Swaine -v- Commissioners of Public Works in Ireland, [2003] IESC 30 (2003)

Docket Number:5/02
Party Name:Swaine, Commissioners of Public Works in Ireland
Judge:Keane C.J.
 
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THE SUPREME COURT

Keane C.J.

Denham J.

Murray J.

Hardiman J.

Geoghegan J.

5/02

BETWEENTHE COMMISSONERS FOR PUBLIC WORKS IN IRELANDDEFENDANTS /APPELLANTSAND

DERMOT SWAINE PLAINTIFF/RESPONDENT

JUDGMENT of the Court delivered the 6th day of May 2003, by Keane C.J.

The plaintiff in this case was employed by the defendants as a plumber. From about the years 1981 - 1982, he was required to work in the Leinster House complex and, to a lesser extent, in the Department of Industry and Commerce, as it was then. During the course of his work, he was exposed over a lengthy period of time to very large quantities of asbestos dust. This had no immediate consequence for him in terms of his physical health: it did, however, expose him to the risk, described by the physician whom he attended, Professor Luke Clancy, as "very remote", of contracting a disease called mesothelioma. This disease, although relatively uncommon, is lethal when contracted. As a result of becoming aware of this risk, the plaintiff was suffering at the time of the trial in the High Court from what was described as "a chronic reactive anxiety neurosis".

The learned trial judge (O'Neill J) found that the condition in question had been caused by the negligence of the defendants in exposing the plaintiff to the risk of contracting mesothelioma. He awarded the plaintiff the sum of £45,000 by way of general damages, divided as to £15,000 in respect of pain and suffering to date and £30,000 in respect of pain and suffering in the future. In addition, he awarded the plaintiff the sum of £15,000 by way of aggravated damages. The total of damages awarded was, accordingly, £60,000.

The defendants served a notice of appeal on the grounds, inter alia, that the plaintiff was not entitled to recover any damages in respect of any physical injury, since he had suffered none, or in respect of the reactive anxiety neurosis which he had been found to be suffering from at the trial and that he was not entitled to recover any sum by way of aggravated damages.

The appeal in this case was heard at the same time as four other appeals in which the plaintiffs were Stephen Fletcher, Raymond Brophy, 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. All five cases arose out of what was admitted to be the failure of the defendants as employers to take precautions for the safety, health and welfare of the plaintiffs as their employees. In each of the other cases, as was 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 to the risk of contracting mesothelioma. There was also evidence in those cases 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 trial judge found that the defendants were liable to pay damages in respect of the psychiatric injury in question.

On the 13th February last, this court gave judgment in one of these cases, Stephen Fletcher -v- The Commissioners for Public Works in Ireland. The court was unanimously of the view that the appeal should be allowed and an order dismissing the plaintiff's claim substituted for an order of the High Court. The court was satisfied that the law in this jurisdiction should not be extended by the courts so as to allow the recovery by plaintiffs of damages for psychiatric injury resulting from an irrational fear of contracting a disease because of their negligent exposure to health risks by employers, where the risk is characterised by their medical advisors as very remote. Since, however, the course which the proceedings took in each case in the High Court was not identical...

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