Swaine v Commissioners of Public Works

JurisdictionIreland
JudgeKeane C.J.
Judgment Date06 May 2003
Neutral Citation[2003] IESC 30
Docket Number[S.C. No. 5 of 2002]
CourtSupreme Court
Date06 May 2003
SWAINE v. COMMISSIONERS FOR PUBLIC WORKS IN IRELAND

BETWEEN

THE COMMISSONERS FOR PUBLIC WORKS IN IRELAND
DEFENDANTS/APPELLANTS

AND

DERMOT SWAINE
PLAINTIFF/RESPONDENT

[2003] IESC 30

Keane C.J.

Denham J.

Murray J.

Hardiman J.

Geoghegan J.

5/02

THE SUPREME COURT

Synopsis:

DAMAGES

Aggravated damages

Circumstances where aggravated damages may be awarded - Negligence - Plaintiff's employer found to be grossly negligent - Plaintiff exposed to risk of contracting mesothelioma in workplace - Whether aggravated damages may be awarded for gross negligence (5/2002 - Supreme Court - 06/06/2003)

The Commissioners for Public Works in Ireland v Swaine - [2003] 1 IR 521 - [2003] 2 ILRM 252

the plaintiff was awarded £45,000 general damages by the High Court for a chronic reactive anxiety disorder caused by the defendant's negligence in exposing him to the risk of contracting mesothelioma through inhalation of asbestos dust in his workplace. In addition, he was awarded £15,000 by way of aggravated damages due to the trial judge's finding that the defendant's negligence was of the "grossest kind". The defendant appealed the award of aggravated damages made by the High Court.

Held by Keane CJ, delivering the judgment of the court, in allowing the appeal in respect of the award of aggravated damages and substituting therefor an order awarding the plaintiff damages of £45,000 in total that the circumstances where a court may award aggravated damages include, but are not limited to, the manner in which the wrong was committed, the conduct of the wrongdoer after the commission of the wrong and, the conduct of the wrongdoer and/or his representatives in the defence of the claim. The fact that a defendant was guilty of gross negligence is not, of itself, sufficient to entitle a plaintiff to aggravated damages in the absence of the aforementioned circumstances or factors of a similar nature.

Citations:

FLETCHER V CMSR PUBLIC WORKS IN IRELAND UNREP SUPREME 21.3.2003

CONWAY V IRISH NATIONAL TEACHERS ORGANISATION 1991 2 IR 305

HALSBURY'S LAWS OF ENGLAND 4ED VOL 12(1) PARA 1114

KRALJ V MCGRATH 1986 1 AER 54

A(B) V SOUTHWEST WATER SERVICES LTD 1993 QB 507

APPLETON & ORS V GARRETT 1996 PIQR 1

COOPER V O'CONNELL UNREP SUPREME 1998/14/4946

1

6th day of May 2003 , by Keane C.J.

Keane C.J.
2

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"

3

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

4

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.

5

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 recognizable 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.

6

On the 13 th 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, so far as the admissions made on behalf of the defendants and the issues which fell to be determined were concerned, it seemed more convenient that the court should give judgment on the issues which were the subject of argument in the court in that case only, leaving for further consideration the effect of its judgment on the remaining four appeals.

7

This case was, accordingly, listed for mention on March 25 thlast along with the other three cases to which I have referred. It was clear that in all four cases the defendants had, either expressly or by implication, withdrawn any plea in the defence denying liability to pay damages and that the cases proceeded as assessments of damages only. They fell, accordingly into a different category from the case of Fletcher-v-Commissioners of Public Works in Ireland,where the denial of liability to pay any damages had never been withdrawn and the learned trial judge heard arguments as to the liability, if any, of the defendants to pay any damages in a case such as the present, notwithstanding their admitted failure to take appropriate precautions for the health and welfare of the employee concerned. Accordingly, with one qualification, the appeals in the remaining cases were dismissed and the order of the High Court affirmed. The qualification arises in the present case where, although the defendants did admit their liability to pay damages, the issue as to whether they were liable to pay aggravated damages was folly contested. The court has already heard arguments in this appeal as to whether the learned trial judge was correct in point of law in awarding aggravated damages to the...

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