Warren Harford v Electricity Supply Board

• Jurisdiction: Ireland
• Judge: Mr. Justice Noonan
• Judgment Date: 16 April 2021
• Neutral Citation: [2021] IECA 112
• Date: 16 April 2021
• Court: Court of Appeal (Ireland)
• Docket Number: Record Number: 2020/138

Between/

Warren Harford

Plaintiff/Respondent

and

Electricity Supply Board

Defendant/Appellant

[2021] IECA 112

Donnelly J.

Noonan J.

Binchy J.

Record Number: 2020/138

High Court Record Number: 2017/4712P

THE COURT OF APPEAL

Psychiatric injury – Liability – Nervous shock – Appellant appealing against the judgment determining that the appellant was liable for an injury suffered by the respondent – Whether there was a horrifying event that led to the respondent’s injury

Facts: The High Court, in a judgment delivered on the 2nd June, 2020, determined that the defendant/appellant, Electricity Supply Board, was liable for an injury suffered by the plaintiff/respondent, Mr Harford, and awarded general damages of €80,000. The defendant appealed to the Court of Appeal against the judgment on the essential basis that, contrary to what the trial judge found, the plaintiff’s injury was not occasioned by “nervous shock” as that term is understood and applied in the relevant jurisprudence. The defendant also contended that there was in fact no horrifying event that led to the plaintiff’s psychiatric injury.

Held by Noonan J that the plaintiff could not satisfy the requirements of the second and fourth principles identified by Hamilton C.J. in Kelly v Hennessy [1995] 3 IR 253. Noonan J held that the injury was not “shock induced”, as the second principle requires, in the sense that this expression is explained in the relevant authorities. He held that there was no sudden calamitous or horrifying event in the nature of an accident. He held that there was thus no qualifying event and on one view, no event at all; there was instead a post hoc realisation that injury had been avoided by a decision not to proceed with what, with hindsight, was a dangerous course and the implications of that realisation unfolded over a period of hours for the plaintiff.

Noonan J held that he would allow the appeal, set aside the order of the High Court and dismiss the plaintiff’s claim. With regard to costs, since the defendant had been entirely successful, Noonan J’s provisional view was that it was entitled to the costs of the appeal and the hearing in the High Court.

Appeal allowed.

UNAPPROVED

NO REDACTION NEEDED

JUDGMENT of Mr. Justice Noonan delivered on the 16th day of April, 2021

1 . Can damages be recovered for “nervous shock” where there is no sudden calamitous event but rather an appreciation that physical injury has been narrowly avoided and where that appreciation leads to psychiatric injury? That is the essential question arising for determination in this appeal.

Facts

2 . The respondent (the plaintiff) is a network technician who, in 2014, had been employed by the appellant (the defendant) for more than twenty years. On Friday the 12 ^th December 2014, the plaintiff was assigned the task of repairing a public street light at Highfield Road, Rathgar, Dublin 6. A hole in the road had been excavated on the previous day to expose the relevant electrical cables. The plaintiff attended at the locus at about 11 a.m. with a work colleague, Pat Byrne. The intention was to identify an appropriate live cable and to transfer the faulty street light to that cable and restore it to functionality. The appropriate cable for such a street light would be what is described as a low voltage (LV) cable with 400 volts. Such a cable would normally have four cores.

3 . The cables were identified by the use of a device which indicates the voltage and that the cable is live. The device that the plaintiff was familiar with normally used for the purpose was called a “grumbler”. However, on the day in question, a grumbler was not available to the plaintiff and he was instructed by his supervisor to use a different device called an Ariadna 1C1G. The plaintiff was unfamiliar with this device and had never received any training on how to use it. The plaintiff went into the hole and attached the Ariadna to a cable which appeared to be giving him an appropriate signal although he seemed to be getting similar signals from other cables.

4 . On the basis that the Ariadna device had identified the correct cable, the plaintiff began to remove various layers of external protection and insulation from the cable. Initially, he had to strip away a type of tin armour on the cable which protects it from shovel impacts. It was evident that this was a very old cable. Below the tin, the cable was wrapped with a type of black cloth with tar and pitch and below that again, there was lead sheeting protecting the cable. The plaintiff removed the lead sheeting and what remained then was a form of paper insulation which he described as “belting papers”.

5 . The plaintiff confirmed in cross examination that these belting papers comprised insulation material which are impregnated with oil. The belting papers enclose the entire cable and if they are removed, each individual core has its own papers. The plaintiff made clear in his evidence that he physically handled this cable several times during the course of the morning without adverse effect, clearly indicating that this cable remained at all times insulated.

6 . The plaintiff explained that when he got down to the belting papers, the next stage in the process was for him to insert what he called test lamps into the cable for the purpose of confirming that it was live. These test lamps comprise pointed metal probes that pierce through the layers of external insulation and directly contact the cable core. The plaintiff did not have the test lamps with him as he had left them in the van. Accordingly, he started to get out of the hole to fetch the test lamps but said that as he did so, something about the appearance of the cable caught his eye, as he described it, “it didn't look right”.

7 . As a result, he went back to the cable and “had a feel around” when he then realised that it had three cores, rather than the expected four. This meant that the cable that the plaintiff identified and had been handling was not an LV cable as he believed but rather a medium voltage (MV) cable which carried 10,000 volts. The plaintiff explained that had he applied the test lamps to this cable as intended, he would have been electrocuted and likely suffered death or very serious injury. Accordingly, the plaintiff immediately closed up the site and reported the incident to his superiors.

8 . The company Christmas party took place on that same Friday evening and was attended by the plaintiff, presumably, some eight or nine hours after the incident. In evidence, the plaintiff described how he began to ruminate on what had happened at the party thinking “God, that was close. That was too close”. He said that he became to feel “a bit off”. However, he was able to re-attend work on the following Monday when he participated in a reconstruction of the incident for the purposes of a follow up investigation by the defendant.

9 . Nonetheless he described himself as becoming overwhelmed with intrusive thoughts of what might have happened, being unable to concentrate and getting palpitations and a feeling of weakness. His colleagues told him that he did not look well and he was brought home. He attended his general practitioner the next day, the 16th December, 2014. Thereafter, he remained off work for a period. There is no dispute about the fact that the plaintiff subsequently developed a recognised psychiatric illness. The plaintiff's psychiatrist was of the view that he fulfilled the criteria for a diagnosis of post-traumatic stress disorder. The defendant's psychiatrist disagreed with this diagnosis and considered that the plaintiff was suffering from depression. However, on the basis of either diagnosis, the plaintiff undoubtedly did contract a recognised psychiatric illness.

Judgment of the High Court

10 . Prior to the commencement of the trial, the defendant's solicitors wrote to the plaintiff's solicitors in the following terms:

“For the purposes of these proceedings only we have received instructions to make an admission of negligence. This admission does not extend to matters relating to reasonable foreseeability, causation or remoteness of the alleged personal injuries, loss or damage. Furthermore, issues will remain as to whether any alleged psychiatric injury suffered by your client are capable of giving rise to a valid cause of action and as to whether the Defendant's duty of case (sic) at law was such as to allow recoverability of damages in respect of the psychiatric injuries suffered by your client as a result of and in the circumstances of the incident the subject matter of these proceedings.”

11 . The issue therefore for the High Court to determine was whether the defendant was liable for an injury suffered in the circumstances described. The trial judge held that there was such liability and awarded general damages of €80,000.

12 . In her judgment delivered on the 2nd June, 2020 the trial judge set out the factual background and the relevant evidence of each of the witnesses. She set out the legal submissions of the parties which referred to a number of well-known authorities on the question of nervous shock. Under the heading “Findings of fact”, the judge said (at para. 60):-

“There is no doubt but that the plaintiff did suffer a shock and that it was the shock of his exposure to a 10,000-kilovolt cable which he had handled and in respect of which he apprehended threatened serious injury at least as a result of direct exposure to live electric cables in this incident.”

13 . The judgment went on to conclude that the plaintiff's post-traumatic stress disorder and/or depression were induced by the shock of his exposure to the 10,000 kilovolt cable. Although nothing turns on it, it should be noted that while the trial judge described it on several occasions as a 10,000 kilovolt cable, it was in fact a 10,000 volt or 10 kilovolt cable. Of note, at para....