s in

me mind.”

He was then asked what was his principal fear and he said “death”. He indicated that he tried to forget about his anxiety when he

went to work and that at times his sleep was affected. His wife was not well and had to have a mastectomy and to some extent he

blamed himself about this. He underwent a pulmonary function test and also psychiatric counselling. He accepted that Professor

Clancy’s advice to him was that there was merely “a minimal risk of something”. He admitted he had no current disease. At p. 38 of

the transcript of the first day O’Neill J., the trial judge, summed up the position in a question to Mr. Fletcher which I quote:-

“Q. Mr. Justice O’Neill: There is nothing wrong with you at the moment Mr. Fletcher, but you fear that there may be a risk

that something may go wrong?

A. Yes, that is right.”

Mr. Fletcher admitted that he went to a solicitor first because after looking at television programmes about asbestos he thought he

should get legal advice. Mr. Fletcher was cross-examined by Mr. McCullough on the basis that he appeared to have gone to Dr.

Clancy before he went to his GP, Dr. Coodavia. Mr. Fletcher did not accept this. He thought that he might have heard in talk that Dr.

Clancy was the expert. He admitted that Dr. Clancy had told him the risk was minimal. Dr. Clancy had told him that even though he

was a non-smoker, passive smoking was more of a risk to him than the exposure to asbestos. Mr. Fletcher admitted that he might

have first suggested that he needed psychiatric treatment. He also admitted to Mr. McCullough that Dr. Griffin, the psychiatrist, had

also tried to explain to him that he should not really be worrying himself.

In evidence Professor Clancy said that there was virtually no risk in this case of asbestosis but there was the usual minimal risk of

mesothelioma. Dr. Clancy accepted that as a matter of probability the fibres would have been inhaled. He said however that

asbestosis depended on a fairly high exposure over a long time whereas mesothelioma was quite different. Even cursory exposure

increases the risk so that it is not dose dependent. Dr. Clancy did not accept that all persons who are exposed to asbestos remained

in similar anxiety. Some were heartened by optimistic advice given and others remained in a state of anxiety.

Dr. Griffin gave evidence that he thought that the plaintiff had been traumatised by the knowledge that he had worked in an

undetected situation with asbestos and it was very difficult to reassure him about his future. He was asked in terms of psychiatric

illness where he would put the plaintiff. His answer was that on both occasions on which he saw him he thought he was severely

anxious and had suffered from anxiety neurosis or more correctly reactive anxiety neurosis. He said that that was a psychiatric illness.

Dr. Griffin elaborated on that and said it would come within the international classification of psychiatric diseases. The plaintiff’s

condition was moderate to severe. He had the usual feelings of anger and anxiety. Dr. Griffin said medication would be helpful in the

form of an anti anxiety agent like “Lexotan”. In cross-examination it was put to Dr. Griffin that no amount of medical advice can

displace the irrational anxiety it would seem. Dr. Griffin answered that he was not sure the anxiety was all that irrational. In other

words, the plaintiff believed he had been exposed to asbestos and that in time he might develop asbestos related diseases or he

might not and he carried that worry with him. Dr. Griffin told the learned trial judge that he thought the plaintiff was suffering

constantly to some degree perhaps to a small degree and every now and then episodically he became acutely anxious and stressed.

Dr. Griffin thought that this would be ongoing. The plaintiff could not be reassured on foot of the slight chance of disease. He still

carried that worry and it was likely to remain in his mind indefinitely.

The judgment delivered by O’Neill J. on the 15th of June, 2001 reflected the detailed legal submissions which had been made to him by

counsel on behalf of the appellants. The learned trial judge summed up the defendants’ case as argued as follows:-

“The defendants called no evidence and they made submissions on the following basis. Firstly, that the plaintiff’s anger and

anxiety reaction, or that complex, was not caused by the exposure to asbestos dust itself but was, so to speak, caused by his

exposure to the knowledge of it which he gained through the media in late 1996. They then, the defendants, rely upon the

authority of the case of the CJD Litigation Group B v. The Medical Research Council 2000 Lloyds Reports, Medical Reports 161

to say the following:-

‘That the plaintiff is to be treated as a secondary victim in so far as this claim is concerned, and that he must,

therefore, prove that he has been suffering from a recognised psychiatric illness that was foreseeable to the defendants

at the time of the alleged wrong.

Secondly, that in a person of normal fortitude that the plaintiff’s bad reaction, that is to say his bad anxiety reaction,

was not something that would have been foreseeable to the defendants at the relevant time’.”

The learned trial judge observed that that raised an issue of law which he found it unnecessary to resolve because, as he pointed

out, essentially what counsel for the appellants was arguing was that the plaintiff should be regarded as being in the category of

persons who would have to meet the tests laid down in Kelly v. Hennessy [1995] 3 IR 253. But the learned judge went on to express

the view that it did not matter whether he was “a primary victim” or a “secondary victim” because in either case the relevant tests

would have been satisfied. He said that the plaintiff had been suffering from a recognisable psychiatric illness and that that was

brought about by the shock and upset that the plaintiff suffered as a result of his learning through the media “in the sensationalist

way that that would have occurred” of the existence of his problem. O’Neill J. was satisfied that the actual problem itself was caused

by the appellants’ “original omission”. The judge went on to say that any other view was unreal, that the essential ingredient in the

development of the plaintiff’s illness i.e., his psychiatric illness was the exposure to the asbestos dust and not the exposure to the

knowledge of it. The judge accepted that the plaintiff’s exposure to the knowledge of it was the trigger factor which started the

complaint but that did not mean that the psychiatric illness did not arise from the exposure to the asbestos dust. The learned trial

judge indicated that he was happy to assume that the plaintiff was in an analogous position to the plaintiff in Kelly v. Hennessy. In

other words psychiatric illness was foreseeable and that that being so, the appellants owed the plaintiff a duty of care not to cause

him a reasonably foreseeable injury. The judge laid emphasis on the fact that the appellants were the plaintiff’s employer.

O’Neill J. then went on to deal with the argument that in relation to foreseeability it is necessary to consider the position of a person

of “normal fortitude”. The learned trial judge, however, took the view that it was reasonably foreseeable that a person of “normal

fortitude” would suffer from the kind of anxiety described in the evidence and would develop the psychiatric condition proved. In this

connection he seemed particularly to rely on the CJD case. The learned judge then said the following:-

“It was entirely foreseeable in my view that the plaintiff would learn of this condition at some stage from the media or some

other source, probably in circumstances which would sensationalise the problem and cause him the kind of reaction which he

unfortunately had suffered. I think that was foreseeable. I think it was also foreseeable that in somebody of ordinary fortitude,

a normal person, in other words, which the plaintiff was, prior to these events, this would produce an anxiety reaction and

that is precisely what happened.”

The plaintiff, in the view of the judge, had satisfied all the relevant tests whether he was to be treated as a primary victim or a

secondary victim. O’Neill J. assessed general damages at IR£45,000 and added a further sum of special damages of £3,760.

The Law

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.

In an ordinary motor accident or factories injury case or even indeed a medical negligence action the trial judge does not normally

have to consider aspects of the tort of negligence other than reasonable foreseeability. The “neighbour” of a motorist for the

purposes of negligence liability is the person whom it can be reasonably foreseen he may injure through the negligent use of a motor

vehicle. It has always been considered reasonable that liability should arise in such circumstances and reasonable foreseeability and

proximity become effectively merged. In the vast majority of negligence actions, therefore, a close analysis of the different

constituents of the tort i.e. the duty of care, the breach of that duty and the damage which results is not necessary.

I now turn to consider the arguments made by Mr. Dermot Gleeson, S.C., counsel for the appellants at this appeal or more precisely

to consider the question as to whether an award of damages ought to have been made at all if the trial judge had addressed his mind

to the correct questions.

Mr. Gleeson’s primary submission was that these cases were governed by the decision in Kelly v. Hennessy cited above. In that case

the plaintiff’s family had been involved in a serious car crash caused by the negligence of the defendant. The plaintiff’s husband and

one of her daughters suffered permanent brain damage. The plaintiff had not been present at the accident but had learned of it by a

telephone call. It was accepted that the plaintiff suffered as a consequence from post-traumatic distress disorder. It was held by this

court that where a plaintiff came on the immediate aftermath of an accident either at the scene or in hospital involving a person with

whom the plaintiff had a close relationship, a duty of care arose. But it had been argued before the court on behalf of the defendant

that psychiatric illness was in a different category from physical injury and that damages could only be recovered for it in very limited

circumstances. All three judges of the court were in agreement that damages were recoverable but the principal judgment was that

of Hamilton C.J. with whom Egan J. agreed, Denham J. writing a separate judgment. In the judgment of Hamilton C.J. it was held that

in order to recover damages for nervous shock a plaintiff must establish

(a) that he or she actually suffered a recognisable psychiatric illness;

(b) that such illness was shock induced;

(c) that the nervous shock was caused by the defendant’s act or omission;

(d) that the nervous shock sustained was by reason of actual or apprehended physical injury to the plaintiff or a person other

than the plaintiff;

(e) that the defendant owed him or her a duty of care not to cause him or her a reasonably foreseeable injury in the form of

nervous shock as opposed to personal injury in general.

Without necessarily endorsing the terminology “primary victim” and “secondary victim” which has received judicial and academic

criticism, it is not entirely clear whether the judgment of Hamilton C.J. applies only to a so-called secondary victim or whether it

applies to a claim for damages for psychiatric injury only brought by any victim whether primary or secondary. It must be remembered

that the plaintiff in that case was a so called secondary victim and, indeed, that terminology is used in the judgment of Denham J.

Furthermore, Hamilton C.J. when laying down the principle that a plaintiff must establish that his or her recognisable psychiatric illness

was “shock-induced” relied for support on passages contained in a judgment of Brennan J. (as he then was) in the Australian High

Court case of Jaensh v. Coffey (1984) 155 C.L.R. 549 in which that learned judge said as follows:-

“A plaintiff may recover only if the psychiatric illness is the result of physical injury inflicted on him by the defendant or if it is

induced by shock. Psychiatric illness caused in other ways attracts no damages, though it is reasonably foreseeable that

psychiatric illness might be a consequence of the defendant’s carelessness.”

The former Chief Justice, however, then goes on to cite two examples which Brennan J. gave in support of that proposition, the

relevant passages reading as follows:-

“The spouse who is being worn down by caring for a tortiously injured husband or wife and who suffers psychiatric illness as a

result goes without compensation: a parent made distraught by the wayward conduct of a brain damaged child and who

suffers psychiatric illness as a result has no claim against the tortfeasor liable to the child.”

The two examples given clearly relate to so called secondary victims. But whereas Mr. Gleeson’s main argument is that Kelly v.

Hennessy governs all claims for psychiatric damage he makes the fallback argument that even if he were wrong about that, all five

respondents on this appeal were “secondary victims” in the sense that their psychiatric conditions arose from anxieties which in turn

were sparked off not, as he would argue, from the exposure to asbestos but from learning of the exposure to asbestos and the

possible dangers therefrom. With reference to Kelly v. Hennessy also, Mr. Gleeson says that the psychiatric condition in these cases

was not “nervous shock” within the meaning of Kelly v. Hennessy in that it did not arise out of some trauma and secondly, that even

if such psychiatric condition could ever be characterised as “nervous shock” within the meaning of the case law it was not reasonably

foreseeable as being wholly irrational. His argument on irrationality has a second leg to it also. Quite apart from arguing that having

regard to the medical advice as to a minimal risk, the irrational worry leading to a psychiatric injury could not have been reasonably

foreseen, he says that even if it could have been reasonably foreseen, as a matter of policy, the court should not award damages for

irrationality, or alternatively the courts should hold that to permit the recovery of such damages would be unreasonable.

I take the view that Kelly v. Hennessy does not govern these appeals. Whether one adopts the wider or narrower interpretation of

Kelly v. Hennessy to which I have already referred, the decision should only be taken to relate to accident damage. Given that the

courts in all common law jurisdictions have always shown caution in relation to the circumstances in which damages for psychiatric

injury can be recovered it is important to consider each kind of liability situation separately. Cases of a mother suffering from great

shock on learning that her child has been killed in an accident have almost no factual connection with cases involving fear of disease

not actually contracted arising from negligent exposure to such disease. Unless one puts all psychiatric injury on an exact par with all

physical injury it makes little or no sense to regard these two examples as being analogous to one another in any relevant way.

That being my view, I consider that this court is into virgin territory and that it must consider unguided by any Irish precedent

whether damages were properly recoverable in this case. For this purpose I think it helpful to review a number of authorities cited in

the appeals, not necessarily on the basis that they give direct guidance in these cases as many of them are more like Kelly v.

Hennessy but rather because of the recognition shown by judges in those cases of the necessity for control mechanisms in relation to

the recovery of damages for psychiatric disease. I will also be referring to a small number of cases involving fear of illness and,

therefore, directly in point, but it is fair to say that they are of limited assistance only.

The Irish courts historically took a progressive attitude to psychiatric illness and did so at a time when it would have been treated in

many quarters with some scepticism. In Bell v. the Great Northern Railway Company of Ireland (1890) 26 LR Ir 428 the plaintiff had

been a passenger in an excursion train when the train proved to be too heavy to be carried by the engine up an incline and was

divided by the railway company’s staff, the carriage occupied by the plaintiff remaining attached to the engine. The dislodged part of

the train descended the incline with great speed and then the engine was reversed with the remaining carriages in which the plaintiff

was seated attached but it also went down at a higher speed and stopped with a violent jerk. The plaintiff suffered great fright and

nervous shock as a consequence. The case had been heard by a judge and jury and the judge had charged the jury that if great

fright was in their opinion a reasonable and natural consequence of the circumstances in which defendants had placed the plaintiff

and she was actually put in fright by these circumstances and if injury to her health was, in their opinion, a reasonable and natural

consequence of such fright and was actually occasioned thereby, damages for such injury would not be too remote and might be

given for them. A court of three judges in the Exchequer Division presided over by Palles C.B. held that the trial judge had correctly

instructed the jury on the liability of the defendants. In so holding, the court followed an earlier decision in 1884 of the Irish Court of

Appeal (unreported) in the case of Byrne v. Great Southern and Western Railway Co. of Ireland and refused to follow a Privy Council

decision to the opposite effect in the Victorian Railway Commissioners v. Coultas 13 App. Cas. 222. The Bell case has been regarded

as seminal and has been cited in subsequent Irish, English and Australian courts. It should be noted in passing, however, that it is a

clear case of nervous shock directly arising from a particular incident involving trauma.

The next Irish case of any real significance in relation to damages for psychiatric injury was Mullally v. Bus Éireann [1992] ILRM 722.

In that case Denham J. followed Bell v. The Great Northern Railway Company of Ireland and held in what was clearly a so called

“secondary victim” case, that the shock arose from aftermath news of injury involving the plaintiff’s family, that the bus company’s

duty of care extended to injuries which were reasonably foreseeable and that this psychiatric illness caused by nervous shock was

itself reasonably foreseeable and damages for it could be recoverable. That again is an accident case analogous to Kelly v. Hennessy.

The decision of Denham J. corresponds with the recognised line of authorities in other common law jurisdictions treating of nervous

shock. Denham J. did not go into the more general question of whether and in what circumstances there were limits on the recovery

of damages for psychiatric injuries. She did, however, refer to McLoughlin v. O’Brian [1982] 2 All E.R. 298 and in particular to the

speech of Lord Bridge of Harwich in that case. I will be returning to it in due course.

What does emerge from the English and Australian authorities and, indeed, U.S.A. cases is that there are control mechanisms which

the courts apply to actions for damages for psychiatric conditions and for that reason, I intend to consider five cited English and

Australian cases in chronological order for their relevance on the general principles to be applied even though they are not “fear of

disease” cases.

The first of these is McLoughlin v. O’Brian already referred to. That was a case where the House of Lords reversed the English Court

of Appeal and allowed the plaintiff to recover damages in the following circumstances. The plaintiff’s husband and three children had

been involved in a motor accident when their car was in collision with a lorry driven by one defendant and owned by the other. The

plaintiff, who was at home at the time two miles away was told of the accident two hours after it happened by a neighbour who took

her to hospital to see her family. When she arrived she learned that her youngest daughter had been killed and saw her husband and

the other children and the severe injuries caused. She claimed that the impact of what she heard and saw caused her severe shock

resulting in psychiatric illness. It is clear that in that case there was evidence that the plaintiff was suffering from depression and

change of personality affecting her abilities as a wife and mother. The trial judge dismissed the action on the grounds that the

defendants owed no duty of care to the plaintiff because the possibility of her suffering injury by nervous shock in the circumstances

had not been reasonably foreseeable. The Court of Appeal affirmed that decision but on a quite different basis. The appellate court

held that although it was reasonably foreseeable that injury by shock would be caused to a wife and mother in the position of the

plaintiff, it was settled law that the duty of care that was owed by the driver of a vehicle was limited to persons or owners of

property at or near the scene of an accident and directly affected by his negligence, that considerations of public policy limited the

duty of care in that way and did not require it to be extended and that accordingly, since the plaintiff had been two miles from the

accident and had not learned of it or seen its consequences until two hours later, she was not entitled to recover damages for

nervous shock. That basis of the Court of Appeal’s decision is important for the purposes of understanding the ultimate decision by

the House of Lords. The House of Lords allowed the appeal agreeing with the Court of Appeal that the nervous shock would have

been reasonably foreseeable but disagreeing that policy considerations should be applied so as to deny a duty of care and that,

accordingly, the plaintiff was entitled to recover. It is important and relevant however to consider the principles which their Lordships

recognised as existing in arriving at their decision. Lord Wilberforce came to the conclusion on the facts of that case that the plaintiff

fell within the boundaries of the law so drawn and that she was entitled to succeed. But what is important, for the purposes of these

appeals is that he made it quite clear that in psychiatric claims control mechanisms were necessary in determining the limits of a duty

of care and the limits of the types of damage recoverable. He said this at the bottom of p. 421:

“But, these discounts accepted, there remains, in my opinion, just because ‘shock’ in its nature is capable of affecting so wide

a range of people a real need for the law to place some limitation upon the extent of admissible claims. It is necessary to

consider three elements inherent in any claim: the class of persons whose claims should be recognised; the proximity of such

persons to the accident; and the means by which the shock is caused. As regards the class of persons, the possible range is

between the closest of family ties – of parent and child, or husband and wife – and the ordinary bystander. Existing law

recognises the claims of the first: it denies that of the second, either on the basis that such persons must be assumed to be

possessed of fortitude sufficient to enable them to endure the calamities of modern life, or that defendants cannot be

expected to compensate the world at large. In my opinion, these positions are justifiable, and since the present case falls

within the first class, it is strictly unnecessary to say more. I think, however, that it should follow that other cases involving

less close relationships must be very carefully scrutinised, I cannot say that they should never be admitted. The closer the tie

(not merely in relationship, but in care) the greater the claim for consideration. The claim, in any case, has to be judged in

the light of the other factors, such as proximity to the scene in time and place, and the nature of the accident.”

While obviously some of that passage is directly relevant to the facts of that case involving psychiatric injury arising out of an

accident to somebody who was not at the scene of the accident, its relevance to this appeal is the acknowledgment by Lord

Wilberforce that control mechanisms (an expression not used by him but used in other cases) are necessary in this area. In an earlier

part of his speech at p. 420 he referred to the two judgments delivered in the Court of Appeal. He pointed out that Stephenson LJ

had considered that the defendants owed a duty of care to the plaintiff, but that for reasons of policy the law should stop short of

giving her damages: it should limit relief to those on or near the highway, at or near the time of the accident caused by the

defendant’s negligence. Griffiths LJ on the other hand had taken the view that although the injury to the plaintiff was foreseeable

there was no duty of care. In his view the duty of care of drivers of motor vehicles was, according to decided cases, limited to

persons and owners of property on the road or near to it who might be directly affected and the line should be drawn at this point. It

is quite clear from Lord Wilberforce’s next remarks that he was not querying either the view of Stepehenson LJ that in some cases

reasons of policy may deny a plaintiff a remedy nor the view of Griffiths LJ that in some cases notwithstanding foreseeability there

may be no duty of care. Indeed, he expressly said that he was impressed by both of those arguments but he then went on to make a

pertinent observation.

“Though differing in expression, in the end, in my opinion, the two presentations rest upon a common principle, namely that,

at the margin, the boundaries of a man’s responsibility for acts of negligence have to be fixed as a matter of policy. Whatever

is the correct jurisprudential analysis, it does not make any essential difference whether one says, with Stephenson LJ, that

there is a duty but, as a matter of policy, the consequences of breach of it ought to be limited at a certain point, or whether,

with Griffiths LJ, one says that the fact that consequences may be foreseeable does not automatically impose a duty of care,

does not do so in fact where policy indicates the contrary. This is an approach which one can see very clearly from the way in

which Lord Atkin stated the neighbour principle in Donoghue v. Stevenson [1932] A.C. 562, 580:

‘Persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as

being so affected …’

This is saying that foreseeability must be accompanied and limited by the law’s judgment as to persons who ought, according

to its standards of value or justice, to have been in contemplation. Foreseeability, which involves a hypothetical person,

looking with hindsight at an event which has occurred, is a formula adopted by English law, not merely for defining, but also

for limiting, the persons to whom the duty may be owed and the consequences for which an actor may be held responsible. It

is not merely an issue of fact to be left to be found as such. When it is said to result in a duty of care being owed to a person

or class the statement that there is a duty of care denotes a conclusion into the forming of which considerations of policy

have entered. That foreseeability does not of itself, and automatically, lead to a duty of care is I think, clear”.

Lord Wilberforce then cites some cases in which that principle is made clear and he refers in particular to a dictum of Lord Reid in

McKew v. Holland and Hannen & Cubitts (Scotland) Limited [1969] 3 All E.R. 1621, 1623:

“A defender is not liable for the consequence of a kind which is not foreseeable. But it does not follow that he is liable for every

consequence which a reasonable man could foresee.”

Lord Edmund-Davies while likewise rejecting the view of the Court of Appeal that policy considerations should deny recovery by the

plaintiff nevertheless went on in strident terms to disagree with the opinion of Lord Bridge of Harwich in the same case where the

latter doubted that any regard should have been had to policy considerations by the Court of Appeal. Lord Edmund-Davies was firmly

of the view that reasonable foreseeability was not the only test of the validity of a claim brought in negligence. The question of the

existence of a duty of care could involve policy questions also. While agreeing that any invocation of public policy calls for the closest

scrutiny that does not mean that it should not be invoked to deny a duty of care or a heading of damage in particular cases. He cited

with approval the words of MacDonald J. in Nova Mink Limited v. Trans Canada Airlines [1951] 2 D.L.R. 241-256:

“There is always a large element of judicial policy and social expediency involved in the determination of the duty-problem

however it may be obscured by the use of tradition or formulae.”

Lord Edmund-Davies went on to say the following:

‘I accordingly hold, as Griffiths LJ. … did, that ‘the test of foreseeability is not a universal touchstone to determine the extent

of liability for the consequences of wrongdoing’.

Authority for that proposition is both ample in quantity and exalted in status.”

Lord Russell of Killowen in a short speech made it clear that he “would not shrink from regarding in an appropriate case policy as

something which may feature in a judicial decision”, but he did not think the policy considerations should prevent the plaintiff

succeeding in that case.

I do not find it necessary to review the opinions of Lord Scarman and Lord Bridge, both of whom in their own different ways were

more sceptical as to the legitimacy of introducing policy considerations at all, but it must be remembered that even in their case

these views were being expressed in the context of a nervous shock case where a plaintiff was not at the scene of an accident.

They were not making observations that could be remotely relevant to a “fear of disease” case.

The next case in sequence is Jaensch v. Coffey already cited. This was an Australian case heavily relied on by Hamilton C.J. in his

judgment in Kelly v. Hennessy cited above. In the Jaensch case a motor cyclist had suffered serious injury in a collision with a vehicle

which was being driven negligently. His wife was not at the scene of the accident but saw him in hospital where the staff told her he

was “pretty bad”. The following day she was told that he was in intensive care and shortly thereafter that he had had a change for

the worse. She was asked to come to the hospital as quickly as possible. In the event the husband survived but the wife brought an

action for nervous shock. The High Court of Australia held on the facts that there was a duty of care and that the plaintiff was

entitled to succeed. As in the McLoughlin case however, although in no sense is this case closely analogous to a “fear of disease”

case, there are general principles of tort law stated in the judgments which are relevant. Gibbs CJ in his judgment pointed out that

foreseeability is relevant to three different questions that may arise in an action for negligence - “whether there was a duty of care;

if so, whether the defendant was negligent; and whether the defendant was liable for the kind of damage that resulted from the

negligence” and he pointed out that this sometimes leads to confusion. The learned Chief Justice expressly agreed with the views of

Lord Wilberforce in the McLoughlin case that foreseeability cannot be the sole criterion for the existence of a duty of care. There may

also be considerations which ought to negative or reduce or limit the scope of the duty or the class of person to whom it is owed or

the damages to which a breach of it may give rise. Gibbs C.J. said that this was clearly in line with Australian law and he referred to a

judgment of Mason J. in Wyong Shire Council v. Shirt (1980) 146 C.L.R. 40 at p. 44. In adverting to the fact that there was a

difference of opinion between the Law Lords in McLoughlin v. O’Brian as to the part played by policy in the formulation of the rule

governing the recovery of damages for nervous shock Gibbs CJ made it clear that in his opinion, the view of Lord Wilberforce was

“realistic and correct”. He referred to the passage where Lord Wilberforce said that “foreseeability must be accompanied and limited

by the law’s judgment as to persons who ought, according to its standards or value or justice, to have been in contemplation.”

I would express the view in passing at this stage, though I will obviously be returning to it, that if policy considerations are relevant in

considering the extent of a duty of care in “nervous shock” cases arising out of accidents or traumas, such considerations would

seem to be all the more necessary in the much vaguer cases where a condition considered psychiatric by the medical profession has

arisen merely from worry that a disease might be contracted.

In considering the principle that reasonable foreseeability is separate from or at the very least only one element in the question of the

existence of a duty of care, I have found particularly helpful the analysis by Deane J. in his judgment in the Jaensch case. In rather

colourful language he pointed out that the common law duty to a “neighbour” had “scant in common with its new testament

equivalent; both priest and Levite ensured performance of any common law duty of care to the stricken traveller when, by crossing

to the other side of the road, they avoided any risk of throwing up dust in his wound” … in Donoghue v. Stevenson, the common law

duty of care was defined, for the purposes of the law of negligence, as the duty to take reasonable care when it can be reasonably

foreseen that one’s ‘acts or omissions’ are likely to injure one’s ‘neighbour’. A ‘neighbour’ was identified as being in the view of the

common law, a person who is ‘so closely and directly affected by my act that I ought reasonably to have him in contemplation as

being so affected when I am directing my mind to the acts or omissions which are called in question”. The learned judge goes on to

point out that under Lord Atkins’ test there was an important proximity requirement “that constituted an overriding control of the test

of reasonable foreseeability in the law of negligence” and that it was clear that the notion of proximity was not confined to mere

physical proximity. Later on in his judgment Deane J. points out that the fact that as a practical matter any separate requirement of

proximity i.e., separate from reasonable foreseeability is commonly disregarded does not mean that it does not exist as a matter of

principle. The ordinary negligence cases which are heard day in, day out do not involve any analysis by the trial judge of the

distinction between proximity and reasonable foreseeability. A passage at the top of p. 583 of the judgment of Deane J. is, I think,

relevant to these appeals.

“It is not and never has been the common law that the reasonable foreseeability of risk of injury to another automatically

means that there is a duty to take reasonable care with regard to that risk of injury … Reasonable foreseeability on its own

indicates no more than that such a duty of care will exist if, and to the extent that, it is not precluded or modified by some

applicable overriding requirement or limitation. It is to do little more than to state a truism to say that the essential function

of such requirements or limitations is to confine the existence of a duty to take reasonable care to avoid reasonably

foreseeable injury to the circumstances or classes of case in which it is the policy of the law to admit it.”

A number of cases are cited in support of these propositions including well known cases such as Rondel v. Worsley [1969] 1 A.C. 191

and Hedley Byrne and Co. Limited v. Heller and Partners Limited [1964] A.C. 465.”

Towards the bottom of p. 592 of the judgment Deane J. makes this pertinent observation:

“Unless one is to mutilate reasonable foreseeability to accord with operative but concealed considerations of policy, it must be

acknowledged that the decided cases strongly support the view that the requirement of a relationship of proximity operates to

impose particular criteria which must be satisfied by a plaintiff before a duty of care in respect of a reasonably foreseeable

injury in the form of nervous shock will be held to have arisen in her or his favour.”

That passage is relevant to these appeals because in my view, it was perfectly open to each of the trial judges to have found as

they did, that the anxiety condition labelled by the medical profession as “psychiatric” arising from the worry of contracting asbestos

disease was reasonably foreseeable notwithstanding medical advice to the effect that the risk of contracting such disease was

minimal. To that extent, I would reject the arguments put forward by counsel for the appellants that in any sense the injuries in these

cases must necessarily have been regarded as unforeseeable. But as Deane J. and other judges have pointed out this does not

necessarily mean that there was a duty of care. At p. 604 of the judgment Deane J. observes as follows:

“Once mere psychiatric injury is accepted as sounding in damages for the purposes of the law of negligence and as being, in

an appropriate case, reasonably foreseeable in the relevant sense, the duty of care in respect of a foreseeable risk of mere

psychiatric injury is an independent and primary duty owed to the person at risk of such injury.”

In his judgment in the same case Brennan J. at p. 564 sets out what he sees are the limits to actions for the recovery of damages for

psychiatric illness. He said the following:

“A broadening of the test of foreseeability and a readier judicial acceptance of the foreseeability of shock induced psychiatric

illness had combined to expand the scope of a defendant’s liability beyond what it was thought to be half a century ago.

Liability for negligence occasioning nervous shock has not been readily accepted, perhaps because the courts found evidence

of psychiatric illness and of its aetiology to be too vague to warrant a finding of a causal relationship between psychiatric

illness and careless conduct. Curial wariness of vague notions is as Sir Owen Dickson said, perhaps the ‘reason that scorn of

the law is more widespread among psychiatrists than anatomists’: Jesting Pilate (1965), p. 18. The courts have insisted on

proof of a demonstrable and readily appreciable cause of psychiatric illness – the cause itself being a result of the defendant’s

careless conduct – before damages for negligence occasioning psychiatric illness are awarded. A plaintiff may recover only if

the psychiatric illness is the result of physical injury negligently inflicted on him by the defendant or if it is induced by ‘shock’.

Psychiatric illness caused in other ways attracts no damages, though it is reasonably foreseeable that psychiatric illness might

be a consequence of the defendant’s carelessness. The spouse who has been worn down by caring for a tortiously injured

husband or wife and who suffers psychiatric illness as a result goes without compensation; a parent made distraught by the

wayward conduct of a brain damaged child and who suffers psychiatric illness as a result has no claim against the tortfeasor

liable to the child.”

Later on in the judgment Brennan J. points out that a psychiatric illness induced by mere knowledge of a distressing fact is not

compensatable.

What clearly emerges from the judgments in that case is that the control mechanism applied in the case of actions for pure

psychiatric damage is that that particular kind of damage must have been reasonably foreseen. This is in line with the judgment of

this court in Kelly v. Hennessy.

The next case in sequence is Alcock v. Chief Constable of South Yorkshire Police [1992] 1 A.C. 310. In that case the defendant was

responsible for the policing of a football match at which because of overcrowding ninety-five people died and many others sustained

crushing injuries. Live pictures of the disaster could be seen on television. The plaintiffs were all related to or friends of spectators.

Some witnessed the events from other parts of the stadium, one saw them on television and went to search for his missing son and

others were at home watching the events or heard of them from friends or through radio reports but only later saw recorded pictures.

All of these plaintiffs claimed damages for nervous shock. They all claimed that they had sustained psychiatric illness as a

consequence of the shock. At the trial nine of the plaintiffs who were either parents, spouses or siblings of the victims and who were

eye witnesses of the disaster or who saw it live on television were held to be entitled to damages. The remaining six were excluded.

The Court of Appeal held that none of the plaintiffs were entitled to succeed. There was then a further appeal to the House of Lords

which was dismissed. It was held by the House of Lords that in order to establish a claim in respect of psychiatric illness “resulting

from shock” it was necessary to show that the relationship between the plaintiff and the defendant was sufficiently proximate; that

the class of persons to whom a duty of care was owed as being sufficiently proximate was not limited by reference to particular

relationships such as husband and wife or parent and child but was based on ties of love and affection, the closeness of which would

need to be proved in each case; and that a plaintiff also had to show propinquity in time and space to the accident or its immediate

aftermath, and that in the cases of the plaintiffs who had been present at the match the mere fact that the relationship was shown

was insufficient to give rise to a duty of care that the viewing of the disaster on television could not be said to be equivalent to being

within sight and hearing of the event or its immediate aftermath and that, accordingly, the plaintiffs’ claims failed.

I am referring to this case only for the purposes of again eliciting some general principles that might be applicable to other cases in

which claims are made for psychiatric damage. As has been pointed out in later cases there are great problems arising out of the

actual decision and I am not in any way intending either to approve or disapprove of it. The idea that as between siblings the plaintiff

would have to prove special love and affection for the brother or sister in question with that perhaps being hotly opposed in cross-

examination is certainly not a desirable vista, if it could be avoided in other ways. There are, however, relevant general principles

referred to in the speeches of the law lords. Lord Ackner, for instance, clearly accepts the general principle “the application

simpliciter of the reasonable foreseeability test is, today, far from being operative”. He goes on at p. 400 to set out principles which

may not be entirely consistent with the later House of Lords decision in Page v. Smith [1996] 1 A.C. 155 which itself has been

criticised and to which I will refer. But whether one accepts them in full or not I think it helpful to set them out as stated by Lord

Ackner because they highlight factors which this court might have to consider in determining whether there was a duty of care in the

quite different circumstances of these appeals. The five principles as set out are as follows:

“(1) Even though the risk of psychiatric illness is reasonably foreseeable, the law gives no damages if the psychiatric injury

was not induced by shock. Psychiatric illness caused in other ways, such as by the experience of having to cope with the

deprivation consequent upon the death of a loved one, attracts no damages. Brennan J. in Jaensch v. Coffey 155 C.L.R. 549,

569 gave as examples, the spouse who has been worn down for caring for a tortuously injured husband or wife and who suffer

psychiatric illness as a result, but who, nevertheless, goes without compensation; a parent made distraught by the wayward

conduct of a brain damaged child and who suffers psychiatric illness as a result also has no claim against the tortfeasor liable

to the child.

(2) Even where the nervous shock and the subsequent psychiatric illness caused by it could both have been reasonably

foreseen, it has been generally accepted that damages for merely being informed of, or reading, or hearing about the

accident are not recoverable. In Bourhill v. Young [1943] A.C. 92, 103 Lord MacMillan only recognised the action as lying where

the injury by shock was sustained ‘through the medium of the eye or the ear without direct contact’. Certainly, Brennan J. in

his judgment in Jaensch v. Coffey recognised:

‘A psychiatric illness induced by mere knowledge of a distressing fact is not compensatable; perception by the plaintiff of

the distressing phenomenon is essential’…

(3) Mere mental suffering, although reasonably foreseeable, if unaccompanied by physical injury, is not a basis for a claim for

damages……

(4) As yet there is no authority establishing that there is liability on the part of the injured person, his or her estate, for mere

psychiatric injury which was sustained by another by reason of shock, as a result of a self-inflicted death, injury or peril of the

negligent person, in circumstances where the risk of such psychiatric injury was reasonably foreseeable. On the basis that

there must be a limit at some reasonable point to the extent of the duty of care owed to third parties which rests upon

everyone in all his actions, Lord Robinson, the Lord Ordinary, in his judgment in the Bourhill case … did not view with favour the

suggestion that a negligent window cleaner who loses his grip and falls from a height impaling himself on spike railings would be

liable for the shock induced psychiatric illness occasioned to a pregnant woman looking out of the window of a house situated

on the opposite side of the street.

(5) ‘Shock’, in the context of this cause of action involves the sudden appreciation by sight or sound of a horrifying event,

which violently agitates the mind. It has yet to include psychiatric illness caused by the accumulation over a period of time of

more gradual assaults on the nervous system.”

I find the last of those principles particularly instructive. There is no doubt that in a “fear of disease” case particularly when the

disease is most unlikely to occur, psychiatric illness caused in such circumstances cannot be said to have arisen suddenly.

The speech of Lord Oliver of Aylmerton is mainly of importance in the developing law in this area because of his introduction of the

distinction between primary and secondary victims. For the purposes of these appeals that distinction is of little importance, but a

passage from Lord Oliver’s speech at the bottom of p. 409 of the report has some relevance and is worth quoting. It reads as follows:

“Beyond this, however, the law in general provides no remedy, however severe the consequences of the distress or grief may

be to the health or wellbeing of the third party and however close his relationship to the victim. I doubt whether the reason

for this can be found by an appeal to logic, for there is, on the face of it, no readily discernible logical reason why he who

carelessly inflicts an injury upon another should not be held responsible for its inevitable consequences, not only to him who

may conveniently be termed ‘the primary victim’ but to others who suffer as a result. It cannot, I think, be accounted for by

saying that such consequences cannot reasonably be foreseen. It is readily foreseeable that very real and easily ascertainable

injury is likely to result to those dependent upon the primary victim or those upon whom as a result of negligently inflicted

injury the primary victim himself becomes dependent.”

While that passage was intended to refer to the compensation which might be recoverable by a so called “secondary victim”, a similar

pragmatism may in other circumstances also render unavailable a remedy to recover damages for ill-effects of negligent conduct. For

instance, there is no action for distress, worry or anxiety as such. There must at the very least be a recognised psychiatric condition.

For reasons which I will elaborate on, I do not accept that in all circumstances, feelings which result in psychiatric disease necessarily

by that reason alone give rise to an actionable claim for damages. The judgment of Lord Oliver highlights the usual problem already

referred to by Lord Wilberforce in the McLoughlin case that what I might describe as a hidden agenda of “policy” can be buried in

concepts of proximity or foreseeability or indeed be not buried at all but appear free standing. In setting the bounds for the so-called

“secondary victim” cases Lord Oliver, although choosing the “proximity” route is forced to admit at the middle of p. 411 that the

concept of proximity is “an artificial one which depends more on the court’s perception of what is the reasonable area for the

imposition of liability than upon any logical process of analogical deduction.”

At p. 418 of the speech Lord Oliver comes down firmly in favour of policy in each individual case determining whether a duty of care

arose or not in a secondary victim case. He, again, pointed out that logic cannot determine it because there is no logic in the lines

which the courts have drawn. Once again, therefore, the importance of pragmatism and policy raises its head in the law of tort.

There is nothing in the other speeches which requires comment and I move now to the fourth of the five cases which I am reviewing.

This is a case heavily relied on by counsel for the respondents, Mr. Sweetman. It is Page v. Smith [1996] 1 AC 155. The case

involved a so-called “primary victim”. It was an ordinary running down action, but the plaintiff suffered no physical injury. Three

hours after the accident, however, the plaintiff felt exhausted and that exhaustion continued. Prior to the accident the plaintiff had

been suffering from a chronic fatigue syndrome and he claimed that as a result of the accident that condition had become chronic

and permanent when it had been spasmodic. The plaintiff recovered damages in the High Court but this judgment was set aside by

the Court of Appeal on the grounds that the injury was not reasonably foreseeable. There was then a further appeal to the House of

Lords and it was held (Lord Keith of Kinkel and Lord Jauncey of Tullichettle dissenting) that once it was established that the

defendant was under a duty of care to avoid causing personal injury to the plaintiff, it did not matter whether the injury in fact

sustained was physical, psychiatric or both. Applying that test it was sufficient to ask whether the defendants should have

reasonably foreseen that the plaintiff might suffer personal injury so as to bring him within the ambit of the duty of care. It was

unnecessary to consider whether the defendant should reasonably have foreseen injury by shock.

This statement of law (if correct) could be helpful to the respondents only if they first establish a duty of care. Even if I came to the

conclusion that the relevant question in this case was not was there a duty of care to prevent the kind of damage claimed but rather

was damage of that kind recoverable for breach of such a duty of care, I would still be of opinion that the respondents in this case

would not be able to rely to any great extent on Page v. Smith. There is a world of a difference between direct injury resulting from a

motor accident in which the plaintiff was involved on the one hand and a condition of anxiety emerging from information being gained

as to the possible effects of negligent exposure over a long period of time to asbestos or the other. The views of the majority of the

Law Lords and particularly of Lord Lloyd of Berwick in Page v. Smith are highly controversial and have been sharply criticised by Lord

Goff of Chievley in the fifth case to which I will be referring. But even if the majority decision in Page v. Smith is in line with the law in

this jurisdiction, I do not think that it is relevant to the wholly different set of circumstances in which these appellants were involved.

It is quite clear at any rate that the only substantial issue in Page v. Smith and the issue on which there was disagreement between

the Law Lords was whether in the case of a primary victim claiming for psychiatric injury it was necessary to prove that such

psychiatric injury was foreseeable or whether it was merely necessary to prove that some injuries were foreseeable. I have already

expressed the view that I can find no fault in the findings of the respective trial judges to the effect that psychiatric disease in these

cases was reasonable foreseeable. Therefore, nothing turns in these appeals on the issues in dispute in Page v. Smith. There is one

passage in the speech of Lord Lloyd however which is worth quoting. It is at p. 189 of the report and reads as follows:-

“Are there any disadvantages in taking the simple approach adopted by Otton J.? It may be said that it would open the door

too wide, and encourage bogus claims. As for opening the door, this is a very important consideration in claims by secondary

victims. It is for this reason that the courts have as a matter of policy rightly insisted on a number of control mechanisms.

Otherwise, a negligent defendant might find himself being made liable to all the world. Thus in the case of secondary victims

foreseeability of injury by shock is not enough.”

Mr. Gleeson has argued that the respondents in these cases are secondary victims, and that is why I cite that passage. Towards the

end of his judgment at p. 197 Lord Lloyd says the following:

“In conclusion, the following propositions can be supported.

1. In cases involving nervous shock, it is essential to distinguish between the primary victim and secondary victims.

2. In claims by secondary victims the law insists on certain control mechanisms, in order as a matter of policy to limit the

number of potential claimants. Thus the defendant will not be liable unless psychiatric injury is foreseeable in a person of

normal fortitude. These control mechanisms have no place where the plaintiff is the primary victim.

3. In claims by secondary victims, it may be legitimate to use hindsight in order to be able to apply the test of reasonable

foreseeability at all. Hindsight however has no part to play where the plaintiff is the primary victim.

4. Subject to the above qualifications, the approach in all cases should be the same, namely, whether the defendant can

reasonably foresee that his conduct will expose the plaintiff to the risk of personal injury whether physical or psychiatric. If the

answer is yes then the duty of care is established, even though physical injury does not in fact occur. There is no justification

for regarding physical and psychiatric injury as different ‘kinds of damage’.

5. A defendant who is under a duty of care to the plaintiff whether as primary or secondary victim is not liable for damages

for nervous shock unless the shock results in some recognised psychiatric illness. It is no answer that the plaintiff was

predisposed to psychiatric illness nor is it relevant that the illness takes a rare form or is of unusual severity. The defendant

must take his victim as he finds him.”

It is understandable that Mr. John Sweetman, S.C. counsel for the plaintiff/respondent should seek to find comfort in these

statements of principle. But in my view they have little relevance to the issues involved in these appeals. First of all these actions are

not claims for damages for “nervous shock” as that expression has been understood in the English case law as directly flowing from an

accident or trauma. The second of those principles acknowledges that in the case of certain types of victims, control mechanisms are

necessary so as to limit the number of potential claimants. The House of Lords therefore, has rather arbitrarily held that in the case of

secondary victims but not in the case of primary victims the defendant will not be liable unless psychiatric injury is foreseeable in a

person of normal fortitude. That is also the law here in relation to secondary victims and it may well be the law in relation to primary

victims having regard to the decision of this court in Kelly v. Hennessy.

Under the fifth principle the shock must result in some recognised psychiatric illness but the severity or unusualness of the psychiatric

illness is irrelevant. That would also be the case here if there was a duty of care and there was foreseeability of psychiatric injury. It

is the principle relating to damages usually known as “the thin skull” principle.

But there is no logical reason, why, assuming that control mechanisms are necessary there should be any similarity between the

control mechanisms operative in the case of “aftermath” or “rescuer” cases on the one hand and “fear of disease” cases on the

other. In the absence of firm precedent this court must consider whether control mechanisms are necessary in “fear of disease”

cases and if so what those mechanisms should be.

The fifth of the “nervous shock” cases to which I intend to refer is White v. Chief Constable of South Yorkshire Police [1999] 2 AC

455 but otherwise known as Frost v. Chief Constable of South Yorkshire Police and hereinafter referred to as “the Frost case”. The

case is partly remarkable for a strident attack in a dissenting opinion by Lord Goff of Chieveley on the speech of Lord Lloyd of Berwick

in Page v. Smith. But that relates to an issue which does not really arise in these appeals namely, whether foreseeability of

psychiatric injury is always necessary if damages are to be recovered for it irrespective of whether the victim is primary or secondary

or whether, as Lord Lloyd considered, such a rule only applies to secondary victims. As I have already indicated there is some

ambiguity in this jurisdiction on this point as it is not entirely clear from the judgment of Hamilton CJ in Kelly v. Hennessy which of

those two approaches he was taking. But the Frost case is of some relevance, nevertheless, particularly having regard to the

principles of policy considerations set out in the speech of Lord Steyn. He points out at p. 492 of the report that “the contours of

tort law are profoundly affected by distinctions between different kinds of damage or harm.” He speaks of the analogy of the

relatively liberal approach to recovery of compensation for physical damage and the more restrictive approach to the recovery for

economic loss.” Policy considerations come into play and in the view of Lord Steyn they have always come into play in relation to

distinctions between physical injury and psychiatric harm. There has always been the frightening spectre of an unlimited number of

claimants. Lord Steyn goes on to point out that “in cases of pure psychiatric harm there is potentially a wide class of plaintiffs

involved”.

I think it useful next to refer to a passage in the speech of Lord Hoffmann at p. 501. It reads as follows:

“For a long time during this century it remained unclear whether the basis of liability for causing a recognised psychiatric

illness was simply a question of foreseeability of that type of injury in the same way as in the case of physical injury. The

decision of the House of Lords in Bourhill v. Young [1943] A.C. 92, appeared to many to combine what was in theory a simple

foreseeability test with a robust wartime view of the ability of the ordinary person to suffer horror and bereavement without ill

effect. Cases soon afterwards, like King v. Phillips [1953] 1 Q.B. 429, followed this approach, treating foreseeability as a

question of fact but keeping potential liability within narrow bounds by taking a highly restrictive view of the circumstances in

which it was foreseeable that psychiatric injury might be caused. But such decisions were criticised as out of touch with

reality. Everyone knew that some people did suffer psychiatric illness as a result of witnessing distressing accidents in which

other people particularly close relatives were involved. Some judges, sympathetic to the plaintiff in the particular case, took

the opportunity to find as a fact that psychiatric injury had indeed been foreseeable. This made it difficult to explain why

plaintiffs in other cases had failed. It seemed that if the foreseeability test was to be taken literally and applied in the same

way as the test for liability for physical injury, it would be hard to know where the limits of liability could be drawn. In all but

exceptional cases, the only question would be whether on the medical evidence, the psychiatric condition had been caused by

the defendant’s negligent conduct.

There was a time when it seemed that English law might arrive at this position. It came within a hair’s breadth of doing so in

McLoughlin v. O’Brian …, one of those cases in which one feels that a slight change in the composition of the appellate

committee would have set the law on a different course. But the moment passed and when the question next came before

Your Lordships House in Alcock v. Chief Constable of South Yorkshire Police …, judicial attitudes had changed. The view which

had for some time been in the ascendancy, that the law of torts should, in principle aspire to provide a comprehensive system

of corrective justice, giving legal sanction to a moral obligation on the part of anyone who has caused injury to another

without justification to offer restitution or compensation, had been abandoned in favour of a cautious pragmatism. The House

decided that liability for psychiatric injury should be restricted by what Lord Lloyd of Berwick in Page v. Smith afterwards

called ‘control mechanisms’ that is to say more or less arbitrary conditions which a plaintiff had to satisfy and which were

intended to keep liability within what was regarded as acceptable bounds.”

I shall signpost here the view expressed by me later on in this judgment that mechanisms are necessary to control the potential

number of claims that may be made arising out of negligent exposure to asbestos. I have already indicated that as to the kind of

control which should be applied, these five “nervous shock” cases arising out of “once off” accidents do not afford much assistance.

The question of controls is difficult and a reading of the Frost case makes it clear that there is considerable academic criticism of the

relevant House of Lords decisions with opinions coming from both extremes, that is to say, the view that psychiatric injury should be

treated no differently in any case than physical injury on the one hand and the view that damages should never be recoverable for

psychiatric injury on the other. In relation to these opposing proposals Lord Hoffman had this to say at the bottom of p. 503:

“The appeal of these two opposing proposals rather depends upon where one starts from. If one starts from the proposition

that in principle the law of torts is there to give legal force to an Aristotelian system of corrective justice, then there is

obviously no valid distinction to be drawn between physical and psychiatric injury. On this view, the control mechanisms

merely reflect a vulgar scepticism about the reality of psychiatric injury or a belief that it is less worthy of compensation than

physical injury: therein the patient must minister to himself. On the other hand, if one starts from the imperfect reality of the

way the law of torts actually works, in which the vast majority of cases of injury and disability, both physical and psychiatric,

go uncompensated because the persons (if any) who cause the damage were not negligent (a question which often involves

very fine distinctions) or because the plaintiff lacks the evidence or the resources to prove to a court that they were

negligent, or because the potential defendants happen to have no money, then, questions of distributive justice tend to

intrude themselves. Why should X receive generous compensation for his injury when Y receives nothing? Is the administration

of so arbitrary and imperfect a system of compensation worth the very considerable cost? On this view, a uniform refusal to

provide compensation for psychiatric injury adds little to the existing stock of anomaly in the law of torts and at least provides

a rule which is easy to understand and cheap to administer.”

Like the English courts, I would not favour either of these extreme solutions but I would agree that pragmatic control mechanisms

must be applied in actions for pure psychiatric damage and in many instances even in the interests of distributive justice.

Lord Hoffman at the end of p. 509 considers the suggestion of taking the incremental step of extending liability for psychiatric injury

“to rescuers”. He points out that this would mean that the category of secondary victims would be confined to “spectators and

bystanders” who take no part in dealing with the incident or its aftermath. He is against taking this step for two reasons. The first

reason relates to difficulties of definition and is not really relevant to these appeals but the second reason is of some relevance as will

be apparent when I come to giving my final conclusions. It is contained in the following passage:

“But the more important reason for not extending the law is that in my opinion the result will be quite unacceptable. I have

used this word on a number of occasions and the time has come to explain what I mean. I do not mean that the burden of

claims would be too great for the insurance market or the public funds, the two main sources for the payment of damages in

tort. The Law Commission may have had this in mind when they said that removal of all the control mechanisms would lead to

an ‘ unacceptable’ increase in claims, since they described it as a ‘floodgates’ argument. These are questions in which it is

difficult to offer any concrete evidence and I am simply not in the position to form a view one way or the other. I am

therefore willing to accept that, viewed against the total sums paid as damages for personal injury, the increase resulting

from an extension of liability to helpers would be modest. But I think that such an extension would be unacceptable to the

ordinary person because (though he might not put it this way) it would offend against his notions of distributive justice. He

would think it unfair between one class of claimants and another, at best not treating like cases alike and, at worst, favouring

the lest deserving against the more deserving. He would think it wrong that policemen, even as part of a general class of

persons who rendered assistance, should have the right to compensation for psychiatric injury out of public funds while the

bereaved relatives are sent away with nothing.”

I think that there are issues of distributive justice involved here in considering whether this court ought to allow these claims or not

and I will return to this question in due course.

I turn now to the few “fear of disease” cases to which the court has been referred. These have included some American cases and in

particular the case of Majca v. Beekil 682 ME 2d 253 Ill App 1 Dist (1997) (Illinois Appellate Court) which I have found helpful in

clarifying my mind. In that case a woman who worked in a medical office and who had been crushed by a scalpel which had been

placed in garbage by physicians brought an action for damages for her fear that she had contracted HIV. She and her husband were

suing the physician in charge of the office who had since died of AIDS though that information only reached the plaintiffs after the

woman’s cut. By that time she had undergone two tests which showed her to be HIV negative. The Court of first instance gave

summary judgment in favour of the defendants and the plaintiffs appealed. The appellate court held that any reasonable fear by the

woman and her husband that they had acquired HIV was not compensatable as they did not learn that the physician had AIDS until

eight months after the woman’s cut, at which time she had undergone two tests which showed her to be HIV negative. In the

judgment of the appellate court it was stated that Illinois courts permit a plaintiff who had suffered a physical impact and injury due

to a defendant’s negligence to recover for the mental suffering that the injury directly causes, but, to use the English terminology, it

would seem clear from the judgment of this court that the Illinois courts apply “control mechanisms”. Not only do they require

“medically verifiable manifestations of severe emotional distress” but the foreseeable fear and distress must reach a degree of

severity that justifies tort compensation. To quote the judgment “Thus, not all negligently caused fears are compensable”. Where

there is a fear of future illness the court took the view that recovery of compensation should be restricted to severe emotional

distress arising from serious fear occasioned by a substantial medical verifiable possibility of contracting the disease. A foreseeable

fear of deadly disease may not be compensatable if the feared contingency is too unlikely. There is then an interesting passage of

some relevance to these appeals.

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

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

increased risk of contracting the disease. Most courts have held that recovery for fear of disease should not extend to such

foreseeable fears, because as commentators have noted, such broad recovery rewards ignorance about the disease and its

causes.”

In Potter v. Firestone Tire and Rubber Company the Supreme Court of California in a judgment of Baxter J. held that:

“In the absence of present physical injury or illness recovery of damages for fear of cancer in a negligence action should be

allowed only if the plaintiff pleads and proves that the fear stems from a knowledge which is corroborated by reasonable

medical and scientific opinion that it is more likely than not that cancer will develop in the future due to toxic exposure.”

In a later part of the judgment under the heading “Damages” it is stated as follows:-

“Toxic exposure plaintiff is required to establish reasonableness of his or her fear of cancer in order to recover for damages

for that fear, and reasonableness is not established by mere fact of exposure or significant increase in risk of cancer;

carcinogenic or other toxic ingestion or exposure, without more, does not provide basis for fearing future physical injury or

illness which law is prepared to recognise as reasonable, and the fact that one is aware that he or she has ingested or

otherwise been exposed to carcinogen or other toxin without any regard to the nature, magnitude and proportion of the

exposure or its likely consequences, provides no meaningful basis upon which to value the reasonableness of one’s fear.”

Again, at p. 800 of the report the following passage appears in the judgment:

“Our analysis of existing case law and policy consideration relevant to the availability of damages for emotional distress leaves

us to conclude that, generally, in the absence of a present physical injury or illness, recovery of damages for fear of cancer in

a negligence action should be allowed only if the plaintiff pleads and proves that the fear stems from a knowledge,

corroborated by reliable, medical and scientific opinion, that it is more likely than not that the feared cancer will develop in the

future due to the toxic exposure.”

The judgment sets out a number of public policy reasons for denying redress in such cases. Some of these are more relevant than

others to the Irish situation. But I would summarise them as follows:

“1. Likely scarcity and high expense of insurance liability.

2. Undue conservatism in the testing of new drugs which may be of great benefit to the public.

3. Allowing recovery to all victims who have a fear of cancer may work to the detriment of those who sustain actual physical

injury and those who ultimately develop cancer as a result of toxic exposure. Defendants and insurers may be unable to insure

adequate compensation for the victims who actually develop cancer having regard to the heavy liability to those who merely

fear it.

4. The difficulty of definition of a predictable threshold for recovery.

5. The necessity to limit the number of potential plaintiffs if emotional injury absent physical harm is to continue to be a

recoverable item of damages in a negligence action. Having regard to the intangible nature of the loss the inadequacy of

monetary damages to make whole the loss, the difficulty of measuring the damage and the societal cost of attempting to

compensate the plaintiff.”

Other public policy considerations which have been put forward in other cases and, indeed, were put forward by Mr. Gleeson in this

case are the dangers of fraudulent claims and problems of proof.

The next case is a fear of asbestos disease case. It is Temple-Inland Forest Products Corporation v. Reeves Carter [1993] S.W. 2nd

88 (Supreme Court of Texas) (1999). In that case electrical workers exposed to asbestos in business premises sued the business for

negligence. They were not seeking damages for having contracted any disease arising from asbestos exposure but rather for “mental

anguish damages for their fear of possibility of developing asbestos-related disease in future”. The court of first instance had

dismissed the action. That decision had been affirmed in part and reversed in part by a regional Court of Appeal in Texas and it then

ultimately came before the Supreme Court of Texas by way of writ of error. The unanimous opinion of the latter court was delivered

by Justice Hecht and I will quote the following passage in his judgment:

“For the same reasons, like the Supreme Court and courts in most other jurisdictions, we cannot permit recovery of mental

anguish damages in cases like this one. In almost all instances involving personal injury, the law allows for the recovery of

accompanying mental anguish damages, even if the mental anguish is not itself physically manifested. But if bodily injury is at

most latent and any eventual consequences uncertain as when a person’s exposure to asbestos has not produced disease

then the case for recovery of mental anguish damages is much weaker. A person exposed to asbestos can certainly develop

serious health problems, but he or she also may not. The difficulty in predicting whether exposure will cause any disease and if

so, what disease, and the long latency period characteristic of asbestos-related diseases, make it very difficult for judges and

juries to evaluate which exposure claims are serious and which are not. This difficulty in turn makes liability unpredictable, with

some claims resulting in significant recovery while virtually indistinguishable claims are denied altogether. Some claimants

would inevitably be overcompensated when, in the course of time, it happens that they never develop the disease they feared

and others would be under compensated when it turns out that they developed a disease more serious even than they feared.

Also claims for exposure could proliferate because in our society, as the Supreme Court observed ‘contacts, even extensive

contacts with serious carcinogens are common’. Indeed most Americans are daily subjected to toxic substances in the air

they breathe and the food they eat. Suits for mental anguish damages caused by exposure but which had not resulted in

disease could compete with suits for manifest diseases for the legal system’s limited resources. If recovery were allowed in

the absence of present disease, individuals might feel obliged to bring suit for such recovery prophylactically, against the

possibility of future consequences from what is now an inchoate risk. This would exacerbate not only the multiplicity of suits

but the unpredictability of results.”

We have been referred to three other fear of disease cases. The first is CJD Group B v. MRC [2000] Lloyds Rep Med 161. In that case

the claimants were members of a group who as children suffered from dwarfism. They took part in clinical trials run by the defendants

to improve their prospects of adulthood. Those trials included injection of Hartree HGH. At a later stage the defendants became aware

of the risk that the HGH injection might carry a potentially lethal dose of the CJD agent. Nevertheless, they continued the trials. The

claimants all discovered the dangers subsequently though clinicians, councillors or the media and it was assumed then for the

purposes of a trial of a preliminary issue that all the claimants had a psychiatric injury derived from the awareness that they might

develop CJD. In the course of his judgment, the trial judge Morland J. at p. 165 said the following:

“I am persuaded that the Group B plaintiffs should not be treated as primary victims. I accept the submissions of Mr. Fenwick

that if they were, the ramifications would be incalculable. If they were primary victims so would be those exposed to asbestos

or radiation, for primary liability may depend not upon common law negligence but on statutory duty or even strict liability

even if they became aware of the risk of physical injury years later and consequently developed psychiatric injury. The

potentiality of a huge number of claims in similar situations would arise making insurance difficult or impossible. It could involve

all manner of products and a huge range of potential tortfeasors. It could inhibit the producers, prescribers and suppliers of a

product from warning the public of the danger of a product. For example, a potentially lethal substance has been negligently

introduced into a production batch of canned fruit. It would be disastrous if a supplier or producer were inhibited from warning

the public of danger for fear that some of those who had already eaten the canned food might bring a claim as a primary

victim for psychiatric injury triggered by the warning. Against such a claim the producer could not raise defences either that

the psychiatric injury was unforeseeable to a person of normal fortitude or that the law insists upon certain control

mechanisms to limit the number of potential claimants.”

Again, later on in the same page the learned judge makes the comment:

“Unlike some of the examples given by Mr. Fenwick in his ‘floodgates’ argument such as exposure to asbestos, radiation and

contaminated blood transfusions the cohort of potential victims of psychiatric injury is small.”

I agree with the view expressed in the written submissions lodged in this appeal on behalf of the appellants that for very

understandable reasons the judge was clearly highly sympathetic to the claimants in that case. The general tenor of the judgment

would seem to indicate that he was treating them as a special case. Furthermore, he sought to rely on the speech of Lord Scarman in

the McLoughlin case who expressed the view that if a psychiatric injury was reasonably foreseeable it should be untrammelled by

spatial, physical or temporal limits. As counsel for the appellants point out in the written submissions, that view is not in accordance

with established English law and clearly conflicts also with Kelly v. Hennessy at least in relation to non-primary victims. It is perfectly

clear from his judgment, that Morland J. did not think that his decision could have any relevance to a fear of asbestos case.

The next such case is Bryan v. Phillilps New Zealand Limited ]1995] 1NZLR 633. This was a case where a New Zealand High Court

judge refused to strike out an amended statement of claim in a fear of asbestos related disease case where the amended statement

of claim included a claim for damages for “cancerphobia”. The judge pointed out that it was “a developing field of law” and that

although there were American cases which made it clear that fear of cancer had to be reasonable and causally related to a

defendant’s negligence the correct legal parameters had not been fully established and that it would be a matter for the trial judge.

The case was not unstateable so that it could be struck out. That is all I need say about that case. It is perfectly clear that it is of

no assistance. Indeed, no matter what the outcome of this appeal is, if a motion had been brought to strike out these actions in the

High Court it would have had to be refused.

Finally, I would refer to an unreported judgment of Girvan J. delivered the 24th of May, 2000 in the High Court of Northern Ireland in a

case called Bittles v. Harland and Wolffe Plc [2000] NIJB 209. In that case a plaintiff brought an action claiming damages for personal

injuries sustained as a result of being exposed to asbestos dust during an earlier working life with the defendants. His case was that

as a result of his exposure to asbestos in those years he had subsequently developed asymptomatic pleural plaques and that he had

also suffered severe clinical depression as a result of the discovery that he had an asbestos related condition. The learned trial judge

found as a fact that the plaintiff did suffer a depressive condition “which was significantly aggravated by the diagnosis of an asbestos

related illness”. The relevant international cases do not seem to have been cited in court and the judge’s decision largely turned on

the view he took that the pleural plaques constituted a physical injury (a view which would be controversial at least in this jurisdiction

especially having regard to the definition of injury in the Civil Liability Act, 1961), Girvan J. effectively was treating the psychiatric

injury as parasitic to the physical injury. At any rate, the plaintiff in this appeal had no pleural plaques. For these reasons the Bittles

case would seem to be of no assistance to the respondent in this appeal.

It is against that background of the case law which I have reviewed that this court must decide as a matter of policy and of

reasonableness whether claims for damages for psychiatric injury only and resulting from fear of asbestos related diseases of a degree

which is objectively irrational are recoverable. Traditionally, courts do not always use the actual word “policy”. They may attempt to

draw artificial limits to what can be regarded as being reasonably foreseeable or they may in considering proximity or other questions

in relation to the existence of a duty of care invoke the concept of reasonableness so that a duty of care will not in fact be imposed

if the court considers it unreasonable to do so. The third control mechanism which the court may impose is in relation to particular

heads of damage or finally, they may expressly deny a claim on grounds of public policy.

I am quite satisfied that for the kind of reasons adumbrated in the American cases and also by reason of the objective irrationality of

the fears of these respondents that they will contract asbestos related diseases, the appeal should be allowed. As I have already

pointed out, the learned trial judge in this case considered that the psychiatric condition was reasonably foreseeable even when

applying the “person of reasonable fortitude” standard. In relation to the issue of reasonable foreseeability I would not attach

significance to the irrationality aspect. There has been such alarming treatment by the media about asbestos that it would be

reasonably foreseeable that a person of normal fortitude might seriously suffer from irrational fears of contracting the diseases. But

that is quite different from saying that the irrationality is irrelevant to the questions at issue on this appeal. In my view it would be

unreasonable to impose a duty of care on employers whether they be State or non-State (there being no known justification for

making any distinction) insured or uninsured to take precautions not merely that their employees will not contract disease but that

they will not contract so serious a fear of contracting a disease however irrational that they develop a psychiatric overlay. The court

should not permit compensation for irrationality in that way. It is quite different from the case of a plaintiff who suffers from traumatic

neurasthenia linked with physical illness directly resulting from an accident. Furthermore, there would be an element of unfairness of

the kind adverted to by Lord Hoffman as between employees exposed to such asbestos who may in fact suffer from great anxiety for

the remainder of their lives but not such as could be characterised as psychiatric injury on the one hand and those who suffer from

such anxiety which can be characterised as psychiatric injury on the other. Is it just that a worrier who has to take medication for his

worry receives sums in the order of €50,000 or more whereas worriers who do not have to take such medication get nothing? I think

not.

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.

I would allow the appeal and set aside the judgment obtained in the High Court.