Curran v Cadbury (Ireland) Ltd
2000 WJSC-CC 7070
CIRCUIT COURT DUBLIN
MULLALLY V BUS EIREANN
ALCOCK V CHIEF CONSTABLE OF SOUTH TORKSHIRE POLICE
PAGE V SMITH
LAW COMMISSION REPORT (ENGLAND) ON LIABILITY FOR PSYCHIATRIC ILLNESS (1998) NO 249 PARAS 4.1 & 5.50
LAW COMMISSION CONSULTATION PAPER ON LIABILITY FOR PSYCHIATRIC ILLNESS (1995) NO 137
KELLY V HENNESSY
HANDFORD “PSYCHIATRIC INJURY IN THE WORKPLACE” 1999 TORT LAW REVIEW 126
DONOGHUE V STEVENSON
MCLOUGHLIN V O'BRIEN
WHITE V CHIEF CONSTABLE OF SOUTH YORKSHIRE POLICE
FROST V CHIEF CONSTABLE OF SOUTH YORKSHIRE POLICE, 1997 1 AER 540
TAN KENG FENG “LIABILITY FOR PSYCHIATRIC ILLNESS - THE ENGLISH LAW COMMISSION” 1999 TORT LAW REVIEW 165
ANNS V MERTON LONDON BOROUGH COUNCIL
WARD V MCMASTER
W (HM) V IRELAND
WALKER V NORTHUMBERLAND CO COUNCIL 1995 1 AER 737
HOSFORD V JOHN MURPHY & SONS LTD
BELL V GREAT NORTHERN RAILWAY CO OF IRELAND 1890–91 26 LRI 428
BYRNE V GREAT SOUTHERN & WESTERN RAILWAY CO OF IRELAND UNREP COURT OF APPEAL FEB 1884
HANBROOK V STOKES BROS
DOOLEY V CAMMELL LAIRD & CO LTD 1951 1 LLOYDS REP 271
ATTIA V BRITISH GAS PLC
JAENSCH V COFFEY 1984 155 CLR 549
MULLANY & HANDFORD TORT LIABILITY FOR PSYCHIATRIC DAMAGE (SYDNEY 1993) 12
GALT V BRITISH RAILWAY BOARD 1983 133 NLJ 870
WIGG V BRITISH RAILWAY BOARD UNREP TUCKER1986 TLR 36
OGWO V TAYLOR,
CARLIN V HELICAL BAR LTD 1970 9 KIL 154
MEEK V BRITISH RAILWAY BOARD UNREP QBD 15.12.1983
SAFETY HEALTH & WELFARE AT WORK (GENERAL APPLICATIONS) REGS 1993 SI 44/1993 SCHED 5 REG 13
SAFETY HEALTH & WELFARE AT WORK ACT 1989 S2
Negligence; nervous shock; vicarious liability; plaintiff employed as machine operator by defendant; machine stopped and fitter entered it for purposes of repair out of sight of plaintiff; plaintiff turned on machine, became aware of presence of fitter in machine, became frightened that she caused injury to fitter and subsequently suffered post traumatic stress disorder; whether defendant owed plaintiff a duty of care; whether defendant failed to take reasonable care; whether plaintiff's psychiatric illness could be reasonably foreseen as a consequence that would flow from defendant's lack of care; whether there was a breach of the common law duty to take acre; whether defendant vicariously liable for negligence of employees; whether plaintiff suffered a compensatable injury which was reasonably foreseeable; whether plaintiff involuntary participant; whether there are policy reasons why plaintiff should be denied recovery; whether it would be unjust to deny compensation; whether defendant in breach of Safety, Health and Welfare at Work (General Application) Regulations, 1993; whether plaintiff owed duty by defendant as employer to take reasonable care to prevent employee suffering psychiatric illness due to her conditions of employment.
Held: Damages and costs awarded to plaintiff.
Curran v. Cadbury (Ireland) Ltd. - Circuit Court: McMahon J. - 17/12/1999 -
McMahon, B. on the 17th December, 1999
The plaintiff a married woman, with three adult children was employed by the defendant at their factory in Coolock, Co. Dublin. On the 16th of March 1996, when the incident the subject matter of these proceedings occurred, the plaintiff had been employed by the defendant for about 17 years. The plaintiff with one other operator worked near a moving belt which carried bars of chocolate to the plaintiff's work station where they were packed by the plaintiff and her work mate. Apparently, the packaging process in which the plaintiff was engaged involved her working with one other person and on the day in question she was the more senior of the two.
The plaintiff in her Indorsement of Claim alleged that, on the day in question the machine feeding out the bars of chocolate was stopped without notification to the plaintiff as should have been done and when the plaintiff turned on the machine, she immediately became aware that there was a fitter inside the machine, repairing it, out of her sight. She alleges she got a great fright and thought she had killed or done serious injury to a fellow employee. As a result she claims that she has suffered a serious psychiatric illness due to the negligence, breach of duty and breach of statutory duty of the defendant.
A full defence was entered by the defendant. The principal witness for the Defence. Mr Breen, gave the following version of events. He said that he and another member of the management, Mr Carolan, on doing their rounds on the day in question, noticed that there was something wrong with the machine and they called the fitter to assess the problem. The housing around the machine was removed and a loose screw was identified. It was a minor problem which could be repaired in a couple of minutes. The machine was closed down and the fitter went to work on the repairs. All of this was out of sight of the plaintiff. Mr Breen said he warned the plaintiff's work mate as to what was going on. The plaintiff alleged that she was not informed that the fitter was in the machine and when the machine stopped she went to the control panel and pressed the start button as was her normal practice. It was then as the plaintiff put it vividly, that "all hell broke loose".
From the facts of the case it is clear that the plaintiff in this case, unlike other nervous shock cases which have come before the Irish Courts in recent years, was a participant in and not a mere observer of the accident. She started the machine. She pressed the button. She heard the commotion and the screams, since the fitter, although out of sight, was quite close to her. She unwittingly caused the injuries to the fitter. Thinking she had killed or seriously injured her fellow employee she quickly turned off the power and then ran some 45 yards around the machinery to see the result of her work. As she ran she was filled with fear apprehension and probably, irrational guilt. Her evidence was that when she arrived at the scene where the fitter was she was blinded with panic. She could not see the fitter's face. All she saw was a blur where his face was and she became aware of a person frantically trying to get out of his overalls: she had cause to fear the worst.
There is little doubt that the plaintiff got a great fright and shock and that this resulted in the psychiatric condition attested to by the medical experts at the trial. Dr. Kenneth Sinanan, Consultant Psychiatrist, who first reported on the plaintiff on the 17th of June 1996, stated that Mrs Curren "suffered from a mild post traumatic stress disorder which is still ongoing". Dr James Corbett, to whom the plaintiff had been referred by her G.P., and who had seen her on sixteen occasions between the date of the accident and the 2nd of June, 1999 concluded on that date as follows: "I am of the opinion that this lady experienced a post traumatic stress disorder of moderate intensity as a result of the above accident". Post traumatic stress disorder is a recognised psychiatric illness (see Mullally -v- Bus Éireann).
These facts clearly show that the plaintiff was at the very centre of this frightening episode. She was in the eye of the storm. In the terminology that is gaining currency in other jurisdictions, she was "a primary victim". She was not "a secondary victim", that is a person who was not involved in the accident itself, but was removed from the direct action or came on the immediate aftermath of the accident. The plaintiff had a central role in this frightening drama.
It is appropriate at this juncture to say a word about this terminology since some of the problems that beset this area are language based, as the continued use of the term "nervous shock" itself clearly shows.
There has been a tendency in recent years, especially in English cases, to divide victims in these type of cases into two categories: primary victims and secondary victims (See Lord Oliver in Alcock -v- Chief Constable of South Yorkshire Police Com. No 249 at para 5.50, which followed the Law Commission's Consultation Paper No. 137 (1995), where the suggestion is that the distinction should be abandoned as it is unhelpful). For my own part, I am not convinced that the separation of victims into these two categories does anything to assist the development of legal principles that should guide the courts in this complex area of the law. Hamilton C.J. (with whom Egan J. agreed) did not refer to the distinction in Kelly -v- Hennessy the leading Irish case on the matter, and while Denham J., in the same case used the term "secondary victims" to describe the aftermath relatives who were plaintiffs in that case, her primary focus was naturally on the plaintiffs before her rather than on persons who were more directly involved in the accident. She did, however, give a clear definition as to what...and Lord Lloyd in Page -v- Smith ). Such categorisation is not without difficulties and has been criticised (See Law Commission Report (England), Liability for psychiatric Illness (1998) Law
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