Fletcher v Commissioner of Public Works

• Jurisdiction: Ireland
• Judge: Keane C.J.,Justice Geoghegan
• Judgment Date: 21 February 2003
• Neutral Citation: [2003] IESC 13
• Court: Supreme Court
• Docket Number: [S.C. No. 80 of
• Date: 21 February 2003

[2003] IESC 13

THE SUPREME COURT

Keane C.J.

Denham J.

Murray J.

Hardiman J.

Geoghegan J.

80/02

FLETCHER v. COMMISSIONER OF PUBLIC WORKS IN IRELAND

BETWEEN

STEPHEN FLETCHER

PLAINTIFF/RESPONDENT

AND

THE COMMISSIONERS OF PUBLIC WORKS INIRELAND

DEFENDANTS/RESPONDENTS

Abstract:

Tort - Negligence - Psychiatric injury - Recovery of damages for psychiatric illness - Forseeability of injury - Nervous shock - Policy issues

The defendants appealed the order of the High Court awarding the plaintiff, who was an employee of the defendants, damages for negligence and breach of duty. The case arose out of a failure of the defendants as employers to take proper precautions for the safety, health and welfare of the plaintiff as a result of which the plaintiff was exposed to asbestos. The plaintiff suffered from a recognisable psychiatric risk as a result of being informed of the risk that he might contract a painful and potentially lethal disease because of the exposure.

Held by the Supreme Court in allowing the appeal and substituting for the order of the High Court an order dismissing the plaintiff's claim that the law should not be extended by the courts so as to allow the recovery by the plaintiff of damages for psychiatric injury resulting from an irrational fear of contracting a disease because of his negligent exposure to health risks by his employer where the risk was characterised by their medical experts as very remote.

1 21st day of February, 2003, by Keane C.J.

Keane C.J.

Introduction.

2 This is an appeal by the defendants from a judgment and order of the High Court (O'Neill J) of the 15 ^th June 2001, awarding the plaintiff, who was at all material times an employee of the defendants, damages in the sum of £48,000 for the negligence and breach of duty (including breach of statutory duty) of the defendants.

3 The appeal was heard at the same time as four other appeals, in which the plaintiffs were Raymond Brophy, Dermot Swaine, Patrick Sammon and David Shorthall and the present defendants were also the defendants. The plaintiffs in those cases had also been at all material times in the employment of the defendants.

4 All five cases arose out of what was admitted to be the failure of the defendants as employers to take proper precautions for the safety, health and welfare of the plaintiffs as their employees. As a result of that failure, as is also conceded on behalf of the defendants, the plaintiffs were exposed to significant quantities of asbestos dust in the course of their employment and, as a further consequence, were exposed to the risk of contracting in later life a disease called mesothelioma which, when contracted, is significantly painful and potentially lethal. There was evidence in each case from psychiatrists that the plaintiffs, as a result of their having been informed of that risk, suffered from a recognisable psychiatric disorder. In each case, the learned trial judge, (Johnson J in the cases of Brophy,Sammon and Shorthall and O'Neill J in the remaining cases) found that the defendants were liable to pay damages in respect of the psychiatric injury in question and the issue as to whether they were so liable was the subject of extensive written and oral submissions in this court. Since, however, the course which theproceedings took in each case in the High Court was not identical, so far as the admissions made on behalf of the defendants and the issues which fell to be determined were concerned, it seems more convenient that the court should give judgment on the issues which were the subject of argument in this court in the present case only, leaving for further consideration the effect of its judgment on the remaining fourappeals.

5 The plaintiff in this case, Stephen Fletcher, was born on the28 ^th December 1947 and was first employed by the defendants in 1977. He is married with one child. From 1985 onwards, he was engaged in Leinster House as a general operative, helping plumbers, electricians, and fitters in the maintenance of what was described by the trial judge as an "enormous and labyrinthine central heating system." The trial judge found that the piping in that system was covered with a lagging containing asbestos of various types and that much of it was in an extremely poor condition, i.e., it was friable, dusty and falling off in many places. As part of his work, the plaintiff was regularly obliged to hack off the lagging in order to enable the tradesmen he was assisting get access to the pipe work. The work had to be done in difficult conditions in very confined areas.

6 The trial judge further found as a fact, again not contested, that as a result significant quantities of asbestos polluted the air which the plaintiff breathed and that of necessity he inhaled very large quantities of asbestos dust over a number of years. That situation lasted until at least 1989.

7 It appears that in July 1984, an inspection was carried out of the working conditions on behalf of the Minister for Labour. The inspector concluded that the asbestos lagging had deteriorated to such an extent that it should be removed section by section until complete removal had been achieved. In a letter dated 3 ^rd July 1984 from the Department of Labour to the defendants, it was pointed out that the inspector strongly recommended that immediate steps should be taken to have all the asbestos removed under the conditions which would be required under the relevant statutes, as if the building were a factory for the purposes of those statutes.

8 There was also evidence, not disputed on behalf of the defendants, that in February 1985, an engineer acting on behalf of the defendants had written to submit a tender for the work involved in removing insulation from a certain area. That letter stated:

"Workers must be supplied with appropriate protective clothing and protective masks. All removal of contaminatedclothes and washing facilities must be within the confined area. Workers, when washed, should then move directly to their clean changearea".

9 Not surprisingly, the trial judge reached the following conclusion based on that evidence:

"It is absolutely clear to me that a dangerous situation pertained [and] that the state of the lagging in the basement area and other pipe work was in a dreadful condition and was a danger to anyone who was obliged to work with it as the plaintiff was. It is equally clear that the defendants knew all of this and knew it from, at the very latest, mid 1984. It is also quite clear from their correspondence that they were well aware of the dangers of asbestos because in their tender document which I have just quoted from, they make the most stringent requirement of a contractor coming in, in relation to their work. Nevertheless at the very same time, they obliged the plaintiff as part of his contract of employment to carry out work in this area without informing him at all of the existence of asbestos or of the risks attached to asbestos dust or without providing him with protective clothing or without taking any steps whatsoever to protect him from the effects of asbestos dust".

10 The trial judge went on to find that from 1985 until probably well into 1989 the plaintiff was regularly exposed in the course of his employment to asbestos dust and, during that time, inhaled very significant quantities of the dust. The trial judge said that, in those circumstances, he was satisfied that the defendants were guilty of "gross negligence" and that no question of contributory negligence arose. Again, there has been no appeal from thatfinding.

11 Having noted that the plaintiff finished his tour of duty in Leinster house in 1991 and that thereafter his exposure to asbestos dust ceased, the trial judge went on to consider the evidence in the case of Professor Luke Clancy, a consultant respiratory physician at St. James's Hospital, Dublin, who is an acknowledged authority on respiratory diseases generally and diseases resulting from exposure to asbestos in particular. He referred to Professor Clancy's evidence that the plaintiff had been exposed to the risk of developing asbestosis and that he was also at an increased risk of lung cancer; but that the plaintiff had not contracted either disease and that it was very unlikely that he ever would.

12 Professor Clancy's evidence was, however, also to the effect that, as a result of his exposure to asbestos the plaintiff was at risk of contracting in later life the disease called mesothelioma. This wouldnothappen until at least 20 years after the first exposure to asbestos and might not occur until 40 years thereafter. If it occurred, the prognosis would be very poor, since the disease would be painful and likely to prove terminal within two or three years of its having developed. Professor Clancy emphasised, however, that the risk of contracting the disease was "very remote". He pointed out that, although exposure to asbestos is widespread throughout the whole community, he saw no more on average than three or four cases of mesothelioma a year in the course of his practice, while he might see as many as four hundred cases of lung cancer in the same period.

13 Professor Clancy also said that while the likelihood was that the plaintiff had inhaled asbestos fibres, and that some of them would have remained in his body and caused microscopic scarring, there were in fact no physical manifestations of the scarring visible on x-ray. On examination his heart sounds were normal, his blood pressure was normal and he had full pulmonary function. While the lining in the lung was a bit thicker than another person's might be, Professor Clancy did not attach any significance to this. There were no signs of what were called "pleural plaques", which, if present, would have beensignificant.

14 The trial judge found that the plaintiff had been angered and shocked, and...