Brewer v Commissioners of Public Works

• Jurisdiction: Ireland
• Judge: Mr. Justice Geoghegan
• Judgment Date: 31 July 2003
• Neutral Citation: [2003] IESC 51
• Court: Supreme Court
• Docket Number: [S.C. No.90 of
• Date: 31 July 2003

COMMISSIONERS OF PUBLIC WORKS IN IRELAND v. BREWER

IN THE MATTER OF AN INTENDED APPEAL

BETWEEN/

THE COMMISSIONERS OF PUBLIC WORKS IN IRELAND

Defendants/Applicants

and

TERENCE BREWER

Plaintiff/Respondent

[2003] IESC 51

Hardiman J.

Geoghegan J.

McCracken J.

90/03

THE SUPREME COURT

Synopsis:

PRACTICE AND PROCEDURE

Appeal

Extension of time - Application for enlargement of time for service of notice of appeal - Principles to be applied - Exercise of judicial discretion - Factors to be considered - Judicial consistency - Whether respondent would be prejudiced by granting of extension of time - Whether applicant should be allowed to serve notice of appeal outside time limit - Rules of the Superior Courts 1986, Order 58 rule 3(4) (90/2003 - Supreme Court - 31/7/2003)

Commissioners of Public Works v Brewer - [2003] 3 IR 539 - [2004] 1 ILRM 286

the respondent was awarded a total of €€6,392.64 in damages in the High Court for psychiatric injuries resulting from learning of long term exposure to asbestos which figure was broken down as follows: general damages to date: €€5,000; general damages into the future: €€0,000; aggravated damages: €€0,000 and; special damages: €€,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 the Supreme Court. The applicants argued that one of the reasons for the delay in lodging a notice of appeal in the present case was to await the outcome of appeals which were pending in the other cases but that liability was always in issue. The respondent contested that assertion, stating that the only real contest was as to the heads and quantum of damage.

Held by the Court in allowing an extension of time for the bringing of the appeal on the basis that the grounds of appeal be confined to grounds relating to aggravated damages only that the principles to be applied in considering an application to extend time to appeal to the Supreme Court was that three conditions had to be satisfied: that the appellant had a bona fide intention to appeal formed within the appropriate time; that he had to show the existence of something like mistake and that mistake as to procedure was not sufficient and; that he had to establish that an arguable ground of appeal existed. However, the court still had to consider all the surrounding circumstances in deciding how to exercise its discretion according to those principles. Accordingly, notwithstanding that the applicant had not satisfied the first two conditions, in the interest of overall consistency in the handling of these cases by the court and, having regard to the sum awarded for aggravated damages, the fact that the respondent would not be prejudiced if that sum were disallowed, the court's discretion would be exercised in the applicant's favour.

Citations:

RSC O.58 r3(4)

FLETCHER V CMSR OF PUBLIC WORKS 2003 2 ILRM 94

BROPHY V CMSR OF PUBLIC WORKS IN IRELAND UNREP O'NEILL 15.6.2001

SAMMON V CMSR OF PUBLIC WORKS IN IRELAND UNREP O'NEILL 15.6.2001

SHORTHALL V CMSR OF PUBLIC WORKS IN IRELAND UNREP O'NEILL 15.6.2001

CMSR OF PUBLIC WORKS IN IRELAND V SWAINE UNREP SUPREME 6.5.2003

KELLY V HENNESSY 1995 2 IR 253

EIRE CONTINENTAL TRADING CO LTD V CLONMEL FOODS LTD 1955 IR 170

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

2 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 19 ^th of April, 2002 (the order having been perfected on the 22 ^ndof April, 2002)

3 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:

4 General damages to date €25,000.

5 General damages into the future €50,000.

6 Aggravated damages €10,000.

7 Special damages €1,392.64.

8 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 Worksnow 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.

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

10 "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."

11 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.

12 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.

13 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 22 ^nd 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.

14 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 23 ^rd 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 18 ^th 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 29 ^th 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,...