Ahktar Mansoor v Minister for Justice, Equality and Law Reform and Others

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Lavan
• Judgment Date: 04 October 2010
• Neutral Citation: [2010] IEHC 389
• Docket Number: [2003 No. 2141 P]
• Date: 04 October 2010

[2010] IEHC 389

THE HIGH COURT

[No. 2141P/2003]

Mansoor v Min for Justice & Ors

BETWEEN

AHKTAR MANSOOR

PLAINTIFF

And

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, IRELAND AND THE ATTORNEY GENERAL

DEFENDANTS

ROAD TRAFFIC ACT 1961 S49

ROAD TRAFFIC ACT 1994 S10

MCMAHON & BINCHY IRISH LAW OF TORTS 3ED 2000 480

MCKEVITT v IRELAND & AG 1987 ILRM 541 1986/7/1151

WALSH v SECURICOR (IRL) LTD 1993 2 IR 507 1993/5/1483

ROAD TRAFFIC ACT 1994 S13(1)(B)

COX & ORS EMPLOYMENT LAW IN IRELAND 2009 63

MIN FOR AGRICULTURE v BARRY & ORS 2009 1 IR 215 2008/40/8622 2008 IEHC 216

HENRY DENNY & SONS (IRL) LTD T/A KERRY FOODS v MIN FOR SOCIAL WELFARE 1998 1 IR 34 2000/5/1750

HALL v KENNEDY & RUDLEDGE T/A THE WHITE HOUSE UNREP MORRIS 20.12.1993 1994/10/3009

MCMAHON & BINCHY IRISH LAW OF TORTS 3ED 2000 PARA 8.27

WALSH v RYAN UNREP LAVAN 12.2.1993 1993/5/1474

BATES v MIN FOR JUSTICE 1998 2 IR 81 1998/2/368

KAVANAGH v GOVERNOR OF ARBOUR HILL PRISON & ORS UNREP MORRIS 22.4.1993 1993/8/2336

BOYD v IRELAND & AG UNREP BUDD 13.5.1993 1993/6/1580

CAREY & ORS v MIN FOR FINANCE UNREP IRVINE 15.6.2010 2010 IEHC 247

EMPLOYMENT

Duty of care

Contract for services - Contract of service - Nature of work relationship - Mutuality of obligation - Whether employee or independent contractor - Reasonable foreseeability - Risk of violence - Whether risk of harm to plaintiff obvious or foreseeable - Risk of infection - Fear of infection with sexually transmitted disease - Reasonableness of fear - Understanding of risk - Probability of infection - Medical practitioner - Whether fear of contracting sexually transmitted disease reasonable - Minister for Agriculture and Food v Barry [2008] IEHC 216, [2009] 1 IR 215 applied; Henry Denny & Sons (Ireland) Ltd v Minister for Social Welfare [1998] 1 IR 34 considered; Hall v Kennedy (Unrep, Morris J, 20/12/1993), Walsh v Ryan (Unrep, Lavan J, 12/2/1993), Bates v Minister for Justice [1998] 2 IR 81, Kavanagh v Governor of Arbour Hill Prison (Unrep, Morris J, 22/4/1993) and Boyd v Ireland (Unrep, Budd J, 13/5/1993) and Carey v Minister for Finance [2010] IEHC 247, (Unrep, Irvine J, 15/6/2010) followed - Claim dismissed (2003/2141P - lavan J - 4/10/2010) [2010] IEHC 389

Mansoor v Minister for Justice

Facts: The plaintiff was a native of the Punjab district in Pakistan and was a medical practitioner in Ireland since 1978. He was attending a Garda Station to obtain a blood or urine sample from an individual charged with driving under the influence of alcohol when an incident had occurred. The accused, Mr. Foran, had thrown the contents of a urine sample over the head and face of the plaintiff. The plaintiff contended that the defendant owed him a duty to take reasonable care for his safety. The plaintiff alleged that he had suffered much injury and distress arising from this event and contended that he had been exposed to a risk which the defendant ought to have known of, that the defendant had not taken steps to ensure his care and that the defendant had failed to provide adequate protection for him. The defendant denied this duty, emphasising that the plaintiff was providing medical services as an independent contractor.

Held by Lavan J. that the duty of the defendant to protect the plaintiff from foreseeable harm and risk was not breached here. The actions of Mr. Foran were wholly unforeseeable and unpredictable in the extreme. The relief sought was refused.

Reporter: E.F.

1 Judgment of Mr. Justice Lavan delivered the 4th day of Oct, 2010

Background

2 The plaintiff is a native of the Punjab district in Pakistan. He has lived in Ireland, in Tullamore County Offaly, since 1970. Since 1978 he has practiced as a medical practitioner in Tullamore and has provided medical services to An Garda Síochána at Tullamore Garda Station in respect of the taking of blood or urine samples from persons suspected of committing offences under section 49 of the Road Traffic Act 1961 (as substituted by s. 10 of the Road Traffic Act 1994). The events giving rise to the claim arose while the plaintiff was performing such duties.

3 On the night of 20 ^th March, 2000, the plaintiff was requested to attend at Tullamore Garda Station for the purpose of obtaining a blood or urine sample from Mr. Declan Foran, who had been charged with driving while under the influence of alcohol. This was a regular occurrence for the plaintiff, indeed on the night in question he attended on six separate occasions at the Garda Station for this purpose. On this particular occasion the plaintiff met Mr. Foran, who the plaintiff contends was visibly drunk, in a room known as the ' The doctor's room' and Mr. Foran was requested by Garda James Downey to provide a blood or urine sample to the plaintiff. Garda Downey accompanied Mr. Foran to the toilet where he provided a urine sample into a 500 millilitre jug. They returned to the doctor's room, with Mr. Foran holding the jug, to find the plaintiff seated at a table in the room. It is then that the events took an unfortunate turn for the worst.

4 Once in the room, Garda Downey requested Mr. Foran to give the jug to the plaintiff. Mr. Foran responded, entirely without warning, by throwing the contents of the jug over the plaintiff's head and face. Some of the urine entered his mouth and eyes, with the remainder soaking his clothes and running down into his shoes and onto the floor. Garda Downey immediately restrained Mr. Foran, although it is uncertain as to whether or not Mr. Foran provided much resistance. Mr. Foran was subsequently charged with refusing to provide a urine sample and on 27 ^th October, 2000, was convicted before Tullamore District Court and ordered to pay IR£500.00 within 90 days.

5 Following this incident the plaintiff discarded his clothes and bathe himself on a number of occasions. Despite these efforts, he testifies to feeling constantly dirty and to having been unable to remove the taste of urine from his mouth. He attended at his local G.P., and complained of feeling unwell and stressed. He subsequently sought the assistance of Dr. M. Bhamjee, a consultant psychiatrist based in Ennis, County Clare, whom he visited for the first time in April, 2001. Dr. Bhamjee concluded that the plaintiff was suffering from post traumatic stress disorder as a result of the trauma he had suffered when Mr. Foran threw the urine at him. Furthermore, he prescribed a course of sleeping pills and tranquillizers which Dr. Bhamjee felt were necessary to assist the plaintiff in dealing with his condition. Dr. Bhamjee also highlighted the plaintiff's weight loss since the incident and, in particular, drew attention, in his report dated 20 ^th February, 2003, to the fact that as a devout Muslim, the plaintiff felt unable to read the Koran until he was cleansed. This served only to accentuate his anxiety and concern.

6 In addition to seeking psychiatric advice and counselling, the plaintiff also feared that he may have contracted a sexual transmitted disease ("STD") having being soaked in, and having swallowed, urine. To allay these fears he sought expert advice. This culminated in the medical report of Mr. Derek Freedman, a genito-urinary physician dated 14 ^th November, 2006. Mr. Freedman concluded, following a review of the relevant medical literature, that the there were no reported incidences of HIV ever having being transferred by urine. He described the risk of it ever occurring as "implausible". Mr. Freedman went on to observe that given the plaintiff's medical training, it was regretful that he was unable to conduct a more "objective appraisal of [the] infection risk".

7 The plaintiff commenced proceedings against the defendants on 17 ^th February, 2003 and in his Statement of Claim dated 15 ^th October, 2004 claims, inter alia, that the defendants are negligent as a result of:-

8 a '(b) Exposing the Plaintiff to a risk of which the Defendants, their Servants or Agents knew or ought to have known;

9 (c) Failing to take any or any adequate care for the Plaintiff while he was engaged in his duties as a Doctor;

10 (g) Failing to provide any or any adequate protection for the Plaintiff.'

11 Therefore, the Court must determine whether or not the defendants owed a duty of care to the plaintiff and, if such a duty arose, whether or not the assault that the plaintiff was subjected to was reasonably foreseeable, culminating in a breach of that duty of care. Should the Court determine that such a duty was owed and breached, then it also falls on the Court to determine the level of damages (if any) that should be awarded to the plaintiff.

Submissions of the Plaintiffs

12 Counsel for the plaintiff submits that the defendants owed a duty to take reasonable care for the safety of the plaintiff and not to expose him to unnecessary risk. Counsel further submits that the plaintiff was at all material times employed by the defendants as a doctor on duty at the Garda Station. This critical point is disputed by the defendants. Accordingly, counsel for the plaintiff submits that the liability of the defendants falls to be considered under the principles of employers' liability. In this regard, the following extract from McMahon and Binchy 3 ^rd Ed (Tottel, Dublin, 2000)., at p. 480 is relied upon:-

"the duty of an employer towards its servant is to take reasonable care for the servant's safety in all the circumstances of the case". [Emphasis added]

13 This extract, counsel for the plaintiff contends, supports the view that the defendants were under an affirmative duty to take such reasonable steps as were appropriate in the circumstances of the case to protect the plaintiff in the commission of his duties. Further support for this argument can be found in the case law, counsel argue, with the decision of the Supreme Court in McKevitt...