Supreme Court extends appeal time for aggravated damages only due to public policy on psychiatric injury liability.

THE SUPREME COURT

Hardiman J.

Geoghegan J.

McCracken J.

90/03

IN THE MATTER OF AN INTENDED APPEAL

BETWEEN/

THE COMMISSIONERS OF PUBLIC WORKS IN IRELAND

Defendants/Applicants

and

TERENCE BREWER

Plaintiff/Respondent

JUDGMENT of Mr. Justice Geoghegan delivered the 31st day of July 2003

This is an application pursuant to O. 58, r. 3(4) of the Rules of the Superior Courts enlarging the time for the service of a notice of

appeal by the applicants from the judgment and order of the High Court (O’Donovan J.) delivered on the 19th of April, 2002 (the order

having been perfected on the 22nd of April, 2002).

The action in the High Court was for damages for personal injuries in the form of psychiatric damage only allegedly resulting from

learning of long exposure to asbestos and a consequent fear (albeit objectively irrational) of contracting an asbestos disease which

would be fatal. The High Court awarded damages in the sum of €86,392.64 together with costs. The breakdown of that figure was as

follows:

General damages to date €25,000.

General damages into the future €50,000.

Aggravated damages €10,000.

Special damages €1,392.64.

The action was one of a number brought against the applicants by their employees and, ultimately, five appeals from awards in the

High Court were heard by this court. Upon reading the transcripts this court took the view that the argument that there could not be

liability for damages for psychiatric injury resulting merely from fear of contracting a disease had not been made in the High Court in

four of the five cases, the exception being Fletcher v. Commissioners of Public Works now reported at [2003] 2 ILRM 94. In the

Fletcher case this court held that no such liability could arise as a matter of public policy. In one of the other four cases there had

been an issue also in relation to aggravated damages and in that case the court allowed the appeal only in so far as it related to that

element of damage. The relevance of explaining this will become apparent when I outline the evidence contained in the four affidavits

which have been filed in this motion.

The first and main grounding affidavit was sworn by Conor Fottrell, a solicitor in the office of the Chief State Solicitor on the 13th of

March, 2003. In the affidavit the deponent makes the point that this claim was similar to a number of other claims against the

Commissioners. In paragraph 6 of the affidavit Mr. Fottrell says as follows:

“The Commissioners contested the plaintiff’s claim. While not contesting that the plaintiff may have been exposed to asbestos

through negligence on their part, the Commissioners denied that the plaintiff had suffered any injury recognised by the law as

giving rise to an entitlement to damages and contended that the plaintiff ought not to be compensated in damages in respect

of anxiety about the risk of developing an illness in the future, particularly where that risk was such a remote one.”

The deponent then goes on to refer to the appeals which were before the Supreme Court and says that the Commissioners’ position in

respect of these other claims was the same as that adopted by them in the instant case. He refers to these other cases in the

context of credibility in that he goes on to assert that following upon the judgment and order of O’Donovan J. the Commissioners

immediately instructed the Chief State Solicitor to lodge an appeal. This does seem likely and it is not really an issue.

However, Mr. Fottrell mentions that counsel was instructed to draft a notice of appeal “and did so in June, 2002”. No explanation is

given for this delay but it is presumably to be inferred from what is said later in the affidavit that the deponent may have believed

that the order was not yet perfected. I am at all times assuming that Mr. Fottrell did apply his mind to the matter and did genuinely

have this belief but having regard to the facts and dates which I am about to detail such belief can hardly be regarded on any

reasonable basis as an excuse.

First of all, the Chief State Solicitor’s office would be well aware that it is up to that office to check when an order has been

perfected for the purposes of knowing the time within which an appeal must be brought. In this particular case the order was

apparently perfected within days. Mr. Fottrell makes the excuse that there had been delays in the other cases but with the greatest

respect to him that does not seem to stand up. Mr. Bryan Fox, solicitor for the respondent sets out in his affidavit the dates of

delivery of judgments in six other asbestos cases and in all but one of them the orders were perfected within short periods. Mr.

Fottrell gives another excuse which is equally unimpressive. He says in paragraph 12 of his main affidavit that the file was transferred

to the costs section of the Chief State Solicitor’s office to deal with the costs of the plaintiff and that the file did not come back to

him until October, 2002. He says that at that stage he was “very surprised” to discover on file a copy of the perfected order from

which it appears that the order had been perfected on the 22nd of April. Apparently, the correspondence on the file showed that the

order had been sent to the costs section by the plaintiff’s solicitors but it had not been brought to Mr. Fottrell’s attention. He again

goes on to say that he was under the mistaken impression that the order had not been perfected. There is no valid explanation as to

why he was under that impression because there is no procedure for receiving notice of the perfection of an order.

What then happened was equally surprising. As soon as Mr. Fottrell discovered that the order had in fact been perfected, he wrote a

letter of the 23rd of October, 2002 to Bryan Fox and Co., solicitors for the plaintiff, notifying that firm of an intention to apply for

extension of time for an appeal. That was the first notice that the solicitors for the plaintiff received of any intention to appeal. After

all that delay, what is quite remarkable is that this notice of motion is dated the 18th of March, 2003. What I would consider to be an

irrelevant excuse is given in the affidavit for this further delay. It is stated that on the 29th of October, 2002 which is just a few days

after the letter was written indicating an intention to apply for extension of time, the appeals in the other cases were heard in the

Supreme Court. The alleged excuse is contained in paragraph 16 of the first affidavit and reads as follows:

“While these appeals were pending before this Honorable Court, it did not appear appropriate to bring this application to extend

time. Obviously, if the Commissioners had been unsuccessful in their appeals, there would have been no useful purpose in

pursuing this appeal, save perhaps as regards issues of quantum (though such issues are also part of the appeals before the

court) and it would have been wasteful of this court’s time, as well as of costs, to have brought the application in such

circumstances. Furthermore, even if the application had been made, and if this Honorable Court had extended the time for the

appeal, the appeal would not have been heard or determined in advance of the determination of the appeals in Fletcher and

the other related appeals.”

Quite frankly, I find it difficult to accept the contents of that paragraph. I cannot imagine that in a situation where there had already

been extraordinary delay, the question of delaying the motion would have been considered in that fashion and would have been

decided in that fashion especially as the paragraph itself points out there would at any rate have been an issue of aggravated

damages of the very least.

In paragraph 15 of the affidavit Mr. Fottrell says that following upon the decision of the court in Fletcher on the 21st of February,

2003 and the adjournment for mention of the other appeals, counsel had advised him that the outcome of the other appeals would be

the same. If counsel ever gave such advice it can only have arisen out of an extraordinary misunderstanding of the concerns of the

court as expressed by the Chief Justice in relation to the other appeals.

As there is an implication running through the affidavits filed on behalf of the State and indeed in counsel’s submissions at the hearing

of the motion that all of the cases were argued in a similar way in the High Court, it is necessary to reiterate again that that was not

the view taken by this court. In the Brophy case the State had only argued against one aspect of the future damages and against

punitive damages. In the Swaine case, counsel for the plaintiff made a brief reference to the Fletcher case and the judge had

commented “that was a long time ago” clearly indicating that he did not remember the arguments in it. Counsel for the State never

pursued the matter any further and only dealt with the issues of aggravated damages. In the Shortall case counsel for the State

expressly stated that it was “assessment” only and that case was being tried by a quite different judge from the judge who had tried

the Fletcher case. Finally, in the Sammon case counsel for the State apart from a statute bar issue treated the case as an

assessment. I will return in due course to what I perceive was the way this particular case was argued by the State in the High Court

from the relevant extracts of transcript which were before us.

Mr. Fottrell swore a second affidavit on the 22nd of April, 2003. In paragraph 3 of that affidavit he tries to argue by reference to a

section of transcript exhibited that liability in this case was at all times kept in issue. More importantly he now concedes that contrary

to his expectations this court had dismissed the other appeals but he suggests that unlike the other appeals the liability issue was at

all times open in this case. I will, in due course, examine that proposition.

The next affidavit is by Mr. Bryan Fox, solicitor for the respondent. He argues in paragraph 10 that the conduct of the action by the

defendant was not akin to a contested case and that the only real contest was as to the heads and quantum of damages. He makes

this argument by reference to the same piece of transcript. Mr. Fox then goes on to explain that he had discussed the proceedings

with his client in the light of this motion and that the respondent, Mr. Brewer, had informed him that a substantial portion of the

monies awarded to him had already been spent by him on himself and his family and that most of this expenditure had occurred prior

to the defendants’ letter of the 23rd of October, 2002. I should explain that this would have happened in the context that the High

Court had granted a stay on the judgment but on condition that there be a payment out of €50,000. Mr. Brewer expands on this in his

own affidavit sworn in the motion on the 29th of May, 2003. In paragraph 2 of that affidavit he says the following:

“Following on from the conclusion of the above proceedings, I received the sum of €50,000 in or around the 21st of May,

2002. I took the family on a three week holiday to Italy during the summer of 2002 which costs approximately €6,000. I gave

the sum of €10,000 to each of my daughters Alma and Catherine to help them purchase their respective homes. I also paid

for house furnishings during last summer.”

He then confirms that he was unaware of any intention to appeal until the end of October, 2002. He deposes to the fact that he

would be severely prejudiced and unable to repay the money if an extension of time was granted and he lost the appeal.

It is necessary now to turn to the transcript on which both parties rely. At the opening of the case the trial judge, O’Donovan J.,

enquired of counsel for the State whether liability was still in issue. The reply he received was in the following form: “The plaintiff is

on proof of his claim.” However, later on counsel for the State intervened and said the following:

“My Lord, I might just shorten things ever so slightly. If it is a question that Your Lordship is to find that the plaintiff is entitled

to compensatory damages as opposed to aggravated damages, I am for the purposes of this case prepared to concede that

he was exposed to asbestos.”

This was in the context of a particular case counsel for the plaintiff was trying to make through a witness to the effect that the

negligence was so gross that it would attract aggravated damages. It is a reasonable inference to draw from the transcript that

although the State was admitting negligent exposure, it was not necessarily admitting liability, but the contest on liability, as I see it,

did not relate in any way to the basis on which the Supreme Court decided in favour of the Commissioners in the Fletcher case. The

nature of the case being made by the State is well illustrated by the following section of transcript. Unfortunately, the stenography is

very poor but one can get the sense of what was being discussed.

“Mr. Justice O’Donovan:Yes. Are you going into evidence.

Mr. Durack:No, My Lord.

Mr. Justice O’Donovan:Right. Do I take it then that Dr. O’Loughlin’s evidence is unchallenged?

Mr. Durack:Yes, well… (interjection)

Mr. Justice O’Donovan:Well, save with regard to whatever concessions, and you did not get a whole lot from her in cross-

examination.

Mr. Durack:No but the case is … no, what I would say in relation to Dr. O’Loughlin’s evidence is that Dr. O’Loughlin’s evidence

has to be based on what she has been told by the plaintiff.

Mr. Justice O’Donovan:Yes.

Mr. Durack:And therefore because there is no independent assessment it comes down then to a question of as to whether

Your Lordship accepts the plaintiff and that is where it is. I mean it is a question of do you believe the plaintiff and I have to

suggest, My Lord, that it is in …(interjection).

Mr. Justice O’Donovan:Why should I not believe the plaintiff Mr. Durack, particularly as the evidence of Professor Clancy has

indicated that virtually everybody else in the plaintiff’s position has the same reaction to it and cannot be reassured

notwithstanding anything that Dr. Clancy or Prof. Clancy has told them?

Mr. Durack:Well it does … objectively it certainly seems unrealistic and irrational and … (interjection).

Mr. Justice O’Donovan:I mean I asked Professor O’Loughlin or Dr. O’Loughlin, ‘is there logic in this’ and there is no logic in it but

it is a fact. There is no reason why people should be really … I mean rational. There is an irrationality in it but for an

unreasonable …(interjection).

Mr. Durack:Yes.

Mr. Justice O’Donovan:That I think is so but it is a fact according to the doctor.

Mr. Durack:Yes.

Mr. Justice O’Donovan:And how can I ignore that evidence?

Mr. Durack:I suppose the question arises then as to whether if it is that unreasonable is it foreseeable on the part of the

defendant as to how … (interjection)?

Mr. Justice O’Donovan:However, again in light of what Prof. Clancy has said to me, yes. Prof. Clancy said to me that

everybody who has this risk has the same reaction.

Mr. Durack:Well I suppose the question arises again is that all of them are probably plaintiffs and have this reaction. However,

no, I say no more about it, My Lord I say that the evidence is not made out to suggest that this … (interjection).”

In my opinion, it was quite clear from that exchange that Mr. Durack was essentially making two alternative points. First of all he was

inviting the learned trial judge not to believe a lot of what he was hearing on the grounds that it was incredible and to the objection

that the evidence was that others in a similar position had a similar reaction there is an insinuation from Mr. Durack that the credibility

of the others should also be thrown in doubt because they are all plaintiffs in court actions. The second argument he makes is that

his clients could not reasonably have foreseen that the plaintiff could have such an irrational fear. But as I read the transcript

nowhere is it argued that in an action for damages for pure psychiatric injury arising in circumstance other than “nervous shock” there

is either no duty of care or as a matter of public policy damages ought not to be awarded. That was the basis of the decision in

Fletcher and although the arguments were elaborated upon more extensively in the Supreme Court than in the High Court the case

had been fully argued by counsel for the State in the High Court on foot of Kelly v. Hennessy [1995] 2 I.R. 253 that the plaintiff could

not recover damages. (See judgment of the Chief Justice at p. 102 of the report cited above). There is no mention of Kelly v.

Hennessy in this transcript or of any argument based on it or any analogous argument.

These are the facts. I now turn to the law. For the last fifty years the primary source of the correct principles to be applied in

considering an application to extend time to appeal to the Supreme Court have been considered to be contained in the judgment of

Lavery J. in the decision of the former Supreme Court in Eire Continental Trading Co. Limited v. Clonmel Foods Limited [1955] I.R.

170. Mr. Richard McGonigal, S.C. counsel for the respondent in that case had argued that three conditions had to be satisfied before

the Supreme Court should allow an extension of time and that they were:

1.The applicant must show that he had a bona fide intention to appeal former within the permitted time.

2.He must show the existence of something like mistake and that mistake as to procedure and in particular the mistake of

counsel or solicitor as to the meaning of the relevant rule was not sufficient.

3.He must establish that an arguable ground of appeal exists.

Lavery J. having set out these conditions observed as follows at p. 173:

“In my opinion these three conditions are proper matters for the consideration of the court in determining whether time

should be extended but they must be considered in relation to all the circumstances of the particular case.”

I would interpret those words of Lavery J. as indicating that while these three conditions were proper matters to be considered, it did

not necessarily follow in all circumstances that a court would either grant the extension if all these conditions were fulfilled or refuse

the extension if they were not. The court still had to consider all the surrounding circumstances in deciding how to exercise its

discretion.

In this particular case, I am satisfied that the applicant had a bona fide intention to appeal formed within the permitted time. I am,

however, by no means satisfied that there was a “mistake” of the kind that Lavery J. had in mind. At best from the applicant’s point

of view, Mr. Fottrell from time to time applied his mind to the question of the appeal but irrationally assumed the order had not been

perfected. I do not think that in the ordinary way this would be regarded as an operative mistake. With regard to the third condition,

I am satisfied for the reasons which I have already indicated that the ground on which the Commissioners were successful in Fletcher

was not argued in the High Court in this case and, therefore, is not a legitimate ground of appeal. The position is analogous to the

other four appeals which had been before this court. However, there is the question of the award of aggravated damages. That issue

was considered by the Supreme Court in the Swaine case notwithstanding that the remainder of the appeal was dismissed and this

court allowed the appeal in relation to that ground. Having regard to the sum awarded under the heading of aggravated damages and

to the fact that if that sum was disallowed the respondent would not be prejudiced in the legal sense and in the interest of overall

consistency in the handling of the cases by this court, I would take the view that notwithstanding my misgivings as to whether the

applicant could be regarded as having complied with the second condition, I would favour extending the time for bringing the appeal,

but only on the basis that the grounds of appeal in the notice of appeal to be lodged be confined to grounds (xvi) to (xxi) inclusive

and ground (xxvi) as contained in the draft notice of appeal exhibited, in other words the grounds relating to aggravated damages.

The applicants have failed to establish grounds on which an extension of time for any wider appeal should be granted. Indeed, if I

took the view that the compliance with the three conditions specified in the Eire Continental Foods case was an absolute requirement

there would be no basis for permitting even the limited appeal.

In all applications for an extension of time prejudice to the other party is a relevant factor. Having regard to the well founded belief in

this case that no appeal was being brought and the substantial expenditure by the respondent of the monies paid out there might well

have been a case for refusal even if the Eire Continental Foods condition were complied with. But it is not necessary for me to

consider that question.